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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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SCHEDULE 13E-3
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RULE 13E-3 TRANSACTION STATEMENT
(PURSUANT TO SECTION 13(E) OF THE SECURITIES EXCHANGE ACT OF 1934)
COLEMAN WORLDWIDE CORPORATION
(NAME OF ISSUER)
COLEMAN WORLDWIDE CORPORATION
(NAME OF PERSON(S) FILING STATEMENT)
LIQUID YIELD OPTION(TM) NOTES DUE MAY 27, 2013
(ZERO COUPON-SENIOR SECURED)
(TITLE OF CLASS OF SECURITIES)
193672 AA 0
(CUSIP NUMBERS OF CLASSES OF SECURITIES)
------------------------
BARRY F. SCHWARTZ
EXECUTIVE VICE PRESIDENT
COLEMAN WORLDWIDE CORPORATION
1767 DENVER WEST BOULEVARD
GOLDEN, COLORADO 80401
(303) 202-2400
(NAME, ADDRESS AND TELEPHONE NUMBER OF PERSON AUTHORIZED TO RECEIVE
NOTICES AND COMMUNICATIONS ON BEHALF OF PERSON(S) FILING STATEMENT)
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Copy to:
ALAN C. MYERS, ESQ.
SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP
919 THIRD AVENUE
NEW YORK, NEW YORK 10022
TELEPHONE: (212) 735-3000
This statement if filed in connection with (check the appropriate box):
a. / / The filing of solicitation materials or an information
statement subject to Regulation 14A, Regulation 14C, or Rule
13e-3(c) under the Securities Exchange Act of 1934.
b. / / The filing of a registration statement under the Securities Act
of 1933.
c. /x/ A tender offer.
d. / / None of the above.
Check the following box if the soliciting materials or information
statement referred to in checking box (a) are preliminary copies. / /
CALCULATION OF FILING FEE
TRANSACTION VALUATION AMOUNT OF FILING FEE*
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($561,553,000 principal amount of $38,591.05
Liquid Yield Option(TM) Notes, due
May 27, 2013 at $343.61
per $1,000 principal amount at maturity)
$192,955,226.33
* In accordance with Rule 0-11 under the Securities Exchange Act of 1934, as
amended, the filing fee is determined by multiplying the transaction
valuation by one-fiftieth of one percent.
/x/ Check box if any part of the fee is offset as provided by Rule 0-11(a)(2)
and identify the filing with which the offsetting fee was previously paid.
Identify the previous filing by registration statement number, or the form
of schedule and the date of its filing.
Amount Previously Paid: $38,591.05 Filing Party: Coleman Worldwide
Corporation
Form or Registration No.: Schedule 13E-4 Date Filed: May 23, 1997
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(TM)Trademark of Merrill Lynch & Co., Inc.
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INTRODUCTION
This Rule 13e-3 Transaction Statement on Schedule 13E-3 (the 'Schedule
13E-3') is being filed by Coleman Worldwide Corporation, a Delaware corporation
(the 'Company'), the issuer of the equity securities which are the subject to a
Rule 13e-3 transaction, in connection with an offer by the Company to accept for
exchange for cash, pursuant to the Indenture dated as of May 27, 1993 between
the Company and First Trust National Association, as successor Trustee, any and
all of its outstanding Liquid Yield Option(Trademark) Notes due May 27, 2013
(the 'LYONs') at $343.61 per $1,000 principal amount, net to the exchanging
holder of LYONs (a 'Holder'), upon the terms and subject to the conditions set
forth in the Offer to Accept LYONs for Exchange for Cash dated May 23, 1997 (the
'Offer to Accept LYONs for Exchange for Cash') and in the related Letter of
Transmittal (which together constitute the 'Exchange Offer'), copies of which
are incorporated by reference as Exhibit (d) hereto.
The cross-reference sheet below is being supplied pursuant to General
Instruction F to Schedule 13E-3 and shows the location in the Company's Issuer
Tender Offer Statement on Schedule 13E-4 (the 'Schedule 13E-4') concurrently
being filed with the Securities and Exchange Commission (the 'Commission') in
connection with the Exchange Offer, which contains information required to be
included in response to the items of Schedule 13E-3. A copy of the Schedule
13E-4 is incorporated by reference as Exhibit (g) hereto. The information in the
Schedule 13E-4, including all exhibits thereto, is expressly incorporated by
reference herein in its entirety and responses to each item herein are qualified
in their entirety by the provisions of the Schedule 13E-4.
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(TM)Trademark of Merrill Lynch & Co., Inc.
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CROSS REFERENCE SHEET
(PURSUANT TO GENERAL INSTRUCTION F TO SCHEDULE 13E-3)
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ITEM NUMBER AND CAPTION LOCATION IN SCHEDULE 13E-4
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1. ISSUER AND CLASS OF SECURITY SUBJECT TO THE
TRANSACTION.
(a).................................................. The Front Cover Page and Item 1(a) in the Schedule
13E-4 are incorporated herein by reference.
(b).................................................. Item 1(b) in the Schedule 13E-4 is incorporated
herein by reference.
(c).................................................. Item 1(c) in the Schedule 13E-4 is incorporated
herein by reference.
(d)-(f).............................................. *
2. IDENTITY AND BACKGROUND.
(a)-(g).............................................. *
3. PAST CONTACTS, TRANSACTIONS OR NEGOTIATIONS.
(a)-(b).............................................. *
4. TERMS OF THE TRANSACTION.
(a)-(b).............................................. *
5. PLANS OR PROPOSALS OF THE ISSUER OR AFFILIATE.
(a).................................................. Item 3(b) in the Schedule 13E-4 is incorporated
herein by reference.
(b).................................................. Item 3(c) in the Schedule 13E-4 is incorporated
herein by reference.
(c).................................................. Item 3(d) in the Schedule 13E-4 is incorporated
herein by reference.
(d).................................................. Item 3(e) in the Schedule 13E-4 is incorporated
herein by reference.
(e).................................................. Item 3(f) in the Schedule 13E-4 is incorporated
herein by reference.
(f).................................................. Item 3(i) in the Schedule 13E-4 is incorporated
herein by reference.
(g).................................................. Item 3(j) in the Schedule 13E-4 is incorporated
herein by reference.
6. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
(a).................................................. Item 2(a) in the Schedule 13E-4 is incorporated
herein by reference.
(b).................................................. *
(c)-(d).............................................. Item 2(b) in the Schedule 13E-4 is incorporated
herein by reference.
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<TABLE>
<CAPTION>
ITEM NUMBER AND CAPTION LOCATION IN SCHEDULE 13E-4
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7. PURPOSE(S), ALTERNATIVES, REASONS AND EFFECTS.
<S> <C> <C>
(a).................................................. Item 3(a) in the Schedule 13E-4 is incorporated
herein by reference.
(b)-(d).............................................. *
8. FAIRNESS OF THE TRANSACTION.
(a)-(f).............................................. *
9. REPORTS, OPINIONS, APPRAISALS AND CERTAIN
NEGOTIATIONS.
(a)-(c).............................................. *
10. INTEREST IN SECURITIES OF THE ISSUER.
(a).................................................. *
(b).................................................. Item 4 in the Schedule 13E-4 is incorporated herein
by reference.
11. CONTRACTS, ARRANGEMENTS OR UNDERSTANDINGS WITH Item 5 in the Schedule 13E-4 is incorporated herein
RESPECT TO THE ISSUER'S SECURITIES. by reference.
12. PRESENT INTENTION AND RECOMMEN-DATION OF CERTAIN
PERSONS WITH REGARD TO THE TRANSACTION.
(a)-(b).............................................. *
13. OTHER PROVISIONS OF THE TRANSACTION.
(a)-(c).............................................. *
14. FINANCIAL INFORMATION.
(a)-(b).............................................. Item 7 in the Schedule 13E-4 is incorporated herein
by reference.
15. PERSONS AND ASSETS EMPLOYED, RETAINED OR UTILIZED.
(a).................................................. *
(b).................................................. Item 6 in the Schedule 13E-4 is incorporated herein
by reference.
16. ADDITIONAL INFORMATION. Item 8 in the Schedule 13E-4 is incorporated herein
by reference.
17. MATERIAL TO BE FILED AS EXHIBITS.
(a).................................................. Item 9(b) in the Schedule 13E-4 is incorporated
herein by reference.
(b).................................................. *
(c).................................................. Item 9(c) in the Schedule 13E-4 is incorporated
herein by reference.
(d).................................................. Item 9(a) in the Schedule 13E-4 is incorporated
herein by reference.
(e).................................................. *
(f).................................................. Item 9(f) in the Schedule 13E-4 is incorporated
herein by reference.
</TABLE>
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* Omitted because the Item is not required by Schedule 13E-4.
2
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ITEM 1. ISSUER AND CLASS OF SECURITY SUBJECT TO TRANSACTION.
(a) Reference is made to the information set forth in response to Item 1(a)
of the Schedule 13E-4, which information is incorporated herein by reference.
(b) The information set forth in 'INTRODUCTION' of the Offer to Accept
LYONs for Exchange for Cash is incorporated herein by reference.
(c) The information set forth in 'INTRODUCTION' and 'THE EXCHANGE
OFFER--Price Range of the LYONs and Coleman Common Stock; Interest and
Dividends' of the Offer to Accept LYONs for Exchange for Cash is incorporated
herein by reference.
(d) Not applicable.
(e) The information set forth in 'INTRODUCTION' of the Offer to Accept
LYONs for Exchange for Cash is incorporated herein by reference.
(f) The information set forth in Schedule II to the Offer to Accept LYONs
for Exchange for Cash is incorporated herein by reference.
ITEM 2. IDENTITY AND BACKGROUND.
(a)-(d), (g) This Statement is being filed by the Company, the issuer of
the class of securities which is the subject of this Rule 13e-3 transaction. The
information set forth in 'INTRODUCTION', 'THE EXCHANGE OFFER--Certain
Information Concerning the Company and Coleman', '--Transactions and
Arrangements Concerning the LYONs' and in Schedule I of the Offer to Accept
LYONs for Exchange for Cash is incorporated herein by reference.
(e)-(f) During the last five years, neither the Company nor, to the
Company's knowledge, any of its directors and executive officers (i) has been
convicted in a criminal proceeding (excluding traffic violations or similar
misdemeanors), or (ii) has been a party to a civil proceeding of a judicial or
administrative body of competent jurisdiction and as a result of such proceeding
was or is subject to a judgement, decree or final order enjoining further
violations of, or prohibiting activities subject to, federal or state securities
laws or finding any violation of such laws.
ITEM 3. PAST CONTACTS, TRANSACTIONS OR NEGOTIATIONS.
(a) Not applicable.
(b) The information set forth in 'THE EXCHANGE OFFER--Certain Information
Concerning the Company and Coleman' and '--Transactions and Arrangements
Concerning the LYONs' of the Offer to Accept LYONs for Exchange for Cash is
incorporated herein by reference.
ITEM 4. TERMS OF THE TRANSACTION.
(a) The information set forth in 'INTRODUCTION', 'THE EXCHANGE
OFFER--Amount of LYONs', '--Procedures for Exchanging LYONs', '--Exchange of
LYONs and Payment of Exchange Consideration', '--Withdrawal Rights', '--Certain
Conditions of the Exchange Offer' and '--Extension of the Surrender Period;
Termination; Amendments' of the Offer to Accept LYONs for Exchange for Cash is
incorporated herein by reference.
(b) Not applicable.
ITEM 5. PLANS OR PROPOSALS OF THE ISSUER OR AFFILIATE.
(a)-(g) The information set forth in the 'INTRODUCTION', 'SPECIAL
FACTORS--Purpose of Exchange Offer', 'THE EXCHANGE OFFER--Effects of the
Exchange Offer', '--Source and Amount of Funds', '--Certain Information
Concerning the Company and Coleman' and '--Transactions and Arrangements
Concerning the LYONs' of the Offer to Accept LYONs for Exchange for Cash is
incorporated herein by reference.
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ITEM 6. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
(a),(c) The information set forth in 'THE EXCHANGE OFFER--Source and Amount
of Funds' of the Offer to Accept LYONs for Exchange for Cash is incorporated
herein by reference.
(b) The information set forth in 'THE EXCHANGE OFFER--Fees and Expenses' of
the Offer to Accept LYONs for Exchange for Cash is incorporated herein by
reference.
(d) Not applicable.
ITEM 7. PURPOSE(S), ALTERNATIVES, REASONS AND EFFECTS.
(a) The information set forth in 'INTRODUCTION', 'SPECIAL FACTORS--Purpose
of the Exchange Offer' and 'THE EXCHANGE OFFER--Effects of the Exchange Offer'
of the Offer to Accept LYONs for Exchange for Cash is incorporated herein by
reference.
(b) Not applicable.
(c) The information set forth in 'INTRODUCTION', 'SPECIAL FACTORS--Purpose
of the Exchange Offer' and 'THE EXCHANGE OFFER--Effects of the Exchange Offer'
of the Offer to Accept LYONs for Exchange for Cash is incorporated herein by
reference.
(d) The information set forth in 'SPECIAL FACTORS--Purpose of the Exchange
Offer', 'THE EXCHANGE OFFER--Effects of the Exchange Offer', '--Certain Federal
Income Tax Consequences' and '--Certain Information Concerning the Company and
Coleman' of the Offer to Accept LYONs for Exchange for Cash is incorporated
herein by reference.
ITEM 8. FAIRNESS OF THE TRANSACTION.
(a)-(e) The information set forth in 'INTRODUCTION', 'SPECIAL
FACTORS--Purpose of the Exchange Offer', '--Fairness of the Exchange Offer' and
'THE EXCHANGE OFFER--Effects of the Exchange Offer' of the Offer to Accept LYONs
for Exchange for Cash is incorporated herein by reference.
(f) None.
ITEM 9. REPORTS, OPINIONS, APPRAISALS AND CERTAIN NEGOTIATIONS.
(a)-(c) No report, opinion or appraisal from an outside party related to
the Rule 13e-3 transaction was received.
ITEM 10. INTEREST IN SECURITIES OF THE ISSUER.
(a)-(b) The information set forth in 'INTRODUCTION', 'THE EXCHANGE
OFFER--Effects of the Exchange Offer' and '--Transactions and Arrangements
Concerning the LYONs' of the Offer to Accept LYONs for Exchange for Cash is
incorporated herein by reference.
ITEM 11. CONTRACTS, ARRANGEMENTS OR UNDERSTANDINGS WITH RESPECT TO THE ISSUER'S
SECURITIES.
(a) The information set forth in 'SPECIAL FACTORS--Purpose of Exchange
Offer', 'THE EXCHANGE OFFER--Source and Amount of Funds' and '--Transactions and
Arrangements Concerning the LYONs' of the Offer to Accept LYONs for Exchange for
Cash is incorporated herein by reference.
ITEM 12. PRESENT INTENTION AND RECOMMENDATION OF CERTAIN PERSONS WITH REGARD TO
THE TRANSACTION.
(a)-(b) The information set forth in 'INTRODUCTION', 'SPECIAL
FACTORS--Purpose of the Exchange Offer' and '--Fairness of the Exchange Offer'
of the Offer to Accept LYONs for Exchange for Cash is incorporated herein by
reference. No executive officer, director, controlling stockholder or affiliate
of the Company is the beneficial owner of any LYONs or will make any
recommendation with regard to the Rule 13e-3 transaction.
4
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ITEM 13. OTHER PROVISIONS OF THE TRANSACTION.
(a) The information set forth in 'INTRODUCTION', 'SPECIAL FACTORS--Purpose
of the Exchange Offer' and 'THE EXCHANGE OFFER--Certain Effects of the Exchange
Offer' of the Offer to Accept LYONs for Exchange for Cash is incorporated herein
by reference. No appraisal rights are provided under applicable state law or the
Company's Certificate of Incorporation in connection with this Rule 13e-3
transaction. LYON holders who object to the Exchange Offer may refrain from
surrendering their LYONs for exchange in the Exchange Offer.
(b) No provision has been made by the Company to allow unaffiliated
security holders to obtain access to corporate files of the Company or to obtain
counsel or appraisal services at the expense of the Company.
(c) Not applicable.
ITEM 14. FINANCIAL INFORMATION.
(a)-(b) The financial information set forth in 'THE EXCHANGE OFFER--Certain
Information Concerning the Company and Coleman' of the Offer to Accept LYONs for
Exchange for Cash is incorporated herein by reference.
ITEM 15. PERSONS AND ASSETS EMPLOYED, RETAINED OR UTILIZED.
(a) Not applicable.
(b) The information set forth in 'THE EXCHANGE OFFER--Fees and Expenses' of
the Offer to Accept LYONs for Exchange for Cash is incorporated herein by
reference.
ITEM 16. ADDITIONAL INFORMATION.
Reference is hereby made to the Offer to Accept LYONs for Exchange for Cash
and the related Letter of Transmittal, copies of which are incorporated by
reference as Exhibit (d) herein, which are incorporated in their entirety by
reference herein.
ITEM 17. MATERIAL TO BE FILED AS EXHIBITS.
(a) Indenture dated as of May 20, 1997 by and among Coleman Escrow Corp.,
Coleman Worldwide Corporation (only with respect to the non-recourse guarantee
and certain collateral security agreements contained in Articles X and XI
thereof) and First Trust National Association, as Trustee.
(b) Not applicable.
(c) Not applicable.
(d) The documents attached as Exhibits (a)(1)-(6) in response to Item 9(a)
of the Schedule 13E-4 incorporated by reference in Exhibit (g) hereto are
incorporated herein by reference.
(e) Not applicable.
(f) Not applicable.
(g) Issuer Tender Offer Statement on Schedule 13E-4 dated May 23, 1997 of
the Company, filed by the Company on May 23, 1997 with the Commission and
incorporated herein by reference.
(h) Consolidated Financial Statements for the Company for the fiscal years
ended December 31, 1996 and December 31, 1995 (audited) and for the three months
ended March 31, 1997 and 1996 (unaudited), filed as Exhibit (g) to the Schedule
13E-4 and incorporated by reference herein.
(i) Consolidated Financial Statements for Coleman for the fiscal years
ended December 31, 1996 and December 31, 1995 (audited) and for the three months
ended March 31, 1997 and 1996 (unaudited), filed as Exhibit (h) to the Schedule
13E-4 and incorporated by reference herein.
5
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SIGNATURE
AFTER DUE INQUIRY, AND TO THE BEST OF ITS KNOWLEDGE AND BELIEF, THE
UNDERSIGNED CERTIFIES THAT THE INFORMATION SET FORTH IN THIS STATEMENT IS TRUE,
COMPLETE AND CORRECT.
COLEMAN WORLDWIDE CORPORATION
By: /s/ BARRY F. SCHWARTZ
--------------------------------
Name: Barry F. Schwartz
Title: Executive Vice President
Dated: May 23, 1997
6
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EXHIBIT INDEX
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EXHIBIT DESCRIPTION
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(a) -- Indenture dated as of May 20, 1997 by and among Coleman Escrow Corp., Coleman Worldwide
Corporation (only with respect to the non-recourse guarantee and certain collateral security
agreements contained in Articles X and XI thereof) and First Trust National Association, as
Trustee.
(b) -- Not applicable.
(c) -- Not applicable.
(d) -- The documents attached as Exhibits (a)(1)-(6) in response to Item 9(a) of the Schedule 13E-4 and
included in Exhibit (g) hereto are incorporated herein by reference.
(e) -- Not applicable.
(f) -- Not applicable.
(g) -- Issuer Tender Offer Statement on Schedule 13E-4 dated May 23, 1997 of the Company, filed by the
Company on May 23, 1997 with the Commission and incorporated herein by reference.
(h) -- Consolidated Financial Statements for the Company for the fiscal years ended December 31, 1996 and
December 31, 1995 (audited) and for the first three months ended March 31, 1997 and 1996
(unaudited), filed as Exhibit (g) to the Schedule 13E-4 and incorporated by reference herein.
(i) -- Consolidated Financial Statements for Coleman for the fiscal years ended December 31, 1996 and
December 31, 1995 (audited) and for the first three months ended March 31, 1997 and 1996
(unaudited), filed as Exhibit (h) to the Schedule 13E-4 and incorporated by reference herein.
</TABLE>
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EXECUTION COPY
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COLEMAN ESCROW CORP.
Senior Secured First Priority Discount Notes due 2001
Senior Secured Second Priority Discount Notes due 2001
and
Senior Secured First Priority Discount Exchange Notes due 2001
Senior Secured Second Priority Discount Exchange Notes due 2001
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INDENTURE
Dated as of May 20, 1997
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FIRST TRUST NATIONAL ASSOCIATION
Trustee
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TABLE OF CONTENTS
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ARTICLE I Definitions and Incorporation by Reference
SECTION 1.01. Definitions......................................................................1
SECTION 1.02. Other Definitions...............................................................22
SECTION 1.03. Incorporation by Reference of Trust Indenture Act...............................23
SECTION 1.04. Rules of Construction...........................................................24
ARTICLE II The Securities
SECTION 2.01. Form and Dating.................................................................25
SECTION 2.02. Execution and Authentication....................................................27
SECTION 2.03. Registrar and Paying Agent......................................................28
SECTION 2.04. Paying Agent To Hold Money in Trust.............................................28
SECTION 2.05. Securityholder Lists............................................................28
SECTION 2.06. Transfer and Exchange...........................................................29
SECTION 2.07. Replacement Securities..........................................................29
SECTION 2.08. Outstanding Securities..........................................................30
SECTION 2.09. Temporary Securities............................................................30
SECTION 2.10. Cancellation....................................................................30
SECTION 2.11. CUSIP Numbers...................................................................31
SECTION 2.12. Book-Entry Provisions for U.S. Global Note......................................31
SECTION 2.13. Special Transfer Provisions.....................................................33
ARTICLE III Redemption
SECTION 3.01. Notices to Trustee..............................................................37
SECTION 3.02. Selection of Securities To Be Redeemed..........................................38
SECTION 3.03. Notice of Redemption............................................................38
SECTION 3.04. Effect of Notice of Redemption..................................................39
SECTION 3.05. Deposit of Redemption Price.....................................................40
SECTION 3.06. Securities Redeemed in Part.....................................................40
ARTICLE IV Covenants
SECTION 4.01. Payment of Securities...........................................................40
SECTION 4.02. SEC Reports.....................................................................40
SECTION 4.03. Limitation on Debt of the Company, Holdings and
Worldwide...............................................................41
SECTION 4.04. Limitation on Debt of Coleman and its Subsidiaries and
Limitation on Preferred Stock of Coleman................................41
SECTION 4.05. Limitation on Restricted Payments...............................................44
SECTION 4.06. Limitation on Sales of Assets and Subsidiary Stock..............................47
SECTION 4.07. Limitation on Transactions with Affiliates......................................48
SECTION 4.08. Change of Control...............................................................50
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SECTION 4.09. Limitation on Other Business Activities.........................................52
SECTION 4.10. Required Stock Ownership; Limitation on Liens...................................52
SECTION 4.11. Holdings Notes Redemption; LYONS Retirement.....................................53
SECTION 4.12. Compliance Certificate..........................................................53
SECTION 4.13. Further Instruments and Acts....................................................53
ARTICLE V Successor Company
SECTION 5.01. When Company May Merge or Transfer Assets.......................................54
ARTICLE VI Defaults and Remedies
SECTION 6.01. Events of Default...............................................................55
SECTION 6.02. Acceleration....................................................................57
SECTION 6.03. Other Remedies..................................................................57
SECTION 6.04. Waiver of Past Defaults.........................................................58
SECTION 6.05. Control by Majority.............................................................58
SECTION 6.06. Limitation on Suits.............................................................58
SECTION 6.07. Rights of Holders To Receive Payment............................................59
SECTION 6.08. Collection Suit by Trustee......................................................59
SECTION 6.09. Trustee May File Proofs of Claim................................................59
SECTION 6.10. Priorities......................................................................60
SECTION 6.11. Undertaking for Costs...........................................................60
SECTION 6.12. Waiver of Stay or Extension Laws................................................61
ARTICLE VII Trustee
SECTION 7.01. Duties of Trustee...............................................................61
SECTION 7.02. Rights of Trustee...............................................................62
SECTION 7.03. Individual Rights of Trustee....................................................63
SECTION 7.04. Trustee's Disclaimer............................................................63
SECTION 7.05. Notice of Defaults..............................................................63
SECTION 7.06. Reports by Trustee to Holders...................................................63
SECTION 7.07. Compensation and Indemnity......................................................64
SECTION 7.08. Replacement of Trustee..........................................................64
SECTION 7.09. Successor Trustee by Merger.....................................................65
SECTION 7.10. Eligibility; Disqualification...................................................66
SECTION 7.11. Preferential Collection of Claims Against Company...............................66
ARTICLE VIII Discharge of Indenture; Defeasance
SECTION 8.01. Discharge of Liability on Securities; Defeasance................................66
SECTION 8.02. Conditions to Defeasance........................................................67
SECTION 8.03. Application of Trust Money......................................................69
SECTION 8.04. Repayment to Company............................................................69
SECTION 8.05. Indemnity for Government Obligations............................................69
</TABLE>
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SECTION 8.06. Reinstatement...................................................................70
ARTICLE IX Amendments
SECTION 9.01. Without Consent of Holders......................................................70
SECTION 9.02. With Consent of Holders.........................................................71
SECTION 9.03. Compliance with Trust Indenture Act.............................................72
SECTION 9.04. Revocation and Effect of Consents
and Waivers.............................................................72
SECTION 9.05. Notation on or Exchange of Securities...........................................73
SECTION 9.06. Trustee To Sign Amendments......................................................73
SECTION 9.07. Payment for Consent.............................................................73
ARTICLE X Non-Recourse Guaranty
SECTION 10.01. Guaranty.......................................................................74
SECTION 10.02. Guaranty Absolute..............................................................74
SECTION 10.03. Waivers........................................................................76
SECTION 10.04. Waiver of Subrogation and Contribution.........................................77
SECTION 10.05. Certain Agreements.............................................................77
SECTION 10.06. No Waiver; Cumulative Remedies.................................................78
SECTION 10.07. Continuing Guaranty............................................................78
SECTION 10.08. Severability...................................................................78
ARTICLE XI Security And Pledge Of Collateral
SECTION 11.01. Grant of Security Interest.....................................................78
SECTION 11.02. Delivery of Collateral.........................................................80
SECTION 11.03. Representations and Warranties.................................................80
SECTION 11.04. Further Assurances.............................................................81
SECTION 11.05. Dividends; Voting Rights; Substitution and Partial
Release of Collateral..................................................82
SECTION 11.06. Trustee Appointed Attorney-in-Fact.............................................87
SECTION 11.07. Trustee May Perform............................................................88
SECTION 11.08. Trustee's Duties...............................................................88
SECTION 11.09. Remedies upon Event of Default.................................................88
SECTION 11.10. Application of Proceeds........................................................89
SECTION 11.11. Continuing Lien................................................................89
SECTION 11.12. Certificates and Opinions......................................................89
SECTION 11.13. Additional Agreements..........................................................89
ARTICLE XII Miscellaneous
SECTION 12.01. Trust Indenture Act Controls...................................................90
SECTION 12.02. Notices........................................................................90
SECTION 12.03. Communication by Holders with Other Holders....................................91
</TABLE>
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SECTION 12.04. Certificate and Opinion as to Conditions Precedent.............................91
SECTION 12.05. Statements Required in Certificate or Opinion..................................92
SECTION 12.06. When Securities Disregarded....................................................92
SECTION 12.07. Rules by Trustee, Paying Agent and Registrar...................................92
SECTION 12.08. Legal Holidays.................................................................93
SECTION 12.09. Governing Law..................................................................93
SECTION 12.10. No Recourse Against Others.....................................................93
SECTION 12.11. Successors.....................................................................93
SECTION 12.12. Multiple Originals.............................................................93
SECTION 12.13. Table of Contents; Headings....................................................93
</TABLE>
Schedule I - Pledged Shares
Exhibit A - Form of First Priority Initial Note
Exhibit B - Form of Second Priority Initial Note
Exhibit C - Form of First Priority Exchange Note
Exhibit D - Form of Second Priority Exchange Note
Exhibit E - Form of Certificate to Be Delivered Upon Termination of
Restricted Period
Exhibit F - Form of Certificate to Be Delivered in Connection with
Transfers to Non-QIB Institutional Accredited Investors
Exhibit G - Form of Certificate to Be Delivered in Connection with
Transfers Pursuant to Regulation S
Exhibit H - Form of Certificate to Be Delivered in Connection with
Transfers Pursuant to Rule 144A
iv
<PAGE>
INDENTURE dated as of May 20, 1997, between COLEMAN
ESCROW CORP., a Delaware corporation (the "Company"), and
FIRST TRUST NATIONAL ASSOCIATION, a national banking
association, as trustee (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 the Securities:
ARTICLE I
Definitions and Incorporation by Reference
SECTION 1.01. Definitions.
"Accreted Value" as of any date (the "Specified Date") means,
with respect to each $1,000 Principal Amount at Maturity of Securities:
(i) if the Specified Date is one of the following dates (each
a "SemiAnnual Accrual Date"), the amount set forth opposite such date
below under Column 1, in the case of First Priority Initial Notes and
First Priority Exchange Notes, or under Column 2, in the case of Second
Priority Initial Notes and Second Priority Exchange Notes:
Semi-Annual Accreted Value
- ----------- --------------
Accrual Date
- ------------
Column 1 Column 2
(First Priority Notes) (Second Priority Notes)
---------------------- -----------------------
May 20, 1997 $649.49 $608.12
November 15, 1997 $684.59 $646.15
May 15, 1998 $722.67 $687.75
November 15, 1998 $762.87 $732.02
May 15, 1999 $805.30 $779.15
November 15, 1999 $850.10 $829.30
May 15, 2000 $897.38 $882.69
November 15, 2000 $947.30 $939.51
May 15, 2001 $1,000.00 $1,000.00
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(ii) if the Specified Date occurs between two
Semi-Annual Accrual Dates, the sum of (A) the Accreted Value
for the Semi-Annual Accrual Date immediately preceding the
Specified Date and (B) an amount equal to the product of (i)
the Accreted Value for the immediately following Semi-Annual
Accrual Date less the Accreted Value for the immediately
preceding Semi-Annual Accrual Date and (ii) a fraction, the
numerator of which is the number of days from the immediately
preceding Semi-Annual Accrual Date to the Specified Date,
using a 360-day year of twelve 30-day months, and the
denominator of which is 180 (or, if the Semi-Annual Accrual
Date immediately preceding the Specified Date is May 20, 1997,
the denominator of which is 175).
Whenever the redemption price, Due Amount or Put Amount is paid in connection
with the redemption, purchase or repurchase of a portion of a Security, the
Accreted Value of such Security is reduced by the Accreted Value of the portion
of the Security so redeemed, purchased or repurchased.
"Affiliate" of any specified Person means (i) any other Person
which, directly or indirectly, is in control of, is controlled by or is under
common control with such specified Person or (ii) any other Person who is a
director or officer (A) of such specified Person, (B) of any subsidiary of such
specified Person or (C) of any Person described in clause (i) above. For
purposes of this definition, control of a Person means the power, direct or
indirect, to direct or cause the direction of the management and policies of
such Person whether by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Applicable Premium" means, with respect to a Security at any
time, the greater of (i) 1.0% of the Accreted Value of such Security at such
time and (ii) the excess of (A) the present value at such time of the Principal
Amount at Maturity plus any required interest payments due on such Security,
computed using a discount rate equal to the Treasury Rate plus 100 basis points,
over (B) the Accreted Value of such Security at such time.
"Asset Disposition" means any sale, lease, transfer or other
disposition (or series of related sales, leases, transfers or dispositions) of
shares of Capital Stock of a Subsidiary of the Company (other than directors'
qualifying shares and other than Capital Stock of an Unrestricted Subsidiary or
a Non-Recourse Subsidiary), property or other assets (each referred to for the
purposes of this definition as a "disposition") by the Company or any of its
Subsidiaries (other than an Unrestricted Subsidiary or a Non-Recourse
Subsidiary) (including any disposition by means of a merger, consolidation or
similar transaction) other than (i) a disposition by a Subsidiary of Coleman to
Coleman
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3
or by Coleman or a Subsidiary of Coleman to a Wholly Owned Recourse Subsidiary,
(ii) a disposition of property or assets by Coleman or its Subsidiaries at fair
market value in the ordinary course of business, (iii) a disposition by Coleman
or its Subsidiaries of obsolete assets or inventory in the ordinary course of
business, (iv) a disposition subject to or permitted by Section 4.05, (v) a
disposition by the Company, Holdings or Worldwide of any Unrestricted Assets,
(vi) a disposition of (A) Capital Stock of Holdings to the Company, (B) Capital
Stock of Worldwide to Holdings or the Company or (C) Capital Stock of Coleman to
Worldwide, Holdings or the Company, (vii) an issuance of employee stock options,
(viii) the Mergers and (ix) a disposition by Coleman or any of its Subsidiaries
in which Coleman or its Subsidiaries receive as consideration Capital Stock of
(or similar interests in) a Person engaged in, or assets that will be used in,
the businesses of Coleman and its Wholly Owned Recourse Subsidiaries, or
additionally, in the case of a disposition by a Subsidiary that is not a Wholly
Owned Recourse Subsidiary, the business of such Subsidiary, existing on the
Issue Date or in businesses reasonably related thereto, as determined by the
Board of Directors of Coleman, the determination of which shall be conclusive
and evidenced by a resolution of the Board of Directors of Coleman.
"Average Life" means, with respect to any Debt, the quotient
obtained by dividing (i) the sum of the products of (a) the number of years from
the date of the transaction or event giving rise to the need to calculate the
Average Life of such Debt to the date, or dates, of each successive scheduled
principal payment of such Debt multiplied by (b) the amount of each such
principal payment by (ii) the sum of all such principal payments.
"Board of Directors" means, with respect to any Person, the
Board of Directors of such Person or any committee thereof duly authorized to
act on behalf of such Board.
"Business Day" means each day which is not a Legal Holiday.
"Capital Lease Obligations" of a Person means any obligation
which is required to be classified and accounted for as a capital lease on the
face of a balance sheet of such Person prepared in accordance with GAAP; the
amount of such obligation shall be the capitalized amount thereof, determined in
accordance with GAAP; and the Stated Maturity thereof shall be the date of the
last payment of rent or any other amount due under such lease prior to the first
date upon which such lease may be terminated by the lessee without payment of a
penalty.
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4
"Capital Stock" of any Person means any and all shares,
interests (including partnership interests), rights to purchase, warrants,
options, participations or other equivalents of or interests in (however
designated) equity of such Person, including any Preferred Stock, but excluding
any debt securities convertible into or exchangeable for such equity.
"Change of Control" means the occurrence of any of the
following events:
(i) prior to the earlier to occur of the first public offering
of Voting Stock of Parent or the first public offering of Voting Stock
of the Company, the Permitted Holders cease to be the "beneficial
owner" (as defined in Rules 13d-3 and 13d-5 under the Exchange Act),
directly or indirectly, of a majority in the aggregate of the total
voting power of the Voting Stock of the Company, whether as a result of
Issuance of securities of the Company, any merger, consolidation,
liquidation or dissolution of the Company, any direct or indirect
transfer of securities by Parent or otherwise (for purposes of this
clause (i) and clause (ii) below, the Permitted Holders shall be deemed
to beneficially own any Voting Stock of a corporation (the "specified
corporation") held by any other corporation (the "parent corporation")
so long as the Permitted Holders beneficially own (as so defined),
directly or indirectly, in the aggregate a majority of the voting power
of the Voting Stock of the parent corporation);
(ii) any "Person" (as such term is used in Sections 13(d) and
14(d) of the Exchange Act), other than one or more Permitted Holders,
is or becomes the beneficial owner (as defined in clause (i) above,
except that a Person shall be deemed to have "beneficial ownership" of
all shares that any such Person has the right to acquire, whether such
right is exercisable immediately or only after the passage of time),
directly or indirectly, of more than 35% of the total voting power of
the Voting Stock of the Company; provided, however, that the Permitted
Holders "beneficially own" (as defined in clause (i) above), directly
or indirectly, in the aggregate a lesser percentage of the total voting
power of the Voting Stock of the Company than such other Person and do
not have the right or ability by voting power, contract or otherwise to
elect or designate for election a majority of the Board of Directors of
the Company (for the purposes of this clause (ii), such other Person
shall be deemed to beneficially own any Voting Stock of a specified
corporation held by a parent corporation, if such other Person
"beneficially owns" (as defined in this clause (ii)), directly or
indirectly, more than 35% of the voting power of the Voting Stock of
such parent corporation and the Permitted Holders "beneficially own"
(as defined in clause (i) above), directly or indirectly, in the
aggregate a lesser percentage of the voting power of the Voting Stock
of such parent corporation and do not have
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5
the right or ability by voting power, contract or otherwise to elect or
designate for election a majority of the Board of Directors of such
parent corporation); or
(iii) during any period of two consecutive years, individuals
who at the beginning of such period constituted the Board of Directors
of the Company (together with any new directors whose election by such
Board of Directors or whose nomination for election by the shareholders
of the Company was approved by a vote of 66-2/3% of the directors of
the Company 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 Board of Directors of the Company then in office.
"Closing Price" on any Trading Day with respect to the per
share price of any Capital Stock means the last reported sales price regular way
or, in case no such reported sale takes place on such Trading Day, the average
of the reported closing bid and asked prices regular way, on the principal
national securities exchange on which such Capital Stock is listed or admitted
to trading or, if not listed or admitted to trading on any national securities
exchange, on the National Association of Securities Dealers Automated Quotations
National Market System or, if such Capital Stock is not listed or admitted to
trading on any national securities exchange or quoted on such National Market
System, the average of the closing bid and asked prices in the over-the-counter
market as furnished by any New York Stock Exchange member firm that is selected
from time to time by the Company for that purpose and is reasonably acceptable
to the Trustee.
"Code" means the Internal Revenue Code of 1986, as amended.
"Coleman" means The Coleman Company, Inc., a Delaware
corporation, and its successors.
"Coleman Common Stock" means the common stock, par value $.01
per share, of Coleman, as such common stock may from time to time be
reclassified or otherwise changed.
"Company" 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 indenture securities.
"Consolidated EBITDA Coverage Ratio" means, for any period,
the ratio of (i) the aggregate amount of EBITDA for such period to (ii)
Consolidated
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6
Interest Expense for such period; provided, however, that (1) if Coleman or any
Subsidiary of Coleman has Issued any Debt since the beginning of such period
that remains outstanding or if the transaction giving rise to the need to
calculate the Consolidated EBITDA Coverage Ratio is an Issuance of Debt, or
both, EBITDA 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 Issued on the first day of such period and the discharge of any other
Debt Refinanced or otherwise discharged with the proceeds of such new Debt as if
such discharge had occurred on the first day of such period, (2) if since the
beginning of such period Coleman or any Subsidiary of Coleman shall have made
any Asset Disposition, EBITDA for such period shall be reduced by an amount
equal to the EBITDA (if positive) directly attributable to the assets which are
the subject of such Asset Disposition for such period, or increased by an amount
equal to the EBITDA (if negative), directly attributable thereto for such period
and Consolidated Interest Expense for such period shall be reduced by an amount
equal to the Consolidated Interest Expense directly attributable to any Debt of
Coleman or any Subsidiary of Coleman Refinanced or otherwise discharged with
respect to Coleman and its continuing Subsidiaries in connection with such Asset
Dispositions for such period (or if the Capital Stock of any Subsidiary of
Coleman is sold, the Consolidated Interest Expense for such period directly
attributable to the Debt of such Subsidiary to the extent Coleman and its
continuing Subsidiaries are no longer liable for such Debt after such sale) and
(3) if since the beginning of such period Coleman or any Subsidiary of Coleman
(by merger or otherwise) shall have made an Investment in any Subsidiary of
Coleman (or any Person which becomes a Subsidiary of Coleman) or an acquisition
of assets which constitutes all or substantially all of an operating unit of a
business, including any Investment or acquisition of assets occurring in
connection with a transaction causing a calculation to be made hereunder, EBITDA
and Consolidated Interest Expense for such period shall be calculated after
giving pro forma effect thereto, as if such Investment or acquisition occurred
on the first day of such period. For purposes of this definition, whenever pro
forma effect is to be given to an acquisition of assets, an Investment in any
Person, an Asset Disposition, the amount of income or earnings relating thereto,
or the amount of Consolidated Interest Expense associated with any Debt, the pro
forma calculations shall be determined in good faith by a responsible financial
or accounting Officer of Coleman. If any Debt bears a floating rate of interest
and is being given pro forma effect, the interest 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.
"Consolidated Interest Expense" means, for any period, the sum
of (a) the interest expense, net of any interest income, of Coleman and its
consolidated Subsidiaries (other than Non-Recourse Subsidiaries) for such period
as determined in accordance with GAAP consistently applied, plus (b) Preferred
Stock dividends in respect of Preferred Stock of Coleman or any Subsidiary of
Coleman (other than a
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Non-Recourse Subsidiary) held by Persons other than Coleman or a Wholly Owned
Recourse Subsidiary, plus (c) the cash contributions to an employee stock
ownership plan of Coleman and its Subsidiaries (other than Non-Recourse
Subsidiaries) to the extent such contributions are used by an employee stock
ownership plan to pay interest.
"Consolidated Net Income" means with respect to any Person,
for any period, the consolidated net income (or loss) of such Person and its
consolidated Subsidiaries for such period as determined in accordance with GAAP,
adjusted to the extent included in calculating such net income (or loss), by
excluding (i) all extraordinary gains or losses; (ii) the portion of net income
(or loss) of such Person and its consolidated Subsidiaries attributable to
minority interests in unconsolidated Persons except to the extent that, in the
case of net income, cash dividends or distributions have actually been received
by such Person or one of its consolidated Subsidiaries (subject, in the case of
a dividend or distribution received by a Subsidiary of such Person, to the
limitations contained in clause (v) below) and, in the case of net loss, such
Person or any Subsidiary of such Person has actually contributed, lent or
transferred cash to such unconsolidated Person; (iii) net income (or loss) of
any other Person attributable to any period prior to the date of combination of
such other Person with such Person or any of its Subsidiaries on a "pooling of
interests" basis; (iv) net gains or losses in respect of dispositions of assets
by such Person or any of its Subsidiaries (including pursuant to a
sale-and-leaseback arrangement) other than in the ordinary course of business;
(v) the net income of any Subsidiary of such Person to the extent that the
declaration of dividends or distributions by that Subsidiary of that income is
not at the time permitted, directly or indirectly, by operation of the terms of
its charter or any agreement, instrument, judgment, decree, order, statute, rule
or governmental regulations applicable to that Subsidiary or its shareholders;
(vi) any net income or loss of any Non-Recourse Subsidiary, except that such
Person's equity in the net income of any such Non-Recourse Subsidiary for such
period shall be included in such Consolidated Net Income up to the aggregate
amount of cash actually distributed by such Non-Recourse Subsidiary during such
period to such Person as a dividend or other distribution; and (vii) the
cumulative effect of a change in accounting principles; provided, however, that
in calculating Consolidated Net Income of Coleman, net income of a Subsidiary of
the type described in clause (v) of this definition shall not be excluded.
"Consolidated Net Worth" of any Person means, at any date, all
amounts which would, in conformity with GAAP, be included under shareholders'
equity on a consolidated balance sheet of such Person at such date, less any
amounts attributable to Redeemable Stock or Exchangeable Stock.
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8
"Credit Agreement" means the Amended and Restated Credit
Agreement dated as of August 3, 1995, by and among Coleman, Credit Suisse and
the Banks named therein, as the same may be amended or restated from time to
time.
"Debt" of any Person means, without duplication,
(i) the principal of and premium (if any) in respect of (A)
indebtedness of such Person for money borrowed and (B) indebtedness
evidenced by notes, debentures, bonds or other similar instruments for
the payment of which such Person is responsible or liable;
(ii) all Capital Lease Obligations of such Person;
(iii) all obligations of such Person issued or assumed as the
deferred purchase price of property, all conditional sale obligations
of such Person and all obligations of such Person under any title
retention agreement (but excluding trade accounts payable and other
accrued current liabilities arising in the ordinary course of
business);
(iv) all obligations of such Person for the reimbursement of
any obligor on any letter of credit, banker's acceptance or similar
credit transaction (other than obligations with respect to letters of
credit securing obligations (other than obligations described in (i)
through (iii) above) entered into in the ordinary course of business of
such Person to the extent such letters of credit are not drawn upon or,
if and to the extent drawn upon, such drawing is reimbursed no later
than the third Business Day following receipt by such Person of a
demand for reimbursement following payment on the letter of credit);
(v) the amount of all obligations of such Person with respect
to the redemption, repayment or other repurchase of, in the case of a
Subsidiary of Coleman, any Preferred Stock and, in the case of any
other Person, any Redeemable Stock (but excluding in each case any
accrued dividends);
(vi) all obligations of the type referred to in clauses (i)
through (v) of other Persons and all dividends of other Persons for the
payment of which, in either case, such Person is responsible or liable,
directly or indirectly, as obligor, guarantor or otherwise, including
Guarantees of such obligations and dividends; and
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9
(vii) all obligations of the type referred to in clauses (i)
through (vi) of other Persons secured by any Lien on any property or
asset of such Person (whether or not such obligation is assumed by such
Person), the amount of such obligation being deemed to be the lesser of
the value of such property or assets or the amount of the obligation so
secured.
"Default" means any event which is, or after notice or passage
of time or both would be, an Event of Default.
"Delivered Shares" means any shares of Coleman Common Stock
delivered by Worldwide upon an exchange of the LYONS to the holders thereof
pursuant to Section 10.01(a) of the LYONS Indenture.
"Due Amount" as of any date means with respect to each $1,000
Principal Amount at Maturity of Securities, the Accreted Value thereof on such
date plus any premium due and payable thereon.
"EBITDA" means, for any period, the Consolidated Net Income of
Coleman for such period, plus the following to the extent included in
calculating such Consolidated Net Income: (i) income tax expense, (ii)
Consolidated Interest Expense, (iii) depreciation expense, (iv) amortization
expense, (v) all other noncash charges (excluding any noncash charge to the
extent that it requires an accrual of or a reserve for cash disbursements for
any future period) and (vi) foreign currency gains or losses.
"Escrow Agent" means the Escrow Agent from time to time under
the Escrow Agreement.
"Escrow Agreement" means the Escrow Agreement dated as of May
15, 1997, between the Company and First Trust National Association, as escrow
agent thereunder, as amended from time to time.
"Escrowed Funds" has the meaning ascribed thereto in the
Escrow Agreement.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Exchange Notes" means the First Priority Exchange Notes and
the Second Priority Exchange Notes, collectively.
"Exchangeable Stock" means any Capital Stock of a Person which
by its terms or otherwise is required to be exchanged or converted or is
exchangeable or
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10
convertible at the option of the holder into another security (other than
Capital Stock of such Person which is neither Exchangeable Stock nor Redeemable
Stock).
"First Priority Exchange Notes" means the Senior Secured First
Priority Discount Exchange Notes due 2001 of the Company.
"First Priority Initial Notes" means the Senior Secured First
Priority Discount Notes due 2001 of the Company.
"Generally Accepted Accounting Principles" or "GAAP" means
generally accepted accounting principles in the United States, as in effect from
time to time, except that for purposes of calculating the Consolidated EBITDA
Coverage Ratio, it shall mean generally accepted accounting principles in the
United States as in effect on the Issue Date.
"Guarantee" means any obligation, contingent or otherwise, of
any Person directly or indirectly guaranteeing any Debt or other obligation of
any other Person and any obligation, direct or indirect, contingent or
otherwise, of such Person (i) to purchase or pay (or advance or supply funds for
the purchase or payment of) such Debt or other obligation of such other Person
(whether arising by virtue of partnership arrangements, or by agreement to
keep-well, to purchase assets, goods, securities or services, to take-or-pay, or
to maintain financial statement conditions or otherwise) or (ii) entered into
for purposes of assuring in any other manner the obligee of such Debt or other
obligation of the payment thereof or to protect such obligee against loss in
respect thereof (in whole or in part); provided, however, that the term
"Guarantee" shall not include endorsements for collection or deposit in the
ordinary course of business. The term "Guarantee" used as a verb has a
corresponding meaning.
"Guarantor" means Worldwide.
"Holder" or "Securityholder" means the Person in whose name a
Security is registered on the Registrar's books.
"Holdings" means Coleman Holdings Inc., a Delaware
corporation.
"Holdings Indenture" means the Indenture dated as of July 15,
1993, between Holdings and the trustee thereunder, pursuant to which the
Holdings Notes were issued, as such agreement may be amended from time to time.
"Holdings Merger" means the merger of Holdings with and into
the Company.
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11
"Holdings Notes" means the Senior Secured Discount Notes Due
1998 of Holdings and the Series B Senior Secured Discount Notes Due 1998 of
Holdings.
"Holdings Notes Redemption" means the redemption of all of the
Holdings Notes by Holdings pursuant to paragraph 5 thereof.
"Initial Notes" means the First Priority Initial Notes and the
Second Priority Initial Notes, collectively.
"Investment" in any Person means any loan or advance to, any
net payment on a guarantee of, any acquisition of Capital Stock, equity
interest, obligation or other security of, or capital contribution or other
investment in, such Person. Investments shall exclude advances to customers and
suppliers in the ordinary course of business. The term "Invest" has a
corresponding meaning. For purposes of the definitions of "Non-Recourse
Subsidiary," "Unrestricted Subsidiary" and "Restricted Payment" and for purposes
of Section 4.05, (i) "Investment" shall include a designation after the Issue
Date of a Subsidiary as a Non-Recourse Subsidiary, and such Investment shall be
valued at an amount equal to the portion (proportionate to the Company's equity
interest in such Subsidiary) of the fair market value of the net assets of such
Subsidiary at the time that such Subsidiary is designated a Non-Recourse
Subsidiary; and (ii) any property transferred to or from a Non-Recourse
Subsidiary or an Unrestricted Subsidiary shall be valued at its fair market
value at the time of such transfer, in each case as determined in good faith by
the Board of Directors of the Company (or of Coleman in the case of a
Non-Recourse Subsidiary), and if such property so transferred (including in a
series of related transactions) has a fair market value, as so determined by the
Board of Directors, in excess of $10 million, such determination shall be
confirmed by an independent appraiser.
"Issue" means issue, assume, Guarantee, incur or otherwise
become liable for; provided, however, that any Debt or Capital Stock of a Person
existing at the time such Person becomes a Subsidiary of another Person (whether
by merger, consolidation, acquisition or otherwise) shall be deemed to be issued
by such Subsidiary at the time it becomes a Subsidiary of such other Person.
"Issue Date" means the date of original issue of the Initial
Notes.
"Legal Holiday" means a Saturday, a Sunday or a day on which
banking institutions are not required to be open in the State of New York or in
the state where the principal office of the Trustee is located.
"Lien" means any mortgage, pledge, security interest,
conditional sale or other title retention agreement or other similar lien.
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"LYONS" means the Liquid Yield Option(TM)(1) Notes due 2013 of
Worldwide.
"LYONS Default" means any event which is, or after notice or
passage of time or both would be, an event of default under the LYONS Indenture.
"LYONS Escrow Agreement" means the Escrow and Pledge Agreement
dated as of May 27, 1993, between Worldwide and First Trust National
Association, as escrow agent thereunder, as amended from time to time.
"LYONS Indenture" means the Indenture, dated as of May 27,
1993, between Worldwide and First Trust National Association, as successor
trustee, pursuant to which the LYONS were issued, as it may be amended from time
to time.
"MacAndrews & Forbes Holdings" means MacAndrews & Forbes
Holdings Inc., a Delaware corporation, and its successors.
"Mafco Consolidated Group" means the "Affiliated Group"
(within the meaning of Section 1504(a)(1) of the Code) of which Mafco Holdings
is the common parent.
"Mafco Holdings" means Mafco Holdings Inc., a Delaware
corporation and its successors.
"Market Value" means as of any date the sum of (i) in respect
of Coleman Pledged Shares, an amount equal to the product of (x) the average of
the Closing Prices per share of Coleman Common Stock during the five Trading
Days ending immediately preceding such date and (y) the number of Coleman
Pledged Shares, (ii) as to Collateral consisting of cash, the amount of such
cash, (iii) as to any other Collateral having a purported value equal to or less
than $5 million, the fair market value thereof as of such date as determined by
the Board of Directors of the Company (the determination of which shall be
conclusive and shall be evidenced by a resolution of such Board of Directors of
the Company), and (iv) as to any other Collateral having a purported value of
more than $5 million, the fair market value thereof as of such date as
determined by an independent appraiser.
"Merger" means the Holdings Merger or the Worldwide Merger, as
the case may be.
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(1) Trademark of Merrill Lynch & Co., Inc.
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"Net Available Cash" from an Asset Disposition means cash
payments received (including any cash payments received by way of deferred
payment of principal pursuant to a note or installment receivable or otherwise,
but only as and when received, but excluding any other consideration received in
the form of assumption by the acquiring Person of Debt or other obligations
relating to such properties or assets or received in any other noncash form)
therefrom, in each case net of (i) all legal, title and recording tax expenses,
commissions and other fees and expenses incurred, and all Federal, state,
provincial, foreign and local taxes required or estimated in good faith to be
required to be accrued as a liability under Generally Accepted Accounting
Principles, as a consequence of such Asset Disposition, (ii) all payments made
on any Debt which is secured by any assets subject to such Asset Disposition, in
accordance with the terms of any Lien upon or other security agreement of any
kind with respect to such assets, or which must by its terms, or in order to
obtain a necessary consent to such Asset Disposition, or by applicable law be
repaid out of the proceeds from or in connection with such Asset Disposition and
(iii) all distributions and other payments required to be made to minority
interest holders in Subsidiaries or joint ventures as a result of such Asset
Disposition; provided, however, that in connection with an Asset Disposition to
a Subsidiary of Coleman (other than a Wholly Owned Recourse Subsidiary), Net
Available Cash will be deemed to be a percentage of Net Available Cash (as
calculated above) equal to (A) 100% minus (B) Coleman's percentage ownership in
such Subsidiary.
"Net Cash Proceeds", with respect to any issuance or sale of
Capital Stock, means the cash proceeds of such issuance or sale net of
attorneys' fees, accountants' fees, underwriters' or placement agents' fees,
discounts or commissions and brokerage, consultant and other fees actually
incurred in connection with such issuance or sale and net of taxes paid or
estimated in good faith to be payable as a result thereof.
"Non-Convertible Capital Stock" means, with respect to any
corporation, any non-convertible Capital Stock of such corporation and any
Capital Stock of such corporation convertible solely into non-convertible common
stock of such corporation; provided, however, that Non-Convertible Capital Stock
shall not include any Redeemable Stock or Exchangeable Stock.
"Non-Recourse Debt" means Debt or that portion of Debt (i) as
to which neither the Company nor its Subsidiaries (other than a Non-Recourse
Subsidiary or an Unrestricted Subsidiary) (A) provide credit support (including
any undertaking, agreement or instrument which would constitute Debt), (B) is
directly or indirectly liable or (C) constitute the lender and (ii) no default
with respect to which (including any rights which the holders thereof may have
to take enforcement action against the assets of a Non-Recourse Subsidiary or an
Unrestricted Subsidiary) would permit (upon
<PAGE>
14
notice, lapse of time or both) any holder of any other Debt of the Company or
its Subsidiaries (other than Non-Recourse Subsidiaries or Unrestricted
Subsidiaries) to declare a default on such other Debt or cause the payment
thereof to be accelerated or payable prior to its Stated Maturity.
"Non-Recourse Subsidiary" means a Subsidiary of Coleman (i)
which has been designated as such by Coleman, (ii) which has no Debt other than
Non-Recourse Debt and (iii) which is in the same line of business as Coleman
and its Wholly Owned Subsidiaries existing on the Issue Date or in businesses
reasonably related thereto.
"Note Purchase Agreements" means (i) the Note Purchase
Agreements, each dated as of August 3, 1995, between Coleman and the Purchasers
named therein, as amended from time to time, relating to Coleman's 7.26% Senior
Notes due 2007, and (ii) the Note Purchase Agreements, each dated as of May 1,
1996, between Coleman and the Purchasers named therein, as amended from time to
time relating to Coleman's 7.10% Senior Notes, Series A, due 2006, and 7.25%
Senior Notes, Series B, due 2008.
"Obligations" means (a) the full and punctual payment of
Principal of and interest, if any, on the Securities when due, whether at
maturity, by acceleration, by redemption or otherwise, and all other monetary
obligations of the Company under this Indenture and the Securities and (b) the
full and punctual performance of all other obligations of the Company under this
Indenture and the Securities.
"Officer" means the Chairman of the Board, the President, any
Vice President, the Treasurer, an Assistant Treasurer or the Secretary or an
Assistant Secretary of the Company.
"Officers' Certificate" means a certificate signed by the
Chairman of the Board, Vice Chairman, the President or a Vice President
(regardless of Vice Presidential designation), and by the Treasurer, an
Assistant Treasurer, Secretary or an Assistant Secretary, of the Company, and
delivered to the Trustee. One of the Officers signing an Officers' Certificate
given pursuant to Section 4.12 shall be the principal executive, financial or
accounting officer of the Company.
"Opinion of Counsel" means a written opinion from legal
counsel who is reasonably acceptable to the Trustee. The counsel may be an
employee of or counsel to the Company (or its Parent or one of its Subsidiaries)
or the Trustee.
<PAGE>
15
"Parent" means Coleman (Parent) Holdings Inc., a Delaware
corporation, and any other Person which acquires or owns directly or indirectly
80% or more of the Voting Stock of the Company.
"Permitted Affiliate" means any individual that is a director
or officer of the Company, of a Subsidiary of the Company or of an Unrestricted
Affiliate; provided, however, that such individual is not also a director or
officer of MacAndrews & Forbes Holdings or any Person that controls MacAndrews &
Forbes Holdings.
"Permitted Holders" means Ronald O. Perelman (or in the event
of his incompetence or death, his estate, heirs, executor, administrator,
committee or other personal representative (collectively, "heirs")) or any
Person controlled, directly or indirectly, by Ronald O. Perelman or his heirs.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization,
government or any agency or political subdivision thereof or any other entity.
"Preferred Stock", as applied to the Capital Stock of any
corporation, means Capital Stock of any class or classes (however designated)
which is preferred as to the payment of dividends, or as to the distribution of
assets upon any voluntary or involuntary liquidation or dissolution of such
corporation, over shares of Capital Stock of any other class of such
corporation.
"Principal" of a Security as of any date means the Accreted
Value of the Security as of such date plus the premium, if any, payable on the
Security which is due or overdue or is to become due on such date.
"Principal Amount at Maturity" of a Security means the amount
specified as such on the face of such Security.
"Put Amount" as of any date means, with respect to each $1,000
Principal Amount at Maturity of Securities, the sum of (a) the Accreted Value
thereof on such date and (b) 1% of the Accreted Value thereof on such date (if
such date is a Semi-Annual Accrual Date) or (if such date is not a Semi-Annual
Accrual Date) the preceding Semi-Annual Accrual Date.
"QIB" means a "Qualified Institutional Buyer" under Rule 144A.
"Redeemable Stock" means, with respect to any Person, Capital
Stock of such Person that by its terms or otherwise is required to be redeemed
on or prior to the
<PAGE>
16
first anniversary of the Stated Maturity of the Securities or is redeemable at
the option of the holder thereof at any time on or prior to the first
anniversary of the Stated Maturity of the Securities.
"Refinance" means, in respect of any Debt, to refinance,
extend, renew, refund, repay, prepay, redeem, defease or retire, or to Issue
Debt in exchange or replacement for, such Debt. "Refinanced" and "Refinancing"
shall have correlative meanings.
"Refinancing Costs" means, with respect to any Debt or
Preferred Stock being Refinanced, any premium actually paid thereon and
reasonable costs and expenses, including underwriting discounts, in connection
with such Refinancing; provided, that if any Debt Issued in connection with such
a Refinancing is Issued at a discount, Refinancing Costs shall be an amount
equal to the accreted value (as of the Stated Maturity of the Debt being
Refinanced) of the portion of such Debt used to pay such premium, costs and
expenses.
"Registration Agreement" means the Registration Agreement
dated May 20, 1997, between the Company and Bear, Stearns & Co. Inc., Chase
Securities Inc. and Credit Suisse First Boston Corporation.
"Registered Exchange Offer" has the meaning ascribed thereto
in the Registration Agreement.
"Restricted Cash" means any cash received by Worldwide
pursuant to a Tax Sharing Agreement, the LYONS Escrow Agreement or the
Securities Loan Agreement.
"Restricted Payment" means, as to any Person making a
Restricted Payment, (i) any dividend or any distribution on or in respect of the
Capital Stock of such Person (including any payment in connection with any
merger or consolidation involving such Person) or to the holders of the Capital
Stock of such Person (except dividends or distributions payable solely in the
Non-Convertible Capital Stock of such Person or in options, warrants or other
rights to purchase the Non-Convertible Capital Stock of such Person), (ii) any
purchase, redemption or other acquisition or retirement for value of any Capital
Stock of the Company or of any direct or indirect parent of the Company, (iii)
any purchase, repurchase, redemption, defeasance or other acquisition or
retirement for value, prior to scheduled maturity, scheduled repayment or
scheduled sinking fund payment, of any Subordinated Obligation (other than the
purchase, repurchase or other acquisition of Subordinated Obligations purchased
in anticipation of satisfying a sinking fund obligation, principal installment
or final maturity, in each case due within one year of the date of acquisition),
(iv) any Investment in any Affiliate of
<PAGE>
17
the Company other than (x) a Subsidiary of the Company, (y) an Affiliate of the
Company which will become a Subsidiary of the Company as a result of any such
Investment and (z) an Unrestricted Affiliate, or (v) any Investment in a
Non-Recourse Subsidiary or an Unrestricted Subsidiary.
"Rule 144A" means Rule 144A under the Securities Act.
"SEC" means the Securities and Exchange Commission.
"Second Priority Exchange Notes" means the Senior Secured
Second Priority Discount Exchange Notes due 2001 of the Company.
"Second Priority Initial Notes" means the Senior Secured
Second Priority Discount Notes due 2001 of the Company.
"Securities" means the Initial Notes and the Exchange Notes,
treated as a single class of securities for all purposes other than as expressly
provided herein.
"Securities Act" means the Securities Act of 1933, as amended.
"Securities Loan Agreement" means the Securities Loan
Agreement dated as of May 27, 1993, among Merrill Lynch Pierce, Fenner & Smith
Incorporated, Worldwide and the securities loan custodian thereunder, as amended
from time to time.
"Semi-Annual Accrual Date" has the meaning set forth in the
definition of Accreted Value.
"Series" means all Securities having the same designation,
treated as a separate class of securities from those Securities having a
different designation. There are four Series of Securities that may be issued
pursuant to this Indenture: (1) the First Priority Initial Notes, (2) the Second
Priority Initial Notes, (3) the First Priority Exchange Notes and (4) the Second
Priority Exchange Notes.
"Shelf Registration Statement" has the meaning ascribed
thereto in the Registration Agreement.
"Significant Subsidiary" means (i) any Subsidiary (other than
a Non- Recourse Subsidiary and other than an Unrestricted Subsidiary) of the
Company which at the time of determination either (A) had assets which, as of
the date of the Company's most recent quarterly consolidated balance sheet,
constituted at least 5% of the Company's total assets on a consolidated basis as
of such date, in each case determined in accordance with Generally Accepted
Accounting Principles, or (B) had
<PAGE>
18
revenues for the 12-month period ending on the date of the Company's most recent
quarterly consolidated statement of income which constituted at least 5% of the
Company's total revenues on a consolidated basis for such period, or (ii) any
Subsidiary of the Company (other than a Non-Recourse Subsidiary and other than
an Unrestricted Subsidiary) which, if merged with all Defaulting Subsidiaries
(as defined below) of the Company, would at the time of determination either (A)
have had assets which, as of the date of the Company's most recent quarterly
consolidated balance sheet, would have constituted at least 10% of the Company's
total assets on a consolidated basis as of such date or (B) have had revenues
for the 12-month period ending on the date of the Company's most recent
quarterly consolidated statement of income which would have constituted at least
10% of the Company's total revenues on a consolidated basis for such period
(each such determination being made in accordance with Generally Accepted
Accounting Principles). "Defaulting Subsidiary" means any Subsidiary of the
Company (other than a Non-Recourse Subsidiary and other than an Unrestricted
Subsidiary) with respect to which an event described under Section 6.01(6),
6.01(7), 6.01(8) or 6.01(9) has occurred and is continuing.
"Stated Maturity" means, with respect to any security, the
date specified in such security as the fixed date on which the principal of such
security is due and payable, including pursuant to any mandatory redemption
provision (but excluding any provision providing for the repurchase of such
security at the option of the holder thereof upon the happening of any
contingency).
"Subordinated Obligation" means any Debt of the Company
(whether outstanding on the date hereof or hereafter Issued) which is
subordinate or junior in right of payment to the Securities.
"Subsidiary" means, with respect to any Person, any
corporation, association, partnership or other business entity of which more
than 50% of the total voting power of shares of Capital Stock or other interests
(including partnership interests) entitled (without regard to the occurrence of
any contingency) to vote in the election of directors, managers or trustees
thereof is at the time owned, directly or indirectly, by (i) such Person, (ii)
such Person and one or more Subsidiaries of such Person or (iii) one or more
Subsidiaries of such Person.
"Tax Sharing Agreements" means (i) the Tax Sharing Agreement
dated as of May 27, 1993, by and among Mafco Holdings, Worldwide, Coleman and
its subsidiaries and any entities which become parties thereto, (ii) the Tax
Sharing Agreement dated as of May 27, 1993, by and among Mafco Holdings,
Worldwide and any entities which become parties thereto, (iii) the Tax Sharing
Agreement dated as of July 22, 1993 between Mafco Holdings and Holdings, and
(iv) any amendments to any of the foregoing and any other tax allocation
agreement between the Company or any of
<PAGE>
19
its Subsidiaries with the Company or any direct or indirect shareholder of the
Company with respect to consolidated or combined tax returns including the
Company or any of its Subsidiaries but only to the extent that amounts payable
from time to time by the Company or any such Subsidiary under any such agreement
do not exceed the corresponding tax payments that the Company or such Subsidiary
would have been required to make to any relevant taxing authority had the
Company or such Subsidiary not joined in such consolidated or combined returns,
but instead had filed returns including only the Company or its Subsidiaries
(provided that any such agreement may provide that, if the Company or any such
Subsidiary ceases to be a member of the affiliated group of corporations of
which Mafco Holdings is the common parent for purposes of filing a consolidated
Federal income tax return (such cessation, a "Deconsolidation Event"), then the
Company or such Subsidiary shall indemnify such direct or indirect shareholder
with respect to any Federal, state or local income, franchise or other tax
liability (including any related interest, additions or penalties) imposed on
such shareholder as the result of an audit or other adjustment with respect to
any period prior to such Deconsolidation Event that is attributable to the
Company, such Subsidiary or any predecessor business thereof (computed as if the
Company, such Subsidiary or such predecessor business, as the case may be, were
a stand-alone entity that filed separate tax returns as an independent
corporation), but only to the extent that any such tax liability exceeds any
liability for taxes recorded on the books of the Company or such Subsidiary with
respect to any such period).
"Temporary Cash Investments" means any of the following: (i)
any investment in direct obligations of the United States of America or any
agency thereof or obligations Guaranteed by the United States of America or any
agency thereof, in each case, maturing within 360 days of the date of
acquisition thereof, (ii) investments in time deposit accounts, certificates of
deposit and money market deposits maturing within 180 days of the date of
acquisition thereof issued by a bank or trust company (including the Trustee)
which is organized under the laws of the United States of America, any state
thereof or any foreign country recognized by the United States of America having
capital, surplus and undivided profits aggregating in excess of $250,000,000 and
whose debt is rated "A" (or such similar equivalent rating) or higher by at
least one nationally recognized statistical rating organization (as defined in
Rule 436 under the Securities Act) or any money-market fund sponsored by any
registered broker dealer or mutual fund distributor, (iii) repurchase
obligations with a term of not more than 30 days for underlying securities of
the types described in clause (i) above entered into with a bank meeting the
qualifications described in clause (ii) above, (iv) investments in commercial
paper, maturing not more than 90 days after the date of acquisition, issued by a
corporation (other than an Affiliate or Subsidiary of the Company) organized and
in existence under the laws of the United States of America or any foreign
country recognized by the United States of America with a rating at the time as
of which any investment therein is made of "P-2" (or
<PAGE>
20
higher) according to Moody's Investors Service, Inc. or "A-2" (or higher)
according to Standard and Poor's Corporation and (v) securities with maturities
of six months or less from the date of acquisition backed by standby or direct
pay letters of credit issued by any bank satisfying the requirements of clause
(ii) above.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. ss.ss.
77aaa-77bbbb) as in effect on the Issue Date.
"Trading Day" means each Monday, Tuesday, Wednesday, Thursday
and Friday, other than any such day on which securities are not traded on the
applicable securities exchange or in the applicable securities market.
"Treasury Rate" means the yield to maturity at the time of
computation of United States 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 prior
to the date fixed for repayment or, in the case of defeasance, prior to the date
of deposit (or, if such Statistical Release is no longer published, any publicly
available source of similar market data)) most nearly equal to the then
remaining average life to Stated Maturity of the Securities; provided, however,
that if the average life to Stated Maturity of the Securities is not equal to
the constant maturity of a United States 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 United States Treasury securities for which such yields are
given, except that if the average life to Stated Maturity of the Securities is
less than one year, the weekly average yield on actually traded United States
Treasury securities adjusted to a constant maturity of one year shall be used.
"Triggering Event" means the occurrence of any of the
following:
(i) any of Holdings, Worldwide or Coleman pursuant to or
within the meaning of any Bankruptcy Law:
(A) commences a voluntary case;
(B) consents to the entry of an order for relief
against it in an involuntary case;
(C) consents to the appointment of a Custodian of it
or for any substantial part of its property; or
(D) makes a general assignment for the benefit of its
creditors;
<PAGE>
21
or takes any comparable action under any foreign laws relating to insolvency; or
(ii) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(A) is for relief against any of Holdings, Worldwide
or Coleman in an involuntary case;
(B) appoints a Custodian of any of Holdings,
Worldwide or Coleman or for any substantial part of its
property; or
(C) orders the winding up or liquidation of any of
Holdings, Worldwide or Coleman;
or any similar relief is granted under any foreign laws and the order or decree
remains unstayed and in effect for 60 days.
"Trustee" means the party named as such in this Indenture
until a successor replaces it and, thereafter, means the successor.
"Trust Officer" means any officer or assistant officer of the
Trustee assigned by the Trustee to administer its corporate trust matters.
"Uniform Commercial Code" means the New York Uniform
Commercial Code as in effect from time to time.
"Unrestricted Affiliate" means a Person (other than a
Subsidiary of Coleman) controlled (as defined in the definition of an
"Affiliate") by Coleman, in which no Affiliate of the Company (other than (w)
Coleman, Holdings or Worldwide, (x) a Wholly Owned Recourse Subsidiary of
Coleman, (y) a Permitted Affiliate and (z) another Unrestricted Affiliate) has
an Investment.
"Unrestricted Assets" means (i) Withdrawn Shares, (ii) Capital
Stock of Unrestricted Subsidiaries and (iii) all dividends, cash and other
property and proceeds (including proceeds of sale) from time to time received,
receivable or otherwise distributed in respect of or in exchange for any of the
foregoing.
"Unrestricted Subsidiary" means a Subsidiary of the Company,
which (i) is acquired or organized by the Company or Worldwide or any other
Unrestricted Subsidiary (or any combination of the foregoing), (ii) is
capitalized only with Unrestricted Assets, cash or Temporary Cash Investments,
(iii) does not have any Debt (A) which is held by the Company, (B) as to which
the Company or any of its
<PAGE>
22
Subsidiaries (other than an Unrestricted Subsidiary) has provided credit support
(other than as permitted by Section 4.03(3)) or (C) any default as to which
would permit any holder (whether upon notice, after lapse of time or both) of
any Debt of the Company or any of its Subsidiaries (other than an Unrestricted
Subsidiary) to declare a default on such Debt or (except, in the case of the
LYONS, upon the occurrence of an event that gives the holders of LYONS an option
to require Worldwide to purchase such holders' LYONS) to cause the payment
thereof to be accelerated prior to its Stated Maturity and (iv) conducts no
trade or business other than ownership of Coleman Common Stock.
"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 and which are not callable at the issuer's option.
"Voting Stock" of a corporation means all classes of Capital
Stock of such corporation then outstanding and normally entitled to vote in the
election of directors.
"Wholly Owned Recourse Subsidiary" means a Subsidiary of a
Person (other than a Non-Recourse Subsidiary and other than an Unrestricted
Subsidiary) all the Capital Stock of which (other than directors' qualifying
shares) is owned by such Person or another Wholly Owned Recourse Subsidiary.
"Worldwide" means Coleman Worldwide Corporation, a Delaware
corporation, and its successors.
"Worldwide Merger" means the merger of the Company with and
into Worldwide.
SECTION 1.02. Other Definitions.
<TABLE>
<CAPTION>
Term Defined in Section
---- ------------------
<S> <C>
"Agent Members"........................................................... 2.12
"Applicable Collateral"................................................... 11.05(g)
"Applicable Portion"...................................................... 11.05(g)
"Bankruptcy Law".......................................................... 6.01
"Coleman Collateral"...................................................... 11.01(b)
"Coleman Pledged Shares".................................................. 11.01(b)(i)
"Collateral".............................................................. 11.01(d)
"Collateral Release Request".............................................. 11.05(f)
<PAGE>
23
<CAPTION>
Term Defined in Section
---- ------------------
<S> <C>
"covenant defeasance option".............................................. 8.01(b)
"CUSIP"................................................................... 2.11
"Custodian"............................................................... 6.01
"Default Amount".......................................................... 6.02
"Determination Date"...................................................... 11.05(f)
"DTC"..................................................................... 4.10
"Event of Default"........................................................ 6.01
"Exempt Transaction"...................................................... 4.07(b)
"Guaranteed Obligations".................................................. 10.01
"Guaranty"................................................................ 10.01
"Holdings Collateral"..................................................... 11.01(a)(iv)
"Holding Company Collateral".............................................. 8.01(b)
"Holdings Pledged Shares"................................................. 11.01(a)(i)
"IAI Global Note"......................................................... 2.01(b)
"IAIs".................................................................... 2.01(b)
"indemnitee".............................................................. 7.07
"legal defeasance option"................................................. 8.01(b)
"Notice of Default"....................................................... 6.01
"Offshore Notes Exchange Date"............................................ 2.01(c)
"Outstanding"............................................................. 2.08
"Paying Agent"............................................................ 2.03
"Permanent Offshore Physical Notes"....................................... 2.01(c)
"Physical Notes".......................................................... 2.01(e)
"Pledged Shares".......................................................... 11.01(d)
"QIB Global Note"......................................................... 2.01(b)
"Registrar"............................................................... 2.03
"restricted period"....................................................... 2.01(c)
"Substitute Collateral"................................................... 11.01(c)
"Temporary Offshore Physical Notes"....................................... 2.01(c)
"U.S. Global Note"........................................................ 2.01(c)
"U.S. Physical Notes"..................................................... 2.01(d)
"Withdrawn Collateral".................................................... 11.05(i)
"Withdrawn Shares"........................................................ 11.05(i)
"Worldwide Collateral..................................................... 11.01(a)(v)
"Worldwide Pledged Shares"................................................ 11.01(a)(ii)
<PAGE>
24
SECTION 1.03. Incorporation by Reference of Trust Indenture
Act. Whenever this Indenture refers to a provision of the TIA, the provision is
incorporated by reference in and made a part of this Indenture. The following
TIA terms used in this Indenture have the following meanings:
"Commission" means the SEC.
"indenture securities" means the Securities.
"indenture security holder" means a Securityholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the
Trustee.
"obligor" on the indenture securities means the Company and
any other obligor on the indenture securities.
All other TIA terms used in this Indenture that are defined by
the TIA, defined by TIA reference to another statute or defined by SEC rule have
the meanings assigned to them by such definitions.
SECTION 1.04. Rules of Construction. Unless the context
otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP and all accounting calculations
will be determined in accordance with such principles;
(3) "or" is not exclusive;
(4) "including" means including without limitation;
(5) words in the singular include the plural and words in the
plural include the singular;
(6) unsecured debt shall not be deemed to be subordinate or
junior to secured debt merely by virtue of its nature as unsecured
debt;
<PAGE>
25
(7) the principal amount of any noninterest bearing or other
discount security at any date of Issuance 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 and accretion of principal on
such security shall be deemed to be the Issuance of Debt; provided,
however, that the accretion of principal on such security shall not be
deemed to be the Issuance of Debt if the issuer elects, at the time of
original Issuance of such security, to treat such accretion as if, on
such date of original Issuance, there were an additional Issuance of
Debt in an aggregate principal amount equal to the excess of the
principal amount at maturity of such security over the principal amount
thereof that would be shown on a balance sheet of the issuer dated such
date prepared in accordance with GAAP (except to the extent otherwise
provided in Section 4.03(a)(1)), and, unless repaid or redeemed, the
amount of such additional Issuance of Debt shall be treated as being
outstanding for all purposes under this Indenture until such security
is paid in full;
(8) the principal amount of any Preferred Stock shall be (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, whichever is greater; and
(9) whenever in this Indenture or the Securities it is
provided that the Accreted Value, the Put Amount, the Due Amount or the
Principal Amount at Maturity with respect to a Security shall be paid,
such provision shall be deemed to require (whether or not so expressly
stated) the simultaneous payment of any accrued and unpaid interest to
the date of payment on such Security payable pursuant to paragraph 1 of
the Securities.
ARTICLE II
The Securities
SECTION 2.01. Form and Dating. (a) The First Priority Initial
Notes and the Trustee's certificate of authentication thereon shall be
substantially in the form of Exhibit A, which is hereby incorporated in and
expressly made a part of this Indenture. The Second Priority Initial Notes 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 First Priority Exchange Notes and the Trustee's
<PAGE>
26
certificate of authentication thereon shall be in substantially in the form of
Exhibit C, which is hereby incorporated in and expressly made a part of this
Indenture. The Second Priority Exchange Notes and the Trustee's certificate of
authentication thereof shall be in substantially in the form of Exhibit D, which
is hereby incorporated in and expressly made a part of this Indenture. The
Securities may have notations, legends or endorsements required by law, stock
exchange rule, agreements to which the Company is subject, if any, or usage
(provided that any such notation, legend or endorsement is in a form acceptable
to the Company). Each Security shall be dated the date of its authentication.
The terms of the Securities set forth in Exhibits A, B, C and D are part of the
terms of this Indenture.
(b) The Initial Notes offered and sold in reliance on Rule
144A to QIBs or on another exemption under the Securities Act to institutional
"Accredited Investors" (as defined in Rule 501(a)(1), (2), (3) or (7) of the
Securities Act) ("IAIs") will be issued on the Issue Date in the form of four
permanent global Securities (with separate CUSIP numbers) two of which will be
substantially in the form set forth in Exhibit A, with respect to the First
Priority Initial Notes, and the other two of which will be substantially in the
form set forth in Exhibit B, with respect to the Second Priority Initial Notes
(each a "U.S. Global Note") deposited with the Trustee, as custodian for the
Depositary, duly executed by the Company and authenticated by the Trustee as
hereinafter provided. One U.S. Global Note (which may be represented by more
than one certificate, if so required by the Depositary's rules regarding the
maximum principal amount to be represented by a single certificate) will
represent First Priority Initial Notes sold to QIB's, another U.S. Global Note
will represent Second Priority Initial Notes sold to QIB's (each a "QIB Global
Note"), another U.S. Global Note will represent First Priority Initial Notes
sold to IAIs and the final U.S. Global Note will represent Second Priority
Initial Notes sold to IAIs (each a "IAI Global Note"). The aggregate principal
amount of each U.S. Global Note may from time to time be increased or decreased
by adjustments made on the records of the Trustee, as custodian for the
Depositary or its nominee, as hereinafter provided. Transfers of Initial Notes
from QIBs to IAIs, and from IAIs to QIBs, will be represented by appropriate
increases and decreases to the respective amounts of the appropriate U.S. Global
Notes, as more fully provided in Section 2.13.
(c) Initial Notes offered and sold in reliance on Regulation
S, if any, shall be issued initially in the form of temporary certificated Notes
in registered form substantially in the form set forth in Exhibit A, with
respect to the First Priority Initial Notes, and Exhibit B, with respect to the
Second Priority Initial Notes (the "Temporary Offshore Physical Notes"). The
Temporary Offshore Physical Notes will be registered in the name of, and held
by, a temporary certificate holder designated by Bear Stearns & Co. Inc. until
the later of the completion of the distribution of the Initial Notes and the
termination of the "restricted period" (as defined in Regulation S) with respect
to the offer and sale of the Initial Notes (the "Offshore Notes Exchange Date").
The Company shall promptly notify the Trustee in writing of the occurrence of
the Offshore Notes Exchange Date and, at any time following the Offshore Notes
Exchange Date,
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27
upon receipt by the Trustee and the Company of a certificate substantially in
the form set forth in Exhibit E, the Company shall execute, and the Trustee
shall authenticate and deliver, one or more permanent certificated Notes in
registered form substantially in the form set forth in Exhibit A, with respect
to the First Priority Initial Notes, and Exhibit B, with respect to the Second
Priority Initial Notes (the "Permanent Offshore Physical Notes") in exchange for
the Temporary Offshore Physical Notes of like tenor and amount.
(d) Initial Notes offered and sold other than as described in
the preceding two paragraphs, if any, shall be issued in the form of permanent
certificated Notes in registered form in substantially the form set forth in
Exhibit A, with respect to the First Priority Initial Notes and Exhibit B, with
respect to the Second Priority Initial Notes (the "U.S. Physical Notes").
(e) The Temporary Offshore Physical Notes, Permanent Offshore
Physical Notes and U.S. Physical Notes are sometimes collectively herein
referred to as the "Physical Notes".
SECTION 2.02. Execution and Authentication. Two Officers shall
sign the Securities for the Company by manual or facsimile signature. The
Company's seal shall be impressed, affixed, imprinted or reproduced on the
Securities and may be in facsimile form.
If an Officer whose signature is on a Security no longer holds
that office at the time the Trustee authenticates the Security, the Security
shall be valid nevertheless.
A Security shall not be valid until an authorized signatory of
the Trustee manually signs the certificate of authentication on the Security.
The signature shall be conclusive evidence that the Security has been
authenticated under this Indenture.
The Trustee shall authenticate and make available for delivery
(1) First Priority Initial Notes for original issue in an aggregate Principal
Amount at Maturity of $600,475,000, (2) Second Priority Initial Notes for
original issue in an aggregate Principal Amount at Maturity of $131,560,000, (3)
First Priority Exchange Notes from time to time for issue only in exchange for a
like principal amount of First Priority Initial Notes, and (4) Second Priority
Exchange Notes from time to time for issue only in exchange for a like principal
amount of Second Priority Initial Notes, in each case upon a written order of
the Company signed by two Officers or by an Officer and either an Assistant
Treasurer or an Assistant Secretary of the Company. Such order shall specify the
amount of the Securities to be authenticated, the date on which the Securities
are to be authenticated and whether the Securities are to be First Priority
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28
Initial Notes, Second Priority Initial Notes, First Priority Exchange Notes or
Second Priority Exchange Notes. The aggregate Principal Amount at Maturity of
First Priority Initial Notes and First Priority Exchange Notes outstanding at
any time may not exceed the amount specified in clause (1) of this paragraph
except as provided in Section 2.07 and the aggregate Principal Amount at
Maturity of Second Priority Initial Notes and Second Priority Exchange Notes
outstanding at any time may not exceed the amount specified in clause (2) of
this paragraph except as provided in Section 2.07.
The Trustee may appoint an authenticating agent reasonably
acceptable to the Company to authenticate the Securities. Unless limited by the
terms of such appointment, an authenticating agent may authenticate Securities
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 Company agrees to pay to any
authenticating agent compensation for its services hereunder.
SECTION 2.03. Registrar and Paying Agent. The Company shall
maintain an office or agency where Securities may be presented for registration
of transfer or for exchange (the "Registrar") and an office or agency where
Securities may be presented for payment (the "Paying Agent"). The Registrar
shall keep a register of the Securities and of their transfer and exchange. The
Company may have one or more co-registrars and one or more additional paying
agents. The term "Paying Agent" includes any additional paying agent.
The Company shall enter into an appropriate agency agreement
with any Registrar, Paying Agent or co-registrar not a party to this Indenture,
which shall incorporate the terms of the TIA. The agreement shall implement the
provisions of this Indenture that relate to such agent. The Company shall notify
the Trustee of the name and address of any such agent. If the Company fails to
maintain a Registrar or Paying Agent, the Trustee shall act as such and shall be
entitled to appropriate comp ensation therefor pursuant to Section 7.07. The
Company or any of its domestically incorporated Wholly Owned Recourse
Subsidiaries may act as Paying Agent, Registrar, co-registrar or transfer
agent.
The Company initially appoints the Trustee as Registrar and
Paying Agent in connection with the Securities.
SECTION 2.04. Paying Agent To Hold Money in Trust. On or prior
to each due date of the Principal and interest, if any, on any Security, the
Company shall deposit with the Paying Agent a sum sufficient to pay such
Principal and interest when so becoming due. The Company shall require each
Paying Agent (other than the Trustee) to agree in writing that the Paying Agent
shall hold in trust for the benefit of
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29
Securityholders or the Trustee all money held by the Paying Agent for the
payment of Principal of or interest, if any, on the Securities and shall notify
the Trustee of any default by the Company in making any such payment. If the
Company or a Subsidiary acts as Paying Agent, it shall segregate the money held
by it as Paying Agent and hold it as a separate trust fund. The Company at any
time may require a Paying Agent to pay all money held by it to the Trustee and
to account for any funds disbursed by the Paying Agent. Upon complying with this
Section, the Paying Agent shall have no further liability for the money
delivered to the Trustee.
SECTION 2.05. Securityholder Lists. The Trustee shall preserve
in as current a form as is reasonably practicable the most recent list available
to it of the names and addresses of Securityholders. If the Trustee is not the
Registrar, the Company shall furnish to the Trustee, in writing at least five
Business Days before each Semi-Annual Accrual Date, as of the date occurring 15
days preceding such Date, and at such other times as the Trustee may request in
writing, a list in such form and as of such date as the Trustee may reasonably
require of the names and addresses of Securityholders.
SECTION 2.06. Transfer and Exchange. The Securities shall be
issued in registered form and shall be transferable only upon the surrender of a
Security for registration of transfer. When a Security is presented to the
Registrar or a co-registrar with a request to register a transfer, the Registrar
shall register the transfer as requested if the requirements of Section 8-401(1)
of the Uniform Commercial Code are met. When Securities are presented to the
Registrar or a co-registrar with a request to exchange them for an equal
Principal Amount at Maturity of Securities of other denominations, the Registrar
shall make the exchange as requested if the same requirements are met. To permit
registration of transfers and exchanges, the Company shall execute and the
Trustee shall authenticate Securities at the Registrar's or co-registrar's
request. The Company may require payment of a sum sufficient to pay all taxes,
assessments or other governmental charges in connection with any transfer or
exchange pursuant to this Section. The Company shall not be required to make and
the Registrar need not register transfers or exchanges of Securities selected
for redemption (except, in the case of Securities to be redeemed in part, the
portion thereof not to be redeemed) or any Securities for a period of 15 days
before a selection of Securities to be redeemed.
Prior to the due presentation for registration of transfer of
any Security, the Company, the Trustee, the Paying Agent, the Registrar or any
co-registrar may deem and treat the Person in whose name a Security is
registered as the absolute owner of such Security for the purpose of receiving
payment of Principal of and interest, if any, on such Security and for all other
purposes whatsoever, whether or not such
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30
Security is overdue, and none of the Company, the Trustee, the Paying Agent, the
Registrar or any co-registrar shall be affected by notice to the contrary.
Any Holder of a U.S. Global Note shall, by acceptance of such
Global Note, agree that transfers of beneficial interest in such Global Note may
be effected only through a book-entry system maintained by the Holder of such
Global Note (or its agent), and that ownership of a beneficial interest in such
Global Note shall be required to be reflected in a book entry.
All Securities issued upon any transfer or exchange pursuant
to this Section 2.06 will evidence the same debt, will be part of the same
Series and will be entitled to the same benefits under this Indenture as the
Securities surrendered upon such transfer or exchange.
SECTION 2.07. Replacement Securities. If a mutilated Security
is surrendered to the Registrar or if the Holder of a Security claims that the
Security has been lost, destroyed or wrongfully taken, the Company shall issue
and the Trustee shall authenticate a replacement Security if the requirements of
Section 8-405 of the Uniform Commercial Code are met and the Holder satisfies
any other reasonable requirements of the Trustee. If required by the Trustee or
the Company, such Holder shall furnish an indemnity bond sufficient in the
judgment of the Company and the Trustee to protect the Company, the Trustee, the
Paying Agent, the Registrar and any co-registrar from any loss which any of them
may suffer if a Security is replaced. The Company and the Trustee may charge the
Holder for their expenses in replacing a Security.
In case any such mutilated, destroyed, lost or stolen Security
has become due and payable, the Company, in its discretion, may instead of
issuing a new Security, pay such Security.
Every replacement Security is an additional obligation of the
Company.
SECTION 2.08. Outstanding Securities. Securities outstanding
("Outstanding") at any time are all Securities authenticated and delivered by
the Trustee except for those canceled by it, those delivered to it for
cancellation and those described in this Section as not Outstanding. A Security
does not cease to be Outstanding because the Company or an Affiliate of the
Company holds the Security.
If a Security is paid or replaced pursuant to Section 2.07, it
ceases to be Outstanding unless the Trustee and the Company receive proof
satisfactory to them that the replaced Security is held by a bona fide
purchaser.
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31
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, if any, payable on that date with
respect to the Securities (or portions thereof) to be redeemed or maturing, as
the case may be, then on and after that date such Securities (or portions
thereof) cease to be Outstanding, the Accreted Value of such Securities ceases
to increase and interest, if any, on them ceases to accrue.
SECTION 2.09. Temporary Securities. Until definitive
Securities are ready for delivery, the Company may execute and the Trustee shall
authenticate temporary Securities. Temporary Securities shall be substantially
in the form of definitive Securities but may have variations that the Company
considers appropriate for temporary Securities. Without unreasonable delay, the
Company shall execute and the Trustee shall authenticate definitive Securities
and deliver them in exchange for temporary Securities upon surrender of such
temporary Securities at the office or agency of the Company, without charge to
the Holder.
SECTION 2.10. Cancellation. The Company at any time may
deliver Securities to the Trustee for cancellation. The Registrar and the Paying
Agent shall forward to the Trustee any Securities surrendered to them for
registration of transfer, exchange or payment. The Trustee and no one else shall
cancel Securities surrendered for registration of transfer, exchange, payment or
cancellation and deliver such canceled Securities to the Company upon the
Company's written request. The Company may not Issue new Securities to replace
Securities it has redeemed, paid or delivered to the Trustee for cancellation.
SECTION 2.11. CUSIP Numbers. The Company in issuing the
Securities may use "CUSIP" numbers (if then generally in use) and, if so, the
Trustee shall use "CUSIP" numbers in notices of redemption as a convenience to
Holders; provided, however, that any such notice may state that no
representation is made as to the correctness of such numbers either as printed
on the Securities or as contained in any notice of a redemption and that
reliance may be placed only on the other identification numbers printed on the
Securities, and any such redemption shall not be affected by any defect in or
omission of such numbers.
SECTION 2.12. Book-Entry Provisions for U.S. Global Note.
(a) Each U.S. Global Note initially shall (i) be registered in
the name of the Depositary for such U.S. Global Note or the nominee of such
Depositary and (ii) be delivered to the Trustee as custodian for such
Depositary.
Members of, or participants in, the Depositary ("Agent
Members") shall have no rights under this Indenture with respect to any U.S.
Global Note held on their
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32
behalf by the Depositary, or the Trustee as its custodian, or under the U.S.
Global Note, and the Depositary may be treated by the Company, the Trustee and
any agent of the Company or the Trustee as the absolute owner of such U.S.
Global Note for all purposes whatsoever. Notwithstanding the foregoing, nothing
herein shall prevent the Company, the Trustee or any agent of the Company or the
Trustee from giving effect to any written certification, proxy or other
authorization furnished by the Depositary or shall impair, as between the
Depositary and its Agent Members, the operation of customary practices governing
the exercise of the rights of a Holder of any Security.
(b) Transfers of a U.S. Global Note shall be limited to
transfers of such U.S. Global Note in whole, but not in part, to the Depositary,
its successors or their respective nominees. Interests of beneficial owners in a
U.S. Global Note may be transferred in accordance with the rules and procedures
of the Depositary and the provisions of Section 2.13. If required to do so
pursuant to any applicable law or regulation, beneficial owners may obtain U.S.
Physical Notes in exchange for their beneficial interests in a U.S. Global Note
upon written request in accordance with the Depositary's and the Registrar's
procedures. In addition, U.S. Physical Notes shall be transferred to all
beneficial owners in exchange for their beneficial interests in a U.S. Global
Note if (i) the Depositary notifies the Company that it is unwilling or unable
to continue as Depositary for such U.S. Global Note or the Depositary ceases to
be a clearing agency registered under the Exchange Act, at a time when the
Depositary is required to be so registered in order to act as Depositary, and in
each case a successor depositary is not appointed by the Company within 90 days
of such notice or, (ii) the Company executes and delivers to the Trustee and the
Registrar an Officers' Certificate stating that such U.S. Global Note shall be
so exchangeable or (iii) an Event of Default has occurred and is continuing and
the Registrar has received a request from the Depositary.
(c) In connection with any transfer of a portion of the
beneficial interest in a U.S. Global Note pursuant to subsection (b) of this
Section to beneficial owners who are required to hold U.S. Physical Notes, the
Registrar shall reflect on its books and records the date and a decrease in the
Principal Amount at Maturity of such U.S. Global Note in an amount equal to the
Principal Amount at Maturity of the beneficial interest in the U.S. Global Note
to be transferred, and the Company shall execute, and the Trustee shall
authenticate and deliver, one or more U.S. Physical Notes of like tenor and
amount.
(d) In connection with the transfer of an entire U.S. Global
Note to beneficial owners pursuant to subsection (b) of this Section, such U.S.
Global Note shall be deemed to be surrendered to the Trustee for cancellation,
and the Company shall execute, and the Trustee shall authenticate and deliver,
to each beneficial owner identified by the Depositary in exchange for its
beneficial interest in such U.S. Global
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33
Note, an equal aggregate Principal Amount at Maturity of U.S. Physical Notes of
authorized denominations.
(e) Any U.S. Physical Note delivered in exchange for an
interest in a U.S. Global Note pursuant to subsection (c) or subsection (d) of
this Section shall, except as otherwise provided by paragraph (f) of Section
2.13, bear the applicable legend regarding transfer restrictions applicable to
the U.S. Physical Note set forth in Exhibit A, with respect to the First
Priority Initial Notes, or Exhibit B, with respect to the Second Priority
Initial Notes.
(f) The registered holder of a U.S. Global Note may grant
proxies and otherwise authorize any person, including Agent Members and persons
that may hold interests through Agent Members, to take any action which a Holder
is entitled to take under this Indenture or the Notes.
SECTION 2.13. Special Transfer Provisions. Unless and until an
Initial Note is transferred or exchanged under an effective registration
statement under the Securities Act, the following provisions shall apply:
(a) Transfers to Non-QIB Institutional Accredited Investors.
The following provisions shall apply with respect to the registration of any
proposed transfer of an Initial Note to any IAI which is not a QIB (excluding
Non-U.S. Persons):
(i) The Registrar shall register the transfer of any Initial
Note if (x) the requested transfer is at least two years after the
original issue date of the Initial Note or (y) the proposed transferee
has delivered to the Registrar a certificate substantially in the form
set forth in Exhibit F.
(ii) If the proposed transferee is an Agent Member, and the
Initial Note to be transferred consists of U.S. Physical Notes or an
interest in the QIB Global Note, upon receipt by the Registrar of (x)
the document, if any, required by paragraph (i) and (y) instructions
given in accordance with the Depositary's and the Registrar's
procedures therefor, the Registrar shall reflect on its books and
records the date and an increase in the principal amount at maturity of
the IAI Global Note in an amount equal to (x) the principal amount at
maturity of the U.S. Physical Notes to be transferred, and the Trustee
shall cancel the U.S. Physical Note so transferred or (y) the amount at
maturity of the beneficial interest in the QIB Global Note to be so
transferred (in which case the Registrar shall reflect on its books and
records the date and an appropriate decrease in the principal amount at
maturity of the QIB Global Note).
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(iii) If the proposed transferee is entitled to receive a U.S.
Physical Note as provided in Section 2.12 and the proposed transferor
is an Agent Member holding a beneficial interest in a U.S. Global Note,
upon receipt by the Registrar of (x) the documents, if any, required by
paragraph (i) and (y) instructions given in accordance with the
Depositary's and the Registrar's procedures therefor, the Registrar
shall reflect on its books and records the date and a decrease in the
principal amount at maturity of such U.S. Global Note in an amount
equal to the principal amount at maturity of the beneficial interest in
such U.S. Global Note to be transferred, and the Company shall execute,
and the Trustee shall authenticate and deliver, one or more U.S.
Physical Notes of like tenor and amount.
(iv) If the Initial Note to be transferred consists of U.S.
Physical Notes and the proposed transferee is entitled to receive a
U.S. Physical Note as provided in Section 2.12, upon receipt by the
Registrar of the document, if any, required by paragraph (i), the
Registrar shall register such transfer and the Company shall execute,
and the Trustee shall authenticate and deliver, one or more U.S.
Physical Notes of like tenor and amount.
(v) Notwithstanding any provision herein to the contrary,
transfers by an IAI which is not a QIB cannot be made to any other IAI
which is not a QIB.
(b) Transfers to QIBs. The following provisions shall apply
with respect to the registration of any proposed transfer of an Initial Note to
a QIB (excluding Non-U.S. Persons):
(i) If the Note to be transferred consists of U.S. Physical
Notes, Temporary Offshore Physical Notes, Permanent Offshore Physical
Notes or an interest in the IAI Global Note, the Registrar shall
register the transfer if such transfer is being made by a proposed
transferor who has provided the Registrar with a certificate
substantially in the form set forth in Exhibit H hereto.
(ii) If the proposed transferee is an Agent Member, and the
Initial Note to be transferred consists of U.S. Physical Notes,
Temporary Offshore Physical Notes, Permanent Offshore Physical Notes or
an interest in the IAI Global Note, upon receipt by the Registrar of
(x) the document, if any, required by paragraph (i) and (y)
instructions given in accordance with the Depositary's and the
Registrar's procedures therefor, the Registrar shall reflect on its
books and records the date and an increase in the principal amount at
maturity of the QIB Global Note in an amount equal to (x) the principal
amount at maturity of the U.S. Physical Notes, Temporary Offshore
Physical Notes or Permanent Offshore Physical Notes, as the case may
be, to be transferred, and the Trustee
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35
shall cancel the Physical Note so transferred or (y) the amount at
maturity of the beneficial interest in the IAI Global Note to be so
transferred (in which case the Registrar shall reflect on its books and
records the date and an appropriate decrease in the principal amount at
maturity of the IAI Global Note).
(iii) If the proposed transferee is entitled to receive a U.S.
Physical Note as provided in Section 2.12 and the proposed transferor
is an Agent Member holding a beneficial interest in a U.S. Global Note,
upon receipt by the Registrar of (x) the documents, if any, required by
paragraph (i) and (y) instructions given in accordance with the
Depositary's and the Registrar's procedures therefor, the Registrar
shall reflect on its books and records the date and a decrease in the
principal amount at maturity of such U.S. Global Note in an amount
equal to the principal amount at maturity of the beneficial interest in
such U.S. Global Note to be transferred, and the Company shall execute,
and the Trustee shall authenticate and deliver, one or more U.S.
Physical Notes of like tenor and amount.
(iv) If the Initial Note to be transferred consists of U.S.
Physical Notes, Temporary Offshore Physical Notes or Permanent Offshore
Physical Notes and the proposed transferee is entitled to receive a
U.S. Physical Note as provided in Section 2.12, upon receipt by the
Registrar of the document, if any, required by paragraph (i), the
Registrar shall register such transfer and the Company shall execute,
and the Trustee shall authenticate and deliver, one or more U.S.
Physical Notes of like tenor and amount.
(c) Transfers by Non-U.S. Persons Prior to June 29, 1997. The
following provisions shall apply with respect to registration of any proposed
transfer of an Initial Note by a Non-U.S. Person prior to June 29, 1997:
(i) The Registrar shall register the transfer of any Initial
Note (x) if the proposed transferee is a Non-U.S. Person and the
proposed transferor has provided the Registrar with a certificate
substantially in the form set forth in Exhibit G hereto or (y) if the
proposed transferee is a QIB and the proposed transferor has provided
the Registrar with a certificate substantially in the form set forth in
Exhibit H hereto. Unless clause (ii) below is applicable, the Company
shall execute, and the Trustee shall authenticate and deliver, one or
more Temporary Offshore Physical Notes of like tenor and amount.
(ii) If the proposed transferee is an Agent Member in
connection with a proposed transfer of an Initial Note to a QIB, upon
receipt by the Registrar of (x) the document, if any, required by
paragraph (i) and (y) instructions given in accordance with the
Depositary's and the Registrar's procedures therefor, the
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36
Registrar shall reflect on its books and records the date and an
increase in the principal amount at maturity of the QIB Global Note in
an amount equal to the principal amount at maturity of the Temporary
Offshore Physical Note to be transferred, and the Registrar shall
cancel the Temporary Offshore Physical Notes so transferred.
(d) Transfers by Non-U.S. Persons on or After June 29, 1997.
The following provisions shall apply with respect to any transfer of an Initial
Note by a Non-U.S. Person on or after June 29, 1997:
(i)(x) If the Initial Note to be transferred is a Permanent
Offshore Physical Note, the Registrar shall register such transfer, (y)
if the Initial Note to be transferred is a Temporary Offshore Physical
Note, upon receipt of a certificate substantially in the form set forth
in Exhibit G from the proposed transferor, the Registrar shall register
such transfer and (z) in the case of either clause (x) or (y), unless
clause (ii) below is applicable, the Company shall execute, and the
Trustee shall authenticate and deliver, one or more Permanent Offshore
Physical Notes of like tenor and amount.
(ii) If the proposed transferee is an Agent Member in
connection with a proposed transfer of an Initial Note to a QIB, upon
receipt by the Registrar of instructions given in accordance with the
Depositary's and the Registrar's procedures therefor, the Registrar
shall reflect on its books and records the date and an increase in the
principal amount at maturity of the QIB Global Note in an amount equal
to the principal amount at maturity of the Temporary Offshore Physical
Note or of the Permanent Offshore Physical Note to be transferred, and
the Trustee shall cancel the Physical Note so transferred.
(e) Transfers to Non-U.S. Persons at Any Time. The following
provisions shall apply with respect to any transfer of an Initial Note to a
Non-U.S. Person:
(i) Prior to June 29, 1997, the Registrar shall register any
proposed transfer of an Initial Note to a Non-U.S. Person upon receipt
of a certificate substantially in the form set forth in Exhibit G from
the proposed transferor and the Company shall execute, and the Trustee
shall authenticate and make available for delivery, one or more
Temporary Offshore Physical Notes.
(ii) On and after June 29, 1997, the Registrar shall register
any proposed transfer to any Non-U.S. Person (w) if the Initial Note to
be transferred is a Permanent Offshore Physical Note, (x) if the
Initial Note to be transferred is a Temporary Offshore Physical Note,
upon receipt of a certificate substantially in the form set forth in
Exhibit G from the proposed transferor, (y) if the Initial Note to be
transferred is a U.S. Physical Note or an interest in a U.S. Global
Note, upon receipt of a certificate substantially in
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37
the form set forth in Exhibit G from the proposed transferor and (z) in
the case of either clause (w), (x) or (y), the Company shall execute,
and the Trustee shall authenticate and deliver, one or more Permanent
Offshore Physical Notes of like tenor and amount.
(iii) If the proposed transferor is an Agent Member holding a
beneficial interest in a U.S. Global Note, upon receipt by the
Registrar of (x) the document, if any, required by paragraph (i), and
(y) instructions in accordance with the Depositary's and the
Registrar's procedures therefor, the Registrar shall reflect on its
books and records the date and a decrease in the principal amount at
maturity of such U.S. Global Note in an amount equal to the principal
amount at maturity of the beneficial interest in the U.S. Global Note
to be transferred and the Company shall execute, and the Trustee shall
authenticate and deliver, one or more Permanent Offshore Physical Notes
of like tenor and amount.
(f) Private Placement Legend. Upon the transfer, exchange or
replacement of Notes not bearing the Private Placement Legend, the Registrar
shall deliver Notes that do not bear the Private Placement Legend. Upon the
transfer, exchange or replacement of Notes bearing the Private Placement Legend,
the Registrar shall deliver only Notes that bear the Private Placement Legend
unless either (i) the circumstances contemplated by the paragraph of Section
2.01(c) (relating to Permanent Offshore Physical Notes) or paragraph (a)(i)(x),
(d)(i) or (e)(ii) of this Section 2.13 exist or (ii) there is delivered to the
Registrar an Opinion of Counsel reasonably satisfactory to the Company and the
Trustee to the effect that neither such legend nor the related restrictions on
transfer are required in order to maintain compliance with the provisions of the
Securities Act.
(g) General. By its acceptance of any Note bearing the Private
Placement Legend, each Holder of such a Note acknowledges the restrictions on
transfer of such Note set forth in this Indenture and in the Private Placement
Legend and agrees that it will transfer such Note only as provided in this
Indenture.
The Registrar shall retain copies of all letters, notices and
other written communications received pursuant to Section 2.12 or this Section
2.13. The Company shall have the right to inspect and make copies of all such
letters, notices or other written communications at any reasonable time upon the
giving of reasonable written notice to the Registrar.
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ARTICLE III
Redemption
SECTION 3.01. Notices to Trustee. If the Company elects to
redeem Securities pursuant to paragraph 5 of the Securities or is required to
redeem Securities pursuant to paragraph 6 of the Securities, it shall notify the
Trustee in writing of the redemption date, the paragraph of the Securities
pursuant to which the redemption will occur, the Principal Amount at Maturity of
Securities to be redeemed and which Series of Securities are to be redeemed. If
the Company is required to redeem the Securities pursuant to paragraph 6 of the
Securities the Company shall also so notify the Escrow Agent concurrently with
its notification to the Trustee.
In the case of a redemption pursuant to paragraph 5 of the
Securities, the Company shall give each notice to the Trustee provided for in
this Section at least 60 days before the redemption date unless the Trustee
consents to a shorter period. In the case of a redemption pursuant to paragraph
6 of the Securities, the Company shall give such notices to the Trustee and the
Escrow Agent provided for in this Section promptly after the occurrence of a
Triggering Event but at least 40 days before the redemption date unless the
Trustee consents to a shorter period. Any notice delivered pursuant to paragraph
5 of the Securities shall be accompanied by an Officers' Certificate to the
effect that such redemption will comply with the conditions herein. If fewer
than all the Securities are to be redeemed, the record date relating to such
redemption for determining the Holders to whom notice of redemption will be sent
pursuant to Section 3.03 shall be selected by the Company and given to the
Trustee, which record date shall be not less than 15 days after the date of
notice to the Trustee unless the Trustee consents to a shorter period.
SECTION 3.02. Selection of Securities To Be Redeemed. If fewer
than all the Securities are to be redeemed, the Trustee in its discretion shall
select the particular Securities in a given Series to be redeemed (i) in the
case of a redemption pursuant to paragraph 5 of the Securities, either on a pro
rata basis or by lot or by a method that complies with applicable legal and
securities exchange requirements, if any, and that the Trustee considers fair
and appropriate, and (ii) in the case of a redemption pursuant to paragraph 6 of
the Securities, on a pro rata basis in accordance with the respective Accreted
Values of each Security at the redemption date. The Trustee shall make the
selection from Outstanding Securities not previously called for redemption. The
Trustee may select for redemption portions of the Principal Amount at Maturity
of Securities that have denominations larger than $1,000. Securities and
portions of them the Trustee selects shall be in amounts of Principal Amount at
Maturity of $1,000 or a whole multiple of $1,000. Provisions of this Indenture
that apply to Securities called for redemption also apply to portions of
Securities called for
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39
redemption. The Trustee shall notify the Company promptly of the Securities or
portions of Securities to be redeemed.
SECTION 3.03. Notice of Redemption. In the case of a
redemption pursuant to paragraph 5 of the Securities, at least 30 days but not
more than 60 days before a date for redemption of Securities, the Company shall
mail a notice of redemption by first-class mail to each Holder of Securities to
be redeemed. In the case of a redemption pursuant to paragraph 6 of the
Securities, at least 30 days before the date for redemption of Securities, the
Company shall mail a notice of redemption by first-class mail to each Holder of
Securities to be redeemed.
Any notice delivered pursuant to this Section 3.03 shall
identify the Securities to be redeemed and shall state:
(1) the redemption date;
(2) the redemption price;
(3) the name and address of the Paying Agent;
(4) that Securities called for redemption must be
surrendered to the Paying Agent to collect the redemption
price;
(5) if fewer than all the Outstanding Securities are
to be redeemed, the identification of the particular
Securities to be redeemed as well as the aggregate Principal
Amount at Maturity of Securities to be redeemed and if any
Security is being redeemed in part, the portion of the
Principal Amount at Maturity of such Security to be redeemed
and that after the redemption date and upon surrender of such
Security a new Security or Securities will be issued of the
same Series having a Principal Amount at Maturity equal to the
Principal Amount at Maturity of the Security surrendered less
the Principal Amount at Maturity of the portion of the
Security redeemed;
(6) that, unless the Company defaults in making such
redemption payment, the Accreted Value on Securities (or
portion thereof) called for redemption ceases to increase and
interest, if any, thereon ceases to accrue on and after the
redemption date;
(7) the paragraph of the Securities pursuant to which
the Securities called for redemption are being redeemed;
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40
(8) the CUSIP number printed on the Securities being
redeemed; and
(9) that no representation is made as to the
correctness or accuracy of the CUSIP number, if any, listed in
such notice or printed on the Securities.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at the Company's expense. In such event,
the Company shall provide the Trustee with the information required by this
Section.
SECTION 3.04. Effect of Notice of Redemption. Once notice of
redemption is mailed, Securities 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 Securities shall be paid at the redemption
price stated in the notice, plus accrued interest, if any, to the redemption
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.
SECTION 3.05. Deposit of Redemption Price. On or prior to the
redemption date, the Company shall deposit with the Paying Agent (or, if the
Company or a Subsidiary is the Paying Agent, shall segregate and hold in trust)
money sufficient to pay the redemption price of and accrued interest, if any, on
all Securities to be redeemed on that date other than Securities or portions of
Securities called for redemption which have been delivered by the Company to the
Trustee for cancellation.
SECTION 3.06. Securities Redeemed in Part. Upon surrender of a
Security that is redeemed in part, the Company shall execute and the Trustee
shall authenticate for the Holder (at the Company's expense) a new Security of
the same Series having a Principal Amount at Maturity equal to the Principal
Amount at Maturity of the Security surrendered less the Principal Amount at
Maturity of the portion of the Security so redeemed.
ARTICLE IV
Covenants
SECTION 4.01. Payment of Securities. The Company shall
promptly pay the Principal of and interest, if any, on the Securities on the
dates and in the manner provided in the Securities 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
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41
accordance with this Indenture money sufficient to pay all Principal and
interest then due. The Company shall pay interest on overdue Principal at the
rate specified therefor in the Securities, and it shall pay interest on overdue
installments of interest at the same rate to the extent lawful.
SECTION 4.02. SEC Reports. Notwithstanding that the Company
may not be required to be subject to the reporting requirements of Section 13 or
15(d) of the Exchange Act, from and after the date (the "reporting date") of
effectiveness of a Registration Statement (as defined in the Registration
Agreement), the Company shall file or cause to be filed with the SEC and provide
the Trustee and Holders with the information, documents and other reports (or
copies of such portions of any of the foregoing as the SEC may by rules and
regulations prescribe) specified in Sections 13 and 15(d) of the Exchange Act.
Prior to the reporting date, the Company shall provide the Trustee and Holders
with information that is substantially similar to that required to be provided
to such Persons after the reporting date. The Company also shall comply with the
other provisions of TIA ss. 314(a).
SECTION 4.03. Limitation on Debt of the Company, Holdings and
Worldwide. The Company shall not Issue any Debt and the Company shall not permit
Holdings or Worldwide to Issue any Debt or Preferred Stock; provided, however,
that the foregoing shall not prohibit the Issuance of the following Debt:
(1) the Securities and Debt Issued by the Company in exchange
for, or the proceeds of which are used to Refinance, any Debt permitted
by this clause (1); provided, however, that in the case of any Debt
(other than the Exchange Notes) Issued in connection with a
Refinancing, (x) the principal amount or, in the case of Debt Issued at
a discount, the accreted value of the Debt so Issued shall, as of the
date of the Stated Maturity of the Debt being Refinanced, not exceed
the sum of (i) the principal amount or, if the Debt being Refinanced
was Issued at a discount, the accreted value of the Debt being
Refinanced as of the date of the Stated Maturity of the Debt being
Refinanced and (ii) any Refinancing Costs associated with such
Refinancing, and (y) the Debt so Issued shall not provide for the
payment of principal or interest in cash prior to the Stated Maturity
of the Securities and shall not have a Stated Maturity prior to the
Stated Maturity of the Securities;
(2) the Holdings Notes and the LYONS; and
(3) Debt consisting solely of a Guarantee by the Company or
Worldwide of obligations of another Person of the type referred to in
clauses (i) through (vi) of the definition of "Debt", in respect of
which Guarantee the holder thereof shall have no recourse to the
Company or Worldwide other than
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42
to Unrestricted Assets pledged by the Company or Worldwide to secure
such Guarantee; provided, however, that this clause (3) shall not
permit the Company or Worldwide to assume the obligation of such other
Person.
SECTION 4.04. Limitation on Debt of Coleman and its
Subsidiaries and Limitation on Preferred Stock of Coleman. (a) The Company shall
not permit Coleman or any Subsidiary of Coleman to Issue, directly or
indirectly, any Debt; provided, however, that Coleman and its Subsidiaries will
be permitted to Issue Debt if, at the time of such Issuance, the Consolidated
EBITDA Coverage Ratio for the period of the most recently completed four
consecutive fiscal quarters ending at least 45 days prior to the date such Debt
is Issued exceeds the ratio of 2.5 to 1.0.
(b) Notwithstanding the foregoing, Coleman and its
Subsidiaries may Issue the following Debt:
(1) Debt Issued pursuant to the Credit Agreement, any
Refinancing thereof or any other credit agreement, indenture or other
agreement, in an aggregate principal amount not to exceed $350 million
outstanding at any one time;
(2) Debt Issued pursuant to the Note Purchase Agreements, any
Refinancing thereof or any other credit agreement, indenture or other
agreement, in an aggregate principal amount not to exceed at any one
time outstanding $360 million plus any Refinancing Costs associated
with any such Refinancing; provided, however, that the Debt so Issued
shall not have an Average Life shorter than the Average Life of the
Debt outstanding under the Note Purchase Agreements on the Issue Date
or Stated Maturity prior to the earliest Stated Maturity of the Debt
outstanding under the Note Purchase Agreements on the Issue Date;
(3) Debt (in addition to Debt described in clauses (1) and (2)
above) Issued for working capital and general corporate purposes in an
aggregate principal amount at the time of such Issue which, when taken
together with the aggregate principal amount then outstanding of all
other Debt Issued pursuant to this clause (3), shall not exceed the sum
of (i) 50% of the book value of the inventory of Coleman and its
consolidated Subsidiaries and (ii) 80% of the book value of the
accounts receivable of Coleman and its consolidated Subsidiaries, in
each case as determined in accordance with GAAP;
(4) Debt of Coleman Issued to and held by a Wholly Owned
Recourse Subsidiary and Debt of a Subsidiary of Coleman Issued to and
held by Coleman or a Wholly Owned Recourse Subsidiary; provided,
however, that any
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43
subsequent Issuance or transfer of any Capital Stock that results in
any such Wholly Owned Recourse Subsidiary ceasing to be a Wholly Owned
Recourse Subsidiary or any subsequent transfer of such Debt (other than
to Coleman or a Wholly Owned Recourse Subsidiary) shall be deemed, in
each case, to constitute the Issuance of such Debt by Coleman or of
such Debt by such Subsidiary;
(5) Debt (other than Debt described in clause (1), (2), (3) or
(4) above) outstanding on the Issue Date and Debt Issued to Refinance
any Debt permitted by this clause (5), by clause (7) below or by
Section 4.04(a); provided, however, that in the case of a Refinancing,
(x) the principal amount of the Debt so Issued shall not exceed the
principal amount of the Debt being Refinanced plus any Refinancing
Costs associated with such Refinancing and (y) the Debt so Issued shall
not have an Average Life shorter than the Average Life of the Debt
being Refinanced or Stated Maturity prior to the Stated Maturity of the
Debt being Refinanced;
(6) Debt Issued and arising out of purchase money obligations
for property acquired in an amount not to exceed, for the period
through December 31, 1997, $15 million, plus for each fiscal year
thereafter, $15 million; provided, however, that any such amounts which
are available to be utilized during any period and are not so utilized
may be utilized during any succeeding period;
(7) Debt of a Subsidiary of Coleman Issued and outstanding on
or prior to the date on which such Subsidiary was acquired by Coleman
(other than Debt Issued as consideration in, or to provide all or any
portion of the funds or credit support utilized to consummate, the
transaction or series of related transactions pursuant to which such
Subsidiary became a Subsidiary of Coleman or was acquired by Coleman);
(8) Non-Recourse Debt of a Non-Recourse Subsidiary; provided,
however, that if any such Debt thereafter ceases to be Non-Recourse
Debt of a Non-Recourse Subsidiary, then such event shall be deemed for
the purposes of this Section 4.04 to constitute the Issuance of such
Debt by the Issuer thereof; and
(9) Debt (in addition to Debt described in clauses (1) through
(8) above and in Section 4.04(a)) in an aggregate principal amount
outstanding at any time not to exceed $75 million.
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44
(c) The Company shall not permit Coleman to Issue any
Preferred Stock; provided, however, that Coleman may Issue the following
Preferred Stock:
(1) Preferred Stock of Coleman Issued to and held by the
Company, Holdings or Worldwide or a Wholly Owned Recourse Subsidiary of
Coleman; provided, however, that any subsequent issuance or transfer of
any Capital Stock that results in any such Wholly Owned Recourse
Subsidiary ceasing to be a Wholly Owned Recourse Subsidiary of Coleman
or any subsequent transfer of such Preferred Stock (other than to the
Company or a Wholly Owned Recourse Subsidiary of the Company or
Holdings or Worldwide) shall be deemed, in each case, to constitute the
Issuance of such Preferred Stock by Coleman; and
(2) Preferred Stock (other than Preferred Stock described in
clause (1) but including the Preferred Stock referred to in the proviso
to clause (1) above) Issued by Coleman; provided, however, that the
liquidation value of any Preferred Stock Issued pursuant to this clause
(2) shall constitute Debt of Coleman for purposes of this Section 4.04.
(d) To the extent Coleman or any Subsidiary of Coleman
Guarantees any Debt of Coleman or of a Subsidiary of Coleman, such Guarantee and
such Debt will be deemed to be the same indebtedness and only the amount of the
Debt will be deemed to be outstanding. If Coleman or a Subsidiary of Coleman
Guarantees any Debt of a Person that, subsequent to the Issuance of such
Guarantee, becomes a Subsidiary, such Guarantee and the Debt so Guaranteed shall
be deemed to be the same indebtedness, which shall be deemed to have been Issued
when the Guarantee was Issued and shall be deemed to be permitted to the extent
the Guarantee was permitted when Issued.
SECTION 4.05. Limitation on Restricted Payments. (a) The
Company shall not, and shall not permit any of its Subsidiaries, directly or
indirectly, to make any Restricted Payment if, at the time of the making of such
Restricted Payment:
(1) a Default shall have occurred or be continuing (or would
result therefrom); or
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(2) the aggregate amount of such Restricted Payment and all
other Restricted Payments since the Issue Date would exceed the sum of:
(i) 50% of Consolidated Net Income (or, if such
aggregate Consolidated Net Income is a deficit, minus 100% of
such deficit) of the Company accrued during the period
(treated as one accounting period) from January 1, 1997, to
the end of the most recent fiscal quarter ending at least 45
days prior to the date of such Restricted Payment;
(ii) the aggregate Net Cash Proceeds from sales of
Capital Stock of the Company or cash capital contributions
made to the Company and, without duplication, any earnings
thereon or proceeds thereof to the extent invested in
Temporary Cash Investments on or after the Issue Date; and
(iii) the amount by which Debt of the Company is
reduced on or after the Issue Date upon any conversion or
exchange of Debt of the Company into Capital Stock of the
Company which is not Redeemable Stock or Exchangeable Stock.
(b) Section 4.05(a) shall not prohibit the following (none of
which shall be included in the calculation of the amount of Restricted Payments,
except to the extent expressly provided in clause (viii) below):
(i) so long as no Default has occurred and is continuing or
would result from such transaction, any Restricted Payment to the
extent it consists of Unrestricted Assets;
(ii) any purchase or redemption of Capital Stock or
Subordinated Obligations out of the proceeds from the substantially
concurrent sale of Capital Stock;
(iii) any purchase or redemption of Subordinated Obligations
out of the proceeds from the substantially concurrent sale of
Subordinated Obligations;
(iv) dividends or distributions made by Coleman to the
Company, Holdings or Worldwide and to its other stockholders on a pro
rata basis;
(v) dividends or distributions made by Worldwide to the
Company or Holdings;
(vi) dividends or distributions made by Holdings to the
Company;
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46
(vii) dividends or distributions made by a Subsidiary of
Coleman or by an Unrestricted Subsidiary to the Company, Holdings,
Worldwide, Coleman or a Subsidiary of Coleman or to an Unrestricted
Subsidiary and, if a Subsidiary of Coleman or such Unrestricted
Subsidiary is not wholly owned, to its other stockholders pro rata to
the extent they are not Affiliates of the Company (other than (w)
Coleman, (x) a Subsidiary of Coleman, (y) an Unrestricted Affiliate and
(z) a Permitted Affiliate);
(viii) dividends paid within 60 days after the date of
declaration thereof, or Restricted Payments made within 60 days after
the making of a binding commitment in respect thereof, if at such date
of declaration or of such commitment such dividend or other Restricted
Payment would have complied with this Section; provided, however, that
at the time of payment of such dividend or the making of such
Restricted Payment, no other Default shall have occurred and be
continuing (or result therefrom); provided further, however, that such
dividend or other Restricted Payment shall be included in the
calculation of the amount of Restricted Payments;
(ix) purchases, redemptions, defeasances or acquisitions of
Non- Recourse Debt by a Non-Recourse Subsidiary;
(x) dividends and distributions made by Coleman or its
Subsidiaries in respect of Preferred Stock of Coleman permitted by
Section 4.04(b) or in respect of Preferred Stock of such Subsidiaries
permitted by Section 4.04(a);
(xi) Investments in Affiliates of the Company consisting of
Debt permitted by Section 4.03(3) or Investments consisting of Debt of
Unrestricted Subsidiaries;
(xii) so long as no Default or (so long as the LYONS Indenture
is in effect) no LYONS Default has occurred and is continuing or would
result from such transaction, dividends or distributions made by the
Company to the extent attributable to (A) the net proceeds of the
Issuance of Debt by Non- Recourse Subsidiaries, or (B) cash dividends
or distributions received from Unrestricted Subsidiaries of the Company
or Worldwide (other than dividends or distributions paid to Worldwide
or the Company out of dividends or distributions received by
Unrestricted Subsidiaries in respect of shares of Coleman Common
Stock);
(xiii) so long as no Default or (so long as the LYONS
Indenture is in effect) no LYONS Default has occurred and is continuing
or would result from
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47
such transaction, the contribution by the Company or Worldwide to an
Unrestricted Subsidiary of the Withdrawn Shares;
(xiv) so long as no Default or (so long as the LYONS Indenture
is in effect) no LYONS Default has occurred and is continuing or would
result from such transaction, Restricted Payments to the extent
attributable to Restricted Cash;
(xv) dividends or other Restricted Payments consisting solely
of funds released from time to time pursuant to Section 2(k) of the
Escrow Agreement to the extent such funds are not needed for the
Capital Contributions (as defined in the Escrow Agreement) to be made
to Worldwide;
(xvi) dividends or other Restricted Payments consisting solely
of funds released from the Escrow Agreement after all Holdings Notes
have been redeemed and all LYONS have been retired; and
(xvii) any Restricted Payment to the extent it consists of the
disposition of any Mafco Demand Notes (as defined in the LYONS
Indenture) after all LYONS have been retired.
(c) The Company or any Subsidiary of the Company may take
actions to make a Restricted Payment in anticipation of the occurrence of any of
the events described in Section 4.05(b); provided, however, that the making of
such Restricted Payment shall be conditioned upon the occurrence of such event.
SECTION 4.06. Limitation on Sales of Assets and Subsidiary
Stock. (a) The Company shall not, and shall not permit Holdings or Worldwide to,
make any Asset Disposition.
(b) The Company shall not permit Coleman or any Subsidiary of
Coleman (other than a Non-Recourse Subsidiary) to make any Asset Disposition
unless:
(i) Coleman or such Subsidiary receives consideration at the
time of such Asset Disposition at least equal to the fair market value,
as determined in good faith by the Board of Directors of Coleman, the
determination of which shall be conclusive and evidenced by a
resolution of the Board of Directors of Coleman (including as to the
value of all non-cash consideration), of the Capital Stock and assets
subject to such Asset Disposition;
(ii) at least 75% of the consideration consists of cash, cash
equivalents, readily marketable securities which Coleman intends, in
good faith,
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48
to liquidate promptly after such Asset Disposition or the assumption of
liabilities (including, in the case of the sale of the Capital Stock of
a Subsidiary of Coleman, liabilities of such Subsidiary) (provided,
however, that in respect of an Asset Disposition, more than 25% of the
consideration may consist of consideration other than cash, cash
equivalents, such readily marketable securities or such assumed
liabilities if (x) such Asset Disposition is approved by a majority of
those members of the Board of Directors of Coleman having no personal
stake in such Asset Disposition and (y) if such Asset Disposition
involves aggregate consideration in excess of $10 million (with the
value of any non-cash consideration being determined by a majority of
those members of the Board of Directors of Coleman having no personal
stake in such Asset Disposition), such Asset Disposition has been
determined, in the written opinion of a nationally recognized
investment banking firm, to be fair from a financial point of view to
Coleman or such Subsidiary, as the case may be); and
(iii) an amount equal to 100% of the Net Available Cash from
such Asset Disposition is applied by Coleman (or such Subsidiary, as
the case may be) at Coleman's election (1) to the prepayment, repayment
or repurchase of Debt of Coleman or Debt of a Wholly Owned Recourse
Subsidiary or, additionally in the case of an Asset Disposition by a
Subsidiary that is not a Wholly Owned Recourse Subsidiary, Debt of such
Subsidiary (in each case other than Debt owed to (x) an Unrestricted
Subsidiary, (y) a Non-Recourse Subsidiary or (z) an Affiliate of the
Company which is not a Subsidiary of the Company) (whether or not the
related loan commitment is permanently reduced in connection
therewith), (2) to the investment by Coleman or such Wholly Owned
Recourse Subsidiary (or, additionally in the case of an Asset
Disposition by a Subsidiary that is not a Wholly Owned Recourse
Subsidiary, the investment by such Subsidiary) in (x) assets to replace
the assets that were the subject of such Asset Disposition, (y) assets
that (as determined by the Board of Directors of Coleman, the
determination of which shall be conclusive and evidenced by a
resolution of such Board of Directors) will be used in the businesses
of Coleman and its Wholly Owned Recourse Subsidiaries (or, additionally
in the case of an Asset Disposition by a Subsidiary that is not a
Wholly Owned Recourse Subsidiary, the businesses of such Subsidiary)
existing on the Issue Date or in businesses reasonably related thereto
or (z) Temporary Cash Investments or (3) to make a Restricted Payment
to Worldwide, Holdings or the Company.
Notwithstanding the foregoing provisions of this Section
4.06(b), Coleman and its Subsidiaries shall not be required to apply any Net
Available Cash in accordance with this Section 4.06(b) except to the extent that
the aggregate Net Available Cash from all Asset Dispositions made by Coleman and
its Subsidiaries which are not applied in accordance with this Section 4.06(b)
exceed $10 million.
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49
SECTION 4.07. Limitation on Transactions with Affiliates. (a)
None of the Company, Holdings or Worldwide shall conduct any business or enter
into any transaction or series of similar transactions (including the purchase,
sale, lease or exchange of any property or the rendering of any service) with
any Affiliate of the Company or any legal or beneficial owner of 10% or more of
the voting power of the Voting Stock of the Company or with an Affiliate of any
such owner.
(b) The Company shall not permit Coleman or any of its
Subsidiaries (other than a Non-Recourse Subsidiary) to conduct any business or
enter into any transaction or series of similar transactions (including the
purchase, sale, lease or exchange of any property or the rendering of any
service) with any Affiliate of the Company or any legal or beneficial owner of
10% or more of the voting power of the Voting Stock of the Company or with an
Affiliate of any such owner unless
(i) the terms of such business, transaction or series of
transactions are (A) set forth in writing and (B) at least as favorable
to Coleman or such Subsidiary as terms that would be obtainable at the
time for a comparable transaction or series of similar transactions in
arm's-length dealings with an unrelated third Person and
(ii) to the extent that such business, transaction or series
of transactions is known by the Board of Directors of Coleman or of
such Subsidiary to involve an Affiliate of the Company or a legal or
beneficial owner of 10% or more of the voting power of the Voting Stock
of the Company or an Affiliate of such owner, then
(A) with respect to a transaction or series of
related transactions, other than any purchase or sale of
inventory in the ordinary course of business, involving
aggregate payments or other consideration in excess of
$5,000,000, such transaction or series of related transactions
has been approved (and the value of any noncash consideration
has been determined) by a majority of those members of the
Board of Directors of Coleman having no personal stake in such
business, transaction or series of transactions and
(B) with respect to a transaction or series of
related transactions, other than any distribution arrangement
or any purchase or sale of inventory, in each case in the
ordinary course of business (an "Exempt Transaction"),
involving aggregate payments or other consideration in excess
of $25,000,000 (with the value of any noncash consideration
being determined by a majority of those members of the Board
of Directors of Coleman having no personal stake in such
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50
business, transaction or series of transactions), such
transaction or series of related transactions has been
determined, in the written opinion of a nationally recognized
investment banking firm to be fair, from a financial point of
view, to Coleman or such Subsidiary.
(c) The provisions of Section 4.07(a) and 4.07(b) shall not
prohibit:
(i) any Restricted Payment permitted to be paid pursuant to
Section 4.05;
(ii) any transaction between Coleman and any of its
Subsidiaries; provided, however, that no portion of any minority
interest in any such Subsidiary is owned by (x) any Affiliate (other
than the Company, Holdings, Worldwide, Coleman, a Wholly Owned Recourse
Subsidiary of Coleman, a Permitted Affiliate or an Unrestricted
Affiliate) of the Company or (y) any legal or beneficial owner of 10%
or more of the voting power of the Voting Stock of the Company or any
Affiliate of such owner (other than the Company, Holdings, Worldwide,
Coleman, any Wholly Owned Recourse Subsidiary of Coleman or an
Unrestricted Affiliate);
(iii) any transaction between Subsidiaries of Coleman;
provided, however, that no portion of any minority interest in any such
Subsidiary is owned by (x) any Affiliate (other than the Company,
Holdings, Worldwide, Coleman, a Wholly Owned Recourse Subsidiary of
Coleman, a Permitted Affiliate or an Unrestricted Affiliate) of the
Company or (y) any legal or beneficial owner of 10% or more of the
voting power of the Voting Stock of the Company or any Affiliate of
such owner (other than the Company, Holdings, Worldwide, Coleman, any
Wholly Owned Recourse Subsidiary of Coleman or an Unrestricted
Affiliate);
(iv) any transaction between Coleman or a Subsidiary of
Coleman and its own employee stock ownership plan;
(v) any transaction with an officer or director of any
Subsidiary of the Company entered into in the ordinary course of
business (including compensation or employee benefit arrangements with
any such officer or director); provided, however, such officer holds,
directly or indirectly, no more than 10% of the outstanding Capital
Stock of the Company;
(vi) any business or transaction with an Unrestricted
Affiliate;
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(vii) any transaction pursuant to which Mafco Holdings will
provide the Company and its Subsidiaries at their request and at the
cost to Mafco Holdings with certain allocated services to be purchased
from third party providers, such as legal and accounting services,
insurance coverage and other services;
(viii) any transaction contemplated by the Escrow Agreement,
the Securities Loan Agreement or the Tax Sharing Agreements;
(ix) any Guarantee Issued by the Company or Worldwide
permitted by Section 4.03(3); and
(x) the Mergers.
SECTION 4.08. Change of Control. (a) Upon a Change of Control,
each Holder shall have the right to require that the Company repurchase all or
any part of such Holder's Securities at a repurchase price in cash equal to
their Put Amount as of the date of repurchase, plus accrued and unpaid interest,
if any, to the date of repurchase in accordance with the terms contemplated in
Section 4.08(b).
(b) Within 45 days following any Change of Control, the
Company shall mail a notice to each Holder with a copy to the Trustee stating:
(1) that a Change of Control has occurred and that such Holder
has the right to require the Company to repurchase all or any part of
such Holder's Securities at a repurchase price in cash equal to their
Put Amount as of the date of repurchase plus accrued and unpaid
interest, if any, to the date of repurchase;
(2) the circumstances and relevant facts regarding such Change
of Control;
(3) the repurchase date (which shall be no earlier than 30
days nor later than 60 days from the date such notice is mailed); and
(4) the instructions determined by the Company, consistent
with this Section, that a Holder must follow in order to have its
Securities repurchased.
(c) Holders electing to have a Security repurchased will be
required to surrender the Security, with an appropriate form duly completed, to
the Company at the address specified in the notice at least 10 Business Days
prior to the repurchase date. Holders will be entitled to withdraw their
election if the Trustee or the Company receives not later than three Business
Days prior to the repurchase date, a facsimile
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52
transmission or letter setting forth the name of the Holder, the Principal
Amount at Maturity of the Security which was delivered for purchase by the
Holder and a statement that such Holder is withdrawing his election to have such
Security purchased.
(d) On the repurchase date, all Securities repurchased by the
Company under this Section shall be delivered to the Trustee for cancellation,
and the Company shall pay the repurchase price to the Holders entitled thereto.
Upon surrender of a Security that is repurchased under this Section in part, the
Company shall execute and the Trustee shall authenticate for the Holder thereof
(at the Company's expense) a new Security having a Principal Amount at Maturity
equal to the Principal Amount at Maturity of the Security surrendered less the
portion of the Principal Amount at Maturity of the Security repurchased.
(e) The Company shall comply, to the extent applicable, with
the requirements of Section 14(e) of the Exchange Act and any other securities
laws or regulations in connection with the repurchase of Securities pursuant to
this Section. To the extent that the provisions of any securities laws or
regulations conflict with provisions of this Section, the Company shall comply
with the applicable securities laws and regulations and shall not be deemed to
have breached its obligations under this Section by virtue thereof.
SECTION 4.09. Limitation on Other Business Activities. (a) The
Company shall not engage in any trade or business other than the ownership of
the Capital Stock of Coleman, Worldwide and Holdings and one or more
Unrestricted Subsidiaries.
(b) The Company shall not permit Holdings to engage in any
trade or business other than the ownership of the Capital Stock of Coleman and
Worldwide.
(c) The Company shall not permit Worldwide to engage in any
trade or business other than the ownership of the Capital Stock of Coleman and
one or more Unrestricted Subsidiaries.
SECTION 4.10. Required Stock Ownership; Limitation on Liens.
(a) The Company shall at all times be, or cause Worldwide to be, the legal and
beneficial owner of the Coleman Pledged Shares. The Company shall at all times
be, or cause Worldwide together with the Company to be, the legal and beneficial
owner of at least a majority of the voting power of the Voting Stock of Coleman
(including the Coleman Pledged Shares) (treating Coleman Pledged Shares, any
Coleman Common Stock pledged for the benefit of the holders of LYONS or Holdings
Notes or subject to any other Lien permitted by this Section 4.10 and any
Coleman Common Stock subject to or lent pursuant to the Securities Loan
Agreement as held legally and beneficially by
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53
the Company or Worldwide); provided, however, that the Company and Worldwide
will be deemed to be the legal and beneficial owner of any Coleman Common Stock
held of record by a nominee for Depositary Trust Company ("DTC") or any other
public clearing corporation (a "public clearing corporation" is any member of
the Federal Reserve System registered as a clearing agency pursuant to the
provisions of Section 17A of the Exchange Act), if the books of DTC or such
other public clearing corporation, as the case may be, show that such Coleman
Common Stock is held solely for the account of the Company or Worldwide, subject
to any Lien permitted by this Section 4.10. The Company shall at all times prior
to the Holdings Merger be the legal and beneficial owner of 100% of the Capital
Stock of Holdings. The Company shall at all times prior to the Worldwide Merger
be, or cause Holdings to be, the legal and beneficial owner of 100% of the
Capital Stock of Worldwide.
(b) The Company shall not create or permit to exist any Lien
on the Collateral directly owned by it, other than the Lien of this Indenture.
The Company shall not permit Worldwide to create or permit to exist any Lien on
the Collateral directly owned by Worldwide, other than the Lien of (or with
respect to) the Holdings Indenture, the LYONS Indenture or this Indenture.
(c) The Company shall not create or permit to exist any Lien
to secure Debt of the Company on terms more favorable to the holders of such
Debt than the terms of the collateral for the Securities in this Indenture,
including the initial loan to value ratio in respect of such Debt compared to
the initial loan to value ratio of the Collateral in respect of the Securities,
unless contemporaneously therewith effective provision is made to secure the
Securities equally and ratably with such Debt with a Lien on the same assets
securing such Debt for so long as such Debt is secured by such Lien; provided,
however, that, if such Debt is a Subordinated Obligation, the Lien securing such
Debt shall be subordinate and junior to the Lien securing the Securities with
the same or lesser relative priority as such Subordinated Obligation shall have
with respect to the Securities; provided further, however, that this Section
4.10(c) shall not apply to Liens created as permitted by Section 4.03(3).
(d) The limitations set forth in this Section 4.10 shall not
be applicable from and after the time that all the Collateral shall have been
released from the Lien of this Indenture pursuant to Article XI.
SECTION 4.11. Holdings Notes Redemption; LYONS Retirement. The
Company shall cause (i) Holdings to redeem all of the Holdings Notes by no later
than July 31, 1997, and (ii) Worldwide to redeem or otherwise retire all of the
LYONS by no later than June 10, 1998; provided that, in each case, no Triggering
Event shall have occurred and be continuing.
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54
SECTION 4.12. Compliance Certificate. The Company shall
deliver to the Trustee within 120 days after the end of each fiscal year of the
Company an Officers' Certificate stating that in the course of the performance
by the signers of their duties as Officers of the Company they would normally
have knowledge of any Default by the Company and whether or not the signers know
of any Default that occurred during such period. If they do, the certificate
shall describe the Default, its status and what action the Company is taking or
proposes to take with respect thereto. The Company also shall comply with TIA
ss. 314(a)(4). The Trustee shall have no responsibility or obligation to monitor
the Company's compliance with its obligations set forth in Sections 4.03, 4.04,
4.05, 4.06, 4.07, 4.08(a), (b), (c), (d) (only with respect to the Company's
obligation to pay the purchase price to the Holders entitled thereto) and (e),
4.09, 4.10 and 4.11 or whether a Change of Control has occurred.
SECTION 4.13. Further Instruments and Acts. Upon request of
the Trustee, the Company will 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.
ARTICLE V
Successor Company
SECTION 5.01. When Company May Merge or Transfer Assets. (a)
The Company shall not consolidate with or merge with or into, or convey,
transfer or lease all or substantially all its assets to, any Person, unless:
(i) the resulting, surviving or transferee Person (if not the
Company) shall be a Person organized and existing under the laws of the
United States of America, any State thereof or the District of Columbia
and such Person shall expressly assume, by an indenture supplemental
hereto, executed and delivered to the Trustee, in form satisfactory to
the Trustee, all the obligations of the Company under the Securities
and this Indenture;
(ii) except in the case of either Merger, immediately after
giving effect to such transaction (and treating any Debt which becomes
an obligation of the resulting, surviving or transferee Person or any
of its Subsidiaries as a result of such transaction as having been
Issued by such Person or such Subsidiary at the time of such
transaction), no Default shall have occurred and be continuing;
(iii) except in the case of either Merger, immediately after
giving effect to such transaction, the resulting, surviving or
transferee Person shall
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55
have a Consolidated Net Worth in an amount which is not less than the
Consolidated Net Worth of the Company immediately prior to such
transaction; and
(iv) the Company 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 indenture (if
any) comply with this Indenture.
(b) The resulting, surviving or transferee Person shall be the
successor Company and shall succeed to, and be substituted for, and may exercise
every right and power of, the Company under this Indenture, and thereafter,
except in the case of a lease, the Company shall be discharged from all
obligations and covenants under the Indenture and the Securities.
(c) Following consummation of the Holdings Merger, the
provisions of Article IV restricting the activities of Holdings shall not be
applicable to the surviving corporation. Following consummation of the Worldwide
Merger, the provisions of Article IV restricting the activities of Worldwide
shall not be applicable to the surviving corporation.
ARTICLE VI
Defaults and Remedies
SECTION 6.01. Events of Default. An "Event of Default" occurs
if:
(1) the Company defaults in any payment of interest, if any,
on any Security when the same becomes due and payable and such default continues
for a period of 30 days;
(2) the Company (i) defaults in the payment of the Principal
of any Security when the same becomes due and payable at its Stated Maturity,
upon redemption, upon declaration or otherwise or (ii) fails to redeem or
purchase Securities when required pursuant to this Indenture or the Securities;
(3)(i) the Company fails to comply with Section 5.01, (ii) the
Company fails to comply with Section 4.10(a) or 4.11 or (iii) the Trustee shall
fail to have a perfected security interest in the Collateral;
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56
(4) the Company fails to comply with Section 4.02, 4.03, 4.04,
4.05, 4.06, 4.07, 4.08 (other than a failure to purchase Securities), 4.09 or
4.10(b) and such failure continues for 30 days after the notice specified below;
(5) the Company fails to comply with any of its agreements in
the Securities or this Indenture or the Escrow Agreement (other than those
referred to in (1), (2), (3) or (4) above) and such failure continues for, or
any of the Company's or Worldwide's representations and warranties set forth in
Section 11.03 proves to have been materially false at the time it was made and
is not cured within, 60 days after the notice specified below;
(6) Debt of the Company or any Significant Subsidiary is not
paid within any applicable grace period after final maturity or is accelerated
by the holders thereof because of a default, the total principal amount of the
portion of such Debt that is unpaid or accelerated exceeds $25,000,000 or its
foreign currency equivalent and such default continues for 5 days after the
notice specified below;
(7) the Company or any Significant Subsidiary pursuant to or
within the meaning of any Bankruptcy Law:
(A) commences a voluntary case;
(B) consents to the entry of an order for relief against it in
an involuntary case;
(C) consents to the appointment of a Custodian 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 comparable action under any foreign laws
relating to insolvency;
(8) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(A) is for relief against the Company or any Significant
Subsidiary in an involuntary case;
(B) appoints a Custodian of the Company or any Significant
Subsidiary or for any substantial part of its property; or
(C) orders the winding up or liquidation of the Company or any
Significant Subsidiary;
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57
or any similar relief is granted under any foreign laws and the order or decree
remains unstayed and in effect for 60 days;
(9) any judgment or decree for the payment of money in excess
of $25,000,000 is entered against the Company or any Significant Subsidiary and
is not discharged and either (A) an enforcement proceeding has been commenced by
any creditor upon such judgment or decree or (B) there is a period of 60 days
following the entry of such judgment or decree during which such judgment or
decree is not discharged, waived or the execution thereof stayed and, in the
case of (B), such default continues for 10 days after the notice specified
below; or
(10) Worldwide fails to pay when due the purchase price of
LYONS tendered to it by and at the option of the holders thereof pursuant to the
terms of the LYONS Indenture and the total purchase price of such LYONS that is
unpaid exceeds $25 million.
The foregoing will constitute Events of Default whatever the
reason for any such Event of Default and whether it is voluntary or involuntary
or is effected by operation of law or pursuant to any judgment, decree or order
of any court or any order, rule or regulation of any administrative or
governmental body.
The term "Bankruptcy Law" means Title 11, United States Code,
or any similar Federal or state law for the relief of debtors. The term
"Custodian" means any receiver, trustee, assignee, liquidator, custodian or
similar official under any Bankruptcy Law.
A Default under clause (4), (5), (6) or (9)(B) is not an Event
of Default until the Trustee or the Holders of at least 25% in Principal Amount
at Maturity of the Securities notify the Company of the Default and the Company
does not cure such Default within the time specified after receipt of such
Notice. Such Notice must specify the Default, demand that it be remedied and
state that such notice is a "Notice of Default".
The Company shall deliver to the Trustee, within 30 days after
the occurrence thereof, written notice in the form of an Officers' Certificate
of any event which with the giving of notice and the lapse of time would become
an Event of Default under clause (4), (5), (6) or (9)(B), its status and what
action the Company is taking or proposes to take with respect thereto.
SECTION 6.02. Acceleration. If an Event of Default (other than
an Event of Default specified in Section 6.01(7) or (8) with respect to the
Company) occurs and is continuing, the Trustee by notice to the Company or the
Holders of at
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58
least 25% in Principal Amount at Maturity of the Securities by notice to the
Company and the Trustee may declare the Accreted Value of and accrued interest
(if any) on all the Securities as of the date of such declaration (collectively,
the "Default Amount") to be due and payable immediately. If an Event of Default
specified in Section 6.01(7) or (8) with respect to the Company occurs, the
Default Amount on all the Securities as of the date of such Event of Default
shall ipso facto become and be immediately due and payable without any
declaration or other act on the part of the Trustee or any Securityholders. The
Holders of a majority in Principal Amount at Maturity of the Securities by
notice to the Trustee may rescind an acceleration and its consequences 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 or
interest that has become due solely because of acceleration. No such rescission
shall affect any subsequent Default or impair any right consequent thereto.
SECTION 6.03. Other Remedies. If an Event of Default occurs
and is continuing, the Trustee may pursue any available remedy to collect the
payment of Principal of or interest on the Securities or to enforce the
performance of any provision of the Securities or this Indenture.
The Trustee may maintain a proceeding even if it does not
possess any of the Securities or does not produce any of them in the proceeding.
A delay or omission by the Trustee or any Securityholder in exercising any right
or remedy accruing upon an Event of Default shall not impair the right or remedy
or constitute a waiver of or acquiescence in the Event of Default. No remedy is
exclusive of any other remedy. All available remedies are cumulative.
SECTION 6.04. Waiver of Past Defaults. The Holders of a
majority in Principal Amount at Maturity of the Securities by notice to the
Trustee and the Company may waive an existing Default and its consequences
except (i) a Default in the payment of the Principal of or interest on a
Security or (ii) a Default in respect of a provision that under Section 9.02
cannot be amended without the consent of each Securityholder affected. 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 a majority
in Principal Amount at Maturity of the Securities 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, subject to Section 7.01, that the
Trustee determines is unduly prejudicial to the rights of other Securityholders
or would involve the Trustee in personal liability; provided, however, that the
Trustee may take any other action deemed proper by the Trustee that is not
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59
inconsistent with such direction. Prior to taking any action hereunder, 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 Securityholder may not
pursue any remedy with respect to this Indenture or the Securities unless:
(1) the Holder gives to the Trustee written notice stating
that an Event of Default is continuing;
(2) the Holders of at least 25% in Principal Amount at
Maturity of the Securities make a written request to the Trustee to
pursue the remedy;
(3) such Holder or Holders offer to the Trustee reasonable
security or indemnity against any loss, liability or expense;
(4) the Trustee does not comply with the request within 60
days after receipt of the request and the offer of security or
indemnity; and
(5) the Holders of a majority in Principal Amount at Maturity
of the Securities do not give the Trustee a direction inconsistent with
the request during such 60-day period.
A Securityholder may not use this Indenture to prejudice the
rights of another Securityholder or to obtain a preference or (except as
expressly provided herein) priority over another Securityholder.
SECTION 6.07. Rights of Holders To Receive Payment. Notwith
standing any other provision of this Indenture, the right of any Holder to
receive payment of Principal of and interest, if any, on the Securities held by
such Holder, on or after the respective due dates expressed in the Securities,
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(1) or (2)
occurs and is continuing, the Trustee may recover judgment in its own name and
as trustee of an express trust against the Company for the whole amount of
Principal and interest, if any, remaining unpaid (together with interest on such
unpaid interest to the extent lawful) and the amounts provided for in Section
7.07.
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SECTION 6.09. Trustee May File Proofs of Claim. The Trustee
may, but shall have no obligation to, 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 Securityholders allowed in any judicial proceedings relative to
the Company, its creditors or its property and, unless prohibited by law or
applicable regulations, may, but shall have no obligation to, vote on behalf of
the Holders 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 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 VI, 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 of First Priority Initial Notes and First
Priority Exchange Notes for amounts due and unpaid on such Securities
for Principal and interest, if any, ratably, without preference or
priority of any kind, according to the amounts due and payable on such
Securities for Principal and interest, if any, respectively;
THIRD: to Holders of Second Priority Initial Notes and Second
Priority Exchange Notes for amounts due and unpaid on such Securities
for Principal and interest, if any, ratably, without preference or
priority of any kind, according to the amounts due and payable on such
Securities for Principal and interest, if any, respectively; and
FOURTH: to the Company.
The Trustee may fix a record date and payment date for any
payment to Securityholders pursuant to this Section. At least 15 days before
such record date, the Company shall mail to each Securityholder and the Trustee
a notice that states the record date, the payment date (which shall be not less
than one Business Day following the record date) and amount to be paid.
SECTION 6.11. Undertaking for Costs. In any suit for the
enforcement of any right or remedy under this Indenture or in any suit against
the Trustee for any action taken or omitted by it as Trustee, a court in its
discretion may require the filing
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61
by any party litigant in the suit of an undertaking to pay the costs of the
suit, and the court in its discretion may assess reasonable costs, including rea
sonable attorneys' fees, against any party litigant in the suit, having due
regard to the merits and good faith of the claims or defenses made by the party
litigant. This Section does not apply to a suit by the Trustee, a suit by a
Holder for the enforcement of the payment of the Principal of, or interest (if
any) on, any Security on or after the respective due dates expressed in such
Security or a suit by Holders of more than 10% in Principal Amount at Maturity
of the Securities.
SECTION 6.12. Waiver of Stay or Extension Laws. The Company
(to the extent it may lawfully do so) shall not at any time insist upon, or
plead, or in any manner whatsoever claim or take the benefit or advantage of,
any stay or extension law wherever enacted, now or at any time hereafter in
force, which may affect the covenants or the performance of this Indenture; and
the Company (to the extent that it may lawfully do so) hereby expressly waives
all benefit or advantage of any such law, and shall not hinder, delay or impede
the execution of any power herein granted to the Trustee, but shall suffer and
permit the execution of every such power as though no such law had been enacted.
ARTICLE VII
Trustee
SECTION 7.01. Duties of Trustee. (a) If an Event of Default
has occurred and is continuing, the Trustee shall exercise the rights and powers
vested in it by this Indenture and use the same degree of care and skill in its
exercise as a prudent man would exercise or use under the circumstances in the
conduct of such man's own affairs.
(b) Except during the continuance of an Event of Default:
(1) the Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture and no
implied covenants or obligations shall be read into this Indenture
against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements of
this Indenture. However, in the case of any such opinions or
certificates which by any provision hereof are specifically required to
be furnished to the Trustee, the Trustee shall examine
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62
the certificates and opinions to determine whether or not they conform
to the requirements of this Indenture.
(c) No provision of this Indenture shall be construed to
relieve the Trustee from liability for its own negligent action, its own
negligent failure to act or its own wilful misconduct, except that:
(1) this paragraph does not limit the effect of paragraph (b)
of this Section;
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Trust Officer unless it is proved that the
Trustee was negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action
it takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.05.
(d) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Company.
(e) Money held in trust by the Trustee need not be segregated
from other funds except to the extent required by law.
(f) 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 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.
(g) Every provision of this Indenture relating in any way to
the Trustee or its conduct or affecting the liability of or affording protection
to the Trustee shall be subject to the provisions of each paragraph of this
Section and Section 7.02 (unless expressly not applicable) and to the provisions
of the TIA.
SECTION 7.02. Rights of Trustee. (a) The Trustee may 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 Officers' Certificate or an Opinion of Counsel. The Trustee shall not
be liable for any
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63
action it takes or omits to take in good faith in reliance on the Officers'
Certificate or Opinion of Counsel.
(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) 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; provided, however, that the Trustee's conduct does not
constitute wilful misconduct, negligence or bad faith.
(e) The Trustee may consult with counsel of its selection, and
the advice or opinion of counsel with respect to legal matters relating to this
Indenture and the Securities 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 such
counsel.
(f) The Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless such Holders
shall have offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which might be incurred by it in compliance with
such request or direction.
SECTION 7.03. Individual Rights of Trustee. The Trustee in its
individual or any other capacity may become the owner or pledgee of Securities
and may otherwise deal with the Company 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 or the Securities, it shall not be accountable for the Company's
use of the Securities or of the proceeds from the Securities, and it shall not
be responsible for any statement in the Indenture or in any document Issued in
connection with the sale of the Securities or in the Securities 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
Securityholder notice of the Default within 90 days after it occurs. Except in
the case of a Default in payment of Principal of or interest, if any, on any
Security, the Trustee
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64
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
Securityholders.
SECTION 7.06. Reports by Trustee to Holders. The Trustee shall
transmit to Holders such reports concerning the Trustee and its actions under
this Indenture as may be required pursuant to the TIA at the times and in the
manner provided pursuant thereto. To the extent that any such report is required
by the TIA with respect to any 12-month period, such report shall cover the
12-month period ending each May 15 and shall be transmitted by the next
succeeding each August 15. The Trustee also shall comply with TIA ss. 313(b).
A copy of each report at the time of its mailing to
Securityholders shall be filed with the SEC and each stock exchange (if any) on
which the Securities are listed. The Company agrees to notify promptly the
Trustee whenever the Securities become listed on any stock exchange and of any
delisting thereof.
SECTION 7.07. Compensation and Indemnity. The Company shall
pay to the Trustee from time to time such compensation as shall be agreed to in
writing from time to time by the Company and the Trustee for its services. The
Trustee's compensation shall not be limited by any law on compensation of a
trustee of an express trust. The Company shall reimburse the Trustee upon
request for all 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 expenses,
disbursements and advances of the Trustee's agents, counsel, accountants and
experts. The Company shall indemnify the Trustee and each of the Trustee's
agents, officers, directors, employees and stockholders (each an "indemnitee")
against any and all loss, liability, damage, claim or expense (including
attorneys' fees and expenses) incurred by each indemnitee in connection with the
acceptance or administration of this trust and the performance of its duties
hereunder. Each indemnitee shall notify the Company promptly of any claim for
which it may seek indemnity. Failure by the Trustee to so notify the Company
shall not relieve the Company of its obligations hereunder. The Company shall
defend the claim and any or all indemnitees may have separate counsel and the
Company shall pay the fees and expenses of any such counsel. The Company need
not reimburse any expense or indemnify against any loss, liability or expense
incurred by any indemnitee through its own wilful misconduct, negligence or bad
faith.
To secure the Company's payment obligations in this Section,
the Trustee shall have a lien prior to the Securities on all money or property
held or collected by the Trustee other than money or property held in trust to
pay Principal of and interest, if any, on particular Securities.
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65
The Company's payment obligations pursuant to this Section
shall survive the discharge of this Indenture. When the Trustee incurs expenses
after the occurrence of a Default specified in Section 6.01(7) or (8) with
respect to the Company, the expenses are intended to constitute expenses of
administration under the Bankruptcy Law.
SECTION 7.08. Replacement of Trustee. The Trustee may resign
at any time by so notifying the Company. The Holders of a majority in Principal
Amount at Maturity of the Securities may remove the Trustee by so notifying the
Trustee and may appoint a successor Trustee. The Company shall remove the
Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or other public officer takes charge of the
Trustee or its property; or
(4) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns, is removed by the Company, is removed
by Holders of a majority in Principal Amount at Maturity of the Securities and
they do not promptly appoint a successor Trustee, or if a vacancy exists in the
office of Trustee for any reason (the Trustee in such event being referred to
herein as the retiring Trustee), the Company shall promptly appoint a successor
Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. 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 Securityholders. 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 accept appointment within 60
days after the retiring Trustee tenders its resignation or is removed, the
retiring Trustee, the Company or the Holders of a majority in Principal Amount
at Maturity of the Securities may petition any court of competent jurisdiction
for the appointment of a successor Trustee.
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If the Trustee fails to comply with Section 7.10, any
Securityholder 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 Company's 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 without any
further act shall be the successor Trustee.
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 Securities 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 Securities so
authenticated; and in case at that time any of the Securities shall not have
been authenticated, any successor to the Trustee may authenticate such
Securities either in the name of any predecessor hereunder or in the name of the
successor to the Trustee; and in all such cases such certificates shall have the
full force which it is anywhere in the Securities or in this Indenture provided
that the certificate of the Trustee shall have.
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. The Trustee shall comply with TIA
ss. 310(b); provided, however, 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 securities of the Company 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
Company. 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 therein.
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ARTICLE VIII
Discharge of Indenture; Defeasance
SECTION 8.01. Discharge of Liability on Securities;
Defeasance. (a) When (i) the Company delivers to the Trustee all Outstanding
Securities (other than Securities replaced pursuant to Section 2.07) for
cancellation or (ii) all Outstanding Securities have become due and payable and
the Company irrevocably deposits with the Trustee funds sufficient to pay at
maturity all Outstanding Securities, including interest thereon, if any (other
than Securities replaced pursuant to Section 2.07), and if in either case the
Company pays all other sums payable hereunder by the Company, then this
Indenture shall, subject to Sections 8.01(c) and 8.06, cease to be of further
effect. The Trustee shall acknowledge satisfaction and discharge of this
Indenture on demand of the Company accompanied by an Officers' Certificate and
an Opinion of Counsel as to the satisfaction of all conditions to such
satisfaction and discharge of this Indenture and at the cost and expense of the
Company.
(b) Subject to Sections 8.01(c), 8.02 and 8.06, the Company at
any time may terminate (i) all its obligations under the Securities and this
Indenture ("legal defeasance option") or (ii) its obligations under Sections
4.02, 4.03, 4.04, 4.05, 4.06, 4.07, 4.08, 4.09, 4.10, 4.11, 5.01(iii) and
Article XI and Guarantor's obligations under Articles X and XI and the operation
of Section 6.01(3)(ii) and (iii), 6.01(4), 6.01(6), 6.01(7) (with respect to
Significant Subsidiaries only), 6.01(8) (with respect to Significant
Subsidiaries only), 6.01(9) and 6.01(10) ("covenant defeasance option"). The
Company may exercise its legal defeasance option notwithstanding its prior
exercise of its covenant defeasance option.
If the Company exercises its legal defeasance option, payment
of the Securities may not be accelerated because of an Event of Default. If the
Company exercises its covenant defeasance option, payment of the Securities may
not be accelerated because of an Event of Default specified in 6.01(3)(ii) and
(iii), 6.01(4), 6.01(6), 6.01(7) (with respect to Significant Subsidiaries
only), 6.01(8) (with respect to Significant Subsidiaries only), 6.01(9) and
6.01(10) or because of the failure of the Company to comply with clause (iii) of
Section 5.01 or with Article XI or because of Guarantor's failure to comply with
Article X or XI.
Upon satisfaction of the conditions set forth herein and upon
request of the Company, the Trustee shall acknowledge in writing the discharge
of those obliga tions that the Company terminates.
(c) Notwithstanding clauses (a) and (b) above, the Company's
obligations in Sections 2.03, 2.04, 2.05, 2.06, 2.07, 7.07, 7.08, 8.04, 8.05 and
8.06
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shall survive until the Securities have been paid in full. Thereafter, the
Company's obligations in Sections 7.07, 8.04 and 8.05 shall survive.
SECTION 8.02. Conditions to Defeasance. The Company may
exercise its legal defeasance option or its covenant defeasance option only if:
(1) the Company irrevocably deposits in trust with the Trustee
money or U.S. Government Obligations for the payment of Principal and
interest, if any, on the Securities to maturity or redemption, as the
case may be (it being understood that any U.S. Government Obligations
previously deposited with the Trustee pursuant to Section 11.05(g) may
be designated for this purpose);
(2) the Company delivers to the Trustee a certificate from a
nationally recognized firm of independent accountants expressing their
opinion that the payments of principal and interest when due and
without reinvestment on the deposited U.S. Government Obligations plus
any deposited money without investment will provide cash at such times
and in such amounts as will be sufficient to pay Principal and
interest, if any, when due on all the Secur ities to maturity or
redemption, as the case may be;
(3) 123 days pass after the deposit is made and during the
123-day period no Default specified in Section 6.01(7) or (8) with
respect to the Company occurs which is continuing at the end of the
period; provided, however, that the foregoing condition need not be met
if at the time of the deposit, the Company delivers to the Trustee
either (x) an Officers' Certificate to the effect set forth in clause
(y)(II) below together with an Opinion of Counsel (which may rely on
such Officers' Certificate as to the matters stated therein) to the
effect that such deposit would not constitute a preference that could
be avoided under Section 547 of Title 11, United States Code,
notwithstanding that 123 days have not passed since the date of the
deposit, or (y) an Officers' Certificate to the effect that the Market
Value, determined as of the date of the deposit, of the Collateral (I)
is greater than the Accreted Value of the then-Outstanding Securities
at the end of such 123-day period and (II) is greater than the fair
market value, determined as of the date of deposit, of the money or
U.S. Government Obligations being deposited;
(4) no Default has occurred and is continuing on the date of
such deposit and after giving effect thereto;
(5) the deposit does not constitute a default under any other
agreement binding on the Company;
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(6) the Company delivers to the Trustee an Opinion of Counsel
to the effect that the trust resulting from the deposit does not
constitute, or is qualified as, a regulated investment company under
the Investment Company Act of 1940;
(7) in the case of the legal defeasance option, the Company
shall have delivered to the Trustee an Opinion of Counsel stating that
(i) the Company 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 the applicable Federal income tax
law, in either case to the effect that, and based thereon such Opinion
of Counsel shall confirm that, the Securityholders will not recognize
income, gain or loss for Federal income tax purposes as a result of
such defeasance and will be subject to Federal income tax on the same
amounts, in the same manner and at the same times as would have been
the case if such defeasance had not occurred;
(8) in the case of the covenant defeasance option, the Company
shall have delivered to the Trustee an Opinion of Counsel to the effect
that the Securityholders will not recognize income, gain or loss for
Federal income tax purposes as a result of such covenant defeasance and
will be subject to Federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if such
covenant defeasance had not occurred; and
(9) the Company delivers to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent to the defeasance and discharge of the Securities as
contemplated by this Article VIII have been complied with.
Notwithstanding the foregoing provisions of this Section, the
conditions set forth in the foregoing paragraphs (2), (3), (4), (5), (6), (7)
and (8) need not be satisfied so long as, at the time the Company makes the
deposit described in paragraph (1), (i) no Default under Section 6.01(1),
6.01(2), 6.01(7) or 6.01(8) has occurred and is continuing on the date of such
deposit and after giving effect thereto and (ii) either (x) a notice of
redemption has been mailed pursuant to Section 3.03 providing for redemption of
all the Securities 40 days after such mailing and the provisions of Section 3.01
with respect to such redemption shall have been complied with or (y) the Stated
Maturity of the Securities will occur within 40 days. If the conditions in the
preceding sentence are satisfied, the Company shall be deemed to have exercised
its covenant defeasance option.
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Before or after a deposit, the Company may make arrangements
satisfactory to the Trustee for the redemption of Securities at a future date in
accordance with Article III.
SECTION 8.03. Application of Trust Money. The Trustee shall
hold in trust money or U.S. Government Obligations deposited with it pursuant to
this Article VIII. It shall apply the deposited money and the money from U.S.
Government Obligations through the Paying Agent and in accordance with this
Indenture to the payment of Principal of and interest, if any, on the
Securities.
SECTION 8.04. Repayment to Company. The Trustee and the Paying
Agent shall promptly turn over to the Company upon request any excess money or
securities held by them at any time.
Subject to any applicable abandoned property law, the Trustee
and the Paying Agent shall pay to the Company upon request any money held by
them for the payment of Principal or interest, if any, that remains unclaimed
for two years, and, thereafter, Securityholders entitled to the money must look
to the Company for payment as general creditors.
SECTION 8.05. Indemnity for Government Obligations. The
Company shall pay and shall indemnify the Trustee against any tax, fee or other
charge 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 any money or U.S. Government Obligations in accordance with this
Article VIII by reason of any legal proceeding or by reason of any order or
judgment of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, the Company's obligations under this
Indenture and the Securities shall be revived and reinstated as though no
deposit had occurred pursuant to this Article VIII until such time as the
Trustee or Paying Agent is permitted to apply all such money or U.S. Government
Obligations in accordance with this Article VIII; provided, however, that, if
the Company has made any payment of interest, if any, on or Principal of any
Securities because of the reinstatement of its obligations, the Company shall be
subrogated to the rights of the Holders of such Securities to receive such
payment from the money or U.S. Government Obligations held by the Trustee or
Paying Agent.
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ARTICLE IX
Amendments
SECTION 9.01. Without Consent of Holders. The Company and the
Trustee may amend this Indenture or the Securities without notice to or consent
of any Securityholder:
(1) to cure any ambiguity, omission, defect or inconsistency;
(2) to comply with Article V;
(3) to provide for uncertificated Securities in addition to or
in place of certificated Securities; provided, however, that the
uncertificated Securities are Issued in registered form for purposes of
Section 163(f) of the Code or in a manner such that the uncertificated
Securities are described in Section 163(f)(2)(B) of the Code;
(4) to add Guarantees with respect to the Securities or to
secure (or provide additional security for) the Securities;
(5) to add to the covenants of the Company for the benefit of
the Holders or to surrender any right or power herein conferred upon
the Company;
(6) to provide for issuance of the Exchange Notes, which will
have terms substantially identical in all material respects to the
Initial Notes (except that the cash interest provisions and transfer
restrictions contained in the Initial Notes will be modified or
eliminated, as appropriate), and which will be treated together with
any Outstanding Initial Notes, as a single issue of securities;
(7) to comply with any requirements of the SEC in connection
with qualifying this Indenture under the TIA or to otherwise comply
with the TIA; or
(8) to make any change that does not adversely affect the
rights of any Securityholder.
After an amendment under this Section becomes effective, the
Company shall mail to Securityholders a notice briefly describing such
amendment. The failure to give such notice to all Securityholders, or any defect
therein, shall not impair or affect the validity of an amendment under this
Section.
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SECTION 9.02. With Consent of Holders. The Company and the
Trustee may amend this Indenture or the Securities without notice to any
Securityholder but with the written consent of the Holders of at least a
majority in Principal Amount at Maturity of the Outstanding Securities. However,
without the consent of each Securityholder affected, an amendment may not:
(1) reduce the Principal Amount at Maturity of Securities
whose Holders must consent to an amendment;
(2) reduce the rate of or extend the time for payment of
interest, if any, on any Security;
(3) reduce the Principal of or extend the Stated Maturity of
any Security or reduce the Accreted Value, Put Amount, Due Amount or
Default Amount of any Security;
(4) reduce the premium or amount payable upon the redemption
of any Security or change the time at which any Security may be
redeemed in accordance with Article III;
(5) make any Security payable in money other than that stated
in the Security;
(6) make any change in Article XI that adversely affects such
Securityholder;
(7) make any change in Section 4.08 relating to the date by
which the Company must purchase, or in the obligation of the Company to
purchase, tendered shares, the definition of Change of Control, 6.04 or
6.07 or the second sentence of this Section; or
(8) make any change to paragraph 6 of the Securities or the
definition of Triggering Event.
It shall not be necessary for the consent of the Holders under
this Section to approve the particular form of any proposed amendment, but it
shall be sufficient if such consent approves the substance thereof.
After an amendment under this Section becomes effective, the
Company shall mail to Securityholders a notice briefly describing such
amendment. The failure to give such notice to all Securityholders, or any defect
therein, shall not impair or affect the validity of an amendment under this
Section.
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SECTION 9.03. Compliance with Trust Indenture Act. Every amend
ment to this Indenture or the Securities shall comply with the TIA as then in
effect.
SECTION 9.04. Revocation and Effect of Consents and Waivers.
Any amendment to this Indenture or the Securities shall become effective in
accordance with its terms when executed and delivered by the Company and the
Trustee provided that the Company has received the requisite consents prior
thereto. The Company shall not be obligated to execute any such amendment
regardless of whether such consents have been received. Any waiver shall become
effective when the requisite consents have been received or such later time as
the Company may elect by notice to the Trustee. A consent to an amendment or a
waiver by a Holder of a Security shall bind the Holder and every subsequent
Holder of that Security or portion of the Security that evidences the same debt
as the consenting Holder's Security, even if notation of the consent or waiver
is not made on the Security. However, any such Holder or subsequent Holder may
revoke the consent or waiver as to such Holder's Security or portion of the
Security if the Trustee receives the notice of revocation prior to the time that
the Company receives the requisite number of consents to such proposed amendment
or waiver. After an amendment or waiver becomes effective, it shall bind every
Securityholder. A consent to any amendment or waiver hereunder by any Holder
given in connection with a tender of such Holder's Securities shall not be
rendered invalid by such tender.
The Company may, but shall not be obligated to, fix a record
date for the purpose of determining the Securityholders 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
Securityholders 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 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 Securities. If an
amendment changes the terms of a Security, the Trustee may require the Holder of
the Security to deliver it to the Trustee. The Trustee may place an appropriate
notation on the Security regarding the changed terms and return it to the
Holder. Alternatively, if the Company or the Trustee so determines, the Company
in exchange for the Security shall Issue and the Trustee shall authenticate a
new Security that reflects the changed terms. Failure to make the appropriate
notation or to Issue a new Security shall not affect the validity of such
amendment.
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SECTION 9.06. Trustee To Sign Amendments. The Trustee shall
sign any amendment authorized pursuant to this Article IX if the amendment does
not adversely affect the rights, duties, liabilities or immunities of the
Trustee. If it does, the Trustee may but need not sign it. In signing such
amendment the Trustee shall be entitled to receive indemnity reasonably
satisfactory to it and to receive, and (subject to Section 7.01) shall be fully
protected in relying upon, an Officers' Certificate and an Opinion of Counsel
stating that such amendment is authorized or permitted by this Indenture.
SECTION 9.07. Payment for Consent. Neither the Company, any
Affiliate of the Company nor any Subsidiary 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 terms or provisions of this Indenture or the Securities
unless such consideration is offered to be paid or agreed to be paid to all
Holders which so consent, waive or agree to amend in the time frame set forth in
solicitation documents relating to such consent, waiver or amendment.
ARTICLE X
Non-Recourse Guaranty
SECTION 10.01. Guaranty. The Guarantor, as primary obligor and
not merely as surety, hereby irrevocably and unconditionally guarantees the
punctual payment when due, whether at Stated Maturity, by acceleration or
otherwise, of all Obligations of the Company now or hereafter existing under
this Indenture whether for Principal of or interest (if any) on the Securities,
expenses, indemnification or otherwise (all such Obligations guaranteed hereby
by the Guarantor being the "Guaranteed Obligations"). The guaranty of the
Guarantor under this Article X is herein referred to as this "Guaranty".
Notwithstanding anything herein to the contrary, the
Guarantor's liability under this Article X and Article XI shall be limited to
the Coleman Collateral provided by it and any Substitute Collateral provided by
it and the proceeds realized by the Trustee upon the sale or other realization
of such Coleman Collateral and Substitute Collateral and pledged pursuant to
Article XI, it being understood that it is the intention of the foregoing that
this Guaranty otherwise is a nonrecourse obligation of the Guarantor and that
the Trustee's and the Holders' rights to recover against the Guarantor hereunder
shall be limited solely to the Coleman Collateral provided by it and any
Substitute Collateral provided by it and the proceeds realized by the Trustee
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upon the sale or other realization of such Coleman Collateral and Substitute
Collateral and pledged pursuant to Article XI.
Subject to the limited recourse set forth in the immediately
preceding paragraph, the Guarantor agrees to pay, in addition to the amount
stated above, any and all expenses (including reasonable counsel fees and
expenses) incurred by the Trustee or the Holders in enforcing any rights under
this Article X with respect to the Guarantor.
Without limiting the generality of the foregoing, this
Guaranty guarantees, to the extent provided herein, the payment of all amounts
which constitute part of the Guaranteed Obligations and would be owed by the
Company under this Indenture or the Securities but for the fact that they are
unenforceable or not allowable due to the existence of a bankruptcy,
reorganization or similar proceeding involving the Company.
SECTION 10.02. Guaranty Absolute. This Guaranty is
irrevocable, absolute, present and unconditional. The Guarantor guarantees that
the Guaranteed Obligations will be paid strictly in accordance with the terms of
this Indenture, regardless of any law, regulation or order now or hereafter in
effect in any jurisdiction affecting any of such terms or the rights of the
Trustee or the Holders with respect thereto. The obligations of the Guarantor
under this Guaranty are independent of the Guaranteed Obligations, and a
separate action or actions may be brought and prosecuted against the Guarantor
to enforce this Guaranty, irrespective of whether any action is brought against
the Company or any other guarantor or whether the Company or any other guarantor
is joined in any such action or actions. The liability of the Guarantor under
this Guaranty shall be absolute and unconditional irrespective of:
(a) any lack of validity or enforceability of this Indenture
or the Securities with respect to the Company or any agreement or
instrument relating thereto;
(b) any change in the time, manner or place of payment of, or
in any other term of, all or any of the Guaranteed Obligations, or any
other amendment or waiver of or any consent to departure from this
Indenture, including any increase in the Guaranteed Obligations
resulting from the extension of additional credit to the Company or
otherwise;
(c) the failure to give notice to the Guarantor of the
occurrence of a Default under the provisions of this Indenture or the
Securities;
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(d) any taking, exchange, release or nonperfection of any
Collateral, or any taking, release or amendment or waiver of or consent
to departure from any other guaranty, for all or any of the Guaranteed
Obligations;
(e) any manner of application of Collateral, or proceeds
thereof, to all or any of the Guaranteed Obligations, or any manner of
sale or other disposition of any Collateral or any other assets of the
Company;
(f) any failure, omission, delay by or inability on the part
of the Trustee or the Holders to assert or exercise any right, power or
remedy conferred on the Trustee or the Holders in this Indenture or the
Securities;
(g) any change in the corporate structure, or termination,
dissolution, consolidation or merger of the Company or any guarantor
with or into any other entity, the voluntary or involuntary
liquidation, dissolution, sale or other disposition of all or
substantially all the assets of the Company or any Guarantor, the
marshaling of the assets and liabilities of the Company or any
guarantor, the receivership, insolvency, bankruptcy, assignment for the
benefit of creditors, reorganization, arrangement, composition with
creditors, or readjustment of, or other similar proceedings affecting
the Company or any guarantor, or any of the assets of any of them;
(h) the assignment of any right, title or interest of the
Trustee or any Holder in this Indenture or the Securities to any other
Person; or
(i) any other event or circumstance (including any statute of
limitations), whether foreseen or unforeseen and whether similar or
dissimilar to any of the foregoing, that might otherwise constitute a
defense available to, or a discharge of, the Company or a guarantor,
other than payment in full of the Guaranteed Obligations; it being the
intent of the Guarantor that its obligations hereunder shall not be
discharged except by payment of all amounts owing pursuant to this
Indenture or the Securities, subject to the second paragraph of Section
10.01.
This Guaranty shall continue to be effective or be reinstated,
as the case may be, if at any time any payment or performance with respect to
any of the Guaranteed Obligations is rescinded or must otherwise be returned by
the Trustee, any Holder or any other Person upon the insolvency, bankruptcy or
reorganization of the Company or otherwise, all as though such payment or
performance had not been made or occurred. The obligations of the Guarantor
under this Guaranty shall not be subject to reduction, termination or other
impairment by any set-off, recoupment, counterclaim or defense or for any other
reason.
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SECTION 10.03. Waivers. The Guarantor hereby irrevocably
waives, to the extent permitted by applicable law:
(a) promptness, diligence, notice of acceptance and any other
notice with respect to any of the Guaranteed Obligations and this
Guaranty;
(b) any requirement that the Trustee, any Holder or any other
Person protect, secure, perfect or insure any Lien or any property
subject thereto or exhaust any right or take any action against the
Company or any other Person or any Collateral, or obtain any relief
pursuant to this Indenture or pursue any other available remedy;
(c) all right to trial by jury in any action, proceeding or
counterclaim arising out of or relating to this Indenture or the
Securities;
(d) any defense arising by reason of any claim or defense
based upon an election of remedies by the Trustee or any Holder which
in any manner impairs, reduces, releases or otherwise adversely affects
its subrogation, contribution or reimbursement rights or other rights
to proceed against the Company or any other Person or any Collateral;
and
(e) any duty on the part of the Trustee or any Holder to
disclose to the Guarantor any matter, fact or thing relating to the
business, operation or condition of the Company and its assets now
known or hereafter known by the Trustee or such Holder.
SECTION 10.04. Waiver of Subrogation and Contribution. Until
this Indenture has been discharged, the Guarantor hereby irrevocably waives any
claim or other right which it may now or hereafter acquire against the Company
or any guarantor that arise from the existence, payment, performance or
enforcement of the Guarantor's obligations under this Guaranty, including any
right of subrogation, reimbursement, exoneration, contribution, indemnification,
any right to participate in any claim or remedy of the Trustee or any Holder
against the Company or any guarantor or any Collateral which the Trustee or any
Holder now has or hereafter acquires, whether or not such claim, remedy or right
arises in equity, or under contract, statute or common law, including the right
to take or receive from the Company, directly or indirectly, in cash or other
property or by setoff or in any other manner, payment or security on account of
such claim or other rights. If any amount shall be paid to the Guarantor in
violation of the preceding sentence and the Guaranteed Obligations shall not
have been paid in full, such amount shall be deemed to have been paid to the
Guarantor for the benefit of, and held in trust for the benefit of, the Trustee,
and the Holders, and shall forthwith be paid to the Trustee for the benefit of
the
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Holders to be credited and applied to the Guaranteed Obligations, whether
matured or unmatured, in accordance with the terms of this Indenture. The
Guarantor acknowledges that it will receive direct and indirect benefits from
the financing arrangements contemplated by this Indenture and that the waivers
set forth in this Section 10.04 are knowingly made in contemplation of such
benefits.
SECTION 10.05. Certain Agreements. The Guarantor covenants and
agrees that, as a condition to the acceptability of this Guaranty to the Trustee
and the Holders, the Guarantor will:
(a) comply in all material respects with all applicable laws,
rules, regulations and orders, such compliance to include paying when
due all taxes, assessments and governmental charges imposed upon it or
upon its property except to the extent contested in good faith; and
(b) except as contemplated by the Worldwide Merger, preserve
and maintain its corporate existence, rights (charter and statutory)
and franchises; provided, however, that the Guarantor shall not be
required to preserve any right or franchise if the Board of Directors
of the Guarantor shall determine that the preservation thereof is no
longer desirable in the conduct of the business of the Guarantor and
the loss thereof is not disadvantageous in any material respect to the
Guarantor or the Holders.
SECTION 10.06. No Waiver; Cumulative Remedies. No failure on
the part of the Trustee or any Holder to exercise, and no delay in exercising,
any right hereunder shall operate as a waiver thereof; nor shall any single or
partial exercise of any right hereunder preclude any other or further exercise
thereof or the exercise of any other right. The remedies herein provided are
cumulative and not exclusive of any remedies provided by law. The Trustee and
the Holders shall have all the rights and remedies granted in this Indenture and
available at law or in equity, and these same rights and remedies may be pursued
separately, successively or concurrently against the Company or the Guarantor,
or any Collateral, subject in the case of the Guarantor to the limited recourse
set forth in the second paragraph of Section 10.01.
SECTION 10.07. Continuing Guaranty. This Guaranty is a
continuing guaranty and shall (a) remain in full force and effect until the
earliest of (i) the release of all the Coleman Collateral and all the Substitute
Collateral, if any, provided by the Guarantor pursuant to Article XI, (ii) the
sale or other disposition of all the Coleman Collateral and all the Substitute
Collateral, if any, provided by the Guarantor and the application of the
proceeds thereof in accordance with this Indenture and (iii) the consummation of
the Worldwide Merger, (b) be binding upon the Guarantor and
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(c) enure to the benefit of and be enforceable by the Trustee, the Holders and
their successors, transferees and assigns.
SECTION 10.08. Severability. Any provision of this Article X
which is prohibited, unenforceable or not authorized in any jurisdiction shall,
as to such jurisdiction, be ineffective to the extent of such prohibition,
unenforceability or non- authorization, without invalidating the remaining
provisions hereof or affecting the validity, enforceability or legality of such
provision in any other jurisdiction.
ARTICLE XI
Security And Pledge Of Collateral
SECTION 11.01. Grant of Security Interest. (a) To secure the
full and punctual payment when due and the full and punctual performance of the
Obligations, the Company hereby grants to the Trustee, for the benefit of the
Trustee and the Holders, a security interest in all its right, title and
interest in and to the following property, whether now owned by the Company or
hereafter acquired and whether now existing or hereafter coming into existence,
other than such of the following which are released from the Lien of this
Indenture pursuant to Section 11.05 (the "Holding Company Collateral"):
(i) all the shares of Capital Stock of Holdings, which on the
date hereof are identified on Schedule I hereto (the "Holdings Pledged
Shares");
(ii) all the shares of Capital Stock of Worldwide delivered to
the Trustee pursuant to Section 11.04(i) (the "Worldwide Pledged
Shares");
(iii) all certificates representing any of the Holdings
Pledged Shares or the Worldwide Pledged Shares;
(iv) all dividends, cash, instruments and other property and
proceeds from time to time received, receivable or otherwise
distributed in respect of or in an exchange for any of the Holdings
Pledged Shares or the certificates therefor (collectively with the
Holdings Pledged Shares and the certificates therefor, the "Holdings
Collateral"); and
(v) all dividends, cash, instruments and other property and
proceeds from time to time received, receivable or otherwise
distributed in respect of or in an exchange for any of the Worldwide
Pledged Shares or the certificates
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therefor (collectively with the Worldwide Pledged Shares and the
certificates therefor, the "Worldwide Collateral").
(b) To secure the full and punctual payment when due and the
full and punctual performance of the Obligations and the Guaranteed Obligations,
respectively, each of the Company and Worldwide hereby grants to the Trustee,
for the benefit of the Trustee and the Holders, a security interest in all its
right, title and interest in and to the following property, whether nor owned by
the Company or Worldwide, as the case may be, or thereafter acquired and whether
now existing or hereafter coming into existence, other than such of the
following which are released from the Lien of this Indenture pursuant to Section
11.05 (the "Coleman Collateral"):
(i) the shares of Coleman Common Stock identified on Schedule
I hereto and all other shares of Coleman Common Stock delivered to the
Trustee pursuant to Section 11.04(ii), (iii) or (iv) (the "Coleman
Pledged Shares", which term shall exclude Withdrawn Shares);
(ii) all certificates representing any of the Coleman Pledged
Shares; and
(iii) all dividends, cash, instruments and other property and
proceeds from time to time received, receivable or otherwise
distributed in respect of or in an exchange for any of the foregoing.
(c) To secure the full and punctual payment when due and the
full and punctual performance of the Obligations and the Guaranteed Obligations,
respectively, each of the Company and Worldwide hereby grants to the Trustee,
for the benefit of the Trustee and the Holders, a security interest in all its
right, title and interest in and to the following property, whether now owned by
the Company or Worldwide (as the case may be) or hereafter acquired and whether
now existing or hereafter coming into existence, other than such of the
following which are released from the Lien of this Indenture pursuant to Section
11.05 (the "Substitute Collateral"):
(i) all money and securities deposited with the Trustee
pursuant to Section 11.05(g); and
(ii) all dividends, cash, instruments and other property and
proceeds from time to time received, receivable or otherwise
distributed in respect of or in exchange for the foregoing.
(d) Holding Company Collateral, Coleman Collateral, and
Substitute Collateral are hereinafter collectively referred to as "Collateral,"
and Holdings Pledged
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Shares, Worldwide Pledged Shares and Coleman Pledged Shares are hereinafter
collectively referred to as the "Pledged Shares".
SECTION 11.02. Delivery of Collateral. Any and all
certificates or instruments representing or evidencing Collateral shall be
delivered to and held by or on behalf of the Trustee pursuant hereto and shall
be in suitable form for transfer by delivery, or shall be accompanied by duly
executed instruments of transfer or assignment in blank, all in form and
substance satisfactory to the Trustee. The Trustee shall have the right, at any
time after the occurrence and during the continuance of an Event of Default, in
its discretion and, except in the case of the Coleman Pledged Shares, without
notice to the Company or Worldwide, to transfer to or to register in the name of
the Trustee or any of its nominees any or all of the Collateral. In addition,
the Trustee shall have the right at any time to exchange certificates or
instruments representing or evidencing Collateral for certificates or
instruments of different denominations.
SECTION 11.03. Representations and Warranties. Each of the
Company and Worldwide hereby represents and warrants as follows:
(a) It is the record and beneficial owner of the Pledged
Shares described on Schedule I (as the same may be revised from time to time
pursuant to Section 11.04) as being owned by it, free and clear of any Lien,
except for the Lien created by this Indenture, the Holdings Indenture or the
LYONS Indenture, as the case may be.
(b) It has or will have, full corporate power, authority and
legal right to pledge all the Pledged Shares described on Schedule I (as the
same may be revised from time to time pursuant to Section 11.04) as being owned
by it and all other Collateral pledged by it pursuant to this Indenture.
(c) The Pledged Shares described on Schedule I (as the same
may be revised from time to time pursuant to Section 11.04) as being owned by it
have been or will be, duly authorized and are validly issued, fully paid and
non-assessable.
(d) The pledge in accordance with the terms of this Indenture
of the Pledged Shares described on Schedule I (as the same may be revised from
time to time pursuant to Section 11.04) as being owned by it creates or will
create, as the case may be, a valid and perfected first priority Lien on such
Pledged Shares, securing payment of the Obligations or the Guaranteed
Obligations, as the case may be.
(e) (i) The Holdings Pledged Shares constitute 100% of the
Capital Stock of Holdings, (ii) the Worldwide Pledged Shares will constitute
100% of the
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Capital Stock of Worldwide, and (iii) as of the date of the Worldwide Merger,
the Coleman Pledged Shares will constitute all of the Coleman Common Stock owned
by the Company.
(f) At the date of this Indenture, there are no existing
options, warrants, calls or commitments of any character relating to any
authorized and unissued Capital Stock of Holdings or Worldwide.
SECTION 11.04. Further Assurances. Each of the Company and
Worldwide agrees that at any time and from time to time, at its expense, it will
promptly execute and deliver all further instruments and documents and take all
further action that may be necessary or that the Trustee may reasonably request
in order to perfect and protect any Lien granted or purported to be granted
hereby or to enable the Trustee to exercise and enforce its rights and remedies
hereunder with respect to any Collateral. Without limiting the foregoing, (i)
upon the consummation of the Holdings Notes Redemption, the Company shall
deliver, or shall cause Holdings to pledge and deliver, to the Trustee all
shares of Capital Stock of Worldwide and provide to the Trustee a revised
Schedule I, (ii) on the date of any release from the Lien of the LYONS Indenture
or the Holdings Indenture of any shares of Coleman Common Stock, Worldwide shall
deliver to the Trustee all shares of Coleman Common Stock so released (other
than any Delivered Shares) and provide to the Trustee a revised Schedule I,
(iii) from time to time as they become available to be pledged to the Trustee,
Worldwide shall deliver to the Trustee any other shares of Coleman Common Stock
owned or acquired by it and not previously delivered to the Trustee and provide
to the Trustee a revised Schedule I, (iv) upon receipt thereof, the Company
shall deliver to the Trustee any shares of Coleman Common Stock acquired by the
Company and not previously delivered to the Trustee and provide to the Trustee a
revised Schedule I, and (v) at the time of any release of any Coleman Pledged
Shares pursuant to Section 11.05, the Company or Worldwide shall provide to the
Trustee a revised Schedule I. Any such revised Schedule I shall reflect any
changes made necessary by the applicable delivery or release, at which time each
of the Company and Worldwide shall be deemed to make its representations and
warranties set forth in Section 11.03(a)-(e) with respect to Schedule I, as so
revised.
SECTION 11.05. Dividends; Voting Rights; Substitution and
Partial Release of Collateral.
(a) Each of the Company and Worldwide shall promptly deliver
to the Trustee all dividends and other distributions paid in respect of the
Pledged Shares and any Substitute Collateral. All such dividends and other
distributions shall be held by the Trustee as Collateral and shall, if received
by the Company or Worldwide, be received in trust for the benefit of the
Trustee, be segregated from the other property or
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funds of the Company or Worldwide and be forthwith delivered to the Trustee as
Collateral in the same form as so received (with any necessary endorsement). Any
cash dividends or distributions delivered to or otherwise held by the Trustee
pursuant to this Section 11.05, and any other cash constituting Collateral
delivered to the Trustee, shall be invested, at the written direction of the
Company or Worldwide, by the Trustee in Temporary Cash Investments.
(b) [Reserved]
(c) As long as no Default shall have occurred and be
continuing and until written notice thereof from the Trustee to the Company, the
Company or Worldwide shall be entitled to exercise any and all voting and other
consensual rights relating to Pledged Shares or any part thereof for any
purpose; provided, however, that no vote shall be cast, and no consent, waiver
or ratification given or action taken, which would be inconsistent with or
violate any provision of this Indenture or the Securities.
(d) Upon the occurrence and during the continuance of a
Default, all rights of the Company or Worldwide to exercise the voting and other
consensual rights that it would otherwise be entitled to exercise pursuant to
Section 11.05(c) shall cease upon notice from the Trustee to the Company and
upon the giving of such notice all such rights shall thereupon be vested in the
Trustee who shall thereupon have the sole right to exercise such voting and
other consensual rights.
(e) In order to permit the Trustee to exercise the voting and
other consensual rights which it may be entitled to exercise pursuant to Section
11.05(d), and to receive all dividends and distributions which it may be
entitled to receive under Section 11.05(a), the Company or Worldwide shall, if
necessary, upon written notice of the Trustee, from time to time execute and
deliver to the Trustee such instruments as the Trustee may reasonably request.
(f) As long as no Default shall have occurred and be
continuing, prior to the discharge or defeasance of this Indenture and after all
Holdings Notes have been redeemed and all LYONS have been retired, the Company
or Worldwide, as applicable, shall be entitled from time to time to request the
Trustee to release all or a portion of the Coleman Collateral subject to the
Lien of this Indenture; provided, however, that (i) such request (a "Collateral
Release Request") must be in writing and accompanied by an Officers' Certificate
and an Opinion of Counsel stating that all conditions precedent to the release
of such Coleman Collateral pursuant to this Section 11.05(f) have been complied
with, (ii) the date of such Collateral Release Request (the "Determination
Date") is not more than five Business Days prior to the date of the release
requested thereunder and (iii) either (x) the conditions set forth in
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Section 11.05(g) are met or (y) the conditions set forth in Section 11.05(k) are
met. Any such Collateral Release Request shall specify whether Worldwide or the
Company (as the case may be) intends to meet the conditions set forth in Section
11.05(g) or 11.05(k). Upon satisfaction of the foregoing conditions, the Lien of
this Indenture on such Coleman Collateral to be released shall terminate and all
such Collateral shall be released without any further action on the part of the
Trustee or any other Person.
(g) No Coleman Collateral shall be released from the Lien of
this Indenture pursuant to any Collateral Release Request which specifies that
the conditions of this Section 11.05(g) are to be met unless:
(i) the Company or Worldwide deposits with the Trustee money
or U.S. Government Obligations for the payment of the Principal Amount
at Maturity and interest, if any, on the Securities or the Applicable
Portion thereof;
(ii) the Company delivers to the Trustee a certificate from a
nationally recognized firm of independent accountants expressing their
opinion that the payments of principal and interest when due and
without reinvestment on the deposited U.S. Government Obligations plus
any deposited money without reinvestment will provide cash at such
times and in such amounts as will be sufficient to pay the Principal
Amount at Maturity and interest, if any, when due on all the Securities
or the Applicable Portion thereof to maturity;
(iii) no Default or (so long as the LYONS Indenture is in
effect) no LYONS Default has occurred and is continuing on the date of
such deposit and after giving effect thereto;
(iv) the ratio of (A) the Market Value, determined as of the
Determination Date relating to such Collateral Release Request, of the
Coleman Collateral that will remain, if any, subject to the Lien of
this Indenture immediately following such release to (B) the aggregate
Accreted Value of the Securities (other than the Applicable Portion
thereof and other than any Securities the payment of which has
theretofore been provided pursuant to clause (i) of this Section
11.05(g)) Outstanding as of such Determination Date is (x) at least
equal to the ratio of the Market Value, determined as of such
Determination Date, of the Coleman Collateral subject to the Lien of
this Indenture immediately prior to such release to the aggregate
Accreted Value of the Securities (including the Applicable Portion
thereof but excluding Securities the payment of which has theretofore
been provided pursuant to clause (i) of this Section 11.05(g))
Outstanding as of such Determination Date, but is (y) in no event less
than 1.5 to 1.00;
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(v) the Market Value, determined as at the Determination Date
relating to such Collateral Release Request, of the Coleman Collateral
that will remain, if any, subject to the Lien of this Indenture
immediately following such release is at least equal to the aggregate
Principal Amount at Maturity of the Securities (other than the
Applicable Portion thereof and other than any Securities the payment of
which has theretofore been provided pursuant to clause (i) of this
Section 11.05(g)) Outstanding as of such Determination Date;
(vi) as of the Determination Date relating to such Collateral
Release Request, the Company will be in compliance with Section 4.10(a)
after giving effect to such release and to the deposit pursuant to
clause (i) of this Section 11.05(g) with respect to the Applicable
Portion of the Securities;
(vii) unless the Company provides an Officers' Certificate to
the effect that the Market Value of the Coleman Collateral to be
released pursuant to such Collateral Release Request (the "Applicable
Collateral") is greater than the fair market value, determined as of
such Determination Date, of the money or U.S. Government Obligations
being deposited, 123 days pass after the deposit is made and during the
123-day period no Default specified in Section 6.01(7) or (8) with
respect to the Company or Worldwide occurs which is continuing at the
end of the period;
(viii) the Company delivers to the Trustee an Opinion of
Counsel to the effect that the Person providing such Substitute
Collateral does not constitute, or is qualified as, a regulated
investment company under the Investment Company Act of 1940;
(ix) the deposit does not constitute a default under any other
agreement binding on the Company or Worldwide; and
(x) the Company shall have delivered to the Trustee an Opinion
of Counsel to the effect that the Securityholders will not recognize
income, gain or loss for Federal income tax purposes as a result of
such deposit of U.S. Government Obligations and will be subject to
Federal income tax on the same amounts, in the same manner and at the
same times as would have been the case if such deposit had not
occurred.
For purposes of this Section 11.05, the "Applicable Portion"
shall mean, with respect to any Collateral Release Request, Securities having an
aggregate Principal Amount at Maturity equal to the product of (A) the aggregate
Principal Amount at Maturity of Securities Outstanding as of the Determination
Date relating to such Collateral Release Request (after deducting therefrom the
aggregate Principal Amount
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at Maturity of Securities the payment of which has theretofore been provided
pursuant to clause (i) of this Section 11.05(g)) and (B) a fraction, the
numerator of which is the Market Value, determined as of such Determination
Date, of the Applicable Collateral and the denominator of which is the aggregate
Market Value of all Coleman Collateral at such time. The Series deemed to be
included in the Applicable Portion and all prior Applicable Portions are, first,
any First Priority Initial Notes and First Priority Exchange Notes then
Outstanding and, second, any Second Priority Initial Notes and Second Priority
Exchange Notes then Outstanding.
(h) Notwithstanding anything to the contrary in Section
11.05(f), (g), (k) or (l), upon satisfaction by the Company of the conditions
set forth in Article VIII to its legal defeasance option, its covenant
defeasance option or to the discharge of this Indenture, the Lien of this
Indenture on all the Collateral shall terminate and all the Collateral shall be
released without any further action on the part of the Trustee or any other
Person. Upon the release from the Lien of this Indenture of all the Coleman
Collateral pursuant to Section 11.05, the Lien of this Indenture on all the
Holding Company Collateral shall terminate and all the Holding Company
Collateral shall be released without any further action on the part of the
Trustee or any other Person. Upon the release of any Collateral pursuant to this
Article XI, the Trustee shall execute and deliver to the Company an instrument
or instruments acknowledging the release of such Collateral from this Indenture
and the discharge of the Lien on such Collateral created by this Article XI, and
will duly assign, transfer and deliver to the Company or Worldwide (without
recourse and without any representation or warranty) such Withdrawn Collateral.
(i) Any Coleman Pledged Shares which are released from the
Lien of this Indenture shall be referred to herein as "Withdrawn Shares" and,
together with any cash or instruments or other Collateral which are released
from the Lien of this Indenture, as "Withdrawn Collateral".
(j) [Reserved]
(k) In connection with or after (x) any redemption of less
than all the Securities or (y) any delivery by the Company of less than all the
Securities for cancellation, as long as no Default shall have occurred and be
continuing, the Company shall be entitled to deliver a Collateral Release
Request to the Trustee to release a pro rata portion of the Coleman Collateral
subject to this Indenture; provided, however, that:
(i) the ratio of (A) the Market Value, determined as of the
Determination Date relating to such Collateral Release Request, of the
Coleman Collateral that will remain subject to the Lien of this
Indenture immediately
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following such release to (B) the aggregate Accreted Value of the
Securities (other than Securities the payment of which has theretofore
been provided pursuant to clause (i) of Section 11.05(g)) Outstanding
as of such Determination Date after giving effect to such redemption or
delivery for cancellation shall be (x) at least equal to the ratio of
the Market Value, determined as of such Determination Date, of the
Coleman Collateral subject to the Lien of this Indenture immediately
prior to such release to the aggregate Accreted Value of the Securities
(other than Securities the payment of which has theretofore been
provided pursuant to clause (i) of Section 11.05(g)) Outstanding as of
such Determination Date prior to giving effect to such redemption or
delivery, but shall (y) in no event be less than 1.5 to 1.00;
(ii) the Market Value, determined as at the Determination Date
relating to such Collateral Release Request, of the Coleman Collateral
that will remain, if any, subject to the Lien of this Indenture
immediately following such release is at least equal to the aggregate
Principal Amount at Maturity of the Securities (other than any
Securities the payment of which has theretofore been provided pursuant
to clause (i) of Section 11.05(g)) Outstanding as of such Determination
Date after giving effect to such redemption or delivery; and
(iii) as of the Determination Date relating to such Collateral
Release Request, the Company will be in compliance with Section 4.10(a)
after giving effect to such release and to such redemption or delivery.
(l) In connection with a redemption of Securities pursuant to
paragraph 5 of the Securities or in connection with any purchase of Securities
pursuant to Section 4.08 or in connection with the payment at maturity of the
Principal Amount at Maturity of the Securities, the Company or Worldwide shall
be entitled to request the Trustee to release Substitute Collateral having a
fair market value on such redemption date or purchase date equal to an amount
necessary in whole or in part to pay the redemption price or purchase price of
the Securities to be redeemed or purchased or to pay at maturity the Principal
Amount at Maturity of the Securities. Upon the release of such Collateral and
after the Company complies with the provisions of Section 11.12, the Trustee
shall execute and deliver to the Company an instrument or instruments
acknowledging the release of such Collateral from this Indenture and the
discharge of the Lien on such Collateral created by this Article XI, and will
duly assign, transfer and deliver to or at the direction of the Company (without
recourse and without any representation or warranty) such Collateral.
Notwithstanding the foregoing, the Trustee shall be entitled to receive, as a
condition to any release of Collateral under this Section 11.05(l), an Officer's
Certificate to the effect that such release will not result in a Default
hereunder. Upon the release of Substitute Collateral pursuant to this Section
11.05(l), the Principal Amount at Maturity and Accreted Value of Securities
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the payment of which has theretofore been provided pursuant to clause (i) of
Section 11.05(g) after giving effect to such redemption or repurchase shall be
deemed to be reduced by the Principal Amount at Maturity or Accreted Value,
respectively, of the Securities so redeemed or repurchased with such Substitute
Collateral.
(m) At the Company's reasonable request, the Trustee will
execute and deliver such documents and take such other actions as may be
reasonably requested to facilitate the release of the escrowed property in
accordance with the terms of the Escrow Agreement.
(n) Upon the consummation of the Holdings Merger, the Holdings
Collateral shall be automatically released from the Lien of this Indenture, and
upon the consummation of the Worldwide Merger, the Worldwide Collateral shall be
automatically released from the Lien of this Indenture.
SECTION 11.06. Trustee Appointed Attorney-in-Fact. Each of the
Company and Worldwide hereby appoints the Trustee as its attorney-in-fact, with
full authority in its place and stead and in its name or otherwise, from time to
time in the Trustee's discretion but only after the occurrence and during the
continuance of an Event of Default, to take any action and to execute any
instrument which the Trustee may deem necessary or advisable in order to
accomplish the purposes of this Article XI, including to receive, endorse and
collect all instruments made payable to it representing any dividend, interest
payment or other distribution in respect of the Collateral or any part thereof
and to give full discharge for the same. This power, being coupled with an
interest, is irrevocable.
SECTION 11.07. Trustee May Perform. If either the Company or
Worldwide fails to perform any agreement contained in this Article XI, the
Trustee may itself perform, or cause performance of, such agreement, and the
expenses of the Trustee incurred in connection therewith shall be payable by the
Company under Section 7.07.
SECTION 11.08. Trustee's Duties. The powers conferred on the
Trustee under this Article XI are solely to protect its interest in the
Collateral and shall not impose any duty upon it to exercise any such powers.
Except for the safe custody of any Collateral in its possession and the
accounting for moneys actually received by it hereunder, the Trustee shall have
no duty as to any Collateral or as to the taking of any necessary steps to
preserve rights against prior parties or any other rights pertaining to any
Collateral.
SECTION 11.09. Remedies upon Event of Default. If any Event of
Default shall have occurred and be continuing, the Trustee may exercise in
respect of
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the Collateral, in addition to other rights and remedies provided for herein or
otherwise available to it, all the rights and remedies provided a secured party
upon the default of a debtor under the Uniform Commercial Code at that time, and
the Trustee may also, without notice except as specified below, sell the
Collateral or any part thereof in one or more parcels at public or private sale,
at any exchange, broker's board or at any of the Trustee's offices or elsewhere,
for cash, on credit or for future delivery, upon such terms as the Trustee may
determine to be commercially reasonable, and the Trustee or any Securityholder
may be the purchaser of any or all of the Collateral so sold and thereafter hold
the same, absolutely, free from any right or claim of whatsoever kind. Each of
the Company and Worldwide agrees that, to the extent notice of sale shall be
required by law, at least 10 days' notice to it of the time and place of any
public sale or the time after which any private sale is to be made shall
constitute reasonable notification. The Trustee shall not be obligated to make
any sale of Collateral regardless of notice of sale having been given. The
Trustee may adjourn any public or private sale from time to time by announcement
at the time and place fixed therefor, and such sale may, without further notice,
be made at the time and place to which it was so adjourned. The Trustee shall
incur no liability as a result of the sale of the Collateral, or any part
thereof, at any private sale conducted in a commercially reasonable manner. Each
of the Company and Worldwide hereby waives any claims against the Trustee
arising by reason of the fact that the price at which any Collateral may have
been sold at such a private sale was less than the price which might have been
obtained at a public sale, even if the Trustee accepts the first offer received
and does not offer such Collateral to more than one offeree.
Each of the Company and Worldwide recognizes that, by reason
of certain prohibitions contained in the Securities Act and applicable state
securities laws, the Trustee may be compelled, with respect to any sale of all
or any part of the Collateral, to limit purchasers to those who will agree,
among other things, to acquire such Collateral for their own account, for
investment, and not with a view to the distribution or resale thereof. Each of
the Company and Worldwide acknowledges and agrees that any such sale may result
in prices and other terms less favorable to the seller than if such sale were a
public sale without such restrictions and, notwithstanding such circumstances,
agrees that any such sale shall be deemed to have been made in a commercially
reasonable manner. The Trustee shall be under no obligation to delay the sale of
any of the Pledged Shares for the period of time necessary to permit the Company
to register such securities for public sale under the Securities Act, or under
applicable state securities laws, even if the Company or Worldwide would agree
to do so.
SECTION 11.10. Application of Proceeds. Upon the occurrence
and during the continuance of an Event of Default and after the acceleration of
the Securities pursuant to Section 6.02 (so long as such acceleration has not
been
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rescinded), any cash held by the Trustee as Collateral and all cash proceeds
received by the Trustee in respect of any sale of, collection from, or other
realization upon, all or any part of the Collateral, shall be applied by the
Trustee in the manner specified in Section 6.10.
SECTION 11.11. Continuing Lien. Except as provided in Section
11.05, this Indenture shall create a continuing Lien on the Collateral that
shall (i) remain in full force and effect until payment in full of the
Securities, (ii) be binding upon the Company and Worldwide and their respective
successors and assigns and (iii) enure to the benefit of the Trustee and its
successors, transferees and assigns.
SECTION 11.12. Certificates and Opinions. The Company shall
comply with (a) TIA ss. 314(b), relating to Opinions of Counsel regarding the
Lien of this Indenture and (b) TIA ss. 314(d), relating to the release of
Collateral from the Lien of this Indenture and Officers' Certificates or other
documents regarding fair value of the Collateral, to the extent such provisions
are applicable. Any certificate or opinion required by TIA ss. 314(d) may be
executed and delivered by an Officer of the Company to the extent permitted by
TIA ss. 314(d).
SECTION 11.13. Additional Agreements. The Company agrees that,
upon the occurrence and during the continuance of a Default hereunder, it will,
at any time and from time to time, upon the written request of the Trustee, use
its best efforts to take or to cause the issuer of the Coleman Pledged Shares
and any other securities distributed in respect of the Coleman Pledged Shares
(collectively with the Coleman Pledged Shares, the "Pledged Securities") to take
such action and prepare, distribute or file such documents, as are required or
advisable in the reasonable opinion of counsel for the Trustee to permit the
public sale of such Pledged Securities. The Company further agrees to indemnify,
defend and hold harmless the Trustee, each Holder, any underwriter and their
respective officers, directors, affiliates and controlling persons from and
against all loss, liability, expenses, costs of counsel (including reasonable
fees and expenses of legal counsel to the Trustee), and claims (including the
costs of investigation) that they may incur insofar as such loss, liability,
expense or claim arises out of or is based upon any alleged untrue statement of
a material fact contained in any prospectus (or any amendment or supplement
thereto) or in any notification or offering circular, or arises out of or is
based upon any alleged omission to state a material fact required to be stated
therein or necessary to make the statements in any thereof not misleading,
except insofar as the same may have been caused by any untrue statement or
omission based upon information furnished in writing to the Company or the
issuer of such Pledged Securities by the Trustee or any Holder expressly for use
therein. The Company further agrees, upon such written request referred to
above, to use its best efforts to qualify, file or register, or cause the issuer
of such Pledged Securities to qualify, file or register, any of the Pledged
Securities under the Blue Sky or other securities laws of such states as may be
requested by the Trustee and keep effective, or
<PAGE>
91
cause to be kept effective, all such qualifications, filings or registrations.
The Company will bear all costs and expenses of carrying out its obligations
under this Section 11.13. The Company acknowledges that there is no adequate
remedy at law for failure by it to comply with the provisions of this Section
11.13 and that such failure would not be adequately compensable in damages, and
therefore agrees that its agreements contained in this Section 11.13 may be
specially enforced.
ARTICLE XII
Miscellaneous
SECTION 12.01. Trust Indenture Act Controls. If any provision
of this Indenture limits, qualifies or conflicts with another provision which is
required to be included in this Indenture by the TIA, the required provision
shall control.
SECTION 12.02. Notices. Any notice or communication shall be
in writing and delivered in Person or mailed by first-class mail addressed as
follows:
if to the Company or the Guarantor:
5900 North Andrews Avenue, Suite 700
Fort Lauderdale, Florida 33309-7098
Attention: Secretary
Telephone: (954) 772-9000
Facsimile: (954) 938-7811
if to the Trustee:
First Trust National Association
One Illinois Center
111 East Wacker Drive, Suite 3000
Chicago, Illinois 60601
Attention of Corporate Trust Department
Telephone: (312) 228-9400
Facsimile: (312) 228-9459
The Company, the Guarantor or the Trustee by notice to the
other parties hereto may designate additional or different addresses for
subsequent notices or communications.
Any notice or communication mailed to a Securityholder shall
be sent by first-class mail to the Securityholder at the Securityholder's
address as it appears on the
<PAGE>
92
registration books of the Registrar and shall be sufficiently given if so mailed
within the time prescribed.
Failure to mail a notice or communication to a Securityholder
or any defect in it shall not affect its sufficiency with respect to other
Securityholders. If a notice or communication is mailed to a Securityholder in
the manner provided above, it is duly given, whether or not the addressee
receives it.
SECTION 12.03. Communication by Holders with Other Holders.
Securityholders may communicate pursuant to TIA ss. 312(b) with other
Securityholders with respect to their rights under this Indenture or the
Securities. The Company, the Guarantor, the Trustee, the Registrar and anyone
else shall have the protection of TIA ss. 312(c).
SECTION 12.04. Certificate and Opinion as to Conditions
Precedent. Upon any request or application by the Company to the Trustee to take
or refrain from taking any action under this Indenture, the Company shall
furnish to the Trustee:
(1) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee stating that, in the opinion of the
signers, all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with; and
(2) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee stating that, in the opinion of such
counsel, all such conditions precedent have been complied with;
provided, however, that, in the case of such application or request as to which
the furnishing of such documents, certificates or opinions is specifically
required by any provision of this Indenture relating to such particular
application or request, no additional certificate or opinion need be furnished.
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 (other than the Officer's Certificate
required by Section 4.12) shall include:
(1) a statement that the Person making such certificate or
opinion has read such covenant or condition;
<PAGE>
93
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such Person, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(4) a statement as to whether or not, in the opinion of such
Person, such covenant or condition has been complied with.
SECTION 12.06. When Securities Disregarded. In determining
whether the Holders of the required Principal Amount of Maturity of Securities
have concurred in any direction, waiver or consent, Securities owned by the
Company or by any Person directly or indirectly controlling or controlled by or
under direct or indirect common control with the Company shall be disregarded
and deemed not to be Outstanding, except that, for the purpose of determining
whether the Trustee shall be protected in relying on any such direction, waiver
or consent, only Securities which the Trustee knows are so owned shall be so
disregarded. Also, subject to the foregoing, only Securities Outstanding at the
time shall be considered in any such determination.
SECTION 12.07. Rules by Trustee, Paying Agent and Registrar.
The Trustee may make reasonable rules for action by or a meeting of
Securityholders. The Registrar and the Paying Agent may make reasonable rules
for their functions.
SECTION 12.08. Legal Holidays. If a payment date is a Legal
Holiday, payment shall be made on the next succeeding day that is not a Legal
Holiday, and no interest (if any) shall accrue for the intervening period. If a
regular record date is a Legal Holiday, the record date shall not be affected.
SECTION 12.09. Governing Law. This Indenture and the
Securities shall be governed by, and construed in accordance with, the laws of
the State of New York but without giving effect to applicable principles of
conflicts of law to the extent that the application of the laws of another
jurisdiction would be required thereby.
SECTION 12.10. No Recourse Against Others. A director,
officer, employee or stockholder, as such, of the Company, the Guarantor or the
Trustee shall not have any liability for any obligations of the Company, the
Guarantor or the Trustee under the Securities or this Indenture or for any claim
based on, in respect of or by reason of such obligations or their creation. By
accepting a Security, each
<PAGE>
94
Securityholder shall waive and release all such liability. The waiver and
release shall be part of the consideration for the Issue of the Securities.
SECTION 12.11. Successors. All agreements of the Company in
this Indenture and the Securities shall bind its successors. All agreements of
each of the Guarantor and 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; 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.
<PAGE>
95
IN WITNESS WHEREOF, the parties have caused this Indenture to
be duly executed as of the date first written above.
COLEMAN ESCROW CORP.,
by
----------------------------------
Title:
FIRST TRUST NATIONAL
ASSOCIATION, as Trustee,
by
----------------------------------
Title:
The Guarantor has caused this Indenture to be duly executed as
of the date first written above solely to acknowledge and accept its obligations
set forth in Articles X and XI herein.
COLEMAN WORLDWIDE
CORPORATION,
by
----------------------------------
Title:
<PAGE>
SCHEDULE I
Pledged Shares
--------------
No. of Owner of
Shares Cert. No. Issuer Pledged Shares
------ --------- ------ --------------
1,000 3 Coleman Holdings Inc. Coleman Escrow Corp.
250,000 6928 The Coleman Company, Coleman Worldwide
Inc. Corporation
136,355 6546 The Coleman Company, Coleman Worldwide
Inc. Corporation
23,912 5870 The Coleman Company, Coleman Worldwide
Inc. Corporation
2,943 5869 The Coleman Company, Coleman Worldwide
Inc. Corporation
50,000 5830 The Coleman Company, Coleman Worldwide
Inc. Corporation
50,000 5829 The Coleman Company, Coleman Worldwide
Inc. Corporation
8,000 5679 The Coleman Company, Coleman Worldwide
Inc. Corporation
1,500 5159 The Coleman Company, Coleman Worldwide
Inc. Corporation
<PAGE>
EXHIBIT A
[FORM OF FACE OF FIRST PRIORITY INITIAL NOTE]
THE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS.
NEITHER THIS SECURITY 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, REGISTRATION.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO
OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE "RESALE
RESTRICTION TERMINATION DATE") WHICH IS TWO YEARS AFTER THE LATER OF THE
ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE COMPANY OR ANY
AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF
THIS SECURITY), ONLY (A) TO THE COMPANY, (B) PURSUANT TO A REGISTRATION
STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO
LONG AS THE SECURITIES 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 WITHIN THE MEANING OF REGULATION
S UNDER THE SECURITIES ACT, (E) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER
THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE) OR (F)
PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT, SUBJECT TO THE COMPANY'S AND THE TRUSTEE'S RIGHT PRIOR TO
ANY SUCH OFFER, SALE OR TRANSFER (i) PURSUANT TO CLAUSES (1)(D) OR (1)(E), TO
REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND OTHER
INFORMATION SATISFACTORY TO EACH OF THEM, (ii) AND IN EACH OF THE FOREGOING
CASES, A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF THIS
SECURITY IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE COMPANY AND THE
TRUSTEE. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE
RESALE RESTRICTION TERMINATION DATE.
<PAGE>
2
FOR PURPOSES OF SECTION 1273 OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE"), THIS SECURITY HAS ORIGINAL ISSUE DISCOUNT. FOR
PURPOSES OF SECTION 1273 OF THE CODE, THE ISSUE PRICE IS $649.49 AND THE AMOUNT
OF ORIGINAL ISSUE DISCOUNT IS $350.51, IN EACH CASE PER $1000 PRINCIPAL AMOUNT
AT MATURITY OF THIS SECURITY. FOR PURPOSES OF SECTION 1275 OF THE CODE, THE
ISSUE DATE OF THIS SECURITY IS MAY 20, 1997. FOR PURPOSES OF SECTION 1272 OF THE
CODE, THE YIELD TO MATURITY (COMPOUNDED SEMI-ANNUALLY) IS 11 1/8%. IN ADDITION,
THERE MAY BE CONTINGENT INTEREST PAYABLE ON THIS SECURITY.
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY ("DTC") TO THE COMPANY OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER REPRESENTATIVE OF
DTC AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO
TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR
THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL
SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS
SET FORTH IN SECTIONS 2.12 AND 2.13 OF THE INDENTURE.](2)
- --------
(2) Bracketed language is the Global Note Legend to be included only on the
Global Notes.
<PAGE>
No. CUSIP
COLEMAN ESCROW CORP.
Senior Secured First Priority Discount Note due 2001
Principal Amount at Maturity $
-------------
Coleman Escrow Corp., a Delaware corporation, promises to pay
to , or registered assigns, the
principal sum of Dollars on May 15,
2001.
Additional provisions of this Security are set forth on the
other side of this Security.
Dated:
COLEMAN ESCROW CORP.
by
------------------------------
Vice President
------------------------------
Assistant Secretary
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
FIRST TRUST NATIONAL [Seal]
ASSOCIATION
as Trustee, certifies that
this is one of the Securities
referred to in the Indenture.
by
-----------------------------
Authorized Signatory
<PAGE>
[FORM OF REVERSE SIDE OF FIRST PRIORITY INITIAL NOTE]
COLEMAN ESCROW CORP.
Senior Secured First Priority Discount Note due 2001
1. Interest
In the event that (1) by July 7, 1997, a registration
statement has not been filed with the Securities and Exchange Commission with
respect to the proposed Registered Exchange Offer or the resale of the Initial
Notes, then Coleman Escrow Corp., a Delaware corporation (such corporation, and
its successors and assigns under the Indenture hereinafter referred to, being
herein called the "Company"), promises to pay interest on this Security from and
including July 7, 1997 until but excluding the earlier of (i) the date such
registration statement is filed and (ii) November 17, 1997, or (2) by November
17, 1997, neither (i) a Registered Exchange Offer is consummated nor (ii) a
Shelf Registration Statement with respect to the resale of the Initial Notes is
declared effective, the Company promises to pay interest on this Security from
and including, November 17, 1997 until but excluding the earlier of (i) the
consummation of the Registered Exchange Offer and (ii) the effective date of
such Shelf Registration Statement, in each case payable in cash semiannually in
arrears on May 15 and November 15, commencing November 15, 1997, at a rate per
annum equal to 0.50% of the Accreted Value of this Security as of the SemiAnnual
Accrual Date immediately preceding the date on which such interest is payable.
Interest will be computed on the basis of a 360-day year of twelve 30-day
months. Except as provided above, there will be no periodic payments of
interest. The Company shall pay interest on overdue Principal at the rate of
12 1/8% per annum, and it shall pay interest on overdue installments of interest
at the same rate to the extent lawful.
2. Method of Payment
The Company will pay interest, if any, referred to in
paragraph 1 above (except defaulted interest) on the Securities to the persons
who are registered holders of Securities (including Exchange Notes issued in
respect of Initial Notes pursuant to the Registered Exchange Offer) at the close
of business on the May 1 or November 1 next preceding the interest payment date
even if Securities are canceled after the record date and on or before the
interest payment date. Holders must surrender Securities to a Paying Agent to
collect Principal payments. The Company will pay Principal in money of the
United States that at the time of payment is legal tender for payment of public
and private debts. However, the Company may pay Principal and interest, if any,
by check payable in such money; provided, that all
<PAGE>
2
payments with respect to U.S. Global Notes and Physical Notes the holders of
which have given wire transfer instructions to the Company, will be required to
be made by wire transfer of immediately available funds to the accounts
specified by the holders thereof.
3. Paying Agent and Registrar
Initially, First Trust National Association ("Trustee"), will
act as Paying Agent and Registrar. The Company may appoint and change any Paying
Agent, Registrar or co-registrar without notice. The Company or any of its
domestically incorporated Wholly Owned Recourse Subsidiaries may act as Paying
Agent, Registrar, co-registrar or transfer agent.
4. Indenture
The Company issued the Securities under an Indenture dated as
of May 20, 1997 ("Indenture"), between the Company and the Trustee. The terms of
the Securities include those stated in the Indenture and those made part of the
Indenture by reference to the Trust Indenture Act of 1939 (15 U.S.C. ss.ss.
77aaa- 77bbbb) as in effect on the date of the Indenture (the "Act").
Capitalized terms used herein and not defined herein have the meanings ascribed
thereto in the Indenture. The Securities are subject to all such terms, and
Securityholders are referred to the Indenture and the Act for a statement of
those terms.
The Securities are secured obligations of the Company limited
to with respect to the First Priority Initial Notes, $600,475,000 aggregate
Principal Amount at Maturity, and with respect to the Second Priority Initial
Notes, $131,560,000 aggregate Principal Amount at Maturity (each subject to
Section 2.07 of the Indenture). This Security is one of the First Priority
Initial Notes referred to in the Indenture. The Securities include the First
Priority Initial Notes, the Second Priority Initial Notes and any Exchange Notes
issued in exchange for the Initial Notes pursuant to the Indenture. The First
Priority Initial Notes, the Second Priority Initial Notes and the Exchange Notes
are treated as a single class of securities under the Indenture except as
expressly provided therein. The Indenture imposes certain limitations on, among
other things, the issuance of debt and redeemable stock by the Company, the
issuance of debt and preferred stock by Holdings, Worldwide, Coleman and its
Subsidiaries, the payment of dividends and other distributions on, and
acquisitions or retirements of, the Company's Capital Stock, the creation of
liens on assets of the Company, the sale or transfer of assets and Subsidiary
stock and transactions with Affiliates.
<PAGE>
3
5. Optional Redemption
Except as set forth below, the Securities may not be redeemed
by the Company prior to May 15, 2000. On and after such date, the Company may
redeem the Securities in whole at any time or in part from time to time at the
redemption prices listed below (expressed as percentages of Accreted Value as of
the redemption date) for the periods indicated plus accrued and unpaid interest,
if any, to the redemption date (subject to the right of holders of record on the
relevant record date to receive interest due, if any, on the relevant interest
payment date):
Period Redemption Price
------ ----------------
From May 15, 2000 through 102.781%
May 14, 2001
Thereafter, the Company may redeem the Securities in whole at any time or in
part from time to time at a redemption price of 100% of the Principal Amount at
Maturity of the Securities to be redeemed plus accrued and unpaid interest, if
any, to the redemption date.
The Securities may be redeemed at the option of the Company at
any time as a whole at a redemption price equal to the sum of (i) the Accreted
Value thereof at the date of redemption, plus (ii) the Applicable Premium at the
date of redemption.
6. Mandatory Redemption
In the event a Triggering Event occurs at any time when any
amount of the Escrowed Funds shall remain subject to the escrow of the Escrow
Agreement, the Company shall redeem the Securities (or a portion thereof, if the
proviso to this sentence is applicable), at a redemption price in cash equal to
100% of the Accreted Value thereof at the redemption date, plus accrued and
unpaid interest, if any, to the redemption date on the 45th day (or if such day
is not a Business Day, the next following Business Day) following the occurrence
of a Triggering Event; provided, however, that if the amount of Escrowed Funds
remaining subject to the escrow of the Escrow Agreement at the redemption date
(the "Available Funds") is less than the aggregate Accreted Value of all the
Securities at the redemption date, then the Company shall be obligated to redeem
pursuant to this paragraph only a portion of the Securities having an aggregate
Accreted Value at the redemption date equal to the amount of Available Funds.
<PAGE>
4
7. Notice of Redemption
Notice of redemption pursuant to paragraph 5 will be mailed at
least 30 days but not more than 60 days before the redemption date and notice of
redemption pursuant to paragraph 6 will be mailed promptly following the
occurrence of a Triggering Event but at least 30 days before the redemption date
to each Holder of Securities to be redeemed at his registered address.
Securities in denominations larger than $1,000 Principal Amount at Maturity may
be redeemed in part but only in whole multiples of $1,000 Principal Amount at
Maturity. If money sufficient to pay the redemption price of all Securities (or
portions thereof) to be redeemed on the redemption date is deposited with the
Paying Agent on or before the redemption date and certain other conditions are
satisfied, on and after such date Accreted Value ceases to increase, and
interest, if any, ceases to accrue, on such Securities (or such portions
thereof) called for redemption.
8. Put Provisions
Upon a Change of Control, any Holder of Securities will have
the right to cause the Company to repurchase all or any part of the Securities
of such Holder at a repurchase price equal to the Put Amount of the Securities
to be repurchased plus accrued and unpaid interest, if any, to the date of
repurchase, in each case as provided in, and subject to the terms of, the
Indenture.
9. Guarantee; Security; Priority
To secure the due and punctual payment of the Principal and
interest, if any, on the Securities and all other amounts payable by the Company
under the Indenture and the Securities when and as the same shall be due and
payable, whether at maturity, by acceleration or otherwise, according to the
terms of the Securities and the Indenture, (i) Coleman Worldwide Corporation
("Guarantor") has guaranteed the Obligations on a non-recourse basis pursuant to
the terms of the Indenture and (ii) each of the Company and the Guarantor has
granted a security interest in the Collateral provided by it to the Trustee for
the benefit of the Holders of Securities pursuant to the Indenture. The
Collateral is subject to release from the Lien of the Indenture to the extent
provided therein. Proceeds of Collateral will be applied first to pay all First
Priority Initial Notes and First Priority Exchange Notes in full before any
payments are made on the Second Priority Initial Notes or the Second Priority
Exchange Notes.
<PAGE>
5
10. Denominations; Transfer; Exchange
The Securities are in registered form without coupons in
denominations of Principal Amount at Maturity of $1,000 and whole multiples of
$1,000. A Holder may transfer or exchange Securities in accordance with the
Indenture. The Registrar may require a Holder, among other things, to furnish
appropriate endorsements or transfer documents and to pay any taxes and fees
required by law or permitted by the Indenture. The Registrar need not register
the transfer of or exchange any Securities selected for redemption (except, in
the case of a Security to be redeemed in part, the portion of the Security not
to be redeemed) or any Securities for a period of 15 days before a selection of
Securities to be redeemed.
11. Persons Deemed Owners
The registered Holder of this Security may be treated as the
owner of it for all purposes.
12. Unclaimed Money
If money for the payment of Principal or interest, if any,
remains unclaimed for two years, the Trustee or Paying Agent shall pay the money
back to the Company at its request unless an abandoned property law designates
another person. After any such payment, Holders entitled to the money must look
only to the Company and not to the Trustee for payment.
13. Defeasance
Subject to certain conditions, the Company at any time may
terminate some or all of its obligations under the Securities and the Indenture
if the Company deposits with the Trustee money or U.S. Government Obligations
for the payment of Principal and interest, if any, on the Securities to
redemption or maturity, as the case may be.
14. Amendment, Waiver
Subject to certain exceptions set forth in the Indenture, (i)
the Indenture or the Securities may be amended with the written consent of the
Holders
<PAGE>
6
of at least a majority in Principal Amount at Maturity outstanding of the
Securities and (ii) any default or noncompliance with any provision may be
waived with the written consent of the Holders of a majority in Principal Amount
at Maturity outstanding of the Securities. Subject to certain exceptions set
forth in the Indenture, without the consent of any Securityholder, the Company
and the Trustee may amend the Indenture or the Securities to cure any ambiguity,
omission, defect or inconsistency, or to comply with Article V of the Indenture,
or to provide for uncertificated Securities in addition to or in place of
certificated Securities, or to add guarantees with respect to the Securities or
to secure (or provide additional security for) the Securities, or to add
additional covenants or surrender rights and powers conferred on the Company, or
to provide for the issuance of the Exchange Notes, or to comply with any request
of the SEC in connection with qualifying the Indenture under the Act or to
otherwise comply with the Act, or to make any change that does not adversely
affect the rights of any Securityholder. A consent to any amendment or waiver of
any provision in the Indenture or in the Securities by any Holder given in
connection with a tender of such Holder's Securities shall not be rendered
invalid by such tender.
15. Defaults and Remedies
Under the Indenture, Events of Default include (i) default for
30 days in payment of interest, if any, on the Securities; (ii) default in
payment of Principal on the Securities at maturity, upon redemption pursuant to
paragraph 5 or paragraph 6 of the Securities, upon declaration or otherwise, or
failure by the Company to redeem or purchase Securities when required; (iii)
failure by the Company to comply with other agreements in the Indenture or the
Securities or the Escrow Agreement, in certain cases subject to notice and lapse
of time; (iv) certain accelerations (including failure to pay within any grace
period after final maturity) of other Debt of the Company or any Significant
Subsidiary if the total principal amount on the portion of such Debt that is
accelerated (or so unpaid) exceeds $25,000,000 and continues for 5 days after
the required notice to the Company or such Significant Subsidiary; (v) certain
events of bankruptcy or insolvency with respect to the Company or any
Significant Subsidiary; (vi) certain judgments or decrees for the payment of
money in excess of $25,000,000; and (vii) failure by the Guarantor to purchase
LYONS when required and the aggregate purchase price of such LYONS not so
purchased exceeds $25 million. If an Event of Default occurs and is continuing,
the Trustee or the Holders of at least 25% in Principal Amount at Maturity of
the Securities may declare the Default Amount of all the Securities to be due
and payable immediately. Certain events of bankruptcy or insolvency are Events
of Default which will result in the Default Amount of the Securities being due
and payable immediately upon the occurrence of such Events of Default.
<PAGE>
7
Securityholders may not enforce the Indenture or the
Securities except as provided in the Indenture. The Trustee may refuse to
enforce the Indenture or the Securities unless it receives reasonable indemnity
or security. Subject to certain limitations, Holders of a majority in Principal
Amount at Maturity of the Securities may direct the Trustee in its exercise of
any trust or power. The Trustee may withhold from Securityholders notice of any
continuing Default (except a Default in payment of Principal or interest) if it
determines that withholding notice is in their interest.
16. Trustee Dealings with the Company
Subject to certain limitations imposed by the Act, the Trustee
under the Indenture, in its individual or any other capacity, may become the
owner or pledgee of Securities and may otherwise deal with and collect
obligations owed to it by the Company or its Affiliates and may otherwise deal
with the Company or its Affiliates with the same rights it would have if it were
not Trustee.
17. No Recourse Against Others
A director, officer, employee or stockholder, as such, of the
Company, the Guarantor or the Trustee shall not have any liability for any
obligations of the Company, the Guarantor or the Trustee under the Securities or
the Indenture or for any claim based on, in respect of or by reason of such
obligations or their creation. By accepting a Security, each Securityholder
waives and releases all such liability. The waiver and release are part of the
consideration for the issue of the Securities.
18. Authentication
This Security shall not be valid until an authorized signatory
of the Trustee (or an authenticating agent) manually signs the certificate of
authentication on the other side of this Security.
19. Abbreviations
Customary abbreviations may be used in the name of a
Securityholder or an assignee, such as TEN COM (=tenants in common), TEN ENT
(=tenants by
<PAGE>
8
the entireties), JT TEN (=joint tenants with rights of survivorship and not as
tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to Minors
Act).
20. CUSIP Numbers
Pursuant to a recommendation promulgated by the Committee on
Uniform Security Identification Procedures, the Company has caused CUSIP numbers
to be printed on the Securities and has directed the Trustee to use CUSIP
numbers in notices of redemption as a convenience to Securityholders. No
representation is made as to the accuracy of such numbers either as printed on
the Securities or as contained in any notice of redemption and reliance may be
placed only on the other identification numbers placed thereon.
The Company will furnish to any Securityholder upon written
request and without charge to the Securityholder a copy of the Indenture which
has in it the text of this Security in larger type. Requests may be made to:
Coleman Escrow Corp., 5900 North Andrews Avenue, Suite 700, Fort Lauderdale,
Florida 33309-7098, Attention: Secretary.
<PAGE>
- --------------------------------------------------------------------------------
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
(Print or type assignee's name, address and zip code)
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint agent to transfer this Security
on the books of the Company. The agent may substitute another to
act for him.
Date: Your Signature:
-------------------------- ---------------------------------
(Sign exactly as your name appears
on the other side of the Security)
Signature Guarantee:
------------------------------------------
(Signature must be guaranteed)
- --------------------------------------------------------------------------------
[THE FOLLOWING PROVISION TO BE INCLUDED
ON ALL CERTIFICATES EXCEPT PERMANENT
OFFSHORE PHYSICAL NOTES]
In connection with any transfer of this Note occurring prior
to the date that is the earlier of (i) the date of an effective registration
statement with respect to the Registered Exchange Offer or the resale of the
Initial Notes and (ii) May 20, 1999, the undersigned confirms that without
utilizing any general solicitation or general advertising that:
[Check One]
[ ](a) this Note is being transferred in compliance with the exemption
from registration under the Securities Act of 1933, as amended,
provided by Rule 144A thereunder.
<PAGE>
2
or
[ ](b) this Note is being transferred other than in accordance with (a)
above and documents are being furnished that comply with the conditions
of transfer set forth in this Note and the Indenture.
If neither of the foregoing boxes is checked, the Trustee or other Registrar
shall not be obligated to register this Note in the name of any Person other
than the Holder hereof unless and until the conditions to any such transfer of
registration set forth herein and in Section 2.06 of the Indenture shall have
been satisfied.
Date:
----------------------- -----------------------------------------
NOTICE: The signature must correspond
with the name as written
upon the face of the
within-mentioned instrument
in every particular,
without alteration or any
change whatsoever.
Signature Guarantee:
------------------------------------------------------------
TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing
this Note for its own account or an account with respect to which it exercises
sole investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act of
1933, as amended, and is aware that the sale to it is being made in reliance on
Rule 144A and acknowledges that it has received such information regarding the
Company as the undersigned has requested pursuant to Rule 144A or has determined
not to request such information and that it is aware that the transferor is
relying upon the undersigned's foregoing representations in order to claim the
exemption from registration provided by Rule 144A.
Dated: NOTICE: To be executed by an executive officer.
-----------------------
<PAGE>
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the
Company pursuant to Section 4.08 of the Indenture, check the box:
/ /
If you want to elect to have only part of this Security
purchased by the Company pursuant to Section 4.08 of the Indenture, state the
Principal Amount at Maturity: $
Date: Your Signature:
------------------ ---------------------------------------
(Sign exactly as your name appears
on the other side of the Security)
Your Signature:
---------------------------------------
(Sign exactly as your name appears
on the other side of the Security)
Signature Guarantee:
------------------------------------------------------------
(Signature must be guaranteed)
<PAGE>
EXHIBIT B
[FORM OF SECOND PRIORITY INITIAL NOTE]
THE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS.
NEITHER THIS SECURITY 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, REGISTRATION.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO
OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE "RESALE
RESTRICTION TERMINATION DATE") WHICH IS TWO YEARS AFTER THE LATER OF THE
ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE COMPANY OR ANY
AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF
THIS SECURITY), ONLY (A) TO THE COMPANY, (B) PURSUANT TO A REGISTRATION
STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO
LONG AS THE SECURITIES 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 WITHIN THE MEANING OF REGULATION
S UNDER THE SECURITIES ACT, (E) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER
THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE) OR (F)
PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT, SUBJECT TO THE COMPANY'S AND THE TRUSTEE'S RIGHT PRIOR TO
ANY SUCH OFFER, SALE OR TRANSFER (i) PURSUANT TO CLAUSES (1)(D) OR (1)(E) TO
REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND OTHER
INFORMATION SATISFACTORY TO EACH OF THEM, (ii) AND IN EACH OF THE FOREGOING
CASES, A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF THIS
SECURITY IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE COMPANY AND THE
TRUSTEE. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE
RESALE RESTRICTION TERMINATION DATE.
FOR PURPOSES OF SECTION 1273 OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE"), THIS SECURITY HAS ORIGINAL ISSUE DISCOUNT. FOR
PURPOSES OF SECTION 1273 OF THE CODE, THE ISSUE PRICE IS $608.12 AND THE AMOUNT
OF ORIGINAL ISSUE
<PAGE>
2
DISCOUNT IS $391.88, IN EACH CASE PER $1000 PRINCIPAL AMOUNT AT MATURITY OF THIS
SECURITY. FOR PURPOSES OF SECTION 1275 OF THE CODE, THE ISSUE DATE OF THIS
SECURITY IS MAY 20, 1997. FOR PURPOSES OF SECTION 1272 OF THE CODE, THE YIELD TO
MATURITY (COMPOUNDED SEMI-ANNUALLY) IS 12 7/8%. IN ADDITION, THERE MAY BE
CONTINGENT INTEREST PAYABLE ON THIS SECURITY.
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY ("DTC") TO THE COMPANY OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER REPRESENTATIVE OF
DTC AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO
TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR
THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL
SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS
SET FORTH IN SECTIONS 2.12 AND 2.13 OF THE INDENTURE.](3)
- --------
(3) Bracketed language is the Global Note Legend to be included only on the
Global Notes.
<PAGE>
No. CUSIP
COLEMAN ESCROW CORP.
Senior Secured First Priority Discount Note due 2001
Principal Amount at Maturity $______________
Coleman Escrow Corp., a Delaware corporation, promises to pay
to , or registered assigns, the
principal sum of Dollars on May 15,
2001.
Additional provisions of this Security are set forth on the
other side of this Security.
Dated:
COLEMAN ESCROW CORP.
by
---------------------------
Vice President
---------------------------
Assistant Secretary
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
FIRST TRUST NATIONAL [Seal]
ASSOCIATION
as Trustee, certifies that
this is one of the Securities
referred to in the Indenture.
by
-----------------------------
Authorized Signatory
<PAGE>
[FORM OF REVERSE SIDE OF SECOND PRIORITY INITIAL NOTE]
COLEMAN ESCROW CORP.
Senior Secured Second Priority Discount Note due 2001
1. Interest
In the event that (1) by July 7, 1997, a registration
statement has not been filed with the Securities and Exchange Commission with
respect to the proposed Registered Exchange Offer or the resale of the Initial
Notes, then Coleman Escrow Corp., a Delaware corporation (such corporation, and
its successors and assigns under the Indenture hereinafter referred to, being
herein called the "Company"), promises to pay interest on this Security from and
including July 7, 1997 until but excluding the earlier of (i) the date such
registration statement is filed and (ii) November 17, 1997, or (2) by November
17, 1997, neither (i) a Registered Exchange Offer is consummated nor (ii) a
Shelf Registration Statement with respect to the resale of the Initial Notes is
declared effective, the Company promises to pay interest on this Security from
and including, November 17, 1997 until but excluding the earlier of (i) the
consummation of the Registered Exchange Offer and (ii) the effective date of
such Shelf Registration Statement, in each case payable in cash semiannually in
arrears on May 15 and November 15, commencing November 15, 1997, at a rate per
annum equal to 0.50% of the Accreted Value of this Security as of the
Semi-Annual Accrual Date immediately preceding the date on which such interest
is payable. Interest will be computed on the basis of a 360-day year of twelve
30-day months. Except as provided above, there will be no periodic payments of
interest. The Company shall pay interest on overdue Principal at the rate of
137/8% per annum, and it shall pay interest on overdue installments of interest
at the same rate to the extent lawful.
2. Method of Payment
The Company will pay interest, if any, referred to in
paragraph 1 above (except defaulted interest) on the Securities to the persons
who are registered holders of Securities (including Exchange Notes issued in
respect of Initial Notes pursuant to the Registered Exchange Offer) at the close
of business on the May 1 or November 1 next preceding the interest payment date
even if Securities are canceled after the record date and on or before the
interest payment date. Holders must surrender Securities to a Paying Agent to
collect Principal payments. The Company will pay Principal in money of the
United States that at the time of payment is legal tender for payment of public
and private debts. However, the Company may pay Principal and interest, if any,
by check payable in such money; provided, that all payments with respect to U.S.
Global Notes and Physical Notes the holders of which have given wire transfer
<PAGE>
2
instructions to the Company, will be required to be made by wire transfer of
immediately available funds to the accounts specified by the holders thereof.
3. Paying Agent and Registrar
Initially, First Trust National Association ("Trustee"), will
act as Paying Agent and Registrar. The Company may appoint and change any Paying
Agent, Registrar or co-registrar without notice. The Company or any of its
domestically incorporated Wholly Owned Recourse Subsidiaries may act as Paying
Agent, Registrar, co-registrar or transfer agent.
4. Indenture
The Company issued the Securities under an Indenture dated as
of May 20, 1997 ("Indenture"), between the Company and the Trustee. The terms of
the Securities include those stated in the Indenture and those made part of the
Indenture by reference to the Trust Indenture Act of 1939 (15 U.S.C. ss.ss.
77aaa- 77bbbb) as in effect on the date of the Indenture (the "Act").
Capitalized terms used herein and not defined herein have the meanings ascribed
thereto in the Indenture. The Securities are subject to all such terms, and
Securityholders are referred to the Indenture and the Act for a statement of
those terms.
The Securities are secured obligations of the Company limited
to with respect to the First Priority Initial Notes, $600,475,000 aggregate
Principal Amount at Maturity, and with respect to the Second Priority Initial
Notes, $131,560,000 aggregate Principal Amount at Maturity (each subject to
Section 2.07 of the Indenture). This Security is one of the Second Priority
Initial Notes referred to in the Indenture. The Securities include the First
Priority Initial Notes, the Second Priority Initial Notes and any Exchange Notes
issued in exchange for the Initial Notes pursuant to the Indenture. The First
Priority Initial Notes, the Second Priority Initial Notes and the Exchange Notes
are treated as a single class of securities under the Indenture except as
expressly provided therein. The Indenture imposes certain limitations on, among
other things, the issuance of debt and redeemable stock by the Company, the
issuance of debt and preferred stock by Holdings, Worldwide, Coleman and its
Subsi diaries, the payment of dividends and other distributions on, and
acquisitions or retirements of, the Company's Capital Stock, the creation of
liens on assets of the Company, the sale or transfer of assets and Subsidiary
stock and transactions with Affiliates.
5. Optional Redemption
<PAGE>
3
Except as set forth below, the Securities may not be redeemed
by the Company prior to May 15, 2000. On and after such date, the Company may
redeem the Securities in whole at any time or in part from time to time at the
redemption prices listed below (expressed as percentages of Accreted Value as of
the redemption date) for the periods indicated plus accrued and unpaid interest,
if any, to the redemption date (subject to the right of holders of record on the
relevant record date to receive interest due, if any, on the relevant interest
payment date):
Period Redemption Price
------ ----------------
From May 15, 2000 through 103.219%
May 14, 2001
Thereafter, the Company may redeem the Securities in whole at any time or in
part from time to time at a redemption price of 100% of the Principal Amount at
Maturity of the Securities to be redeemed plus accrued and unpaid interest, if
any, to the redemption date.
The Securities may be redeemed at the option of the Company at
any time as a whole at a redemption price equal to the sum of (i) the Accreted
Value thereof at the date of redemption, plus (ii) the Applicable Premium at the
date of redemption.
6. Mandatory Redemption
In the event a Triggering Event occurs at any time when any
amount of the Escrowed Funds shall remain subject to the escrow of the Escrow
Agreement, the Company shall redeem the Securities (or a portion thereof, if the
proviso to this sentence is applicable), at a redemption price in cash equal to
100% of the Accreted Value thereof at the redemption date, plus accrued and
unpaid interest, if any, to the redemption date on the 45th day (or if such day
is not a Business Day, the next following Business Day) following the occurrence
of a Triggering Event; provided, however, that if the amount of Escrowed Funds
remaining subject to the escrow of the Escrow Agreement at the redemption date
(the "Available Funds") is less than the aggregate Accreted Value of all the
Securities at the redemption date, then the Company shall be obligated to redeem
pursuant to this paragraph only a portion of the Securities having an aggregate
Accreted Value at the redemption date equal to the amount of Available Funds.
7. Notice of Redemption
<PAGE>
4
Notice of redemption pursuant to paragraph 5 will be mailed at
least 30 days but not more than 60 days before the redemption date and notice of
redemption pursuant to paragraph 6 will be mailed promptly following the
occurrence of a Triggering Event but at least 30 days before the redemption date
to each Holder of Securities to be redeemed at his registered address.
Securities in denominations larger than $1,000 Principal Amount at Maturity may
be redeemed in part but only in whole multiples of $1,000 Principal Amount at
Maturity. If money sufficient to pay the redemption price of all Securities (or
portions thereof) to be redeemed on the redemption date is deposited with the
Paying Agent on or before the redemption date and certain other conditions are
satisfied, on and after such date Accreted Value ceases to increase, and
interest, if any, ceases to accrue, on such Securities (or such portions
thereof) called for redemption.
8. Put Provisions
Upon a Change of Control, any Holder of Securities will have
the right to cause the Company to repurchase all or any part of the Securities
of such Holder at a repurchase price equal to the Put Amount of the Securities
to be repurchased plus accrued and unpaid interest, if any, to the date of
repurchase, in each case as provided in, and subject to the terms of, the
Indenture.
9. Guarantee; Security; Priority
To secure the due and punctual payment of the Principal and
interest, if any, on the Securities and all other amounts payable by the Company
under the Indenture and the Securities when and as the same shall be due and
payable, whether at maturity, by acceleration or otherwise, according to the
terms of the Securities and the Indenture, (i) Coleman Worldwide Corporation
("Guarantor") has guaranteed the Obligations on a non-recourse basis pursuant to
the terms of the Indenture and (ii) each of the Company and the Guarantor has
granted a security interest in the Collateral provided by it to the Trustee for
the benefit of the Holders of Securities pursuant to the Indenture. The
Collateral is subject to release from the Lien of the Indenture to the extent
provided therein. Proceeds of Collateral will be applied first to pay all First
Priority Initial Notes and First Priority Exchange Notes in full before any
payments are made on the Second Priority Initial Notes or the Second Priority
Exchange Notes.
<PAGE>
5
10. Denominations; Transfer; Exchange
The Securities are in registered form without coupons in
denominations of Principal Amount at Maturity of $1,000 and whole multiples of
$1,000. A Holder may transfer or exchange Securities in accordance with the
Indenture. The Registrar may require a Holder, among other things, to furnish
appropriate endorsements or transfer documents and to pay any taxes and fees
required by law or permitted by the Indenture. The Registrar need not register
the transfer of or exchange any Securities selected for redemption (except, in
the case of a Security to be redeemed in part, the portion of the Security not
to be redeemed) or any Securities for a period of 15 days before a selection of
Securities to be redeemed.
11. Persons Deemed Owners
The registered Holder of this Security may be treated as the
owner of it for all purposes.
12. Unclaimed Money
If money for the payment of Principal or interest, if any,
remains unclaimed for two years, the Trustee or Paying Agent shall pay the money
back to the Company at its request unless an abandoned property law designates
another person. After any such payment, Holders entitled to the money must look
only to the Company and not to the Trustee for payment.
13. Defeasance
Subject to certain conditions, the Company at any time may
terminate some or all of its obligations under the Securities and the Indenture
if the Company deposits with the Trustee money or U.S. Government Obligations
for the payment of Principal and interest, if any, on the Securities to
redemption or maturity, as the case may be.
<PAGE>
6
14. Amendment, Waiver
Subject to certain exceptions set forth in the Indenture, (i)
the Indenture or the Securities may be amended with the written consent of the
Holders of at least a majority in Principal Amount at Maturity outstanding of
the Securities and (ii) any default or noncompliance with any provision may be
waived with the written consent of the Holders of a majority in Principal Amount
at Maturity outstanding of the Securities. Subject to certain exceptions set
forth in the Indenture, without the consent of any Securityholder, the Company
and the Trustee may amend the Indenture or the Securities to cure any ambiguity,
omission, defect or inconsistency, or to comply with Article V of the Indenture,
or to provide for uncertificated Securities in addition to or in place of
certificated Securities, or to add guarantees with respect to the Securities or
to secure (or provide additional security for) the Securities, or to add
additional covenants or surrender rights and powers conferred on the Company, or
to provide for the issuance of the Exchange Notes, or to comply with any request
of the SEC in connection with qualifying the Indenture under the Act or to
otherwise comply with the Act, or to make any change that does not adversely
affect the rights of any Securityholder. A consent to any amendment or waiver of
any provision in the Indenture or in the Securities by any Holder given in
connection with a tender of such Holder's Securities shall not be rendered
invalid by such tender.
15. Defaults and Remedies
Under the Indenture, Events of Default include (i) default for
30 days in payment of interest, if any, on the Securities; (ii) default in
payment of Principal on the Securities at maturity, upon redemption pursuant to
paragraph 5 or paragraph 6 of the Securities, upon declaration or otherwise, or
failure by the Company to redeem or purchase Securities when required; (iii)
failure by the Company to comply with other agreements in the Indenture or the
Securities or the Escrow Agreement, in certain cases subject to notice and lapse
of time; (iv) certain accelerations (including failure to pay within any grace
period after final maturity) of other Debt of the Company or any Significant
Subsidiary if the total principal amount on the portion of such Debt that is
accelerated (or so unpaid) exceeds $25,000,000 and continues for 5 days after
the required notice to the Company or such Significant Subsidiary; (v) certain
events of bankruptcy or insolvency with respect to the Company or any
Significant Subsidiary; (vi) certain judgments or decrees for the payment of
money in excess of $25,000,000; and (vii) failure by the Guarantor to purchase
LYONS when required and the aggregate purchase price of such LYONS not so
purchased exceeds $25 million. If an Event of Default occurs and is continuing,
the Trustee or the Holders of at least 25% in Principal Amount at Maturity of
the Securities may declare the Default Amount of all the
<PAGE>
7
Securities to be due and payable immediately. Certain events of bankruptcy or
insolvency are Events of Default which will result in the Default Amount of the
Securities being due and payable immediately upon the occurrence of such Events
of Default.
Securityholders may not enforce the Indenture or the
Securities except as provided in the Indenture. The Trustee may refuse to
enforce the Indenture or the Securities unless it receives reasonable indemnity
or security. Subject to certain limitations, Holders of a majority in Principal
Amount at Maturity of the Securities may direct the Trustee in its exercise of
any trust or power. The Trustee may with hold from Securityholders notice of any
continuing Default (except a Default in payment of Principal or interest) if it
determines that withholding notice is in their interest.
16. Trustee Dealings with the Company
Subject to certain limitations imposed by the Act, the Trustee
under the Indenture, in its individual or any other capacity, may become the
owner or pledgee of Securities and may otherwise deal with and collect
obligations owed to it by the Company or its Affiliates and may otherwise deal
with the Company or its Affiliates with the same rights it would have if it were
not Trustee.
17. No Recourse Against Others
A director, officer, employee or stockholder, as such, of the
Company, the Guarantor or the Trustee shall not have any liability for any
obligations of the Company, the Guarantor or the Trustee under the Securities or
the Indenture or for any claim based on, in respect of or by reason of such
obligations or their creation. By accepting a Security, each Securityholder
waives and releases all such liability. The waiver and release are part of the
consideration for the issue of the Securities.
18. Authentication
This Security shall not be valid until an authorized signatory
of the Trustee (or an authenticating agent) manually signs the certificate of
authentication on the other side of this Security.
<PAGE>
8
19. Abbreviations
Customary abbreviations may be used in the name of a
Securityholder or an assignee, such as TEN COM (=tenants in common), TEN ENT
(=tenants by the entireties), JT TEN (=joint tenants with rights of survivorship
and not as tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to
Minors Act).
20. CUSIP Numbers
Pursuant to a recommendation promulgated by the Committee on
Uniform Security Identification Procedures, the Company has caused CUSIP numbers
to be printed on the Securities and has directed the Trustee to use CUSIP
numbers in notices of redemption as a convenience to Securityholders. No
representation is made as to the accuracy of such numbers either as printed on
the Securities or as contained in any notice of redemption and reliance may be
placed only on the other identification numbers placed thereon.
The Company will furnish to any Securityholder upon written request and without
charge to the Securityholder a copy of the Indenture which has in it the text of
this Security in larger type. Requests may be made to: Coleman Escrow Corp.,
5900 North Andrews Avenue, