EXHIBIT 10.1
==============================================================================
ADT OPERATIONS, INC.
as Issuer,
AND
ADT LIMITED,
ADT GENERAL HOLDINGS, INC.,
ADT SECURITY SERVICES, INC.
ADT SECURITY SYSTEMS WEST, INC.,
ADT AUTOMOTIVE HOLDINGS, INC.,
ADT AUTOMOTIVE, INC.,
AA PROPERTY HOLDINGS, INC.,
ADT INVESTMENTS, INC.,
AAAA DEALERS SERVICES INC.,
ADT BUSINESS HOLDINGS, INC.,
ADT PROPERTY HOLDINGS, INC.,
ADT SECURITY SYSTEMS, MANUFACTURING, INC.,
MID-ATLANTIC SECURITY, INC.,
ADT AUTOMOTIVE SERVICES, INC.,
AUCTION TRANSPORT, INC.,
BRITISH CAR AUCTIONS, INC.,
CCTC INTERNATIONAL, INC.,
ADT SPECIALTY AUCTIONS, INC.,
FLYING LION, INC.
AND
TRI-CITY AUTO AUCTION, INC.,
as Guarantors,
AND
THE CHASE MANHATTAN BANK
as Trustee
_______________
First Supplemental Indenture
to the Indenture, dated as of August 4, 1993, among
ADT Operations, Inc., the Guarantors Named Therein and
The Chase Manhattan Bank, as Trustee,
dated as of July 1, 1997
_______________
$250,000,000
8 1/4% Senior Notes due 2000
==============================================================================
FIRST SUPPLEMENTAL INDENTURE, dated as of July 1, 1997 between
ADT OPERATIONS, INC., a Delaware corporation, as Issuer (the "Company"), the
Guarantors (as defined below) and THE CHASE MANHATTAN BANK, as trustee (the
"Trustee").
RECITALS OF THE COMPANY AND THE GUARANTORS
The Company executed and delivered an Indenture dated as of
August 4, 1993 (the "Indenture") between the Company, the Guarantors Named
Therein (the "Guarantors") and the Trustee pursuant to which $250,000,000 of
the Company's 8 1/4% Senior Notes due 2000 (the "Notes") was issued.
ADT Limited, the indirect parent of the Company, has entered
into an Agreement and Plan of Merger dated as of March 17, 1997 among ADT
Limited, Limited Apache, Inc. ("Merger Sub"), a wholly owned subsidiary of ADT
Limited and a Massachusetts corporation, and Tyco International Ltd.("Tyco"), a
Massachusetts corporation, pursuant to which Merger Sub will be merged with
and into Tyco (the "Merger").
Sections 902 and 1021 of the Indenture provide that the
Indenture may be amended with the consent of the Holders of a majority in
principal amount of the Outstanding Notes.
The Company and ADT Limited wish to amend the Indenture as set
forth below, and the required Holders of the Notes have consented to the
execution of this First Supplemental Indenture pursuant to the consent
solicitation made by the Company through the Offer to Purchase and Consent
Solicitation dated June 4, 1997.
All other conditions and requirements necessary to make this
First Supplemental Indenture a valid and binding instrument in accordance with
its terms have been satisfied.
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the premises, the prior purchase of
the Notes by the Holders thereof and the receipt of consideration pursuant to
a simultaneous tender offer and consent solicitation by the Company for the
securities, it is mutually covenanted and agreed, for the equal and
proportionate benefit of all Holders of the Notes, as follows:
ARTICLE 1
Definitions and Other Provisions of General Application
SECTION 101. Capitalized Terms. For all purposes of this First
Supplemental Indenture, except as otherwise expressly provided or unless the
context otherwise requires, capitalized terms used and not defined herein shall
have the meanings assigned in the Indenture.
SECTION 102. Effectiveness. This First Supplemental
Indenture shall become effective, and shall bind the parties hereto, upon its
execution by the Company, the Guarantors and the Trustee.
Notwithstanding the foregoing, the amendments to the Indenture contained
in Article Two hereof (the "Amendments") shall not become operative, and shall
not be binding on the Company, the Guarantors or the Trustee, until delivery
by the Company to the Trustee of an Officers' Certificate certifying that the
Merger has been consummated and that the Notes have been accepted for purchase
by the Company. In the event that the Merger is not consummated or the Notes
are not accepted for purchase by the Company, the Amendments shall not become
operative and shall not bind the Company, any Guarantor or the Trustee and
this First Supplemental Indenture shall lapse automatically and be of no
further force or effect. Upon such termination, the Company shall deliver to
the Trustee an Officers' Certificate certifying that the Merger has not been
consummated and/or that the Notes have not been accepted for purchase by the
Company, as the case may be.
SECTION 103. Incorporation of First Supplemental Indenture into
Indenture. This First Supplemental Indenture is executed by the Company, the
Guarantors and the Trustee pursuant to the provisions of Section 902 of the
Indenture, and the terms and conditions hereof shall be deemed to be part of
the Indenture for all purposes upon effectiveness of this First Supplemental
Indenture and every Holder of Notes theretofore or thereafter authenticated
and delivered under the Indenture shall be bound hereby. The Indenture as
supplemented by this First Supplemental Indenture is hereby in all respects
ratified and confirmed.
SECTION 104. Effect of Headings. The Article and Section
headings herein are for convenience only and shall not affect the construction
hereof.
SECTION 105. Governing Law. This First Supplemental Indenture
shall be governed by and construed in accordance with the law of the State of
New York. This First Supplemental Indenture is subject to the provisions of
the Trust Indenture Act that are required to be part of this Indenture and
shall, to the extent applicable, be governed by such provisions.
SECTION 106. Counterparts. This First Supplemental Indenture
may be executed in any number of counterparts, each of which so executed shall
be deemed to be an original, but all such counterparts shall together
constitute but one and the same instrument.
SECTION 107. Recitals. The recitals contained herein shall be
taken as the statements of the Company and each Guarantor, and the Trustee
assumes no responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this First Supplemental
Indenture except that the Trustee represents that it is duly authorized to
execute and deliver this First Supplemental Indenture and perform its
obligations hereunder.
ARTICLE 2
Amendments to Provisions of Indenture
SECTION 201. Amendments. Subject to the conditions of Section
102(b) herein, the Indenture is hereby amended as set forth in the form of the
Amended and Restated Indenture attached hereto as Exhibit A.
IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed as of the day and year first written
above.
ADT OPERATIONS, INC.
By: /s/ ▇▇▇ ▇. ▇▇▇▇
------------------------------
Name:
Title:
ADT LIMITED
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------
Name:
Title:
ADT GENERAL HOLDINGS, INC.
By: /s/ ▇▇▇ ▇▇▇▇▇▇
------------------------------
Name:
Title:
ADT SECURITY SERVICES, INC.
By: /s/ ▇▇▇ ▇▇▇▇▇▇
------------------------------
Name:
Title:
ADT SECURITY SYSTEMS, WEST, INC.
By: /s/ ▇▇▇ ▇▇▇▇▇▇
------------------------------
Name:
Title:
ADT AUTOMOTIVE HOLDINGS, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------
Name:
Title:
ADT AUTOMOTIVE, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------
Name:
Title:
AA PROPERTY HOLDINGS, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------
Name:
Title:
ADT INVESTMENTS, INC.
By: /s/ ▇▇▇ ▇▇▇▇▇▇
------------------------------
Name:
Title:
AAAA DEALERS SERVICES INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------
Name:
Title:
ADT BUSINESS HOLDINGS, INC.
By: /s/ ▇▇▇ ▇▇▇▇▇▇
------------------------------
Name:
Title:
ADT PROPERTY HOLDINGS, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------
Name:
Title:
ADT SECURITY SYSTEMS, MANUFACTURING, INC.
By: /s/ ▇▇▇ ▇▇▇▇▇▇
------------------------------
Name:
Title:
MID-ATLANTIC SECURITY, INC.
By: /s/ ▇▇▇ ▇▇▇▇▇▇
------------------------------
Name:
Title:
ADT AUTOMOTIVE SERVICES, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------
Name:
Title:
AUCTION TRANSPORT, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------
Name:
Title:
BRITISH CAR AUCTIONS, INC.
By: /s/ ▇▇▇ ▇▇▇▇▇▇
------------------------------
Name:
Title:
CCTC INTERNATIONAL, INC.
By: /s/ ▇▇▇ ▇▇▇▇▇▇
------------------------------
Name:
Title:
ADT SPECIALTY AUCTIONS, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------
Name:
Title:
FLYING LION INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Trust Officer
TRI-CITY AUTO AUCTION, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------
Name:
Title:
EXHIBIT A
==============================================================================
ADT OPERATIONS, INC.,
as Issuer,
AND
ADT LIMITED,
ADT GENERAL HOLDINGS, INC.,
ADT SECURITY SERVICES, INC.,
ADT SECURITY SYSTEMS, WEST, INC.,
ADT AUTOMOTIVE HOLDINGS, INC.,
ADT AUTOMOTIVE, INC.,
AA PROPERTY HOLDINGS, INC.,
ADT INVESTMENTS, INC.,
AAAA DEALERS SERVICES INC.,
ADT BUSINESS HOLDINGS, INC.,
ADT PROPERTY HOLDINGS, INC.,
ADT SECURITY SYSTEMS MANUFACTURING, INC.,
MID-ATLANTIC SECURITY, INC.,
ADT AUTOMOTIVE SERVICES INC.,
AUCTION TRANSPORT INC.,
BRITISH CAR AUCTIONS INC.,
CCTC INTERNATIONAL, INC.,
ADT SPECIALTY AUCTIONS, INC.,
FLYING LION INC.
AND
TRI-CITY AUTO AUCTION, INC.,
as Guarantors,
AND
THE CHASE MANHATTAN BANK
as Trustee
--------------------------
Amended and Restated
Indenture
Dated as of bullet, 1997
--------------------------
$250,000,000
8-1/4% Senior Notes due 2000
==============================================================================
ADT OPERATIONS, INC.
Reconciliation and tie between Trust Indenture Act
of 1939 and Indenture, dated as of August 4, 1993
Trust Indenture Indenture
Act Section Section
--------------- ---------
Section 310 (a)(1)....................................................607
(a)(2)....................................................607
(b).......................................................608
Section 312 (c).......................................................701
Section 314 (a).......................................................703
(a)(4)...................................................1008(a)
(c)(1)....................................................102
(c)(2)....................................................102
(e).......................................................102
Section 315 (b).......................................................601
Section 316 (a)(last sentence)........................................101
("Outstanding")
(a)(1)(A).................................................502, 512
(a)(1)(B).................................................513
(b).......................................................508
(c).......................................................104(d)
Section 317 (a)(1)....................................................503
(a)(2)....................................................504
(b)......................................................1003
Section 318 (a).......................................................111
---------------
Note: This reconciliation and tie shall not, for any purpose, be deemed to be
a part of the Indenture.
TABLE OF CONTENTS
Page
RECITALS.....................................................................1
PARTIES......................................................................1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions...... ..............................................2
Act.............................................................3
ADT Limited.....................................................3
Affiliate.......................................................3
Agent...........................................................3
Attributable Debt...............................................3
Average Life to Stated Maturity.................................3
Board of Directors..............................................3
Board Resolution................................................4
Business Day....................................................4
Canadian Revolving Credit Lines.................................4
Capitalized Lease Obligation....................................4
Capital Stock...................................................4
Cash Equivalents................................................4
Change in Control...............................................5
Commission......................................................6
Common Stock....................................................6
Company.........................................................6
Company Request.................................................6
Consolidated Net Worth..........................................6
Consolidated Tangible Assets....................................6
Corporate Trust Office..........................................6
Corporation.....................................................6
Default.........................................................7
Defaulted Interest..............................................7
Dollar Equivalent...............................................7
Event of Default................................................7
Exchange Act....................................................7
Federal Bankruptcy Code.........................................7
Finance Canada Preferred Stock..................................7
Generally Accepted Accounting Principles........................7
Guaranteed Obligations..........................................7
Guaranteed Parties..............................................8
Guarantees......................................................8
Guarantor.......................................................8
Guarantor Senior Indebtedness...................................8
Holder..........................................................8
Indebtedness....................................................9
Indenture.......................................................9
Interest Payment Date...........................................9
Investment......................................................9
▇▇▇▇▇▇▇ Group...................................................9
Lender..........................................................9
Lien...........................................................10
Material Restricted Subsidiary.................................10
Maturity.......................................................10
New Bank Credit Agreement......................................10
Non-Guarantor..................................................10
Officers' Certificate..........................................10
Opinion of Counsel.............................................10
Outstanding....................................................11
Paying Agent...................................................11
Permitted Non-Guarantor Indebtedness...........................11
Person.........................................................13
Post-Merger Entity.............................................13
Predecessor Security...........................................13
Preferred Stock................................................13
Redeemable Capital Stock.......................................13
Reference Banks................................................14
Regular Record Date............................................14
Responsible Officer............................................14
Restricted Subsidiary..........................................14
Securities.....................................................14
Security Register..............................................14
Security Registrar.............................................14
Senior Subordinated Note Indenture.............................14
Senior Subordinated Notes......................................15
Special Record Date............................................15
Stated Maturity................................................15
Subordinated Indebtedness......................................15
Subsidiary.....................................................15
Subsidiary Guarantor...........................................15
Surviving Entity...............................................15
Trust Indenture Act............................................15
TIA............................................................15
Trustee........................................................15
Tyco...........................................................15
Unrestricted Subsidiary........................................15
U.S. Government Obligations....................................16
Vice President.................................................17
Voting Stock...................................................17
Wholly Owned Restricted Subsidiary.............................17
SECTION 102. Compliance Certificates and Opinions...........................17
SECTION 103. Form of Documents Delivered to Trustee.........................18
SECTION 104. Acts of Holders................................................19
SECTION 105. Notices, etc., to Trustee, Company, Guarantors and Agent.......20
SECTION 106. Notice to Holders; Waiver......................................20
SECTION 107. Effect of Headings and Table of Contents.......................21
SECTION 108. Successors and Assigns.........................................21
SECTION 109. Separability Clause............................................21
SECTION 110. Benefits of Indenture..........................................21
SECTION 111. Governing Law..................................................22
SECTION 112. Legal Holidays.................................................22
SECTION 113. No Recourse Against Others.....................................22
SECTION 114. Submission to Jurisdiction.....................................22
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally................................................23
SECTION 202. Form of Face of Security.......................................24
SECTION 203. Form of Reverse of Security....................................25
SECTION 204. Form of Trustee's Certificate of Authentication................28
SECTION 205. Form of Guarantee..............................................28
ARTICLE THREE
THE SECURITIES
SECTION 301. Title and Terms................................................34
SECTION 302. Denominations..................................................35
SECTION 303. Execution, Authentication, Delivery and Dating.................35
SECTION 304. Temporary Securities...........................................36
SECTION 305. Registration, Registration of Transfer and Exchange............36
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities...............37
SECTION 307. Payment of Interest; Interest Rights Preserved.................38
SECTION 308. Persons Deemed Owners..........................................40
SECTION 309. Cancellation...................................................40
SECTION 310. Computation of Interest........................................40
SECTION 311. Designation as Senior Indebtedness.............................40
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture........................41
SECTION 402. Application of Trust Money.....................................42
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default..............................................42
SECTION 502. Acceleration of Maturity; Rescission and Annulment.............45
SECTION 503. Collection of Indebtedness and Suits for Enforcement by
Trustee........................................................46
SECTION 504. Trustee May File Proofs of Claim...............................47
SECTION 505. Trustee May Enforce Claims Without Possession of
Securities.....................................................48
SECTION 506. Application of Money Collected.................................48
SECTION 507. Limitation on Suits............................................48
SECTION 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest...........................................49
SECTION 509. Restoration of Rights and Remedies.............................49
SECTION 510. Rights and Remedies Cumulative.................................49
SECTION 511. Delay or Omission Not Waiver...................................50
SECTION 512. Control by Holders.............................................50
SECTION 513. Waiver of Past Defaults........................................50
SECTION 514. Waiver of Stay or Extension Laws...............................51
ARTICLE SIX
THE TRUSTEE
SECTION 601. Notice of Defaults.............................................51
SECTION 602. Certain Rights of Trustee......................................52
SECTION 603. Trustee Not Responsible for Recitals or Issuance of
Securities.....................................................53
SECTION 604. May Hold Securities............................................53
SECTION 605. Money Held in Trust............................................54
SECTION 606. Compensation and Reimbursement.................................54
SECTION 607. Corporate Trustee Required; Eligibility........................55
SECTION 608. Resignation and Removal; Appointment of Successor..............55
SECTION 609. Acceptance of Appointment by Successor.........................56
SECTION 610. Merger, Conversion, Consolidation or Succession to
Business.......................................................57
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Disclosure of Names and Addresses of Holders...................57
SECTION 702. Reports by Trustee.............................................58
SECTION 703. Reports by Company and the Guarantors..........................58
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. ADT Limited or Any Restricted Subsidiary May Consolidate,
etc. Only on Certain Terms.....................................59
SECTION 802. ADT Limited May Amalgamate, Redomesticate, etc., Only on
Certain Terms..................................................60
SECTION 803. Successor Substituted..........................................61
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders.............62
SECTION 902. Supplemental Indentures with Consent of Holders................62
SECTION 903. Execution of Supplemental Indentures...........................63
SECTION 904. Effect of Supplemental Indentures..............................64
SECTION 905. Conformity with Trust Indenture Act............................64
SECTION 906. Reference in Securities to Supplemental Indentures.............64
SECTION 907. Notice of Supplemental Indentures..............................64
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium, if any, and Interest...........64
SECTION 1002. Maintenance of Office or Agency...............................65
SECTION 1003. Money for Security Payments to Be Held in Trust...............65
SECTION 1004. Corporate Existence...........................................67
SECTION 1005. Payment of Taxes and Other Claims.............................67
SECTION 1006. Maintenance of Properties.....................................67
SECTION 1007. Insurance.....................................................68
SECTION 1008. Statement by Officers As to Default...........................68
SECTION 1009. Provision of Financial Statements.............................68
SECTION 1010. Purchase of Securities upon Change in Control.................69
[SECTIONS 1011-1020 intentionally omitted.].................................70
SECTION 1021. Waiver of Certain Covenants...................................70
ARTICLE ELEVEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1101. Company's Option to Effect Defeasance or Covenant
Defeasance....................................................70
SECTION 1102. Defeasance and Discharge......................................70
SECTION 1103. Covenant Defeasance...........................................71
SECTION 1104. Conditions to Defeasance or Covenant Defeasance...............71
SECTION 1105. Deposited Money and U.S. Government Obligations to Be
Held in Trust; Other Miscellaneous Provisions.................73
SECTION 1106. Reinstatement.................................................74
ARTICLE TWELVE
GUARANTEE
SECTION 1201. Guarantee.....................................................74
SECTION 1202. Obligations of the Guarantors Unconditional...................76
SECTION 1203. Execution of Guarantee........................................76
SECTION 1204. Ranking of Guarantee..........................................77
SECTION 1205. Withholding...................................................77
SECTION 1206. Limitation of Subsidiary Guarantee............................78
SECTION 1207. Release of Guarantee..........................................78
AMENDED AND RESTATED INDENTURE, dated as of o, 1997 among ADT
OPERATIONS, INC., a corporation duly organized and existing under the laws of
the State of Delaware (herein called the "Company"), having its principal
office at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, as
Issuer, ADT LIMITED, a company duly organized and existing under the laws of
Bermuda ("ADT Limited"), having its principal office at ▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ADT GENERAL HOLDINGS, INC., ADT SECURITY
SERVICES, INC., ADT SECURITY SYSTEMS, WEST, INC., ADT AUTOMOTIVE HOLDINGS,
INC., ADT AUTOMOTIVE, INC., AA PROPERTY HOLDINGS, INC., ADT INVESTMENTS, INC.,
AAAA DEALERS SERVICES INC., ADT BUSINESS HOLDINGS, INC., ADT PROPERTY
HOLDINGS, INC., ADT SECURITY SYSTEMS MANUFACTURING, INC., MID-ATLANTIC
SECURITY, INC., ADT AUTOMOTIVE SERVICES INC., BRITISH CAR AUCTIONS INC., CCTC
INTERNATIONAL, INC. and FLYING LION INC., each a corporation duly organized and
existing under the laws of the State of Delaware, AUCTION TRANSPORT INC., a
corporation duly organized and existing under the laws of Missouri, ADT
SPECIALTY AUCTIONS, INC., INC., a corporation duly organized and existing
under the laws of the State of Michigan, and TRI-CITY AUTO AUCTION, INC., a
corporation duly organized and existing under the laws of the State of
Washington, as Guarantors (the "Guarantors"), and THE CHASE MANHATTAN BANK, a
New York banking corporation, duly organized and existing under the laws of
the State of New York, as Trustee (herein called the "Trustee").
