FORM F-4
Exhibit 4.1
EXHIBIT 4.1
EXECUTION COPY
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CP SHIPS LIMITED,
AS ISSUER
CP SHIPS (UK) LIMITED, ▇▇▇▇▇ LINES LIMITED,
LLC AND TMM LINES LIMITED, LLC,
AS SUBSIDIARY GUARANTORS
AND
THE BANK OF NEW YORK,
AS TRUSTEE
INDENTURE
Dated as of July 3, 2002
$200,000,000
10-3/8% Senior Notes due 2012
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TABLE OF CONTENTS
Page
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ARTICLE 1 DEFINITIONS AND INCORPORATION BY REFERENCE ..................................... 1
SECTION 1.01. Definitions ..............................................................1
SECTION 1.02. Other Definitions ......................................................26
SECTION 1.03. Incorporation by Reference of Trust Indenture Act........................27
SECTION 1.04. Rules of Construction ...................................................27
ARTICLE 2 THE NOTES.......................................................................28
SECTION 2.01. Form and Terms...........................................................28
SECTION 2.02. Execution and Authentication.............................................31
SECTION 2.03. Registrar, Security Register and Paying Agent............................31
SECTION 2.04. Denominations............................................................32
SECTION 2.05. Holder Lists and Registration Rights Agreements..........................32
SECTION 2.06. Transfer and Exchange....................................................32
SECTION 2.07. Replacement Notes........................................................36
SECTION 2.08. Outstanding Notes........................................................37
SECTION 2.09. Certificated Notes.......................................................37
SECTION 2.10. Cancellation.............................................................38
SECTION 2.11. Defaulted Interest.......................................................38
SECTION 2.12. Record Date..............................................................39
SECTION 2.13. Computation of Interest .................................................39
SECTION 2.14. CUSIP Numbers............................................................39
SECTION 2.15. Issuance of Additional Notes and Exchange Notes..........................40
ARTICLE 3 REDEMPTION; OFFERS TO PURCHASE ................................................40
SECTION 3.01. Notices to Trustee ......................................................40
SECTION 3.02. Selection of Notes to be Redeemed .......................................40
SECTION 3.03. Notice of Redemption ....................................................40
SECTION 3.04. Effect of Notice of Redemption ..........................................41
SECTION 3.05. Deposit of Redemption Price..............................................42
SECTION 3.06. Notes Redeemed in Part...................................................42
SECTION 3.07. Optional Redemption......................................................42
SECTION 3.08. Excess Proceeds Offer and Change of Control Offer .......................42
ARTICLE 4 COVENANTS ......................................................................46
SECTION 4.01. Payment of Notes .......................................................46
SECTION 4.02. Maintenance of Office or Agency ........................................46
SECTION 4.03. Money for Note Payments To Be Held in Trust ............................46
SECTION 4.04. Corporate Existence......................................................48
SECTION 4.05. Maintenance of Properties ...............................................48
SECTION 4.06. Insurance................................................................48
SECTION 4.07. Statement as to Compliance ..............................................48
SECTION 4.08. Reports to Holders ......................................................49
SECTION 4.09. Limitation on Debt.......................................................50
SECTION 4.10. Limitation on Restricted Payments .......................................54
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SECTION 4.11. Limitation on Sale of Certain Assets ................................... 57
SECTION 4.12. Limitation on Transactions with Affiliates ............................. 59
SECTION 4.13. Change of Control Triggering Event ..................................... 61
SECTION 4.14. Limitation on Liens......................................................61
SECTION 4.15. Additional Amounts.......................................................62
SECTION 4.16. Further Instruments and Acts.............................................63
SECTION 4.17. Designation of Unrestricted and Restricted Subsidiaries .................64
SECTION 4.18. Limitation on Issuances and Sales of Capital Stock of Restricted
Subsidiaries ........................................................... 66
SECTION 4.19. Limitation on Sale and Leaseback Transactions ..........................66
SECTION 4.20. Limitation on Guarantees of Debt by Restricted Subsidiaries..............67
SECTION 4.21. Limitation on Dividends and Other Payment Restrictions Affecting
Restricted Subsidiaries..................................................68
ARTICLE 5 SUCCESSOR COMPANY...............................................................71
SECTION 5.01. Consolidation, Merger or Sale of Assets .................................71
ARTICLE 6 DEFAULTS AND REMEDIES ..........................................................74
SECTION 6.01. Events of Default .......................................................74
SECTION 6.02. Acceleration ............................................................76
SECTION 6.03. Other Remedies...........................................................77
SECTION 6.04. Waiver of Past Defaults .................................................77
SECTION 6.05. Control by Majority .....................................................77
SECTION 6.06. Limitation on Suits......................................................78
SECTION 6.07. Rights of Holders To Receive Payment.....................................78
SECTION 6.08. Collection Suit by Trustee ..............................................78
SECTION 6.09. Trustee May File Proofs of Claim ........................................78
SECTION 6.10. Priorities...............................................................79
SECTION 6.11. Undertaking for Costs....................................................79
SECTION 6.12. Reservation of Rights and Remedies.......................................79
SECTION 6.13. Rights and Remedies Cumulative...........................................79
SECTION 6.14. Delay or Omission not Waiver.............................................80
ARTICLE 7 TRUSTEE.........................................................................80
SECTION 7.01. Duties of Trustee........................................................80
SECTION 7.02. Rights of Trustee .......................................................81
SECTION 7.03. Individual Rights of Trustee.............................................82
SECTION 7.04. Trustee's Disclaimer ....................................................82
SECTION 7.05. Notice of Defaults ......................................................82
SECTION 7:06. Reports by Trustee to Holders ...........................................83
SECTION 7.07. Compensation and Indemnity ..............................................83
SECTION 7.08. Replacement of Trustee ..................................................83
SECTION 7.09. Successor Trustee by Merger..............................................84
SECTION 7.10. Eligibility: Disqualification............................................85
SECTION 7.11. Preferential Collection of Claims Against Guarantor......................85
SECTION 7.12. Appointment of Co-Trustee................................................85
ARTICLE 8 DISCHARGE OF INDENTURE; DEFEASANCE .............................................86
SECTION 8.01. Discharge of Liability on Notes; Defeasance..............................86
SECTION 8.02. Conditions to Defeasance ................................................87
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SECTION 8.03. Application of Trust Money...............................................89
SECTION 8.04. Repayment to Guarantor...................................................89
SECTION 8.05. Indemnity for Government Securities .....................................89
SECTION 8.06. Reinstatement ...........................................................90
ARTICLE 9 AMENDMENTS......................................................................90
SECTION 9.01. Without Consent of Holders...............................................90
SECTION 9.02. With Consent of Holders..................................................91
SECTION 9.03. Compliance with Trust Indenture Act......................................92
SECTION 9.04. Revocation and Effect of Consents and Waivers............................92
SECTION 9.05. Notation on or Exchange of Notes.........................................93
SECTION 9.06. Trustee Protected........................................................93
SECTION 9.07. Payment for Consent .....................................................93
ARTICLE 10 GUARANTEES.....................................................................94
SECTION 10.01. Notes Guarantee .........................................................94
SECTION 10.02. Subrogation..............................................................95
SECTION 10.03. Limitation of Guarantee .................................................95
SECTION 10.04. Notation Not Required....................................................95
SECTION 10.05. Successors and Assigns ..................................................95
SECTION 10.06. No Waiver................................................................95
SECTION 10.07. Modification ............................................................96
ARTICLE 11 HOLDERS' MEETINGS..............................................................96
SECTION 11.01. Purposes of Meetings.....................................................96
SECTION 11.02. Place of Meetings .......................................................96
SECTION 11.03. Call and Notice of Meetings .............................................96
SECTION 11.04. Voting at Meetings ......................................................97
SECTION 11.05. Voting Rights, Conduct and Adjournment ................................. 97
SECTION 11.06. Revocation of Consent by Holders.........................................97
ARTICLE 12 MISCELLANEOUS .................................................................98
SECTION 12.01. Trust Indenture Act Controls.............................................98
SECTION 12.02. Notices..................................................................98
SECTION 12.03. Communication by Holders with Other Holders.............................100
SECTION 12.04. Certificate and Opinion as to Conditions Precedent......................100
SECTION 12.05. Statements Required in Certificate or Opinion...........................100
SECTION 12.06. Rules by Trustee, Paying Agent and Registrar ...........................100
SECTION 12.07. Legal Holidays ........................................................100
SECTION 12.08. Governing Law .........................................................101
SECTION 12.09. Jurisdiction ..........................................................101
SECTION 12.10. No Recourse Against Others .............................................101
SECTION 12.11. Successors .............................................................102
SECTION 12.12. Multiple Originals ....................................................102
SECTION 12.13. Table of Contents, Cross-Reference Sheet and Headings ..................102
SECTION 12.14. Severability ...........................................................102
SECTION 12.15. Acts of Holders ........................................................102
SECTION 12.16. Currency Indemnity .....................................................103
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Exhibits
Exhibit A - Form of Original Notes
Exhibit B - Form of Exchange Notes
Exhibit C - Form of Transfer Certificate for Transfer from Restricted
Global Note to Regulation S Global Note
Exhibit D - Form of Transfer Certificate for Transfer from Regulation S
Global Note to Restricted Global Note
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INDENTURE dated as at July 3, 2002 among CP Ships Limited, a company
incorporated under the laws of the Province of New Brunswick, Canada (the
"Issuer"), the Issuer's indirect wholly owned subsidiaries CP Ships (UK)
Limited, a company incorporated under the laws of England, ▇▇▇▇▇ Lines Limited,
LLC, a limited liability company formed under the laws of Delaware, U.S.A., TMM
Lines Limited, LLC, a limited liability company formed under the laws of
Delaware, U.S.A., (collectively, the "Subsidiary Guarantors"), and The Bank of
New York, a New York banking corporation (the "Trustee").
Each party agrees as follows for the benefit of the other party and for the
equal and ratable benefit of the Holders of (i) the Issuer's 10-3/8% Senior
Notes due 2012 issued on the date hereof (the "Original Notes"), (ii) any
Additional Notes (as defined herein) that may be issued on any other Issue Date
(as defined herein) and (iii) if and when issued as provided in the Registration
Rights Agreement (as defined herein), the Issuer's 10-3/8% Senior Notes due 2012
issued pursuant to the Registration Rights Agreement in exchange for any
Original Notes or Additional Notes (the "Exchange Notes", and together with the
Original Notes and any Additional Notes, the "Notes").
RECITALS OF THE ISSUER AND THE SUBSIDIARY GUARANTORS
----------------------------------------------------
The Issuer has duly authorized the execution and delivery of this Indenture
to provide for the issuance of $200,000,000 principal amount of 10-3/8% Senior
Notes due 2012 as well as the Exchange Notes and any Additional Notes issuable
as provided in this Indenture. Each of the Subsidiary Guarantors has duly
authorized the execution and delivery of this Indenture to provide for the
issuance of its Guarantee (as defined herein). Each of the Subsidiary Guarantors
has received good and valuable consideration for its execution and delivery of
this Indenture and its Guarantee. All things necessary to make this Indenture a
valid agreement of the Issuer and the Subsidiary Guarantors, in accordance with
its terms, have been done, and the Issuer and the Subsidiary Guarantors have
done all things necessary to make the Original Notes, when executed by the
Issuer and authenticated and delivered by the Trustee hereunder and duly issued
by the Issuer, the valid obligations of the Issuer as hereinafter provided.
Upon the issuance of the Exchange Notes, if any, or effectiveness of the
Registration Statements (as defined herein), this Indenture will be subject to,
and governed by, the provisions of the TIA (as defined herein) that are required
to be a part of and govern indentures qualified under the TIA.
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions.
"Acquired Debt" means Debt of a Person (a) existing at the time such Person
becomes a Restricted Subsidiary or is merged into or consolidated with the
Issuer or any of its Restricted Subsidiaries or (b) assumed in connection with
the acquisition of assets from such Person.
Acquired Debt shall be deemed to he incurred on the date the acquired
Person becomes a Restricted Subsidiary or the date of the related acquisition of
assets from any Person.
"Additional Amounts" has the meaning set forth in Section 4.15.
"Additional Assets" means (a) any Property (other than cash, Cash
Equivalents and securities) to be owned by the Issuer or any Restricted
Subsidiary and used in the Issuer's business or the business of its Restricted
Subsidiaries; or (b) Capital Stock of a Person that is engaged in a business
that is similar or related to the Issuer's business or the business of its
Restricted Subsidiaries that becomes a Restricted Subsidiary as a result of the
acquisition of such Capital Stock by the Issuer or another Restricted Subsidiary
from any Person other than the Issuer.
"Affiliate" means, with respect to any specified Person, (a) any other
Person directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person, (b) any other Person that
owns, directly or indirectly, 10% or more of such specified Person's Capital
Stock or any officer or director of any such specified Person or other Person
or, with respect to any natural Person, any Person having a relationship with
such Person by blood, marriage or adoption not more remote than first cousin or,
(c) any other Person 10% or more of the Voting Stock of which is beneficially
owned or held, directly or indirectly by such specified Person.
For the purposes of this definition, "control," when used with respect to
any specified Person', means the power to direct or cause the direction of 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," "controlled" have meanings correlative to the foregoing.
"Asset Sale" means any sale, issuance, conveyance, transfer, lease or other
disposition (including, without limitation, by way of merger, consolidation or
sale and leaseback transaction) (collectively, a "transfer"), directly or
indirectly, in one or a series of related transactions, of (a) any Capital Stock
of any Restricted Subsidiary, (b) all or substantially all of the Issuer's
properties and assets of any division or line of business of the Issuer or any
Restricted Subsidiary, or (c) any other of the Issuer's or any Restricted
Subsidiary's properties or assets, other than in the ordinary course of
business..
For the purposes of this definition, the term "Asset Sale" does not include
any transfer of properties or assets (i) that is governed by the provisions of
this Indenture described under Article 5, (ii) by the Issuer to any Wholly Owned
Restricted Subsidiary, or by any Restricted Subsidiary to the Issuer or any
Wholly Owned Restricted Subsidiary in accordance with the terms of this
Indenture, (iii) representing obsolete or permanently retired ships, equipment
and facilities that are no longer useful in the conduct of Issuer's and any
Restricted Subsidiary's business and that is disposed of in the ordinary course
of business, (iv) an Asset Swap effected in compliance with Section 4.11
(Limitation on Sale of
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Certain Assets), (v) sales of Receivables and Related Assets in a Permitted
Receivables Financing for the Fair Market Value thereof, including cash or Cash
Equivalents in an amount at least equal to 75% of the Fair Market Value thereof,
(vi) for purposes of Section 4.11 (Limitation on Sale of Certain Assets), the
Fair Market Value of which in the aggregate does not exceed $2 million in any
transaction or series of related transactions.
"Asset Swap" means the concurrent purchase and sale or exchange of Related
Business Assets between the Issuer or any of its Restricted Subsidiaries and
another Person (other than a sale, disposition or transfer that is governed by
the provisions of this Indenture described under Article 5.
"Attributable Debt" means, with respect to any lease at the time of
determination, the present value (discounted at the interest rate implicit in
the lease determined in accordance with GAAP or, if not known, at the rate of
interest payable in respect of the Notes) of the obligations of the lessee of
the property subject to such lease 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 from such rental payments all amounts
required to be paid on account of maintenance and repairs, ship operating
expenses, insurance, taxes, assessments, water, utilities and similar charges.
"Average Life" means, as of the date of determination with respect to any
Debt, the quotient obtained by dividing (a) the sum of the products of (i) the
number of years (rounded to the nearest one-twelfth of one year) from the date
of determination to the date or dates of each successive scheduled principal
payment of such Debt multiplied by (ii) the amount of each such principal
payment by (b) the sum of all such principal payments.
"Bankruptcy Law" means any law relating to bankruptcy, insolvency,
receivership, winding-up, liquidation, reorganisation or relief of debtors or
any amendment to, succession to or change in any such law, including without
limitation the Canadian Bankruptcy and Insolvency Act (R.S.C., 1985, c.B-3), the
UK Insolvency ▇▇▇ ▇▇▇▇, as amended, and ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ Bankruptcy Code
of 1978, as amended.
"Business Day" means any day (other than a Saturday or Sunday) which is not
a day on which banking institutions in the cities of Toronto, Ontario; London,
England; or New York, New York are authorized or obligated by law to close. for
business.
"Capital Stock" means, with respect to any Person, any and all shares,
interests, partnership interests (whether general or limited), participations,
rights in or other equivalents (however designated) of such Person's equity, any
other interest or participation that confers the right to receive a share of the
profits and losses, or distributions of assets of, such Person and any rights
(other than debt securities convertible into or exchangeable for Capital Stock),
warrants or options exchangeable for or convertible into such Capital Stock,
whether now outstanding or issued after the date of this indenture.
"Capitalised Lease Obligation" means, with respect to any Person, any
obligation of such Person under a lease of (or other agreement conveying the
right to use) any property (whether real, personal or mixed), which obligation
is required to be classified and accounted for as a capital lease obligation
under GAAP, and, for purposes of this Indenture, the amount of such obligation
at any date will be the capitalised amount thereof at such date, determined in
accordance with GAAP and the Stated Maturity thereof will be the date of the
last payment
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of rent or any other amount due under such lease prior to the first date such
lease may be terminated without penalty.
"Cash Equivalents" means any of the following:
(a) any evidence of Debt denominated in dollars, pounds sterling, Euro,
Australian dollars, Hong Kong dollars or Canadian Dollars with a maturity
of 180 days or less from the date of acquisition issued or directly and
fully guaranteed or insured by Australia, Canada, Hong Kong, any member
state of the European Union as of the date of this Indenture, Switzerland,
the United States of America, any state thereof or the District of
Columbia, or any agency or instrumentality thereof (each, an "Approved
Jurisdiction");
(b) time deposit accounts, certificates of deposit, money market deposits
or bankers' acceptances denominated in dollars, pounds sterling, Euro,
Australian dollars, Hong Kong dollars or Canadian Dollars with a maturity
of 180 days or less from the date of acquisition of a bank or trust company
organised in Australia, Canada, Hong Kong, any member state of the European
Union as of the date of this Indenture, Switzerland or any commercial
banking institution that is a member of the U.S. Federal Reserve System, in
each case having combined capital and surplus and undivided profits of not
less than $500 million, whose debt has a rating, at the time as any
investment is made therein of at least A by S&P and at least A2 by ▇▇▇▇▇'▇;
(c) commercial paper with a maturity of 365 days or less from the date of
acquisition issued by a corporation that is not the Issuer's or any
Restricted Subsidiary's Affiliate and is organised under the laws of any
Approved Jurisdiction and, at the time the investment is made, rated at
least A-1 by S&P or at least P-1 by ▇▇▇▇▇'▇;
(d) repurchase obligations with a term of not more than 7 days for
underlying securities of the type described in (a) above entered into with
a financial institution meeting the qualifications described in clause (b)
above; and
(e) Investments in money market mutual funds at least 95% of the assets of
which constitute Cash Equivalents of the kind described in clauses (a)
through (d) above.
"Change of Control Triggering Event" means the occurrence of (a) any of the
following events and (b) a Rating Decline:
(1) any "person" or "group" (as such terms are used in Sections 13(d) and
14(d) of the Exchange Act) is or becomes the "beneficial owner" (as
defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly or
indirectly, of more than 50% of the voting power of the Issuer's
outstanding Voting Stock;
(2) if (a) the Issuer consummates any transaction (including, without
limitation, any merger, consolidation, amalgamation or other
combination) pursuant to which the Issuer's outstanding Voting Stock
is converted into or exchanged for cash, securities or other property,
or (b) the Issuer conveys, transfers, leases or otherwise disposes of,
or any resolution with respect to a demerger or division is passed by
the Issuer's shareholders pursuant to which the Issuer would dispose
of, all or substantially all of
4
its assets and those of its Restricted Subsidiaries, considered as a
whole (other than a transfer of substantially all of such assets to
one or more Wholly Owned Subsidiaries), in each case to any Person
other than in a transaction:
(i) where the Issuer's outstanding Voting Stock is not converted
or exchanged at all (except to the extent necessary to
reflect a change in the jurisdiction of the Issuer's
incorporation) or is converted into or exchanged for Voting
Stock (other than Redeemable Capital Stock) of the surviving
or transferee corporation; and
(ii) where the Voting Stock of the surviving or transferee
corporation is and is expected to continue to be listed on a
stock exchange or automated quotation system and publicly
traded, no "person" or "group" (as such terms are used in
Sections 13(d) and 14(d) of the Exchange Act), a Person is
the "beneficial owner" (as defined in Rules 13d-3 and 13d-5
under the Exchange Act), directly or indirectly, of more
than 50% of the total outstanding Voting Stock of the
surviving or transferee corporation; or
(3) during any consecutive two year period following the date of this
Indenture, individuals who at the beginning of such period constituted
the Issuer's board of directors (together with any new directors whose
election to such board of directors, or whose nomination for election
by the Issuer's shareholders, was approved by a vote of 66-2/3% of the
directors then still in office who were either directors at the
beginning of such period or whose election or nomination for election
was previously so approved) cease for any reason to constitute a
majority of the Issuer's board of directors then in office.
"Code" means the United States Internal Revenue Code of 1986, as amended.
"Commission " means the U.S. Securities and Exchange Commission.
"Consolidated Adjusted Net Income" means, for any period, the Issuer's and
its Restricted Subsidiaries' consolidated net income (or loss) for such period
as determined in accordance with GAAP, adjusted by excluding (to the extent
included in such consolidated net income or loss), without duplication:
(a) any net after-tax extraordinary gains or losses;
(b) any net after-tax gains or losses attributable to asset sales
other than in the ordinary course of business;
(c) the portion of net income or loss of any Person (other than the
Issuer or a Restricted Subsidiary), including Unrestricted
Subsidiaries, in which the Issuer or any Restricted Subsidiary has an
ownership interest, except to the extent of the amount of dividends or
other distributions actually paid to the Issuer or any Restricted
Subsidiary in cash dividends or distributions during such period;
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(d) the net income (but not the net loss) of any Restricted Subsidiary
to the extent that the declaration or payment of dividends,
intercompany loans or similar distributions by such Restricted
Subsidiary is not at the date of determination permitted, directly or
indirectly, by operation of the terms of its charter or any agreement,
instrument, judgment, decree, order, statute, rule or governmental
regulation applicable to such Restricted Subsidiary or its
shareholders;
(e) net after-tax gains or losses attributable to the termination of
any employee pension benefit plan;
(f) any restoration to net income of any contingency reserve, except
to the extent provision for such reserve was made out of income
accrued at any time following the date of this Indenture;
(g) any net gain arising from the acquisition of any securities or
extinguishment, under GAAP, of any Debt of such Person;
(h) the net income (or loss) attributable to discontinued operations
(including, without limitation, operations disposed of during such
period whether or not such operations were classified as
discontinued), except that any such net toss may only be excluded only
after the date of the actual disposal of such operations;
(i) any gains (but not losses) from currency exchange transactions not
in the ordinary course of business; and
(l) for the financial year ended December 31st, 2001, cash charges
listed under the headings "Spin-off related items" and "Unusual
charges" in the Issuer's Consolidated Statement of Income and Retained
Earnings for such financial year.
"Consolidated Current Liabilities" as of the date of determination means
the aggregate amount of liabilities of the Issuer and the Issuer's Restricted
Subsidiaries that may properly be classified as current liabilities (including
taxes accrued as estimated), on a consolidated basis, after eliminating (i) all
intercompany items between the Issuer and any Restricted Subsidiary and (ii) all
current maturities of long-term Debt, all as determined in accordance with GAAP
consistently applied.
"Consolidated Fixed Charge Coverage Ratio" of the Issuer means, for any
period, the ratio of
(a) the sum of Consolidated Adjusted Net Income, plus in each case to
the extent deducted in computing Consolidated Adjusted Net Income for
such period, (i) Consolidated Interest Expense, (ii) Consolidated Tax
Expense, and (iii) Consolidated Non-cash Charges, less all noncash
items increasing Consolidated Adjusted Net Income for such period and
less all cash payments during such period relating to noncash charges
that were added back to Consolidated Adjusted Net Income in
determining the Consolidated Fixed Charge Coverage Ratio in any prior
period;
(b) to the sum of (i) Consolidated Interest Expense and (ii) cash and
non-cash dividends due (whether or not declared) on the Issuer's and
any Restricted
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Subsidiary's Preferred Stock (to any person other than the Issuer and
any Wholly Owned Restricted Subsidiary), in each case for such period;
provided, that:
(w) if the Issuer or any Restricted Subsidiary has incurred any Debt
since the beginning of such period that remains outstanding or if
the transaction giving rise to the need to calculate the
Consolidated Fixed Charge Coverage Ratio is an incurrence of Debt
or both, Consolidated Adjusted Net Income and Consolidated
Interest Expense for such period shall be calculated after giving
effect on a pro forma basis to such Debt as if such Debt had been
incurred on the first day of such period and the discharge of any
other Debt repaid, repurchased, defeased or otherwise discharged
with the proceeds of such new Debt as if such discharge had
occurred on the first day of such period;
(x) if, since the beginning of such period, the Issuer or any
Restricted Subsidiary shall have made any Asset Sale,
Consolidated Adjusted Net Income for such period shall be reduced
by an amount equal to Consolidated Adjusted Net Income (if
positive) directly attributable to the assets which are the
subject of such Asset Sale for such period, or increased by an
amount equal to Consolidated Adjusted Net Income (if negative)
directly attributable thereto for such period and Consolidated
Interest Expense for such period shall be reduced by an amount
equal to Consolidated Interest Expenses directly attributable to
any Debt of the Issuer or any Restricted Subsidiary repaid,
repurchased, defeased or otherwise discharged with respect to the
Issuer and the continuing Restricted Subsidiaries in connection
with such Asset Sale for such period (or, if the Capital Stock of
any Restricted Subsidiary is sold, Consolidated Interest Expense
for such period directly attributable to the Debt of such
Restricted Subsidiary to the extent the Issuer and the continuing
Restricted Subsidiaries are no longer liable for such Debt after
such sale);
(y) if since the beginning of such period the Issuer or any
Restricted Subsidiary (by merger or otherwise) shall have made an
Investment in any Restricted Subsidiary (or any Person which
becomes a Restricted Subsidiary) or acquisition of assets,
including any acquisition of an asset occurring in connection
with a transaction causing a calculation to be made hereunder,
which constitutes all or substantially all of an operating unit
of a business, Consolidated Adjusted Net Income and Consolidated
Interest Expense for such period shall be calculated after giving
pro forma effect thereto (including the incurrence of any Debt)
as if such investment or acquisition occurred on the first day of
such period; and
(z) if since the beginning of such period any Person (that
subsequently became a Restricted Subsidiary or was merged with or
into the Issuer or any Restricted Subsidiary since the beginning
of such period) shall have made any Asset Sale or any Investment
that would have required an adjustment pursuant to clause (y) or
(y) if made by the Issuer or a Restricted Subsidiary during such
period, Consolidated Adjusted Net Income and Consolidated
Interest Expenses for
7
such period shall be calculated after giving pro forma effect
thereto as if such Asset Sale or Investment occurred on the first
day of such period.
If any Debt bears a floating rate of interest and is being given pro forma
effect, the interest expense on such Debt shall be calculated as if the rate in
effect on the date of determination had been the applicable rate for the entire
period (taking into account any Interest Rate Agreement applicable to such Debt
for a period equal to the remaining term of such Interest Rate Agreement).
"Consolidated Interest Expense" means, for any period, without
duplication and in each case determined on a consolidated basis in accordance
with GAAP, the sum of:
(a) the Issuer's and its Restricted Subsidiaries' interest expense for
such period, including, without limitation, (i) amortisation of debt
discount, (ii) the net cost of Interest Rate Agreements and Currency
Agreements (including amortisation of discounts), (iii) commissions,
discounts and other fees and charges owed with respect to letters of
credit and bankers acceptance financing and similar transactions, (iv)
the interest portion of any deferred payment obligation and
amortisation of debt issuance costs; plus
(b) the interest component of the Issuer's and its Restricted
Subsidiaries' Capitalized Lease Obligations accrued and/or scheduled
to be paid or accrued during such period which, for the avoidance of
doubt, shall not include time charters or bareboat charters, plus
(c) the Issuer's and its Restricted Subsidiaries' non-cash interest
and interest that was capitalized during such period; plus
(d) the interest on Debt of another Person that is guaranteed by the
Issuer or any Restricted Subsidiary or secured by a Lien on the
Issuer's or any Restricted Subsidiary's assets, whether or not such
interest is paid by the Issuer or such Restricted Subsidiary.
"Consolidated Net Worth" means, at any date, the Issuer's and its
Restricted Subsidiaries' shareholders' equity as set forth on the Issuer's and
its Restricted Subsidiaries' most recently available quarterly or annual
consolidated balance sheet, less the amount of such shareholders' equity
attributable to Redeemable Capital Stock or any equity security convertible or
exchangeable for Debt, the cost of the Issuer's and any Restricted Subsidiary's
treasury stock, the principal amount of any promissory notes receivable from the
sale of the Issuer's and any Restricted Subsidiary's Capital Stock and less, to
the extent included in calculating such shareholders' equity, the amount
attributable to Unrestricted Subsidiaries, in each case as determined on a
consolidated basis in accordance with GAAP.
"Consolidated Non-cash Charges " means, for any period, the aggregate
depreciation, amortisation and other non-cash expenses of the Issuer and its
Restricted Subsidiaries for such period, determined on a consolidated basis in
accordance with GAAP (excluding any such non-cash charge that requires an
accrual of or reserve or provision for cash charges for any future period).
8
"Consolidated Tax Expense" means. for any period with respect to any
Relevant Taxing Jurisdiction, the provision for federal, state, local and
foreign income taxes of the Issuer and its Restricted Subsidiaries for such
period as determined on a consolidated basis 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 ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Global Finance Unit,
or such other address as the Trustee may designate from time to time by notice
to the Holders and the Issuer, or the principal corporate trust office of any
successor Trustee (or such other address as such successor Trustee may designate
from time to time by notice to the Holders and the Issuer).
"Credit Facility" or "Credit Facilities" means, with respect to the
Subsidiary Guarantors and the Restricted Subsidiaries, one or more debt
facilities, as the case may be, (including the Revolving Credit Facilities) or
commercial paper facilities with banks, insurance companies or other
institutional lenders providing for revolving credit loans, term loans, Notes,
letters of credit or other forms of guarantees and assurances or other credit
facilities, including overdrafts, in each case, as amended, restated, modified,
renewed, refunded, replaced or refinanced in whole or in part from time to time,
provided that such debt or commercial paper facilities may not provide for or
consist of the borrowing or issuance of any Public Debt; and provided further,
that no such amendment, restatement, modification, renewal, refund, replacement
or refinancing may consist of or provide for the borrowing or issuance of Public
Debt.
"Currency Agreements" means any spot or forward foreign exchange agreements
and currency swap, currency option or other similar financial agreements or
arrangements designed to protect against or manage exposure to fluctuations in
foreign currency exchange rates.
"Custodian" means any receiver, trustee, assignee, liquidator, custodian,
administrator or similar official under any Bankruptcy Law.
"Debt" means, with respect to any Person, without duplication:
(a) all liabilities of such Person for borrowed money (including
overdrafts) or for the deferred purchase price of property or
services, excluding any trade payables and other accrued current
liabilities incurred in the ordinary course of business;
(b) all obligations of such Person evidenced by bonds, Notes,
debentures or other similar instruments;
(c) all obligations, contingent or otherwise, of such Person in
connection with any letters of credit, bankers' acceptances or other
similar facilities;
(d) all indebtedness of such Person created or arising under any
conditional sale or other title retention agreement with respect to
property acquired by such Person (even if the rights and remedies of
the seller or lender under such agreement in the
9
event of default are limited to repossession or sale of such
property), but excluding trade payables arising in the ordinary course
of business;
(e) all Capitalised Lease Obligations of such Person;
(f) all obligations of such Person under or in respect of Interest
Rate Agreements, Currency Agreements or Fuel Hedging Agreements;
(g) all Debt referred to in (but not excluded from) the preceding
clauses (a) through (f) of other Persons and all dividends of other
Persons, the payment of which is secured by (or for which the Holder
of such Debt has an existing right, contingent or otherwise, to be
secured by) any Lien upon or with respect to property (including,
without limitation, accounts and contract rights) owned by such
Person, even though such Person has not assumed or become liable for
the payment of such Debt (the amount of such obligation being deemed
to be the lesser of the fair market value of such property or asset or
the amount of the obligation so secured);
(h) all guarantees by such Person of Debt referred to in this
definition of any other Person;
(i) all Redeemable Capital Stock of such Person valued at the greater
of its voluntary or involuntary maximum fixed repurchase price plus
accrued and unpaid dividends; and
(j) Preferred Stock of any Restricted Subsidiary;
provided that the term "Debt" shall not include (i) non-interest bearing
installment obligations and accrued liabilities incurred in the ordinary
course of business which are not more than 90 days past due; (ii) Debt in
respect of the incurrence by the Issuer or any Restricted Subsidiary of
Debt in respect of standby letters of credit, performance bonds or surety
bonds provided by the Issuer or any Restricted Subsidiary in the ordinary
course of business to the extent such letters of credit or bonds are not
drawn upon or, if and to the extent drawn upon are honoured in accordance
with their terms and if, to be reimbursed, are reimbursed no later than the
fifth business day following receipt by such Person of a demand for
reimbursement following payment on the letter of credit or bond; (iii)
anything accounted for as an operating lease in accordance with GAAP as at
the date of this Indenture; and (iv) Debt incurred by the Issuer or one of
its Restricted Subsidiaries in connection with a transaction where (x) such
Debt is borrowed from a bank or trust company organized in Australia,
Canada, Hung Kung, any member state of the European Union as of the date of
this Indenture, Switzerland or any commercial banking institution that is a
member of the U.S. Federal Reserve System, in each case having a combined
capital and surplus and undivided profits of not less than $500 million,
whose debt has a rating immediately prior to the time such transaction is
entered into of at least A by S&P and A2 by Moody's and (y) a substantially
concurrent Investment is made by the Issuer or one of its Restricted
Subsidiaries in the form of cash deposited with the lender of such Debt, or
a Subsidiary or affiliate thereof, in amount equal to such Debt.
For purposes of this definition, the "maximum fixed repurchase price" of
any Redeemable Capital Stock that does not have a fixed redemption,
repayment or repurchase price will be
10
calculated in accordance with the terms of such Redeemable Capital Stock as
if such Redeemable Capital Stock were purchased on any date on which Debt
will be required to be determined pursuant to this Indenture, and if such
price is based upon, or measured by, the fair market value of such
Redeemable Capital Stock, such fair market value will be determined in good
faith by the board of directors of the issuer of such Redeemable Capital
Stock; provided, that if such Redeemable Capital Stock is not then
permitted to be redeemed, repaid or repurchased, the redemption, repayment
or repurchase price shall be the book value of such Redeemable Capital
Stock as reflected in the most recent financial statements of such Person.
"Default" means any event that is, or after notice or passage of time or
both would be, an Event of Default.
"Depositary" means DTC until a successor Depositary, if any, shall have
become such pursuant to this Indenture, and thereafter Depositary shall mean or
include each Person who is then a Depositary hereunder.
"Disinterested Director" means, with respect to any transaction or series
of related transactions, a member of the Issuer's board of directors who does
not have any material direct or indirect financial interest in or wish respect
to such transaction or series of related transactions or is not an Affiliate, or
an officer, director or employee of any Person (other than the Issuer) who has
any direct or indirect financial interest in or with respect to such transaction
or series of related transactions.
"U.S. dollars", "dollars" or "$" means the lawful currency of the United
States of America.
"Dollar Equivalent" means with respect to any monetary amount in a currency
other than U.S. dollars, at any time for the determination thereof, the amount
of U.S. dollars obtained by converting such foreign currency involved in such
computation into U.S. dollars at the spot rate for the purchase of U.S. dollars
with the applicable foreign currency as published in The Wall Street Journal in
the "Exchange Rates" column under the heading "Currency Trading" on the date two
Business Days prior to such determination. "DTC" means The Depositary Trust
Company.
"Event of Default" has the meaning set forth in Section 6.01.
"Exchange Act" means the U.S. Securities Exchange Act of 1934, as amended,
or any successor statute, and the rules and regulations promulgated by the
Commission thereunder.
"Exchange Notes " has the meaning set forth in the first recital to this
Indenture,
"Exchange Offer Registration Statement" means the Exchange Offer
Registration Statement as defined in the Registration Rights Agreement.
"Fair Market Value" means, with respect to any asset or property, the sale
value that would be obtained in an arm's-length free market transaction between
an informed and willing seller under no compulsion to sell and an informed and
willing buyer under no compulsion to buy, as determined in good faith by the
Issuer's board of directors.
11
"Fuel Hedging Agreements" means any spot, forward or option fuel price
protection agreements and other types of fuel hedging agreements designed to
protect against or manage exposure to fluctuations in fuel prices.
"Generally Accepted Accounting Principles" or "GAAP" means generally
accepted accounting principles in Canada, consistently applied, which are in
effect from time to time.
"guarantees" means, as applied to any obligation,
(a) a guarantee (other than by endorsement of negotiable instruments for
collection in the ordinary course of business), direct or indirect, in any
manner, of any part or all of such obligation and
(b) an agreement, direct or indirect, contingent or otherwise, the
practical effect of which is to assure in any way the payment or
performance (or payment of damages in the event of non-performance) of all
or any part of such obligation, including, without limiting the foregoing,
by the pledge of assets and the payment of amounts drawn down under letters
of credit.
"Guarantee" means any guarantee of the Issuer's obligations under this
Indenture and the Notes by any Restricted Subsidiary in accordance with the
provisions of this Indenture, including the Guarantees by the Subsidiary
Guarantors set forth in Article 10 of and dated as of the date of this
Indenture. When used as a verb, "Guarantee" shall have a corresponding meaning.
"Holder" means the Person in whose name a Note is registered on the
Registrar's books.
"Indenture" means this instrument as originally executed or 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, including, for
all purposes of this instrument and any such supplemental indenture following
the effectiveness of a registration statement under the Securities Act covering
the Notes, the provisions of the TIA that will thereafter be deemed to be a part
of and govern this instrument, and any such supplemental indenture,
respectively.
"Initial Purchasers" means ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated and ▇▇▇▇▇▇▇
▇▇▇▇▇ Barney Inc.
"Insolvency Proceeding" means any proceedings or steps for:
(a) the bankruptcy, insolvency, liquidation, dissolution, winding-up,
administration, receivership, or corporate re-organisation of any company;
or
(b) for the appointment of a trustee in bankruptcy, or insolvency
conciliator, ad hoc official, administrator, a liquidator or other similar
officer of any company; or
(c) any other similar process or appointment.
12
"Interest Payment Date" means the Stated Maturity of an installment of
interest on the Notes.
"Interest Rate Agreements" means any interest rate protection agreements
and other types of interest rate hedging agreements (including, without
limitation, interest rate swaps, caps, floors, collars and similar agreements)
designed to protect against or manage exposure to fluctuations in interest
rates.
"Investment" means, with respect to any Person, any direct or indirect
advance, loan or other extension of credit (including guarantees) or capital
contribution to (by means of any transfer of cash or other property to others or
any payment for property or services for the account or use of others), or any
purchase, acquisition or ownership by such Person of any Capital Stock, bonds,
Notes, debentures or other securities or evidences of Debt issued or owned by,
any other Person and all other items that would be classified as investments on
a balance sheet prepared in accordance with GAAP. In addition, the portion
(proportionate to the Issuer's equity interest in such Subsidiary) of the fair
market value of the net assets of any Unrestricted Subsidiary at the time that
such Unrestricted Subsidiary is designated a Restricted Subsidiary will be
considered a reduction in outstanding Investments. "Investments" excludes
extensions of trade credit on commercially reasonable terms in accordance with
normal trade practices.
"Issue Date " means, in respect of any Note or Notes, the date on which
such Note or Notes was or were initially issued.
"Issuer" means the party named as such in this Indenture until a successor
replaces it and, thereafter, means the successor and, for purposes of any
provision contained herein and required by the TIA, each other obligor on the
Notes.
"Issuer Order" means a written order signed in the name of the Issuer by
any Person authorized by a resolution of the board of directors of the Issuer.
"Lien" means any mortgage or deed of trust, charge, pledge, lien (statutory
or otherwise), privilege, security interest, hypothecation, assignment for
security, claim, deemed trust or preference or priority or other encumbrance
upon or with respect to any property of any kind, real or personal, movable or
immovable, now owned or hereafter acquired. A Person will be deemed to own
subject to a Lien any property which such Person has acquired or holds subject
to the interest of a vendor or lessor under any conditional sale agreement,
capital lease or other title retention agreement.
"Maturity" means, with respect to any indebtedness, the date on which any
principal of such indebtedness becomes due and payable as therein or herein
provided, whether at the Stated Maturity with respect to such principal or by
declaration of acceleration, call for redemption or purchase or otherwise.
"Montrose and Montclare Ships" means the M.V. Canmar Fortune, the M.V.
Canmar Courage, the M.V. Canmar Pride and the M.V. Canmar Honour.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc. and its successors.
13
"Net Cash Proceeds" means,
(a) with respect to any Asset Sale, the proceeds thereof in the form of
cash or Cash Equivalents including payments in respect of deferred payment
obligations when received in the form of, or stock or other assets when
disposed for, cash or Cash Equivalents (except to the extent that such
obligations are financed or sold with recourse to the Issuer or any
Restricted Subsidiary), net of:
(i) brokerage commissions and other fees and expenses (including,
without limitation, fees and expenses of legal counsel, accountants,
investment banks and other consultants) related to such Asset Sale,
(ii) provisions for all taxes payable as a result of such Asset Sale,
(iii) all payments made on any Debt that is secured by any Property
subject to such Asset Sale, in accordance with the terms of any Lien
upon or other security agreement of any kind with respect to such
Property, or which must by its terms, or in order to obtain a
necessary consent to such Asset Sale, or by applicable law, be repaid
out of the proceeds from such Asset Sale,
(iv) amounts required to be paid to any Person (other than the Issuer
or any Restricted Subsidiary) owning a beneficial interest in the
assets subject to the Asset Sale and
(v) appropriate amounts to be provided by the Issuer or any Restricted
Subsidiary, as the case may be, as a reserve required in accordance
with GAAP against any liabilities associated with such Asset Sale and
retained by the Issuer or any Restricted Subsidiary, as the case may
be, after such Asset Sale, including, without limitation, pension and
other post-employment benefit liabilities, liabilities related to
environmental matters and liabilities under any indemnification
obligations associated with such Asset Sale, all as reflected in an
officers' certificate delivered to the Trustee, and
(b) with respect to any capital contributions, issuance or sale of Capital
Stock or options, warrants or rights to purchase Capital Stock, or debt
securities or Capital Stock that have been converted into or exchanged for
Capital Stock as referred to under Section 4.10 (Limitation on Restricted
Payments), the proceeds of such issuance or sale in the form of cash or
Cash Equivalents, payments in respect of deferred payment obligations when
received in the form of, or stock or other assets when disposed of for,
cash or Cash Equivalents (except to the extent that such obligations are
financed or sold with recourse to the Issuer or any Restricted Subsidiary),
net of attorney's fees, accountant's fees and brokerage, consultation,
underwriting and other fees and expenses actually incurred in connection
with such issuance or sale and net of taxes paid or payable as a result of
thereof.
"Notes" has the meaning set forth in the first recital to this Indenture.
"Officer's Certificate" means a certificate signed by an officer of the
Issuer or a Subsidiary Guarantor, as the case may be, and delivered to the
trustee.
14
"Opinion of Counsel" means a written opinion from legal counsel. The
counsel may be an employee of or counsel to the Issuer or the Trustee.
"Original Notes" has the meaning stated in the first recital to this
Indenture.
"Pari Passu Debt" means (a) any Debt of the Issuer that ranks equally in
right of payment with the Notes or (b) with respect to any Guarantee, Debt that
ranks equally in right of payment to such Guarantee.
"Paying Agent" means the Paying Agent, any successor thereof, and any other
Person (including the Issuer or the Subsidiary Guarantors acting as Paying
Agent, except that for purposes of Article 8, the Paying Agent shall not be the
Issuer or a Subsidiary of the Subsidiary Guarantors or an Affiliate of any of
them) authorized by the Issuer to pay the principal of (and premium, if any) or
interest (including Special Interest, if any) and Additional Amounts, if any, on
any Notes on behalf of the Issuer.
"Permitted Debt" has the meaning given to such term under Section 4.09
(Limitation on Debt).
"Permitted Investments" means any of the following
(a) Investments in cash or Cash Equivalents;
(b) intercompany Debt to the extent permitted under clause (d) of the
definition of "Permitted Debt";
(c) Investments in (i) the form of loans or advances to the Issuer, (ii) a
Restricted Subsidiary or (iii) another Person if as a result of such Investment
such other Person becomes a Restricted Subsidiary or such other Person is merged
or consolidated with or into, or transfers or conveys all or substantially all
of its assets to, the Issuer or a Restricted Subsidiary;
(d) Investments acquired by the Issuer or any Restricted Subsidiary in
connection with an Asset Sale permitted under Section 4.11 (Limitation on Sale
of Certain Assets) to the extent such Investments are non-cash proceeds
permitted thereunder;
(e) payroll, travel and similar advances to cover matters that are expected
at the time of such advances to be treated as expenses in accordance with GAAP;
(f) Investments in the Notes and Guarantees;
(g) Investments existing at the date of this Indenture;
(h) Investments in Interest Rate Agreements and Currency Agreements
permitted under Section 4.09 (Limitation on Debt);
(i) Investments in Fuel Hedging Agreements permitted under Section 4.09
(Limitation on Debt);
15
(j) de minimis Investments made in the ordinary course of business, the
Fair Market Value of which in the aggregate does not exceed $500,000 in any
transaction or series of related transactions;
(k) Investments in the (i) Montrose and Montclare Ships and (ii) containers
currently subject to Container Lease entered into by a Subsidiary of CP Ships on
November 7, 2000 and providing for the lease of containers having a total
capacity of approximately 44,350 twenty-foot equivalent units;
(l) Investments of insurance proceeds received pursuant to circumstances
permitted under Section 4.09(2)(o) and (r) (Limitation on Debt)";
(m) Investments in any Person that the Issuer has either contracted to
enter into or was contemplating entering into on the date of this Indenture or a
reasonable expansion or extension thereof or a business ancillary or related
thereto or supportive thereof; and that do not at any one time exceed $5
million;
(n) loans and advances (or guarantees to third party loans) to employees
made in the ordinary course of business and consistent with the Issuer's past
practices or past practices of such Restricted Subsidiary, as the case may be,
in an amount outstanding not to exceed at any one time $5 million;
(o) Investments in a Person to the extent that the consideration therefor
consists of the net proceeds of the substantially concurrent issue and sale
(other than to any Subsidiary) of shares of the Issuer's Qualified Capital
Stock; provided that the net proceeds of such sale have been excluded from, and
shall not have been included in, the calculation of the amount determined under
Section 4.10(2)(c)(ii) (Limitation on Restricted Payments); and
(p) Investments by the Issuer or any Restricted Subsidiary in connection
with a Permitted Receivables Financing;
(q) any payments or other transactions pursuant to a tax sharing agreement
between the Issuer and any other Person with which the Issuer files or filed a
consolidated tax return or with which the Issuer is or was part of a
consolidated group for tax purposes or any tax advantageous group contribution
made pursuant to applicable legislation;
(r) Investments acquired by the Issuer or any Restricted Subsidiary in
connection with an Asset Sale or Asset Swap permitted under Section 4.11
(Limitation on Sale of Certain Assets) to the extent that such Investments arc
non-cash proceeds as permitted under such covenant; and
(s) Investments of the Issuer or its Restricted Subsidiaries described
under item (iv) of the proviso to the definition of "Debt".
"Permitted Liens" means the following types of Liens:
(a) Liens (other than Liens securing Debt under the Revolving Credit
Facilities) existing as of the date of the issuance of the Notes;
16
(b) Liens on the Issuer's or any Restricted Subsidiary's property or assets
securing Debt under the Credit Facilities permitted to be incurred pursuant to
clause (a) of the definition of "Permitted Debt" and Liens on assets given,
disposed of or otherwise transferred in connection with a Permitted Receivables
Financing permitted to be incurred pursuant to clause (m) of the definition of
"Permitted Debt";
(c) Liens on any property or assets of a Restricted Subsidiary granted in
favour of the Issuer or any Wholly Owned Restricted Subsidiary;
(d) Liens on any of the Issuer's or any Restricted Subsidiary's property or
assets securing the Notes or any Guarantees;
(e) any interest or title of a lessor under any (i) Capitalised Lease
Obligation or (ii) container acquired by CP Ships or any Restricted Subsidiary
after the date hereof and subsequently sold to such lessor in a sale and
leaseback transaction entered in to by the Issuer or such Restricted Subsidiary;
(f) Liens arising out of conditional sale, title retention, consignment or
similar arrangements for the sale of goods entered into by the Issuer or any of
its Restricted Subsidiaries in the ordinary course of business in accordance
with the Issuer's or any Restricted Subsidiary's past practices prior to the
date of this Indenture;
(g) statutory Liens of landlords and carriers, warehousemen, mechanics,
suppliers, materialmen, repairmen, stevedores, masters, crew, employees, pension
plan administrators or other like Liens (including, without limitation, any
maritime liens, whether or not statutory, that are recognized or given effect to
as such by the law of any applicable jurisdiction) arising in the ordinary
course of the Issuer's or any Restricted Subsidiary's business and with respect
to amounts not yet delinquent or being contested in good faith by appropriate
proceedings and for which a reserve or other appropriate provision, if any, as
shall be required in conformity with GAAP, shall have been made or Liens arising
solely by virtue of any statutory or common law provisions relating to bankers'
liens, rights of set-off or similar rights and remedies as to deposit accounts
or other funds maintained with a creditor depositary institution;
(h) Liens for taxes, assessments, government charges or claims that are
being contested in good faith by appropriate proceedings promptly instituted and
diligently conducted and for which a reserve or other appropriate provision, if
any, as shall be required in conformity with GAAP shall have been made;
(i) Liens incurred or deposits made to secure the performance of tenders,
bids, leases, statutory or regulatory obligations, surety and appeal bonds,
government contracts, performance bonds and other obligations of a like nature
incurred in the ordinary course of business (other than obligations for the
payment of money);
(j) zoning restrictions, easements, licenses, reservations, title defects,
rights of others for rights-of-way, utilities, sewers, electrical lines,
telephone lines, telegraph wires, restrictions and other similar charges or
encumbrances not interfering in any material respect with the Issuer's or any
Restricted Subsidiary's business incurred in the ordinary course of business;
17
(k) Liens arising by reason of any judgment, decree or order of any court
so long as such Lien is adequately bonded and any appropriate legal proceedings
that may have been duly initiated for the review of such judgment, decree or
order shall not have been finally terminated or the period within which such
proceedings may be initiated shall not have expired;
(1) Liens on property of, or on shares of Capital Stock or Indebtedness of,
any Person existing at the time such Person becomes, or becomes a part of, any
Restricted Subsidiary; provided that such Liens do not extend to or cover any
property or assets of the Issuer or any Restricted Subsidiary other than the
property or assets acquired;
(m) Liens securing the Issuer's or any Restricted Subsidiary's obligations
under Interest Rate Agreements or Currency Agreements permitted under Section
4.09 (Limitation on Debt) or any collateral for the Debt to which such Interest
Rate Agreements or Currency Agreements relate;
(n) Liens securing the Issuer's or any Restricted Subsidiary's obligations
under Fuel Hedging Agreements permitted under Section 4.09 (Limitation on Debt);
(o) Liens incurred or deposits made in the ordinary course of business in
connection with workers' compensation, unemployment insurance and other types of
social security or other insurance (including unemployment insurance);
(p) Liens incurred in connection with a transaction described under clause
(d) of the definition of Debt;
(q) Liens incurred in connection with a cash management program established
in the ordinary course of business for the benefit of the Issuer or any
Restricted Subsidiary in favour of a bank or trust company of the type described
in Section 4.20(l) (Limitation on Guarantees of Debt by Restricted
Subsidiaries);
(r) any extension, renewal or replacement, in whole or in part, of any Lien
described in the foregoing clauses (a) through (q); provided that any such
extension, renewal or replacement shall be no more restrictive in any material
respect than the Lien so extended, renewed or replaced and shall not extend in
any material respect to any additional property or assets;
(s) purchase money Liens to finance property or assets of the Issuer or any
Restricted Subsidiary acquired in the ordinary course of business; provided,
however, that (i) the related purchase money Debt shall not exceed the cost of
such property or assets and shall not be secured by any property or assets of
the Issuer or any Restricted Subsidiary other than the property and assets so
acquired and (ii) the Lien securing such Debt shall be created within 90 days of
such acquisitions; and
(t) Liens incurred in the ordinary course of business of the Issuer or any
Restricted Subsidiary with respect to obligations that do not exceed $3 million
at any one time outstanding and that (i) are not incurred in connection with the
borrowing of money or the obtaining of advances or credit (other than trade
credit in the ordinary course of business) and (ii) do not in the aggregate
materially detract from the value of the property or materially
18
impair the use thereof in the operation of the Issuer's or such Restricted
Subsidiary's business.
"Permitted Receivables Financing" means any financing pursuant to which the
Issuer or any Restricted Subsidiary may sell, convey or otherwise transfer to
any other Person or grant a security interest in, any accounts receivable (and
related assets) in an aggregate principal amount equivalent to the fair market
value of such accounts receivable (and related assets) of the Issuer or any
Restricted Subsidiary; provided that (a) the covenants, events of default and
other provisions applicable to such financing shall be customary for such
transactions and shall be on market terms (as determined in good faith by the
board of directors) at the time such financing is entered into, (b) the interest
rate applicable to such financing shall be a market interest rate (as determined
in good faith by the board of directors) at the time such financing is entered
into and (c) such financing shall be non-recourse to the Issuer or any
Restricted Subsidiary except to a limited extent customary for such
transactions.
"Permitted Refinancing Debt" means any renewals, extensions, substitutions,
refinancings or replacements (each, for purposes of this section and Section
4.09 (Limitation on Debt), a "refinancing") of any Debt of the Issuer or a
Restricted Subsidiary or pursuant to this definition, including any successive
refinancings, so long as:
(a) the Issuer is the borrower under such refinancing or, if not, the
borrower is the borrower of the Debt being refinanced,
(b) such Debt is in an aggregate principal amount (or if incurred with
original issue discount, an aggregate issue price) not in excess of the sum
of (i) the aggregate principal amount (or if incurred with original issue
discount, the aggregate accreted value) then outstanding of the Debt being
refinanced and (ii) an amount necessary to pay any fees and expenses,
including premiums and defeasance costs, related to such refinancing,
(c) the Average Life of such Debt is equal to or greater than the Average
Life of the Debt being refinanced,
(d) the Stated Maturity of such Debt is no earlier than the Stated Maturity
of the Debt being refinanced, and
(e) the new Debt is not senior in right of payment to the Debt that is
being refinanced,
provided that Permitted Refinancing Debt will not include (i) Debt of a
Subsidiary that refinances the Issuer's Debt or Debt of the Subsidiary
Guarantors or (ii) Debt of any Restricted Subsidiary that refinances Debt of an
Unrestricted Subsidiary.
"Person" means any individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company, trust,
unincorporated organisation or government or any agency or political subdivision
thereof.
19
"Preferred Stock" means, with respect to any Person, Capital Stock of any
class or classes (however designated) of such Person that is preferred as to the
payment of dividends or distributions, or as to the distribution of assets upon
any voluntary or involuntary liquidation or dissolution of such Person, over the
Capital Stock of any other class of such Person whether now outstanding, or
issued after the date of this Indenture, and including, without limitation, all
classes and series of preferred or preference stock of such Person.
"Principal" of a Note means the principal of the Notes plus the premium, if
any, payable on the Note which is due or overdue or is to become due at the
relevant time.
"pro forma" means, with respect to any calculation made or required to be
made pursuant to the terms of the Notes, a calculation in accordance with
Article 1 of Regulation S-X promulgated under the Securities Act (to the extent
applicable), as interpreted in good faith by the board of directors of the
Issuer after consultation with the independent certified public accountants of
the Issuer, or otherwise a calculation made in good faith by the board of
directors of the Issuer after consultation with the independent certified public
accountants of the Issuer, as the case may be.
"Property" means, with respect to any Person, any interest of such Person
in any kind of property or asset, whether real, personal or mixed, or tangible
or intangible, including Capital Stock in, and other securities of, any other
Person. For purposes of any calculation required pursuant to this Indenture, the
value of any Property shall be its Fair Market Value.
"Public Debt" means any bonds, debentures, Notes or other indebtedness of a
type that could be issued or traded in any market where capital funds (whether
debt or equity) are traded, including private placement sources of debt and
equity as well as organized markets and exchanges, whether such indebtedness is
issued in a public offering or in a private placement to institutional investors
or otherwise.
"Public Equity Offering" means an underwritten public offer and sale of
capital stock (which is Qualified Capital Stock) of the Issuer or any direct or
indirect parent holding company of the Issuer with gross proceeds to the Issuer
of at least $50 million, other than the offer and sale of Common Shares of the
Issuer made on July 3, 2002 (including any sale of Common Shares purchased upon
the exercise of any over-allotment option granted in connection therewith).
"Qualified Capital Stock" of any person means any and all Capital Stock of
such person other than Redeemable Capital Stock.
"QIB" means a "Qualified Institutional Buyer" as defined under Rule 144A.
"Qualified Finance Company Subsidiary" means a Restricted Subsidiary that
(i) is a direct, wholly owned subsidiary of the Issuer, (ii) was incorporated
for the sole of purpose of issuing, and limited by its constituent documents to
the issuance of, Public Debt, (iii) does not have any Subsidiaries, and (iv)
does not have any assets other than indebtedness owed to it by the Issuer and
its Restricted Subsidiaries in respect of loans made by it to the Issuer and its
Restricted Subsidiaries with the proceeds of any Public Debt issued by it.
"Rating Agency" means S&P and/or ▇▇▇▇▇'▇.
20
"Rating Categories" means (a) with respect to S&P, any of the following
categories: AAA, AA, A, BBB, BB, B, CCC, CC or C; and (b) with respect to
▇▇▇▇▇'▇, any of the following categories: Aaa, Aa, A, Baa, Ba, B, Caa, Ca or C.
"Rating Date" means (a) for the purposes of determining whether a "change
of Control Triggering Event has occurred, the date that is the earlier of (i)
120 days prior to the occurrence of an event specified in clauses (a), (b) or
(c) of the definition of "Change of Control Triggering Event" and (ii) one
business day before the date of the first public announcement of the possibility
of such event and (b) for the purposes of the provisions of Article 5, the date
that is the earlier of (i) 120 days prior to the occurrence of a transaction or
series of transactions described thereunder and to which the absence of a Rating
Decline may be applicable and (ii) one Business Day before the date of the first
public announcement of the possibility of such event.
"Rating Decline" means (a) for the purposes of determining whether a Change
of Control Triggering Event has occurred, the occurrence on any date within the
90-day period following the occurrence of an event specified in clauses (a), (b)
or (c) of the definition of "Change of Control Triggering Event", or (b) for the
purposes of Article 5, the occurrence on any date within the 90 day period
following the occurrence of a transaction or series of transactions described
thereunder and to which the absence of a Rating Decline may be applicable,
(which period in each case shall be extended so long as during such period the
rating of the Notes is under publicly announced consideration for possible
downgrade by a Rating Agency), in each case, of either of the following events:
(a) both Rating Agencies shall lower their ratings on the Notes at least
one notch below the rating of the Notes by such Rating Agencies on the
Rating Date;
(b) both Rating Agencies shall withdraw their ratings of the Notes; or
(c) one Rating Agency shall lower its rating on the Notes at least one
notch below the rating of the Notices by such Rating Agency on the Rating
Date and the other Rating Agency shall withdraw its rating of the Notes.
In determining how many notches the rating of the Notes has decreased, gradation
with respect to Rating Categories will be taken in account (e.g. with respect to
S&P, a decline in a rating from BB+ to BB, or from BB- to B+, will constitute a
decrease of one notch).
"Receivables and Related Assets" means any accounts receivable (whether now
existing or arising thereafter) of the Issuer or any Restricted Subsidiary, and
any assets related thereto, including all collateral securing such accounts
receivable, all contracts and contract rights and all guarantees or other
obligations in respect of such accounts receivable, proceeds of such accounts
receivable and other assets that are customarily transferred or in respect of
which security interests are customarily granted in connection with asset
securitisation transactions involving accounts receivable.
"Record Date" for the interest payable on any Interest Payment Date means
the January 1 or July 1 (whether or not a Business Day), as the case may be,
next preceding such Interest Payment Date.
21
"Redeemable Capital Stock" means any class or series of Capital Stock that,
either by its terms, by the terms of any security into which it is convertible
or exchangeable or by contract or otherwise, is, or upon the happening of an
event or passage of time would be, required to be redeemed prior to the final
Stated Maturity of the Notes or is redeemable at the option of the Holder
thereof at any time prior to such final Stated Maturity (other than upon a
change of control of the Issuer in circumstances in which the Holders of the
Notes would have similar rights), or is convertible into or exchangeable for
debt securities at any time prior to such final Stated Maturity; provided that
any Capital Stock that would constitute Qualified Capital Stock but for
provisions thereof giving Holders thereof the right to require such Person to
repurchase or redeem such Capital Stock upon the occurrence of any "asset sale"
or "change of control" occurring prior to the Stated Maturity of the Notes will
not constitute Redeemable Capital Stock if the "asset sale" or "change of
control" provisions applicable to such Capital Stock are no more favourable to
the Holders of such Capital Stock than the provisions contained in Section 4.11
(Limitation on Sales of Certain Assets) and Section 4.13 (Change of Control
Triggering Event) described herein and such Capital Stock specifically provides
that such Person will not repurchase or redeem any such stock pursuant to such
provision prior to the Issuer's repurchase of such Notes as are required to be
repurchased pursuant to Section 4.11 (Limitation on Sales of Certain Assets) and
Section 4.13 (Change of Control Triggering Event) described herein.
"Redemption Price" means the price to redeem a Note, expressed as a
percentage of the principal amount of maturity set forth in the Notes under
"Optional Redemption" or "Redemption Upon Changes in Withholding Taxes", as
applicable.
"Refinance" means, in respect of any Debt, to refinance, extend, renew,
refund, repay, prepay, repurchase, redeem, defease or retire, or to issue other
Debt, in exchange or replacement for, such Debt. "Refinanced" and "Refinancing"
will have correlative meanings.
"Registered Exchange Offer" has the meaning set forth in the Registration
Rights Agreement.
"Registrar" means The Bank of New York and any successor registrar.
"Registration Rights Agreement" means the Registration Rights Agreement
relating to the Notes dated July 3, 2002, among the Issuer, the Subsidiary
Guarantors and the Initial Purchasers.
"Regulation S" means Regulation S under the Securities Act (including any
successor regulation thereto), as it may be amended from time to time.
"Related Business" means any business which is the same as or related,
ancillary or complementary to any of the businesses of the Issuer and its
Subsidiaries on the date of this Indenture.
"Related Business Assets " means assets used or useful in a Related
Business.
"Relevant Taxing Jurisdiction" has the meaning set forth in Section 4.15
(Additional Amounts).
22
"Restricted Payment" has the meaning given to such term in Section 4.10
(Limitation on Restricted Payments).
"Restricted Subsidiary" means any Subsidiary of the Issuer other than an
Unrestricted Subsidiary.
"Revolving Credit Facilities" means the $175 Million Facility and the $350
Million Facility; "$175 Million Facility" means the loan agreement dated August
2, 2001 among CPS Number 1 Limited and CPS Number 2 Limited, as Borrowers, CP
Ships Holdings Inc, CP Ships (UK) Limited, CP Ships (Bermuda) Limited, ▇▇▇▇▇
Lines Limited, LLC, and TMM Lines Limited, LLC, as Designated Line Subsidiary
Guarantors, the Banks and Financial Institutions listed in the Schedule thereto
as Lenders, and Citibank international plc as Agent and Security Trustee, as
amended and restated pursuant to an Amending and Restating Agreement dated
November 20, 2001, and as further amended by a letter agreement dated May 27,
2002, and "$350 Million Facility" means the loan agreement dated December 20,
2001 among CPS Number 3 Limited and CPS Number 4 Limited, as Borrowers, the
Banks and Financial Institutions listed in Schedule 1 thereto as Lenders, and
Citibank International plc as Agent and Security Trustee, as amended pursuant to
an Accession Deed dated February 28, 2002 and as further amended by a letter
agreement dated June 14, 2002, in each case, as amended, restated or modified
from time to time.
"Rule 144" means Rule 144 under the Securities Act (including any
successor regulation thereto), as it may be amended from time to time.
"Rule 144A" means Rule 144A under the Securities Act (including any
successor regulation thereto), as it may be amended from time to time.
"S&P" means Standard and Poor's, a division of the ▇▇▇▇▇▇-▇▇▇▇ Companies,
Inc. and its successors.
"Sale and Leaseback Transaction" means any direct or indirect arrangement
relating to Property now owned or hereafter acquired whereby the Issuer, the
Subsidiary Guarantors] or a Restricted Subsidiary transfers such Property to
another Person and the Issuer, the Subsidiary Guarantors or a Restricted
Subsidiary leases it from such Person.
"SEC" means the United States Securities and Exchange Commission.
"Securities Act" means the U.S. Securities Act of 1933, as amended, or any
successor statute, and the rules and regulations promulgated by the Commission
thereunder.
"Shelf Registration Statement" means the Shelf Registration Statement as
defined in the Registration Rights Agreement.
"Significant Subsidiary" means any of the Issuer's Restricted Subsidiaries
that, together with such Person's Subsidiaries,
(a) for the Issuer's most recent fiscal year, accounted for more than 5% of
the consolidated revenues of the Issuer and the Issuer and the Issuer's
Restricted Subsidiaries, or
23
(b) as of the end of such fiscal year, was the owner of more than 5% of the
consolidated assets of the Issuer and the Issuer's Restricted Subsidiaries, all
as set forth on Issuer's most recently available consolidated financial
statements for such fiscal year, or
(c) was organized or acquired after the beginning of such fiscal year and
would have been a Significant Subsidiary if it had been owned during the entire
fiscal year or is a "significant subsidiary" as defined in Rule 1.02(w) of
Regulation S-X under the Securities Act.
"Special Interest" means the Special Interest as defined in the form of
Note attached hereto as Exhibit A.
"Stated Maturity" means, when used with respect to any Note or any
instalment of interest thereon, the date specified to such Note as the fixed
date on which the principal of such Note or such instalment of interest,
respectively, is due and payable, and, when used with respect to any other
indebtedness, means the date specified in the instrument governing such
indebtedness as the fixed date on which the principal of such indebtedness, or
any instalment of interest thereon, is due and payable.
"Subordinated Debt" means Debt of the Issuer, or any Subsidiary Guarantors
that is subordinated in right of payment to the Notes, or the Guarantees of such
Subsidiary Guarantors, as the case may be.
"Subsidiary" means, with respect to any Person,
(a) a corporation a majority of whose Voting Stock is at the time, directly
or indirectly, owned by such Person, by one or more Subsidiaries of such Person
or by such Person and one or more Subsidiaries thereof, and
(b) any other Person (other than a corporation), including, without
limitation, a partnership, limited liability company, business trust or joint
venture, in which such Person, one or more Subsidiaries thereof or such Person
and one or more Subsidiaries thereof, directly or indirectly, at the date of
determination thereof, has at least majority ownership interest entitled to vote
in the election of directors, managers or trustees thereof (or other Person
performing similar functions).
"Subsidiary Guarantors" means CP Ships (UK) Limited, ▇▇▇▇▇ Lines Limited,
LLC and TMM Lines Limited, LLC and any Restricted Subsidiary that incurs a
Guarantee.
"Tangible Assets" means, in respect of a Person, the total assets of such
Person less goodwill, each as stated on such Person's most recent quarterly
balance sheet.
"Tax" and "Taxes" has the meaning set forth in Section 4.15 (Additional
Amounts).
"TIA" means the United States Trust Indenture Act of 1939 as in effect on
the date hereof; provided, however, that in the event the Trust Indenture Act of
1939 is amended after such date, "TIA" means, to the extent required by any such
amendment, the Trust Indenture Act of 1939, as so amended.
24
"Total Receivables" means the accounts receivable of the Issuer and its
Restricted Subsidiaries, as stated on the most recent published quarterly
consolidated balance sheet of the Issuer.
"Total Revenues" means, in respect of a Person, the total revenues of such
Person, as stated on such Person's most recent quarterly statement of income.
"Total Tangible Assets" means the total assets of the Issuer and its
Restricted Subsidiaries less goodwill, each as stated on the most recent
published quarterly consolidated balance sheet of the Issuer.
"Treasury Rate" means, as of any redemption date, the yield to maturity at
the time of computation of U.S. Treasury securities with a constant maturity (as
compiled and published in the most recent Federal Reserve Statistical Release
H.15(519) which has become publicly available at least two Business Days in New
York, New York prior to such redemption date (or, if such statistical release is
no longer published, any publicly available source or similar market data)) most
nearly equal to the period from the redemption date to July 3, 2007; provided
that if such yield to maturity is not equal to the constant maturity of a U.S.
Treasury security for which a weekly average yield is given, the Treasury Rate
shall be obtained by linear interpolation (calculated to the nearest one-twelfth
of a year) from the weekly average yields of U.S. Treasury securities for which
such yields are given; provided, that if the period from the redemption date to
July 3, 2007 is less than one year, the weekly average yield on actually traded
U.S. Treasury securities adjusted to a constant maturity of one year shall be
used.
"Trustee" means the party named as such in this Indenture until a successor
replaces it in accordance with the provisions of this Indenture and, thereafter,
means the successor.
"Trust Officer" means, when used with respect to the Trustee, any vice
president, assistant vice president, assistant treasurer or trust officer in the
corporate trust administration of the Trustee or any other officer of the
Trustee customarily performing functions similar to those performed by any of
the above-designated officers, and also means, with respect to a particular
corporate trust matter, any other officer to whom such matter is referred
because of his or her knowledge of and familiarity with the particular subject,
and, in each case, who shall have direct responsibility for the administration
of this Indenture.
"Unrestricted Subsidiary" means
(a) any Subsidiary of the Issuer that at the time of determination is an
Unrestricted Subsidiary (as designated by the Issuer's board of directors
pursuant to Section 4.17 (Designation of Unrestricted and Restricted
Subsidiaries) and
(b) any Subsidiary of an Unrestricted Subsidiary.
"U.S. Government Obligations" means direct obligations (or certificates
representing an ownership interest in such obligations) of the United States of
America (including any agency or instrumentality thereof) for the payment of
which the full faith and credit of the United States of America is pledged.
25
"Voting Stock" means any class or classes of Capital Stock 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 (or Persons performing similar functions) of any Person
(irrespective of whether or not, at the time, stock of any other class or
classes shall have, or might have, voting power by reason of the happening of
any contingency).
"Wholly Owned Restricted Subsidiary" means any Restricted Subsidiary, all
of the outstanding Capital Stock (other than directors' qualifying shares or
shares of foreign Restricted Subsidiaries required to be owned by foreign
nationals pursuant to applicable law) of which are owned by the Issuer or by one
or more other Wholly Owned Restricted Subsidiaries or by the Issuer and one or
more other Wholly Owned Restricted Subsidiaries.
SECTION 1.02. Other Definitions.
Term Defined in Section
---- ------------------
"Additional Notes"............................... 2.01
"Approved Jurisdiction........................... 1.01
"Authorized Agent"............................... 14.09
"Change of Control Offer"........................ 4.13
"Change of Control Purchase Price"............... 4.13
"Commencement Date".............................. 3.08(b)
"covenant defeasance option"..................... 8.01(b)
"Defaulted Interest"............................. 2.11
"Event of Default"............................... 6.01
"Excess Proceeds"................................ 1.11(b)
"Excess Proceeds Offer".......................... 1.11(c)
"Exchange Global Note"........................... 2.01(b)
"Global Notes"................................... 2.01(c)
"incur".......................................... (4.09)
"Recovery Currency".............................. 14.16
"legal defeasance option"........................ 8.01(b)
"Legal Holiday".................................. 14.07
"Offer Amount"................................... 3.08(b)
"Obligations".................................... 10.01
"Participants"................................... 2.01(c)
"Purchase Agreement"............................. 2.01(b)
"Purchase Date".................................. 3.08(b)
"Regulation S Global Note"....................... 2.01(b)
"Relevant Payment Date".......................... 4.15(b)(ii)
"Restricted Global Note"......................... 2.01(b)
"rights"......................................... 11.02(b)
"Security Register".............................. 2.03
"Surviving Entity"............................... 5.01
"Tender Period".................................. 3.08(b)
26
SECTION 1.03. Incorporation by Reference of Trust Indenture Act.
Upon the earlier of the effectiveness of the Exchange Offer Registration
Statement and the Shelf Registration Statement, this Indenture shall become
subject to the mandatory provisions of the TIA, which are incorporated by
reference in and will be made a part of this Indenture. The following TIA terms
used in this Indenture have the following meanings:
"commission" means the SEC.
"indenture securities" means the Notes.
"indenture securities holder" means a Holder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the Indenture Notes means the Issuer and the Subsidiary
Guarantors.
All other TIA terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by SEC rule under the TIA
have the meanings assigned to them by such definitions.
SECTION 1.04. Rules of Construction.
Unless the context otherwise requires:
i. a term has the meaning assigned to it;
ii. an accounting term not otherwise defined has the meaning
assigned to it in accordance with IAS;
iii. "or" is not exclusive;
iv. "including" or "include" means including or include without
limitation;
v. words in the singular include the plural and words in the
plural include the singular;
vi. unsecured or unguaranteed Debt shall not be deemed to be
subordinate or junior to secured or guaranteed Debt merely
by virtue of its nature as unsecured or unguaranteed Debt;
vii. the principal amount of any noninterest bearing or other
discount note at any date shall be the principal amount
thereof that would be shown on a balance sheet of the issuer
dated such date prepared in accordance with GAAP;
27
viii. the principal amount of any Preferred Stock shall be the
greater of (i) the maximum liquidation value of such
Preferred Stock or (ii) the maximum mandatory redemption or
mandatory repurchase price with respect to such Preferred
Stock;
ix. for purposes of the covenants and definitions set forth in
this Indenture, amounts stated in U.S. dollars shall be
deemed to include both U.S. dollars and Dollar Equivalents
and amounts stated in euros shall be deemed to include both
euros and euro Equivalents;
x. 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, clause or other
subdivision; and
xi. an Event of Default shall be deemed not to be continuing
when the event that caused such Event of Default could occur
without causing a Default or an Event of Default.
ARTICLE 2
THE NOTES
SECTION 2.01. Form and Terms. The Original Notes, the Guarantees and the
Trustee's certificate of authentication shall be substantially in the form of
Exhibit A, which is hereby incorporated in and expressly made a part of this
Indenture. The Exchange Notes, the Guarantees thereof and the Trustee's
certificate of authentication thereon shall be substantially in the form of
Exhibit B, which is hereby incorporated in and expressly made a part of this
Indenture. The Notes may have notations, legends or endorsements required by
law, securities exchange rules and agreements to which the Issuer or the
Subsidiary Guarantors are subject, if any (provided that any such notation,
legend or endorsement is in a form acceptable to the Issuer). The Issuer shall
furnish any such legend not contained in Exhibit A or Exhibit B to the Trustee
in writing. Each Note shall be dated the date of its authentication.
The Notes shall be known and designated as the 10-3/8% Senior Notes due
2012 of the Issuer. The Notes will be senior obligations of the Issuer and will
be initially issued in an aggregate principal amount at maturity of
$200,000,000. The Issuer is entitled to issue Additional Notes ("Additional
Notes"), subject to its compliance at the time of issuance of such Additional
Notes with Section 4.09. The Original Notes and any Additional Notes and
Exchange Notes actually issued will be treated as a single class for the
purposes of this Indenture unless the context otherwise requires. References to
the "Notes" for all purposes of this Indenture include references to any
Additional Notes and Exchange Notes actually issued. The Stated Maturity of the
Notes shall be July 15, 22012. From the Issue Date or from the most recent
interest payment date to which interest has been paid or provided for, cash
interest on the Notes will accrue at 10-3/8% per year, payable semiannually on
January 15 and July 15 of each year, beginning, in the case of the Original
Notes, on January 15, 2003, to the
28
Person in whose name the Notes (or any predecessor Note) is registered at the
close of business on the preceding January 1 or July 1, as the case may be.
(a) Payment. The principal of the Notes shall be payable at the corporate
trust office or agency of a paying agent that will be maintained for such
purpose and, subject to any fiscal or other laws and regulations applicable
thereto, at the specified offices of any other Paying Agent appointed by the
Issuer: Subject to Section 2.09(b), payment of principal of and interest on the
Notes shall be made by the Issuer or a Subsidiary Guarantor in dollars by wire
transfer in immediately available funds to the Paying Agent (if necessary) for
the account of the Depositary or its nominee or directly to the Depositary or
its nominee, as the case may be, as necessary, as the sole registered holder of
the Restricted Global Note and the Regulation S Global Note; provided, however,
that all payments of principal, premium, if any, and interest on the Notes in
certificated form shall be made by the Issuer or a Subsidiary Guarantor at the
office of the Paying Agent in New York, New York or at the office of the Paying
Agent in Luxembourg so long as the Notes are listed on the Luxembourg Stock
Exchange and the rules of such exchange so require, or, at the option of the
Issuer or a Subsidiary Guarantor, by check mailed to the Holders of the Notes at
the respective addresses set forth in the Security Register. The amount of
payments in respect of interest on each Interest Payment Date shall correspond
to the aggregate principal amount of Notes represented by the Global Notes or
any Notes in certificated form, as established by the Registrar at the close of
business on the relevant Record Date. Payments of principal shall be made upon
surrender of the Global Notes or any Notes in certificated form to the Paying
Agent.
All payments made by the Issuer or a Subsidiary Guarantor to, or to the
order of, the holder of the Global Notes or any Notes in certificated form,
shall discharge the liability of the Issuer and the Subsidiary Guarantors under
the Notes to the extent of the sums so paid.
(b) Notes. The Original Notes are being offered and sold by the Issuer
pursuant to a Purchase Agreement, dated June 27, 2002, among the Issuer, the
Subsidiary Guarantors and the Initial Purchasers (the "Purchase Agreement").
Additional Notes also may be offered and sold by the Issuer from time to time
subject to compliance at the time of issuance with Section 4.09.
Notes offered and sold in reliance on Regulation S as provided in the
Purchase Agreement shall be issued initially in the form of one or more Global
Notes in fully registered form without interest coupons substantially in the
form of Exhibit A hereto, with such applicable legends as are provided in
Exhibit A hereto, except as otherwise permitted herein (the "Regulation S
Global Note"), which shall be deposited on behalf of the purchasers of the
Notes represented thereby with the Depositary, and registered in the name of
the Depositary or its nominee, as the case may be, duly executed by the Issuer
and authenticated by the Trustee (or its agent in accordance with Section
2.02) as hereinafter provided. The aggregate principal amount of the
Regulation S Global Note may from time to time be increased or decreased by
adjustments made by the Registrar on Schedule A to the Regulation S Global
Note and recorded in the Security Register, as hereinafter provided.
Notes offered and sold to QIBs in reliance on Rule 144A as provided in the
Purchase Agreement shall be issued initially in the form of one or more Global
Notes in fully registered form without interest coupons substantially in the
form of Exhibit A hereto, with such applicable legends as are provided in
Exhibit A hereto, except as otherwise permitted
29
herein (the "Restricted Global Note"), which shall be deposited on behalf of
the purchasers of the Notes represented thereby with the Depositary, and
registered in the name of the Depositary or its nominee, as the case may be,
duly executed by the Issuer and authenticated by the Trustee (or its agent in
accordance with Section 2.02) as hereinafter provided. The aggregate principal
amount of the Restricted Global Note may from time to time be increased or
decreased by adjustments made by the Registrar on Schedule A to the Restricted
Global Note and recorded in the Security Register, as hereinafter provided.
If and when issued, Exchange Notes offered to Holders of the Notes, as
provided in the Registration Rights Agreement, shall be issued initially in the
form of one or more Global Notes in fully registered form without interest
coupons substantially in the form of Exhibit B hereto, with such applicable
legends as are provided in Exhibit B hereto, except as otherwise permitted
herein (the "Exchange Global Note"), which shall be deposited on behalf of the
Holders of the Exchange Notes represented thereby with the Depositary, and
registered in the name of the Depositary or its nominee, as the case may be,
duly executed by the Issuer and authenticated by the Trustee (or its agent in
accordance with Section 2.02) as hereinafter provided. The aggregate principal
amount of the Exchange Global Note may from time to time be increased or
decreased by adjustments made by the Registrar on Schedule A to the Exchange
Global Note and recorded in the Security Register, as hereinafter provided.
(c) Book-Entry Provisions. This Section 2.01(c) shall apply to the
Regulation S Global Note, the Restricted Global Note and, if and when issued,
the Exchange Global Note (collectively, the "Global Notes") deposited with or on
behalf of the Depositary.
Members of, or participants and account holders in, DTC (including ▇▇▇▇▇▇
Guaranty Trust Company of New York (Brussels office) as operator of the
Euroclear System and Clearstream Banking, societe anonyme), ("Participants")
shall have no rights under this Indenture with respect to any Global Note held
on their behalf by the Depositary or by the Trustee or other custodian of the
Depositary, or under such Global Note, and the Depositary or its nominee may be
treated by the Issuer, the Subsidiary Guarantors, the Trustee and any agent of
the Issuer, the Subsidiary Guarantors or the Trustee as the sole owner of such
Global Note for all purposes whatsoever. Notwithstanding the foregoing, nothing
herein shall prevent the Issuer, the Subsidiary Guarantors, the Trustee or any
agent of the Issuer, the Subsidiary Guarantors or the Trustee from giving effect
to any written certification, proxy or other authorization furnished by the
Depositary or impair, as between the Depositary and its Participants, the
operation of customary practices of such persons governing the exercise of the
rights of a Holder of a beneficial interest in any Global Note.
Subject to the provisions of Section 2.09(b), the registered Holder of a
Global Note may grant proxies and otherwise authorize any Person, including
Participants and Persons that may hold interests through Participants, to take
any action which a Holder is entitled to take under this Indenture or the Notes.
Except as provided in Section 2.09 owners of a beneficial interest in
Global Notes will not be entitled to receive physical delivery of certificated
Notes.
(d) Cessation of Restrictions. Upon the consummation of a Registered
Exchange Offer, the requirements that any Original Note remaining outstanding
(i) be issued in global
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form shall continue to apply, subject to Section 2.09, and (ii) contain the
applicable legend set forth in Exhibit A hereto shall continue to apply.
Any Exchange Note issued in respect of any Note shall bear only the legends
set forth in Exhibit B hereto. After a transfer of any Note pursuant to a Shelf
Registration Statement, the requirement that any Note be issued in global form
shall continue to apply, subject to Section 2.09, but all requirements
pertaining to legends on such Note as set forth in Exhibit A hereto shall cease
to apply (provided that such Note shall bear the legends set forth in Exhibit B
hereto), beneficial interests in such Note shall be reflected in the Exchange
Global Note and the provisions relating to the payment of Special Interest on
such Note shall cease to apply.
SECTION 2.02. Execution and Authentication. An authorized member of the
board of directors or executive officer of the Issuer shall sign the Notes for
the Issuer by manual or facsimile signature.
If an authorized member of the board of directors or executive officer
whose signature is on a Note no longer holds that office at the time the Trustee
authenticates the Note, the Note shall be valid nevertheless.
A Note shall not be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose until an authorized signatory of the Trustee
manually signs the certificate of authentication, substantially in the form
provided in Exhibit A and Exhibit B hereto, on the Note. The signature shall be
conclusive evidence that the Note has been authenticated under this Indenture.
Pursuant to an Issuer Order, the Issuer shall execute and the Trustee shall
authenticate (a) Original Notes (including one or more Global Notes in
accordance with Section 2.01(c)) for original issue up to an aggregate principal
amount of $200,000,000, (b) Additional Notes subject to compliance at the time
of issuance of such Additional Notes with Section 4.09, and (c) Exchange Notes
for issue only in a Registered Exchange Offer, pursuant to the Registration
Rights Agreement, for Notes up to a like principal amount. The aggregate
principal amount of Notes outstanding shall not exceed the amount set forth
herein except as provided in Section 2.07.
The Trustee may appoint an authenticating agent reasonably acceptable to
the Issuer to authenticate the Notes. Unless limited by the terms of such
appointment, an authenticating agent may authenticate Notes whenever the Trustee
may do so. Each reference in this Indenture to authentication by the Trustee
includes authentication by such agent. An authenticating agent has the same
rights as any Registrar, Paying Agent or agent for service of notices and
demands.
The Trustee shall have the right to decline to authenticate and deliver any
Notes under this Section 2.02 if the Trustee, being advised by counsel,
determines that such action may not lawfully be taken or if the Trustee in good
faith shall determine that such action would expose the Trustee to personal
liability to existing Holders.
SECTION 2.03. Registrar, Security Register and Paying Agent. Subject to any
applicable laws and regulations, the Issuer shall cause the Registrar to keep a
register (the
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"Security Register") at its corporate trust office in which, subject to such
reasonable regulations it may prescribe, the Issuer shall provide for the
registration of ownership, exchange, and transfer of the Notes. Such
registration in the Security Register shall be conclusive evidence of the
ownership of Notes. Included in the books and records for the Notes shall be
notations as to whether such Notes have been paid, exchanged or transferred,
canceled, lost, stolen, mutilated or destroyed and whether such Notes have been
replaced. In the case of the replacement of any of the Notes, the Registrar
shall keep a record of the Note so replaced and the Note issued in replacement
thereof. In the case of the cancellation of any of the Notes, the Registrar
shall keep a record of the Note so canceled and the date on which such Note was
canceled.
The Issuer shall maintain in each of London, England and New York, New York
an office or agency where any certificated Notes may be presented for payment to
the Paying Agent. The Issuer shall at all times maintain a Paying Agent in
Luxembourg as long as the Notes are listed on the Luxembourg Stock Exchange and
the rules of such exchange so require. The Issuer may have one or more
Co-Registrars and one or more additional paying agents or exchange agents. The
term "Paying Agent" includes any additional paying agent.
The Issuer shall enter into an appropriate agency agreement with any
Paying Agent or Co-Registrar not a party to this Indenture, which, following
the effectiveness of a Registration Statement pursuant to the Registration
Rights Agreement, shall incorporate the terms of the TIA. The agreement shall
implement the provisions of this Indenture that relate to such agent. The
Issuer shall notify the Trustee of the name and address of any such agent.
Initially, The Bank of New York will act as Paying Agent and Registrar. If the
Issuer fails to maintain a Registrar or Paying Agent, the Trustee shall act as
such and shall be entitled to appropriate compensation therefor pursuant to
Section 7.07. The Issuer or any of its Wholly Owned Restricted Subsidiaries
incorporated in the United States may act as Paying Agent, Registrar,
Co-Registrar or transfer agent.
SECTION 2.04. Denominations. The Notes shall be issued without coupons and
only in denominations of $1,000 or any integral multiple thereof.
SECTION 2.05. Holder Lists and Registration Rights Agreements. (a) The
Registrar shall preserve in as current a form as is reasonably practicable the
most recent list available to it of the names and addresses of Holders. If the
Trustee is not the Registrar, the Issuer shall furnish to the Trustee, in
writing no later than the Record Date for each Interest Payment Date and at such
other times as the Trustee may request in writing, a list in such form and as of
such Record Date as the Trustee may reasonably require of the names and
addresses of Holders.
(b) The Trustee shall maintain copies of the Registration Rights
Agreement available for inspection by Holders during normal business hours at
its Corporate Trust Office for so long as there are Notes outstanding which are
subject to registration under the Registration Rights Agreement.
SECTION 2.06. Transfer and Exchange. (a) Where Notes are presented to the
Registrar or a Co-Registrar with a request to register a transfer or to exchange
them for an equal principal amount of Notes of other denominations, the
Registrar shall register the transfer or make the exchange in accordance with
the requirements of this Section 2.06. To
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permit registrations of transfers and exchanges, the Issuer shall execute and
the Trustee shall authenticate and deliver, in the name of the designated
transferee or transferees, one or more new Notes, of any authorized
denominations and of alike aggregate principal amount, at the Registrar's
request. No service charge shall be made for any registration of transfer or
exchange of Notes (except as otherwise expressly permitted herein), but the
Issuer may require payment of a sum sufficient to cover any transfer tax or
similar governmental charge payable in connection with any such registration of
transfer or exchange of Notes (other than any such transfer tax or similar
governmental charge payable upon exchanges pursuant to Sections 2.09, 3.06 or
9.05) or in accordance with an Excess Proceeds Offer pursuant to Section 4.11 or
Change of Control Offer pursuant to Section 4.13, not involving a transfer.
Upon presentation for exchange or transfer of any Note at the office of the
Registrar as permitted by the terms of this Indenture and by any legend
appearing on such Note, such Note shall be exchanged or transferred upon the
Security Register and one or more new Notes shall be authenticated and issued in
the name of the Holder (in the case of exchanges only) or the transferee, as the
case may be. No exchange or transfer of a Note shall be effective under this
Indenture unless and until such Note has been registered in the name of such
Person in the Security Register. Furthermore, the exchange or transfer of any
Note shall not be effective under this Indenture unless the request for such
exchange or transfer is made by the Holder or by a duly authorized
attorney-in-fact at the office of the Registrar.
Every Note presented or surrendered for registration of transfer or for
exchange shall (if so required by the Issuer or the Registrar) be duly endorsed,
or be accompanied by a written instrument or transfer, in form satisfactory to
the Issuer and the Registrar, duly executed by the Holder thereof or his
attorney duly authorized in writing.
All Notes issued upon any registration of transfer or exchange of Notes
shall be the valid obligations of the Issuer evidencing the same indebtedness,
and entitled to the same benefits under this Indenture, as the Notes surrendered
upon such registration of transfer or exchange.
In the event that the Issuer delivers to the Trustee a copy of an Officer's
Certificate certifying that a registration statement under the Securities Act
with respect to the Registered Exchange Offer, or a Shelf Registration Statement
has been declared effective by the SEC and that the Issuer has offered Exchange
Notes to the Holders in accordance with the Registered Exchange Offer or that
Notes have been offered pursuant to such Shelf Registration Statement, the
Trustee shall exchange or issue upon transfer, as the case may be, upon request
of any Holder, such Holder's Notes for (i) in the case of a Registered Exchange
Offer, Exchange Notes upon the terms set forth in the Registered Exchange Offer
or (ii) in the case of a transfer pursuant to a Shelf Registration Statement,
Notes that comply with the requirements applicable following such a transfer as
set forth in Section 2.01(d).
The Issuer shall not be required (i) to issue, register the transfer of or
exchange any Note during a period beginning at the opening of 15 Business days
before the day of the mailing of a notice of redemption of Notes selected for
redemption under Section 3.02 and ending at the close of business on the day of
such mailing, or (ii) to register the transfer of or exchange any Note so
selected for redemption in whole or in part, except the unredeemed portion of
any Note being redeemed in part.
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(b) Notwithstanding any provision to the contrary herein, so long as
a Global Note remains outstanding and is held by or on behalf of the Depositary,
transfers of a Global Note, in whole or in part, or of any beneficial interest
therein, shall only be made in accordance with Section 2.01 (c) and this Section
2.06(b); provided that a beneficial interest in a Global Note may be transferred
to Persons who take delivery thereof in the form of a beneficial interest in the
same Global Note in accordance with the transfer restrictions set forth in the
restricted Note legend on the Note, if any.
(i) Except for transfers or exchanges made in accordance with any
of clauses (ii), (iii), (iv) or (v) of this Section 2.06(b), transfers
of a Global Note shall be limited to transfers of such Global Note in
whole, but not in part, to nominees of the Depositary or to a
successor of the Depositary or such successor's nominee.
(ii) Restricted Global Note to Regulation S Global Note. If a
holder of a beneficial interest in the Restricted Global Note
deposited with the Depositary or the Trustee as custodian for the
Depositary wishes at any time to exchange its interest in such
Restricted Global Note for an interest in the Regulation S Global
Note, or to transfer its interest in such Restricted Global Note to a
Person who is required to take delivery thereof in the form of an
interest in the Regulation S Global Note, such holder may, subject to
the rules and procedures of the Depositary, exchange or cause the
exchange of such interest for an equivalent beneficial interest in the
Regulation S Global Note only in accordance with this clause (ii).
Upon receipt by the Registrar at its office in New York, New York of
(A) written instructions given by or on behalf of the Depositary in
accordance with the rules and procedures of the Depositary directing
the Registrar to credit or cause to be credited an interest in the
Regulation S Global Note in a specified principal amount and to cause
to be debited an interest in the Restricted Global Note, (B) a written
order given in accordance with the rules and procedures of the
Depositary containing information regarding the Participant account
with the Depositary to be deducted and the Participant account to be
credited with such increase, (C) a certificate in the form of Exhibit
C attached hereto given by the holder of such beneficial interest
stating that the transfer of such interest has been made in compliance
with the transfer restrictions applicable to the Global Notes and (I)
pursuant to and in accordance with Regulation S or (II) that the Note
being transferred is being transferred in a transaction permitted by
Rule 144 and, (D) such Opinion of Counsel as the Issuer or the Trustee
may reasonably request to ensure that the requested transfer or
exchange is being made pursuant to an exemption from, or in a
transaction not subject to, the registration requirements of the
Securities Act, then the Registrar shall instruct the Depositary to
reduce or cause to be reduced the principal amount of the Restricted
Global Note and the Depositary to increase or cause to be increased
the principal amount of the Regulation S Global Note by the aggregate
principal amount of the interest in the Restricted Global Note to be
exchanged.
(iii) Regulation S Global Note to Restricted Global Note. If the
holder of a beneficial interest in the Regulation S Global Note at any
time
34
wishes to transfer such interest to a Person who wishes to take
delivery thereof in the form of a beneficial interest in the
Restricted Global Note, such transfer may be effected, subject to the
rules and procedures of the Depositary only in accordance with this
clause (iii). Upon receipt by the Registrar of (A) written
instructions given by or on behalf of the Depositary in accordance
with the rules and procedures of the Depositary directing the
Registrar to credit or cause to be credited an interest in the
Restricted Global Note in a specified principal amount and to cause to
be debited an interest in the Regulation S Global Note, (B) a written
order given in accordance with the rules and procedures of the
Depositary containing information regarding the Participant account
with the Depositary to be deducted and the Participant account with
the Depositary to be credited with such increase, (C) a certificate in
the form of Exhibit D hereto given by the holder of such beneficial
interest stating that the transfer of such interest has been made in
compliance with the transfer restrictions applicable to the Global
Notes and stating that (I) the Person transferring such Interest
reasonably believes that the Person acquiring such interest is a QIB
and is obtaining such interest in a transaction meeting the
requirements of Rule 144A and any applicable securities laws of any
state of the United States or (II) that the Person transferring such
interest is relying on an exemption other than Rule 144A from the
registration requirements of the Securities Act and, (D) such Opinion
of Counsel as the Issuer or the Trustee may reasonably request to
ensure that the requested transfer or exchange is being made pursuant
to an exemption from, or in a transaction not subject to, the
registration requirements of the Securities Act, then the Registrar
shall instruct the Depositary to reduce or cause to be reduced the
principal amount of the Regulation S Global Note and the Depositary to
increase or cause to be increased the principal amount of the
Restricted Global Note by the aggregate principal amount of the
interest in the Regulation S Global Note to be exchanged.
35
(iv) Exchange Global Note to Regulation S Global Note. Following
the earlier of the consummation of the Exchange Offer or the transfer
of a Note pursuant to a Shelf Registration Statement that results in
beneficial interests in such Note being reflected in the Exchange
Global Note, if the holder of a beneficial interest in the Exchange
Global Note at any time wishes to transfer such interest to a Person
who wishes to take delivery thereof in the form of a beneficial
interest in the Regulation S Global Note, such transfer may be
effected, subject to the rules and procedures of the Depositary, only
in accordance with this clause (iv). Upon receipt by the Registrar of
written instructions given by or on behalf of the Depositary in
accordance with the rules and procedures of the Depositary directing
the Registrar to credit or cause to be credited an interest in the
Regulation S Global Note in a specified principal amount and to cause
to be debited an interest in the Exchange Global Note, then the
Registrar shall instruct the Depositary to reduce or cause to be
reduced the principal amount of the Exchange Global Note and shall
instruct the Depositary to increase or cause to be increased the
principal amount of the Regulation S Global Note by the aggregate
principal amount of the interest in the Exchange Global Note to be
exchanged.
(v) Regulation S Global Note to Exchange Global Note. Following
the earlier of the consummation of the Exchange Offer or the transfer
of an Note pursuant to a Shelf Registration Statement that results in
beneficial interests in such Note being reflected in the Exchange
Global Note, if the holder of a beneficial interest in the Regulation
S Global Note at any time wishes to transfer such interest to a Person
who wishes to take delivery thereof in the form of a beneficial
interest in the Exchange Global Note, such transfer may be effected,
subject to the rules and procedures of the Depositary only in
accordance with this clause (v). Upon receipt by the Registrar of
written instructions given by or on behalf of the Depositary in
accordance with the rules and procedures of the Depositary directing
the Registrar to credit or cause to be credited an interest in the
Exchange Global Note in a specified principal amount and to cause to
be debited an interest in the Regulation S Global Note, then the
Registrar shall instruct the Depositary to reduce or cause to be
reduced the principal amount of the Regulation S Global Note and shall
instruct the Depositary to increase or cause to be increased the
principal amount of the Exchange Global Note by the aggregate
principal amount of the interest in the Regulation S Global Note to be
exchanged.
(vi) Other Exchanges. In the event that a Global Note is
exchanged for Notes in certificated, registered form pursuant to
Section 2.09, prior to the consummation of a Registered Exchange Offer
or the effectiveness of a Shelf Registration Statement with respect to
such Notes, such Notes may be exchanged only in accordance with such
procedures as are substantially consistent with the provisions of
clauses (ii) and (iii) above (including the certification requirements
intended to ensure that such transfers comply with Rule 144A or
Regulation S under the Securities Act, as the case may be) and such
other procedures as may from time to time be adopted by the Issuer.
(b) Except in connection with a Registered Exchange Offer or a Shelf
Registration Statement contemplated by and in accordance with the terms of
the Registration Rights Agreement, if Notes are issued upon the transfer,
exchange or replacement of Notes bearing the restricted Notes legend set
forth in Exhibit A hereto, the Notes so issued shall bear the restricted
Notes legend, and a request to remove such restricted Notes legend on Notes
will not be honored unless there is delivered to the Issuer such
satisfactory evidence, which may include an Opinion of Counsel licensed to
practice law in the State of New York, as may be reasonably required by the
Issuer, that neither the legend nor the restrictions on transfer set forth
therein are required to ensure that transfers thereof comply with the
provisions of Rule 144A or Rule 144(k) under the Securities Act. Upon
provision of such satisfactory evidence, the Trustee, at the direction of
the Issuer, shall authenticate. and deliver Notes that do not bear the
legend.
(c) The Trustee shall have no responsibility for any actions taken or not
taken by the Depositary.
SECTION 2.07. Replacement Notes. If a mutilated certificated Note is
surrendered to the Registrar or if the Holder of a Note claims that the Note has
been lost, destroyed or wrongfully taken, the Issuer shall issue and the Trustee
shall authenticate a
36
replacement Note in such form as the Note mutilated, lost, destroyed or
wrongfully taken if the Holder satisfies any other reasonable requirements of
the Trustee or the Issuer. If required by the Trustee or the Issuer, such Holder
shall furnish an indemnity bond sufficient in the judgment of the Issuer and the
Trustee to protect the Issuer, the Trustee, the Paying Agent, the Registrar and
any Co-Registrar, and any authenticating agent from any loss which any of them
may suffer if a Note is replaced. The Issuer and the Trustee may charge the
Holder for their expenses in replacing a Note.
Every replacement Note shall be an additional obligation of the Issuer.
SECTION 2.08. Outstanding Notes. Notes outstanding at any time are all
Notes authenticated by the Trustee except for those cancelled by it, those
delivered to it for cancellation and those described in this Section 2.08 as not
outstanding. A Note does not cease to be outstanding because the Issuer or an
Affiliate of the Issuer holds the Note.
If a Note is replaced pursuant to Section 2.07, it ceases to be outstanding
unless the Trustee and the Issuer receive proof satisfactory to them that the
Note which has been replaced is held by a bona fide purchaser.
If the Paying Agent segregates and holds in trust, in accordance with this
Indenture, on a redemption date or maturity date money sufficient to pay all
principal and interest payable on that date with respect to the Notes (or
portions thereof) to be redeemed or maturing, as the case may be, and the Paying
Agent is not prohibited from paying such money to the Holders on that date
pursuant to the terms of this Indenture, then on and after that date such Notes
(or portions thereof) cease to be outstanding and interest on them ceases to
accrue.
In determining whether the Holders of the required principal amount of
Notes have concurred in any direction or consent or any amendment, modification
or other change to this Indenture, Notes owned by the Issuer or by an Affiliate
of the Issuer shall be disregarded and treated as if they were not outstanding,
except that for the purposes of determining whether the Trustee shall be
protected in relying on any such direction, waiver or consent or any amendment,
modification or other change to this Indenture, only Notes which a Trust Officer
of the Trustee actually knows are so owned shall be so disregarded. Notes so
owned which have been pledged in good faith shall not be disregarded if the
pledgee establishes to the satisfaction of the Trustee the pledgees right so to
act with respect to the Notes and that the pledgee is not the Issuer or an
Affiliate of the Issuer.
SECTION 2.09. Certificated Notes. (a) A Global Note deposited with the
Depositary or other custodian for the Depositary pursuant to Section 2.01 shall
be transferred to the beneficial owners thereof in the form of certificated
Notes only if such transfer complies with Section 2.06 and (i) the Depositary
notifies the Issuer that it is unwilling or unable to continue as the Depositary
for such Global Note, or if at any time the Depositary ceases to be a "clearing
agency" registered under the Exchange Act and a successor depositary is not
appointed by the Issuer within 90 days of such notice, (ii) the Issuer, at its
option, executes and delivers to the Trustee a notice that such Global Note
shall be so transferable, registrable and exchangeable and such shall be
registrable, (iii) an Event of Default, or an event which after notice or lapse
of time or both would be an Event of Default, has occurred and is continuing
with respect to the Notes or (iv) the issuance of such
37
certificated Notes is necessary in order for a Holder or beneficial owner to
present its Note or Notes to a paying agent in order to avoid any Tax that is
imposed on or with respect to a payment made to such Holder or Beneficial Owner.
Notice of any such transfer shall be given by the Issuer in accordance with the
publication provisions of Section 12.02.
(b) Any Global Note that is transferable to the beneficial owners thereof
in the form of certificated Notes pursuant to this Section 2.09 shall be
surrendered by the Depositary to the Registrar, to be so transferred, in whole
or from time to time in part, without charge, and the Trustee shall authenticate
and deliver, upon such transfer of each portion of such Global Note, an equal
aggregate principal amount at maturity of Notes of authorized denominations in
the form of certificated Notes. Any portion of a Global Note transferred or
exchanged pursuant to this Section 2.09 shall be executed, authenticated and
delivered only in registered form in denominations of $1,000 and any integral
multiple thereof and registered in such names as the Depositary shall direct.
Subject to the foregoing, a Global Note is not exchangeable except for a Global
Note of like denomination to be registered in the name of the Depositary or its
nominee. In the event that a Global Note becomes exchangeable for certificated
Notes, payment of principal, any repurchase price, any premium, and interest on
the certificated Notes will be payable, and the transfer of the certificated
Notes will be registrable, at the office or agency of the Issuer maintained for
such purposes in accordance with section 2.03. Prior to the cessation of
transfer restrictions applicable to the Notes in accordance with Section
2.01(d), such certificated Notes shall bear the legends set forth in Exhibit A
hereto (unless the Issuer determines otherwise in accordance with applicable
law).
(c) In the event of the occurrence of any of the events specified in
Section 2.09(a), the Issuer will promptly make available to the Trustee a
reasonable supply of certificated Notes in definitive, fully registered form
without interest coupons.
SECTION 2.10. Cancellation. The Issuer at any time may deliver Notes to the
Trustee for cancellation. The Registrar and the Paying Agent shall forward to
the Trustee any Notes surrendered to them for registration of transfer, exchange
or payment. The Trustee, in accordance with its customary procedures and no one
else shall cancel (subject to the record retention requirements of the Exchange
Act and the Trustee's retention policy) all Notes surrendered for registration
of transfer, exchange, payment or cancellation and dispose of such cancelled
Notes in its customary manner. Except as otherwise provided in this Indenture
the Issuer may not issue new Notes to replace Notes it has redeemed, paid or
delivered to the Trustee for cancellation.
SECTION 2.11. Defaulted Interest. Any interest on any Note that is payable,
but is not punctually paid or duly provided for, on the dates and in the manner
provided in the Notes and this Indenture (all such interest herein called
"Defaulted Interest") shall forthwith cease to be payable to the Holder on the
relevant record date by virtue of having been such Holder, and such Defaulted
Interest may be paid by the Issuer, at its election in each case, as provided in
clause (a) or (b) below:
(a) The Issuer may elect to make payment of any Defaulted Interest to the
Persons in whose names the Notes are registered at the close of business on
special record date for the payment of such Defaulted Interest, which shall be
fixed in the following manner. The Issuer
38
shall notify the Trustee in writing of the amount of Defaulted Interest proposed
to be paid on each Note and the date of the proposed payment, and at the same
time the Issuer may 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. In addition, the Issuer shall fix a special record date for the
payment of such Defaulted Interest, such date to be not more than 15 days and
not less than 10 days prior to the proposed payment date and not less than 15
days after the receipt by the Trustee of the notice of the proposed payment
date. The Issuer shall promptly but, in any event, not less than 15 days prior
to the special record date, notify the Trustee of such special record date and,
in the name and at the expense of the Issuer, the Trustee shall cause notice of
the proposed payment date of such Defaulted Interest and the special record date
therefor to be mailed first-class, postage prepaid to each Holder of Notes as
such Holder's address appears in the Security Register, not less than 10 days
prior to such special record date. Notice of the proposed payment date of such
Defaulted Interest and the special record date therefor having been so mailed,
such Defaulted Interest shall be paid to the Persons in whose names the Notes
are registered at the close of business on such special record date and shall no
longer be payable pursuant to clause (b) below.
(b) The Issuer may make payment of any Defaulted Interest on the Notes in any
other lawful manner not inconsistent with the requirements of any securities
exchange on which the Notes may be listed, and upon such notice as may be
required by such exchange, if, after notice given by the Issuer to the Trustee
of the proposed payment date pursuant to this clause, such manner of payment
shall be deemed reasonably practicable.
Subject to the foregoing provisions of this Section 2.11, each Note
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Note shall carry the rights to interest accrued and
unpaid, and to accrue, which were carried by such other Note.
SECTION 2.12. Record Date. The Issuer may set a record date for purposes of
determining the identity of Holders entitled to vote or to consent to any action
by vote or consent authorized or permitted by Sections 6.04 and 6.05. Unless
this Indenture provides otherwise, such record date shall by the later of 30
days prior to the first solicitation of such consent or the date of the most
recent list of Holders furnished to the Trustee pursuant to Section 2.05 prior
to such solicitation.
SECTION 2.13. Computation of Interest. Interest on the Notes shall be
computed on the basis of a 360-day year of twelve 30-day months.
SECTION 2.14. CUSIP Numbers. The Issuer in issuing the Notes may use CUSIP
numbers and ISIN numbers (if then generally in use), and, if so, the Trustee
shall use CUSIP numbers and ISIN numbers in notices of redemption as a
convenience to Holders; provided that any such notice may state that no
representation is made as to the correctness of such numbers or codes either as
printed on the Notes or as contained in any notice of a redemption and that
reliance may be placed only on the other identification numbers printed on the
Notes, and any such redemption shall not be affected by any defect in or
omission of
39
such numbers. The Issuer will promptly notify the Trustee of any change in the
CUSIP numbers or ISIN numbers.
SECTION 2.15. Issuance of Additional Notes and Exchange Notes. The Issuer
may, subject to Section 4.09 of this Indenture, issue Additional Notes under
this Indenture in accordance with the procedures of Section 2.02. The Original
Notes issued on the date of this Indenture and any Additional Notes subsequently
issued shall be treated as a single class for all purposes under this Indenture.
The exchange of an Original Note for an Exchange Note shall not constitute
payment of the Original Note, but rather a replacement of the evidence of the
Issuer's indebtedness under the Original Note so exchanged.
ARTICLE 3
REDEMPTION; OFFERS TO PURCHASE
SECTION 3.01. Notices to Trustee. If the Issuer elects to redeem Notes, it
shall notify the Trustee in writing of the redemption date, the principal amount
of Notes to be redeemed and the paragraph of the Notes pursuant to which the
redemption will occur.
The Issuer shall give each notice to the Trustee provided for in this
Section 3.01 in writing at least 10 days before the date notice is mailed to the
Holders of Notes pursuant to Section 3.03 unless the Trustee consents to a
shorter period. Such notice shall be accompanied by an Officer's Certificate and
an Opinion of Counsel from the Issuer to the effect that such redemption will
comply with the conditions herein. If fewer than all the Notes are to be
redeemed, the record date relating to such redemption shall be selected by the
Issuer and given to the Trustee, which record date shall be not less than 15
days after the date of notice to the Trustee.
SECTION 3.02. Selection of Notes to be Redeemed. If fewer than all the
Notes are to be redeemed at any time, the Trustee shall select the Notes to be
redeemed pro rata or by lot or by a method that complies with applicable legal
and securities exchange requirements, if any, and that the Trustee in its sole
discretion considers fair and appropriate and in accordance with methods
generally used at the time of selection by fiduciaries in similar circumstances,
provided that no Notes of less than $1,000 principal amount at maturity shall be
redeemed in part. The Trustee shall make the selection from outstanding Notes
not previously called for redemption. Notes and portions of Notes the Trustee
selects shall be in amounts of $1,000 or an integral multiple of $1,000.
Provisions of this Indenture that apply to Notes called for redemption also
apply to portions of Notes called for redemption. The Trustee shall notify the
Issuer in writing promptly of the Notes or portions of Notes to be redeemed.
SECTION 3.03. Notice of Redemption. At least 30 days but not more than 60
days before a date for redemption of Notes, the Issuer shall mail a notice of
redemption by first-class mail to each Holder of Notes to be redeemed and shall
comply with the publication provisions relating to such notice in accordance
with Section 12.02.
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The notice shall identify the Notes to be redeemed and shall state
(including CUSIP numbers, ISIN numbers and Common Codes):
(a) the redemption date;
(b) the redemption price and the amount of accrued interest, if any, to be
paid;
(c) the name and address of the Paying Agent;
(d) that Notes called for redemption must be surrendered to the Paying
Agent to collect the redemption price plus accrued interest (if any);
(e) if any Global Note is being redeemed in part, the portion of the
principal amount of such Note to be redeemed and that, after the redemption
date, upon surrender of such Global Note, the principal amount of the
Global Note will be reduced on the Security Register, adjusting the
principal amount thereof to be equal to the unredeemed portion;
(f) if any certificated Note is being redeemed in part, the portion of the
principal amount of such Note to be redeemed and that, after the redemption
date, upon surrender of such certificated Note, a new certificated Note or
certificated Notes in principal amount equal to the unredeemed portion will
be issued;
(g) if fewer than all the outstanding Notes are to be redeemed, the
identification and principal amounts of the particular Notes to be
redeemed;
(h) that, unless the Issuer and the Subsidiary Guarantors default in making
such redemption payment or the Paying Agent is prohibited from making such
payment pursuant to the terms of this Indenture, interest on the Notes (or
portion thereof) called for redemption shall cease to accrue on and after
the redemption date;
(i) the paragraph of the Notes pursuant to which the Notes called for
redemption are being redeemed; and
(j) that no representation is made as to the correctness or accuracy of the
CUSIP ISIN, Common Code or similar number, if any, listed in such notice or
printed on the Notes.
At the Issuer's written request, the Trustee shall give the notice of
redemption in the Issuer's name and at the Issuer's expense. In such event, the
Issuer shall provide the Trustee with the notice and the other information
required by this Section 3.03.
SECTION 3.04. Effect of Notice of Redemption. Once a notice of
redemption is mailed, Notes called for redemption become due and payable on the
redemption date and at the redemption price stated in the notice. Upon surrender
to the Paying Agent, such Notes shall be paid at the redemption price stated in
the notice, plus accrued interest, if any, to the redemption date (subject to
the right of Holders of record on the relevant record date to receive interest
due on the related Interest Payment Date). Failure to give notice or any defect
in the notice to any Holder shall not affect the validity of the notice to any
other Holder.
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SECTION 3.05. Deposit of Redemption Price. On the Business Day prior to the
redemption date, the Issuer or the Subsidiary Guarantors shall deposit with the
Paying Agent (or, if the Issuer or a Wholly Owned Subsidiary is the Paying
Agent, shall segregate and hold in trust) a sum in same day funds sufficient to
pay the redemption price of and accrued interest (subject to the right of
Holders of record on the relevant record date to receive interest due on the
related Interest Payment Date) on all Notes to be redeemed on that date other
than Notes or portions of Notes called for redemption which have been delivered
by the Issuer to the Trustee for cancellation. The Paying Agent shall return to
the Issuer, or the Subsidiary Guarantors, as the case may be, any money so
deposited which is not required for that purpose.
If the Issuer or the Subsidiary Guarantors comply with the preceding
paragraph, then, unless the Issuer or the Subsidiary Guarantors default in the
payment of such redemption price plus accrued interest, if any, interest on the
Notes to be redeemed will cease to accrue on and after the applicable redemption
date, whether or not such Notes are presented for payment.
SECTION 3.06. Notes Redeemed in Part. Upon surrender of a Global Note that
is redeemed in part, the Paying Agent shall forward such Global Note to the
Trustee who shall make a notation on the Security Register to reduce the
principal amount of such Global Note to an amount equal to the unredeemed
portion of the Global Note surrendered; provided that each such Global Note
shall be in a principal amount at maturity of $1,000 or an integral multiple
thereof. Upon surrender and cancellation of a certificated Note that is redeemed
in part, the Issuer shall execute and the Trustee shall authenticate for the
Holder (at the Issuer's expense) a new Note equal in principal amount to the
unredeemed portion of the Note surrendered and canceled; provided that each such
certificated Note shall be in a principal amount at maturity of $1,000 or an
integral multiple thereof.
SECTION 3.07. Optional Redemption. The Issuer may redeem all or any portion
of the Notes, upon the terms and at the redemption prices set forth in each of
the Notes. Any redemption pursuant to this Section 3.07 shall be made pursuant
to the provisions of Sections 3.01 through 3.06.
SECTION 3.08. Excess Proceeds Offer and Change of Control Offer. (a) In the
event that, pursuant to Section 4.11 or 4.13, the Issuer shall commence an
Excess Proceeds Offer or Change of Control Offer to all Holders of the Notes to
purchase Notes, the Issuer shall follow the procedures in this Section 3.08.
(b) The Excess Proceeds Offer or the Change of Control Offer, as the case
may be, shall remain open for a period specified by the Issuer, which shall be
no less than 30 calendar days and no more than 60 calendar days following its
commencement (which occurs on the date that the notice pursuant to Section
3.08(e) is mailed) (the "Commencement Date") (as determined in accordance with
Section 4.11 or 4.13, as the case may be), except to the extent that a longer
notice period is required by applicable law (the "Tender Period"). Upon the
expiration of the Tender Period (the "Purchase Date"), the Issuer shall purchase
the principal amount of Notes required to be purchased pursuant to Section 4.11
or 4.13 (the "Offer Amount") or, if less than the Offer Amount has been
tendered, all Notes timely and otherwise properly tendered in response to the
Excess Proceeds Offer or the Change of
42
Control Offer, as the case may be, and not withdrawn in accordance with the
procedures set forth in this Section 3.08.
(c) If the Purchase Date is on or after a Record Date and on or before
the related Interest Payment Date, any accrued interest will be paid to the
Holder in whose name such Note is registered at the close of business on such
Record Date, and no additional interest will be payable to Holders with respect
to Notes tendered pursuant to the Excess Proceeds Offer or the Change of Control
Offer, as the case may be.
(d) The Issuer or a Subsidiary Guarantor shall provide the Trustee with
notice of the Excess Proceeds Offer or the Change of Control Offer, as the case
may be, at least 10 days before the Commencement Date. Prior to the Commencement
Date of any Excess Proceeds Offer or Change of Control Offer, the Issuer or a
Subsidiary Guarantor shall furnish to the Trustee an Officer's Certificate and
an Opinion of Counsel stating that all conditions precedent to such Excess
Proceeds Offer or Change of Control Offer contained in this Indenture have been
met.
(e) Within the time period specified in Section 4.11(3) if the Issuer
becomes obligated to make an Excess Proceeds Offer, or within the time period
specified in Section 4.13 following a Change of Control, the Issuer or a
Subsidiary Guarantor shall cause a notice of the Excess Proceeds Offer of Change
of Control Offer, as the case may be, to be sent at least once to the newswire
service of Bloomberg or similar business news service in the United States and
shall send, by first-class mail, with a copy to the Trustee, a notice to each of
the Holders and shall comply with the publication provisions relating to such
notice in accordance With Section 12.02, and shall state:
(i) that the Excess Proceeds Offer or the Change of Control Offer
is being made pursuant to this Section 3.08 and, as applicable,
Section 4.11 or 4.13, the length of time the Excess Proceeds Offer or
the Change of Control Offer will remain open and that, in the case of
a Change of Control Offer, all Notes timely and otherwise properly
tendered will be accepted for payment, and that, in the case of an
Excess Proceeds Offer, the Notes timely and otherwise properly
tendered will be accepted for payment subject to clause (viii) of this
Section 3.08(e);
(ii) the Offer Amount, the purchase price (as determined in
accordance with Section 4.11 or 4.13) and the Purchase Date which
shall be, subject to any contrary requirements of applicable law, a
Business Day no earlier than 30 days nor later than 60 days from the
date notice of such Offer is mailed;
(iii) that any Note or portion thereof not tendered or accepted
for payment will continue to accrue interest;
(iv) the aggregate principal amount of Notes (or portions
thereof) to be purchased;
(v) that, unless the Issuer and the Subsidiary Guarantors default
in the payment of the purchase price, all Notes or portions thereof
accepted for
43
payment pursuant to the Excess Proceeds Offer or the Change of Control
Offer shall cease to accrue interest after the Purchase Date;
(vi) that Holders electing to have any Notes or portions thereof
purchased pursuant to an Excess Proceeds Offer or Change of Control
Offer will be required to surrender the Note, with the form entitled
"Option of Holder to Elect Purchase" on the reverse of the Note
completed, to the Paying Agent at the address specified in the notice
prior to the close of business on the third Business Day preceding the
Purchase Date;
(vii) that Holders will be entitled to withdraw their election if
the Paying Agent receives, not later than the close of business on the
second Business Day preceding the Purchase Date or such longer period
as may be required by law, a letter or facsimile transmission (receipt
of which is confirmed and promptly followed by a letter) setting forth
the name of the Holder, the principal amount of the Note or portion
thereof the Holder delivered for purchase, and a statement that such
Holder is withdrawing his election to have the Note or portion thereof
purchased;
(viii) that, in the case of an Excess Proceeds Offer, if the
aggregate principal amount of Notes (together with accrued interest,
if any, thereon) surrendered by Holders exceeds the amount of Excess
Proceeds, the Trustee shall select the Notes to be purchased on a pro
rata basis as provided in Section 3.02;
(ix) that the Holder of a Global Note whose Global Note is
purchased only in part will have the principal amount of its Global
Note reduced on the Security Register, which principal amount of such
Global Note will be adjusted by the Registrar to equal the unpurchased
portion of the Global Note surrendered, which unpurchased portion must
be equal to $1,000 in principal amount at maturity or an integral
multiple thereof and that Holders of any certificated Notes whose
certificated Notes are being purchased only in part will be issued new
certificated Notes equal in principal amount to the unpurchased
portion of the certificated Notes surrendered, which unpurchased
portion must be equal to $1,000 in principal amount at maturity or an
integral multiple thereof;
(x) a description, in the case of a Change of Control Offer, of
the transaction or transactions constituting the relevant Change of
Control Triggering Event; and
(xi) the procedures that the Holders of Notes must follow in
order to tender their Notes (or a portion thereof) for payment.
In addition, the notice shall, to the extent required by Section 4.08 and
permitted by applicable law, be accompanied by a copy of the information
regarding the Issuer and its Subsidiaries which is required to be contained in
the most recent quarterly report required to be filed with the SEC or furnished
to the Trustee pursuant to Section 4.08 or annual report (including any
financial statements or other information required to be included or
44
incorporated by reference therein) and any reports on Form 6-K (or any successor
form) which the Issuer has filed with the SEC or furnished to the Trustee
pursuant to Section 4.08 since the date of such quarterly report or annual
report, as the case may be, on or prior to the date of the notice. The notice
shall contain all instructions and materials necessary to enable such Holders to
tender Notes pursuant to the Excess Proceeds Offer or the Change of Control
Offer, as the case may be. If the Issuer or a Subsidiary Guarantor requests the
Trustee to furnish such information to the Holders, the Trustee shall promptly
notify the Issuer whether the Trustee will comply with such request, and in any
event, the Issuer or the Subsidiary Guarantor shall provide the Trustee with the
information required by this Section 3.08(e) within a reasonable time prior to
the expiration of the relevant time periods specified in the first sentence of
this Section 3.08(e).
(f) On the Purchase Date, the Issuer or a Subsidiary Guarantor shall, to
the extent lawful, (i) accept for payment the Notes or portions thereof tendered
pursuant to the Excess Proceeds Offer or the Change of Control Offer, (ii)
irrevocably deposit with the Paying Agent in immediately available funds an
amount equal to the Offer Amount to be held for payment in accordance with the
terms of this Section 3.08, (iii) deliver or cause the Depositary or the Paying
Agent to deliver to the Trustee the Notes so accepted and (iv) deliver to the
Trustee an Officer's Certificate stating that such Notes or portions thereof
have been accepted for payment in accordance with the terms of this Section
3.08. On the Purchase Date, the Paying Agent shall promptly cause the principal
amount of any Global Note so tendered to be reduced on the Security Register in
an amount equal to any unpurchased portion of such Global Note, which
unpurchased portion must be equal to $1,000 in principal amount at maturity or
an integral multiple thereof and shall promptly authenticate and mail or deliver
to each tendering Holder of a certificated Note, if any, a new certificated Note
equal in principal amount to any unpurchased portion of the certificated Note
surrendered, which unpurchased portion must be equal to $1,000 in principal
amount at maturity or an integral multiple thereof. The Issuer or a Subsidiary
Guarantor, as the case may be, shall promptly (but in any case not later than
ten (10) calendar days after the Purchase Date) mail or deliver to each
tendering Holder an amount equal to the purchase price of the Notes tendered by
such Holder and accepted for purchase in accordance with this Section 3.08. Any
Notes not so accepted shall be promptly mailed or delivered by or on behalf of
the Issuer to the Holder thereof. The Issuer or a Subsidiary Guarantor shall
publicly announce the results of the Excess Proceeds Offer or the Change of
Control Offer on the Purchase Date in accordance with the publication provisions
of Section 12.02.
(g) The Issuer and the Subsidiary Guarantors, as appropriate, shall comply
with the requirements of Rule 13e-4 and Rule 14e-1 of Regulation 14E under the
Exchange Act and any other U.S., Canadian, U.K. and European securities laws and
regulations to the extent applicable in connection with the repurchase of the
Notes with respect to the Excess Proceeds Offer or the Change of Control Offer.
To the extent that the provisions of any securities laws or regulations conflict
with the Excess Proceeds Offer or Change of Control Offer, each of the Issuer
and the Subsidiary Guarantors shall comply with such provisions and shall not be
deemed to have breached their obligations under Section 4.11 and Section 4.13 by
virtue thereof. The Excess Proceeds Offer or the Change of Control Offer shall
include all instructions and materials necessary to enable such Holders to
tender their Notes.
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ARTICLE 4
COVENANTS
SECTION 4.01. Payment of Notes. The Issuer or the Subsidiary Guarantors
shall promptly pay the principal of, premium, if any, interest (including
Special Interest, if any), and Additional Amounts, if any, on the Notes on the
dates and in the manner provided in the Notes and in this Indenture. Principal
and Interest shall be considered paid on the date due if on such date the
Trustee or the Paying Agent holds, in accordance with this Indenture, money
sufficient to pay all principal and interest then due. The Issuer shall provide
to the Trustee not later than one Business Day prior to any payment date a sum
sufficient to make payments hereunder.
The Issuer or the Subsidiary Guarantors shall pay interest on overdue
principal at the rate specified therefor in the Notes. It shall pay interest on
overdue installments of interest at the same rate to the extent lawful.
SECTION 4.02. Maintenance of Office or Agency. The Issuer and the
Subsidiary Guarantors shall maintain in each of London, England, and New York,
New York, an office or agency where Notes may be presented or surrendered for
payment, where Notes may be surrendered for transfer or exchange and where
notices and demands to or upon the Issuer or the Subsidiary Guarantors in
respect of the Notes and this Indenture may be served. The offices of The Bank
of New York at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ and at ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇, ▇▇▇ shall be such offices or agencies, unless
the Issuer or the Subsidiary Guarantors shall designate and maintain some other
office or agency for one or more of such purposes. The Issuer and the Subsidiary
Guarantors also shall at all times maintain a Paying Agent in Luxembourg so long
as the Notes are listed on The Luxembourg Stock Exchange and the rules of the
Luxembourg Stock Exchange so require. The Issuer or the Subsidiary Guarantors
shall give prompt written notice to the Trustee of any change in the location of
any such office or agency. If at any time the Issuer or the Subsidiary
Guarantors 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 each of the Issuer and the Subsidiary Guarantors
hereby appoints the Trustee as its agent to receive all such presentations,
surrenders, notices and demands.
The Issuer or the Subsidiary Guarantors may also from time to time
designate one or more other offices or agencies (in or outside of London,
England and New York, New York) where the Notes may be presented or surrendered
for any or all such purposes and may from time to time rescind any such
designation; provided that no such designation or rescission shall in any manner
relieve the Issuer or the Subsidiary Guarantors of their obligation to maintain
an office or agency in London, England and New York, New York for such purposes.
The Issuer and the Subsidiary Guarantors shall 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 4.03. Money for Note Payments To Be Held in Trust. If either the
Issuer or the Subsidiary Guarantors shall at any time act as Paying Agent, such
Person shall,
46
on or before each due date of the principal of, premium, if any, interest
(including Special Interest, if any), or Additional Amounts, if any, on any of
the Notes, segregate and hold in trust (with respect to the Subsidiary
Guarantors, if possible under applicable law) for the benefit of the Persons
entitled thereto a sum sufficient to pay the principal of, premium, if any,
interest (including Special Interest, if any), or Additional Amounts, if any, so
becoming due until such sums shall be paid to such Persons or otherwise disposed
of as herein provided and shall promptly notify the Trustee of its action or
failure so to act.
Whenever the Issuer shall have one or more Paying Agents for the Notes, it
shall, on or before each due date of the principal of, premium, if any, interest
(including Special Interest, if any), or Additional Amounts, if any, on, any
Notes, deposit with a Paying Agent a sum sufficient to pay the principal,
premium, if any, interest or Additional Amounts, if any, so becoming due, such
sum to be held in trust for the benefit of the Persons entitled to such
principal, premium, interest or Additional Amounts, and (unless such Paying
Agent is the Trustee) the Issuer shall promptly notify the Trustee of such
action or any failure so to act.
The Issuer shall cause the Paying Agent (if 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 4.03,
that such Paying Agent shall:
(a) hold all sums held by it for the payment of the principal of, premium,
if any, interest (including Special Interest, if any), or Additional
Amounts, if any, on the Notes 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;
(b) give the Trustee notice of any default by the Issuer (or any other
obligor upon the Notes) in the making of any payment of principal, premium,
if any, interest (including Special Interest, if any), or Additional
Amounts, if any; and
(c) 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 Issuer or the Subsidiary Guarantors may at any time, for the purpose of
obtaining the satisfaction and discharge of this Indenture or for any other
purpose, pay, or by Issuer Order direct any Paying Agent to pay, to the Trustee
all sums held in trust by the Issuer or the Subsidiary Guarantors 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 Issuer or the Subsidiary Guarantors 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 Issuer or the Subsidiary Guarantors (if possible under applicable law) in
trust for the payment of the principal of premium, if any, interest (including
Special Interest, if any), or Additional Amounts, if any, on any Note and
remaining unclaimed for three years after such principal, premium or interest or
Additional Amounts has become due and payable shall be paid to the Issuer and
the Subsidiary Guarantors or (if then held by the Issuer and the Subsidiary
Guarantors) shall be discharged from such trust; and the Holder of such Note
shall thereafter,
47
as an unsecured general creditor, look only to the Issuer and the Subsidiary
Guarantors for payment thereof, and all liability of the Trustee or such Paying
Agent with respect to such trust money, and all liability of the Issuer or the
Subsidiary Guarantors as trustee thereof, shall thereupon cease; provided, that
the Trustee or such Paying Agent, before being required to make any such
repayment, may at the expense of the Issuer or the Subsidiary Guarantors cause
to be published once, in accordance with the publication provisions of Section
12.02, 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 shall be repaid to tile
Issuer or the Subsidiary Guarantors.
SECTION 4.04. Corporate Existence. Subject to Article 5, each of the Issuer
and the Subsidiary Guarantors shall do or cause to be done all things necessary
to preserve and keep in full force and effect its corporate existence and the
rights (charter and statutory) and franchises of the Issuer and the Subsidiary
Guarantors and each Subsidiary; provided that the Issuer and the Subsidiary
Guarantors shall not be required to preserve any such right or franchise if the
board of directors of the Issuer shall determine that the preservation thereof
is no longer desirable in the conduct of the business of the Issuer and the
Subsidiary Guarantors and its and their Subsidiaries as a whole and that the
loss thereof is not disadvantageous in any material respect to the Holders.
SECTION 4.05. Maintenance of Properties. The Issuer shall cause all
properties owned by it or any Restricted Subsidiary or used or held for use in
the conduct of its business or the business of any Restricted Subsidiary to be
maintained and kept in good condition, repair and working order and supplied
with all necessary equipment and shall cause to be made all necessary repairs,
renewals, replacements, betterments and improvements thereof, all as in the
judgment of the Issuer may be necessary so that the business carried on in
connection therewith may be properly and advantageously conducted at all times;
provided that nothing in this Section 4.05 shall prevent the Issuer from
discontinuing the maintenance of any such properties if such discontinuance is,
in the judgment of the Issuer, desirable in the conduct of the business of the
Issuer and the Restricted Subsidiaries as a whole and not disadvantageous in any
material respect to the Holders.
SECTION 4.06. Insurance. The Issuer shall maintain, and shall cause its
Restricted Subsidiaries to maintain, insurance with carriers believed by the
Issuer to be responsible, against such risks and in such amounts, and with such
deductibles, retentions, self-insured amounts and coinsurance provisions, as the
Issuer believes are customarily carried by similar businesses, of similar size,
including as appropriate general liability, property and casualty loss and
interruption of business insurance.
SECTION 4.07. Statement as to Compliance. (a) The Issuer shall deliver to
the Trustee, within 120 days after the end of each fiscal year, an Officer's
Certificate stating that in the course of the performance by the signer of its
duties as an officer of the Issuer he would normally have knowledge of any
Default and whether or not the signer knows of any Default that occurred during
such period and if any specifying such Default, its status and what action the
Issuer is tatting or proposed to take with respect thereto. For purposes of this
Section 4.07(a), such compliance shall be determined without regard to any
period of grace or requirement of notice under this Indenture. The Issuer shall
comply with TIA ss. 314(a)(4).
48
(b) When any Default has occurred and is continuing under this Indenture,
or if the trustee of, or the holder of, any other evidence of Debt of the Issuer
or any Subsidiary outstanding in a principal amount of $10 million or more gives
any notice stating that it is a Notice of Default or takes any other action to
accelerate such Debt or enforce any Note therefor, the Issuer shall deliver to
the Trustee within five Business days by registered or certified mail or
facsimile transmission an Officer's Certificate specifying such event, notice or
other action, its status and what action the Issuer is taking or proposes to
take with respect thereto.
SECTION 4.08. Reports to Holders.
Whether or not required by the Commission, so long as any Notes are
outstanding, the Issuer shall file with, or furnish to, the Commission and
provide such information to the Trustee and Holders of the Notes within 15 days
of the periods set forth below (which filing shall be made electronically if the
Commission allows such electronic filing and in a form prescribed by the
Commission to allow it to be available via the Commission's Internet site at
▇▇▇.▇▇▇.▇▇▇):
(a) within 120 days following the end of the Issuer's fiscal year ended
31st December 2002 all annual information that would be required to be contained
in a filing with the Commission on Form 40-F (or any successor form);
(b) within 90 days following the end of the Issuer's fiscal year ended 31st
December 2003 and each of the Issuer's fiscal years thereafter (or such shorter
period as the Commission may in the future prescribe), all annual information
that would be required to be contained in a filing with the Commission on Form
40-F (or any successor form);
(c) within 45 days following the end of the first three fiscal quarters in
each of the Issuer's fiscal years after the end of the Issuer's fiscal quarter
ending 30th September 2002 (or such shorter period as the Commission may in the
future prescribe), reports on Form 6-K (or any successor form) containing
substantially the same information as would be required to be contained in a
filing with the Commission on Form 10-Q (or any successor form) for such period
if the Issuer were required to file such form (provided that financial
information may be prepared in accordance with GAAP, with an appropriate
reconciliation to U.S. generally accepted accounting principles); and
(d) promptly from time to time after the occurrence of an event required to
be reported therein, such other reports on Form 6-K (or any successor form)
containing substantially the same information required to be contained in Form
8-K (or any successor form).
In addition, if the Issuer ceases to be subject to Section 13 or 15(d) of
the Exchange Act or exempt from reporting pursuant to Rule 12g3-2(b) under the
Exchange Act, the Issuer shall furnish to the holders of the Notes and to
prospective investors, upon the requests of such holders, any information
required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act so
long as the Notes are not freely transferable under the Exchange Act by Persons
who are not "affiliates" under the Securities Act.
49
The Issuer shall also make available copies of all reports furnished or
filed with the SEC (a) on the Issuer's website, (b) through the newswire service
of Bloomberg, or, if Bloomberg does not then operate, any similar agency and (c)
if and so long as the Notes are listed on the Luxembourg Stock Exchange and the
rules of such stock exchange so require, copies of such reports furnished or
filed with the Commission shall also be made available at the specified office
of the paying agent in Luxembourg.
Delivery of such reports, information and documents to the Trustee is for
informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Issuer's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officer's Certificates).
SECTION 4.09. Limitation on Debt. (1) The Issuer shall not, and shall not
permit any Restricted Subsidiary to, create, issue, incur, assume, guarantee or
in any manner become directly or indirectly liable with respect to, or otherwise
become responsible for, contingently or otherwise, the payment of (individually
and collectively, to "incur" or, as appropriate, an "incurrence"), any Debt
(including any Acquired Debt), unless no Default or Event of Default would occur
or be continuing after giving effect on a pro forma basis to such incurrence of
Debt and:
(a) at the time of such incurrence the Consolidated Fixed Charge Coverage
Ratio for the four full fiscal quarters for which financial statements are
available immediately preceding the incurrence of such Debt, taken as one
period, would be greater than 2.5 to 1.0 if such incurrence is on or prior
to July 3, 2003 and 3.0 to 1.0 if such incurrence is after such date; and,
(b) with respect to any Restricted Subsidiary, such Debt (other than
Acquired Debt or Debt of a Qualified Finance Company Subsidiary) is not
Public Debt.
(2) This covenant shall not, however, prohibit the following (collectively,
"Permitted Debt"):
(a) the incurrence by the Issuer or any Restricted Subsidiary of Debt under
Credit Facilities in an aggregate principal amount at any one time
outstanding not to exceed $525 million, minus (i) the amount of any
permanent repayments or prepayment of such Debt with the proceeds of Asset
Sales made in accordance with Section 4.11 (Limitation on Sales of Certain
Assets) (but only to the extent of any corresponding commitment reduction
if such Debt is revolving credit borrowings), and (ii) the amount of any
scheduled permanent principal repayment provided for by the terms of the
Revolving Credit Facilities from time to time (unless refinanced on the
date of such prepayment), to be deducted on the date of each such
repayment;
(b) the incurrence by the Issuer of Debt pursuant to the Notes (other than
Additional Notes) and the incurrence of Debt by the Subsidiary Guarantors
pursuant to the Guarantees;
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(c) any Debt of the Issuer or any of its Restricted Subsidiaries (other
than Debt described in another clause of this paragraph) outstanding on the
date of this Indenture;
(d) the incurrence by the Issuer or any Restricted Subsidiary of
intercompany Debt between the Issuer or any Restricted Subsidiary or
between or among Restricted Subsidiaries; provided that
(i) if the Issuer is the obligor on any such Debt, unless
required by a Credit Facility, it is (x) unsecured and (y) is
subordinated in right of payment from and after such time as the Notes
shall become due and payable (whether upon Stated Maturity,
acceleration or otherwise) to the payment and performance of the
Issuer's obligations under the Notes, unless such Debt is owed to a
Qualified Finance Company Subsidiary, in which case it may rank
equally in right of payment with the performance of the Issuer's
obligations under the Notes; and
(ii) (x) any disposition, pledge or transfer of any such Debt to
a Person (other than a disposition, pledge or transfer to the Issuer
or a Restricted Subsidiary) and (y) any transaction pursuant to which
any Restricted Subsidiary that has Debt owing to the Issuer or another
Wholly Owned Restricted Subsidiary ceases to be a Restricted
Subsidiary, shall, in each case, be deemed to be an incurrence of such
Debt not permitted by this clause (d); or
(iii) if the Issuer is the obligor on any such Debt, unless
otherwise required by a Credit Facility, the aggregate principal
amount of such intercompany Debt outstanding at any one time does not
exceed $25 million.
(e) guarantees of the Issuer's Debt by any Restricted Subsidiary that are
permitted by and made in accordance with the provisions of Section 4.20
(Limitation on Guarantees of Debt by Restricted Subsidiaries) below;
(f) the incurrence by the Issuer or any Restricted Subsidiary of Debt
arising from agreements providing for guarantees, indemnities or
obligations in respect of purchase price adjustments in connection with the
acquisition or disposition of assets, including, without limitation, shares
of Capital Stock, other than guarantees or similar credit support given by
the Issuer or any Restricted Subsidiary of Debt incurred by any Person
acquiring all or any portion of such assets for the purpose of financing
such acquisition, provided that the maximum aggregate liability in respect
of all such Debt permitted pursuant to this clause shall at no time exceed
the net proceeds, including non-cash proceeds (the Fair Market Value of
such non-cash proceeds being measured at the time received and without
giving effect to any subsequent changes in value) actually received from
the sale of such assets;
(g) the incurrence by the Issuer or any Restricted Subsidiary of Debt under
Currency Agreements, directly related to transactions entered into in the
ordinary course of business and not for speculative purposes; provided that
such Currency Agreements do not increase the obligations outstanding of the
Issuer and its Restricted
51
Subsidiaries on a consolidated basis, other than the obligations
outstanding as a result of fluctuations in foreign currency exchange rates
or by reason of any reasonable fees, indemnities and compensation payable
thereunder;
(h) the incurrence by the Issuer or any Restricted Subsidiary of Debt under
one or a related series of Interest Rate Agreements entered into for the
purpose of limiting interest rate risk, provided that such Interest Rate
Agreement is or Interest Rate Agreements are not entered into for
speculative purposes;
(i) the incurrence by the Issuer or any Restricted Subsidiary of Debt under
Fuel Hedging Agreements entered into in the ordinary course of business,
for the purpose of limiting the impact of commodity price fluctuations,
provided that such Fuel Hedging Agreements do not increase the amount of
Debt or other obligations outstanding of the Issuer and its Restricted
Subsidiaries on a consolidated basis, other than as a result of
fluctuations in commodity prices or by reason of any reasonable fees,
indemnities and compensation payable thereunder;
(j) the incurrence by the Issuer or any Restricted Subsidiary of Debt
represented by Capitalised Lease Obligations, mortgage financings or
purchase money obligations, or other Debt incurred or assumed in connection
with the acquisition or development of real or personal, movable or
immovable, property or assets in each case incurred for the purpose of
financing or refinancing all or any part of the purchase price, lease
expense or cost of construction or improvement of property used in the
Issuer's or any Restricted Subsidiary's business (including any reasonable
related fees or expenses incurred in connection with such acquisition or
development), provided that the principal amount of such Debt so incurred
when aggregated with other Debt previously incurred in reliance on this
clause (j) and still outstanding shall not in the aggregate exceed 5% of
Total Tangible Assets as determined at the date of such incurrence; and
provided further that the total principal amount of any Debt incurred in
connection with an acquisition or development permitted under this clause
(j) did not in each case at the time of incurrence exceed (i) the Fair
Market Value of the acquired or constructed asset or improvement so
financed or (ii) in the case of an uncompleted constructed asset, the cost
of the asset to be constructed, as determined on the date the contract for
construction of such asset was entered into by the Issuer or the relevant
Restricted Subsidiary (including, in each case, any reasonable related fees
and expenses incurred in connection with such acquisition, construction or
development);
(k) the incurrence of Debt by the Issuer or any Restricted Subsidiary in
respect of workers' compensation and claims arising under similar
legislation, or pursuant to self-insurance obligations and not in
connection with the borrowing of money or the obtaining of advances or
credit;
(l) the incurrence of Debt by the Issuer or any Restricted Subsidiary
arising from: (i) the honouring by a bank or other financial institution of
a check, draft or similar instrument inadvertently (except in the case of
daylight overdrafts) drawn against insufficient funds in the ordinary
course of business; provided that such Debt is extinguished within 15
business days of incurrence, (ii) bankers' acceptances, performance,
surety, judgment, appeal or similar bonds, instruments or obligations;
52
and (iii) completion guarantees provided or letters of credit obtained by
the. Issuer or any Restricted Subsidiary in the ordinary course of
business;
(m) the incurrence of Debt pursuant to Permitted Receivables Financings in
an aggregate principal amount not to exceed 25% of Total Receivables as
determined at the date of such incurrence;
(n) the incurrence by the Issuer or any Restricted Subsidiary of Debt owed
to employees in connection with loan stock issued under employee stock
purchase plans, so long as the aggregate principal amount of all such Debt
outstanding at any one time does not exceed $2 million;
(o) the incurrence by the Issuer or any Restricted Subsidiary of Debt in
relation to: (i) regular maintenance required to maintain the
classification of any of the ships owned or chartered on bareboat terms by
the Issuer or any Restricted Subsidiary; (ii) scheduled dry-docking of any
of the ships owned by the Issuer or any Restricted Subsidiary for normal
maintenance purposes; and (iii) any expenditures that swan or may be
reasonably expected to be recoverable from insurance on such ships;
(p) the incurrence by the Issuer or any Restricted Subsidiary of Debt in
relation to the provision of bonds, guarantees, letters of credit or
similar obligations required by the United States Federal Maritime
Commission or other governmental or regulatory agencies in connection with
ships owned or business conducted by the Issuer or any Restricted
Subsidiary;
(q) the incurrence by the Issuer or any Restricted Subsidiary of Debt in
relation to the provision in the ordinary course of business of bonds,
guarantees, letters of credit or similar obligations required to remove
Liens asserted by third parties pursuant to ship arrests;
(r) the incurrence by the Issuer or any Restricted Subsidiary of Debt to
finance the replacement of a ship upon a total loss, destruction,
condemnation, confiscation, requisition, seizure, forfeiture, or other
taking of title to or use of such ship (collectively, a "Total Loss") in an
aggregate amount no greater than the amount that is equal to the contract
price for such replacement ship less all compensation, damages and other
payments (including insurance proceeds other than in respect of business
interruption insurance) received by the Issuer or any Restricted Subsidiary
from any Person in connection with the Total Loss in excess of amounts
actually used to repay Debt secured by the ship subject to the Total Loss;
(s) the incurrence of Debt by the Issuer or any Restricted Subsidiary
(other than and in addition to Debt permitted under clauses (a) through (r)
above and clause (t) below) in an aggregate principal amount at any one
time outstanding not to exceed $25 million; and
(t) the incurrence by a Person of Permitted Refinancing Debt in exchange
for or the net proceeds of which are used to refund, replace or refinance
(i) Debt incurred by it pursuant to paragraph (a) of this Section 4.09,
(ii) the Notes and (iii) Debt outstanding on the date of this Indenture.
53
(3) For purposes of determining compliance with any restriction on the
incurrence of Debt in U.S. dollars where Debt is denominated in a different
currency, the amount of such Debt shall be the Dollar Equivalent determined on
the date of such determination, provided that if any such Debt denominated in a
different currency is subject to a Currency Agreement (with respect to U.S.
dollars) covering principal amounts payable on such Debt, the amount of such
Debt expressed in U.S. dollars shall be adjusted to take into account the effect
of such agreement. The principal amount of any Permitted Refinancing Debt
incurred in the same currency as the Debt being refinanced shall be the Dollar
Equivalent of the Debt refinanced determined on the date such Debt being
refinanced was initially incurred. Notwithstanding any other provision of this
covenant, for purposes of determining compliance with this Section 4.09,
increases in Debt solely due to fluctuations in the exchange rates of currencies
shall not be deemed to exceed the maximum amount that the Issuer or a Restricted
Subsidiary may incur under this Section 4.09.
(4) For purposes of determining any particular amount of Debt under this
Section 4.09:
(a) Guarantees, Liens or obligations with respect to letters of credit
supporting Debt otherwise included in the determination of such particular
amount shall not be included;
(b) any Liens granted pursuant to the equal and rateable provisions
referred to in Section 4.14 (Limitation on Liens) shall not be treated as
Debt; and
(c) accrual of interest, accrual of dividends, the accretion of accreted
value, the obligation to pay commitment fees and the payment of interest in
the form of additional Debt shall not be treated as Debt.
(5) In the event that an item of Debt meets the criteria of more than one
of the types of Debt described in this Section 4.09, the Issuer, in its sole
discretion, shall classify items of Debt and shall only be required to include
the amount and type of such Debt in one of such clauses and the Issuer shall be
entitled to divide and classify an item of Debt in more than one of the types of
Debt described in this Section 4.09, and may change the classification of an
item of Debt (or any portion thereof) to. any other type of Debt described in
this Section 4.09 at any time.
SECTION 4.10. Limitation on Restricted Payments. (1) The Issuer shall not,
and shall not permit any Restricted Subsidiary to, directly or indirectly, take
any of the following actions (each of which is a "Restricted Payment" and which
are collectively referred to as "Restricted Payments"):
(a) declare or pay any dividend on or make any distribution (whether made
in cash, securities or other property) with respect to any shares of the
Issuer's or its Restricted Subsidiaries' Capital Stock (including, without
limitation, any payment in connection with any merger or consolidation
involving the Issuer or any Restricted Subsidiary) (other than (i) to the
Issuer or any Wholly Owned Restricted Subsidiaries or (ii) to all Holders
of Capital Stock of such Restricted Subsidiary on a pro rata basis or on a
basis that results in the receipt by the Issuer or a Restricted Subsidiary
of dividends or distributions of greater value than it would receive on a
pro rata basis) except for
54
dividends or distributions payable solely in shares of the Issuer's
Qualified Capital Stock or in options, warrants or other rights to acquire
such shares of Qualified Capital Stock;
(b) purchase, redeem or otherwise acquire or retire for value (including,
without limitation, in connection with any merger or consolidation),
directly or indirectly, any shares of the Issuer's Capital Stock or any
Capital Stock of any Affiliate of the Issuer held by persons other than the
Issuer or a Restricted Subsidiary (other than Capital Stock of any
Restricted Subsidiary or any entity that becomes a Restricted Subsidiary as
a result thereof) or any options, warrants or other rights to acquire such
shares of Capital Stock;
(c) make any principal payment on, or repurchase, redeem, defease or
otherwise acquire or retire for value, prior to any scheduled principal
payment, sinking fund payment or maturity, any Subordinated Debt (provided
that such principal payment or acquisition for value of Subordinated Debt,
if otherwise permitted to be made under this Indenture, may be made up to
90 days prior to such scheduled date); or
(d) make any Investment (other than any Permitted Investment) in any
Person, other than an Investment in a Person that shall become or be merged
into or amalgamated or consolidated with a Restricted Subsidiary as a
result of such Investment.
If any Restricted Payment described above is not made in cash, the Issuer
shall calculate the amount of the proposed Restricted Payment at the Fair Market
Value of the asset to be transferred.
(2) Notwithstanding paragraph (1) above, the Issuer may make Restricted
Payments if, at the time of and after giving pro forma effect to, such proposed
Restricted Payment:
(a) no Default or Event of Default has occurred and is continuing;
(b) the Issuer could incur at least $1.00 of additional Debt (other than
Permitted Debt) pursuant to Section 4.09 (Limitation on Debt); and
(c) the aggregate amount of all Restricted Payments declared or made after
the date of this Indenture does not exceed the sum of:
(i) 50% of the Issuer's aggregate Consolidated Adjusted Net
Income calculated on a cumulative basis during the period beginning on
31st March 2002 and ending on the last day of its last fiscal quarter
ending prior to the date of such proposed Restricted Payment (or, if
such aggregate Consolidated Adjusted Net Income shall be a negative
number, minus 100% of such negative amount); plus
(ii) the aggregate Net Cash Proceeds received by the Issuer after
the date of this Indenture as capital contributions or from the
issuance or sale (other than to any Subsidiary) of Shares of the
Issuer's Qualified Capital Stock (including upon the exercise of
options, warrants or rights) or warrants,
55
options or rights to purchase shares of the Issuer's Qualified Capital
Stock (except, in each case to the extent such proceeds are used to
purchase, redeem or otherwise retire Capital Stock or Subordinated
Debt as set forth in (b) or (c) of paragraph (3) below) (excluding the
Net Cash Proceeds from (x) the issuance of the Issuer's 8,500,000
Common Shares made on July 3, 2002 (including any Common Shares
subsequently issued in connection with the exercise of any
over-allotment option related thereto) and (y) the issuance of
Qualified Capital Stock of the Issuer financed, directly or
indirectly, using funds borrowed from the Issuer or any Subsidiary
until and to the extent such borrowing is repaid), plus
(iii) (x) the amount by which the Issuer's Debt or Debt of any
Restricted Subsidiary is reduced on the Issuer's consolidated balance
sheet after the date of this Indenture upon the conversion or exchange
(other than by the Issuer or its Subsidiary) of such Debt into
Qualified Capital Stock of the Issuer, and (y) the aggregate Net Cash
Proceeds received after the date of this Indenture by the Issuer from
the issuance or sale (other than to any Subsidiary) of Redeemable
Capital Stock that has been converted into or exchanged for the
Issuer's Qualified Capital Stock, to the extent such Redeemable
Capital Stock was originally sold for cash or Cash Equivalents,
together with, in the cases of both (x) and (y), the aggregate net
cash proceeds received by the Issuer at the time of such conversion or
exchange (excluding the Net Cash Proceeds from the issuance of
Qualified Capital Stock of the Issuer financed, directly or
indirectly, using funds borrowed from the Issuer or any Subsidiary
until and to the extent such borrowing is repaid), plus
(iv) (x) in the case of the disposition or repayment of any
Investment constituting a Restricted Payment made after the date of
this Indenture, an amount (to the extent not included in Consolidated
Adjusted Net Income) equal to the lesser of the return of capital with
respect to such Investment and the initial amount of such Investment,
in either case, less the cost of the disposition of such Investment
and net of taxes, and (y) in the case of the designation of an
Unrestricted Subsidiary as a Restricted Subsidiary (as long as the
designation of such Subsidiary as an Unrestricted Subsidiary was
deemed a Restricted Payment), the Fair Market Value of the Issuer's
interest in such Subsidiary provided that such amount shall not in any
case exceed the amount of the Restricted Payment deemed made at the
time that the Subsidiary was designated as an Unrestricted Subsidiary.
(3) Notwithstanding paragraphs (1) and (2) above, the Issuer and any
Restricted Subsidiary may take the following actions so long as (with respect to
clauses (b) through (f) below) no Default or Event of Default has occurred and
is continuing:
(a) the payment of any dividend within 60 days after the date of its
declaration if at such date of its declaration such payment would have
been permitted by the provisions of paragraph (2) above;
(b) the purchase, redemption or other acquisition or retirement for
value of any shares of the Issuer's Capital Stock or options, warrants
or other rights. to acquire such
56
Capital Stock in exchange for (including any such exchange pursuant to
the exercise of a conversion right or privilege in connection with
which cash is paid in lieu of the issuance of fractional shares or
scrip), or out of the Net Cash Proceeds of a substantially concurrent
issuance and sale (other than to a Subsidiary) of, shares of the
Issuer's Qualified Capital Stock or options, warrants or other rights
to acquire such Capital Stock;
(c) the purchase, redemption, defeasance or other acquisition or
retirement for value or payment of principal of any Subordinated Debt
in exchange for, or out of the Net Cash Proceeds of a substantially
concurrent issuance and sale (other than to a Subsidiary) of, shares
of the Issuer's Qualified Capital Stock;
(d) the purchase, redemption, defeasance or other acquisition or
retirement for value of Subordinated Debt (other than Redeemable
Capital Stock) in exchange for, or out of the Net Cash Proceeds of a
substantially concurrent incurrence (other than to a Subsidiary) of,
Permitted Refinancing Debt;
(e) the repurchase of Capital Stock deemed to occur upon the exercise
of stock options if the cumulative aggregate value of such repurchases
does not exceed the cumulative aggregate amount of the exercise price
of such options received;
(f) payments or distributions to dissenting shareholders pursuant to
applicable law in connection with or in contemplation of a merger,
consolidation or transfer of assets that complies with the provisions
of this Indenture relating to mergers, consolidations or transfers of
substantially all of the Issuer's assets;
(g) cash payments in lieu of issuing fractional shares pursuant to the
exercise or conversion of any exercisable or convertible securities;
and
(h) any other Restricted Payment provided that the total aggregate
amount of Restricted Payments made under this clause (h) does not
exceed $25 million.
The actions described in clauses (a), (f) and (g) of this paragraph (3) are
Restricted Payments that shall be permitted to be made in accordance with this
paragraph (3) but that reduce the amount that would otherwise be available for
Restricted Payments under clause (c) of paragraph (2) above.
SECTION 4.11. Limitation on Sale of Certain Assets.
(1) The Issuer shall not, and shall not permit any Restricted Subsidiary
to, engage in any Asset Sale unless:
(a) the consideration the Issuer or such Restricted Subsidiary receives for
such Asset Sale is not less than the Fair Market Value of the assets sold
(as determined by the Issuer's management or, in the case of any Asset Sale
having a Fair Market Value greater than $10 million, as determined by the
Issuer's board of directors and evidenced by a board resolution);
(b) at least 75% of the consideration the Issuer or the relevant Restricted
Subsidiary receives in respect of such Asset Sale consists of (i) cash
(including any Net Cash
57
Proceeds received from the conversion within 30 days of such Asset Sale of
securities received in consideration of such Asset Sale); (ii) Cash
Equivalents; (iii) the assumption by the purchaser of (x) the Issuer's Debt
or Debt of any Restricted Subsidiary (other than Subordinated Debt) as a
result of which the Issuer and the Restricted Subsidiaries are no longer
obligated in respect of such Debt or (y) Debt of a Restricted Subsidiary
that is no longer a Restricted Subsidiary as a result of such Asset Sale,
if the Issuer and each other Restricted Subsidiary is released from any
guarantee of such Debt as a result of such Asset Sale; or (iv) a
combination of the consideration specified in clauses (i) to (iii); and
(c) the Issuer delivers an Officers' Certificate to the Trustee certifying
that such Asset Sale complies with the provisions described in the
foregoing clauses (a) and (b).
(2) If the Issuer or any Restricted Subsidiary engages in an Asset Sale,
the Issuer or such Restricted Subsidiary may use the Net Cash Proceeds of the
Asset Sale, within 360 days after such Asset Sale, to (a) permanently repay or
prepay any then outstanding Debt of any Restricted Subsidiary (and to effect a
corresponding commitment reduction if such Debt is revolving credit borrowings)
owing to a Person other than the Issuer or a Restricted Subsidiary, or (b)
invest in properties and assets to replace the properties and assets that were
the subject of the Asset Sale or in properties and assets that shall be used in
the business of the Issuer or its Restricted Subsidiaries. The amount of such
Net Cash Proceeds not so used as set forth in this paragraph (2) constitutes
"Excess Proceeds".
(3) When the aggregate amount of Excess Proceeds exceeds $25 million, the
Issuer shall, within 20 business days, make an offer to purchase (an "Excess
Proceeds Offer") from all Holders of Notes and from the Holders of any Pari
Passu Debt, to the extent required by the terms thereof, on a pro rata basis, in
accordance with the procedures set forth in this Indenture or the agreements
governing any such Pari Passu Debt, the maximum principal amount (expressed as a
multiple of $1,000) of the Notes and any such Pari Passu Debt that may be
purchased with the amount of Excess Proceeds. The offer price as to each Note
and any such Pari Passu Debt shall be payable in cash in an amount equal to
(solely in the case of the Notes) 100% of the principal amount of such Note and
(solely in the case of Pari Passu Debt) no greater than 100% of the principal
amount (or accreted value, as applicable) of such Pari Passu Debt, plus in each
case accrued interest, if any, to the date of purchase.
To the extent that the aggregate principal amount of Notes and any such
Pari Passu Debt tendered pursuant to an Excess Proceeds Offer is less than the
amount of Excess Proceeds, the Issuer may use the amount of such Excess Proceeds
not used to purchase Notes and Pari Passu Debt for general corporate purposes
that are not otherwise prohibited by this Indenture. If the aggregate principal
amount of Notes and any such Pari Passu Debt validly tendered and not withdrawn
by Holders thereof exceeds the amount of Excess Proceeds, Notes and any such
Pari Passu Debt to be purchased shall be selected on a pro rata basis (based
upon the principal amount of Notes and the principal amount or accreted value of
such Pari Passu Debt tendered by each Holder). Upon completion of such Excess
Proceeds Offer, the amount of Excess Proceeds shall be reset to zero.
(4) If the Issuer is obligated to make an Excess Proceeds Offer, the Issuer
shall purchase the Notes and Pari Passu Debt, at the option of the Holders
thereof, in whole or in
58
part in integral multiples of $1,000, on a date that is not earlier than 30 days
and not later than 60 days from the date the notice of the Excess Proceeds Offer
is given to such Holders, or such later date as may be required under the
Exchange Act.
(5) Notwithstanding any of the foregoing, the Issuer or any Restricted
Subsidiary may engage in an Asset Swap and the provisions in clauses (2), (3)
and (4) above shall not apply to such Asset Swap except in respect of any Net
Cash Proceeds received by the Issuer or any Restricted Subsidiary; provided that
the Issuer shall not, and shall not permit any Restricted Subsidiary to, engage
in any Asset Swap, unless:
(a) at the time of entering into such Asset Swap and immediately after
giving effect to such Asset Swap, no Default or Event of Default shall have
occurred and be continuing or would occur as a consequence thereof;
(b) with respect to any Asset Swap involving the transfer of assets having
a value greater than $10 million, the Issuer delivers a board resolution
(set out in an Officers' Certificate to the Trustee) resolving that the
fairness of such Asset Swap has been approved by a majority of the
Disinterested Directors (or in the event there is only one Disinterested
Director, by such Disinterested Director) of the Issuer's board of
directors;
(c) with respect to any Asset Swap involving the transfer of assets having
a value greater than $50 million, the Issuer delivers to the Trustee a
written opinion of an investment banking firm of international standing or
an internationally recognised appraisal firm or accounting firm, whichever
is most qualified, stating that the Asset Swap is fair to the Issuer or
such Restricted Subsidiary from a financial point of view; and
(d) with respect to any Asset Swap consisting of the transfer of all or
substantially all the assets of a Subsidiary Guarantor, both (i) Rating
Agencies shall have confirmed in writing to the Issuer that no Rating
Decline shall have occurred as a result of giving effect to such sale or
disposition and (ii) the consideration received by such Subsidiary
Guarantor in respect of such Asset Swap consists of no more than 10% cash.
If the Issuer is required to make an Excess Proceeds Offer, the Issuer
shall comply with the applicable tender offer rules, including Rule 14e-1 under
the Exchange Act, and any other applicable securities laws and regulations.
SECTION 4.12. Limitation on Transactions with Affiliates. The Issuer shall
not, and shall not permit any Restricted Subsidiary to, directly or indirectly,
enter into or suffer to exist any transaction or series of related transactions
(including, without limitation, the sale, purchase, exchange or lease of assets
or property or the rendering of any service), with, or for the benefit of, any
Affiliate of the Issuer or of any Restricted Subsidiary or any direct or
indirect holder of 10% or more of any class of Capital Stock of the Issuer or
any Restricted Subsidiary or any Affiliate of such Holder unless such
transaction or series of transactions is entered into in good faith and, in the
case of such a transaction or series of transactions having a value of greater
than $2 million in writing and:
59
(a) such transaction or series of transactions is on terms that are no less
favourable to the Issuer or such Restricted Subsidiary, as the case may be,
than those that could have been obtained in a comparable arm's-length
transactions with third parties that are not such holders or Affiliates;
(b) with respect to any transaction or series of related transactions
involving aggregate payments or the transfer of assets or provision of
services, in each case having a value greater than $5 million, the Issuer
shall deliver an Officers' Certificate to the Trustee certifying that such
transaction or series of transactions complies with clause (a) above; and
(c) with respect to any transaction or series of related transactions
involving aggregate payments or the transfer of assets or provision of
services, in each case having a value greater than $10 million, the Issuer
shall deliver a board resolution (set out in an Officers' Certificate to
the Trustee) resolving that such transaction complies with clause (a) above
and that the fairness of such transaction has been approved by a majority
of the Disinterested Directors (or in the event there is only one
Disinterested Director, by such Disinterested Director) of the Issuer's
board of directors; and
(d) with respect to any transaction or series of related transactions
involving the transfer of assets having a value greater than $50 million,
the Issuer shall deliver to the Trustee a written opinion of an investment
banking firm of international standing or an internationally recognised
appraisal firm or accounting firm, whichever is most qualified, stating
that the transaction or series of transactions is fair to the Issuer or
such Restricted Subsidiary from a financial point of view.
Notwithstanding the foregoing, the restrictions set forth in this
description shall not apply to:
(i) customary directors' fees, indemnification and similar
arrangements, consulting fees, employee salaries bonuses, employment
agreements and arrangements, compensation or employee benefit
arrangements (including stock options) or legal fees, so long as the
Issuer's board of directors has approved the terms thereof and deemed
the services theretofore or thereafter to be performed for such
compensation or payments to be fair consideration therefor;
(ii) any Restricted Payments not prohibited by Section 4.10
(Limitation on Restricted Payments);
(iii) loans and advances (but not any forgiveness of such loans
or advances) to the Issuer's or any Restricted Subsidiary's officers,
directors, employees and consultants for travel, entertainment, moving
and other relocation expenses, in each case made in the ordinary
course of business provided that such loans and advances do not exceed
$5 million in the aggregate at any one time outstanding;
(iv) agreements and arrangements existing on the date of this
Indenture and any amendment or modifications thereof, provided that
any
60
amendments or modifications to the terms thereof are not more
disadvantageous to the issuer or its Restricted Subsidiary, as
applicable, in any material respect than the original agreement as in
effect on the date of this Indenture and provided, further, that such
amendment or modification is (x) on a basis substantially similar to
that which would be conducted in an arm's-length transaction with
third parties who are not Affiliates and (y) in the case of any
transaction having a Fair Market Value of greater than $10 million,
approved by the Issuer's board of directors (including a majority of
the Disinterested Directors);
(v) any payments or other transactions pursuant to a tax sharing
agreement between the Issuer and any other Person with which the
Issuer or any Restricted Subsidiary files a consolidated tax return or
with which the Issuer or any Restricted Subsidiary is part of a
consolidated group for tax purposes or any tax advantageous group
contribution made pursuant to applicable legislation;
(vi) the issuance of securities pursuant to, or for the purpose
of the funding of, employment arrangements, stock options, and stock
ownership plans, as long as the terms thereof are or have been
previously approved by the Issuer's board of directors;
(vii) the granting and performance of registration rights for the
Issuer's securities; and
(viii) transactions between or among the Issuer and its
Restricted Subsidiaries or among Restricted Subsidiaries.
SECTION 4.13. Change of Control Triggering Event. If a Change of Control
Triggering Event occurs at any time, then the Issuer, within 30 days after the
occurrence of such Change of Control Triggering Event, must make an offer (the
"Change of Control Offer") to each Holder of Notes to purchase such Holder's
Notes, in whole or in part in integral multiples of $1,000, at a purchase price
(the "Change of Control Purchase Price") in cash in an amount equal to 101% of
the principal amount thereof, plus accrued and unpaid interest, if any, to the
date of purchase (the "Change of Control Purchase Date") (subject to the rights
of Holders of record on relevant record dates to receive interest due on an
interest payment date), pursuant to the procedures set forth in Section 3.08.
SECTION 4.14. Limitation on Liens. The Issuer shall not, and shall not
permit any Restricted Subsidiary to, directly or indirectly, create, incur,
assume or suffer to exist any Lien of any kind (except for Permitted Liens) or
assign or otherwise convey any right to receive any income, profits or proceeds
on or with respect to any of the Issuer's or any Restricted Subsidiary's
property or assets, including any shares of stock or Debt of any Restricted
Subsidiary, whether owned at or acquired after the date of this Indenture, or
any income, profits or proceeds therefrom unless:
(a) in the case of any Lien securing Subordinated Debt, the obligations of
the Issuer in respect of the Notes, the obligations of the Subsidiary
Guarantors under the
61
Guarantees, and all other amounts due under this Indenture are directly
secured by a Lien on such property, assets or proceeds that is senior in
priority to such Lien; and
(b) in the case of any other Lien, the obligations of the Issuer in respect
of the Notes, the obligations of the Subsidiary Guarantors under the
Guarantees, and all other amounts due under this Indenture are equally and
ratably secured with the obligation or liability secured by such Lien.
SECTION 4.15. Additional Amounts.
(1) All payments that the Issuer makes under or with respect to the Notes
or that the Subsidiary Guarantors make under or with respect to the Guarantees
shall be made free and clear of and without withholding or deduction for or on
account of any present or future tax, duty, levy, impost, assessment or other
governmental charge (including, without limitation, penalties, interest and
other similar liabilities related thereto) of whatever nature (collectively,
"Taxes" or "Tax") imposed or levied by or on behalf of the federal government of
Canada or by or within any province or political subdivision thereof or within
any other jurisdiction in which the Issuer, the Subsidiary Guarantors or any
Surviving Entity are organised or resident for tax purposes or from or through
which payment is made (each, a "Relevant Taxing Jurisdiction"), unless the
Issuer or the Subsidiary Guarantors, as the case may be, are required to
withhold or deduct Taxes by law or by the interpretation or administration of
law. If the Issuer or the Subsidiary Guarantors are required to withhold or
deduct any amount for or on account of Taxes from any payment made under or with
respect to the Notes, the Issuer or the Subsidiary Guarantors, as the case may
be, shall pay additional amounts ("Additional Amounts"), to the extent they may
lawfully do so, so that the net amount received by each Holder (including
Additional Amounts) after such withholding or deduction shall not be less than
the amount the Holder would have received if such Taxes had not been withheld or
deducted..
(2) The Issuer or the Subsidiary Guarantors shall not, however, pay
Additional Amounts to a Holder or beneficial owner of Notes to the extent that
the Taxes are imposed or levied:
(a) by a Relevant Taxing Jurisdiction by reason of the Holder's or
beneficial owner's present or former connection with such Relevant Taxing
Jurisdiction (other than the mere receipt or holding of Notes or by reason
of the receipt of payments thereunder or the exercise or enforcement of
rights under any Notes or this Indenture); or
(b) by reason of the failure of the Holder or beneficial owner of Notes,
prior to the relevant date on which a payment under and with respect to the
Notes is due and payable (the "Relevant Payment Date") to comply with the
Issuer's written request addressed to the Holder at least 30 calendar days
prior to the Relevant Payment Date to provide accurate information with
respect to any certification, identification, information or other
reporting requirements which the Holder or such beneficial owner is legally
required to satisfy, whether imposed by statute, treaty, regulation or
administrative practice, in each such case by the Relevant Taxing
Jurisdiction, as a precondition to exemption from, or reduction in the rate
of deduction or withholding of, Taxes imposed by the Relevant Taxing
Jurisdiction (including, without limitation,
62
a certification that the Holder or beneficial owner is not resident in the
Relevant Taxing Jurisdiction).
(3) In addition, the Issuer's and the Subsidiary Guarantors' obligation to
pay Additional Amounts or to reimburse a Holder for Taxes paid by such
Holder in respect of Taxes shall not apply with respect to:
(a) any estate, inheritance, gift, sales, transfer, personal property or
similar Taxes;
(b) any Tax that is payable otherwise than by deduction or withholding from
payments made under or with respect to the Notes;
(c) Taxes imposed on or with respect to any payment by the Issuer or the
Subsidiary Guarantors to the Holder if such Holder is a fiduciary or
partnership or person other than the sole beneficial owner of such payment
to the extent that Taxes would not have been imposed on such Holder had
such Holder been the sole beneficial owner of such Note,
(d) any Tax that is imposed on or with respect to a payment made to a
Holder or beneficial owner who would have been able to avoid such
withholding or deduction by presenting the relevant Notes to another paying
agent in a member state of the European Union;
(e) any such withholding or deduction in respect of any Taxes imposed on a
payment to an individual that is required to be made pursuant to any EU
Directive on the taxation of savings implementing the conclusions of the
ECOFIN Council meeting of 26th-27th November 2000 or any law implementing
or complying with, or introduced in order to conform to, such Directive; or
(f) any combination of (a), (b), (c), (d) and (e).
(4) At least 30 calendar days prior to each date on which any payment under
or with respect to the Notes is due and payable, if the Issuer or the Subsidiary
Guarantors shall be obligated to pay Additional Amounts with respect to such
payment (unless such obligation to pay Additional Amounts arises after the 30th
day prior to the date on which payment under or with respect to the Notes is due
and payable, in which case it shall be promptly thereafter), the Issuer or the
Subsidiary Guarantors shall deliver to the Trustee an Officers' Certificate
stating that such Additional Amounts shall be payable and the amounts so payable
and shall set forth such other information necessary to enable the Trustee to
pay such Additional Amounts to Holders on the payment date. The Issuer shall
promptly publish a press release stating that such Additional Amounts shall be
payable and describing its obligation to pay such amounts.
Whenever in this Indenture the Issuer refers to, in any context, the
payment of principal, interest, if any, or any other amount payable under or
with respect to any note, the Issuer is including in that reference the payment
of Additional Amounts, if applicable.
SECTION 4.16. Further Instruments and Acts. Upon request of the Trustee
(but without imposing any duty or obligation of any kind on the Trustee to make
any such
63
request), the Issuer and the Subsidiary Guarantors shall execute and deliver
such further instruments and do such further acts as may be reasonably necessary
or proper to carry out more effectively the purpose of this Indenture.
SECTION 4.17. Designation of Unrestricted and Restricted Subsidiaries. (1)
The Issuer's board of directors may designate any Subsidiary (including newly
acquired or newly established Subsidiaries) (other than a Subsidiary Guarantor)
to be an "Unrestricted Subsidiary" only if:
(a) no default has occurred and is continuing at the time of or after
giving effect to such designation;
(b) the Issuer would be permitted to make an Investment (other than a
Permitted Investment) at the time of designation (assuming the
effectiveness of such designation) pursuant to the first paragraph of
Section 4.10 (Limitation on Restricted Payments) in an amount equal to the
greater of (i) the net book value of the Issuer's interest in such
Subsidiary calculated in accordance with GAAP or (ii) the Fair Market Value
of the Issuer's interest in such Subsidiary as determined in good faith by
the Issuer's board of directors;
(c) the Issuer would be permitted under this Indenture to incur $1.00 of
additional Debt (other than Permitted Debt) pursuant Section 4.09
(Limitation on Debt) at the time of such designation (assuming the
effectiveness of such designation);
(d) neither the Issuer nor any Restricted Subsidiary has a contract,
agreement, arrangement, understanding or obligation of any kind, whether
written or oral, with such Subsidiary unless the terms of such contract,
arrangement, understanding or obligation are no less favourable to the
Issuer or such Restricted Subsidiary than those that might be obtained at
the time from Persons who are not Affiliates of the Issuer or any
Restricted Subsidiary;
(e) such Unrestricted Subsidiary does not own any Capital Stock, Redeemable
Stock or Debt of, or own or hold any Lien on any property or assets of, or
have any Investment in, the Issuer or any other Restricted Subsidiary;
(f) such Unrestricted Subsidiary is not liable, directly or indirectly,
with respect to any Debt, Lien or other obligation that, if in default,
would result (with the passage of time or notice or otherwise) in a default
on any of the Issuer's Debt or Debt of any Restricted Subsidiary, provided
that an Unrestricted Subsidiary may provide a Guarantee for the Notes;
(g) such Unrestricted Subsidiary, either alone or in the aggregate with all
other Unrestricted Subsidiaries, does not operate, directly or indirectly,
all or substantially all of the business of the Issuer and its
Subsidiaries; and
(h) such Unrestricted Subsidiary is a Person with respect to which neither
the Issuer nor any of its Restricted Subsidiaries has any direct or
indirect obligation to:
(i) subscribe for additional Capital Stock of such Person or
64
(ii) maintain or preserve such Person's financial condition or to
cause such Person to achieve any specified levels of operating
results.
(2) In the event of any such Designation, the Issuer shall be deemed to
have made an Investment constituting a Restricted Payment pursuant to Section
4.10 (Limitation on Restricted Payments) for all purposes of this Indenture in
an amount equal to the greater of (i) the net book value of the Issuer's
interest in such Subsidiary calculated in accordance with GAAP or (ii) the Fair
Market Value of the Issuer's interest in such Subsidiary as determined in good
faith by the Issuer's board of directors.
(3) Neither the Issuer nor any Restricted Subsidiary shall at any time:
(a) provide a guarantee of, or similar credit support to, any Debt of any
Unrestricted Subsidiary (including of any undertaking, agreement or
instrument evidencing such Debt); provided that the Issuer may pledge
Capital Stock or Debt of any Unrestricted Subsidiary on a nonrecourse basis
as long as the pledgee has no claim whatsoever against the Issuer other
than to obtain such pledged property, except to the extent permitted under
Section 4.10 (Limitation on Restricted Payments) and Section 4.12
(Limitation on Transactions with Affiliates),
(b) be directly or indirectly liable for any Debt of any Unrestricted
Subsidiary, except to the extent permitted under Section 4.10 (Limitation
on Restricted Payments) and Section 4.12 (Limitation on Transactions with
Affiliates), or
(c) be directly or indirectly liable for any other Debt that provides that
the Holder thereof may (upon notice, lapse of time or both) declare a
default thereon (or cause the payment thereof to be accelerated or payable
prior to its final scheduled maturity) upon the occurrence of a default
with respect to any other Debt that is Debt of an Unrestricted Subsidiary
(including any corresponding right to take enforcement action against such
Unrestricted Subsidiary).
(4) The Issuer's board of directors may designate any Unrestricted
Subsidiary as a Restricted Subsidiary if:
(a) no Default or Event of Default has occurred sand is continuing at the
time of or shall occur and be continuing after giving effect to such
designation; and
(b) unless such redesignated Subsidiary shall not have any Debt outstanding
(other than Debt that would be Permitted Debt), immediately before and
after giving effect to such proposed designation, and after giving pro
forma effect to the incurrence of any such Debt of such redesignated
Subsidiary as if such Debt was incurred on the date of the redesignation,
the issuer could incur $1.00 of additional Debt (other than Permitted Debt)
pursuant to Section 4.09 (Limitation on Debt).
Any such designation as an Unrestricted Subsidiary or Restricted Subsidiary
by the Issuer's board of directors shall be evidenced to the Trustee by filing a
board resolution with the Trustee giving effect to such designation and an
Officers' Certificate certifying that such designation complies with the
foregoing conditions, and giving the effective date of such designation. Any
such filing with the trustee must occur within 45 days after the end of the
65
Issuer's fiscal quarter in which such designation it made (or, in the case of a
designation made during the last fiscal quarter of the Issuer's fiscal year,
within 90 days after the end of such fiscal year).
SECTION 4.18. Limitation on Issuances and Sales of Capital Stock of
Restricted Subsidiaries. The Issuer shall not sell, pledge, or otherwise dispose
of any shares of Capital Stock of a Restricted Subsidiary, and shall not permit
any Restricted Subsidiary, other than as permitted under Section 4.14
(Limitation on Liens), directly or indirectly, to issue or sell, any shares of
its Capital Stock (including options, warrants or other rights to purchase
shares of such Capital Stock). The foregoing sentence, however, shall not apply
to:
(a) issuances or sales to the Issuer or a Wholly Owned Restricted
Subsidiary;
(b) issuances or sales to directors of directors' qualifying shares or
issuances or sales to nationals of shares of Capital Stock of Restricted
Subsidiaries, in each case to the extent required by applicable law;
(c) any issuance or sale of Capital Stock of a Restricted Subsidiary if,
immediately after giving effect to such issuance or sale such Restricted
Subsidiary would no longer constitute a Restricted Subsidiary and any
remaining Investment in such Person would have been permitted to be made
under Section 4.10 (Limitation on Restricted Payments) if made on the date
of such issuance or sale;
(d) any issuance, sale, lease, transfer or disposal required by applicable
law or governmental order;
(e) Capital Stock issued by a Person prior to the time:
(i) such Person becomes a Restricted Subsidiary,
(ii) such Person merges with or into a Restricted Subsidiary, or
(iii) a Restricted Subsidiary merges with or into such Person;
but only if that Capital Stock was not issued or incurred by such Person in
anticipation of it becoming a Restricted Subsidiary.
SECTION 4.19. Limitation on Sale and Leaseback Transactions. The Issuer
shall not, and shall not permit any Restricted Subsidiary to, enter into any
Sale and Leaseback Transaction with respect to any property or assets (whether
now owned or hereafter acquired), unless:
(a) the sale or transfer of such property or assets to be leased is treated
as an Asset Sale and the Issuer complies with Section 4.11 (Limitation on
Sale of Assets), including the provisions concerning the application of Net
Cash Proceeds (treating all of the consideration received in such Sale and
Leaseback Transaction as Net Cash Proceeds for the purposes of such
covenant);
66
(b) the Issuer or such Restricted Subsidiary would be permitted to incur
Debt under Section 4.09 (Limitation on Debt) in the amount of the
Attributable Debt incurred in respect of such Sale and Leaseback
Transaction;
(c) the Issuer or such Restricted Subsidiary would be permitted to ▇▇▇▇▇ ▇
▇▇▇▇ to secure Debt under Section 4.14 (Limitation on Liens) in the amount
of the Attributable Debt in respect of such Sale and Leaseback Transaction;
and
(d) in the case of any Sale and Leaseback Transaction having a Fair Market
Value greater than $10 million, the gross cash proceeds of such Sale and
Leaseback Transaction are at least equal to the Fair Market Value, as
determined in good faith by the Issuer's board of directors and set out in
an Officers' Certificate delivered to the Trustee, of the property that is
the subject of such Sale and Leaseback Transaction.
Notwithstanding the foregoing, nothing shall prevent the Issuer or any
Restricted Subsidiary from engaging in a Sale and Leaseback Transaction solely
between the Issuer and any Restricted Subsidiary or solely between Restricted
Subsidiaries.
SECTION 4.20. Limitation on Guarantees of Debt by Restricted Subsidiaries.
(1) The Issuer shall not permit any Restricted Subsidiary that is not a
Subsidiary Guarantor, directly or indirectly, to guarantee, assume or in any
other manner become liable for the payment of any of the Issuer's Debt (other
than the Notes), unless:
(a) (i) such Restricted Subsidiary simultaneously executes and delivers a
supplemental indenture to this Indenture providing for a
Guarantee of payment of the Notes by such Restricted Subsidiary
on the same terms as the guarantee of such Debt; and
(ii) with respect to any guarantee of Subordinated Debt by such
Restricted Subsidiary, any such guarantee shall be subordinated
to such Restricted Subsidiary's Guarantee with respect to the
Notes at least to the same extent as such Subordinated Debt is
subordinated to the Notes; and
(b) such Restricted Subsidiary waives and shall not in any manner
whatsoever claim or take the benefit or advantage of, any rights of
reimbursement, indemnity or subrogation or any other rights against
the Issuer or any other Restricted Subsidiary as a result of any
payment by such Restricted Subsidiary under its Guarantee.
This paragraph (1) shall not be applicable to any guarantees of any Restricted
Subsidiary:
(i) incurred under clause (a) of the definition of "Permitted
Debt",
(ii) that existed at the time such Person became a Restricted
Subsidiary if the guarantee was not incurred in connection with, or in
contemplation of, such Person becoming a Restricted Subsidiary, or
(iii) given to a bank or trust company organized in Australia,
Canada, Hong Kong, any member state of the European Union as of the
date
67
of this Indenture, Switzerland or any commercial banking institution
that is a member of the U.S. Federal Reserve System, (or any branch,
subsidiary or Affiliate thereof) in each case having combined capital
and surplus and undivided profits of not less than $500 million, whose
debt has a rating, at the time such guarantee was given, of at least A
by S&P and at least A2 by ▇▇▇▇▇'▇, in connection with the operation of
cash management programs established for the benefit of the Issuer or
any Restricted Subsidiary.
(2) Notwithstanding the foregoing, any Guarantee of the Notes created
pursuant to the provisions described in the foregoing paragraph (1) may provide
by its terms that it shall be automatically and unconditionally released and
discharged upon:
(a) any sale, exchange or transfer, to any Person who is not the Issuer's
Affiliate, of all of the Issuer's Capital Stock in, or all or substantially
all the assets of, such Restricted Subsidiary (which sale, exchange or
transfer is not prohibited by the Note Indenture), or
(b) (with respect to any guarantee created after the date of this
Indenture) the release by the Holders of Debt of the Issuer described in
the preceding paragraph of their guarantee by such Restricted Subsidiary
(including any deemed release upon payment in full of all obligations under
such Debt other than as a result of payment under such guarantee), at a
time when:
(iv) no other Debt of the Issuer has been guaranteed by such
Restricted Subsidiary or
(v) the Holders of all such other Debt that is guaranteed by such
Restricted Subsidiary also release their guarantee by such Restricted
Subsidiary (including any deemed release upon payment in full of all
obligations under such Debt other than as a result of payment under
such guarantee).
(3) Notwithstanding the foregoing, the issuer shall not permit any
Restricted Subsidiary, directly or indirectly, to guarantee, assume or in any
other manner become liable for the payment of any obligations of the Issuer or
any of its Subsidiaries in respect of any operating leases for ships, other than
any guarantee thereof existing on the date of this Indenture or any replacement
of such existing guarantees, provided that the terms and conditions of such
replacement guarantee are not materially less favourable to the Holders of the
Notes than those under the guarantee so replaced.
SECTION 4.21. Limitation on Dividends and Other Payment Restrictions
Affecting Restricted Subsidiaries.
(1) The Issuer shall not, and shall not permit any Restricted Subsidiary
to, directly or indirectly, create or otherwise cause or suffer to exist or
become effective any consensual encumbrance or restriction of any kind on the
ability of any Restricted Subsidiary to:
68
(a) pay dividends, in cash or otherwise, or make any other distributions on
or in respect of its Capital Stock or any other interest or participation
in, or measured by, its profits;
(b) pay any Debt owed to the Issuer or any other Restricted Subsidiary;
(c) make loans or advances to the Issuer or any other Restricted
Subsidiary; or
(d) transfer any of its properties or assets to the Issuer or any other
Restricted Subsidiary.
(2) The provisions of this Section 4.21 described in paragraph (1) above
shall not apply to:
(a) encumbrances and restrictions imposed by the Notes or this Indenture,
or by any other indentures governing other Debt the Issuer may incur (and
if such Debt is guaranteed, by a Subsidiary Guarantor of such Debt),
provided that the restrictions imposed by such indentures are no more
restrictive than the restrictions imposed by this Indenture;
(b) encumbrances or restrictions contained in any agreement in effect on
the date of this Indenture in the form contained in such agreement on the
date of this Indenture;
(c) encumbrances or restrictions imposed by Debt permitted to be incurred
under Credit Facilities or any guarantees thereof in accordance with
Section 4.09 (Limitation on Debt); provided that in the case of any such
encumbrances or restrictions imposed under any Credit Facilities, such
encumbrances or restrictions are not materially more restrictive taken as a
whole than those imposed by the $350 Million Facility as of the date of
this Indenture;
(d) in the case of clause (1)(d) above, customary provisions restricting
subletting or assignment of any lease or assignment of any other contract
to which the Issuer or any Restricted Subsidiary is a party or to which any
of the Issuer's or any Restricted Subsidiary's respective properties or
assets are subject or customary restrictions contained in operating leases
for real property and restricting only the transfer of such real property
or effective only upon the occurrence and during the continuance of a
default in the payment of rent;
(e) encumbrances or restrictions contained in any agreement or other
instrument of a Person acquired by the Issuer or any Restricted Subsidiary
in existence at the time of such acquisition (but not created in
contemplation thereof), which encumbrance or restriction is not applicable
to any Person, or the properties or assets of any Person, other than the
Person, or the property or assets of the Person, so acquired;
(f) any encumbrance or restriction contained in contracts for sales of
Capital Stock or assets permitted by Section 4.11 (Limitation on Sale of
Certain Assets) with respect to the assets or Capital Stock to be sold
pursuant to such contract or in customary merger or acquisition agreements
(or any option to enter into such contract) for the purchase
69
or acquisition of Capital Stock or assets or any of the Issuer's
Subsidiaries by another Person;
(g) in the case of clause (1)(d) above, any customary encumbrances or
restriction pertaining to an asset subject to a Lien to the extent set
forth in the security document governing such Lien;
(h) encumbrances or restrictions contained in any agreement or instrument
pursuant to which Debt was issued if:
(i) the encumbrance or restriction is not materially more
disadvantageous to the Holders of the Notes than is customary in
comparable financings (as determined by the Issuer) and
(ii) the Issuer determines that any such encumbrance or
restriction shall not materially affect the Issuer's ability to make
any anticipated principal or interest payments on the Notes;
(i) encumbrances or restrictions imposed by applicable law or regulation
or by governmental licenses, concessions, franchises or Permits;
(j) any encumbrance or restriction existing under any agreement that
extends, renews, refinances or replaces the agreements containing the
encumbrances or restrictions in the foregoing clauses (2)(a), (b) and (c);
provided that the terms and conditions of any such encumbrances or
restrictions are not materially less favourable to the Holders of the Notes
than those under or pursuant to the agreement so extended, renewed,
refinanced or replaced;
(k) restrictions on cash or other deposits or net worth imposed by
customers under contracts entered into the ordinary course of business;
(l) customary limitations on the distribution or disposition of assets or
property in joint venture agreements entered into the ordinary course of
business and in good faith; provided, however, that such encumbrance or
restriction is applicable only to such Restricted Subsidiary and provided,
that:
(i) the encumbrance or restriction is not materially more
disadvantageous to the Holders of the Notes than is customary in
comparable agreements (as determined by the Issuer); and
(ii) the Issuer determines that any such encumbrance or
restriction shall not materially affect the Issuer' ability to make
any anticipated principal or interest payments on the Notes;
(m) any encumbrance or restriction in connection with purchase money
obligations and Capitalized Lease Obligations for property acquired in the
ordinary course of business that impose restrictions of the type described
in clause (1)(d) above on the transfer of the properties so acquired; or
70
(n) any encumbrance or restriction arising by reason of customary
non-assignment provisions in agreements.
ARTICLE 5
SUCCESSOR COMPANY
SECTION 5.01. Consolidation, Merger or Sale of Assets. (1) The Issuer shall
not, in a single transaction or through a series of transactions, consolidate
with or merge with or into any other Person or permit any other Person to be
substituted as the issuer of the Notes or sell, assign, convey, transfer, lease
or otherwise dispose of, or take any action pursuant to any resolution passed by
the board of directors of the Issuer or the Issuer's shareholders with respect
to a demerger or division pursuant to which the Issuer would dispose of, all or
substantially all of its properties and assets to any other Person or Persons or
permit any Restricted Subsidiary to enter into any such transaction or series of
transactions if such transaction or series of transactions, in the aggregate,
would result in the sale, assignment, conveyance, transfer, lease or other
disposition of all or substantially all of the Issuer's properties and assets
and those of its Restricted Subsidiaries on a consolidated basis to any other
Person or Persons. The previous sentence shall not apply to the Issuer and any
Restricted Subsidiary that is not a Subsidiary Guarantor if at the time and
immediately after giving effect any such transaction or series of transactions:
(a) either the Issuer shall be the continuing corporation or the Person (if
other than the Issuer) formed by such consolidation or into which the
Issuer or such Restricted Subsidiary is merged, demerged or divided, or the
Person that is substituted for the Issuer as the issuer of the Notes or the
Person that acquires by sale, assignment, conveyance, transfer, lease or
disposition all or substantially all the properties and assets of the
Issuer and its Restricted Subsidiaries on a consolidated basis (the
"Surviving Entity"):
(i) shall be a corporation duly organised and validly existing
under the laws of Australia, Canada or any province thereof, Hong
Kong, any member state of the European Union as of the date of this
Indenture, Switzerland, Bermuda, the United States of America, any
state thereof, or the District of Columbia, and
(ii) shall expressly assume, by a supplemental indenture in form
satisfactory to the Trustee, the Issuer's obligations under the Notes,
this Indenture and the Registration Rights Agreement and the Notes,
this Indenture and the Registration Rights Agreement shall remain in
full force and effect as so supplemented; and
(iii) in the case of a substitution, the Issuer shall be a Wholly
Owned Restricted Subsidiary of the Surviving Entity.
(b) immediately after giving effect to such transaction or series of
transactions on a pro forma basis (and treating any obligation of the
Issuer or any Restricted Subsidiary
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incurred in connection with or as a result of such transaction or series of
transactions as having been incurred by the Issuer or such Restricted
Subsidiary at the time of such transaction), no Default or Event of Default
shall have occurred and be continuing;
(c) either (i) both the Rating Agencies shall have confirmed in writing to
the Issuer that no Rating Decline shall have occurred as a result of giving
effect to such transaction or series of transactions or (ii) immediately
after giving effect to such transaction or series of transactions on a pro
forma basis (and treating any obligation of the Issuer or any Restricted
Subsidiary incurred in connection with or as a result of such transaction
or series of transactions as having been incurred by the Issuer or such
Restricted Subsidiary at the time of such transaction), the Issuer's
Consolidated Net Worth (or of the Surviving Entity if the Issuer is not the
continuing obligor under this Indenture) is equal to or greater than the
Issuer's Consolidated Net Worth immediately prior to such transaction or
series of transactions;
(d) immediately. after giving effect to such transaction or series of
transactions on a pro forma basis (on the assumption that the transaction
or series of transactions occurred on the first day of the four-quarter
period immediately prior to the consummation of such transaction or series
of transactions with the appropriate adjustments with respect to the
transaction or series of transactions being included in such pro forma
calculation), either (i) the Issuer (or the Surviving Entity if the Issuer
is not the continuing obligor under this Indenture) could incur at least
$1.00 of additional Debt (other than Permitted Debt) under the provisions
of Section 4.09 (Limitation on Debt) or (ii) the Issuer (or the Surviving
Entity if the Issuer is not the continuing obligor under this Indenture)
has a Consolidated Fixed Charge Coverage Ratio equal to or greater than
such ratio of the Issuer and the Restricted Subsidiaries immediately prior
to such substitution, transaction or series of transactions;
(e) any Subsidiary 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
this Indenture and the Notes;
(f) if any of the Issuer's or any Restricted Subsidiary's property or
assets would thereupon become subject to any Lien, the provisions of
Section 4.14 (Limitation on Liens) are complied with; and
(g) the Issuer or the Surviving Entity shall have delivered to the Trustee,
in form and substance satisfactory to the Trustee, an officers' certificate
(attaching the authentic computations to demonstrate compliance with
clauses (c) and (d) above) and an opinion of independent counsel, each
stating that such consolidation, merger, sale, assignment, conveyance,
transfer, lease or other disposition and, if a supplemental indenture is
required in connection with such transaction, such supplemental indenture
complies with the requirements of this Indenture and that all conditions
precedent therein provided for relating to such transaction have been
complied with and that this Indenture and the Notes constitute legal, valid
and binding obligations of the continuing person, enforceable in accordance
with their terms.
The Surviving Entity shall succeed to, and be substituted for, and may
exercise every right and power of, the Issuer under this Indenture, but, in the
case of a lease of all or
72
substantially all of the Issuer's assets, the Issuer shall not be released from
the obligation to pay the principal of and interest, and Additional Amounts, if
any, on the Notes.
(2) Subject to certain limitations described in this Indenture governing
the release of a Guarantee upon the sale or disposition of a Subsidiary
Guarantor, no Subsidiary Guarantor shall, in a single transaction or through a
series of transactions, consolidate with or merge with or into any other Person
or permit any other Person to be substituted as a Subsidiary Guarantor of the
Notes, or sell, assign, convey, transfer, lease or otherwise dispose of, or take
any action pursuant to any resolution passed by its board of directors or
shareholders with respect to a demerger or division pursuant to which such
Subsidiary Guarantor would dispose of its properties and assets to any other
Person or Persons if such transaction or series of transactions, in the
aggregate, would result in the sale, assignment, conveyance, transfer, lease or
other disposition of (x) assets in an amount equal to more than 10% of the total
amount of the Subsidiary Guarantors' combined Tangible Assets, less the
aggregate Fair Market Value of any assets received by such Subsidiary Guarantor
as consideration for such transaction or transactions or assets purchased within
360 days thereafter with the Net Cash Proceeds received therefrom, or (y) assets
or operations of such Subsidiary Guarantor that, following such transaction or
transactions and taking into account the receipt by the Subsidiary Guarantor of
any assets given as consideration for such transaction or transactions or assets
purchased within 360 days thereafter with the Net Cash Proceeds received
therefrom, generate more than 10% of the Subsidiary Guarantors' combined Total
Revenues, in each case to any other Person or Persons. The previous sentence
shall not apply if at the time and immediately after giving effect any such
transaction or series of transactions:
(a) (i) such Subsidiary Guarantor is the surviving corporation or the
Person formed by or surviving any such consolidation or merger
(if other than such Subsidiary Guarantor) or to which such sale,
assignment, transfer, lease, conveyance or other disposition
shall have been made is a corporation organized or existing under
the laws of Australia, Canada, any province thereof, Hong Kong,
any member state of the European Union as of the date of this
Indenture, Switzerland, Bermuda, the United States, any state
thereof, or the District of Columbia, (such Subsidiary Guarantor
or such Person, as the case may be, being herein called the
"Additional Subsidiary Guarantor");
(ii) the Additional Subsidiary Guarantor, if other than such
Subsidiary Guarantor, executes and delivers a supplemental
indenture in form reasonably satisfactory to the Trustee
providing for a Guarantee of payment of the Notes on the same
terms as such Subsidiary Guarantor's Guarantee;
(iii) immediately prior to and after giving effect to such transaction
no Default or Event of Default exists; and
(iv) The Issuer shall have delivered to the trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger or transfer and such supplemental
indentures, if any, comply with this indenture.
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Such restrictions shall not apply if such sale or disposition is an Asset
Swap that complies with the applicable provisions of this Indenture governing
Asset Swaps described in Section 4.11 (Limitation on Sales of Certain Assets).
(b) Notwithstanding the foregoing, a Subsidiary Guarantor may sell,
assign, convey, transfer, lease or otherwise dispose of (i) properties
and assets in connection with a Permitted Receivables Financing, in an
aggregate principal amount not to exceed 25% of Total Receivables, as
determined immediately prior to such disposal, (ii) the Montrose and
Montclare Ships and (iii) ships (including stage payments related to
the construction of such ships) that at the date of this Indenture are
part of the Issuer's existing new shipbuilding program, to CP Ships
(Number 3) Limited or CP Ships (Number 4) Limited.
(3) Nothing in this Indenture shall prevent (a) any Wholly Owned Restricted
Subsidiary that is not a Subsidiary Guarantor from consolidating with, merging
into or transferring all or substantially all of its properties and assets to
the Issuer or any other Wholly Owned Restricted Subsidiary that is not a
Subsidiary Guarantor or, (b) any Subsidiary Guarantor from merging into or
transferring all or part of its properties and assets to the Issuer or another
Subsidiary Guarantor.
(4) The Issuer shall publish a notice of any consolidation, merger or sale
of assets described above .in accordance with the provisions of Section 12.02
hereof and, so long as the rules of the Luxembourg Stock Exchange so require,
notify such exchange of any such consolidation, merger or sale.
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.01. Events of Default. (a) Each of the following shall be an
"Event of Default"
(i) default for 30 days in the payment when due of any interest
or any Additional Amounts on any Note;
(ii) default in the payment of the principal of or premium, if
any, on any Note at its Maturity (upon acceleration, optional or
mandatory redemption, if any, required repurchase or otherwise);
(iii) a material default in the performance of the requirements
described in Articles 5 (Successor Company);
(iv) failure to make or consummate an Excess Proceeds Offer in
accordance with Section 4.11;
(v) failure to make or consummate a Change of Control Offer in
accordance with Section 4.13;
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(vi) failure to comply with any covenant or agreement of the
Issuer or of any Restricted Subsidiary that is contained in this
Indenture or any Guarantees (other than as specified in clauses (i),
(ii), (iii), (iv) or (v) above) and such failure continues for a
period of 30 days or more after the written notice specified below;
(vii) default under the terms of any instrument evidencing or
securing Debt of the Issuer, Debt of any Subsidiary Guarantor or Debt
of any Restricted Subsidiary having an outstanding principal amount in
excess of $20 million individually or in the aggregate that results in
the acceleration of the payment of such Debt or constitutes the
failure to pay such Debt when at the final maturity thereof (other
than by regularly scheduled required prepayment) and such failure to
make any payment has not been waived or the maturity of such Debt has
not been extended, and in either case the total amount of such Debt
unpaid or accelerated exceeds $20 million or its equivalent at the
time;
(viii) any Guarantee ceases to be, or shall be asserted in
writing by any Subsidiary Guarantor, or any Person acting on behalf of
any Subsidiary Guarantor, not to be in full force and effect or
enforceable in accordance with its terms (other than as provided for
in this Indenture or any Guarantee);
(ix) one or more final judgments, orders or decrees (not subject
to appeal or further review and/or not covered by insurance) shall be
rendered by a court of competent jurisdiction for the payment of money
against the Issuer, any Subsidiary Guarantor or any Restricted
Subsidiary, either individually or in an aggregate amount, in excess
of $20 million, and either a creditor shall have commenced an
enforcement proceeding upon such judgment, order or decree or there
shall have been a period of 30 consecutive days or more during which
such judgment, order or decree, was not set aside, discharged, stayed
(by reason of a pending appeal or otherwise) or satisfied; provided
that such period shall be 90 days in respect of any such judgment,
order or decree relating to the claim issued by Seaport
Terminals/Flanders Container Terminal NV against Cast Agencies Europe
Limited, a Subsidiary of the Issuer, in October 1999 in Belgium in the
amount of BEF 3,578 million;
(x) the Issuer, any Subsidiary Guarantor or any Significant
Subsidiary pursuant to or within the meaning of any Bankruptcy Law (A)
commences a voluntary insolvency proceeding, (B) consents to the entry
of an order for relief against it in an involuntary insolvency
proceeding, (C) consents to the appointment of a Custodian or official
receiver of it or for any substantial part of its property, or (D)
makes a general assignment for the benefit of its creditors; or takes
any equivalent action under any foreign laws relating to insolvency or
laws having a similar effect for creditors; provided that the
dissolution of a Significant Subsidiary and the assumption by a
Subsidiary Guarantor of all its obligations, including its
obligations, if any, on the Notes, together with the transfer of all
the assets of such Significant Subsidiary to such Subsidiary Guarantor
or another Significant Subsidiary, shall not constitute an Event of
Default under this subsection (viii); or
75
(xi) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that: (A) is for relief against the Issuer,
any Subsidiary Guarantor or any Significant Subsidiary in an
involuntary insolvency proceeding; (B) appoints a Custodian or
official receiver of the Issuer, any Subsidiary Guarantor or any
Significant Subsidiary or for any substantial part of its property; or
(C) orders the involuntary winding up or liquidation of the Issuer,
any Subsidiary Guarantor or any Significant Subsidiary; or any
equivalent relief is granted under any foreign laws relating to
insolvency and the order or decree remains unstayed and in effect for
90 days.
(b) If a Default or an Event of Default occurs and is continuing and is
known to a Trust Officer of the Trustee, the Trustee shall mail to each
Holder notice of the Default or Event of Default within five business days
after its occurrence. Except in the case of a Default or an Event of
Default in payment of principal of, premium, if any, on the Notes or of any
Additional Amounts or interest on any Notes, the Trustee may withhold the
notice to the Holders of such Notes if a committee of its Trust Officers in
good faith determines that withholding the notice is in the interests of
the Holders. The Issuer shall also notify the Trustee within 10 Business
Days of the occurrence of any Event of Default.
SECTION 6.02. Acceleration. (a) If an Event of Default with respect to the
Notes (other than an Event of Default specified in Section 6.01(a)(x) or (xi)
above) occurs and is continuing, the Trustee or the registered Holders of not
less than 25% in aggregate principal amount of the Notes then outstanding by
written notice to the Issuer (and to the Trustee if such notice is given by the
Holders) may and the Trustee, upon the written request of such Holders shall,
declare the principal of, premium, if any, and any Additional Amounts and
accrued but unpaid interest on all of the outstanding Notes immediately due and
payable, and upon any such declaration all such amounts payable in respect of
the Notes shall become immediately due and payable.
(b) If an Event of Default specified in Section 6.01(a) (x) or (xi) above
occurs and is continuing, then the principal of, premium, if any, and any
Additional Amounts and accrued interest on all of the outstanding Notes
shall become and be immediately due and payable without any declaration or
other act on the part of the Trustee or any Holder of Notes.
(c) At any time after a declaration of acceleration under this Indenture,
but before a judgment or decree for payment of the money due has been
obtained by the Trustee, the Holders of a majority in aggregate principal
amount of the outstanding Notes, by written notice to the Issuer and the
Trustee, may rescind such declaration and its consequences if:
(i) The Issuer or a Subsidiary Guarantor has paid or deposited
with the Trustee a sum sufficient to pay:
(A) all overdue interest and Additional Amounts on all Notes
then outstanding;
76
(B) all unpaid principal of and premium, if any, on any
outstanding Notes that has become due otherwise than by such
declaration of acceleration and interest thereon at the rate
borne by the Notes;
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest and overdue principal at the
rate borne by the Notes; and
(D) all sums paid or advanced by the Trustee under this
Indenture and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel;
(ii) the rescission would not conflict with any judgment or
decree of a court of competent jurisdiction; and
(iii) all Events of Default, other than the non-payment of
amounts of principal of, premium, if any, and any Additional Amounts
and interest on the Notes that has become due solely by such
declaration of acceleration, have been cured or waived.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 6.03. Other Remedies. If an Event of Default occurs and is
continuing, the Trustee may pursue any available remedy to collect the payment
of principal of or interest on the Notes or to enforce the performance of any
provision of the Notes or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any of
the Notes or does not produce any of them in the proceeding. A delay or omission
by the Trustee or any Holder in exercising any right or remedy accruing upon an
Event of Default shall not impair ,the right or remedy or constitute a waiver of
or acquiescence in the Event of Default. All available remedies are cumulative
to the extent permitted by law.
SECTION 6.04. Waiver of Past Defaults. The Holders of not less than a
majority in aggregate principal amount of the outstanding Notes may, on behalf
of the Holders of all the Notes, waive any past Defaults and its consequences
except a Default (a) in the payment of the principal of, premium, if any, and
Additional Amounts or interest on any Note or (b) in respect of a covenant or
provision which under this Indenture cannot be modified or amended without the
consent of the holders of each of the Notes outstanding. When a Default is
waived, it is deemed cured, but no such waiver shall extend to any subsequent or
other Default or impair any consequent right.
SECTION 6.05. Control by Majority. The Holders of not less than a majority
in aggregate principal amount of the Notes may direct the time, method and place
of conducting any proceeding for any remedy available to the Trustee or of
exercising any trust or power conferred on the Trustee under this Indenture.
However, the Trustee may refuse to follow any direction that conflicts with law
or this Indenture or that the Trustee determines is unduly
77
prejudicial to the rights of other Holders or would involve the Trustee in
personal liability; provided that the Trustee may take any other action deemed
proper by the Trustee that is not inconsistent with such direction. Prior to
taking any action under this Indenture, other than under Article 10, the Trustee
shall be entitled to indemnification satisfactory to it in its sole discretion
against all losses and expenses caused by taking or not taking such action.
SECTION 6.06. Limitation on Suits. A Holder of Notes may not pursue any
remedy with respect to this Indenture or the Notes unless:
(a) the Holders of at least 25% in aggregate principal amount of the Notes
then outstanding have made written request and offered security or
indemnity satisfactory to the Trustee to institute such proceeding as
trustee under the Notes and this Indenture,
(b) the Trustee has failed to institute such proceeding within 30 days
after receipt of such notice, and
(c) within such 30-day period, a Trust Officer of the Trustee has not
received directions inconsistent with such written request by Holders of a
majority in aggregate principal amount of the Notes then outstanding.
The limitations in the foregoing provisions of this Section 6.06, however,
do not apply to a suit instituted by a Holder for the enforcement of the payment
of the principal of, premium, if any, and Additional Amounts or interest on such
Note on or after the respective due dates expressed in such Note.
A Holder may not use this Indenture to prejudice the rights of any other
Holder or to obtain a preference or priority over another Holder.
SECTION 6.07. Rights of Holders To Receive Payment. Notwithstanding any
other provision of this Indenture, the right of any Holder to receive payment of
principal of and interest on the Notes held by such Holder, on or after the
respective due dates expressed in the Notes, or to bring suit for the
enforcement of any such payment on or after such respective dates, shall not be
impaired or affected without the consent of such Holder.
SECTION 6.08. Collection Suit by Trustee. If an Event of Default in payment
of interest or principal specified in Section 6.01(a)(i) or (ii) occurs and is
continuing, the Trustee may recover judgment in its own name and as trustee of
an express trust against the Issuer or any Subsidiary Guarantor for the whole
amount or principal and interest remaining unpaid (together with interest on
such unpaid interest to the extent lawful) and the amounts provided for in
Section 7.07.
SECTION 6.09. Trustee May File Proofs of Claim. The Trustee may file such
proofs of claim and other papers or documents as may be necessary or advisable
in order to have the claims of the Trustee and the Holders allowed in any
judicial proceedings relative to the Issuer or any Subsidiary Guarantor, their
creditors or their property and, unless prohibited by law or applicable
regulations, may vote on behalf of the Holders at their direction in any
election of a trustee in bankruptcy or other Person performing similar
functions, and any Custodian in any such judicial proceeding is hereby
authorized by each Holder to make
78
payments to the Trustee and, in the event that the Trustee shall consent to the
making of such payments directly to the Holders, to pay to the Trustee any
amount due it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and its counsel, and any other amounts due
the trustee under Section 7.07.
SECTION 6.10. Priorities. If the Trustee collects any money or property
pursuant to this Article 6, it shall pay out the money or property in the
following order:
FIRST: to the Trustee for amounts due under Section 7.07;
SECOND: to Holders for amounts due and unpaid on the Notes for principal
and interest, ratably, without preference or priority of any
kind, according to the amounts due and payable on the Notes for
principal and interest, respectively; and
THIRD: the Person or Persons entitled thereto.
The Trustee may fix a record date and payment date for any payment to
Holders pursuant to this Section. At least 15 days before such record date, the
Issuer shall mail to each Holder and the Trustee a notice that states the record
date, the payment date and amount to be paid.
SECTION 6.11. Undertaking for Costs. A court may in its discretion require,
in any suit for the enforcement of any right or remedy under this Indenture or
in any suit against the Trustee for any action taken or omitted by it as
Trustee, the filing by any party litigant in the suit of an undertaking to pay
the costs of such suit, and such court may in its discretion assess reasonable
costs, including reasonable attorneys' fees, against any party litigant in such
suit, having due regard to the merits and good faith of the claims or defenses
made by the party litigant. This Section does not apply to a suit by the
Trustee, a suit by Holders of more than 10% in aggregate principal amount of the
Notes or to any suit by any Holder pursuant to Section 6.07.
SECTION 6.12. Reservation 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 Issuer,
the Subsidiary 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 6.13. Rights and Remedies Cumulative. Except as otherwise provided
with respect to the replacement or payment of mutilated, destroyed, lost or
stolen Notes in Section 2.07, 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
pen-rutted 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 of any right or remedy hereunder, or otherwise, shall not prevent
the concurrent assertion or employment of any other appropriate right or remedy.
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SECTION 6.14. Delay or Omission not Waiver. No delay or omission of the
Trustee or of any Holder of any Note 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 Six 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.
ARTICLE 7
TRUSTEE
SECTION 7.01. Duties of Trustee. (a) If an Event of Default has occurred
and is continuing of which a Trust Officer of the Trustee has actual knowledge,
the Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise as a
prudent Person would exercise or use under the circumstances in the conduct of
such Person's own affairs.
(b) Except during the continuance of an Event of Default of which a Trust
Officer of the Trustee has actual knowledge: (i) the Trustee undertakes to
perform such duties and only such duties as are specifically set forth in this
Indenture and no others and no implied covenants or obligations shall be read
into this Indenture against the Trustee; and (ii) in the absence of bad faith on
its part, the Trustee may conclusively rely, as to the truth of the statements
and the correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements of this
Indenture. However, in the case of any such certificates or opinions which by
any provisions hereof are specifically required to be furnished to the Trustee)
the Trustee shall examine same to determine whether they conform to the
requirements of this Indenture (but need not confirm or investigate the accuracy
of mathematical calculations or other facts stated therein).
(c) The Trustee may not be relieved from liability for its own negligent
action, its own negligent failure to act or its own wilful misconduct, except
that: (i) this paragraph does not limit the effect of paragraph (b) of this
Section 7.01; (ii) the Trustee shall not be liable for any error of judgment
made in good faith by a Trust Officer unless it is proved that the Trustee was
negligent in ascertaining the pertinent facts; and (iii) the Trustee shall not
be liable with respect to any action it takes or omits to take in good faith in
accordance with a direction received by it pursuant to Section 6.05.
(d) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b) and (c) of this Section 7.01.
(e) The Trustee shall not be liable for interest on any money received by
it except as the Trustee may agree in writing with the Issuer or the Subsidiary
Guarantors.
(f) Money held in trust by the Trustee need not be segregated from other
funds except to the extent required by law.
(g) No provision of this Indenture shall require the Trustee to expend or
risk its own funds or otherwise incur financial liability in the performance of
any of its duties
80
hereunder or in the exercise of any of its rights or powers, if it shall have
reasonable grounds to believe that repayment of such funds or adequate indemnity
against such risk or liability is not reasonably assured to it.
(h) Every provision of this Indenture relating to the conduct or affecting
the liability of or affording protection to the Trustee shall be subject to the
provisions of this Section 7.01 and to the provisions of the TIA.
SECTION 7.02. Rights of Trustee. (a) The Trustee may conclusively rely on
and shall be protected in acting or refraining from acting on, any document
believed by it to be genuine and to have been signed or presented by the proper
Person. The Trustee need not investigate any fact or matter stated in the
document.
(b) Before the Trustee acts or refrains from acting, it may require an
Officer's Certificate or an Opinion of Counsel, such opinion to be prepared
at the Issuer's or any Subsidiary Guarantor's expense. The Trustee shall
not be liable for any action it takes or omits to take in good faith in
reliance on the Officer's Certificate or Opinion of Counsel.
(c) Subject to Section 7.01(c), the Trustee may act through agents and
shall not be responsible for the misconduct or negligence of any agent
appointed with due care.
(d) Subject to Section 7.01(c), the Trustee shall not be liable for any
action it takes or omits to take in good faith which it believes to be
authorized or within its rights or powers.
(e) The Trustee may consult with counsel of its selection, and, subject to
Section 7.01(c), the advice or opinion of such counsel with respect to
legal matters relating to this Indenture and the Notes shall be full and
complete authorization and protection from liability in respect to any
action taken, omitted or suffered by it hereunder in good faith and in
accordance with the advice or opinion of its counsel.
(f) the Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Indenture at the request 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.
(g) the Trustee shall not be deemed to have notice of any Default or Event
of Default unless a Trust Officer has actual knowledge thereof or unless
written notice of any event which is in fact such a default is received by
the Trustee at the Corporate Trust Office of the Trustee, and such notice
references the Notes, this Indenture and the specific Default or Event of
Default.
(h) The Trustee shall have no obligation or duty to monitor, determine or
inquire as to compliance with any restrictions on transfer imposed under
this Indenture or under applicable law with respect to any transfer or any
interest in any Note (including any transfers between or among Participants
or beneficial owners of interests in any Global Note) other than to require
delivery of such certificates and other
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documentation or evidence as are expressly required by, and to do so if and
when expressly required by the terms of, this Indenture or an Issuer Order,
and to examine the same to determine substantial compliance as to form with
the express requirements.
(i) 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 Issuer,
personally or by agent or attorney at the sole cost of the Issuer and shall
incur no liability or additional liability of any kind by reason of such
inquiry or investigation.
(j) the rights, privileges, protections, immunities and benefits given to
the Trustee, including, without limitation, its right to be indemnified,
are extended to, and shall be enforceable by, the Trustee in each of its
capacities hereunder, and to each agent, custodian and other Person
employed to act hereunder.
The Trustee may request that the Issuer deliver an Officer's Certificate
setting forth the names of the individuals and/or titles of officers authorized
at such time to take specified actions pursuant to this Indenture, which
Officer's Certificate may be signed by any person authorized to sign an
Officer's Certificate, including any person specified as so authorized in any
such certificate previously delivered and not superseded.
SECTION 7.03. Individual Rights of Trustee. Subject to certain limitations
imposed by the TIA, the Trustee in its individual or any other capacity may
become the owner or pledgee of Notes and may otherwise deal with and collect
obligations owed to it by the Issuer, any Subsidiary Guarantor or any of their
or its Affiliates with the same rights it would have if it were not Trustee. Any
Paying Agent, Registrar, co-Registrar or co-Paying Agent may do the same with
like rights. However, the Trustee must comply with Sections 7.10 and 7.11.
SECTION 7.04. Trustee's Disclaimer. The Trustee shall not be responsible
for and makes no representation as to the validity or adequacy of this
Indenture, the Notes, it shall not be accountable for the Issuer's use of the
proceeds from the Notes, and it shall not be responsible for any statement in
the Notes other than the Trustee's certificate of authentication.
SECTION 7.05. Notice of Defaults. If a Default occurs and is continuing and
if it is known to the Trustee, the Trustee shall mail to each Holder notice of
the Default within 90 days after it occurs or if later, within 30 days after it
is known to a Trust Officer or notice of it is received by the Trustee. Except
in the case of a Default in payment of principal of or interest on any Note
(including payments pursuant to the mandatory redemption provisions of such
Note, if any), the Trustee may withhold the notice if and so long as a committee
of its Trust Officers in good faith determines that withholding the notice is in
the interests of Holders.
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The Trustee shall not be deemed to have knowledge of a Default unless a
Trust Officer has actual knowledge of such Default or written notice of such
Default has been received by the Trustee at its Corporate Trust Office in New
York, New York.
SECTION 7.06. Reports by Trustee to Holders. Within 60 days after July 15
of each year commencing with the first July 15 after the Issue Date, the Trustee
shall transmit to the Holders, in the manner and to the extent provided in TIA
ss. 313(c), a brief report dated as of such July 15, if required by TIA ss.
313(a). The Trustee also shall comply with TIA ss. 313(b).
A copy of each report at the time of its mailing to Holders shall be filed
with the SEC and each securities exchange (if any) on which the Notes are
listed. The Issuer agrees to notify the Trustee whenever the Notes become listed
on any securities exchange and of any delisting thereof.
SECTION 7.07. Compensation and Indemnity. The Issuer shall pay to the
Trustee from time to time reasonable compensation for its services as the Issuer
and the Trustee shall agree. The Trustee's compensation shall not be limited by
any law on compensation of a trustee of an express trust. The Issuer shall
reimburse the Trustee upon request for all reasonable out-of-pocket expenses
incurred or made by it, including costs of collection, in addition to the
compensation for its services. Such expenses shall include the reasonable
compensation and out-of-pocket expenses of the Trustee's agents and counsel. The
Issuer, failing which a Subsidiary Guarantor, shall fully indemnify the Trustee
against any and all loss, liability or expense (including attorneys' fees and
expenses) incurred by it without wilful misconduct, negligence or bad faith on
its part arising out of or in connection with the administration of this trust
and the performance of its duties hereunder (including the costs and expenses of
defending itself against any claim, whether asserted by the Issuer, any Holder,
a Subsidiary Guarantor or any other Person). The Trustee shall notify the Issuer
promptly of any claim for which it may seek indemnity. Failure by the Trustee to
so notify the Issuer shall not relieve the Issuer of its obligations hereunder.
The Issuer shall defend the claim and the Trustee shall cooperate in such
defense. The Trustee may have separate counsel and the Issuer shall Pay the fees
and expenses of such counsel. The Issuer need not pay for any settlement made
without its consent, which consent may not be unreasonably withheld. The Issuer
need not reimburse any expense or indemnify against any loss, liability or
expense incurred by the Trustee through the Trustee's own wilful misconduct,
negligence or bad faith.
The Issuer's payment obligations pursuant to this Section 7.07 shall
survive the discharge of this Indenture and the resignation or removal of the
Trustee. When the Trustee incurs expenses after the occurrence of a Default
specified in Section 6.01(viii) or (ix) with respect to the Issuer, a Subsidiary
Guarantor, or any Restricted Subsidiary, the expenses are intended to constitute
expenses of administration under Bankruptcy Law.
SECTION 7.08. Replacement of Trustee. A resignation or removal of the
Trustee and appointment of a successor Trustee shall become effective only upon
the successor Trustee's acceptance of appointment as provided in this Section
7.08. The Trustee may resign at any time by so notifying the Issuer. The Holders
of a majority in principal amount of the Notes may remove the Trustee by so
notifying the Trustee and the Issuer. The Issuer shall remove the Trustee if:
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(a) the Trustee fails to comply with Section 7.10;
(b) the Trustee is adjudged bankrupt or insolvent;
(c) a receiver or other public officer takes charge of the Trustee or its
property; or
(d) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the office
of the Trustee for any reason, the Issuer shall promptly appoint a successor
Trustee. Within one year after the successor Trustee takes office, the Holders
of a majority in the principal amount of the Notes may appoint a successor
Trustee to replace the Trustee appointed by the Issuer.
A successor Trustee shall deliver a written acceptance of its appointment
to the retiring Trustee and to the Issuer. Thereupon the resignation or removal
of the retiring Trustee shall become effective, and the successor Trustee shall
have all the rights, powers and duties of the Trustee under this Indenture. The
successor Trustee shall mail a notice of its succession to Holders. The retiring
Trustee shall promptly transfer all property held by it as Trustee to the
successor Trustee, subject to the lien provided for in Section 7.07.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Issuer or the
Holders of at least 25% in principal amount of the Notes may petition any court
of competent jurisdiction for the appointment of a successor Trustee at the
expense of the Issuer.
If the Trustee fails to comply with Section 7.10, any Holder may petition
any court of competent jurisdiction for the removal of the Trustee and the
appointment of a successor Trustee.
Notwithstanding the replacement of the Trustee pursuant to this Section,
the Subsidiary Guarantors' obligations under Section 7.07 shall continue for the
benefit of the retiring Trustee.
SECTION 7.09. Successor Trustee by Merger. If the Trustee consolidates
with, merges or converts into, or transfers all or substantially all its
corporate trust business or assets to, another corporation or banking
association, the resulting, surviving or transferee corporation or banking
association without any further act shall be the successor Trustee, provided
such corporation or banking association 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 other parties hereto.
In case at the time such successor or successors by merger, conversion or
consolidation to the Trustee shall succeed to the trusts created by this
Indenture any of the Notes shall have been authenticated but not delivered, any
such successor to the Trustee may adopt the certificate of authentication of any
predecessor trustee, and deliver such Notes so authenticated; and in case at
that time any of the Notes shall not have been authenticated, any successor to
the Trustee may authenticate such Notes either in the name of any predecessor
hereunder or in the name of the successor to the Trustee; and in all such cases
such
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certificates shall have the full force which it is anywhere in the Notes or in
this Indenture provided that the certificate of the Trustee shall have.
SECTION 7.10. Eligibility; Disqualification. The Trustee shall at all times
satisfy the requirements of TIA ss. 310(a). The Trustee shall have a combined
capital and surplus of at least $50,000,000 as set forth in its most recent
published annual report of condition. No obligor upon the Notes or Person
directly controlling, controlled by, or under common control with such obligor
shall serve as trustee upon the Notes. The Trustee shall comply with TIA ss.
310(b); provided that there shall be excluded from the operation of TIA ss.
310(b)(1) any indenture or indentures under which other securities or
certificates of interest or participation in other Notes of the Issuer are
outstanding if the requirements for such exclusion set forth in TIA ss.
310(b)(1) are met.
SECTION 7.11. Preferential Collection of Claims Against Guarantor. The
Trustee shall comply with TIA ss. 311(a), excluding any creditor relationship
listed in TIA ss. 311(b). A Trustee who has resigned or been removed shall be
subject to TIA ss. 311(a) to the extent indicated.
SECTION 7.12. Appointment of Co-Trustee. It is the purpose of this
Indenture that there shall be no violation of any law of any jurisdiction
(including particularly the law of the State) denying or restricting the right
of banking corporations or associations to transact business as trustee in such
jurisdiction. It is recognized that in case of litigation under this Indenture
or the Agreement, and in particular in case of the enforcement thereof on
default, or in the case the Trustee deems that by reason of any present or
future law of any jurisdiction it may not exercise any of the powers, rights or
remedies herein granted to the Trustee or hold title to the properties, in
trust, as herein granted or take any action which may be desirable or necessary
in connection therewith, it may be necessary that the Trustee appoint an
individual or institution as a separate or co-trustee. The following provisions
of this Section are adopted to these ends.
In the event that the Trustee appoints an additional individual or
institution as a separate or co-trustee, each and every remedy, power, right,
claim, demand, cause of action, immunity, estate, title, interest and lien
expressed or intended by this Indenture to be exercised by or vested in or
conveyed to the Trustee with respect thereto shall be exercisable by and vest in
such separate or co-trustee but only to the extent necessary to enable such
separate co-trustee to exercise such powers, rights and remedies, and only to
the extent that the Trustee by the laws of any jurisdiction (including
particularly the State) is incapable of exercising such powers, rights and
remedies and every covenant and obligation necessary to the exercise thereof by
such separate or co-trustee shall run to and be enforceable by either of them.
Should any instrument in writing from the Issuer be required by the
separate or co-trustee so appointed by the Trustee for more fully and certainly
vesting in and confirming to him or it such properties, rights, powers, trusts,
duties and obligations, any and all such instruments in writing shall, on
request, be executed, acknowledged and delivered by the Issuer; provided that if
an Event of Default shall have occurred and be continuing, if the Issuer does
not execute any such instrument within fifteen (15) days after request therefor,
the Trustees shall be empowered as an attorney-in-fact for the Issuer to execute
any such instrument in the Issuer's name and stead. In case any separate or
co-trustee or a successor to
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either shall die, become incapable or acting, resign or be removed, all the
estates, properties, rights, powers, trusts, duties and obligations of such
separate or co-trustee, so far as permitted by law, shall vest in and be
exercised by the Trustee until the appointment of a new trustee or successor to
such separate or co-trustee.
Each separate trustee and co-trustee shall, to the extent permitted by law,
be appointed and act subject to the following provisions and conditions:
(a) all rights and powers, conferred or imposed upon the Trustee shall be
conferred or imposed upon and may be exercised or performed by such
separate trustee or co-trustee; and
(b) no trustee hereunder shall be personally liable by reason of any act or
omission of any other trustee hereunder.
Any notice, request or other writing given to the Trustee shall be deemed
to have been given to each of the then separate trustees and co-trustees, as
effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Indenture and the conditions
of this Article.
Any separate trustee or co-trustee may at any time appoint the Trustee as
its agent or attorney-in-fact with full power and authority, to the extent not
prohibited by law, to do any lawful act under or in respect of this Indenture on
its behalf and in its name. If any separate trustee or co-trustee shall die,
become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Trustee, to the extent permitted by law, without the appointment of a new or
successors trustee.
ARTICLE 8
DISCHARGE OF INDENTURE; DEFEASANCE
SECTION 8.01. Discharge of Liability on Notes; Defeasance
(a) (i) When the Issuer has irrevocably deposited or caused to be
deposited with the Trustee as funds in trust for such purpose an
amount in U.S. dollars or U.S. Government Obligations sufficient
to pay the principal of, premium, if any, and any Additional
Amounts and accrued interest on the Notes to the date of such
deposit (in the case of Notes that have become due and payable)
or to the Stated Maturity or redemption date, as the case may be,
and the Issuer has delivered irrevocable instructions to the
Trustee to apply the deposited money toward the payment of Notes
at Maturity or on the redemption date, as the case may be, and
either (1) all outstanding Notes (other than Notes replaced
pursuant to Section 2.07 or Notes for whose payment money has
been deposited in trust under this Section 8.01 (a) or Section
8.02) have been delivered to the Trustee for cancellation; or
(II) all Notes not theretofore delivered to the Trustee for
cancellation (x) have become due and payable, (y) will become due
and payable at Stated Maturity within one year or (z) are to be
called for redemption within one year under arrangements
satisfactory to
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the Trustee for the giving of notice of redemption by the Trustee
in the Issuer's name, and at the Issuer's expense; and
(ii) the Issuer has paid all other sums payable hereunder, then
this Indenture shall, subject to Sections 8.01(d), and 8.06,
cease to be of further effect. The Trustee shall acknowledge
satisfaction and discharge of this Indenture on demand of the
Issuer accompanied by an Opinion of Counsel and an Officer's
Certificate certifying that (a) all conditions precedent provided
in this Indenture relating to the satisfaction and discharge of
this Indenture have been complied with and (b) such satisfaction
and discharge will not result in a breach or violation of or
constitute a default under, this Indenture or instrument to which
the Issuer or any Subsidiary is a party or by which the Issuer or
any Subsidiary is bound.
(b) Subject to Sections 8.01(c), 8.02 and 8.06, the Issuer at any time
may terminate (i) all its obligations under the Notes and this Indenture and
the obligations of the Subsidiary Guarantors under the Guarantees ("legal
defeasance option") or (ii) the respective obligations of the Issuer and the
Subsidiary Guarantors under Sections 4.05 through 4.22 and 5.01 (other than
the covenant to comply with TIA ss. 314(a)(4) to the extent the obligations
thereunder cannot be terminated) and the related operation of Section
6.01(a)(iii), (iv), (v), (vi) and (vii) (other than any remaining obligations
under TIA ss. 314(a)(4) and with respect to Section 6.01(a)(iv) only with
respect to the Issuer's and the Subsidiary Guarantors obligations under
Sections 4.05 through 4.21) (other than the covenant to comply with TIA ss.
314(a)(4) to the extent the obligations thereunder cannot be terminated)
("covenant defeasance option"). The Issuer may exercise its legal defeasance
option notwithstanding its prior exercise of its covenant defeasance option.
If the Issuer exercises its legal defeasance option, payment of the Notes may
not be accelerated because of an Event of Default. If the Issuer exercises its
covenant defeasance option, payment of the Notes may not be accelerated because
of an Event of Default specified in Section 6.01(a)(iii), (iv), (v), (vi),
(vii), (viii) or (ix) because of the failure of the Issuer or the Subsidiary
Guarantors to comply with Sections 4.05 through 4.22, as applicable.
Upon satisfaction of the conditions set forth herein and upon request of the
Issuer, the Trustee shall acknowledge in writing the discharge of those
obligations that the Issuer terminates.
(c) Notwithstanding clauses (a) and (b) above, the Issuer's and any
Subsidiary Guarantors' obligations in Sections 2.03, 2.04, 2.05, 2.06, 2.07,
4.03, 6.07, 7.07, 7.08, 8.04, 8.05 and 8.06 shall survive until the Notes have
been paid in full. Thereafter, the Issuer's and any Subsidiary Guarantors'
obligations in Sections 7.07, 8.04 and 8.05 shall survive such satisfaction and
discharge.
SECTION 8.02. Conditions to Defeasance. In order to exercise either legal
defeasance or covenant defeasance:
(a) the Issuer must irrevocably deposit or cause to be deposited in trust
with the Trustee, for the benefit of the Holders of the Notes, cash in U.S.
dollars, U.S. Government Obligations, or a combination thereof, in such
amounts as will be sufficient, in the opinion of an internationally
recognized firm of independent public
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accountants, to pay and discharge the principal of, premium, if any, and
interest, on the outstanding Notes on the Stated Maturity or if, at or
prior to electing either legal defeasance or covenant defeasance, the
Issuer has delivered to the Trustee an irrevocable notice to redeem all of
the outstanding Notes, on the applicable redemption date;
(b) in the case of legal defeasance, the Issuer shall have delivered to the
Trustee an Opinion of Counsel reasonably acceptable to the Trustee stating
that (i) the Issuer has received from, or there has been published by, the
Internal Revenue Service a ruling, or (ii) since the date of this
Indenture, there has been a change in applicable U.S. federal income tax
law, in either case to the effect that, and based thereon such opinion
shall confirm that, the Holders of the outstanding Notes will not recognize
income, gain or loss for U.S. federal income tax purposes as a result of
such legal defeasance and will be subject to U.S. 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;
(c) in the case of covenant defeasance, the Issuer shall have delivered to
the Trustee an Opinion of Counsel reasonably acceptable to the Trustee to
the effect that the Holders of the Notes outstanding will not recognize
income, gain or loss for U.S. federal income tax purposes as a result of
such covenant defeasance and will be subject to U.S. 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;
(d) in the case of covenant defeasance, the Issuer shall have delivered to
the Trustee an Opinion of Counsel reasonably acceptable to the Trustee to
the effect that the Holders of the Notes outstanding will not recognize
income, gain or loss for tax purposes of any Relevant Taxing Jurisdiction
as a result of such covenant defeasance and will be subject to tax of any
Relevant Taxing Jurisdiction 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;
(e) no Default or Event of Default will have occurred and be continuing on
the date of such deposit or, insofar as bankruptcy or insolvency events
described in Section 6.01(a)(x) and (xi) is concerned, at any time during
the period ending on the 180th day after the date of such deposit;
(f) such legal defeasance or covenant defeasance shall not cause the
Trustee to have a conflicting interest as defined in this Indenture and for
purposes of the Trust Indenture Act with respect to any of the Issuer's
securities;
(g) such legal defeasance or covenant defeasance will not result in a
breach or violation of, or constitute a default (other than a Default or
Event of Default resulting from the borrowing of funds to be applied to
such deposit) under, this Indenture or any material agreement or instrument
to which the Issuer or any Restricted Subsidiary is a party or by which the
Issuer or any Restricted Subsidiary is bound;
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(h) such defeasance or covenant defeasance shall not result in the trust
arising from such deposit constituting an investment company within the
meaning of the U.S. Investment Company Act of 1940, as amended, unless such
trust shall be registered under such Act or exempt from registration
thereunder;
(i) the Issuer will have delivered to the Trustee an opinion of independent
counsel in the country of the Issuer's incorporation to the effect that
after the 180th day following the deposit, the trust funds will not be
subject to the effect of any applicable bankruptcy, insolvency,
reorganization or similar laws affecting creditors' rights generally and an
Opinion of Counsel reasonably acceptable to the Trustee that the Trustee
shall have a perfected security interest in such trust funds for the
ratable benefit of the Holders;
(j) the Issuer will have delivered to the Trustee an Officers' Certificate
stating that the deposit was not made by the Issuer with the intent of
preferring the Holders of the Notes with the intent of defeating,
hindering, delaying or defrauding the Issuer's creditors or others, or
removing the Issuer's assets beyond the reach of the Issuer's creditors or
increasing the Issuer's debts to the detriment of the Issuer's creditors;
(k) no event or condition shall exist that would prevent the Issuer from
making payments of the principal of, premium, if any, and interest on the
Notes on the date of such deposit or at any time ending on the 180th day
after the date of such deposit; and
(l) the Issuer will 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 legal defeasance or the covenant
defeasance, as the case may be, have been complied with.
If the funds deposited with the Trustee to effect covenant defeasance are
insufficient to pay the principal of, premium, if any, and interest on the Notes
when due because of any acceleration occurring after an Event of Default, then
the Issuer shall remain liable for such payments.
SECTION 8.03. Application of Trust Money. The Trustee shall hold in trust
cash or U.S. Government Obligations deposited with it pursuant to this Article
8. It shall apply the deposited cash or U.S. Government Obligations through the
Paying Agent and in accordance with this Indenture to the payment of principal
of and interest on the Notes.
SECTION 8.04. Repayment to Guarantor. Anything in this Article 8 to the
contrary notwithstanding, the Trustee shall deliver or pay to the Issuer from
time to time upon Issuer Order any cash or U.S. Government Obligations held by
it as provided in Section 8.02 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 Eight.
SECTION 8.05. Indemnity for Government Securities. The Issuer or the
Guarantor shall pay and shall indemnify the Trustee against any tax, fee or
other charge
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imposed on or assessed against deposited U.S. Government Obligations or the
principal and interest received on such U.S. Government Obligations.
SECTION 8.06. Reinstatement. If the Trustee or Paying Agent is unable to
apply cash or U.S. Government Obligations in accordance with this Article 8 by
reason of any legal proceeding or by reason of any order or judgment of any
court or governmental authority enjoining, restraining or otherwise prohibiting
such application, the Issuer's and the Subsidiary Guarantors' obligations under
this Indenture and the Notes shall be revived and reinstated as though no
deposit had occurred pursuant to this Article 8 until such time as the Trustee
or any such Paying Agent is permitted to apply all such cash or U.S. Government
Securities in accordance with this Article 8.
ARTICLE 9
AMENDMENTS
SECTION 9.01. Without Consent of Holders
The Issuer, the Subsidiary Guarantors and the Trustee may modify, amend or
supplement this Indenture, the Notes, or any Guarantee without notice to or
consent of any Holder:
(a) to evidence the succession of another Person to the Issuer or the
Subsidiary Guarantors and the assumption by any such successor of the
covenants in this Indenture and in the Notes in accordance with Article 5;
(b) to add to the Issuer's covenants and those of any Subsidiary Guarantors
or any other obligor upon the Notes for the benefit of the Holders of the
Notes or to surrender any right or power conferred upon the Issuer or any
Subsidiary Guarantors or any other obligor upon the Notes, as applicable,
in this Indenture, in the Notes or in any Guarantee;
(c) to cure any ambiguity, or to correct or supplement any provision in
this Indenture, the Notes or any Guarantee that may be defective or
inconsistent with any other provision in this Indenture, the Notes or any
Guarantee or make any other provisions with respect to matters or questions
arising under this Indenture, the Notes or any Guarantee; provided that, in
each case, such provisions shall not adversely affect the interest of the
Holders of the Notes in any material respect;
(d) to comply with the requirements of the Commission in order to maintain
the qualification of this Indenture under the TIA;
(e) to add a Subsidiary Guarantor under this Indenture;
(f) to evidence and provide the acceptance of the appointment of a
successor trustee under this Indenture;
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(g) to mortgage, pledge, hypothecate or grant a security interest in favour
of the Trustee for the benefit of the Holders of the Notes as additional
security for the payment and performance of the Issuer's and any Subsidiary
Guarantors' obligations under this Indenture, in any property, or assets,
including any of which are required to be mortgaged, pledged or
hypothecated, or in which a security interest is required to be granted to
the Trustee pursuant to this Indenture or otherwise;
After an amendment under this Section 9.01 becomes effective, the Issuer
shall mail to the Holders a notice briefly describing such amendment. The
failure to give such notice to all Holders, or any defect therein, shall not
impair or affect the validity of an amendment under this Section 9.01.
SECTION 9.02. With Consent of Holders. The Issuer, the Subsidiary
Guarantors and the Trustee may amend or supplement this Indenture, or the Notes
or any Guarantee without notice to any Holder but with the written consent of
the Holders of not less than a majority in aggregate principal amount of the
Notes then outstanding (including consents obtained in connection with a tender
offer or exchange offer for the Notes). However, without the consent of each
Holder of an outstanding Note, an amendment may not:
(a) change the Stated Maturity of the principal of, or any instalment of or
Additional Amounts or interest on, any Note;
(b) reduce the principal amount of any Note (or Additional Amounts or
premium, if any) or the rate of interest on any Note;
(c) change the coin or currency in which the principal of any note or any
premium or any Additional Amounts or the interest thereon is payable;
(d) impair the right to institute suit for the enforcement of any payment
on or after the Stated Maturity thereof (or, in the case of redemption, on
or after the redemption date or Purchase Date, in the case of an Offer to
Purchase);
(e) amend, change or modify the Issuer's obligation to make and consummate
an Excess Proceeds Offer with respect to any Asset Sale in accordance with
Section 4.11 (Limitation on Sale of Certain Assets) or the Issuer's
obligation to make and consummate a Change of Control offer in the event of
a Change of Control Triggering Event in accordance with Section 4.13
(Change of Control Triggering Event), including, in each case, amending,
changing or modifying any definition relating thereto;
(f) reduce the principal amount of Notes whose Holders must consent to any
amendment, supplement or waiver of provisions of this Indenture;
(g) modify any of the provisions relating to supplemental indentures
requiring the consent of Holders or relating to the waiver of past defaults
or relating to the waiver of certain covenants, except to increase the
percentage of outstanding Notes required for such actions or to provide
that certain other provisions of this Indenture cannot be modified or
waived without the consent of the Holder of each Note affected thereby;
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(h) except as otherwise permitted under Article 5, consent to the
assignment or transfer by the Issuer of any of its rights or obligations
under this Indenture;
(i) release any Guarantee except in compliance with the terms of this
Indenture;
(j) make any change to the provisions of this Indenture affecting the
ranking of the Notes, in each case in a manner that adversely affects the
rights of the Holders;
(k) release any security that may have been granted in respect of the
Notes; or
(l) make any change in the provisions of this Indenture described under
Section 4.15 (Additional Amounts) that adversely affects the rights of any
Holder of the Notes or amend the terms of the Notes or this Indenture in a
way that would result in a loss of an exemption from any of the Taxes
described thereunder or an exemption from any obligation to withhold or
deduct Taxes so described thereunder unless the Issuer agrees to pay
Additional Amounts (if any) in respect thereof in the supplemental
indenture.
The consent of the Holders of the Notes is not necessary to approve the
particular form of any proposed amendment. It is sufficient if such consent
approves the substance of the proposed amendment. After an amendment becomes
effective, the Issuer shall (i) mail to each registered holder of the Notes at
such holder's address appearing in the Security Register a notice briefly
describing such amendment and (ii) if at the time of such notice the Notes are
listed on the Luxembourg Stock Exchange, publish a similar notice in the
Luxemburger Wort so long as the rules of the Luxembourg Stock Exchange so
require. However, the failure to give such notice to all Holders of the Notes,
or any defect therein, will not impair or affect the validity of the amendment.
SECTION 9.03. Compliance with Trust Indenture Act. Every amendment to this
Indenture or the Notes shall be set forth in a supplemental indenture that,
following consummation of the Exchange Offer or the effectiveness of the Shelf
Registration Statement, complies with the TIA as then in effect.
SECTION 9.04. Revocation and Effect of Consents and Waivers. A consent to
an amendment or a waiver by a Holder of a Note shall bind the Holder and every
subsequent Holder of that Note or portion of the Note that evidences the same
debt as the consenting Holder's Note, even if notation of the consent or waiver
is not made on the Note. However, any such Holder or subsequent Holder may
revoke the consent or waiver as to such Holder's Note or portion of the Note if
the Trustee receives the notice of revocation before the date the amendment or
waiver becomes effective. After an amendment or waiver becomes effective, it
shall bind every Holder.
The Issuer may, but shall not be obligated to, fix a record date for the
purpose of determining the Holders entitled to give their consent or take any
other action described above or required or permitted to be taken pursuant to
this Indenture. If a record date is fixed, then notwithstanding the immediately
preceding paragraph, those Persons who were Holders at such record date (or
their duly designated proxies), and only those Persons, shall be entitled to
give such consent or to revoke any consent previously given or to take any such
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action, whether or not such Persons continue to be Holders after such record
date. No such consent shall be valid or effective for more than 120 days after
such record date.
SECTION 9.05. Notation on or Exchange of Notes. If an amendment changes the
terms of a Note, the Issuer or Trustee may require the Holder of the Note to
deliver it to the Trustee. The Trustee may place an appropriate notation on the
Note regarding the changed terms and return it to the Holder. Alternatively, if
the Issuer so determines, the Issuer in exchange for the Note shall issue and
the Trustee shall authenticate a new Note that reflects the changed terms.
Failure to make the appropriate notation or to issue a new Note shall not affect
the validity of such amendment.
SECTION 9.06. Trustee Protected. The Trustee shall sign any amendment
authorized pursuant to this Article 9 if the amendment does not affect the
rights, duties, liabilities or immunities of the Trustee. If it does, the
Trustee may but need not sign it. In signing any amendment the Trustee shall be
entitled to receive indemnity satisfactory to it and to receive, and (subject to
Section 7.01) shall be fully protected in relying upon, an Officer's Certificate
and an Opinion of Counsel stating that such (i) amendment is authorized or
permitted by this Indenture, including without limitation a statement in such
Officer's Certificate and Opinion of Counsel that such amendment does not
adversely affect the rights of any Holder of Notes, and that all conditions
precedent to the execution, delivery and performance of such amendment have been
satisfied; (ii) the Issuer and the Subsidiary Guarantors have all necessary
corporate power and authority to execute and deliver the amendment and that the
execution, delivery and performance of such amendment has been duly authorized
by all necessary corporate action; (iii) the execution, delivery and performance
of the amendment do not conflict with, or result in the breach of or constitute
a default under any of the terms, conditions or provisions of (a) this
Indenture, (b) the Memorandum, Articles of Incorporation or similar constituent
documents or by-laws of the Issuer or the Subsidiary Guarantors, (c) any law or
regulation applicable to the Issuer or the Subsidiary Guarantors, (d) any
material order, writ, injunction or decree of any court or governmental
instrumentality applicable to the Issuer or the Subsidiary Guarantors or (e) any
material agreement or instrument to which the Issuer or the Subsidiary
Guarantors is subject; (iv) such amendment has been duly and validly executed
and delivered by the Issuer and the Subsidiary Guarantors, and this Indenture
together with such amendment constitutes a valid and binding obligation of the
Issuer and the Subsidiary Guarantors enforceable against the Issuer and the
Subsidiary Guarantors in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency or similar
laws affecting the enforcement of creditors' rights generally and general
equitable principles; and (v) this Indenture together with such amendment
complies with the TIA.
SECTION 9.07. Payment for Consent. None of the Issuer, the Subsidiary
Guarantors nor any Affiliate of the Issuer or the Subsidiary Guarantors shall,
directly or indirectly, pay or cause to be paid any consideration, whether by
way of interest, fee or otherwise, to any Holder for or as an inducement to any
consent, waiver or amendment of any of the terns or provisions of this Indenture
or the Notes unless such consideration is offered to be paid to all Holders that
so consent, waive or agree to amend in the time frame set forth in solicitation
documents relating to such consent, waiver or agreement.
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ARTICLE 10
GUARANTEES
SECTION 10.01. Notes Guarantee.
(a) Each Subsidiary Guarantor hereby fully and unconditionally guarantees,
on an unsecured, senior, joint and several basis, to each Holder and to the
Trustee and its successors and assigns on behalf of each Holder, the full
payment of principal of, premium, if any, and interest on, and all other
monetary obligations of the Issuer under this Indenture and the Notes (including
obligations to the Trustee and the obligations to pay Special Interest, if any,
and Additional Amounts, if any) with respect to each Note authenticated and
delivered by the Trustee or its agent pursuant to and in accordance with this
indenture, in accordance with the terms of this Indenture (all the foregoing
being hereinafter collectively called the "Obligations"). Each Subsidiary
Guarantor further agrees that the Obligations may be extended or renewed, in
whole or in part, without notice or further assent from such Subsidiary
Guarantor and that such Subsidiary Guarantor will remain bound under this
Article 10 notwithstanding any extension or renewal of any Obligation. All
payments under such Guarantee will be made in dollars.
(b) Each Subsidiary Guarantor hereby agrees that its obligations hereunder
shall be as if it were principal debtor and not merely surety, unaffected by,
and irrespective of, any validity, irregularity or unenforceability of any Note
or this Indenture, any failure to enforce the provisions of any Note or this
Indenture, any waiver, modification or indulgence granted to the Issuer with
respect thereto by the Holders or the Trustee, or any other circumstance which
may otherwise constitute a legal or equitable discharge of a surety or guarantor
(except payment in full); provided that, notwithstanding the foregoing, no such
waiver, modification, indulgence or circumstance shall without the written
consent of such Subsidiary Guarantor increase the principal amount of a Note or
the interest rate thereon or change the currency of payment with respect to any
Note, or alter the Stated Maturity thereof. Each Subsidiary Guarantor hereby
waives diligence, presentment, demand of payment, filing of claims with a court
in the event of merger or bankruptcy of the Issuer, any right to require that
the Trustee pursue or exhaust its legal or equitable remedies against the Issuer
prior to exercising its rights under the such Subsidiary Guarantor's Guarantee
(including, for the avoidance of doubt, any right which such Subsidiary
Guarantor may have to require the seizure and sale of the assets of the Issuer
to satisfy the outstanding principal of, interest on or any other amount payable
under each Note prior to recourse against such Subsidiary Guarantor or its
assets), protest or notice with respect to any Note or the Debt evidenced
thereby and all demands whatsoever, and covenants that such Subsidiary
Guarantor's Guarantee will not be discharged with respect to any Note except by
payment in full of the principal thereof and interest thereon or as otherwise
provided in this Indenture, including Section 10.03. If at any time any payment
of principal of and interest on such Note is rescinded or must be otherwise
restored or returned upon the insolvency, bankruptcy or reorganization of the
Issuer, such Subsidiary Guarantor's obligations hereunder with respect to such
payment shall be reinstated as of the date of such rescission, restoration or
returns as though such payment had become due but had not been made at such
times.
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Each Subsidiary Guarantor also agrees to pay any and all costs and expenses
(including reasonable attorneys' fees) incurred by the Trustee or any Holder in
enforcing any rights under this Section.
SECTION 10.02. Subrogation.
(a) Each Subsidiary Guarantor shall be subrogated to all rights of the
Holders against the Issuer in respect of any amounts paid to such Holders by
such Subsidiary Guarantor pursuant to the provisions of its Guarantee.
(b) Each Subsidiary Guarantor agrees that it shall not be entitled to any
right of subrogation in relation to the Holders in respect of any Obligations
guaranteed hereby until payment in full of all Obligations. Each Subsidiary
Guarantor further agrees that, as between it, on the one hand, and the Holders
and the Trustee, on the other hand, (x) the maturity of the Obligations
guaranteed hereby may be accelerated as provided in Section 6.02 for the
purposes of its Guarantee herein, notwithstanding any stay, injunction or other
prohibition preventing such acceleration in respect of the Obligations
guaranteed hereby, and (y) in the event of any declaration of acceleration of
such obligations as provided in Section 6.02, such Obligations (whether or not
due and payable) shall forthwith become due and payable by such Subsidiary
Guarantor for the purposes of this Section subject to Section 10.01(c) above.
SECTION 10.03. Limitation of Guarantee. Each Subsidiary Guarantor's
Guarantee is limited in an amount not to exceed the maximum amount that can be
guaranteed by such Subsidiary Guarantor without rendering such Guarantee, as it
relates to such Subsidiary Guarantor, voidable under applicable law relating to
fraudulent conveyance or fraudulent transfer of similar laws affecting the
rights of the creditors generally.
SECTION 10.04. Notation Not Required. Neither the Issuer, any Subsidiary
Guarantor nor any other Restricted Subsidiary providing a Guarantee shall be
required to make a notation on the Notes to reflect any Guarantee or any
release, termination or discharge thereof.
SECTION 10.05. Successors and Assigns. This Article 10 shall be binding
upon each Subsidiary Guarantor and each of their successors and assigns and
shall enure to the benefit of the successors and assigns of the Trustee and the
Holders and, in the event of any transfer or assignment of rights by any Holder
or the Trustee, the rights and privileges conferred upon that party in this
Indenture and in the Notes shall automatically extend to and be vested in such
transferee or assigns, all subject to the terms and conditions of this
Indenture.
SECTION 10.06. No Waiver. Neither a failure nor a delay on the part of
either the Trustee or the Holders in exercising any right, power or privilege
under this Article 10 shall operate as a waiver thereof, nor shall a single or
partial exercise thereof preclude any other or further exercise of any right,
power or privilege. The rights, remedies and benefits of the Trustee and the
Holders herein expressly specified are cumulative and are not exclusive of any
other rights, remedies or benefits which either may have under this Article 10
at law, in equity, by statute or otherwise.
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SECTION 10.07. Modification. No modification, amendment or waiver of any
provision of this Article 10, nor the consent to any departure by any Subsidiary
Guarantor therefrom, shall in any event be effective unless the same shall be in
writing and signed by the Trustee, and then such waiver or consent shall be
effective only in the specific instance and for the purpose for which given. No
notice to or demand on any Subsidiary Guarantor in any case shall entitle such
Subsidiary Guarantor to any other or further notice or demand in the same,
similar or other circumstance.
ARTICLE 11
HOLDERS' MEETINGS
SECTION 11.01. Purposes of Meetings. A meeting of the Holders may be called
at any time from time to time pursuant to this Article 11 for any of the
following purposes:
(a) to give any notice to the Issuer or a Subsidiary Guarantor or to the
Trustee, or to give any directions to the Trustee, or to consent to the
waiving of any Default hereunder and its consequences, or to take any other
action authorized to be taken by Holders pursuant to Article 9;
(b) to remove the Trustee and appoint a successor trustee pursuant to
Article 7; or
(c) to consent to the execution of an indenture supplemental hereto
pursuant to Section 9.02.
SECTION 11.02. Place of Meetings. Meetings of Holders may be held at such
place or places as the Trustee or, in case of its failure to act, the Issuer,
the Subsidiary Guarantors or the Holders calling the meeting, shall from time to
time determine.
SECTION 11.03. Call and Notice of Meetings. (a) The Trustee may at any time
(upon not less than 21 days' notice) call a meeting of Holders to be held at
such time and at such place in London, England, New York, New York or in such
other city as determined by the Trustee pursuant to Section 11.02. Notice of
every meeting of Holders, setting forth the time and the place of such meeting
and in general terms the action proposed to be taken at such meeting, shall be
mailed to each Holder and published in the manner contemplated by Section
12.02(b).
(b) In case at any time the Issuer, pursuant to a resolution of the board
of directors, or the Holders of at least 10% in aggregate principal amount at
maturity of the Notes then outstanding, shall have requested the Trustee to call
a meeting of the Holders, by written request setting forth in reasonable detail
the action proposed to be taken at the meeting, and the Trustee shall not have
made the first giving of the notice of such meeting within 20 days after receipt
of such request, then the Issuer or the Holders of Notes in the amount above
specified may determine the time (not less than 21 days after notice is given)
and the place in London, England, New York, New York or in such other city as
determined by the Issuer or the Holders pursuant to Section 11.02 for such
meeting and may call such meeting to take any action authorized in Section 11.01
by giving notice thereof as provided in Section 11.02(b).
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SECTION 11.04. Voting at Meetings. To be entitled to vote at any meeting of
Holders, a Person shall be (i) a Holder or (ii) a Person appointed by an
instrument in writing as proxy for a Holder or Holders by such Holder or
Holders. The only Persons who shall be entitled to be present or to speak at any
meeting of Holders shall be the Person so entitled to vote at such meeting and
their counsel and any representatives of the Trustee and its counsel and any
representatives of the Issuer and the Subsidiary Guarantors and their counsel.
SECTION 11.05. Voting Rights, Conduct and Adjournment. (a) Notwithstanding
any other provisions of this Indenture, the Trustee may make such reasonable
regulations as it may deem advisable for any meeting of Holders in regard to
proof of the holding of Notes and of the appointment of proxies and in regard to
the appointment and duties of inspectors of votes, the submission and
examination of proxies, certificates and other evidence of the right to vote,
and such other matters concerning the conduct of the meeting as it shall deem
appropriate. Except as otherwise permitted or required by any such regulations,
the holding of Notes shall be proved in the manner specified in Section 2.03 and
the appointment of any proxy shall be proved in such manner as is deemed
appropriate by the Trustee or by having the signature of the Person executing
the proxy witnessed or guaranteed by any bank, banker or trust company
customarily authorized to certify to the holding of a Note such as a Global
Note.
(b) At any meeting of Holders, the presence of Persons holding or
representing Notes in an aggregate principal amount at maturity sufficient under
the appropriate provision of this Indenture to take action upon the business for
the transaction of which such meeting was called shall constitute a quorum.
Subject to any required aggregate principal amount at maturity of Notes required
for the taking of any action pursuant to Article 9, in no event shall less than
a majority of the votes given by Persons holding or representing Notes at any
meeting of Holders be sufficient to approve an action. Any meeting of Holders
duly called pursuant to Section 11.03 may be adjourned from time to time by vote
of the Holders (or proxies for the Holders) of a majority of the Notes
represented at the meeting and entitled to vote, whether or not a quorum shall
be present; and the meeting may be held as so adjourned without further notice.
No action at a meeting of Holders shall be effective unless approved by persons
holding or representing Notes in the aggregate principal amount at maturity
required by the provision of this Indenture pursuant to which such action is
being taken.
(c) At any meeting of Holders, each Holder or proxy shall be entitled to
one vote for each $1,000 aggregate principal amount at maturity of outstanding
Notes held or represented.
SECTION 11.06. Revocation of Consent by Holders. At any time prior to (but
not after) the evidencing to the Trustee of the taking of any action at a
meeting of Holders by the Holders of the percentage in aggregate principal
amount at maturity of the Notes specified in this Indenture in connection with
such action, any Holder of a Note the serial number of which is included in the
Notes the Holders of which have consented to such action may, by filing written
notice with the Trustee at its principal Corporate Trust Office and upon proof
of holding as provided herein, revoke such consent so far as concerns such Note.
Except as aforesaid, any such consent given by the Holder of any Note shall be
conclusive and binding upon such Holder and upon all future Holders and owners
of such Note and of any Note issued in exchange therefor, in lieu thereof or
upon transfer thereof, irrespective of whether or not any notation in regard
thereto is made upon such Note. Any action taken by the Holders
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of the percentage in aggregate principal amount at maturity of the Notes
specified in this Indenture in connection with such action shall be conclusively
binding upon the Issuer, the Subsidiary Guarantors, the Trustee and the Holders.
ARTICLE 12
MISCELLANEOUS
SECTION 12.01. Trust Indenture Act Controls. If and to the extent that any
provision of this Indenture limits, qualifies or conflicts with the duties
imposed by, or with another provision (an "incorporated provision") included in
this Indenture by operation of, ▇▇.▇▇. 310 to 318, inclusive, of the TIA, such
imposed duties or incorporated provision shall control.
SECTION 12.02. Notices. (a) Any notice or communication shall be in writing
and delivered in person or mailed by first class mail to the Issuer and Trustee
addressed as follows:
if to the Issuer or the Subsidiary Guarantors:
CP Ships Limited
Brunswick House
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇
▇▇▇▇▇▇
c/o Telephone: +44 (0) ▇▇▇-▇▇▇ ▇▇▇▇
Facsimile: +44 (0) ▇▇▇-▇▇▇ ▇▇▇▇
Attention: Chief Financial Officer
With copies to:
CP Ships Limited
▇▇-▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇ ▇▇▇
Telephone: +44 (0) ▇▇▇-▇▇▇ ▇▇▇▇
Facsimile: +44 (0) ▇▇▇-▇▇▇ ▇▇▇▇
Attention: Chief Financial Officer
if to the Trustee:
The Bank of New York
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Global Finance Unit
Facsimile: ▇▇▇▇ ▇▇▇ ▇▇▇▇
with a copy to:
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Telephone: +44 (0) ▇▇▇-▇▇▇ ▇▇▇▇
Facsimile: +44 (0) ▇▇▇-▇▇▇ ▇▇▇▇
Attention: Global Trust Services
The Issuer, the Subsidiary Guarantors or the Trustee by notice to the other
may designate additional or different addresses for subsequent notices or
communications. All communications delivered to the Trustee shall be deemed
effective when received.
(b) Notices regarding the Notes shall also be:
(i) published (I) in the Financial Times and The Wall Street
Journal or another leading newspaper in each of London, England and
New York, New York, as the case may be, (II) through the newswire
service of Bloomberg or, if Bloomberg does not then operate, any
similar agency and, (III) if and so long as the Notes are listed on
the Luxembourg Stock Exchange and the rules and regulations of such
exchange so require, the Luxemburger Wort or another newspaper having
a general circulation in Luxembourg; or
(ii) in the case of certificated Notes, mailed to each Holder by
first-class mail at such Holder's respective address as it appears on
the registration books of the Registrar.
Notices given by first-class mail shall be deemed given five calendar days
after mailing and notices given by publication shall be deemed given on the
first date on which publication is made. Failure to mail a notice or
communication to a Holder or any defect in it shall not affect its sufficiency
with respect to other Holders. If a notice or communication is mailed in the
manner provided above, it is duly given, whether or not the addressee receives
it.
(c) If and so long as the Notes are listed on any securities exchange
instead of or in addition to the Luxembourg Stock Exchange, notices shall also
be given in accordance with any applicable requirements of such alternative or
additional securities exchange.
(d) If and so long as the Notes are represented by Global Notes, notice to
Holders, in addition to being given in accordance with Section 12.02(b) above,
shall also be given by delivery of the relevant notice to DTC for communication
to entitled account holdings in substitution for the previously-mentioned
publication.
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SECTION 12.03. Communication by Holders with Other Holders. Holders may
communicate pursuant to TIA ss. 312(b) with other Holders with respect to their
rights under this Indenture or the Notes. The Issuer, the Subsidiary Guarantors,
the Trustee, the Registrar and anyone else shall have the protection of TIA
312(c).
SECTION 12.04. Certificate and Opinion as to Conditions Precedent. Upon any
request or application by the Issuer or any of the Subsidiary Guarantors to the
Trustee to take or refrain from taking any action under this Indenture (except
in connection with the original issuance of the Notes on the date hereof), the
Issuer or the Subsidiary Guarantors, as the case may be, shall furnish to the
Trustee:
(a) an Officer's Certificate in form reasonably satisfactory to the Trustee
stating that, in the opinion of the signer, all conditions precedent, if
any, provided for in this Indenture relating to the proposed action have
been complied with; and
(b) an Opinion of Counsel in form reasonably satisfactory to the Trustee
stating that, in the opinion of such counsel, all such conditions precedent
have been complied with.
SECTION 12.05. Statements Required in Certificate or Opinion. Each
certificate or opinion with respect to compliance with a covenant or condition
provided for in this Indenture shall include:
(a) a statement that the individual making such certificate or opinion has
read such covenant or condition;
(b) 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;
(c) a statement that, in the opinion of such individual, he or she has made
such examination or investigation as is necessary to enable him or her to
express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(d) a statement as to whether or not, in the opinion of such individual,
such covenant or condition has been complied with.
SECTION 12.06. Rules by Trustee, Paying Agent and Registrar. The Trustee
may make reasonable rules for action by or a meeting of Holders. The Registrar
and the Paying Agent may make reasonable rules for their functions.
SECTION 12.07. Legal Holidays. A "Legal Holiday" is a Saturday, a Sunday or
a day on which banking institutions are not required to be open in Toronto,
Ontario; London, England or New York, New York. If an Interest Payment Date or
other payment date is a Legal Holiday, payment shall be made on the next
succeeding day that is not a Legal Holiday, and no interest shall accrue for the
intervening period. If a Record Date is a Legal Holiday, the Record Date shall
not be affected.
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SECTION 12.08. Governing Law. THIS INDENTURE, THE GUARANTEES AND THE NOTES
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK.
SECTION 12.09. Jurisdiction. The Issuer and the Subsidiary Guarantors agree
that any suit, action or proceeding against the Issuer or the Subsidiary
Guarantors brought by any Holder or the Trustee arising out of or based upon
this Indenture, the Notes or the Guarantees may be instituted in any state of
Federal court in the Borough of Manhattan, The City of New York, New York, and
any appellate court from any thereof, and each of them irrevocably submits to
the non-exclusive jurisdiction of such courts in any suit, action or proceeding.
The Issuer and the Subsidiary Guarantors irrevocably waive, to the fullest
extent permitted by law, any objection to any suit, action, or proceeding that
may be brought in connection with this Indenture, the Notes or the Guarantees,
including such actions, suits or proceedings relating to securities laws of the
United States of America or any state thereof; in such courts whether on the
grounds of venue, residence or domicile or on the ground that any such suit,
action or proceeding has been brought in an inconvenient forum. The Issuer and
the Subsidiary Guarantors agree that final judgment in any such suit, action or
proceeding brought in such court shall be conclusive and binding upon the Issuer
or the Subsidiary Guarantors, as the case may be, and may be enforced in any
court to the jurisdiction of which the Issuer or the Subsidiary Guarantors, as
the case may be, are subject by a suit upon such judgment; provided that service
of process is effected upon the Issuer or the Subsidiary Guarantors, as the case
may be, in the manner provided by this Indenture. Each of the Issuer and the
Subsidiary Guarantors has appointed ▇. ▇. ▇▇▇▇▇▇▇, with offices on the date
hereof at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, or any
successor, as its authorized agent (the "Authorized Agent"), upon whom process
may be served in any suit, action or proceeding arising out of or based upon
this Indenture, the Notes or the Guarantees or the transactions contemplated
herein which may be instituted in any state or Federal court in the Borough of
Manhattan, The City of New York, New York, by any Holder or the Trustee, and
expressly accepts the non-exclusive jurisdiction of any such court in respect of
any such suit, action or proceeding. Each of the Issuer and the Subsidiary
Guarantors hereby represents and warrants that the Authorized Agent has accepted
such appointment and has agreed to act as said agent for service of process, and
the Issuer and the Subsidiary Guarantors agree to take any and all action,
including the filing of any and all documents that may be necessary to continue
such respective appointment in full force and effect as aforesaid. Service of
process upon the Authorized Agent shall be deemed, in every respect, effective
service of process upon the Issuer and the Subsidiary Guarantors.
Notwithstanding the foregoing, any action involving the Issuer or the Subsidiary
Guarantors arising out of or based upon this Indenture, the Notes or the
Guarantees may be instituted by any Holder or the Trustee in any court of
competent jurisdiction in Toronto, Ontario or London, England.
SECTION 12.10. No Recourse Against Others. A director, officer, employee or
shareholder, as such, of the Issuer or the Subsidiary Guarantors shall not have
any liability for any obligations of the Issuer or the Subsidiary Guarantors
under the Notes, this Indenture or the Guarantees or for any claim based on, in
respect of or by reason of such obligations or their creation. By accepting a
Note, each Holder shall waive and release all such liability. The waiver and
release shall be part of the consideration for the issue of the Notes.
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SECTION 12.11. Successors. All agreements of the Issuer or the Subsidiary
Guarantors in this Indenture and the Notes shall bind their respective
successors. All agreements of the Trustee in this Indenture shall bind its
successors.
SECTION 12.12. Multiple Originals. The parties may sign any number of
copies of this Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement. One signed copy is enough to prove this
Indenture.
SECTION 12.13. Table of Contents, Cross-Reference Sheet and Headings. The
table of contents, cross-reference sheet and headings of the Articles and
Sections of this Indenture have been inserted for convenience of reference only,
are not intended to be considered a part hereof and shall not modify or restrict
any of the terms or provisions hereof.
SECTION 12.14. Severability. In case any provision in this Indenture or in
the Notes shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
SECTION 12.15. 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 agent duly appointed, such action shall become effective when such instrument
or instruments are delivered to the Trustee and, where it is hereby expressly
required, to the Issuer and the Subsidiary Guarantors. Such instrument or
instruments (and the action embodied therein and evidenced thereby) are
sometimes referred to in this Section 12.15 as the "Act" of 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 Issuer and the Subsidiary
Guarantors, if made in the manner provided in this Section 12.15.
(b) The fact and the 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 or by a
signature guarantee by a member of a signature guarantee program acceptable to
the Trustee. Where such execution is by a signer acting in a capacity other than
his individual capacity, such certificate, affidavit or signature guarantee
shall also constitute sufficient proof of his 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) Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the Holder of any Note shall bind every future Holder of the
same Note, and the Holder of every Note 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 Issuer or the Subsidiary
Guarantors in reliance thereon, whether or not notation of such action is made
upon such Note.
102
(d) If the Issuer or the Subsidiary Guarantors shall solicit from the
Holders any request, demand, authorization, direction, notice, consent, waiver
or other Act, the Issuer or the Subsidiary Guarantors may, at their option, by
or pursuant to a resolution of the board of directors, 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 neither the
Issuer nor the Subsidiary Guarantors shall have any obligation to do so. 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 aggregate principal amount at maturity of outstanding Notes have
authorized or agreed or consented to such request, demand, authorization,
direction, notice, consent, waiver or other Act, and for that purpose, the
number of Notes outstanding 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 six months after such record date.
SECTION 12.16. Currency Indemnity. U.S. dollars is the sole currency of
account and payment for all sums payable under the Notes, the Guarantees and
this Indenture. Any amount received or recovered in respect of the Notes, the
Guarantees or otherwise under this Indenture in a currency (the "Recovery
Currency") other than U.S. dollars (whether as a result of, or of the
enforcement of, a judgment or order of a court of any jurisdiction, in the
winding up or dissolution of the Issuer, any Subsidiary of the Issuer or
otherwise) by a Holder in respect of any sum expressed to be due to such Holder
from the Issuer or the Subsidiary Guarantors shall constitute a discharge of the
Issuer's or the Subsidiary Guarantors' obligations only to the extent of the
dollar amount which the recipient is able to purchase with the amount so
received or recovered in such other currency on the date of that receipt or
recovery (or, if it is not possible to purchase U.S. dollars on that date, on
the first date on which it is possible to do so). If the dollar amount to be
recovered is less than the dollar amount expressed to be due to the recipient
under any Note, the Issuer and the Subsidiary Guarantors agree to indemnify the
recipient against the cost of making such purchase, the cost of such purchases
in each case being determined by reference to the spot rate of exchange in New
York, New York at which any such person on the date of such receipt or recovery
is able to purchase U.S. dollars With the Recovery Currency. The foregoing
indemnities, to the extent permitted by law: (a) constitute a separate and
independent obligation from the other obligations of the Issuer and the
Subsidiary Guarantors; (b) shall give rise to a separate and independent cause
of action; (c) shall apply irrespective of any waiver granted by any holder; and
(d) shall continue in full force and effect despite any other judgment, order,
claim or proof for a liquidated amount in respect of any sum due under any Notes
or other judgment or order. The term "spot rate of exchange" shall include any
premiums and costs of exchange payable in connection with the purchase of, or
conversion into, dollars.
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.
103
IN WITNESS WHEREOF, the parties have caused this Indenture to be duly
executed as of the date first written above.
CP SHIPS LIMITED,
as Issuer
By: /s/ ▇▇▇ ▇▇▇▇▇▇
--------------------
Name: ▇▇▇ ▇▇▇▇▇▇
Title: Chief Financial Officer
CP SHIPS (UK) LIMITED,
as Subsidiary Guarantor
By: /s/ ▇▇▇ ▇▇▇▇▇▇
--------------------
Name: ▇▇▇ ▇▇▇▇▇▇
Title: Director
▇▇▇▇▇ LINES LIMITED, LLC,
as Subsidiary Guarantor
By: /s/ ▇▇▇ ▇▇▇▇▇▇
--------------------
Name: ▇▇▇ ▇▇▇▇▇▇
Title: Attorney-in-Fact
TMM LINES LIMITED, LLC,
as Subsidiary Guarantor
By: /s/ ▇▇▇ ▇▇▇▇▇▇
--------------------
Name: ▇▇▇ ▇▇▇▇▇▇
Title: Attorney-in-Fact
THE BANK OF NEW YORK,
as Trustee
By: /s/ Sonjeeve ▇▇▇▇▇
----------------------
Name: Sonjeeve ▇▇▇▇▇
Title: Assistant Vice President
104
You, the Issuer, the Subsidiary Guarantors and the Trustee are entitled to
rely upon this letter and are irrevocably authorized to produce this letter or a
copy hereof to any interested party in any administrative or legal proceedings
or official inquiry with respect to the matters covered hereby.
[Name of Transferor]
By: __________________________
Name:
Title:
Dated:
cc: CP Ships Limited
Attn: Chief Financial Officer
105
EXHIBIT A
[FORM OF FACE OF ORIGINAL NOTE]
[If Regulation S Global Note - Common Code 015096187/ISIN Number USC28004AA48/
CUSIP/CINS Number ▇▇▇▇▇▇▇▇▇]
[If Restricted Global Note - Common Code 015095580/ISIN Number US22409VAB80/
CUSIP Number ▇▇▇▇▇▇▇▇▇]
No.
[Include if Global Note - UNLESS THIS GLOBAL NOTE IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION ("DTC") TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE, OR PAYMENT, AND ANY GLOBAL NOTE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR IN SUCH OTHER NOMINEE AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC, ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL IN AS MUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.]
[Include if Global Note - TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO
TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR
THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL
NOTE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET
FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.]
[Include if Restricted Global Note - THIS NOTE HAS NOT BEEN REGISTERED
UNDER THE US SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY
STATE SECURITIES LAWS. NEITHER THIS NOTE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT. THE HOLDER OF THIS NOTE BY ITS ACCEPTANCE HEREOF AGREES TO
OFFER, SELL OR OTHERWISE TRANSFER SUCH NOTE, PRIOR TO THE DATE WHICH IS TWO
YEARS AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON
WHICH THE ISSUER OR ANY AFFILIATE OF THE ISSUER WAS THE OWNER OF THIS NOTE (OR
ANY
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PREDECESSOR OF THIS NOTE) ONLY (A) TO THE ISSUER, (B) PURSUANT TO A REGISTRATION
STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO
LONG AS THE NOTES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT
OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN
THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS
AND SALES THAT OCCUR OUTSIDE THE UNITED STATES IN COMPLIANCE WITH REGULATION S
UNDER THE SECURITIES ACT OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE ISSUER'S AND THE
TRUSTEE'S RIGHTS PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (i) PURSUANT TO
CLAUSE (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION
AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM AND (ii) IN EACH OF THE
FOREGOING CASES, TO REQUIRE THAT A CERTIFICATE OF TRANSFER IN THE FORM APPEARING
ON THE OTHER SIDE OF THIS NOTE IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO
THE TRUSTEE.]
[Include if Regulation S Global Note - IN RESPECT OF CANADIAN INVESTORS
ONLY, THIS NOTE HAS NOT BEEN QUALIFIED BY THE FILING OF A PROSPECTUS UNDER
APPLICABLE CANADIAN SECURITIES LAWS. BY ITS ACCEPTANCE OF THIS NOTE THE
PURCHASER REPRESENTS THAT IT IS EITHER AN ACCREDITED INVESTOR AS SUCH TERM IS
DEFINED IN ONTARIO SECURITIES COMMISSION RULE 45-501 - EXEMPT DISTRIBUTIONS, AND
IN MULTILATERAL INSTRUMENT 45-103 OF THE SECURITIES REGULATORY AUTHORITIES IN
ALBERTA AND BRITISH COLUMBIA OR A "SOPHISTICATED PURCHASER" AS THAT TERM IS
DEFINED IN THE SECURITIES ACT (QUEBEC) (A "SOPHISTICATED PURCHASER") AND THAT IT
IS EITHER PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNTS OF OTHER ACCREDITED
INVESTORS OR SOPHISTICATED PURCHASERS, AND AGREES THAT THIS NOTE IS NOT BEING
ACQUIRED WITH A VIEW TO DISTRIBUTION AND ANY RESALE OF SUCH NOTES WILL BE MADE
ONLY IN ACCORDANCE WITH MULTILATERAL INSTRUMENT 45-102 ("MI 45-102") OR UPON
DELIVERY OF AN OPINION OF CANADIAN COUNSEL REASONABLY SATISFACTORY TO THE ISSUER
(UNLESS THE DELIVERY OF SUCH OPINION IS WAIVED BY TO THE ISSUER) TO THE EFFECT
THAT THE RESALE IS EXEMPT FROM THE PROSPECTUS FILING REQUIREMENTS OF APPLICABLE
CANADIAN SECURITIES LAWS. UNLESS PERMITTED UNDER SECURITIES LEGISLATION, THE
HOLDER OF THIS NOTE SHALL NOT TRADE THE NOTES BEFORE [INSERT THE DATE THAT IS
FOUR MONTHS AND A DAY AFTER THE DISTRIBUTION DATE]].
THIS GLOBAL NOTE AND ANY RELATED DOCUMENTATION MAY BE AMENDED OR
SUPPLEMENTED FROM TIME TO TIME TO MODIFY THE RESTRICTIONS ON AND PROCEDURES FOR
OR RESALES AND OTHER TRANSFERS OF THIS GLOBAL NOTE TO REFLECT ANY CHANGE IN
APPLICABLE LAW OR REGULATION (OR THE INTERPRETATION THEREOF) OR IN PRACTICES
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RELATING TO THE RESALE OR TRANSFER OF RESTRICTED SECURITIES GENERALLY. THE
HOLDER OF THIS GLOBAL NOTE SHALL BE DEEMED, BY THE ACCEPTANCE HEREOF, TO HAVE
AGREED TO ANY SUCH AMENDMENT OR SUPPLEMENT. EACH PURCHASER OF THIS GLOBAL NOTE
OR ANY INTEREST HEREIN IS HEREBY NOTIFIED THAT THE SELLER OF THIS GLOBAL NOTE
MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE
SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER.
THE HOLDER OF THIS GLOBAL NOTE IS SUBJECT TO, AND ENTITLED TO THE BENEFITS
OF, THE REGISTRATION RIGHTS AGREEMENT, DATED AS OF JULY 3, 2002 AMONG THE
ISSUER, THE SUBSIDIARY GUARANTORS AND THE OTHER PARTIES REFERRED TO THEREIN.
[Include if Regulation S Global Note - UNTIL 40 DAYS AFTER THE COMMENCEMENT
OF THE OFFERING, AN OFFER OR SALE OF SECURITIES WITHIN THE UNITED STATES BY A
DEALER (AS DEFINED IN THE US SECURITIES ACT) MAY VIOLATE THE REGISTRATION
REQUIREMENTS OF THE US SECURITIES ACT IF SUCH OFFER OR SALE IS MADE OTHERWISE
THAN LET ACCORDANCE WITH RULE 144A UNDER THE US SECURITIES ACT.]
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10-3/8% SENIOR NOTE DUE 2012
CP Ships Limited, a corporation amalgamated and subsisting under the laws
of the Province of New Brunswick, Canada, for value received promises to pay to
Cede & Co. or registered assigns the principal sum as indicated on the Security
Register (as defined in the Indenture referred to on the reverse hereof) on July
15, 2012.
From o, or from the most recent interest payment date to which interest has
been paid or provided for, cash interest on this Note will accrue at 10-3/8%,
payable semiannually on January 15 and July 15 of each year, beginning on o, to
the Person in whose name this Note (or any predecessor Note) is registered at
the close of business on the preceding January 1 or July 1, as the case may be.
THIS NOTE SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof by manual signature of an authorized
signatory, this Note shall not be entitled to any benefit under the Indenture or
be valid or obligatory for any purpose.
Reference is hereby made to the further provisions of this Note set forth
on the reverse hereof and to the provisions of the Indenture, which provisions
shall for all purposes have the same effect as if set forth at this place.
IN WITNESS WHEREOF, CP Ships Limited has caused this Note to be signed
manually or by facsimile by its duty authorized signatory.
Dated: o, 20oo
CP SHIPS LIMITED
By: _____________________________
Name:
Title: Authorized Signatory
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
THE BANK OF NEW YORK,
as Trustee, certifies that this is one of the Notes referred to in the
Indenture.
By: _____________________________________
Authorized Officer
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[FORM OF REVERSE SIDE OF ORIGINAL NOTE]
10-3/8% Senior Note Due 2012
1. Interest
CP Ships Limited, a corporation amalgamated and subsisting under the laws
of the Province of New Brunswick, Canada, (such corporation, and its successors
and assigns under the Indenture hereinafter referred to, being herein called the
"Issuer"), for value received promises to pay interest on the principal amount
of this Note from o, at the rate per annum shown above. Interest will be
computed on the basis of a 360-day year of twelve 30-day months. The Issuer will
pay interest on overdue principal at the interest rate borne by the Notes
compounded semiannually, and it shall pay interest on overdue installments of
interest at the same rate compounded semiannually to the extent lawful. Any
interest paid on this Note shall be increased to the extent necessary to pay
Additional Amounts and Special Interest as set forth in this Note.
2. Special Interest
The Holder of this Note is entitled to the benefit of the Registration
Rights Agreement dated July 3, 2002, among the Issuer, CP Ships (UK) Limited,
▇▇▇▇▇ Lines Limited, LLC, TMM Lines Limited, LLC (collectively, the "Subsidiary
Guarantors"), and the Initial Purchasers (the "Registration Rights Agreement").
In the event that (a) the Exchange Offer Registration Statement (as defined
in the Registration Rights Agreement) is not filed with or confidentially
submitted to the U.S. Securities and Exchange Commission on or prior to the
270th calendar day following the date of the Indenture, (b) the Exchange Offer
Registration Statement is not declared effective on or prior to the 330th day
following the date of the Indenture or (c) (i) the Exchange Offer (as defined in
the Registration Rights Agreement) is not consummated on or prior to the 360th
day following the date of the Indenture or within 30 Business Days after being
declared effective, or (ii) if required, a Shelf Registration Statement (as
defined in the Registration Rights Agreement) with respect to the Notes is not
declared effective on or prior to the earlier of 40 days after the Shelf
Registration Statement is filed or 400 days after the date of the Indenture
(each event referred to in clauses (a) through (c) above, a "Registration
Deadline Event"), then the Issuer will be required to pay additional interest in
cash on January 15 and July 15 of each year, commencing on the first such date
following any Registration Deadline Event, at a rate per annum equal to 0.5% of
the principal amount of the Notes (determined daily) with respect to the first
90-day period following such Registration Deadline Event. Such amount of Special
Interest will increase by an additional 0.5% per annum to a maximum of 1.5% per
annum for each subsequent 90-day period until. such Registration Deadline Event
has been cured. Upon the cure of any Registration Deadline Event, Special
Interest with respect to such event shall cease to accrue from the date of the
filing, effectiveness or consummation that cured such event, as the case may be,
if the Issuer and Subsidiary Guarantors are otherwise in compliance with this
paragraph. However, if, after any such Special Interest ceases to accrue, a
different Registration Deadline Event occurs, Special Interest will again accrue
as described.
A-5
3. Additional Amounts
(a) All payments that the Issuer makes under or with respect to this Note
or that the Subsidiary Guarantors make under or with respect to the Guarantees
shall be made free and clear of and without withholding or deduction for or on
account of any pre-sent or future tax, duty, levy, impost, assessment or other
governmental charge (including, without limitation, penalties, interest and
other similar liabilities related thereto) of whatever nature (collectively,
"Taxes" or "Tax") imposed or levied by or on behalf of the federal government of
Canada or by or within any province or political subdivision thereof or within
any other jurisdiction in which the Issuer, the Subsidiary Guarantors or any
Surviving Entity are organized or resident for tax purposes or from or through
which payment is made (each, a "Relevant Taxing Jurisdiction"), unless the
Issuer or the Subsidiary Guarantors, as the case may be, are required to
withhold or deduct Taxes by law or by the interpretation or administration of
law. If the Issuer or the Subsidiary Guarantors are required to withhold or
deduct any amount for or on account of Taxes from any payment made under or with
respect to this Note, the Issuer or the Subsidiary Guarantors, as the case may
be, shall pay additional amounts ("Additional Amounts"), to the extent they may
lawfully do so, so that the net amount received by each Holder (including
Additional Amounts) after such withholding or deduction shall not be less than
the amount the Holder would have received if such Taxes had not been withheld or
deducted.
(b) Notwithstanding the foregoing, neither the Issuer nor the Subsidiary
Guarantors shall pay Additional Amounts to a Holder or beneficial owner of this
Note to the extent that the Taxes are imposed or levied:
(i) by a Relevant Taxing Jurisdiction by reason of the Holder's or
beneficial owner's present or former connection with such Relevant Taxing
Jurisdiction (other than the mere receipt or holding of this Note or by
reason of the receipt of payments thereunder or the exercise or enforcement
of rights under this Note or the Indenture); or
(ii) by reason of the failure of the Holder or beneficial owner of this
Note, prior to the relevant date on which a payment under and with respect
to the Notes is due and payable (the "Relevant Payment Date") to comply
with the Issuer's written request addressed to the Holder at least 30
calendar days prior to the Relevant Payment Date to provide accurate
information with respect to any certification, identification, information
or other reporting requirements which the Holder or such beneficial owner
is legally required to satisfy, whether imposed by statute, treaty,
regulation or administrative practice, in each such case by the Relevant
Taxing Jurisdiction, as a precondition to exemption from, or reduction in
the rate of deduction or withholding of, Taxes imposed by the Relevant
Taxing Jurisdiction (including, without limitation, a certification that
the Holder or beneficial owner is not resident in the Relevant Taxing
Jurisdiction).
(c) The Issuer's and the Subsidiary Guarantors' obligation to pay
Additional Amounts or to reimburse a Holder for Taxes paid by such Holder in
respect of Taxes shall not apply with respect to:
(i) any estate, inheritance, gift, sale, transfer, personal property or
similar Taxes;
A-6
(ii) any Tax that is payable otherwise than by deduction or withholding
from payments made under or with respect to this Note;
(iii) Taxes imposed on or with respect to any payment by the Issuer or the
Subsidiary Guarantors to the Holder if such Holder is a fiduciary or
partnership or person other than the sole beneficial owner of such payment
to the extent that Taxes would not have been imposed on such Holder had
such Holder been the sole beneficial owner of this Note;
(iv) any Tax that is imposed on or with respect to a payment made to a
Holder or beneficial owner who would have been able to avoid such
withholding or deduction by presenting this Note to another paying agent in
a member state of the European Union;
(v) any such withholding or deduction in respect of any Taxes imposed on a
payment to an individual that is required to be made pursuant to any EU
Directive on the taxation of savings implementing the conclusions of the
ECOFIN Council meeting of 26th-27th November 2000 or any law implementing
or complying with, or introduced in order to conform to, such Directive; or
(vi) any combination of (i), (ii), (iii), (iv) and (v).
(d) At least 30 calendar days prior to each date on which any payment under
or with respect to this Note is due and payable, if the Issuer or the Subsidiary
Guarantors shall be obligated to pay Additional Amounts with respect to such
payment (unless such obligation to pay Additional Amounts arises after the 30th
day prior to the date on which payment under or with respect to the Notes is due
and payable, in which case it shall be promptly thereafter), the Issuer or the
Subsidiary Guarantors shall deliver to the Trustee an Officer's Certificate
stating that such Additional Amounts shall be payable and the amounts so payable
and shall set forth such other information necessary to enable the Trustee to
pay such Additional Amounts to Holders on the payment date. The Issuer shall
promptly publish a press release stating that such Additional Amounts shall be
payable and describing its obligation to pay such amounts.
(e) Whenever this Note refers to, in any context, the payment of principal,
interest, if any, or any other amount payable under or with respect to this
Note, such payment shall also include the payment of Additional Amounts, if
applicable.
4. Method of Payment
The Issuer shall pay interest on this Note (except defaulted interest) to
the persons who are registered Holders of this Note at the close of
business on the Record Date for the next Interest Payment Date even if this Note
is cancelled after the Record Date and on or before the Interest Payment Date.
The Issuer shall pay principal and interest in U.S. Dollars in immediately
available funds that at the time of payment is legal tender for payment of
public and private debts; provided that payment of interest may be made at the
option of the Issuer by check mailed to the Holder.
The amount of payments in respect of interest on each Interest Payment Date
shall correspond to the aggregate principal amount of Notes represented by the
Regulation S Global Note and the Restricted Global Note, as established by the
Registrar at the close of
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business on the relevant Record Date. Payments of principal shall be made upon
surrender of the Regulation S Global Note and the Restricted Global Note to the
Paying Agent.
5. Paying Agent and Registrar
Initially, The Bank of New York or one of its affiliates will act as Paying
Agent and Registrar. The Issuer or any of its Wholly Owned Subsidiaries
incorporated in the United States may act as Paying Agent, Registrar or
Co-Registrar.
6. Indenture
The Issuer issued the Notes under an indenture dated as of July 3, 2002
(the "Indenture"), among the Issuer, the Subsidiary Guarantors and The Bank of
New York, as trustee (the "`Trustee"). The terms of the Notes include those
stated in the Indenture and those made part of the Indenture by reference to the
U.S. Trust Indenture Act of 1939 as in effect on the date of the Indenture and,
to the extent required by any amendment after such date, as so amended (the
"U.S. Trust Indenture Act"). Terms defined in the Indenture and not defined
herein have the meanings ascribed thereto in the Indenture. The Notes are
subject to all such terms, and Holders of the Notes are referred to the
Indenture and the U.S. Trust Indenture Act for a statement of those terms.
The Notes are unsecured senior guaranteed obligations of the Issuer and are
issued in an initial aggregate principal amount at maturity of $200,000,000. The
Indenture imposes certain limitations on the Issuer, the Subsidiary Guarantors
and their affiliates, including, without limitation, limitations on the
incurrence of indebtedness and issuance of stock, the payment of dividends and
other payment restrictions affecting the Issuer and its subsidiaries, the sale
of assets, transactions with and among affiliates of the Issuer and the
Restricted Subsidiaries, change of control and Liens.
7. Optional Redemption
(a) In the event that, prior to July 15, 2005, the Issuer receives proceeds
from one or more Public Equity Offerings, the Issuer may, at its election, use
all or a portion of such proceeds to redeem up to a maximum of 35% of the
aggregate principal amount of the Notes, including Additional Notes, if any, at
a Redemption Price equal to 110.375% of the principal amount thereof, plus
accrued and unpaid interest thereon, if any, including Special Interest, if any,
and Additional Amounts, if any, to the redemption date (subject to the right of
Holders of record on a relevant Record Date prior to the Redemption Date to
receive interest due on the relevant Interest Payment Date); provided, that
after giving effect to any such redemption, at least 65% of the aggregate
principal amount at maturity of the Notes initially issued would remain
outstanding immediately after such redemption. Any such redemption shall be made
within 75 days of the closing of a Public Equity Offering upon not less than 30
nor more than 60 days' notice mailed to each Holder of Notes being redeemed and
otherwise in accordance with the procedures set forth in the Indenture.
(b) At any time prior to July 15, 2007, the Issuer may redeem all or part
of the Notes, upon not less than 30 nor more than 60 days' prior notice, at a
redemption price equal to 100% of the principal amount thereof, plus the
Applicable Redemption Premium and accrued and unpaid interest to the redemption
date. "Applicable Redemption Premium"
A-8
means, with respect to any Note on any redemption date, the greater of (i) 1.0%
of the principal amount of such Note; and (ii) the excess of (1) the present
value at such redemption date of the redemption price of such Note at July 15,
2007, plus all required interest payments that would otherwise be due to be paid
on such Note during the period between the redemption date and at July 15, 2007,
excluding accrued but unpaid interest, computed using a discount rate equal to
the Treasury Rate at such redemption date plus 50 basis points, over (2) the
principal amount of the Note.
(c) At any time on or after July 15, 2007 and prior to maturity, the Issuer
may redeem all or part of the Notes, upon not less than 30 days' nor more than
60 days' notice, in amounts of $1,000 or integral multiples thereof at the
following redemption prices (expressed as percentages of principal amount at
maturity), plus accrued and unpaid interest, if any, to the redemption date, if
redeemed during the 12-month period beginning July 15 of the years set forth
below (subject to the right of Holders of record on a relevant Record Date prior
to the Redemption Date to receive interest due on the relevant Interest Payment
Date):
Year Redemption Price
---- ----------------
2007 105.188%
2008 103.458%
2009 101.729%
2010 and thereafter 100.000%
8. Redemption Upon Changes in Withholding Taxes
This Note and the [Regulation S Global Note] [Restricted Global Note] may
also be redeemed together, in whole but not in part, at the election of the
Issuer, upon not less than 30 nor more than 60 days notice delivered to each
Holder of Notes in accordance with the procedures set forth in the Indenture, at
the Redemption Price equal to 100% of their principal amount, plus accrued
interest if any to the redemption date (including Additional Amounts, if any)
if, as a result of any amendment after the date of the Indenture to, or change
after the date of the Indenture in, and at any time thereafter; the laws or
regulations of any Relevant Taxing Jurisdiction, or any change after the date of
the Indenture in the official interpretation or official application of the laws
or regulations of any Relevant Taxing Jurisdiction applicable to the Issuer, the
Issuer would be obligated to pay on the next date for any payment and as a
result of that change, Additional Amounts (as described above in Paragraph 3),
with respect to the Relevant Taxing Jurisdiction, which the Issuer cannot avoid
by the use of reasonable measures available to the Issuer. Immediately prior to
the giving of any notice of redemption pursuant to this paragraph, the Issuer
shall deliver to the Trustee (a) a certificate signed by two of the Issuer's
directors stating that the obligation to pay Additional Amounts cannot be
avoided by the Issuer taking reasonable measures available to it, and (b) a
written opinion of independent legal counsel to the Issuer of recognized
standing to the effect that the Issuer has or will become obligated to pay such
Additional Amounts as a result of such amendment or change, official
interpretation or application described above.
9. Notice of Redemption
Notice on redemption will be mailed first-class postage prepaid at least 30
days but not more than 60 days before the redemption date to the Holder of this
Note to be redeemed
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at the addresses contained in the Security Register. If this Note is in a
denomination larger than $1,000 of principal amount at maturity it may be
redeemed in part but only in integral multiples of $1,000 at maturity. In the
event of a redemption of less than all of the Notes, the Notes for redemption
will be chosen by the Trustee in accordance with the Indenture. If this Note is
redeemed subsequent to a Record Date with respect to any Interest Payment Date
specified above, then any accrued interest will be paid to the Holder of this
Note at the close of business on such Record Date. If money sufficient to pay
the redemption price of and accrued interest on all Notes (or portions thereof)
to be redeemed on the redemption date is deposited with the applicable Paying
Agent on or before the redemption date and certain other conditions are
satisfied, interest ceases to accrue on such Notes (or such portions thereof)
called for redemption on or after such date.
10. Repurchase at the Option of Holders
If a Change of Control Triggering Event occurs (as defined in the
Indenture) at any time, the Issuer shall be required to offer to purchase on the
Purchase Date all or any part (equal to $1,000 or an integral multiple thereof)
of this Note at a purchase price in cash in an amount equal to 101% of the
principal amount hereof, plus any accrued and unpaid interest, premium and
Additional Amounts, if any, to the Purchase Date (subject to the rights of
Holders of record on the relevant record dates to receive interest due on the
relevant interest payment date), which date shall be no earlier than 30 days nor
later than 60 days from the date notice of such offer is mailed, other than as
required by law. The Issuer shall purchase all Notes properly and timely
tendered in the Change of Control Offer and not withdrawn in accordance with the
procedures set forth in such notice. The Change of Control Offer will state,
among other things, the procedures that Holders of the Notes must follow to
accept the Change of Control Offer.
In accordance with the Indenture, when the aggregate amount of Excess
Proceeds exceeds $25 million, the Issuer shall be required to make an offer to
purchase the Notes and any Pari Passu Debt, the maximum principal amount
(expressed as a multiple of $1,000) of the Notes and any such Pari Passu Debt
that may be purchased with the amount of Excess Proceeds, at a redemption price
equal to (solely in the case of the Notes) 100% of the principal amount of such
Note and (solely in the case of Pari Passu Debt) no greater than 100% of the
principal amount (or accreted value, as applicable) of such Pari Passu Debt,
plus in each case, accrued interest, if any, to the date of repurchase.
11. Denominations
The Notes are in denominations of $1,000 and integral multiples of $1,000
of principal amount at maturity. The transfer of Notes may be registered, and
Notes may be exchanged, as provided in the Indenture. The Registrar may require
a Holder, among other things, to furnish appropriate endorsements and transfer
documents and to pay any taxes and fees required by law or permitted by the
Indenture.
12. Unclaimed Money
All moneys paid by the Issuer or the Subsidiary Guarantors to the Trustee
or a Paying Agent for the payment of the principal of, or premium, if any, or
interest on, any Notes that remain unclaimed at the end of three years after
such principal, premium or interest has
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become due and payable may he repaid to the Issuer or the Subsidiary Guarantors,
subject to applicable law, and the Holder of such Note thereafter may look only
to the Issuer or the Subsidiary Guarantors for payment thereof.
13. Discharge and Defeasance
Subject to certain conditions, the Issuer at any time may terminate some or
all of its obligations and the obligations of the Subsidiary Guarantors under
the Notes, the Indenture and the Guarantees if the Issuer irrevocably deposits
with the Trustee U.S. Dollars or U.S. Government Obligations for the payment of
principal and interest on the Notes to redemption or maturity, as the case may
be.
14. Amendment. Supplement and Waiver
Subject to certain exceptions set forth in the Indenture, the Indenture may
be amended or supplemented with the written consent of the Holders of at least a
majority in aggregate principal amount of the relevant Notes then outstanding
(including consents obtained in connection with a tender offer or exchange offer
for the Notes) and any existing default or compliance with any provisions may be
waived with the consent of the Holders of at least a majority in aggregate
principal amount of the Notes then outstanding. However, without the consent of
the Holder of each outstanding Note affected thereby, an amendment may not:
(a) change the Stated Maturity of the principal of, or any installment
of or Additional Amounts or interest on, any Note:
(b) reduce the principal amount of any Note (or Additional Amounts or
premium, if any) or the rate of interest on any Note;
(c) change the coin or currency in which the principal of any Note or
any premium or any Additional Amounts or the interest thereon is payable;
(d) impair the right to institute suit for the enforcement of any
payment on or after the Stated Maturity thereof (or, in the case of
redemption, on or after the Redemption Date or Purchase Date, in the case
of an Offer to Purchase);
(e) amend, change or modify the Issuer's obligation to make and
consummate an Excess Proceeds Offer with respect to any Asset Sale in
accordance with Section 4.11 of the Indenture or the Issuer's obligation to
make and consummate a Change of Control Offer in the event of a Change of
Control Triggering Event in accordance with Section 4.13 of the Indenture,
including, in each case, amending, changing or modifying any definition
relating thereto;
(f) reduce the principal amount of Notes whose Holders must consent to
any amendment, supplement or waiver of provisions of the Indenture;
(g) modify any of the provisions relating to supplemental indentures
requiring the consent of holders or relating to the waiver of past defaults
or relating to the waiver of certain covenants, except to increase the
percentage of outstanding Notes required for such actions or to provide
that certain other provisions of the
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Indenture cannot be modified or waived without the consent of the holder of
each Note affected thereby;
(h) except as otherwise permitted under Article 5 of the Indenture,
consent to the assignment or transfer by the Issuer of any of its rights or
obligations under the Indenture;
(i) release any Guarantees except in compliance with the terms of the
Indenture;
(j) make any change to the provisions of the Indenture affecting the
ranking of the Notes, in each case in a manner that adversely affects the
rights of the Holders;
(k) release any security that may have been granted in respect of the
Notes; or
(l) make any change to Section 4.15 of the Indenture that adversely
affects the rights of any Holder of the Notes or amend the terms of the
Notes or the Indenture in a way that would result in a loss of an exemption
from any of the Taxes described thereunder or an exemption from any
obligation to withhold or deduct Taxes so described thereunder unless the
Issuer agrees to pay Additional Amounts (if any) in respect thereof in the
supplemental indenture.
Notwithstanding the foregoing, without notice to or the consent of any
Holder of the Notes, the Issuer, the Subsidiary Guarantors and the Trustee may,
among other things, modify, amend or supplement the Indenture:
(a) to evidence the succession of another Person to the Issuer or the
Subsidiary Guarantors and the assumption by any such successor of the
covenants in the Indenture and in the Notes in accordance with Article 5 of
the Indenture;
(b) to add to the Issuer's covenants and those of any Subsidiary
Guarantors or any other obligor upon the Notes for the benefit of the
Holders of the Notes or to surrender any right or power conferred upon the
Issuer or the Subsidiary Guarantors or any other obligor upon the Notes, as
applicable, in the Indenture, in the Notes or in any Guarantee;
(c) to cure any ambiguity, or to correct or supplement any provision
in the Indenture, the Notes or any Guarantee which may be defective or
inconsistent with any other provision in the Indenture, the Notes or any
Guarantee or make any other provisions with respect to matters or questions
arising under the Indenture, the Notes or any Guarantee; provided that, in
each case, such provisions shall not adversely affect the interest of the
Holders of the Notes in any material respect;
(d) to comply with the requirements of the Commission in order to
maintain the qualification of the Indenture under the TIA;
(e) to add a Subsidiary Guarantor under the Indenture;
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(f) to evidence and provide the acceptance of the appointment of a
successor trustee under the Indenture;
(g) to mortgage, pledge, hypothecate or grant a security interest in
favor of the Trustee for the benefit of the Holders of the Notes as
additional security for the payment and performance of the Issuer's and any
Subsidiary Guarantors' obligations under the Indenture, in any property, or
assets, including any of which are required to be mortgaged, pledged or
hypothecated, or in which a security interest is required to be granted to
the Trustee pursuant to the Indenture or otherwise.
The consent of the holders of the Notes is not necessary under the
Indenture to approve the particular form of any proposed amendment. It is
sufficient if such consent approves the substance of the proposed amendment.
After an amendment under the Indenture becomes effective, the Issuer shall
mail to the Holders a notice briefly describing such amendment. The failure to
give such notice to all holders of the Notes, or any defect therein, will not
impair or affect the validity of the amendment.
15. Defaults and Remedies
The Notes have the Events of Default as set forth in Section 6.01 of the
Indenture. If an Event of Default occurs and is continuing, the Trustee, by
notice to the Issuer, or the registered Holders of not less than 25% in
aggregate principal amount of the Notes then outstanding by notice to the Issuer
and the Trustee, subject to certain limitations, may declare all the Notes to be
due and payable immediately. Certain events of bankruptcy or insolvency are
Events of Default and shall result in the Notes being due and payable
immediately upon the occurrence of such Events of Default.
Holders of the Notes may not enforce the Indenture or the Notes except as
provided in the Indenture. The Trustee may refuse to enforce the Indenture or
the Notes unless it receives an indemnity satisfactory to it. Subject to certain
limitations, Holders of a majority in aggregate principal amount of the Notes
may direct the Trustee in its exercise of any trust or power. The Holders of a
majority in aggregate principal amount of the Notes then outstanding by written
notice to the Trustee may rescind any acceleration and its consequence if the
rescission would not conflict with any judgment or decree and if all existing
Events of Default have been cured or waived except nonpayment of principal,
premium, if any, or interest that has become due solely because of such
acceleration. The above description of Events of Default and remedies is
qualified by reference, and subject in its entirety, to the more complete
description thereof contained in the Indenture.
16. Trustee Dealings with the Issuer
Subject to certain limitations imposed by the U.S. Trust Indenture Act, the
Trustee under the Indenture, in its individual or any other capacity, may become
the owner or pledgee of Notes and may otherwise deal with and collect
obligations owed to it by the Issuer, the Subsidiary Guarantors or any of their
or its Affiliates with the same rights it would have if it were not Trustee. Any
Paying Agent, Registrar, co-Registrar or co-Paying Agent may do the same with
like rights.
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17. No Recourse Against Others
A director, officer, employee, or stockholder, as such, of the Issuer or
any Subsidiary Guarantor shall not have any liability for any obligations of the
Issuer or the Subsidiary Guarantors under the Notes, the Indenture or the
Guarantees or for any claim based on, in respect of, or by reason of, such
obligations or their creation. By accepting a Note, each Holder shall waive and
release all such liability. The waiver and release are part of the consideration
for the issue of the Notes.
18. Authentication
This Note shall not be valid until an authorized officer of the Trustee (or
an authenticating agent) manually signs the certificate of authentication on the
other side of this Note.
19. Governing Law
THIS NOTE SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
The Issuer or the Subsidiary Guarantors shall furnish to any Holder of
Notes upon written request and without charge to the Holder of Notes a copy of
the Indenture which has in it the text of this Note in larger type. Requests may
be made to:
CP Ships Limited
▇▇-▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Attention: Chief Financial Officer
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GUARANTEE
For value received, each Subsidiary Guarantor hereby fully and unconditionally
guarantees, as principal obligor and not merely as surety, on an unsecured,
senior, joint and several basis, to each Holder and to the Trustee and its
successors and assigns on behalf of each Holder, the full payment of principal
of, premium, if any, and interest on, and all other monetary obligations of the
Issuer under the Indenture and this Note (including obligations to the Trustee
and the obligations to pay Special Interest, if any, and Additional Amounts, if
any) with respect to each Note authenticated and delivered by the Trustee or its
agent pursuant to and in accordance with the Indenture, in accordance with the
terms of the Indenture (all the foregoing being hereinafter collectively called
the "Obligations"). Each Subsidiary Guarantor further agrees that the
Obligations may be extended or renewed, in whole or in part, without notice or
further assent from such Subsidiary Guarantor and that such Subsidiary Guarantor
will remain bound by Article 10 of the Indenture notwithstanding any extension
or renewal of any Obligation. All payments under such Guarantee will be made in
dollars.
These and other additional obligations of each Subsidiary Guarantor to the
Holder of this Note and to the Trustee pursuant to this Guarantee and the
Indenture (including, without limitation, the provisions relating to submission
to jurisdiction and appointment of the Authorized Agent set forth in the
Indenture) are expressly set forth in the Indenture to which reference is hereby
made for the precise terms of such obligations. This Guarantee shall be governed
by, and construed in accordance with, with the laws of the State of New York.
This Guarantee is dated the date of the Note upon which it is endorsed.
IN WITNESS WHEREOF, each Subsidiary Guarantor has caused this Guarantee to
be duly executed.
CP SHIPS (UK) LIMITED
as Subsidiary Guarantor
By: ________________________
Name:
Title:
▇▇▇▇▇ LINES LIMITED, LLC,
as Subsidiary Guarantor
By: ________________________
Name:
Title:
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TMM LINES LIMITED, LLC,
as Subsidiary Guarantor
By: ________________________
Name:
Title:
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ASSIGNMENT FORM
To assign this Note, fill in the form below:
(I) or (we) assign and transfer this Note to
________________________________________________________________________________
(Insert assignee's social security or tax I.D. no.)
________________________________________________________________________________
(Print or type assignee's name, address and postal code)
and irrevocably appoint _____________________________________________ agent to
transfer this Note on the books of the Issuer. The agent may substitute another
to act for him.
Your Signature: _______________________________________________________________
(Sign exactly as your name appears on the other side of
this Note)
Signature Guarantee:
_______________________________________________________________
(Participant in a recognized signature guarantee medallion program)
Date:
_______________________________________________________________
Certifying Signature: 2
In connection with any transfer of any Notes evidenced by this
certificate occurring prior to the date that is two years after the later of the
date of original issuance of such Notes and the last date, if any, on which the
Notes were owned by the Issuer or any Affiliate of the Issuer, the undersigned
confirms that such Notes are being transferred in accordance with the transfer
restrictions set forth in such Notes and:
CHECK ONE BOX BELOW
(1) [ ] to the Issuer; or
(2) [ ] pursuant to and in compliance with Rule 144A under the U.S.
Securities Act of 1933; or
(3) [ ] pursuant to and in compliance with Regulation S under the U.S.
Securities Act of 1933; or
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(4) [ ] pursuant to another available exemption from the registration
requirements of the U.S. Securities Act of 1933; or
(5) [ ] pursuant to an effective registration statement under the U.S.
Securities Act of 1933.
Unless one of the boxes is checked, the Trustee will refuse to
register any of the Notes evidenced by this certificate in the name of any
person other than the registered Holder thereof, provided, that if box (2) is
checked, by executing this form, the Transferor is deemed to have certified that
such Notes are being transferred to a person it reasonably believes is a
"qualified institutional buyer" as defined in Rule 144A under the U.S.
Securities Act of 1933 who has received notice that such transfer is being made
in reliance on Rule 144A; if box (3) is checked, by executing this form, the
Transferor is deemed to have certified that such transfer is made pursuant to an
offer and sale that occurred outside the United States in compliance with
Regulation S under the U.S. Securities Act; and if box (4) is checked, the
Trustee may require, prior to registering any such transfer of the Notes, such
legal opinions, certifications and other information as the Issuer reasonably
requests to confirm that such transfer is being made pursuant to an exemption
from or in a transaction not subject to, the registration requirements of the
U.S. Securities Act of 1933.
____________________________________________________ ___________________
Signature
Signature Guarantee:
____________________________________________________ ___________________
(Participant in a recognized signature guarantee medallion program)
Certifying Signature:
____________________________________________________ ___________________
Date
Signature Guarantee:
____________________________________________________
(Participant in a recognized signature guarantee medallion program)
A-18
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note or a portion thereof repurchased
pursuant to Sections 3.08 and 4.11 or 4.13 of the Indenture, check the box:
If the purchase is in part, indicate the portion (in denominations of
$1,000 or any integral multiple thereof) to be purchased:
Your signature:
(Sign exactly as your name appears on the other side of this Note)
Date:
Certifying Signature: _________________________________________
A-19
SCHEDULE A
SCHEDULE OF PRINCIPAL AMOUNT
The following decreases/increases in the principal amount of this
Security have been made:
Principal
Amount
Date of Decrease in Increase in Following such Notation Made
Decrease/ Principal Principal Decrease/ by or on Behalf
Increase Amount Amount Increase of Registrar
-------- ------ ------ -------- ------------
_________ ___________ ____________ ______________ ______________
_________ ___________ ____________ ______________ ______________
_________ ___________ ____________ ______________ ______________
_________ ___________ ____________ ______________ ______________
_________ ___________ ____________ ______________ ______________
_________ ___________ ____________ ______________ ______________
_________ ___________ ____________ ______________ ______________
_________ ___________ ____________ ______________ ______________
_________ ___________ ____________ ______________ ______________
_________ ___________ ____________ ______________ ______________
_________ ___________ ____________ ______________ ______________
_________ ___________ ____________ ______________ ______________
_________ ___________ ____________ ______________ ______________
_________ ___________ ____________ ______________ ______________
_________ ___________ ____________ ______________ ______________
_________ ___________ ____________ ______________ ______________
▇-▇▇
▇▇▇▇▇▇▇ ▇
[FORM OF FACE OF EXCHANGE NOTE]
Common Code
ISIN
No.
[Include if Global Note - UNLESS THIS GLOBAL NOTE IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION ("DTC") TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE, OR PAYMENT, AND ANY GLOBAL NOTE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR IN SUCH OTHER NOMINEE NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC, ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL IN AS MUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.]
[Include if Global Note - TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO
TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR
THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL
NOTE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET
FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.]
THIS GLOBAL NOTE AND ANY RELATED DOCUMENTATION MAY BE AMENDED OR
SUPPLEMENTED FROM TIME TO TIME TO MODIFY THE RESTRICTIONS ON AND PROCEDURES FOR
OR RESALES AND OTHER TRANSFERS OF THIS GLOBAL NOTE TO REFLECT ANY CHANGE IN
APPLICABLE LAW OR REGULATION (OR THE INTERPRETATION THEREOF) OR IN PRACTICES
RELATING TO THE RESALE OR TRANSFER OF RESTRICTED SECURITIES GENERALLY. THE
HOLDER OF THIS GLOBAL NOTE SHALL BE DEEMED, BY THE ACCEPTANCE HEREOF, TO HAVE
AGREED TO ANY SUCH AMENDMENT OR SUPPLEMENT.
IN RESPECT OF CANADIAN INVESTORS ONLY, THIS NOTE HAS NOT BEEN QUALIFIED BY
THE FILING OF A PROSPECTUS UNDER APPLICABLE CANADIAN SECURITIES LAWS. BY ITS
ACCEPTANCE OF THIS NOTE THE PURCHASER REPRESENTS THAT IT IS EITHER AN ACCREDITED
INVESTOR AS SUCH TERM IS DEFINED IN ONTARIO SECURITIES COMMISSION RULE 45-501 -
EXEMPT DISTRIBUTIONS, AND IN MULTILATERAL INSTRUMENT 45-103 OF THE SECURITIES
REGULATORY AUTHORITIES IN ALBERTA AND BRITISH COLUMBIA OR A "SOPHISTICATED
PURCHASER" AS THAT TERM IS DEFINED IN THE SECURITIES ACT (QUEBEC) (A
"SOPHISTICATED PURCHASER") AND THAT
B-1
IT IS EITHER PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNTS OF OTHER
ACCREDITED INVESTORS OR SOPHISTICATED PURCHASERS, AND AGREES THAT THIS NOTE IS
NOT BEING ACQUIRED WITH A VIEW TO DISTRIBUTION AND ANY RESALE OF SUCH NOTES WILL
BE MADE ONLY IN ACCORDANCE WITH MULTILATERAL INSTRUMENT 45-102 ("MI 45-102") OR
UPON DELIVERY OF AN OPINION OF CANADIAN COUNSEL REASONABLY SATISFACTORY TO THE
ISSUER (UNLESS THE DELIVERY OF SUCH OPINION IS WAIVED BY TO THE ISSUER) TO THE
EFFECT THAT THE RESALE IS EXEMPT FROM THE PROSPECTUS FILING REQUIREMENTS OF
APPLICABLE CANADIAN SECURITIES LAWS. UNLESS PERMITTED UNDER SECURITIES
LEGISLATION, THE HOLDER OF THIS NOTE SHALL NOT TRADE THE NOTES BEFORE [INSERT
THE DATE THAT IS FOUR MONTHS AND A DAY AFTER THE DISTRIBUTION DATE].
B-2
10-3/8% SENIOR NOTE DUE 2012
CP Ships Limited, a corporation amalgamated and subsisting under the laws
of the Province of New Brunswick, Canada, for value received promises to pay to
Cede & Co. or registered assigns the principal sum as indicated on the Security
Register (as defined in the Indenture referred to on the reverse hereof) on July
15, 2012.
From o, or from the most recent interest payment date to which interest has
been paid or provided for, cash interest on this Note will accrue at 10-3/8%,
payable semiannually on January 15 and July 15 of each year, beginning on o, to
the Person in whose name this Note (or any predecessor Note) is registered at
the close of business on the preceding January 1 or July 1, as the case may be.
THIS NOTE SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof by manual signature of an authorized
signatory, this Note shall not be entitled to any benefit under the Indenture or
be valid or obligatory for any purpose.
Reference is hereby made to the further provisions of this Note set forth
on the reverse hereof and to the provisions of the Indenture, which provisions
shall for all purposes have the same effect as if set forth at this place.
IN WITNESS WHEREOF, CP Ships Limited has caused this Note to be signed
manually or by facsimile by its duly authorized signatory.
Dated: o, 20oo
CP SHIPS LIMITED
By: ______________________________
Name:
Title: Authorized Signatory
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
THE BANK OF NEW YORK,
as Trustee, certifies that this is one of the Notes referred to in the
Indenture.
By: _______________________________________
Authorized Officer
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[FORM OF REVERSE SIDE OF EXCHANGE NOTE]
10-3/8% Senior Note Due 2012
1. Interest
CP Ships Limited, a corporation amalgamated and subsisting under the laws
of the Province of New Brunswick, Canada, (such corporation, and its successors
and assigns under the Indenture hereinafter referred to, being herein called the
"Issuer"), for value received promises to pay interest on the principal amount
of this Note from o, at the rate per annum shown above. Interest will be
computed on the basis of a 360-day year of twelve 30-day months. The Issuer will
pay interest on overdue principal at the interest rate borne by the Notes
compounded semiannually, and it shall pay interest on overdue installments of
interest at the same rate compounded semiannually to the extent lawful. Any
interest paid on this Note shall be increased to the extent necessary to pay
Additional Amounts and Special Interest as set forth in this Note.
2. Additional Amounts
(a) All payments that the Issuer makes under or with respect to this Note
or that the Subsidiary Guarantors make under or with respect to the Guarantees
shall be made free and clear of and without withholding or deduction for or on
account of any present or future tax, duty, levy, impost, assessment or other
governmental charge (including, without limitation, penalties, interest and
other similar liabilities related thereto) of whatever nature (collectively,
"Taxes" or "Tax") imposed or levied by or on behalf of the federal government of
Canada or by or within any province or political subdivision thereof or within
any other jurisdiction in which the Issuer, the Subsidiary Guarantors or any
Surviving Entity are organized or resident for tax purposes or from or through
which payment is made (each, a "Relevant Taxing Jurisdiction"), unless the
Issuer or the Subsidiary Guarantors, as the case may be, are required to
withhold or deduct Taxes by law or by the interpretation or administration of
law. If the Issuer or the Subsidiary Guarantors are required to withhold or
deduct any amount for or on account of Taxes from any payment made under or with
respect to this Note, the Issuer or the Subsidiary Guarantors, as the case may
be, shall pay additional amounts ("Additional Amounts"), to the extent they may
lawfully do so, so that the net amount received by each Holder (including
Additional Amounts) after such withholding or deduction shall not be less than
the amount the Holder would have received if such Taxes had not been withheld or
deducted.
(b) Notwithstanding the foregoing, neither the Issuer nor the Subsidiary
Guarantors shall pay Additional Amounts to a Holder or beneficial owner of this
Note to the extent that the Taxes are imposed or levied:
(i) by a Relevant Taxing Jurisdiction by reason of the Holder's or
beneficial owner's present or former connection with such Relevant Taxing
Jurisdiction (other than the mere receipt or holding of this Note or by
reason of the receipt of payments thereunder or the exercise or enforcement
of rights under this Note or the Indenture); or
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(ii) by reason of the failure of the Holder or beneficial owner o f this
Note, prior to the relevant date on which a payment under and with respect
to the Notes is due and payable (the "Relevant Payment Date") to comply
with the Issuer's written request addressed to the Holder at least 30
calendar days prior to the Relevant Payment Date to provide accurate
information with respect to any certification, identification, information
or other reporting requirements which the Holder or such beneficial owner
is legally required to satisfy, whether imposed by statute, treaty,
regulation or administrative practice, in each such case by the Relevant
Taxing Jurisdiction, as a precondition to exemption from, or reduction in
the rate of deduction or withholding of, Taxes imposed by the Relevant
Taxing Jurisdiction (including, without limitation, a certification that
the Holder or beneficial owner is not resident in the Relevant Taxing
Jurisdiction).
(c) The Issuer's and tile Subsidiary Guarantors' obligation to pay
Additional Amounts or to reimburse a Holder for Taxes paid by such Holder in
respect of Taxes shall not apply with respect to:
(i) any estate, inheritance, gift, sales, transfer, personal property or
similar Taxes;
(ii) any Tax that is payable otherwise than by deduction or withholding
from payments made under or with respect to this Note;
(iii) Taxes imposed on or with respect to any payment by the Issuer or the
Subsidiary Guarantors to the Holder if such Holder is a fiduciary or
partnership or person other than the sole beneficial owner of such payment
to the extent that Taxes would not have been imposed on such Holder had
such Holder been the sole beneficial owner of this Note;
(iv) any tax that is imposed on or with respect to a payment made to a
Holder or beneficial owner who would have been able to avoid such
withholding or deduction by presenting this Note to another paying agent in
a member state of the European Union;
(v) any such withholding or deduction in respect of any Taxes imposed on a
payment to an individual that is required to be made pursuant to any EU
Directive on the taxation of savings implementing the conclusions of the
ECOFIN Council meeting of 26th-27th November 2000 or any law implementing
or complying with, or introduced in order to conform to, such Directive; or
(vi) any combination of (i), (ii), (iii), (iv) and (v).
(d) At least 30 calendar days prior to each date on which any payment under
or with respect to this Note is due and payable, if the Issuer or the Subsidiary
Guarantors shall be obligated to pay Additional Amounts with respect to such
payment (unless such obligation to pay Additional Amounts arises after the 30th
day prior to the date on which payment under or with respect to the Notes is due
and payable, in which case it shall be promptly thereafter), the Issuer or the
Subsidiary Guarantors shall deliver to the Trustee an Officers' Certificate
stating that such Additional Amounts shall be payable and the amounts so payable
and shall set forth such other information necessary to enable the Trustee to
pay such Additional
B-5
Amounts to Holders on the payment date. The Issuer shall promptly publish a
press release stating that such Additional Amounts shall be payable and
describing its obligation to pay such amounts.
(e) Whenever this Note refers to, in any context, the payment of principal,
interest, if any, or any other amount payable under or with respect to this
Note, such payment shall also include the payment of Additional Amounts, if
applicable.
3. Method of Payment
The Issuer shall pay interest on this Note (except defaulted interest) to
the persons who are registered Holders of this Note at the close of business on
the Record Date for the next Interest Payment Date even if this Note is
cancelled after the Record Date and on or before the Interest Payment Date. The
Issuer shall pay principal and interest in U.S. Dollars in immediately available
funds that at the time of payment is legal tender for payment of public and
private debts; provided that payment of interest may be made at the option of
the Issuer by check mailed to the Holder.
The amount of payments in respect of interest on each Interest Payment Date
shall correspond to the aggregate principal amount of Notes represented by the
Regulation S Global Note and the Restricted Global Note, as established by the
Registrar at the close of business on the relevant Record Date. Payments of
principal shall be made upon surrender of the Regulation S Global Note and the
Restricted Global Note to the Paying Agent.
4. Paying Agent and Registrar
Initially, The Bank of New York or one of its affiliates will act as Paying
Agent and Registrar. The Issuer or any of its Wholly Owned Subsidiaries
incorporated in the United States may act as Paying Agent, Registrar or
Co-Registrar.
5. Indenture
The Issuer issued the Notes under an indenture dated as of July 3, 2002
(the "Indenture"), among the Issuer, the Subsidiary Guarantors and The Bank of
New York, as trustee (the "Trustee"). The terns of the Notes include those
stated in the Indenture and those made part of the Indenture by reference to the
U.S. Trust Indenture Act of 1939 as in effect on the date of the Indenture and,
to the extent required by any amendment after such date, as so amended (the
"U.S. Trust Indenture Act"). Terms defined in the Indenture and not defined
herein have the meanings ascribed thereto in the Indenture. The Notes are
subject to all such terms, and Holders of the Notes are referred to the
Indenture and the U.S. Trust Indenture Act for a statement of those terms.
The Notes are unsecured senior guaranteed obligations of the Issuer and are
issued in an initial aggregate principal amount at maturity of $200,000,000. The
Indenture imposes certain limitations on the Issuer, the Subsidiary Guarantors
and their affiliates, including, without limitation, limitations on the
incurrence of indebtedness and issuance of stock, the payment of dividends and
other payment restrictions affecting the Issuer and its subsidiaries, the sale
of assets, transactions with and among affiliates of the Issuer and the
Restricted Subsidiaries, change of control and Liens.
B-6
6. Optional Redemption
(a) In the event that, prior to July 15, 2005, the Issuer receives proceeds
from one or more Public Equity Offerings, the Issuer may, at its election, use
all or a portion of such proceeds to redeem up to a maximum of 35% of the
aggregate principal amount of the Notes, including Additional Notes, if any, at
a Redemption Price equal to 110.375% of the principal amount thereof, plus
accrued and unpaid interest thereon, if any, including Special Interest, if any,
and Additional Amounts, if any, to the redemption date (subject to the right of
Holders of record on a relevant Record Date prior to the Redemption Date to
receive interest due on the relevant Interest Payment Date); provided, that
after giving effect to any such redemption, at least 65% of the aggregate
principal amount at maturity of the Notes initially issued would remain
outstanding immediately after such redemption. Any such redemption shall be made
within 75 days of the closing of a Public Equity Offering upon not less than 30
nor more than 60 days' notice mailed to each Holder of Notes being redeemed and
otherwise in accordance with the procedures set forth in the Indenture.
(b) At any time prior to July 15, 2007, the Issuer may redeem all or part
of the Notes, upon not less than 30 nor more than 60 days' prior notice, at a
redemption price equal to 100% of the principal amount thereof, plus the
Applicable Redemption Premium and accrued and unpaid interest to the redemption
date. "Applicable Redemption Premium" means, with respect to any Note on any
redemption date, the greater of (i) 1.0% of the principal amount of such Note;
and (ii) the excess of (1) the present value at such redemption date of the
redemption price of such Note at July 15, 2007, plus all required interest
payments that would otherwise be due to be paid on such Note during the period
between the redemption date and at July 15, 2007, excluding accrued but unpaid
interest, computed using a discount rate equal to the Treasury Rate at such
redemption date plus 50 basis points, over (2) the principal amount of the Note.
(c) At any time on or after July 15, 2007 and prior to maturity, the Issuer
may redeem all or part of the Notes, upon not less than 30 days' nor more than
60 days' notice, in amounts of $1,000 or integral multiples thereof at the
following redemption prices (expressed as percentages of principal amount at
maturity), plus accrued and unpaid interest, if any, to the redemption date, if
redeemed during the 12-month period beginning July 15 of the years set forth
below (subject to the right of Holders of record on a relevant Record Date prior
to the Redemption Date to receive interest due on the relevant Interest Payment
Date):
Year Redemption Price
---- ----------------
2007 105.188%
2008 103.458%
2009 101.729%
2010 and thereafter 100.000%
B-7
7. Redemption Upon Chances in Withholding Taxes
This Note and the [Regulation S Global Note] [Restricted Global Note] may
also be redeemed together, in whole but not in part, at the election of the
Issuer, upon not less than 30 nor more than 60 days notice delivered to each
Holder of Notes in accordance with the procedures set forth in the Indenture, at
the Redemption Price equal to 100% of their principal amount, plus accrued
interest if any to the redemption date (including Additional Amounts, if any),
if, as a result of any amendment after the date of the Indenture to, or change
after the date of the Indenture in, and at any time thereafter, the laws or
regulations of any Relevant Taxing Jurisdiction, or any change after the date of
the Indenture in the official interpretation or official application of the laws
or regulations of any Relevant Taxing Jurisdiction applicable to the Issuer, the
Issuer would be obligated to pay on the next date for any payment and as a
result of that change, Additional Amounts (as described above in Paragraph 2),
with respect to the Relevant Taxing Jurisdiction, which the Issuer cannot avoid
by the use of reasonable measures available to the Issuer. Immediately prior to
the giving of any notice of redemption pursuant to this paragraph, the Issuer
shall deliver to the Trustee (a) a certificate signed by two of the Issuer's
directors stating that the obligation to pay Additional Amounts cannot be
avoided by the Issuer taking reasonable measures available to it, and (b) a
written opinion of independent legal counsel to the Issuer of recognized
standing to the effect that the Issuer has or will become obligated to pay such
Additional Amounts as a result of such amendment or change, official
interpretation or application described above.
8. Notice of Redemption
Notice of redemption will be mailed first-class postage prepaid at least 30
days but not more than 60 days before the redemption date to the Holder of this
Note to be redeemed at the addresses contained in the Security Register. If this
Note is in a denomination larger than $1,000 of principal amount at maturity it
may be redeemed in part but only in integral multiples of $1,000 at maturity. In
the event of a redemption of less than all of the Notes, the Notes for
redemption will be chosen by the Trustee in accordance with the Indenture. If
this Note is redeemed subsequent to a Record Date with respect to any Interest
Payment Date specified above, then any accrued interest will be paid to the
Holder of this Note at the close of business on such Record Date. If money
sufficient to pay the redemption price of and accrued interest on all Notes (or
portions thereof) to be redeemed on the redemption date is deposited with the
applicable Paying Agent on or before the redemption date and certain other
conditions are satisfied, interest ceases to accrue on such Notes (or such
portions thereof) called for redemption on or after such date.
B-8
9. Repurchase at the Option of Holders
If a Change of Control Triggering Event occurs (as defined in the
Indenture) at any time, the Issuer shall be required to offer to purchase on the
Purchase Date all or any part (equal to $1,000 or an integral multiple thereof)
of this Note at a purchase price in cash in an amount equal to 101% of the
principal amount hereof, plus any accrued and unpaid interest, premium and
Additional Amounts, if any, to the Purchase Date (subject to the rights of
Holders of record on the relevant record dates to receive interest due on the
relevant interest payment date) which date shall be no earlier than 30 days nor
later than 60 days from the date notice of such offer is mailed, other than as
required by law. The Issuer shall purchase all Notes properly and timely
tendered in the Change of Control Offer and not withdrawn in accordance with the
procedures set forth in such notice. The Change of Control Offer will state,
among other things, the procedures that Holders of the Notes must follow to
accept the Change of Control Offer.
In accordance with the Indenture, when the aggregate amount of Excess
Proceeds exceeds $25 million, the Issuer shall be required to make an offer to
purchase the Notes and any Pari Passu Debt, the maximum principal amount
(expressed as a multiple of $1,000) of the Notes and any such Pari Passu Debt
that may be purchased with the amount of Excess Proceeds, at a redemption price
equal to (solely in the case of the Notes) 100% of the principal amount of such
Note and (solely in the case of Pari Passu Debt) no greater than 100% of the
principal amount (or accreted value, as applicable) of such Pari Passu Debt,
plus in each case, accrued interest, if any, to the date of repurchase.
10. Denominations
The Notes are in denominations of $1,000 and integral multiples of $1,000
of principal amount at maturity. The transfer of Notes may be registered, and
Notes may be exchanged, as provided in the Indenture. The Registrar may require
a Holder, among other things, to furnish appropriate endorsements and transfer
documents and to pay any taxes and fees required by law or permitted by the
Indenture.
11. Unclaimed Money
All moneys paid by the Issuer or the Subsidiary Guarantors to the Trustee
or a Paying Agent for the payment of the principal of, or premium, if any, or
interest on, any Notes that remain unclaimed at the end of three years after
such principal, premium or interest has become due and payable may be repaid to
the Issuer or the Subsidiary Guarantors, subject to applicable law, and the
Holder of such Note thereafter may look only to the Issuer or the Subsidiary
Guarantors for payment thereof.
B-9
12. Discharge and Defeasance
Subject to certain conditions, the Issuer at any time may terminate some or
all of its obligations and the obligations of the Subsidiary Guarantors under
the Notes, the Indenture and the Guarantees if the Issuer irrevocably deposits
with the Trustee U.S. Dollars or U.S. Government Obligations for the payment of
principal and interest on the Notes to redemption or maturity, as the case may
be.
13. Amendment. Supplement and Waiver
Subject to certain exceptions set forth in the Indenture, the Indenture
maybe amended or supplemented with the written consent of the Holders of at
least a majority in aggregate principal amount of the relevant Notes then
outstanding (including consents obtained in connection with a tender offer or
exchange offer for the Notes) and any existing default or compliance with any
provisions may be waived with the consent of the Holders of at least a majority
in aggregate principal amount of the Notes then outstanding. However, without
the consent of the Holder of each outstanding Note affected thereby, an
amendment may not:
(a) change the Stated Maturity of the principal of, or any installment
of or Additional Amounts or interest on, any Note;
(b) reduce the principal amount of any Note (or Additional Amounts or
premium, if any) or the rate of interest on any Note;
(c) change the coin or currency in which the principal of any Note or
any premium or any Additional Amounts or the interest thereon is payable;
(d) impair the right to institute suit for the enforcement of any
payment on or after the Stated Maturity thereof (or, in the case of
redemption, on or after the Redemption Date or Purchase Date, in the case
of an Offer to Purchase);
(e) amend, change or modify the Issuer's obligation to make and
consummate an Excess Proceeds Offer with respect to any Asset Sale in
accordance with Section 4.11 of the Indenture or the Issuer's obligation to
make and consummate a Change of Control Offer in the event of a Change of
Control Triggering Event in accordance with Section 4.13 of the Indenture,
including, in each case, amending, changing or modifying any definition
relating thereto;
(f) reduce the principal amount of Notes whose Holders must consent to
any amendment, supplement or waiver of provisions of the Indenture;
(g) modify any of the provisions relating to supplemental indentures
requiring the consent of holders or relating to the waiver of past defaults
or relating to the waiver of certain covenants, except to increase the
percentage of outstanding Notes required for such actions or to provide
that certain other provisions of the Indenture cannot be modified or waived
without the consent of the holder of each Note affected thereby;
B-10
(h) except as otherwise permitted under Article 5 of the Indenture,
consent to the assignment or transfer by the Issuer of any of its rights or
obligations under the Indenture;
(i) release any Guarantees except in compliance with the terms of the
Indenture;
(j) make any change to the provisions of the Indenture affecting the
ranking of the Notes, in each case in a manner that adversely affects the
rights of the Holders;
(k) release any security that may have been granted in respect of the
Notes; or
(l) make any change to Section 4.15 of the Indenture that adversely
affects the rights of any Holder of the Notes or amend the terms of the
Notes or the Indenture in a way that would result in a loss of an exemption
from any of the Taxes described thereunder or an exemption from any
obligation to withhold or deduct Taxes so described thereunder unless the
Issuer agree to pay Additional Amounts (if any) in respect thereof in the
supplemental indenture.
Notwithstanding the foregoing, without notice to or the consent of any
Holder of the Notes, the Issuer, the Subsidiary Guarantors and the Trustee may,
among other things, modify, amend or supplement the Indenture:
(a) to evidence the succession of another Person to the Issuer or the
Subsidiary Guarantors and the assumption by any such successor of the
covenants in the Indenture and in the Notes in accordance with Article 5 of
the Indenture;
(b) to add to the Issuer's covenants and those of any Subsidiary
Guarantors or any other obligor upon the Notes for the benefit of the
Holders of the Notes or to surrender any right or power conferred upon the
Issuer or the Subsidiary Guarantors or any other obligor upon the Notes, as
applicable, in the Indenture, in the Notes or in any Guarantee;
(c) to cure any ambiguity, or to correct or supplement any provision
in the Indenture, the Notes or any Guarantee which may be defective or
inconsistent with any other provision in the Indenture, the Notes or any
Guarantee or make any other provisions with respect to matters or questions
arising under the Indenture, the Notes or any Guarantee; provided that, in
each case, such provisions shall not adversely affect the interest of the
Holders of the Notes in any material respect;
(d) to comply with the requirements of the Commission in order to
maintain the qualification of the Indenture under the TIA;
(e) to add a Subsidiary Guarantor under the Indenture;
(f) to evidence and provide the acceptance of the appointment of a
successor trustee under the Indenture;
B-11
(g) to mortgage, pledge, hypothecate or grant a security interest in
favor of the Trustee for the benefit of the Holders of the Notes as
additional security for the payment and performance of the Issuer's and any
Subsidiary Guarantors' obligations under the Indenture, in any property, or
assets, including any of which are required to be mortgaged, pledged or
hypothecated, or in which a security interest is required to be granted to
the Trustee pursuant to the Indenture or otherwise.
The consent of the holders of the Notes is not necessary under the
Indenture to approve the particular form of any proposed amendment. It is
sufficient if such consent approves the substance of the proposed amendment.
After an amendment under the Indenture becomes effective, the Issuer shall
mail to the Holders a notice briefly describing such amendment. The failure to
give such notice to all holders of the Notes, or any defect therein, will not
impair or affect the validity of the amendment.
14. Defaults and Remedies
The Notes have the Events of Default as set forth in Section 6.01 of the
Indenture. If an Event of Default occurs and is continuing, the Trustee, by
notice to the Issuer, or the registered Holders of not less than 25% in
aggregate principal amount of the Notes then outstanding by notice to the Issuer
and the Trustee, subject to certain limitations, may declare all the Notes to be
due and payable immediately. Certain events of bankruptcy or insolvency are
Events of Default and shall result in the Notes being due and payable
immediately upon the occurrence of such Events of Default.
Holders of the Notes may not enforce the Indenture or the Notes except as
provided in the Indenture. The Trustee may refuse to enforce the Indenture or
the Notes unless it receives an indemnity satisfactory to it. Subject to certain
limitations, Holders of a majority in aggregate principal amount of the Notes
may direct the Trustee in its exercise of any trust or power. The Holders of a
majority in aggregate principal amount of the Notes then outstanding by written
notice to the Trustee may rescind any acceleration and its consequence if the
rescission would not conflict with any judgment or decree and if all existing
Events of Default have been cured or waived except nonpayment of principal,
premium, if any, or interest that has become due solely because of such
acceleration. The above description of Events of Default and remedies is
qualified by reference, and subject in its entirety, to the more complete
description thereof contained in the Indenture.
15. Trustee Dealings with the Issuer
Subject to certain limitations imposed by the U.S. Trust Indenture Act, the
Trustee under the Indenture, in its individual or any other capacity, may become
the owner or pledgee of Notes and may otherwise deal with and collect
obligations owed to it by the Issuer, the Subsidiary Guarantors or any of their
or its Affiliates with the same rights it would have if it were not Trustee. Any
Paying Agent, Registrar, co-Registrar or co-Paying Agent may do the same with
like rights.
16. No Recourse Against Others
B-12
A director, officer, employee, or stockholder, as such, of the Issuer or
any Subsidiary Guarantor shall not have any liability for any obligations of the
Issuer or the Subsidiary Guarantors under the Notes, the Indenture or the
Guarantees or for any claim based on, in respect of, or by reason of, such
obligations or their creation. By accepting a Note, each Holder shall waive and
release all such liability. The waiver and release are part of the consideration
for the issue of the Notes.
17. Authentication
This Note shall not be valid until an authorized officer of the Trustee (or
an authenticating agent) manually signs the certificate of authentication on the
other side of this Note.
18. Governing Law
THIS NOTE SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
The Issuer or the Subsidiary Guarantors shall furnish to any Holder of
Notes upon written request and without charge to the Holder of Notes a copy of
the Indenture which has in it the text of this Note in larger type. Requests may
be made to:
CP Ships Limited
▇▇-▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇ ▇▇▇
Attention: Chief Financial Officer
B-13
GUARANTEE
For value received, each Subsidiary Guarantor hereby fully and unconditionally
guarantees, as principal obligor and not merely as surety, on an unsecured,
senior, joint and several basis, to each Holder and to the Trustee and its
successors and assigns on behalf of each Holder, the full payment of principal
of, premium, if any, and interest on, and all other monetary obligations of the
Issuer under the Indenture and this Note (including obligations to the Trustee
and the obligations to pay Special Interest, if any, and Additional Amounts, if
any) with respect to each Note authenticated and delivered by the Trustee or its
agent pursuant to and in accordance with the Indenture, in accordance with the
terms of the Indenture (all the foregoing being hereinafter collectively called
the "Obligations"). Each Subsidiary Guarantor further agrees that the
Obligations may be extended or renewed, in whole or in part, without notice or
further assent from such Subsidiary Guarantor and that such Subsidiary Guarantor
will remain bound by Article 10 of the Indenture notwithstanding any extension
or renewal of any Obligation. All payments under such Guarantee will be made in
dollars.
These and other additional obligations of each Subsidiary Guarantor to the
Holder of this Note and to the Trustee pursuant to this Guarantee and the
Indenture (including, without limitation, the provisions relating to submission
to jurisdiction and appointment of the Authorized Agent set forth in the
Indenture) are expressly set forth in the Indenture to which reference is hereby
made for the precise terms of such obligations. This Guarantee shall be governed
by, and construed in accordance with, with the laws of the State of New York.
This Guarantee is dated the date of the Note upon which it is endorsed.
IN WITNESS WHEREOF, each Subsidiary Guarantor has caused this Guarantee to
be duly executed.
CP SHIPS (UK) LIMITED,
as Subsidiary Guarantor
By: _________________________
Name:
Title:
▇▇▇▇▇ LINES LIMITED, LLC,
as Subsidiary Guarantor
By: _________________________
Name:
Title:
B-14
TMM LINES LIMITED, LLC,
as Subsidiary Guarantor
By: _________________________
Name:
Title:
B-15
ASSIGNMENT FORM
To assign this Note, fill in the form below:
(I) or (we) assign and transfer this Note to
________________________________________________________________________________
(Insert assignee's social security or tax I.D. no.)
________________________________________________________________________________
(Print or type assignee's name, address and postal code)
and irrevocably appoint ______________________________________ agent to transfer
this Note on the books of the Issuer. The agent may substitute another to act
for him.
Your Signature: _______________________________________________________________
(Sign exactly as your name appears on the other side of
this Note)
Signature Guarantee:
______________________________________________________________________
(Participant in a recognized signature guarantee medallion program)
Date:
______________________________________________________________________
Certifying Signature:
Date
Signature Guarantee:
_____________________________________________________
(Participant in a recognized signature guarantee medallion program)
B-16
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note or a portion thereof repurchased
pursuant to Sections 3.08 and 4.11 or 4.13 of the Indenture, check the box:
If the purchase is in part, indicate the portion (in denominations of
$1,000 or any integral multiple thereof) to be purchased:
Your signature:
(Sign exactly as your name appears on the other side of this Note)
Date:
Certifying Signature: ___________________________________
B-17
SCHEDULE A
SCHEDULE OF PRINCIPAL AMOUNT
The following decreases/increases in the principal amount of this Security
have been made:
Principal
Amount
Date of Decrease in Increase in Following such Notation Made
Decrease/ Principal Principal Decrease/ by or on Behalf
Increase Amount Amount Increase of Registrar
-------- ------ ------ -------- ------------
_________ ___________ ____________ ______________ ______________
_________ ___________ ____________ ______________ ______________
_________ ___________ ____________ ______________ ______________
_________ ___________ ____________ ______________ ______________
_________ ___________ ____________ ______________ ______________
_________ ___________ ____________ ______________ ______________
_________ ___________ ____________ ______________ ______________
_________ ___________ ____________ ______________ ______________
_________ ___________ ____________ ______________ ______________
_________ ___________ ____________ ______________ ______________
_________ ___________ ____________ ______________ ______________
_________ ___________ ____________ ______________ ______________
_________ ___________ ____________ ______________ ______________
_________ ___________ ____________ ______________ ______________
_________ ___________ ____________ ______________ ______________
_________ ___________ ____________ ______________ ______________
B-18
EXHIBIT C
FORM OF TRANSFER CERTIFICATE FOR TRANSFER FROM RESTRICTED
GLOBAL NOTE TO REGULATION S GLOBAL NOTE*.
(Transfers pursuant toss.2.06(a)(ii) of the indenture)
The Bank of New York, as ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Attn: Corporate Treat Office
Re: 10-3/8% Senior Notes Due 2012 (the "Notes")
Reference is hereby made to the Indenture dated as of July 3, 2002 (the
"Indenture") among CP Ships Limited, as Issuer, CP Ships (UK) Limited, ▇▇▇▇▇
Lines Limited, LLC, and TMM Lines Limited, LLC, as Subsidiary Guarantors, and
The Bank of New York, as Trustee. Capitalized terms used but not defined herein
shall have the meanings given them in the Indenture.
This letter relates to $ aggregate principal amount of Notes that are held
as a beneficial interest in the form of the Restricted Global Note (CUSIP No. ;
ISIN No: ) with the Depositary in the name of [name of transferor] (the
"Transferor"). The Transferor has requested an exchange or transfer of such
beneficial interest for an equivalent beneficial interest in the Regulation S
Global Note (Common Code No. ; ISIN No. ).
In connection with such request, the Transferor does hereby certify that
such transfer has been effected in accordance with the transfer restrictions set
forth in the Notes and:
(i) with respect to transfers made in reliance on Regulation S
("Regulation S") under the United States Securities Act of 1933, as
amended (the "U.S. Securities Act"), does certify that:
(i) the offer of the Notes was not made to a person in the United
States;
(ii) either (i) the transaction was executed in, on or through
the facilities of a designated offshore securities market and neither
the Transferor nor any person acting on its behalf knows that the
transaction was pre-arranged with a buyer in the United States or (ii)
at the time the buy order is originated the transferee is outside the
United States or the transferor and any person acting on its behalf
reasonably believe that the transferee is outside the United States;
(iii) no directed selling efforts have been made in contravention
of the requirements of Rule 903 or 904 of Regulation S, as applicable;
C-1
(iv) the transaction is not part of a plan or scheme to evade the
registration requirements of the U.S. Securities Act; and
(v) the Transferor is not a distributor of the Notes, an
affiliate of the Issuer or any such distributor or a person acting on
behalf of any of the foregoing.
(ii) with respect to transfers made in reliance on Rule 144 the Transferor
certifies that the Notes are being transferred in a transaction
permitted by Rule 144 under the U.S. Securities Act.
You, the Issuer, the Subsidiary Guarantors and the Trustee are entitled to
rely upon this letter and are irrevocably authorized to produce this letter or a
copy hereof to any interested party in any administrative or legal proceedings
or official inquiry with respect to the matters covered hereby. Terms used in
this certificate have the meanings set forth in Regulation S.
[Name of Transferor]
By: _____________________________
Name:
Title:
Date:
cc: CP Ships Limited
Attn: Chief Financial Officer
________________
* If the Note is a Definitive Note, appropriate changes need to be made
to the form of this transfer certificate.
C-2
EXHIBIT D
FORM OF TRANSFER CERTIFICATE FOR TRANSFER FROM REGULATION S
GLOBAL NOTE TO RESTRICTED GLOBAL NOTE
(Transfers pursuant toss.2.06(a)(iii) of the Indenture)
The Bank of New York, as ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Attn: Corporate Trust Office
Re: 10-3/8% Senior Notes Due 2012 (the "Notes")
Reference is hereby made to the Indenture dated as of July 3, 2002 (the
"Indenture") among CP Ships Limited, as Issuer, CP Ships (UK) Limited, ▇▇▇▇▇
Lines Limited, LLC and TMM Lines Limited, LLC, as Subsidiary Guarantors and The
Bank of New York, as Trustee. Capitalized terms used but not defined herein
shall have the meanings given them in the Indenture.
This letter relates to $ aggregate principal amount at maturity of Notes
that are held in the form of the Regulation S Global Note with the Common
Depositary (Common Code No. ; ISIN No. ) in the name of [name of transferor](the
"Transferor") to effect the transfer of the Notes in exchange for an equivalent
beneficial interest in the Restricted Global Note (CUSIP No. , ISIN No.).
In connection with such request, and in respect of such Notes the
Transferor does hereby certify that such Notes are being transferred in
accordance with the transfer restrictions set forth in the Notes and that:
CHECK ONE BOX BELOW:
[ ]: the Transferor is relying on Rule 144A under the United States
Securities Act of 1933 as amended (the "Securities Act") for
exemption from such Act's registration requirements; it is
transferring such Notes to a person it reasonably believes is a
"qualified institutional buyer" as defined in Rule 144A that
purchases for its own account, or for the account of a qualified
institutional buyer, and to whom the Transferor has given notice
that the transfer is made in reliance on Rule 144A and the transfer
is being made in accordance with any applicable securities laws of
any state of the United States; or
[ ]: the Transferor is relying on an exemption other than Rule 144A from
the registration requirements of the Securities Act, subject to the
Issuer's and the Trustee's right prior to any such offer, sale or
transfer to require the delivery of an Opinion of Counsel,
certification and/or other information satisfactory to each of them.
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You, the Issuer, the Subsidiary Guarantors and the Trustee are entitled to
rely upon this letter and are irrevocably authorized to produce this letter or a
copy hereof to any interested party in any administrative or legal proceedings
or official inquiry with respect to the matters covered hereby.
[Name of Transferor]
By: _______________________
Name:
Title:
Dated:
cc: CP Ships Limited
Attn: Chief Financial Officer
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