RECITALS OF THE COMPANY AND THE GUARANTOR
The Company has duly authorized the creation of an issue of 8-1/4%
Senior Notes due 2000 (herein called the "Securities"), of substantially the
tenor and amount hereinafter set forth, and to provide therefor the Company
has duly authorized the execution and delivery of the Indenture, dated as of
August 4, 1993 among the Company, the Guarantors listed therein and the
Trustee (the "1993 Senior Note Indenture") and the Securities.
The Guarantor has duly authorized the issuance of a guarantee (the
"Guarantees") of the Securities, of substantially the tenor hereinafter set
forth, and to provide therefor each Guarantor has duly authorized the
execution and delivery of the 1993 Senior Note Indenture and the Guarantees.
The Holders of not less than a majority in principal amount of the
Outstanding Securities, by Act of said Holders delivered to the Company and
the Trustee, have authorized certain amendments to the 1993 Senior Note
Indenture.
The Company, the Guarantors and the Trustee have duly authorized the
execution and delivery of this Indenture.
This Indenture is subject to the provisions of the Trust Indenture Act
of 1939, as amended, that are required to be part of this Indenture and shall,
to the extent applicable, be governed by such provisions.
All things necessary have been done to make (i) the Securities the valid
obligations of the Company, (ii) the Guarantees the valid obligation of each
Guarantor and (iii) this Indenture a valid agreement of the Company and the
Guarantors, in accordance with their respective terms.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises, the prior purchase of the
Securities by the Holders thereof and the receipt of consideration pursuant to
a simultaneous tender offer and consent solicitation by the Company for the
Securities, it is mutually covenanted and agreed, for the equal and
proportionate benefit of all Holders of the Securities, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned to them
in this Article, and include the plural as well as the singular;
(b) all other terms used herein which are defined in the Trust Indenture
Act, either directly or by reference therein, have the meanings
assigned to them therein, and the terms "cash transaction" and
"self-liquidating paper", as used in TIA Section 311, shall have
the meanings assigned to them in the rules of the Commission
adopted under the Trust Indenture Act; and
(c) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
Certain terms, used principally in Article Ten, are defined in that
Article.
"Act", when used with respect to any Holder, has the meaning specified
in Section 104 hereof.
"ADT Limited" means ADT Limited, a Bermuda company.
"Affiliate" of any specified Person means (i) any other Person directly
or indirectly controlling or controlled by or under direct or indirect common
control with such specified Person or (ii) any officer or director of such
specified Person. For the purposes of this definition, "control" when used
with respect to any specified Person means the power to direct the management
and policies of such Person, directly or indirectly, whether through the
ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
"Agent" means The Bank of Nova Scotia, as agent under the New Bank
Credit Agreement, and any future such agent or agents under the New Bank
Credit Agreement.
"Attributable Debt" means, when used in connection with a sale and
leaseback transaction, at the time of determination, the present value
(discounted at the interest rate implicit in the lease, compounded
semiannually) of the obligation of the lessee of the property subject to such
sale and leaseback transaction for rental payments during the remaining term
of the lease included in such transaction, including any period for which such
lease has been extended or may, at the option of the lessor, be extended or
until the earliest date on which the lessee may terminate such lease without
penalty or upon payment of penalty (in which case the rental payments shall
include such penalty), after excluding all amounts required to be paid on
account of maintenance and repairs, insurance, taxes, assessments, water,
utilities and similar charges.
"Average Life to Stated Maturity" means, with respect to any
Indebtedness, as at any date of determination, the quotient obtained by
dividing (i) the sum of the products of (a) the number of years from such
date to the date or dates of each successive scheduled principal payment
(including, without limitation, any sinking fund requirements) of such
Indebtedness multiplied by (b) the amount of each such principal payment by
(ii) the sum of all such principal payments.
"Board of Directors" means the board of directors of ADT Limited;
provided, however, that for purposes of the proviso of Section 1004 hereof
with respect to any right or franchise of a Restricted Subsidiary other than
the Company, "Board of Directors" shall include any committee of such Board of
Directors duly authorized to act under this Indenture.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of ADT Limited, the Company or any other
Guarantor, as the case may be, to have been duly adopted by the Board of
Directors of ADT Limited or the board of directors of the Company or such
other Guarantor, as the case may be, and to be in full force and effect on the
date of such certification, and delivered to the Trustee.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in The City of New
York are authorized or obligated by law or executive order to close.
"Canadian Revolving Credit Lines" means the committed lines of credit
outstanding on the date hereof for working capital purposes in Canada in an
aggregate amount not to exceed Canadian $60,000,000, provided that all amounts
outstanding under such committed lines of credit are at all times supported by
irrevocable letters of credit issued under the New Bank Credit Agreement.
"Capitalized Lease Obligation" means any obligation under any capital
lease of real or personal property that, in accordance with GAAP, has been
recorded as a capitalized lease obligation, and, for purposes of this
Indenture, the amount of such obligation at any date shall be the capitalized
amount thereof at such date, determined in accordance with GAAP.
"Capital Stock" means, with respect to any Person, any and all shares,
interests, participations or other equivalents (however designated) of such
Person's capital stock whether now outstanding or issued after the date
hereof, including, without limitation, all Common Stock and Preferred Stock.
"Cash Equivalents" means (i) any evidence of Indebtedness with a
maturity of 180 days or less issued or directly and fully guaranteed or
insured by the United States of America or any agency or instrumentality
thereof (provided that the full faith and credit of the United States of
America is pledged in support thereof); (ii) certificates of deposit or time
deposits with a maturity of 180 days or less of any financial institution that
is a member of the Federal Reserve System having combined capital and surplus
and undivided profits of not less than $500,000,000 (x) whose short term
obligations have a rating, at the time as of which any such Investment is
made, of "P-1" (or higher) according to ▇▇▇▇▇'▇ Investors Service, Inc. or
"A-1" (or higher) according to Standard & Poor's Corporation or (y) whose debt
is rated, at the time as of which any Investment therein is made, "A" (or
higher) according to ▇▇▇▇▇'▇ Investors Service, Inc. or "A" (or higher)
according to Standard & Poor's Corporation; (iii) commercial paper with a
maturity of 180 days or less issued by a corporation (other than an Affiliate
of ADT Limited) organized under the laws of any state of the United States of
America or the District of Columbia and rated "P-1" (or higher) according to
▇▇▇▇▇'▇ Investors Service, Inc. or "A-1" (or higher) according to Standard &
Poor's Corporation or at least an equivalent rating category of another
nationally recognized securities rating agency; and (iv) any money market
deposit accounts issued or offered by any commercial banking institution
described in clause (ii) above.
"Change in Control" means an event as a result of which (i) any
"person" or "group" (as such terms are used in Sections 13(d) and 14(d) of the
Exchange Act), including the ▇▇▇▇▇▇▇ Group, is or becomes the direct or
indirect "beneficial owner" (as defined in Rule 13d-3 and 13d-5 under the
Exchange Act) of (A) if the ▇▇▇▇▇▇▇ Group beneficially owns more than 20% of
the outstanding Voting Stock of ADT Limited, more than 50% of such outstanding
Voting Stock and (B) if the ▇▇▇▇▇▇▇ Group beneficially owns 20% or less of the
outstanding Voting Stock of ADT Limited, more than 40% of such outstanding
Voting Stock, (ii) during any period of two consecutive years, individuals who
either (a) were members of the Board of Directors at the beginning of such
period or (b) whose election by the Board of Directors or whose nomination for
election by the shareholders of ADT Limited was approved by a vote of 66 2/3%
of the directors then still in office who were either directors at the
beginning of such period or whose election or nomination for election was
previously approved as provided for in this clause (b) cease for any reason
(including as a result of any proxy contest involving the solicitation of
revocable proxies under Section 14(a) of the Exchange Act) to constitute a
majority of the Board of Directors, (iii) the Company consolidates with or
merges with or into any other Person or all or substantially all of the
Company's assets are sold, conveyed, assigned, transferred, leased or
otherwise disposed of to any Person, or any corporation consolidates with or
merges with or into the Company (other than to, with or into a Wholly Owned
Restricted Subsidiary of ADT Limited), or (iv) ADT Limited consolidates or
amalgamates with or merges with or into any Person or all or substantially all
of ADT Limited's assets are sold, conveyed, assigned, leased or otherwise
disposed of to any Person, or any corporation consolidates with or merges with
or into ADT Limited, in any such event pursuant to a transaction in which the
outstanding Voting Stock of ADT Limited is changed into or exchanged for cash,
securities or other property, other than any such transaction (a) where the
outstanding Voting Stock of ADT Limited is not changed or exchanged at all
(except, with respect to any such transaction described above, to the extent
necessary to reflect a change in the jurisdiction of incorporation of ADT
Limited) or (b) where (A) the outstanding Voting Stock of ADT Limited is
changed into or exchanged for Voting Stock (other than Redeemable Capital
Stock) of the surviving corporation and (B) no "person" or "group" (as such
term is used in Sections 13(d) and 14(d) of the Exchange Act) is the
"beneficial owner" (as defined in Rules 13d-3 and 13d-5 under the Exchange
Act, except that a Person shall be deemed to have "beneficial ownership" of all
securities that such Person has the right to acquire, whether or not such
right is exercisable immediately or only after the passage of time)
immediately after such transaction, directly or indirectly, of more than 50%
of the total outstanding Voting Stock of the surviving corporation.
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Securities Exchange Act of 1934, or,
if at any time after the execution of this Indenture such Commission is not
existing and performing the duties now assigned to it under the Trust
Indenture Act, then the body performing such duties at such time.
"Common Stock" means, with respect to any Person, any and all shares,
interests, participations and other equivalents (however designated, whether
voting or non-voting) of such Person's common stock, whether now outstanding
or issued after the date of this Indenture, and includes, without limitation,
all series and classes of such common stock.
"Company" means the Person named as the "Company" in the first
paragraph of this Indenture, until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman, its President, any Vice
President, its Treasurer or an Assistant Treasurer, and delivered to the
Trustee.
"Consolidated Net Worth" means the consolidated stockholders' equity
(excluding Redeemable Capital Stock) of a person and its consolidated
Subsidiaries (and in the case of ADT Limited, of ADT Limited and its
Restricted Subsidiaries), as determined in accordance with GAAP.
"Consolidated Tangible Assets" means the total amount of assets of the
Company, ADT Limited and the other Restricted Subsidiaries (less applicable
reserves and other properly deductible items) after deducting (i) all current
liabilities (excluding any thereof which are by their terms extendible or
renewable at the option of the obligor thereon to a time more than 12 months
after the time as of which the amount thereof is being computed) and (ii) all
good will, trade names, trademarks, patents, unamortized debt discount and
expense and other like intangibles, all determined in accordance with GAAP.
"Corporate Trust Office" means the principal corporate trust office of
the Trustee, at which at any particular time its corporate trust business
shall be administered, which office at the date of execution of this Indenture
is located at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
except that with respect to presentation of Securities for payment or for
registration of transfer or exchange, such term shall mean the office or
agency of the Trustee at which, at any particular time, its corporate agency
business shall be conducted.
"Corporation" includes corporations, associations, companies and
business trusts.
"Default" means any event which is, or after notice or passage of time
or both would be, an Event of Default.
"Defaulted Interest" has the meaning specified in Section 307.
"Dollar Equivalent" means, with respect to any amount of any currency
other than U.S. dollars, the equivalent amount of U.S. dollars determined by
using the arithmetic average of the quoted spot rates at which the principal
office or principal branch office of each of the Reference Banks in London
offers to provide such other currency in exchange for U.S. dollars in London
at 2:00 P.M. London time on the date as of which such Dollar Equivalent is to
be determined, provided that if one or more of the Reference Banks no longer
announces such quoted spot rates for such currency, then the Dollar Equivalent
shall be determined by using the arithmetic average of the quoted spot rates
or the quoted spot rate, as the case may be, of the other Reference Banks or
Bank, respectively.
"Event of Default" has the meaning specified in Section 501 hereof.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Federal Bankruptcy Code" means Title 11 of the United States Code, as
amended from time to time.
"Finance Canada Preferred Stock" means the Non-Voting Exchangeable
Shares, Series A, of ADT Finance Inc., a Canadian corporation (the "Series A
Shares"), and any publicly-held non-voting Preferred Stock issued by any
successor corporation of ADT Finance Inc. incorporated under the laws of
Canada ("Finance Canada") (i) in respect of which dividends are payable only
when a dividend is payable by ADT Limited in respect of its voting Common
Stock, (ii) that is convertible, exchangeable or redeemable only for voting
Common Stock of ADT Limited, (iii) that will entitle the holder thereof to
participate in any liquidation, dissolution or winding up of Finance Canada,
whether voluntary or involuntary, or any other distribution of assets of
Finance Canada among its stockholders for the purpose of winding up its
affairs, to no greater extent than the extent to which the holders of the
Series A Shares would currently so participate and (iv) the other terms of
which are not adverse in any material respect to the Holders of the
Securities.
"Generally Accepted Accounting Principles" or "GAAP" means generally
accepted accounting principles in the United States, consistently applied,
that are in effect on the date hereof.
"Guaranteed Obligations" has the meaning specified in Section 1201
hereof.
"Guaranteed Parties" means all the Persons who are now or who hereafter
become Holders and the Trustee.
"Guarantees" means the guarantees of the Guarantors set forth in
Article Twelve of this Indenture and more particularly means any guarantees
endorsed on any Securities delivered under this Indenture.
"Guarantor" means each of the parties named as "Guarantors" in the first
paragraph of this Indenture, until a successor replaces any such Guarantor
pursuant to the applicable provisions hereof and, thereafter, shall mean such
successor; provided, however, that unless expressly provided for otherwise by
a supplemental indenture hereto, no Post-Merger Entity shall be a "Guarantor".
"Guarantor Senior Indebtedness" means the principal of (and premium, if
any, on) and interest on (including interest accruing after the filing of a
petition initiating any proceeding pursuant to any bankruptcy law, whether or
not allowable as a claim in such proceeding) and other amounts due on or in
connection with any Indebtedness of any Guarantor, whether outstanding on the
date hereof or hereafter created, incurred or assumed, unless, in the case of
any particular Indebtedness, the instrument creating or evidencing the same or
pursuant to which the same is outstanding expressly provides that such
Indebtedness shall not be pari passu with the Guarantees. Without limiting
the generality of the foregoing, "Guarantor Senior Indebtedness" shall include
the principal of (and premium, if any, on) and interest (including interest
accruing after the filing of a petition initiating any proceeding pursuant to
any bankruptcy law, whether or not allowable as a claim in such proceeding) on
all obligations of every nature of any Guarantor to the Lenders under the New
Bank Credit Agreement and to the Holders of the Securities, and any interest
rate or foreign exchange agreement now existing or hereinafter entered into by
any Guarantor with any Lender, including, without limitation, all fees,
expenses (including fees and expenses of counsel), claims, charges and
indemnity obligations. Notwithstanding the foregoing, "Guarantor Senior
Indebtedness" shall not include (i) Indebtedness evidenced by the guarantees
of the Senior Subordinated Notes, (ii) Indebtedness of any Guarantor that is
expressly subordinated in right of payment to any of such Guarantor's
Guarantees, (iii) Indebtedness of any Guarantor that by operation of law is
subordinate to any general unsecured obligations of such Guarantor, (iv)
Indebtedness represented by Redeemable Capital Stock, (v) Indebtedness of any
Guarantor to ADT Limited or any of its Subsidiaries, (vi) any liability for
federal, state, local or other taxes owed or owing by any Guarantor and (vii)
trade payables owed or owing by any Guarantor.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Indebtedness" means (i) any liability of any Person (A) for borrowed
money, or under any reimbursement obligation relating to a letter of credit,
or (B) evidenced by a bond, note, debenture or similar instrument (including a
purchase money obligation) given in connection with the acquisition of any
businesses, properties or assets of any kind (other than a trade payable or a
current liability arising in the ordinary course of business), or (C) under
interest rate contracts and exchange rate contracts, or (D) for the payment of
money relating to a Capitalized Lease Obligation or (E) for all Redeemable
Capital Stock valued at the greater of its voluntary or involuntary
liquidation preference plus accrued and unpaid dividends; (ii) any liability
of others described in the preceding clause (i) that such Person has
guaranteed or that is otherwise its legal liability; (iii) all Indebtedness
referred to in (but not excluded from) clauses (i) and (ii) above of other
Persons and all dividends of other Persons, the payment of which is secured by
(or for which the holder of such Indebtedness has an existing right,
contingent or otherwise, to be secured by) any Lien upon or in property
(including, without limitation, accounts and contract rights) owned by such
Person, even though such Person has not assumed or become liable for the
payment of such Indebtedness; and (iv) any amendment, supplement,
modification, deferral, renewal, extension or refunding of any liability of
the types referred to in clauses (i), (ii) and (iii) above.
"Indenture" means this amended and restated indenture as originally
executed and as it may from time to time be supplemented or amended by one or
more indentures supplemental hereto entered into pursuant to the applicable
provisions hereof.
"Interest Payment Date" means the Stated Maturity of an installment of
interest on the Securities.
"Investment" means any direct or indirect advance, loan (other than
advances to customers in the ordinary course of business, which are recorded
as accounts receivable on the balance sheet of the Company, ADT Limited and
the other Restricted Subsidiaries) or other extension of credit or capital
contribution to (by means of any transfer of cash or other property to others
or any payment for property or services for the account or use of others), or
any purchase or acquisition of Capital Stock, bonds, notes, debentures or
other securities issued by any other Person.
"▇▇▇▇▇▇▇ Group" means ▇▇▇▇▇▇▇ Inc., a Canadian corporation, and any of
its Affiliates or any "group" (as such term is used in Sections 13(d) and
14(d) of the Exchange Act) that includes ▇▇▇▇▇▇▇ Inc. or any of its Affiliates.
"Lender" means the various financial institutions as are, or shall from
time to time become, parties to the New Bank Credit Agreement.
"Lien" means any mortgage, charge, pledge, lien, security interest or
encumbrance of any kind.
"Material Restricted Subsidiary" means any Restricted Subsidiary whose
total assets or consolidated revenues (or, where ADT Limited owns directly or
indirectly less than 100% of the equity share capital of such Restricted
Subsidiary, that part thereof attributable to ADT Limited's direct or indirect
interest therein) is equal to or greater than 5% of the total assets or 5% of
consolidated revenues, as the case may be, of the Company, ADT Limited and the
other Restricted Subsidiaries taken as a whole as of the date of the latest
consolidated financial statements of ADT Limited; provided, however, that a
Material Restricted Subsidiary shall not include Insight Group Limited, a
United Kingdom corporation ("Insight"), for so long as Insight does not
conduct any business other than the travel services business and does not
account for more than 15% of the consolidated revenues of the Company, ADT
Limited and the other Restricted Subsidiaries taken as a whole as of the date
of the latest consolidated financial statements of ADT Limited.
"Maturity", when used with respect to any Security, means the date on
which the principal of such Security or an installment of principal becomes
due and payable as therein or herein provided, whether at the Stated Maturity
or purchase upon Change in Control, and whether by declaration of
acceleration, Change in Control, call for purchase or otherwise.
"New Bank Credit Agreement" means, collectively, the Amended and
Restated Credit Agreement, dated as of April 14, 1997, among the Company, the
Lenders named therein, and the Bank of Nova Scotia, as Agent, together with
any related documents (including, without limitation, any guarantees or
security documents) as in effect on the date hereof and as such Agreement (and
such related documents) may be amended, restated, supplemented, renewed,
replaced or otherwise modified from time to time, including any agreement
extending the maturity of or refinancing or refunding all or any portion of
the Indebtedness or increasing the amount to be borrowed under such agreement
or any successor agreement, whether or not by or among the same parties.
"Non-Guarantor" means all Restricted Subsidiaries of ADT Limited other
than the Company and the Guarantors.
"Officers' Certificate" means a certificate signed by the Chairman, the
President or a Vice President, and by the Treasurer, an Assistant Treasurer,
the Secretary or an Assistant Secretary of the Company or ADT Limited, as the
case may be, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company, including an employee of the Company, and who shall
be acceptable to the Trustee.
"Outstanding", when used with respect to the Securities, means, as of
the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or delivered to the
Trustee for cancellation;
(ii) Securities, or portions thereof, for whose payment money in the
necessary amount has been theretofore deposited with the Trustee or any
Paying Agent (other than the Company) in trust or set aside and
segregated in trust by the Company (if the Company shall act as its own
Paying Agent) for the Holders of such Securities;
(iii) Securities, except to the extent provided in Sections 1102 and
1103, with respect to which the Company has effected defeasance and/or
covenant defeasance as provided in Article Eleven; and
(iv) Securities which have been paid pursuant to Section 306 or in
exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to
the Trustee proof satisfactory to it that such Securities are held by a
bona fide purchaser in whose hands the Securities are valid obligations
of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of Outstanding Securities have given any request, demand,
authorization, direction, consent, notice or waiver hereunder, and for the
purpose of making the calculations required by TIA Section 313, Securities
owned by the Company or any Guarantor or any Affiliate of the Company or any
Guarantor shall be disregarded and deemed not to be Outstanding, except that,
in determining whether the Trustee shall be protected in making such
calculation or in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Securities which the Trustee knows
to be so owned shall be so disregarded. Securities so owned which have been
pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee's right so to act
with respect to such Securities and that the pledgee is not the Company or any
Guarantor or any Affiliate of the Company or any Guarantor.
"Paying Agent" means any Person (including the Company acting as Paying
Agent) authorized by the Company to pay the principal of (and premium, if any,
on) or interest on any Securities on behalf of the Company.
"Permitted Non-Guarantor Indebtedness" means any of the following:
(i) Indebtedness of any Non-Guarantor outstanding on the date hereof and
Indebtedness under the Canadian Revolving Credit Lines;
(ii) obligations of any Non-Guarantor pursuant to interest rate
contracts designed to protect such Non-Guarantor against fluctuations in
interest rates and exchange rates in respect of Indebtedness of such
Non-Guarantor, to the extent the notional principal amount of such
obligations does not exceed the aggregate principal amount of the
Indebtedness to which such interest rate contracts relate;
(iii) obligations of any Non-Guarantor pursuant to foreign exchange
contracts designed to protect such Non-Guarantor against fluctuations in
currency values and entered into in the ordinary course of business and
not for purposes of speculation;
(iv) Indebtedness of any Non-Guarantor owing to the Company or to ADT
Limited or any of its Wholly Owned Restricted Subsidiaries; provided,
however, that (A) any disposition, pledge or transfer of any such
Indebtedness to a Person (other than to a Wholly Owned Restricted
Subsidiary of ADT Limited) shall be deemed to be an incurrence of such
Indebtedness by the obligor not permitted by this clause and (B) any
transaction by which any Non-Guarantor that has any Indebtedness owing
to another Restricted Subsidiary ceases to be a Restricted Subsidiary
shall be deemed to be the incurrence of Indebtedness by such
Non-Guarantor that is not permitted by this clause;
(v) Indebtedness of any Non-Guarantor consisting of guarantees,
indemnities, surety or performance bonds or obligations in respect of
purchase price adjustments in connection with the acquisition or
disposition of assets;
(vi) Indebtedness in respect of letters of credit, surety bonds and
performance bonds provided in the ordinary course of business;
(vii) any renewals, extensions, substitutions, refinancings or
replacements of any Indebtedness described in the foregoing clauses (i)
through (vi) so long as (A) the principal amount of any such new
Indebtedness (including any unused or revolving commitment thereunder)
does not exceed the principal amount (including any unused or revolving
commitment) (or, if such Indebtedness provides for an amount less than
the principal amount thereof to be payable upon acceleration, such
lesser amount) so refinanced, plus the amount of any premium required to
be paid under the terms of the instrument governing such Indebtedness
being so refinanced or the amount of any premium reasonably determined
by the Non-Guarantor as necessary to accomplish such refinancing through
means of a tender offer or privately negotiated transaction, (B) if such
Indebtedness is Subordinated Indebtedness, such new Indebtedness is made
subordinate to the Securities at least to the same extent as the
Indebtedness being refinanced and (C) such new Indebtedness has an
Average Life to Stated Maturity and final Stated Maturity of principal
that equals or exceeds the Average Life to Stated Maturity and final
Stated Maturity of the Indebtedness being refinanced;
(viii) Indebtedness arising from the honoring by a bank or other
financial institution of a check, draft or similar instrument
inadvertently drawn against insufficient funds in the ordinary course of
business; provided that such Indebtedness is extinguished within two
Business Days of its incurrence; and
(ix) Indebtedness in addition to that permitted by clauses (i) through
(viii) above, that, together with any other outstanding Indebtedness
(including Attributable Debt) incurred pursuant to this clause (ix) has
(without duplication) an aggregate principal amount not in excess of 10%
of Consolidated Tangible Assets of ADT Limited at the date of incurrence.
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Post-Merger Entity" means (i) any of Tyco and its Subsidiaries and
(ii) any other Subsidiary of ADT Limited created or acquired after the
consummation of the merger between Tyco and Limited Apache, Inc., a
Wholly-Owned Subsidiary of ADT Limited and a Massachusetts corporation,
pursuant to the Agreement and Plan of Merger, dated as of March 17, 1997,
among Tyco, Limited Apache, Inc. and ADT Limited.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by
such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 306 in exchange for a
mutilated security or in lieu of a lost, destroyed or stolen Security shall be
deemed to evidence the same debt as the mutilated, lost, destroyed or stolen
Security.
"Preferred Stock" means, with respect to any Person, any and all
shares, interests, participations or other equivalents (however designated,
whether voting or non-voting) of such Person's preferred or preference stock
whether now outstanding or issued after the date hereof, including, without
limitation, all classes and series of preferred or preference stock.
"Redeemable Capital Stock" means any Capital Stock of the Company, ADT
Limited or any other Restricted Subsidiary that, either by its terms, by the
terms of any security into which it is convertible or exchangeable or
otherwise, (i) is or upon the happening of an event or passage of time would
be required to be redeemed (for consideration other than shares of the common
equity capital of ADT Limited) on or prior to the final Stated Maturity of the
Securities, (ii) is redeemable at the option of the holder thereof (for
consideration other than shares of the common equity capital of ADT Limited)
at any time prior to such final Stated Maturity, or (iii) is convertible into
or exchangeable for debt securities at any time prior to such final Stated
Maturity.
"Reference Banks" means each of The Chase Manhattan Bank and Midland
Bank plc.
"Regular Record Date" for the interest payable on any Interest Payment
Date means the January 15 or July 15 (whether or not a Business Day), as the
case may be, next preceding such Interest Payment Date.
"Responsible Officer", when used with respect to the Trustee, means any
officer within the Corporate Trust Office of the trustee including the
chairman or any vice-chairman of the board of directors, the chairman or any
vice-chairman of the executive committee of the board of directors, the
chairman of the trust committee, the president, any vice president, the
secretary, any assistant secretary, the treasurer, any assistant treasurer,
the cashier, any assistant cashier, any trust officer or assistant trust
officer, the controller or any assistant controller or any other officer of
the Trustee customarily performing functions similar to those performed by any
of the above-designated officers, with the direct responsibility for the
administration of this Indenture on behalf of the Trustee and also means, with
respect to a particular corporate trust matter, any other officer to whom such
matter is referred because of such officer's knowledge of and familiarity with
the particular subject.
"Restricted Subsidiary" means any Subsidiary of ADT Limited, including,
without limitation, the Company, other than an Unrestricted Subsidiary.
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and
delivered under this Indenture.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Senior Subordinated Note Indenture" means the indenture dated as of
August 4, 1993, as amended, among the Company, as issuer, ADT Limited, as
guarantor, and The Bank of New York, as trustee, relating to the Company's
9-1/4% Senior Subordinated Notes due 2003, as such indenture may be amended or
supplemented from time to time by one or more indentures supplemental thereto
entered into pursuant to the applicable provisions thereof.
"Senior Subordinated Notes" means the 9-1/4% Senior Subordinated Notes
due 2003 of the Company issued pursuant to the Senior Subordinated Note
Indenture.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any Indebtedness or any
installment of principal thereof or interest thereon, means the date specified
in such Indebtedness as the fixed date on which the principal of such
Indebtedness or such installment of principal or interest is due and payable.
"Subordinated Indebtedness" means Indebtedness of any Person that by
its terms is subordinated in right of payment to other Indebtedness of such
Person and shall be deemed to include Redeemable Capital Stock.
"Subsidiary" means, with respect to any Person, any corporation of
which, at the time of determination, such person, directly or indirectly
through one or more Subsidiaries, owns more than 50% of the Voting Stock.
"Subsidiary Guarantor" means any Guarantor that is a Restricted
Subsidiary, other than a Restricted Subsidiary that is a direct or indirect
parent of the Company.
"Surviving Entity" has the meaning specified in Section 801 hereof.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939, as
amended, as in force at the date as of which this Indenture was executed,
except as provided in Section 905.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this Indenture until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean such successor Trustee.
"Tyco" means Tyco International Limited, a Massachusetts corporation.
"Unrestricted Subsidiary" means (a) any Post-Merger Entity and (b) any
Subsidiary of ADT Limited that at the time of determination shall be
designated an Unrestricted Subsidiary by the Board of Directors in the manner
provided below and (c) any Subsidiary of an Unrestricted Subsidiary. The
Board of Directors may designate any Subsidiary of ADT Limited (including any
newly acquired or newly formed subsidiary) to be an Unrestricted Subsidiary if
such Subsidiary of ADT Limited is a Subsidiary (a) no portion of the
Indebtedness or any other obligation (contingent or otherwise) of which (i) is
guaranteed by the Company, ADT Limited or any other Restricted Subsidiary,
(ii) is recourse to or obligates the Company, ADT Limited or any other
Restricted Subsidiary in any way or (iii) subjects any property or asset of the
Company, ADT Limited or any other Restricted Subsidiary, directly or
indirectly, contingently or otherwise, to satisfaction thereof, (b) which has
no Indebtedness or any other obligation that, if in default in any respect
(including a non-payment default), would permit (upon notice, lapse of time or
both) any holder of any other Indebtedness of the Company, ADT Limited or any
other Restricted Subsidiary to declare a default on such other Indebtedness or
cause the payment thereof to be accelerated or payable prior to its Stated
Maturity, (c) with which the Company, ADT Limited or any other Restricted
Subsidiary has no contract, agreement, arrangement, understanding or
obligation of any kind, whether written or oral, other than a transaction on
terms no less favorable to the Company, ADT Limited or any other Restricted
Subsidiary than those that might be obtained at the time from Persons who are
not Affiliates of the Company or ADT Limited, and (d) with which neither the
Company, ADT Limited nor any other Restricted Subsidiary has any obligation
(i) to subscribe for additional shares of Capital Stock, or other equity
interest therein, or (ii) to maintain or preserve such Restricted Subsidiary's
financial condition or to cause such Restricted Subsidiary to achieve certain
levels of operating results; provided, however, that in no event shall any
Guarantor be deemed an Unrestricted Subsidiary. The Board of Directors may
designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided
that immediately after giving effect to such designation (A) any Indebtedness
or Liens of such Unrestricted Subsidiary would be permitted to be incurred by
such Restricted Subsidiary under this Indenture and (B) no Default or Event of
Default shall have occurred and be continuing. Any such designation by the
Board of Directors shall be evidenced to the Trustees by promptly filing with
each of the Trustees a copy of the Board Resolution giving effect to such
designation and an Officers' Certificate certifying that such designation
complied with the foregoing provisions. A designation of an Unrestricted
Subsidiary as a Restricted Subsidiary may not thereafter be rescinded.
"U.S. Government Obligations" means securities that are (i) direct
obligations of the United States of America for the timely payment of which
its full faith and credit is pledged or (ii) obligations of a Person
controlled or supervised by and acting as an agency or instrumentality of the
United States of America the timely payment of which is unconditionally
guaranteed as a full faith and credit obligation by the United States of
America, which, in either case, are not callable or redeemable at the option
of the issuer thereof, and shall also include a depository receipt issued by a
bank (as defined in Section 3(a)(2) of the Securities Act of 1933, as
amended), as custodian with respect to any such U.S. Government Obligation or
a specific payment of principal of or interest on any such U.S. Government
Obligation held by such custodian for the account of the holder of such
depository receipt; provided that (except as required by law) such custodian
is not authorized to make any deduction from the amount payable to the holder
of such depository receipt from any amount received by the custodian in
respect of the U.S. Government Obligation or the specific payment of principal
of or interest on the U.S. Government Obligation evidenced by such depository
receipt.
"Vice President", when used with respect to the Company or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "vice president".
"Voting Stock" means stock of the class or classes pursuant to which
the holders thereof have the general voting power under ordinary circumstances
to elect at least a majority of the board of directors, managers or trustees
of a corporation (irrespective of whether or not at the time stock of any
other class or classes shall have or might have voting power by reason of the
happening of any contingency).
"Wholly Owned Restricted Subsidiary" means (i) a Subsidiary all the
Capital Stock (other than directors' qualifying shares that are required under
applicable law) of which is owned by ADT Limited or another Wholly Owned
Restricted Subsidiary of ADT Limited and (ii) ADT Finance Inc., a Canadian
corporation, if and only if and for so long as, the Capital Stock of ADT
Finance Inc. consists entirely of Voting Stock, 100% of which is owned
directly or indirectly by ADT Limited, and Non-Voting Exchangeable Shares,
Series A, or any successor corporation of ADT Finance Inc. incorporated under
the laws of Canada, provided that the Capital Stock of such successor shall
consist entirely of Voting Stock, 100% of which is owned directly or
indirectly by ADT Limited, and Finance Canada Preferred Stock.
SECTION 102. Compliance Certificates and Opinions.
Upon any application or request by the Company or ADT Limited, on its
own behalf or on behalf of any Guarantor, to the Trustee to take any action
under any provision of this Indenture, the Company or ADT Limited, as the case
may be, shall furnish to the Trustee an Officers' Certificate stating that all
conditions precedent, if any, provided for in this Indenture (including any
covenant compliance with which constitutes a condition precedent) relating to
the proposed action have been complied with and an Opinion of Counsel stating
that in the opinion of such counsel all such conditions precedent, if any,
have been complied with, except that in the case of any such application or
request as to which the furnishing of such documents is specifically required
by any provision of this Indenture relating to such particular application or
request, no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than pursuant to
Section 1008(a)) shall include:
(1) a statement that each Person signing such certificate or opinion
has read such covenant or condition and the definitions herein relating
thereto;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each 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, in the opinion of each such Person, such
condition or covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and
one or more other such Persons as to other matters, and any such Person may
certify or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company or any
Guarantor may be based, insofar as it relates to legal matters, upon a
certificate or opinion of, or representations by, counsel, unless such officer
knows, or in the exercise of reasonable care should know, that the certificate
or opinion or representations with respect to the matters upon which his
certificate or opinion is based are erroneous. Any such certificate or
Opinion of Counsel may be based, insofar as it relates to factual matters,
upon a certificate or opinion of, or representations by, an officer or
officers of the Company or such Guarantor stating that the information with
respect to such factual matters is in the possession of the Company or such
Guarantor, unless such counsel knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations with respect
to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. Acts of Holders.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agents duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Company or
any Guarantor. Such instrument or instruments (and the action embodied
therein and evidenced thereby) are herein sometimes referred to as the "Act"
of the Holders signing such instrument or instruments. Proof of execution of
any such instrument or of a writing appointing any such agent shall be
sufficient for any purpose of this Indenture and conclusive in favor of the
Trustee, the Company and each Guarantor, if made in the manner provided in
this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized
by law to take acknowledgments of deeds, certifying that the individual
signing such instrument or writing acknowledged to him the execution thereof.
Where such execution is by a signer acting in a capacity other than his
individual capacity, such certificate or affidavit shall also constitute
sufficient proof of authority. The fact and date of the execution of any such
instrument or writing, or the authority of the Person executing the same, may
also be proved in any other manner which the Trustee deems sufficient.
(c) The principal amount and serial numbers of Securities held by any
Person, and the date of holding the same, shall be proved by the Security
Register.
(d) If the Company shall solicit from the Holders of Securities any
request, demand, authorization, direction, notice, consent, waiver or other
Act, the Company may, at its option, by or pursuant to Board Resolution, fix
in advance a record date for the determination of Holders entitled to give
such request, demand, authorization, direction, notice, consent, waiver or
other Act, but the Company shall have no obligation to do so. Notwithstanding
TIA Section 316(c), such record date shall be the record date specified in or
pursuant to such Board Resolution, which shall be a date not earlier than the
date 30 days prior to the first solicitation of Holders generally in
connection therewith and not later than the date such solicitation is
completed. If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other Act may be given
before or after such record date, but only the Holders of record at the close
of business on such record date shall be deemed to be Holders for the purposes
of determining whether Holders of the requisite proportion of Outstanding
Securities have authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other Act, and for that
purpose the Outstanding Securities shall be computed as of such record date;
provided that no such authorization, agreement or consent by the Holders on
such record date shall be deemed effective unless it shall become effective
pursuant to the provisions of this Indenture not later than 11 months after
the record date.
(e) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future
Holder of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee, the
Company or any Guarantor in reliance thereon, whether or not notation of such
action is made upon such Security.
SECTION 105. Notices, etc., to Trustee, Company, Guarantors and Agent.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company or any Guarantor shall
be sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Trustee at its Corporate Trust Office,
Attention: Corporate Trust Administration,
(2) the Company or any Guarantor by the Trustee or by any Holder shall
be sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid, to the Company or such Guarantor addressed to the Company or
such Guarantor at the address of the Company's principal office
specified in the first paragraph of this Indenture, or at any other
address previously furnished in writing to the Trustee by the Company or
such Guarantor, or
(3) the Agent by the Company, any Guarantor, the Trustee or any Holder
shall be sufficient for any purpose hereunder if made, given, furnished
or delivered, in writing to or with the Agent addressed to it ▇/▇ ▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ Agency, Suite 2700, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇.▇., ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ADT Operations Account Officer
or at any other address previously furnished in writing to the Company
and the Trustee by the Agent.
SECTION 106. Notice to Holders; Waiver.
Where this Indenture provides for notice of any event to Holders by the
Company, any Guarantor or the Trustee, such notice shall be sufficiently given
(unless otherwise herein expressly provided) if in writing and mailed,
first-class postage prepaid, to each Holder affected by such event, at his
address as it appears in the Security Register, not later than the latest date,
and not earlier than the earliest date, prescribed for the giving of such
notice. In any case where notice to Holders is given by mail, neither the
failure to mail such notice, nor any defect in any notice so mailed, to any
particular Holder shall affect the sufficiency of such notice with respect to
other Holders. Any notice mailed to a Holder in the manner herein prescribed
shall be conclusively deemed to have been received by such Holder, whether or
not such Holder actually receives such notice. Where this Indenture provides
for notice in any manner, such notice may be waived in writing by the Person
entitled to receive such notice, either before or after the event, and such
waiver shall be the equivalent of such notice. Waivers of notice by Holders
shall be filed with the Trustee, but such filing shall not be a condition
precedent to the validity of any action taken in reliance upon such waiver.
In case by reason of the suspension of or irregularities in regular
mail service or by reason of any other cause, it shall be impracticable to
mail notice of any event to Holders when such notice is required to be given
pursuant to any provision of this Indenture, then any manner of giving such
notice as shall be satisfactory to the Trustee shall be deemed to be a
sufficient giving of such notice for every purpose hereunder.
SECTION 107. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
SECTION 108. Successors and Assigns.
All covenants and agreements in this Indenture by the Company and the
Guarantors shall bind their respective successors and assigns, whether so
expressed or not.
SECTION 109. Separability Clause.
In case any provision in this Indenture or in the Securities or the
Guarantees 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 110. Benefits of Indenture.
Nothing in this Indenture, the Securities or the Guarantees, express or
implied, shall give to any Person, other than the parties hereto, any Paying
Agent, any Security Registrar and their successors hereunder and the Holders,
any benefit or any legal or equitable right, remedy or claim under this
Indenture.
SECTION 111. Governing Law.
This Indenture, the Securities and the Guarantees shall be governed by
and construed in accordance with the law of the State of New York. This
Indenture is subject to the provisions of the Trust Indenture Act that are
required to be part of this Indenture and shall, to the extent applicable, be
governed by such provisions.
SECTION 112. Legal Holidays.
In any case where any Interest Payment Date, or Stated Maturity or
Maturity of any Security shall not be a Business Day, then (notwithstanding
any other provision of this Indenture, the Securities or the Guarantees)
payment of interest or principal (and premium, if any) need not be made on
such date, but may be made on the next succeeding Business Day with the same
force and effect as if made on the Interest Payment Date, or at the Stated
Maturity or Maturity; provided that no interest shall accrue for the period
from and after such Interest Payment Date, Stated Maturity or Maturity, as the
case may be.
SECTION 113. No Recourse Against Others.
A director, officer, employee or stockholder, as such, of the Company
or any Guarantor shall not have any liability for any obligations of the
Company or such Guarantor, as the case may be, under the Securities, this
Indenture or the Guarantees or for any claim based on, in respect of or by
reason of such obligations or their creation. Each Holder by accepting any of
the Securities waives and releases all such liability.
SECTION 114. Submission to Jurisdiction.
The Company and each Guarantor irrevocably agree that any suit, action
or proceeding against the Company or any Guarantor arising out of or based
upon this Indenture, the Securities, the Guarantees or the public offering of
the Securities may be instituted in any state or federal court in the Borough
of Manhattan, The City of New York, New York, and irrevocably waive, to the
extent they may lawfully do so, any objection which they may now or hereafter
have to the laying of venue of any such suit, action or proceeding, and
irrevocably submit to the nonexclusive jurisdiction of such courts in any
suit, action or proceeding. The Company and each Guarantor hereby irrevocably
appoint ADT, Inc., 1750 ▇▇▇▇▇ ▇▇▇▇▇ Road, ▇.▇. ▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇, as their Authorized Agent (the "Authorized Agent") upon whom process
may be served in any suit, action or proceeding arising out of or based on
this Indenture, the Securities, the Guarantees or the public offering of the
Securities which may be instituted in any state or federal court in the
Borough of Manhattan, The City of New York, New York, and the Company and each
Guarantor expressly consent to the jurisdiction of any such court in respect
of any such suit, action or proceeding, and waive any other requirements of
or objections to personal jurisdiction with respect thereto. The Company and
each Guarantor represent and warrant that the Authorized Agent has agreed to
act as said agent for service of process, and the Company and each Guarantor
agree to take any and all action, including the filing of any and all
documents and instruments, that may be necessary to continue such appointment
in full force and effect as aforesaid. Service of process upon the Authorized
Agent and written notice of such service to the Company or any Guarantor shall
be deemed, in every respect, effective service of process upon the Company or
such Guarantor. The foregoing does not limit any right of the Trustee or any
Holder of a Security to institute any suit, action or proceeding in any other
court of competent jurisdiction.
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally.
The Securities, the Guarantees and the Trustee's certificate of
authentication shall be in substantially the forms set forth in this Article,
with such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture, and may have such
letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any
securities exchange or as may, consistently herewith, be determined by the
officers executing such Securities or Guarantees, as evidenced by their
execution of the Securities or Guarantees. Any portion of the text of any
Security or Guarantee may be set forth on the reverse thereof, with an
appropriate reference thereto on the face of the Security or Guarantee.
The definitive Securities and Guarantees shall be printed, lithographed
or engraved on steel-engraved borders or may be produced in any other manner,
all as determined by the officers of the Company executing such Securities, as
evidenced by their execution of such Securities.
SECTION 202. Form of Face of Security.
ADT OPERATIONS, INC.
8-1/4% Senior Note due 2000
No.____________________ $____________________
ADT Operations, Inc., a Delaware corporation (herein called the
"Company", which term includes any successor Person under the Indenture
hereinafter referred to), for value received, hereby promises to pay to
or registered assigns, the principal sum of Dollars
on August 1, 2000 at the office or agency of the Company referred to below,
and to pay interest thereon on February 1, 1994 and semi-annually thereafter,
on February 1 and August 1 in each year, from August 4, 1993, or from the most
recent Interest Payment Date to which interest has been paid or duly provided
for, at the rate of 8-1/4% per annum, until the principal hereof is paid or
duly provided for, and (to the extent lawful) to pay on demand interest on any
overdue interest at the rate borne by the Securities from the date on which
such overdue interest becomes payable to the date payment of such interest has
been made or duly provided for. The interest so payable, and punctually paid
or duly provided for, on any Interest Payment Date will, as provided in such
Indenture, be paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest, which shall be the January 15 or July 15
(whether or not a Business Day), as the case may be, next preceding such
Interest Payment Date. Any such interest not so punctually paid or duly
provided for shall forthwith cease to be payable to the Holder on such Regular
Record Date, and such defaulted interest, and (to the extent lawful) interest
on such defaulted interest at the rate borne by the Securities, may be paid to
the Person in whose name this Security (or one or more Predecessor Securities)
is registered at the close of business on a Special Record Date for the
payment of such Defaulted Interest to be fixed by the Trustee, notice whereof
shall be given to Holders of Securities not less than 10 days prior to such
Special Record Date, or may be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the
Securities may be listed, and upon such notice as may be required by such
exchange, all as more fully provided in said Indenture. Payment of the
principal of (and premium, if any, on) and interest on this Security will be
made at the office or agency of the Company maintained for that purpose in The
City of New York, or at such other office or agency of the Company as may be
maintained for such purpose, in such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public and
private debts; provided, however, that payment of interest may be made at the
option of the Company (i) by check mailed to the address of the Person
entitled thereto as such address shall appear on the Security Register or (ii)
by transfer to an account maintained by the payee located in the United States.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Security is entitled to the benefits of the Guarantees issued by
each Guarantor of the punctual payment when due of the Guaranteed Obligations
made in favor of the Trustee for the benefit of the Holder. Reference is
hereby made to Article Twelve of the Indenture for a statement of the
respective rights, limitations of rights, duties and obligations under the
Guarantees of the Guarantors, the Trustee and the Holders.
Unless the certificate of authentication hereon has been duly executed
by the Trustee referred to on the reverse hereof by manual signature, this
Security shall not be entitled to any benefit under the Indenture, or be valid
or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated: ADT OPERATIONS, INC.
[SEAL] By____________________________
Attest:_________________________
Authorized Signature
SECTION 203. Form of Reverse of Security.
This Security is one of a duly authorized issue of securities of the
Company designated as its 8-1/4% Senior Notes due 2000 (herein called the
"Securities"), limited (except as otherwise provided in the Indenture referred
to below) in aggregate principal amount to $250,000,000, which may be issued
under an indenture (herein called the "Indenture") dated as of August 4, 1993
between the Company, as issuer, ADT Limited, ADT General Holdings, Inc., Inc.,
ADT Security Services, Inc., ADT Security Systems, West, Inc., ADT Automotive
Holdings, Inc., ADT Automotive, Inc., AA Property Holdings Inc., ADT
Investments, Inc., AAAA Dealers Services Inc., ADT Business Holdings, Inc.,
ADT Property Holdings, Inc., ADT Security Systems Manufacturing, Inc.,
Mid-Atlantic Security, Inc., ADT Automotive Services Inc., Auction Transport
Inc., British Car Auctions Inc., CCTC International, Inc., ADT Specialty
Auctions, Inc., Flying Lion Inc. and Tri-City Auto Auction, Inc., as
guarantors, and The Chase Manhattan Bank, as trustee (herein called the
"Trustee", which term includes any successor trustee under the Indenture), as
amended and restated as of _____, 1997 (herein called the "Indenture") to
which Indenture and all indentures supplemental thereto reference is hereby
made for a statement of the respective rights, limitations of rights, duties,
obligations and immunities thereunder of the Company, the Guarantors, the
Trustee and the Holders of the Securities, and of the terms upon which the
Securities are, and are to be, authenticated and delivered.
Upon the occurrence of a Change in Control, the Holder of this Security
may require the Company, subject to certain limitations provided in the
Indenture, to repurchase this Security at a purchase price in cash in an
amount equal to 101% of the principal amount thereof plus accrued and unpaid
interest.
If an Event of Default shall occur and be continuing, the principal of
all the Securities may be declared due and payable in the manner and with the
effect provided in the Indenture.
The Indenture contains provisions for defeasance at any time of (a) the
entire indebtedness of the Company on this Security and (b) certain
restrictive covenants and the related Defaults and Events of Default, upon
compliance by the Company with certain conditions set forth therein, which
provisions apply to this Security.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the Guarantors and the rights of the Holders under the Indenture
at any time by the Company, the Guarantors and the Trustee with the consent of
the Holders of a majority in aggregate principal amount of the Securities at
the time Outstanding. The Indenture also contains provisions permitting the
Holders of specified percentages in aggregate principal amount of the
Securities at the time Outstanding, on behalf of the Holders of all the
Securities, to waive compliance by the Company and the Guarantors with certain
provisions of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by or on behalf of the Holder
of this Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security issued upon the
registration of transfer hereof or in exchange herefor or in lieu hereof
whether or not notation of such consent or waiver is made upon this Security.
No reference herein to the Indenture and no provision of this Security,
the Guarantee endorsed hereon or the Indenture shall alter or impair the
obligation of the Company or any Guarantor (in the event any Guarantor is
obligated to make payments in respect of the Securities), which is absolute
and unconditional, to pay the principal of (and premium, if any, on) and
interest on this Security at the times, place, and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Security is registrable on the Security
Register of the Company, upon surrender of this Security for registration of
transfer at the office or agency of the Company maintained for such purpose in
The City of New York, duly endorsed by, or accompanied by a written instrument
of transfer in form satisfactory to the Company and the Security Registrar
duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Securities, of authorized denominations
and for the same aggregate principal amount, will be issued to the designated
transferee or transferees.
The Securities are issuable only in registered form without coupons in
denominations of $1,000 and any integral multiple thereof. As provided in the
Indenture and subject to certain limitations therein set forth, the Securities
are exchangeable for a like aggregate principal amount of Securities of a
different authorized denomination, as requested by the Holder surrendering the
same.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith.
Prior to the time of due presentment of this Security for registration
of transfer, the Company, the Guarantors, the Trustee and any agent of the
Company, the Guarantors or the Trustee may treat the Person in whose name this
Security is registered as the owner hereof for all purposes, whether or not
this Security be overdue, and neither the Company, the Guarantors, the Trustee
nor any agent shall be affected by notice to the contrary.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
SECTION 204. Form of Trustee's Certificate of Authentication.
The Trustee's certificate of authentication shall be in substantially
the following form:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
This is one of the Securities referred to in the within-mentioned
Indenture.
Dated: THE CHASE MANHATTAN BANK,
as Trustee
By_______________________________
Authorized Officer
SECTION 205. Form of Guarantee.
The form of Guarantee shall be set forth on the Securities
substantially as follows:
GUARANTEE
For value received, each of the undersigned hereby irrevocably and
unconditionally guarantees, jointly and severally, on a senior basis to the
Holder of this Security and to the Trustee, on behalf of the Holder, (i) the
due and punctual payment of the principal of and interest on this Security,
when and as the same shall become due and payable, whether at Stated Maturity
or purchase upon Change in Control, and whether by declaration of acceleration,
Change in Control, call for purchase or otherwise, the due and punctual
payment of interest on the overdue principal of and interest, if any, on this
Security, to the extent lawful, and the due and punctual performance of all
other obligations of the Company to the Holder of this Security or the Trustee
all in accordance with the terms of this Security and the Indenture and (ii)
in the case of any extension of time of payment or renewal of this Security 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, at Stated Maturity or purchase upon Change in Control, and whether by
declaration of acceleration, Change in Control, call for purchase or otherwise
(the obligations in clauses (i) and (ii) hereof being the "Guaranteed
Obligations"). This Guarantee will not be valid or obligatory for any purpose
until the Trustee duly executes the certificate of authentication on the
Security upon which this Guarantee is endorsed.
Dated:
[SEAL] ADT LIMITED,
a Bermuda company
Attest:__________________________ By_______________________________
Authorized Signature
[SEAL] ADT GENERAL HOLDINGS, INC.,
a Delaware corporation
Attest:__________________________ By_______________________________
Authorized Signature
[SEAL] ADT SECURITY SERVICES, INC.,
a Delaware corporation
Attest:__________________________ By_______________________________
Authorized Signature
[SEAL] ADT SECURITY SYSTEMS, WEST, INC.,
a Delaware corporation
Attest:__________________________ By_______________________________
Authorized Signature
[SEAL] ADT AUTOMOTIVE HOLDINGS, INC.,
a Delaware corporation
Attest:__________________________ By_______________________________
Authorized Signature
[SEAL] ADT AUTOMOTIVE, INC.,
a Delaware corporation
Attest:__________________________ By_______________________________
Authorized Signature
[SEAL] AA PROPERTY HOLDINGS, INC.,
a Delaware corporation
Attest:__________________________ By_______________________________
Authorized Signature
[SEAL] ADT INVESTMENTS, INC.,
a Delaware corporation
Attest:__________________________ By_______________________________
Authorized Signature
[SEAL] AAAA DEALERS SERVICES INC.,
a Delaware corporation
Attest:__________________________ By_______________________________
Authorized Signature
[SEAL] ADT BUSINESS HOLDINGS, INC.,
a Delaware corporation
Attest:__________________________ By_______________________________
Authorized Signature
[SEAL] ADT PROPERTY HOLDINGS, INC.,
a Delaware corporation
Attest:__________________________ By_______________________________
Authorized Signature
[SEAL] ADT SECURITY SYSTEMS,
MANUFACTURING, INC.,
a Delaware corporation
Attest:__________________________ By_______________________________
Authorized Signature
[SEAL] MID-ATLANTIC SECURITY, INC.,
a Delaware corporation
Attest:__________________________ By_______________________________
Authorized Signature
[SEAL] ADT AUTOMOTIVE SERVICES INC.,
a Delaware corporation
Attest:__________________________ By_______________________________
Authorized Signature
[SEAL] AUCTION TRANSPORT INC.,
a Missouri corporation
Attest:__________________________ By_______________________________
Authorized Signature
[SEAL] BRITISH CAR AUCTIONS INC.,
a Delaware corporation
Attest:__________________________ By_______________________________
Authorized Signature
[SEAL] CCTC INTERNATIONAL, INC.,
a Delaware corporation
Attest:__________________________ By_______________________________
Authorized Signature
[SEAL] ADT SPECIALTY AUCTIONS, INC.,
a Michigan corporation
Attest:__________________________ By_______________________________
Authorized Signature
[SEAL] FLYING LION INC.,
a Delaware corporation
Attest:__________________________ By_______________________________
Authorized Signature
[SEAL] TRI-CITY AUTO AUCTION, INC.,
a Washington corporation
Attest:__________________________ By_______________________________
Authorized Signature
[SEAL] [LIST ADDITIONAL GUARANTORS AND
JURISDICTIONS OF INCORPORATION]
Attest:__________________________ By_______________________________
Authorized Signature
ARTICLE THREE
THE SECURITIES
SECTION 301. Title and Terms.
The aggregate principal amount of Securities which may be authenticated
and delivered under this Indenture is limited to $250,000,000, except for
Securities authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, other Securities pursuant to Section 304, 305,
306, 906 or 1010.
The Securities shall be known and designated as the "8-1/4% Senior
Notes due 2000" of the Company. Their Stated Maturity shall be August 1,
2000, and they shall bear interest at the rate of 8-1/4% per annum from August
4, 1993, or from the most recent Interest Payment Date to which interest has
been paid or duly provided for, payable on February 1, 1994 and semi-annually
thereafter on February 1 and August 1 in each year and at said Stated
Maturity, until the principal thereof is paid or duly provided for.
The principal of (and premium, if any, on) and interest on the
Securities shall be payable at the office or agency of the Company maintained
for such purpose in The City of New York, or at such other office or agency of
the Company as may be maintained for such purpose; provided, however, that, at
the option of the Company, interest may be paid by check mailed to addresses
of the Persons entitled thereto as such addresses shall appear on the Security
Register.
SECTION 302. Denominations.
The Securities shall be issuable only in registered form without
coupons and only in denominations of $1,000 and any integral multiple thereof.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its
Chairman, its President or a Vice President, under its corporate seal
reproduced thereon and attested by its Secretary or an Assistant Secretary.
The signature of any of these officers on the Securities may be manual or
facsimile signatures of the present or any future such authorized officer and
may be imprinted or otherwise reproduced on the Securities.
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the
Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Securities
or did not hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities executed by the Company to
the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities, and the Trustee in accordance
with such Company Order shall authenticate and deliver such Securities.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
duly executed by the Trustee by manual signature of an authorized officer, and
such certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered
hereunder and is entitled to the benefits of this Indenture.
In case the Company or any Guarantor, pursuant to Article Eight, shall
be consolidated, amalgamated or merged with or into any other Person or shall
be continued or redomesticated under the laws of a jurisdiction other than
Bermuda or shall convey, transfer, lease or otherwise dispose of all or
substantially all of its properties and assets to any Person, and the
successor Person resulting from such consolidation or amalgamation, or
surviving such merger, continuance or redomestication, or into which the
Company or such Guarantor shall have been merged, or the Person which shall
have received a conveyance, transfer, lease or other disposition as aforesaid,
shall have executed an indenture supplemental hereto with the Trustee pursuant
to Article Eight, any of the Securities authenticated or delivered prior to
such consolidation, amalgamation, merger, continuance, redomestication,
conveyance, transfer, lease or other disposition may, from time to time, at
the request of the successor Person, be exchanged for other Securities
executed in the name of the successor Person with such changes in phraseology
and form as may be appropriate, but otherwise in substance of like tenor as
the Securities surrendered for such exchange and of like principal amount; and
the Trustee, upon Company Request of the successor Person, shall authenticate
and deliver Securities as specified in such request for the purpose of such
exchange. If Securities shall at any time be authenticated and delivered in
any new name of a successor Person pursuant to this Section in exchange or
substitution for or upon registration of transfer of any Securities, such
successor Person, at the option of the Holders but without expense to them,
shall provide for the exchange of all Securities at the time Outstanding for
Securities authenticated and delivered in such new name.
SECTION 304. Temporary Securities.
Pending the preparation of definitive Securities, the Company may
execute, the Guarantors may endorse Guarantees on, and upon Company Order the
Trustee shall authenticate and deliver temporary Securities which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any
authorized denomination, substantially of the tenor of the definitive
Securities in lieu of which they are issued and with such appropriate
insertions, omissions, substitutions and other variations as the officers
executing such Securities may determine, as conclusively evidenced by their
execution of such Securities.
If temporary Securities are issued, the Company will cause definitive
Securities to be prepared without unreasonable delay. After the preparation
of definitive Securities, the temporary Securities shall be exchangeable for
definitive Securities upon surrender of the temporary Securities at the office
or agency of the Company designated for such purpose pursuant to Section 1002,
without charge to the Holder. Upon surrender for cancellation of any one or
more temporary Securities, the Company shall execute, the Guarantors shall
endorse Guarantees on, and upon Company Order the Trustee shall authenticate
and deliver in exchange therefor a like principal amount of definitive
Securities of authorized denominations. Until so exchanged, the temporary
Securities shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities.
SECTION 305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office of the
Trustee a register (the register maintained in such office and in any other
office or agency designated pursuant to Section 1002 being herein sometimes
referred to as the "Security Register") in which, subject to such reasonable
regulations as it may prescribe, the Company shall provide for the
registration of Securities and of transfers of Securities. The Security
Register shall be in written form or any other form capable of being converted
into written form within a reasonable time. At all reasonable times, the
Security Register shall be open to inspection by the Trustee. The Trustee is
hereby initially appointed as security registrar (the "Security Registrar")
for the purpose of registering Securities and transfers of Securities as
herein provided.
Upon surrender for registration of transfer of any Security at the
office or agency of the Company designated pursuant to Section 1002, the
Company shall execute, the Guarantors shall endorse Guarantees on, and the
Trustee shall authenticate and deliver, in the name of the designated
transferee or transferees, one or more new Securities of any authorized
denomination or denominations of a like aggregate principal amount.
At the option of the Holder, Securities may be exchanged for other
Securities of any authorized denomination and of a like aggregate principal
amount, upon surrender of the Securities to be exchanged at such office or
agency. Whenever any Securities are so surrendered for exchange, the Company
shall execute, the Guarantors shall endorse Guarantees on, and the Trustee
shall authenticate and deliver the Securities which the Holder making the
exchange is entitled to receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company and the Guarantors,
evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Securities surrendered upon such registration of transfer or
exchange.
Every Security presented or surrendered for registration of transfer or
for exchange shall (if so required by the Company or the Security Registrar)
be duly endorsed, or be accompanied by a written instrument of transfer, in
form satisfactory to the Company and the Security Registrar, duly executed by
the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed
in connection with any registration of transfer or exchange of Securities,
other than exchanges pursuant to Section 304, 906 or 1010 not involving any
transfer.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.
If (i) any mutilated Security is surrendered to the Trustee, or (ii)
the Company and the Trustee receive evidence to their satisfaction of the
destruction, loss or theft of any Security, and there is delivered to the
Company and the Trustee such security or indemnity as may be required by them
to save each of them harmless, then, in the absence of notice to the Company or
the Trustee that such Security has been acquired by a bona fide purchaser, the
Company shall execute, the Guarantors shall endorse a Guarantee on and upon
Company Order the Trustee shall authenticate and deliver, in exchange for any
such mutilated Security or in lieu of any such destroyed, lost or stolen
Security, a new Security of like tenor and principal amount, bearing a number
not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security issued pursuant to this Section in lieu of any
destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Company and the Guarantors, whether or not the
destroyed, lost or stolen Security shall be at any time enforceable by anyone,
and shall be entitled to all benefits of this Indenture equally and
proportionately with any and all other Securities duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 307. Payment of Interest; Interest Rights Preserved.
Interest on any Security which is payable, and is punctually paid or
duly provided for, on any Interest Payment Date shall be paid to the Person in
whose name such Security (or one or more Predecessor Securities) is registered
at the close of business on the Regular Record Date for such interest at the
office or agency of the Company maintained for such purpose pursuant to
Section 1002; provided, however, that each installment of interest may at the
Company's option be paid by (i) mailing a check for such interest, payable to
or upon the written order of the Person entitled thereto pursuant to Section
308, to the address of such Person as it appears in the Security Register or
(ii) transfer to an account maintained by the payee located in the United
States.
Any interest on any Security which is payable, but is not punctually
paid or duly provided for, on any Interest Payment Date shall forthwith cease
to be payable to the Holder on the Regular Record Date by virtue of having
been such Holder, and such defaulted interest and (to the extent lawful)
interest on such defaulted interest at the rate borne by the Securities (such
defaulted interest and interest thereon herein collectively called "Defaulted
Interest") may be paid by the Company, at its election in each case, as
provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest
to the Persons in whose names the Securities (or their respective
Predecessor Securities) are registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest, which
shall be fixed in the following manner. The Company shall notify the
Trustee in writing of the amount of Defaulted Interest proposed to be
paid on each Security and the date of the proposed payment, and at the
same time the Company shall deposit with the Trustee an amount of money
equal to the aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to the
Trustee for such deposit prior to the date of the proposed payment, such
money when deposited to be held in trust for the benefit of the Persons
entitled to such Defaulted Interest as in this clause provided.
Thereupon the Trustee shall fix a Special Record Date for the payment of
such Defaulted Interest which shall be not more than 15 days and not
less than 10 days prior to the date of the proposed payment and not less
than 10 days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the Company of such
Special Record Date, and in the name and at the expense of the Company,
shall cause notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor to be given in the manner provided
for in Section 106, not less than 10 days prior to such Special Record
Date. Notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor having been so given, such Defaulted
Interest shall be paid to the Persons in whose names the Securities (or
their respective Predecessor Securities) are registered at the close of
business on such Special Record Date and shall no longer be payable
pursuant to the following clause (2).
(2) The Company may make payment of any Defaulted Interest in
any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities may be listed, and upon
such notice as may be required by such exchange, if, after notice
given by the Company to the Trustee of the proposed payment pursuant
to this clause, such manner of payment shall be deemed practicable by
the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Security.
SECTION 308. Persons Deemed Owners.
Prior to the due presentment of a Security for registration of
transfer, the Company, the Guarantors, the Trustee and any agent of the
Company, any Guarantor or the Trustee may treat the Person in whose name such
Security is registered as the owner of such Security for the purpose of
receiving payment of principal of (and premium, if any, on) and (subject to
Sections 305 and 307) interest on such Security and for all other purposes
whatsoever, whether or not such Security be overdue, and none of the Company,
any Guarantor, the Trustee or any agent of the Company, any Guarantor or the
Trustee shall be affected by notice to the contrary.
SECTION 309. Cancellation.
All Securities surrendered for payment, registration of transfer or
exchange shall, if surrendered to any Person other than the Trustee, be
delivered to the Trustee and shall be promptly cancelled by it. The Company
may at any time deliver to the Trustee for cancellation any Securities
previously authenticated and delivered hereunder which the Company may have
acquired in any manner whatsoever, and may deliver to the Trustee (or to any
other Person for delivery to the Trustee) for cancellation any Securities
previously authenticated hereunder which the Company has not issued and sold,
and all Securities so delivered shall be promptly cancelled by the Trustee.
If the Company shall so acquire any of the Securities, however, such
acquisition shall not operate as satisfaction of the indebtedness represented
by such Securities unless and until the same are surrendered to the Trustee
for cancellation. No Securities shall be authenticated in lieu of or in
exchange for any Securities cancelled as provided in this Section, except as
expressly permitted by this Indenture. All cancelled Securities held by the
Trustee shall be disposed of by the Trustee in accordance with its customary
procedures and certification of their disposal delivered to the Company unless
by Company Order the Company shall direct that cancelled Securities be
returned to it.
SECTION 310. Computation of Interest.
Interest on the Securities shall be computed on the basis of a 360-day
year of twelve 30-day months.
SECTION 311. Designation as Senior Indebtedness.
The Company hereby confirms the designation of the Securities as "Senior
Indebtedness" for the purposes of the Senior Subordinated Note Indenture.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further effect
(except as to surviving rights of registration of transfer or exchange of
Securities herein expressly provided for) and the Trustee, at the expense of
the Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture when
(1) either
(a) all Securities theretofore authenticated and delivered
(other than (i) Securities which have been destroyed, lost or
stolen and which have been replaced or paid as provided in
Section 306 and (ii) Securities for whose payment money has
theretofore been deposited in trust with the Trustee or any
Paying Agent or segregated and held in trust by the Company and
thereafter repaid to the Company or discharged from such trust,
as provided in Section 1003) have been delivered to the Trustee
for cancellation; or
(b) all such Securities not theretofore delivered to the
Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated
Maturity within one year,
and the Company in the case of (i) or (ii) above, has irrevocably
deposited or caused to be deposited with the Trustee as trust
funds in trust for the purpose an amount sufficient to pay and
discharge the entire indebtedness on such Securities not
theretofore delivered to the Trustee for cancellation, for
principal (and premium, if any) and interest to the date of such
deposit (in the case of Securities which have become due and
payable) or to the Stated Maturity, as the case may be;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that (i) all
conditions precedent herein provided for relating to the satisfaction
and discharge of this Indenture have been complied with and (ii) such
satisfaction and discharge will not result in a breach or violation
of, or constitute a default hereunder or under any other material
agreement or instrument to which the Company or any Guarantor is a
party or by which the Company or any Guarantor is bound.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company and the Guarantors to the Trustee under Section 606
and, if money shall have been deposited with the Trustee pursuant to subclause
(b) of clause (1) of this Section, the obligations of the Trustee under
Section 402 and the last paragraph of Section 1003 shall survive.
SECTION 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003, all
money deposited with the Trustee pursuant to Section 401 shall be held in
trust and applied by it, in accordance with the provisions of the Securities
and this Indenture, to the payment, either directly or through any Paying
Agent (including the Company acting as its own Paying Agent), as the Trustee
may determine, to the Persons entitled thereto, of the principal (and premium,
if any) and interest for whose payment such money has been deposited with the
Trustee; but such money need not be segregated from other funds except to the
extent required by law.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.
"Event of Default", wherever used herein, means any one of the
following events (whatever the reason for such Event of Default and whether it
shall be voluntary or involuntary or be effected by operation of law or
pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):
(1) default in the payment of any interest on any Security when it
becomes due and payable, and continuance of such default for a period of
30 days; or
(2) default in the payment of the principal of (or premium, if
any, on) any Security at its Maturity; or
(3) (i) default in the performance, or breach, of any covenant or
warranty of the Company, ADT Limited or any of the other Restricted
Subsidiaries in this Indenture (other than a default in the performance,
or breach, of a covenant or warranty which is specifically dealt with
elsewhere in paragraphs (1) or (2) of this Section 501 or in clauses
(ii) and (iii) of this paragraph (3)), and continuance of such default
or breach for a period of 60 days after there has been given, by
registered or certified mail, to the Company by the Trustee or to the
Company and the Trustee by the Holders of at least 25% in principal
amount of the Outstanding Securities a written notice specifying such
default or breach; (ii) default in the performance or breach of the
provisions of Article Eight hereof; or (iii) the Company shall have
failed to make or consummate a Change in Control Offer in accordance
with the provisions of Section 1010 hereof; or
(4) (i) there shall have occurred one or more defaults by the
Company, ADT Limited or any of the other Restricted Subsidiaries in
the payment of the principal of (or premium, if any, on)
Indebtedness aggregating $15,000,000 or more when the same becomes
due and payable at its final maturity or (ii) Indebtedness of the
Company, ADT Limited or any of the other Restricted Subsidiaries
aggregating $15,000,000 or more shall have been accelerated or
otherwise declared due and payable, or required to be prepaid or
repurchased (other than by regularly scheduled required prepayment or
prepayments in respect of asset sales, excess cash flow or new
financings), including amounts declared due and payable by virtue of
any demand for cash collateralization, aggregating $15,000,000 or
more, of any letter of credit prior to its final maturity; or
(5) any Person entitled to take the actions described in this
Section 501(5), after the occurrence of any event of default under
any agreement or instrument evidencing any Indebtedness in excess of
$15,000,000 in the aggregate (which, in the case of interest rate
contracts or exchange rate contracts, shall be deemed to be the net
Indebtedness outstanding under such contract on the date or during
any period during which any action described in this Section 501(5)
is taken) of the Company, ADT Limited or any of the other Restricted
Subsidiaries, shall notify the Trustee of the intended sale or
disposition of any assets of the Company, ADT Limited or any of the
other Restricted Subsidiaries that have been pledged to or for the
benefit of such Person to secure such Indebtedness or shall commence
proceedings, or take any action (including by way of set-off) to
retain in satisfaction of any Indebtedness, or to collect on, seize,
dispose of or apply, any such assets of the Company, ADT Limited or
any of the other Restricted Subsidiaries (including funds on deposit
or held pursuant to lock-box and other similar arrangements),
pursuant to the terms of any agreement or instrument evidencing any
such Indebtedness of the Company, ADT Limited or any such other
Restricted Subsidiary or in accordance with applicable law; or
(6) final judgments or orders rendered against the Company, ADT
Limited or any of the other Restricted Subsidiaries that require the
payment in money, either individually or in an aggregate amount, of
more than $15,000,000 (net of amounts covered by insurance) and
either (i) an enforcement proceeding shall have been commenced by any
creditor upon such judgment or order or (ii) there shall have been a
period of 30 consecutive days during which a stay of enforcement of
such judgment or order, by reason of pending appeal or otherwise, was
not in effect; or
(7) the entry of a decree or order by a court having
jurisdiction in the premises adjudging the Company, ADT Limited or
any other Material Restricted Subsidiary a bankrupt or insolvent, or
approving as properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of the
Company, ADT Limited or any other Material Restricted Subsidiary
under the Federal Bankruptcy Code or any other applicable federal or
state law, or appointing a receiver, liquidator, assignee, trustee,
sequestrator (or other similar official) of the Company, ADT Limited
or any other Material Restricted Subsidiary or of any substantial
part of its property, or ordering the winding up or liquidation of
its affairs, and the continuance of any such decree or order unstayed
and in effect for a period of 90 consecutive days; or
(8) the institution by the Company, ADT Limited or any other
Material Restricted Subsidiary of proceedings to be adjudicated a
bankrupt or insolvent, or the consent by it to the institution of
bankruptcy or insolvency proceedings against it, or the filing by it
of a petition or answer or consent seeking reorganization or relief
under the Federal Bankruptcy Code or any other applicable federal or
state law, or the consent by it to the filing of any such petition or
to the appointment of a receiver, liquidator, assignee, trustee,
sequestrator (or other similar official) of the Company, ADT Limited
or any other Material Restricted Subsidiary or of any substantial
part of its property, or the making by it of an assignment for the
benefit of creditors, or the admission by it in writing of its
inability to pay its debts generally as they become due; or
(9) any Guarantee shall for any reason cease to be, or be
asserted in writing by any Guarantor thereof or the Company not to
be, in full force and effect, and enforceable in accordance with its
terms (other than by reason of the termination of this Indenture or
the release of any such Guarantee in accordance with this Indenture);
provided, however, that if the Company or any Guarantor asserts in
writing that any Guarantee is not in full force and effect and
enforceable in accordance with its terms, such assertion shall not
constitute an Event of Default for purposes of this paragraph (10) if
(x) such written assertion is accompanied by an Opinion of Counsel to
the effect that, as a matter of law, the defect or defects rendering
such Guarantee unenforceable can be remedied within 10 days of the
date of such assertion, (y) the Company or such Guarantor delivers an
Officers' Certificate to the effect that the Company or such
Guarantor represents that such defect or defects shall be so remedied
within such 10-day period, and (z) such defect or defects are in fact
so remedied within such 10-day period.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default (other than an Event of Default specified in
Section 501(7) or 501(8)) occurs and is continuing, then and in every such
case the Trustee or the Holders of not less than 25% in principal amount of
the Securities Outstanding may declare all unpaid principal of (and premium,
if any, on) and any accrued interest on all the Securities to be due and
payable immediately, by a notice in writing to the Company and, if the New
Bank Credit Agreement is in effect, to the Agent (and to the Trustee if given
by Holders), and upon any such declaration such principal amount shall become
due and payable immediately. If an Event of Default specified in Section
501(7) or 501(8) occurs and is continuing, then the principal amount of all
the Securities shall 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 has been made but
before a judgment or decree for payment of the money due has been obtained by
the Trustee as hereinafter in this Article provided, the Holders of at least a
majority in aggregate principal amount of the Securities Outstanding, by
written notice to the Company and the Trustee, may rescind and annul such
declaration and its consequences if:
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay,
(A) all overdue interest on all Outstanding Securities,
(B) the principal of (and premium, if any, on) any Outstanding
Securities which have become due otherwise than by such
declaration of acceleration, and interest on such unpaid principal
at the rate borne by the Securities,
(C) to the extent that payment of such interest is lawful,
interest on overdue interest at the rate borne by the
Securities, and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel; and
(2) all Events of Default, other than the non-payment of amounts of
principal of the Securities that have become due solely by such
declaration of acceleration, have been cured or waived as provided in
Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon. Upon a determination by the Company that the New Bank
Credit Agreement is no longer in effect, the Company shall promptly give to
the Trustee written notice thereof, which notice shall be countersigned by
the Agent. Unless and until the Trustee shall have received such written
notice with respect to the New Bank Credit Agreement, the Trustee, subject
to the TIA Sections 315(a) through 315(d), shall be entitled in all
respects to assume that the New Bank Credit Agreement is in effect (unless
a Responsible Officer of the Trustee shall have actual knowledge to the
contrary).
SECTION 503. Collection of Indebtedness and Suits for Enforcement by
Trustee.
The Company and each Guarantor covenant that if
(a) default is made in the payment of any installment of
interest on any Security when such interest becomes due and payable
and such default continues for a period of 30 days, or
(b) default is made in the payment of the principal of (or
premium, if any, on) any Security at the Maturity thereof,
the Company and such Guarantor will, upon demand of the Trustee, pay to the
Trustee for the benefit of the Holders of such Securities, the whole amount
then due and payable on such Securities for principal (and premium, if any)
and interest, and interest on any overdue principal (and premium, if any) and,
to the extent that payment of such interest shall be legally enforceable, upon
any overdue installment of interest, at the rate borne by the Securities, and,
in addition thereto, 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.
If the Company or any Guarantor fails to pay such amounts forthwith
upon such demand, the Trustee, in its own name as trustee of an express trust,
may institute a judicial proceeding for the collection of the sums so due and
unpaid, may prosecute such proceeding to judgment or final decree and may
enforce the same against the Company or such Guarantor and collect the moneys
adjudged or decreed to be payable in the manner provided by law out of the
property of the Company or such Guarantor, wherever situated.
If an Event of Default occurs and is continuing, the Trustee may in its
discretion proceed to protect and enforce its rights and the rights of the
Holders by such appropriate private or judicial proceedings as the Trustee
shall deem most effectual to protect and enforce any such rights, whether for
the specific enforcement of any covenant or agreement in this Indenture or in
aid of the exercise of any power granted herein, including, without
limitation, seeking recourse against any Guarantor pursuant to the terms of
its Guarantee, or to enforce any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any Guarantor or the property
of the Company or any Guarantor or their creditors, the Trustee (irrespective
of whether the principal of the Securities shall then be due and payable as
therein expressed or by declaration or otherwise and irrespective of whether
the Trustee shall have made any demand on the Company or any Guarantor for the
payment of overdue principal, premium, if any, or interest) shall be entitled
and empowered, by intervention in such proceeding or otherwise,
(i) to file and prove a claim for the whole amount of principal
(and premium, if any) and interest owing and unpaid in respect of the
Securities and to file such other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel)
and of the Holders allowed in such judicial proceeding, and
(ii) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
similar official in any such judicial proceeding is hereby authorized by each
Holder to make such payments to the Trustee and, in the event that the Trustee
shall consent to the making of such payments directly to the Holders, to pay
the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any
other amounts due the Trustee under Section 606.
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 505. Trustee May Enforce Claims Without Possession of
Securities.
All rights of action and claims under this Indenture, the Securities
and the Guarantees may be prosecuted and enforced by the Trustee without the
possession of any of the Securities or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the Trustee
shall be brought in its own name and as trustee of an express trust, and any
recovery of judgment shall, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, be for the ratable benefit of the Holders of the Securities in
respect of which such judgment has been recovered.
SECTION 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal (or premium,
if any) or interest, upon presentation of the Securities and the notation
thereon of the payment if only partially paid and upon surrender thereof if
fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 606;
SECOND: To the payment of the amounts then due and unpaid for
principal of (and premium, if any, on,) and interest on the Securities
in respect of which or for the benefit of which such money has been
collected, ratably, without preference or priority of any kind,
according to the amounts due and payable on such Securities for
principal (and premium, if any) and interest, respectively; and
THIRD: The balance, if any, to the Person or Persons entitled
thereto.
SECTION 507. Limitation on Suits.
No Holder of any Securities shall have any right to institute any
proceeding, judicial or otherwise, with respect to this Indenture, or for
the appointment of a receiver or trustee, or for any other remedy
hereunder, unless
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default in its own
name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a
majority or more in principal amount of the Outstanding Securities;
it being understood and intended that no one or more Holders shall have any
right in any manner whatever by virtue of, or by availing of, any provision of
this Indenture to affect, disturb or prejudice the rights of any other
Holders, or to obtain or to seek to obtain priority or preference over any
other Holders or to enforce any right under this Indenture, except in the
manner herein provided and for the equal and ratable benefit of all the
Holders.
SECTION 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest.
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment, as provided herein (including, if applicable, Article Eleven)
and in such Security of the principal of (and premium, if any, on) and
(subject to Section 307) interest on, such Security on the respective Stated
Maturities expressed in such Security and to institute suit for the
enforcement of any such payment, and such rights shall not be impaired without
the consent of such Holder.
SECTION 509. 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 such case, subject to any
determination in such proceeding, the Company, the Guarantors, 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.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Securities in the last paragraph of
Section 306, no right or remedy herein conferred upon or reserved to the
Trustee or to the Holders is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent
the concurrent assertion or employment of any other appropriate right or
remedy.
SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Security to
exercise any right or remedy accruing upon any Event of Default shall impair
any such right or remedy or constitute a waiver of any such Event of Default
or an acquiescence therein. Every right and remedy given by this Article or
by law to the Trustee or to the Holders may be exercised from time to time,
and as often as may be deemed expedient, by the Trustee or by the Holders, as
the case may be.
SECTION 512. Control by Holders.
The Holders of not less than a majority in principal amount of the
Outstanding Securities shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, provided that
(1) such direction shall not be in conflict with any rule of law or
with this Indenture,
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction, and
(3) the Trustee need not take any action which might involve it in
personal liability or be unjustly prejudicial to the Holders not
consenting.
SECTION 513. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Securities may on behalf of the Holders of all the Securities
waive any past default hereunder and its consequences, except a default
(1) in respect of the payment of the principal of (or premium,
if any, on) or interest on any Security, or
(2) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Security affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent
or other default or Event of Default or impair any right consequent thereon.
SECTION 514. Waiver of Stay or Extension Laws.
The Company and each Guarantor covenant (to the extent that they may
lawfully do so) that they will not at any time insist upon, or plead, or in
any manner whatsoever claim or take the benefit or advantage of, any stay or
extension law wherever enacted, now or at any time hereafter in force, which
may affect the covenants or the performance of this Indenture; and the Company
and each Guarantor (to the extent that they may lawfully do so) hereby
expressly waive all benefit or advantage of any such law and covenant that
they 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.
ARTICLE SIX
THE TRUSTEE
SECTION 601. Notice of Defaults.
Within 90 days after the occurrence of any Default hereunder, the
Trustee shall transmit in the manner and to the extent provided in TIA Section
313(c), notice of such Default hereunder known to the Trustee, unless such
Default shall have been cured or waived; provided, however, that, except in
the case of a Default in the payment of the principal of (or premium, if any,
on) or interest on any Security or in the payment of any sinking fund
installment, the Trustee shall be protected in withholding such notice if and
so long as the board of directors, the executive committee or a trust
committee of directors and/or Responsible Officers of the Trustee in good
faith determines that the withholding of such notice is in the interest of the
Holders; and provided further that in the case of any Default of the character
specified in clause (i) of Section 501(3) no such notice to Holders shall be
given until at least 60 days after the occurrence thereof.
SECTION 602. Certain Rights of Trustee.
Subject to the provisions of TIA Sections 315(a) through 315(d):
(1) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or other
paper or document believed by it to be genuine and to have been
signed or presented by the proper party or parties;
(2) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order
and any resolution of the board of directors of the Company may be
sufficiently evidenced by a Board Resolution;
(3) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior
to taking, suffering or omitting any action hereunder, the Trustee
(unless other evidence be herein specifically prescribed) may, in the
absence of bad faith on its part, rely upon an Officers' Certificate;
(4) the Trustee may consult with counsel and the written advice
of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in reliance thereon;
(5) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by or pursuant to this Indenture at the
request or direction of any of the Holders pursuant to this Indenture,
unless such Holders shall have offered to the Trustee security or
indemnity reasonably satisfactory to the Trustee against the costs,
expenses and liabilities which might be incurred by it in compliance
with such request or direction;
(6) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness
or other paper or document, but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts or matters
as it may see fit, and, if the Trustee shall determine to make such
further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company or any Guarantor,
personally or by agent or attorney at the cost of the Company or such
Guarantor and shall not incur by reason of such inquiry or
investigation any obligation or responsibility of any kind other than
those imposed by or pursuant to this Indenture;
(7) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder;
(8) the Trustee shall not be liable for any action taken,
suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferred
upon it by this Indenture; and
(9) the Trustee shall not be deemed to have knowledge of the
occurrence of a Change in Control or of the fact that the amount of
Excess Proceeds equals or exceeds $20,000,000 until the Trustee
receives written notice thereof as required by this Indenture.
The Trustee shall not be required to expend or risk its own funds or
otherwise incur any financial liability in the performance of any of its
duties hereunder, or in the exercise of any of its rights or powers if it
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured to
it.
SECTION 603. Trustee Not Responsible for Recitals or Issuance of
Securities.
The recitals contained herein, in the Securities and in the Guarantees,
except for the Trustee's certificates of authentication, shall be taken as the
statements of the Company and each Guarantor, and the Trustee assumes no
responsibility for their correctness. The Trustee makes no representations as
to the validity or sufficiency of this Indenture, the Securities or the
Guarantees, except that the Trustee represents that it is duly authorized to
execute and deliver this Indenture, authenticate the Securities and perform
its obligations hereunder and that the statements made by it in a Statement of
Eligibility and Qualification on Form T-1 supplied to the Company are true and
accurate, subject to the qualifications set forth therein. The Trustee shall
not be accountable for the use or application by the Company of Securities or
the proceeds thereof.
SECTION 604. May Hold Securities.
The Trustee, any Paying Agent, any Security Registrar or any other
agent of the Company or of the Trustee, in its individual or any other
capacity, may become the owner or pledgee of Securities and, subject to TIA
Sections 310(b) and 311, may otherwise deal with the Company with the same
rights it would have if it were not Trustee, Paying Agent, Security Registrar
or such other agent.
SECTION 605. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except
as otherwise agreed with the Company.
SECTION 606. Compensation and Reimbursement.
The Company and each Guarantor agree:
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in regard
to the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses (including, without
limitation, expenses incurred in connection with notices or other
communications to the Holders as required hereunder), disbursements and
advances incurred or made by the Trustee in accordance with any
provision of this Indenture (including the reasonable compensation and
the expenses and disbursements of its agents and counsel), except any
such expense, disbursement or advance as may be attributable to its
negligence or bad faith; and
(3) to indemnify the Trustee, and its officers, directors,
employees and agents, for, and to hold them harmless against, any
loss, liability or expense incurred without negligence or bad faith
on their part, arising out of or in connection with the acceptance or
administration of this trust, including the costs and expenses of
defending themselves against any claim or liability in connection
with the exercise or performance of any of their powers or duties
hereunder.
The obligations of the Company and the Guarantors under this Section to
compensate the Trustee, to pay or reimburse the Trustee for expenses,
disbursements and advances and to indemnify and hold harmless the Trustee
shall constitute additional indebtedness hereunder and shall survive the
satisfaction and discharge of this Indenture. As security for the performance
of such obligations of the Company and the Guarantors, the Trustee shall have
a claim prior to the Securities upon all property and funds held or collected
by the Trustee as such, except funds held in trust for the payment of
principal of (and premium, if any, on) or interest on particular Securities.
SECTION 607. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be eligible
to act as Trustee under TIA Section 310(a)(1) and shall have a combined
capital and surplus of at least $50,000,000. If such corporation publishes
reports of condition at least annually, pursuant to law or to the requirements
of federal, state, territorial or District of Columbia supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. If
at any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect hereinafter specified in this Article.
SECTION 608. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 609.
(b) The Trustee may resign at any time by giving written notice thereof
to the Company. If the instrument of acceptance by a successor Trustee
required by Section 609 shall not have been delivered to the Trustee within 30
days after the giving of such notice of resignation, the resigning Trustee may
petition any court of competent jurisdiction for the appointment of a
successor Trustee.
(c) The Trustee may be removed at any time by Act of the Holders of not
less than a majority in principal amount of the Outstanding Securities,
delivered to the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with the provisions of TIA
Section 310(b) after written request therefor by the Company or by
any Holder who has been a bona fide Holder of a Security for at least
six months, or
(2) the Trustee shall cease to be eligible under Section 607 and
shall fail to resign after written request therefor by the Company or
by any Holder who has been a bona fide Holder of a Security for at
least six months, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of
its property shall be appointed or any public officer shall take
charge or control of the Trustee or of its property or affairs for
the purpose of rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company, by a Board Resolution, may remove the
Trustee, or (ii) subject to TIA Section 315(e), any Holder who has been a bona
fide Holder of a Security for at least six months may, on behalf of himself
and all others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a successor
Trustee.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause,
the Company, by a Board Resolution, shall promptly appoint a successor
Trustee. If, within one year after such resignation, removal or incapability,
or the occurrence of such vacancy, a successor Trustee shall be appointed by
Act of the Holders of a majority in principal amount of the Outstanding
Securities delivered to the Company and the retiring Trustee, the successor
Trustee so appointed shall, forthwith upon its acceptance of such appointment,
become the successor Trustee and supersede the successor Trustee appointed by
the Company. If no successor Trustee shall have been so appointed by the
Company or the Holders and accepted appointment in the manner hereinafter
provided, any Holder who has been a bona fide Holder of a Security for at
least six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the appointment of a
successor Trustee.
(f) The Company shall give notice of each resignation and each removal
of the Trustee and each appointment of a successor Trustee to the Holders of
Securities in the manner provided for in Section 106. Each notice shall
include the name of the successor Trustee and the address of its Corporate
Trust Office.
SECTION 609. Acceptance of Appointment by Successor.
Every successor Trustee appointed hereunder shall execute, acknowledge
and deliver to the Company and to the retiring Trustee an instrument accepting
such appointment, and thereupon the resignation or removal of the retiring
Trustee shall become effective and such successor Trustee, without any further
act, deed or conveyance, shall become vested with all the rights, powers,
trusts and duties of the retiring Trustee; but, on request of the Company or
the successor Trustee, such retiring Trustee shall, upon payment of its
charges, execute and deliver an instrument transferring to such successor
Trustee all the rights, powers and trusts of the retiring Trustee and shall
duly assign, transfer and deliver to such successor Trustee all property and
money held by such retiring Trustee hereunder. Upon request of any such
successor Trustee, the Company and each Guarantor shall execute any and all
instruments for more fully and certainly vesting in and confirming to such
successor Trustee all such rights, powers and trusts.
No successor Trustee shall accept its appointment unless at the time of
such acceptance such successor Trustee shall be qualified and eligible under
this Article.
SECTION 610. Merger, Conversion, Consolidation or Succession to
Business.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on
the part of any of the parties hereto. 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; and in case at that time any of the Securities shall not have been
authenticated, any successor Trustee may authenticate such Securities either
in the name of any predecessor hereunder or in the name of the successor
Trustee; and in all such cases such certificates shall have the full force
which it is anywhere in the Securities or in this Indenture provided that the
certificate of the Trustee shall have; provided, however, that the right to
adopt the certificate of authentication of any predecessor Trustee or to
authenticate Securities in the name of any predecessor Trustee shall apply
only to its successor or successors by merger, conversion or consolidation.
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Disclosure of Names and Addresses of Holders.
Every Holder of Securities, by receiving and holding the same, agrees
with the Company, the Guarantors and the Trustee that none of the Company, the
Guarantors or the Trustee or any agent of any of them shall be held
accountable by reason of the disclosure of any such information as to the
names and addresses of the Holders in accordance with TIA Section 312,
regardless of the source from which such information was derived, and that the
Trustee shall not be held accountable by reason of mailing any material
pursuant to a request made under TIA Section 312(b).
SECTION 702. Reports by Trustee.
Within 60 days after May 15 of each year commencing with the first May
15 after the first issuance of Securities, the Trustee shall transmit to the
Holders, in the manner and to the extent provided in TIA Section 313(c), a
brief report dated as of such May 15 if required by TIA Section 313(a).
SECTION 703. Reports by Company and the Guarantors.
The Company and each Guarantor shall:
(1) file with the Trustee, within 15 days after the Company or such
Guarantor, as the case may be, is required to file the same with the
Commission, copies of the annual reports and of the information,
documents and other reports (or copies of such portions of any of the
foregoing as the Commission may from time to time by rules and
regulations prescribe) which the Company or such Guarantor may be
required to file with the Commission pursuant to Section 13 or Section
15(d) of the Exchange Act; or, if the Company or such Guarantor, as the
case may be, is not required to file information, documents or reports
pursuant to either of said Sections, then it shall file with the Trustee
and the Commission, in accordance with rules and regulations prescribed
from time to time by the Commission, such of the supplementary and
periodic information, documents and reports which may be required
pursuant to Section 13 of the Exchange Act in respect of a security
listed and registered on a national securities exchange as may be
prescribed from time to time in such rules and regulations;
(2) file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission,
such additional information, documents and reports with respect to
compliance by the Company or such Guarantor with the conditions and
covenants of this Indenture as may be required from time to time by
such rules and regulations; and
(3) transmit by mail to all Holders, in the manner and to the
extent provided in TIA Section 313(c), within 30 days after the
filing thereof with the Trustee, such summaries of any information,
documents and reports required to be filed by the Company or such
Guarantor pursuant to paragraphs (1) and (2) of this Section as may
be required by rules and regulations prescribed from time to time by
the Commission.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. ADT Limited or Any Restricted Subsidiary May Consolidate,
etc. Only on Certain Terms.
ADT Limited shall not consolidate or amalgamate with or merge with or
into any other Person or, directly or indirectly, sell, convey, assign,
transfer, lease or otherwise dispose of all or substantially all of its
properties and assets to any Person or group of affiliated Persons, or permit
any of the Restricted Subsidiaries to enter into any such transaction or
transactions if such transaction or transactions, in the aggregate, would
result in the sale, conveyance, assignment, transfer, lease or other
disposition of all or substantially all of the properties and assets of the
Company, ADT Limited and the other Restricted Subsidiaries on a consolidated
basis, to any Person or group of affiliated Persons, unless (and, in the case
of certain mergers, consolidations or amalgamations of ADT Limited with or
into any other Person, subject to Section 802 hereof):
(1) either (A) the Company, ADT Limited or such other Restricted
Subsidiary shall be the continuing corporation or (B) such Person (if
other than the Company, ADT Limited or such other Restricted Subsidiary)
formed by such consolidation or amalgamation or into which the Company,
ADT Limited or such other Restricted Subsidiary is amalgamated or merged
or the Person which acquires by sale, conveyance, assignment, transfer,
lease or other disposition all or substantially all of the properties and
assets of the Company, ADT Limited and the other Restricted Subsidiaries
(the "Surviving Entity") shall be a corporation duly organized and
validly existing under the laws of the United States of America, any
state thereof or the District of Columbia except that in the case of ADT
Limited or any Restricted Subsidiary (other than the Company or any
Restricted Subsidiary of the Company), the Surviving Entity may be a
corporation duly organized and validly existing under the laws of
Bermuda, Canada, the United Kingdom or any political subdivision thereof
and shall, in either case, expressly assume, by supplemental indenture
to this Indenture, executed and delivered by the Trustee, in form
satisfactory to the Trustee, all the obligations of the Company, ADT
Limited or such other Restricted Subsidiary under the Securities and
this Indenture and this Indenture shall remain in full force and effect;
(2) immediately before and immediately after giving effect to such
transaction no Default or Event of Default shall have occurred and be
continuing (and treating any Indebtedness that becomes an obligation of
the Company, ADT Limited or any other Restricted Subsidiary in
connection with or as a result of such transaction as having been
incurred at the time of such transaction);
(3) immediately after giving effect to such transaction, the
Consolidated Net Worth of ADT Limited, if the Company, ADT Limited or
any other Restricted Subsidiary is the continuing corporation, or the
Surviving Entity is at least equal to the Consolidated Net Worth of ADT
Limited immediately before such transaction;
(4) each Guarantor, unless it is the other party to the
transactions described above, shall have by supplemental indenture
confirmed that its Guarantee shall apply to such Person's obligations
under the Securities; and
(5) the Company and ADT Limited shall have delivered, or caused
to be delivered, to the Trustee an Officers' Certificate and an
Opinion of Counsel, each stating that this Section 801 has been
complied with and that all conditions precedent herein provided for
relating to such transaction have been satisfied.
Notwithstanding anything contained in this Section 801, the Company and any
Surviving Entity of the Company shall at all times be a corporation duly
organized and validly existing under the laws of the United States of America,
any state thereof or the District of Columbia.
SECTION 802. ADT Limited May Amalgamate, Redomesticate, etc., Only on
Certain Terms.
ADT Limited may (a) amalgamate with or merge with or into a newly-formed
corporation having no assets or liabilities, which amalgamation or merger
shall be solely for the purpose of reincorporating ADT Limited under the laws
of Canada, the United Kingdom or other political subdivision thereof or the
United States of America, any state thereof or the District of Columbia or (b)
continue, redomesticate or otherwise become subject to the laws of a
jurisdiction other than Bermuda, to the same extent as if it had been
incorporated in such jurisdiction, provided that in the case of clauses (a)
and (b) above:
(1) the Surviving Entity shall be a corporation duly organized and
validly existing under the laws of Canada, the United Kingdom or
political subdivision thereof or the United States of America, any state
thereof or the District of Columbia and shall, in either case, expressly
assume, by supplemental indenture to this Indenture, executed and
delivered by the Trustee, in form satisfactory to the Trustee, all the
obligations of ADT Limited under the Securities and this Indenture and
this Indenture shall remain in full force and effect;
(2) immediately before and immediately after giving effect to such
transaction, no Default or Event of Default shall have occurred and be
continuing (and treating any Indebtedness that becomes an obligation of
the Company, ADT Limited or any other Restricted Subsidiary in
connection with or as a result of such transaction as having been
incurred at the time of such transaction);
(3) immediately after giving effect to such transaction, the
Consolidated Net Worth of the Surviving Entity is at least equal to the
Consolidated Net Worth of ADT Limited immediately before such
transaction less customary and reasonable transaction costs;
(4) each Guarantor, unless it is the other party to the transactions
described above, shall have by supplemental indenture confirmed that its
Guarantee shall apply to such Person's obligations under the Securities;
and
(5) the Surviving Entity shall have delivered, or caused to be
delivered, to the Trustee an Officers' Certificate and an Opinion of
Counsel, each stating that this Section 802 has been complied with and
that all conditions precedent herein provided for relating to such
transaction have been satisfied.
SECTION 803. Successor Substituted.
Upon any consolidation or amalgamation of ADT Limited or consolidation
of the Company or any Guarantor with or merger of the Company or any Guarantor
with or into any other corporation, or any continuance or redomestication of
ADT Limited in a jurisdiction other than Bermuda, or upon any conveyance,
transfer or lease of all or substantially all of the properties and assets of
the Company, ADT Limited and the other Restricted Subsidiaries to any Person in
accordance with Section 801 or 802, the successor Person formed by such
consolidation, amalgamation, continuance or redomestication or into which the
Company or such Guarantor is merged or to which such conveyance, transfer or
lease is made shall succeed to, and be substituted for, and may exercise every
right and power of, the Company or such Guarantor under this Indenture, the
Securities and the Guarantees, as the case may be, with the same effect as if
such successor Person had been named as the Company or such Guarantor, as the
case may be, herein, in the Securities or in the Guarantees, as the case may
be, and in the event of any such conveyance or transfer, the Company or such
Guarantor (which terms shall for this purpose mean the Person named as the
"Company" in the first paragraph of this Indenture, any Guarantor on the date
hereof or any successor Person which shall theretofore become such in the
manner described in Section 801 or 802), except in the case of a lease, shall
be discharged of all obligations and covenants under this Indenture, the
Securities and the Guarantees, as the case may be, and may be dissolved and
liquidated.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company and the Guarantors,
when each is authorized by a Board Resolution adopted by their respective
boards of directors or any duly authorized committee thereof, and the Trustee,
at any time and from time to time, may enter into one or more indentures
supplemental hereto, or agreements or other instruments with respect to the
Guarantees, in form satisfactory to the Trustee, for any of the following
purposes:
(1) to evidence the succession of another Person to the Company
or any Guarantor and the assumption by any such successor of the
covenants of the Company or any Guarantor contained herein, in the
Securities or in the Guarantees; or
(2) to add to the covenants of the Company or any Guarantor for
the benefit of the Holders or to surrender any right or power herein
conferred upon the Company or any Guarantor; or
(3) to add any additional Events of Default; or
(4) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee pursuant to the requirements of
Section 609; or
(5) to cure any ambiguity, to correct or supplement any provision
herein which may be inconsistent with any other provision herein, or to
make any other provisions with respect to matters or questions arising
under this Indenture; provided that such action shall not adversely
affect the interests of the Holders in any material respect; or
(6) to add a guarantor of the Guaranteed Obligations; or
(7) to secure the Securities pursuant to any relevant provision
under the Indenture.
SECTION 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities, by Act of said Holders
delivered to the Company and the Trustee, the Company and the Guarantors, when
each is authorized by a Board Resolution, and the Trustee may enter into an
indenture or indentures supplemental hereto for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions
of this Indenture or of modifying in any manner the rights of the Holders
under this Indenture; provided, however, that no such supplemental indenture
shall, without the consent of the Holder of each Outstanding Security affected
thereby:
(1) change the Stated Maturity of the principal of, or any
installment of interest on, any Security, or reduce the principal
amount thereof or the rate of interest thereon, or change the coin or
currency in which any Security or any premium or the interest thereon
is payable, or impair the right to institute suit for the enforcement
of any such payment after the Stated Maturity thereof, or
(2) reduce the percentage in principal amount of the Outstanding
Securities, the consent of whose Holders is required for any such
supplemental indenture, or the consent of whose Holders is required for
any waiver of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences provided for in this
Indenture, or
(3) modify any of the provisions of this Section or Sections 513
and 1021, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or
waived without the consent of the Holder of each Outstanding Security
affected thereby, or
(4) modify any of the provisions of this Indenture relating to a
Change in Control in a manner adverse to the Holders of the
Outstanding Securities.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it
shall be sufficient if such Act shall approve the substance thereof.
SECTION 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby
of the trusts created by this Indenture, the Trustee shall be entitled to
receive, and shall be fully protected in relying upon, an Opinion of Counsel
stating that the execution of such supplemental indenture is authorized or
permitted by this Indenture. The Trustee may, but shall not be obligated to,
enter into any such supplemental indenture which affects the Trustee's own
rights, duties or immunities under this Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all purposes;
and every Holder of Securities theretofore or thereafter authenticated and
delivered hereunder shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to the Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 906. Reference in Securities to Supplemental Indentures.
Securities authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so
determine, new Securities so modified as to conform, in the opinion of the
Trustee and the Company, to any such supplemental indenture may be prepared
and executed by the Company and authenticated and delivered by the Trustee in
exchange for Outstanding Securities.
SECTION 907. Notice of Supplemental Indentures.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of Section 902, the Company
shall give notice thereof to the Holders of each Outstanding Security
affected, in the manner provided for in Section 106, setting forth in general
terms the substance of such supplemental indenture.
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium, if any, and Interest.
The Company covenants and agrees for the benefit of the Holders that it
will duly and punctually pay the principal of (and premium, if any, on) and
interest on the Securities in accordance with the terms of the Securities and
this Indenture.
SECTION 1002. Maintenance of Office or Agency.
The Company will maintain in The City of New York, an office or agency
where Securities may be presented or surrendered for payment, where Securities
may be surrendered for registration of transfer or exchange and where notices
and demands to or upon the Company in respect of the Securities and this
Indenture may be served. The Corporate Trust Office of the Trustee shall be
such office or agency of the Company, unless the Company shall designate and
maintain some other office or agency for one or more of such purposes. The
Company will give prompt written notice to the Trustee of any change in the
location of any 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 Corporate Trust Office of the Trustee,
and the Company hereby appoints the Trustee as its agent to receive all such
presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other
offices or agencies (in or outside of The City of New York) where the
Securities may be presented or surrendered for any or all such purposes and
may from time to time rescind any such designation; provided, however, that no
such designation or rescission shall in any manner relieve the Company of its
obligation to maintain an office or agency in The City of New York for such
purposes. The Company will give prompt written notice to the Trustee of any
such designation or rescission and any change in the location of any such
other office or agency.
SECTION 1003. Money for Security Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent, it will,
on or before each due date of the principal of (and premium, if any, on) or
interest on any of the Securities, segregate and hold in trust for the benefit
of the Persons entitled thereto a sum sufficient to pay the principal (and
premium, if any) or interest so becoming due until such sums shall be paid to
such Persons or otherwise disposed of as herein provided and will promptly
notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for the
Securities, it will, on or before each due date of the principal of (and
premium, if any, on), or interest on, any Securities, deposit with a Paying
Agent a sum sufficient to pay the principal (and premium, if any) or interest
so becoming due, such sum to be held in trust for the benefit of the Persons
entitled to such principal, premium or interest, and (unless such Paying Agent
is the Trustee) the Company will promptly notify the Trustee of such action or
any failure so to act.
The Company will cause each Paying Agent (other than the Trustee) to
execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this Section, that
such Paying Agent will:
(1) hold all sums held by it for the payment of the principal of
(and premium, if any, on) or interest on Securities in trust for the
benefit of the Persons entitled thereto until such sums shall be paid
to such Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company or any
Guarantor in the making of any payment of principal (and premium, if
any) or interest; and
(3) at any time during the continuance of any such default, upon
the written request of the Trustee, forthwith pay to the Trustee all
sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held
in trust by the Company or such Paying Agent, such sums to be held by the
Trustee upon the same trusts as those upon which such sums were held by the
Company or such Paying Agent; and, upon such payment by any Paying Agent to
the Trustee, such Paying Agent shall be released from all further liability
with respect to such sums.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of (and premium, if
any, on) or interest on any Security and remaining unclaimed for two years
after such principal (and premium, if any) or interest has become due and
payable shall be paid to the Company on Company Request, or (if then held by
the Company) shall be discharged from such trust; and the Holder of such
Security shall thereafter, as an unsecured general creditor, look only to the
Company for payment thereof, and all liability of the Trustee or such Paying
Agent with respect to such trust money, and all liability of the Company as
trustee thereof, shall thereupon cease; provided, however, that the Trustee or
such Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in a newspaper published in
the English language, customarily published on each Business Day and of
general circulation in the Borough of Manhattan, The City of New York, 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 publication, any
unclaimed balance of such money then remaining will be repaid to the Company.
SECTION 1004. Corporate Existence.
Subject to Article Eight, the Company and ADT Limited will do or cause
to be done all things necessary to preserve and keep in full force and effect
the corporate existence, rights (charter and statutory) and franchises of the
Company, ADT Limited and each other Restricted Subsidiary; provided, however,
that the Company and ADT Limited shall not be required to preserve any such
right or franchise if the Board of Directors shall determine that the
preservation thereof is no longer desirable in the conduct of the business of
the Company, ADT Limited and the other Restricted Subsidiaries as a whole and
that the loss thereof is not disadvantageous in any material respect to the
Holders.
SECTION 1005. Payment of Taxes and Other Claims.
The Company and ADT Limited will pay or discharge or cause to be paid or
discharged, before the same shall become delinquent, (a) all taxes,
assessments and governmental charges levied or imposed upon the Company, ADT
Limited or any other Subsidiary or upon the income, profits or property of the
Company, ADT Limited or any other Subsidiary and (b) all lawful claims for
labor, materials and supplies, which, if unpaid, might by law become a lien
upon the property of the Company, ADT Limited or any other Restricted
Subsidiary; provided, however, that the Company and ADT Limited shall not be
required to pay or discharge or cause to be paid or discharged any such tax,
assessment, charge or claim whose amount, applicability or validity is being
contested in good faith by appropriate proceedings.
SECTION 1006. Maintenance of Properties.
The Company and ADT Limited will cause all properties owned by the
Company, ADT Limited or any other Restricted Subsidiary or used or held for
use in the conduct of the business of the Company, ADT Limited or any other
Restricted Subsidiary to be maintained and kept in good condition, repair and
working order and supplied with all necessary equipment and will cause to be
made all necessary repairs, renewals, replacements, betterments and
improvements thereof, all as in the judgment of the Company and ADT Limited
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 shall prevent the Company and ADT Limited from
discontinuing the maintenance of any of such properties if such discontinuance
is, in the judgment of the Company and ADT Limited, desirable in the conduct
of the business of the Company, ADT Limited or any other Restricted Subsidiary
and not disadvantageous in any material respect to the Holders.
SECTION 1007. Insurance.
The Company and ADT Limited will at all times keep all of the
properties of the Company, ADT Limited and the other Restricted Subsidiaries
which are of an insurable nature insured with insurers, believed by the
Company and ADT Limited to be responsible, against loss or damage to the
extent that property of similar character is usually so insured by corporations
similarly situated and owning like properties.
SECTION 1008. Statement by Officers As to Default.
(a) Each of ADT Limited and the Company will deliver to the Trustee,
within 120 days after the end of each fiscal year, a brief certificate from
its principal executive officer, principal financial officer or principal
accounting officer as to his or her knowledge of compliance by the Company,
ADT Limited and the other Subsidiaries with all conditions and covenants
applicable to the Company, ADT Limited and the other Subsidiaries under this
Indenture. For purposes of this Section 1008(a), such compliance shall be
determined without regard to any period of grace or requirement of notice
under this Indenture.
(b) When any Default has occurred and is continuing under this
Indenture, or if the trustee for or the holder of any other evidence of
Indebtedness of the Company, ADT Limited or any other Restricted Subsidiary
gives any notice or takes any other action with respect to a claimed default
(other than with respect to Indebtedness in the principal amount of less than
$15,000,000), the Company or ADT Limited shall deliver to the Trustee by
registered or certified mail or by telegram, telex or facsimile transmission
an Officers' Certificate specifying such event, notice or other action within
five Business Days of its occurrence.
SECTION 1009. Provision of Financial Statements.
Whether or not ADT Limited is subject to Section 13(a) or 15(d) of the
Exchange Act, ADT Limited will, to the extent permitted under the Exchange
Act, file with the Commission the annual reports, quarterly reports and other
documents that ADT Limited would have been required to file with the
Commission pursuant to such Sections 13(a) or 15(d) if ADT Limited were so
subject, such documents to be filed with the Commission on or prior to the
respective dates (the "Required Filing Dates") by which ADT Limited would have
been required so to file such documents if ADT Limited were so subject. The
Company will also in any event (x) within 15 days of each Required Filing Date
(i) transmit by mail to all Holders, as their names and addresses appear in
the Security Register, without cost to such Holders and (ii) file with the
Trustee copies of the annual reports, quarterly reports and other documents
that ADT Limited would have been required to file with the Commission pursuant
to Section 13(a) or 15(d) of the Exchange Act if ADT Limited were subject to
such Sections and (y) if filing such documents by ADT Limited with the
Commission is not permitted under the Exchange Act, promptly upon written
request, authorize the Trustee to provide a copy of such documents to a
prospective holder of the Securities at the Company's cost.
SECTION 1010. Purchase of Securities upon Change in Control.
(a) Upon the occurrence of a Change in Control, each Holder of
Securities shall have the right to require the Company to repurchase such
Holder's Securities in whole or in part in integral multiples of $1,000, at a
purchase price (the "Change in Control Purchase Price") in cash in an amount
equal to 101% of the principal amount of such Securities plus accrued and
unpaid interest, if any, to the date of purchase, in accordance with the
procedures set forth in this Section 1010 (a "Change in Control Offer").
(b) Within 30 days following any Change in Control, the Company shall
send by first-class mail, postage prepaid, to the Trustee and to each Holder
of the Securities, at his address appearing in the Security Register, a notice
stating:
(1) that a Change in Control has occurred and that such Holder
has the right to require the Company to repurchase such Holder's
Securities at the Change in Control Purchase Price;
(2) the circumstances and relevant facts regarding such Change in
Control (including but not limited to information with respect to pro
forma historical income, cash flow and capitalization after giving
effect to such Change in Control);
(3) a purchase date (the "Purchase Date") which shall be no earlier
than 45 days nor later than 60 days from the date such notice is mailed
or such later date as may be necessary for the Company to comply with
the requirements under the Exchange Act;
(4) that any Security not tendered will continue to accrue
interest; and
(5) the instructions a Holder must follow in order to have its
Securities repurchased in accordance with paragraph (d) of this Section.
(c) Holders electing to have Securities purchased will be required to
surrender such Securities to the Company at the address specified in the
notice at least five Business Days prior to the Purchase Date. Holders will
be entitled to withdraw their election if the Company receives, not later than
five Business Days prior to the Purchase Date, a telegram, telex, facsimile
transmission or letter setting forth the name of the Holder, the principal
amount of the Securities delivered for purchase by the Holder as to which his
election is to be withdrawn and a statement that such Holder is withdrawing
his election to have such Securities purchased. Holders whose Securities are
purchased only in part will be issued new Securities equal in principal amount
to the unpurchased portion of the Securities surrendered.
(d) The Company will comply with the applicable tender offer rules,
including Rule 14e-1 under the Exchange Act, and any other applicable
securities laws or regulations in connection with a Change in Control Offer.
[SECTIONS 1011-1020 intentionally omitted.]
SECTION 1021. Waiver of Certain Covenants.
The Company and each Guarantor may omit in any particular instance to
comply with any term, provision or condition set forth in Section 804,
Sections 1007 through 1009, inclusive, or Sections 1011 through 1020, if
before or after the time for such compliance the Holders of at least a
majority in principal amount of the Outstanding Securities, by Act of such
Holders, waive such compliance in such instance with such term, provision or
condition, but no such waiver shall extend to or affect such term, provision
or condition except to the extent so expressly waived, and, until such waiver
shall become effective, the obligations of the Company and each Guarantor and
the duties of the Trustee in respect of any such term, provision or condition
shall remain in full force and effect.
ARTICLE ELEVEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1101. Company's Option to Effect Defeasance or Covenant
Defeasance.
The Company may, at its option by Board Resolution, at any time, with
respect to the Securities, elect to have either Section 1102 or Section 1103
be applied to all Outstanding Securities upon compliance with the conditions
set forth below in this Article Eleven.
SECTION 1102. Defeasance and Discharge.
Upon the Company's exercise under Section 1101 of the option applicable
to this Section 1102, the Company shall be deemed to have been discharged from
its obligations with respect to all Outstanding Securities on the date the
conditions set forth in Section 1104 are satisfied (hereinafter,
"defeasance"). For this purpose, such 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 Section 1105 and the other Sections of
this Indenture referred to in (A) and (B) below, and to have satisfied all its
other obligations under such Securities and this Indenture insofar as such
Securities are concerned (and the Trustee, at the expense of the Company,
shall execute proper instruments acknowledging the same), except for the
following which shall survive until otherwise terminated or discharged
hereunder: (A) the rights of Holders of Outstanding Securities to receive,
solely from the trust fund described in Section 1104 and as more fully set
forth in such Section, payments in respect of the principal of (and premium,
if any, on) and interest on such Securities when such payments are due, (B)
the Company's obligations with respect to such Securities under Sections 304,
305, 306, 1002 and 1003, (C) the rights, powers, trusts, duties and immunities
of the Trustee hereunder and (D) this Article Eleven. Subject to compliance
with this Article Eleven, the Company may exercise its option under this
Section 1102 notwithstanding the prior exercise of its option under Section
1103 with respect to the Securities.
SECTION 1103. Covenant Defeasance.
Upon the Company's exercise under Section 1101 of the option applicable
to this Section 1103, the Company and the Guarantors shall be released from
their obligations under any covenant contained in Section 801(3), Section
802(3) and in Sections 1007 through 1010 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 not to be "Outstanding" for the purposes of any direction, waiver,
consent or declaration or Act of Holders (and the consequences of any thereof)
in connection with such covenants, but shall continue to be deemed
"Outstanding" for all other purposes hereunder. For this purpose, such
covenant defeasance means that, with respect to the Outstanding Securities,
the Company and the Guarantors 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 501(3), but, except as specified above, the remainder of this
Indenture and such Securities shall be unaffected thereby.
SECTION 1104. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to application of either Section
1102 or Section 1103 to the Outstanding Securities:
(1) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the
requirements of Section 607 who shall agree to comply with the
provisions of this Article Eleven applicable to it) as trust funds in
trust for the purpose of making the following payments, specifically
pledged as security for, and dedicated solely to, the benefit of the
Holders of such Securities, (A) cash in U.S. dollars in an amount, or
(B) U.S. Government Obligations which through the scheduled payment of
principal and interest in respect thereof in accordance with their terms
will provide, not later than one day before the due date of any payment,
money in an amount, or (C) a combination thereof, sufficient, in the
opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the
Trustee, to pay and discharge, and which shall be applied by the Trustee
(or other qualifying trustee) to pay and discharge, the principal of
(and premium, if any, on) and interest on the Outstanding Securities on
the Stated Maturity of such principal (and premium, if any) or
installment of interest on the day on which such payments are due and
payable in accordance with the terms of this Indenture and of such
Securities; provided that the Trustee shall have been irrevocably
instructed to apply such money or the proceeds of such U.S. Government
Obligations to said payments with respect to the Securities.
(2) No Default or Event of Default with respect to the
Securities shall have occurred and be continuing on the date of such
deposit or, insofar as paragraphs (7) and (8) of Section 501 hereof
are concerned, at any time during the period ending on the 91st or
367th day, as the case may be, after the date of such deposit (it
being understood that this condition shall not be deemed satisfied
until the expiration of such period).
(3) Such defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a default under, this Indenture or
any other material agreement or instrument to which the Company or any
Guarantor is a party or by which the Company or any Guarantor is bound.
(4) In the case of an election under Section 1102, the Company
shall have delivered to the Trustee an Opinion of Counsel stating
that (x) the Company has received from, or there has been published
by, the Internal Revenue Service a ruling, or (y) since the date
hereof, there has been a change in the applicable federal income tax
law, in either case to the effect that, and based thereon such
opinion shall confirm that, the Holders of the Outstanding Securities
will not recognize income, gain or loss for federal income tax
purposes as a result of such defeasance and will be subject to
federal income tax on the same amounts, in the same manner and at the
same times as would have been the case if such defeasance had not
occurred.
(5) In the case of an election under Section 1103, the Company
shall have delivered to the Trustee an Opinion of Counsel to the
effect that the Holders of the Outstanding Securities will not
recognize income, gain or loss for federal income tax purposes as a
result of such covenant defeasance and will be subject to federal
income tax on the same amounts, in the same manner and at the same
times as would have been the case if such covenant defeasance had not
occurred.
(6) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to either the defeasance under Section
1102 or the covenant defeasance under Section 1103 (as the case may be)
have been complied with.
(7) The Company shall have delivered to the Trustee an Opinion of
Counsel stating that after the 91st day following the deposit, the trust
funds will not be subject to the effect of any applicable bankruptcy,
insolvency, reorganization or similar laws affecting creditors' rights
generally; provided, however, that if counsel determines that it cannot
deliver such opinion as a matter of law, the Company shall have
delivered to the Trustee an Opinion of Counsel to the effect that after
the 367th day following the deposit, the trust funds will not be subject
to the effect of any applicable bankruptcy, insolvency, reorganization
or similar laws affecting creditors' rights generally.
(8) The Company shall have delivered to the Trustee an Officers'
Certificate stating that the deposit was not made by the Company with
the intent of preferring the holders of the Securities or the Guarantees
endorsed thereon over the other creditors of the Company or any
Guarantor or with the intent of hindering, delaying or defrauding
creditors of the Company or any Guarantor.
Reference in paragraph (2) above to the number of days shall mean the 91st day
if the Opinion of Counsel referred to in paragraph (7) above refers to the
91st day and shall mean the 367th day if the Opinion of Counsel referred to in
paragraph (7) above refers to the 367th day.
SECTION 1105. Deposited Money and U.S. Government Obligations to Be Held
in Trust; Other Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section 1003, all
money and U.S. Government Obligations (including the proceeds thereof)
deposited with the Trustee (or other qualifying trustee--collectively for
purposes of this Section 1105, the "Trustee") pursuant to Section 1104 in
respect of the Outstanding Securities shall be held in trust and applied by the
Trustee, in accordance with the provisions of such Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Holders of such Securities of all sums due and to become due
thereon in respect of principal (and premium, if any) and interest, but such
money need not be segregated from other funds except to the extent required by
law.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the U.S. Governmental Obligations
deposited pursuant to Section 1104 or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is
for the account of the Holders of the Outstanding Securities.
Anything in this Article Eleven to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or U.S. Government Obligations held by it as provided in
Section 1104 which, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, are in excess of the amount thereof which would then
be required to be deposited to effect an equivalent defeasance or covenant
defeasance, as applicable, in accordance with this Article.
SECTION 1106. Reinstatement.
If the Trustee or any Paying Agent is unable to apply any money in
accordance with Section 1105 by reason of any order or judgment of any court
or governmental authority enjoining, restraining or otherwise prohibiting such
application, then the Company's and each Guarantor's obligations under this
Indenture, the Securities and the Guarantees shall be revived and reinstated
as though no deposit had occurred pursuant to Section 1102 or 1103, as the case
may be, until such time as the Trustee or Paying Agent is permitted to apply
all such money in accordance with Section 1105; provided, however, that if the
Company makes any payment of principal of (or premium, if any, on) or interest
on any Security following the reinstatement of its obligations, the Company
shall be subrogated to the rights of the Holders of such Securities to receive
such payment from the money held by the Trustee or Paying Agent.
ARTICLE TWELVE
GUARANTEE
SECTION 1201. Guarantee.
Subject to the provisions of this Article Twelve, each Guarantor hereby
irrevocably and unconditionally guarantees, jointly and severally, on a senior
basis to each Holder and to the Trustee, on behalf of the Holders, (i) the due
and punctual payment of the principal of and interest on each Security, when
and as the same shall become due and payable, whether at Stated Maturity or
purchase upon Change in Control, and whether by declaration of acceleration,
Change in Control, call for purchase or otherwise, the due and punctual
payment of interest on the overdue principal of 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 of such Security and this Indenture and (ii) in the
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, at
Stated Maturity or purchase upon Change in Control, and whether by declaration
of acceleration, Change in Control, call for purchase or otherwise (the
obligations in clauses (i) and (ii) hereof being the "Guaranteed
Obligations"). Without limiting the generality of the foregoing, each
Guarantor's liability shall extend to all amounts that constitute part of the
Guaranteed Obligations and would be owed by the Company to the Holders or the
Trustee under the Securities and the Indenture but for the fact that they are
unenforceable or not allowable due to the existence of a bankruptcy,
reorganization or similar proceeding involving the Company. The Guarantors
hereby agree that their obligations hereunder shall be absolute and
unconditional, irrespective of, and shall be unaffected by, any invalidity,
irregularity or unenforceability of any such Security or this Indenture, any
failure to enforce the provisions of any such Security or this Indenture, any
waiver, modification or indulgence granted to the Company with respect
thereto, by any Guaranteed Party or any other circumstances which may
otherwise constitute a legal or equitable discharge or defense of the Company
or a surety or guarantor. The Guarantors hereby waive diligence, presentment,
filing of claims with a court in the event of merger or bankruptcy of the
Company, any right to require a proceeding first against the Company, the
benefit of discussion, protest or notice with respect to any such Security or
the Indebtedness evidenced thereby and all demands whatsoever (except as
specified above), and covenant that this Guarantee will not be discharged as
to any such Security except by payment in full of the Guaranteed Obligations
and as provided in Sections 401, 1102 and 1207. Each Guarantor further agrees
that, as between such Guarantor and the Guaranteed Parties, (i) the maturity
of the Guaranteed Obligations may be accelerated as provided in Article Five
for the purposes of this Guarantee, notwithstanding any stay, injunction or
other prohibition preventing such acceleration in respect of the Guaranteed
Obligations, and (ii) in the event of any declaration of acceleration of such
Guaranteed Obligations as provided in Article Five, such Guaranteed
Obligations (whether or not due and payable) shall forthwith become due and
payable by each Guarantor for the purpose of this Guarantee. In addition,
without limiting the foregoing provisions, upon the effectiveness of an
acceleration under Article Five, the Trustee shall promptly make a demand for
payment on the Securities under each Guarantee provided for in this Article
Twelve and not discharged.
Each Guarantor hereby irrevocably waives any claim or other rights that
it may now or hereafter acquire against the Company that arise from the
existence, payment, performance or enforcement of such Guarantor's obligations
under this Indenture, or any other document or instrument including, without
limitation, any right of subrogation, reimbursement, exoneration,
contribution, indemnification, any right to participate in any claim or remedy
of the Guaranteed Parties 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 in any other manner,
payment or security on account of such claim or other rights. If any amount
shall be paid to any Guarantor in violation of the preceding sentence and the
Guaranteed Obligations shall not have been paid in full, such amount shall be
deemed to have been paid to such Guarantor for the benefit of, and held in
trust for the benefit of, the Guaranteed Parties, and shall forthwith be paid
to the Trustee. Each Guarantor acknowledges that it will receive direct and
indirect benefits from the issuance of the Securities and that the waiver set
forth in this paragraph is knowingly made in contemplation of such benefits.
SECTION 1202. Obligations of the Guarantors Unconditional.
Nothing contained in this Article Twelve, elsewhere in this Indenture
or in any Security or in the Guarantee is intended to or shall impair, as
between the Guarantors and the Holders, the obligation of the Guarantors,
which obligations are independent of the obligations of the Company under the
Securities and this Indenture and are absolute and unconditional, to pay to
the Holders the Guaranteed Obligations as and when the same shall become due
and payable in accordance with the provisions of this Guarantee and this
Indenture, or is intended to or shall affect the relative rights of the
Holders and creditors of the Guarantors, nor shall anything herein or therein
prevent the Trustee or any Holder from exercising all remedies otherwise
permitted by applicable law upon Default under this Indenture. Each payment
to be made by any Guarantor hereunder in respect of the Guaranteed Obligations
shall be payable in the currency or currencies in which such Guaranteed
Obligations are denominated.
SECTION 1203. Execution of Guarantee.
To evidence its obligations under this Article Twelve, each Guarantor
hereby agrees to execute a guarantee substantially in the form set forth in
Section 205 hereof, to be endorsed on each Security authenticated and
delivered by the Trustee and that this Indenture shall be executed on behalf
of the Guarantors by their respective Chairmen of the Board, Presidents or
Vice Presidents, under their corporate seals reproduced thereon attested by
their respective Secretaries or Assistant Secretaries. The signature of any
of these officers on the Securities may be manual or facsimile. Each
Guarantor hereby agrees that its Guarantee set forth in this Article Twelve
shall remain in full force and effect notwithstanding any failure to endorse
such Guarantee on any Security.
If an officer whose signature is on this Indenture no longer holds that
office at the time the Trustee authenticates a Security on which this
Guarantee is endorsed, the Guarantee shall be valid nevertheless.
SECTION 1204. Ranking of Guarantee.
Each Guarantor covenants and agrees, and each Holder of a Security by
his acceptance thereof likewise covenants and agrees, that each Guarantee will
be an unsecured senior obligation of the Guarantor issuing such Guarantee,
ranking pari passu in right of payment with all other existing and future
Guarantor Senior Indebtedness.
SECTION 1205. Withholding.
All payments made by a Guarantor with respect to the Guarantees will be
made without withholding or deduction for, or on account of, any present or
future taxes, duties, assessments or governmental charges of whatever nature
imposed or levied by or on behalf of Bermuda or any other country (other than
the United States) or any political subdivision thereof or any authority
therein or thereof, having power to tax, unless the withholding or deduction
of such taxes, duties, assessments or governmental charges is then required by
law. In the event that Bermuda or any other country (other than the United
States) or any political subdivision thereof or any authority therein or
thereof, imposes any such withholding or deduction on (i) any payments made by
a Guarantor with respect to the Guarantees or (ii) any net proceeds on the
sale to or exchange with any Guarantor of the Securities, such Guarantor will
pay such additional amounts (the "Additional Amounts") as may be necessary in
order that the net amounts received in respect of such payments or sale or
exchange by the Holders of the Securities or the Trustee, as the case may be,
after such withholding or deduction shall equal the respective amounts that
would have been received in respect of such payments or sale or exchange in
the absence of such withholding or deduction; except that no such Additional
Amounts shall be payable with respect to any Security held by or on behalf of
a holder who is liable for such taxes, duties, assessments or governmental
charges in respect of such Security by reason of his being a citizen or
resident of, or carrying on a business in, Bermuda or the country of residence
of any Guarantor. Notwithstanding the foregoing, a Guarantor making a payment
on the Securities pursuant to the Guarantee shall not be required to pay any
Additional Amounts if (i) the beneficial holder of a Security receives by
certified mail (evidenced by a return receipt signed by such beneficial
holder) (A) written notice from such Guarantor no less than 60 days in advance
of making such payment and (B) the appropriate forms or instructions necessary
to enable such beneficial holder to certify or document the availability of an
exemption from, or reduction of, the withholding or deduction of such taxes
under applicable law, which such instructions shall clearly specify that
Additional Amounts hereunder may not be paid if such forms are not completed
by such beneficial holder, and (ii) the Guarantor that would otherwise have to
pay such Additional Amounts establishes to the satisfaction of the Trustee
that the obligation to pay such Additional Amounts would not have arisen but
for the failure of such beneficial holder to (A) duly complete such forms as
were actually received by such beneficial holder or respond to such
instructions and (B) provide to such Guarantor such duly completed forms or
responses to instructions. Without prejudice to the survival of any other
agreement of the Guarantors hereunder, the agreements and obligations of the
Guarantors contained in this Section 1205 shall survive the payment in full of
the Guaranteed Obligations and all other amounts payable under this Guarantee.
SECTION 1206. Limitation of Subsidiary Guarantee.
The Company and each Guarantor, and each Holder of a Security by his
acceptance thereof, hereby confirm that it is the intention of all such
parties that any Guarantee of the Guaranteed Obligations executed by a
Subsidiary Guarantor not constitute a fraudulent transfer or conveyance for
purposes of the Federal Bankruptcy Code, the Uniform Fraudulent Conveyance Act
or any similar federal or state law. To effectuate the foregoing intention,
the Holders hereby irrevocably agree that in the event that any such Guarantee
would constitute or result in a violation of any applicable fraudulent
conveyance or similar law of any relevant jurisdiction, the liability of the
Subsidiary Guarantor under such Guarantee shall be reduced to the maximum
amount, after giving effect to all other contingent and fixed liabilities of
such Subsidiary Guarantor, permissible under the applicable fraudulent
conveyance or similar law.
SECTION 1207. Release of Guarantee.
(a) Concurrently with the payment in full of all of the Guaranteed
Obligations, the Guarantors shall be released from and relieved of their
obligations under this Article Twelve. Upon the delivery by the Company to
the Trustee of an Officers' Certificate and, if requested by the Trustee, an
Opinion of Counsel to the effect that the transaction giving rise to the
release of such obligations was made by the Company in accordance with the
provisions of this Indenture and the Securities, the Trustee shall execute any
documents reasonably required in order to evidence the release of the
Guarantors from their obligations. If any of the Guaranteed Obligations are
revived and reinstated after the termination of this Guarantee, then all of the
obligations of the Guarantors under this Guarantee shall be revived and
reinstated as if this Guarantee had not been terminated until such time as the
Guaranteed Obligations are paid in full, and the Guarantors shall enter into
an amendment to this Guarantee, reasonably satisfactory to the Trustee,
evidencing such revival and reinstatement.
(b) Upon (i) the sale or disposition of all of the Common Stock of a
Subsidiary Guarantor (by merger or otherwise) to a Person other than the
Company, ADT Limited or another Restricted Subsidiary and which sale or
disposition is otherwise in compliance with the terms of this Indenture, or
(ii) the unconditional and full release in writing of such Subsidiary Guarantor
from all Indebtedness (including, without limitation, Indebtedness under the
New Bank Credit Agreement, but excluding any Permitted Non-Guarantor
Indebtedness (other than Indebtedness specified in subparagraph (i) of the
definition of "Permitted Non-Guarantor Indebtedness" or any renewals,
extensions, substitutions or replacements thereof), such Subsidiary Guarantor
shall be deemed released from all obligations under this Article Twelve;
provided, however, that any such termination upon such sale or disposition
shall occur if and only to the extent that all obligations of such Subsidiary
Guarantor under all of its guarantees of, and under all of its pledges of
assets or other security interests which secure, Indebtedness of the Company,
ADT Limited or any Restricted Subsidiary shall also terminate upon such sale
or disposition. Upon the delivery by the Company to the Trustee of an
Officers' Certificate and, if requested by the Trustee, an Opinion of Counsel
to the effect that the transaction giving rise to the release of such
obligations was made in accordance with the provisions of this Indenture and
the Securities, the Trustee shall execute any documents reasonably required in
order to evidence the release of such Subsidiary Guarantor from its
obligations. Any Subsidiary Guarantor not so released remains liable for the
full amount of principal of and interest on the Securities as provided in this
Article Twelve.
This Indenture may be signed in any number of counterparts each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same Indenture.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
ADT OPERATIONS, INC.
[SEAL] By_____________________
Title:
Attest:____________________
Title:
ADT LIMITED
[SEAL] By____________________
Title:
Attest:____________________
Title:
ADT GENERAL HOLDINGS, INC.
[SEAL] By____________________
Title:
Attest:____________________
Title:
ADT SECURITY SERVICES, INC.
[SEAL] By____________________
Title:
Attest:____________________
Title:
ADT SECURITY SYSTEMS, WEST, INC.
[SEAL] By____________________
Title:
Attest:____________________
Title:
ADT AUTOMOTIVE HOLDINGS, INC.
[SEAL] By____________________
Title:
Attest:____________________
Title:
ADT AUTOMOTIVE, INC.
[SEAL] By____________________
Title:
Attest:____________________
Title:
AA PROPERTY HOLDINGS, INC.
[SEAL] By____________________
Title:
Attest:____________________
Title:
ADT INVESTMENTS, INC.
[SEAL] By____________________
Title:
Attest:____________________
Title:
AAAA DEALERS SERVICES INC.
[SEAL] By____________________
Title:
Attest:____________________
Title:
ADT BUSINESS HOLDINGS, INC.
[SEAL] By___________________
Title:
Attest:____________________
Title:
ADT PROPERTY HOLDINGS, INC.
[SEAL] By____________________
Title:
Attest:____________________
Title:
ADT SECURITY SYSTEMS
MANUFACTURING, INC.
[SEAL] By____________________
Title:
Attest:____________________
Title:
MID-ATLANTIC SECURITY, INC.
[SEAL] By____________________
Title:
Attest:____________________
Title:
ADT AUTOMOTIVE SERVICES, INC.
[SEAL] By____________________
Title:
Attest:____________________
Title:
AUCTION TRANSPORT, INC.
[SEAL] By____________________
Title:
Attest:____________________
Title:
BRITISH CAR AUCTIONS, INC.
[SEAL] By____________________
Title:
Attest:____________________
Title:
CCTC INTERNATIONAL, INC.
[SEAL] By____________________
Title:
Attest:____________________
Title:
ADT SPECIALTY AUCTIONS, INC.
[SEAL] By____________________
Title:
Attest:____________________
Title:
FLYING LION, INC.
[SEAL] By____________________
Title:
Attest:____________________
Title:
TRI-CITY AUTO AUCTION, INC.
[SEAL] By____________________
Title:
Attest:____________________
Title:
THE CHASE MANHATTAN BANK
[SEAL] By____________________
Title:
Attest:____________________
Title: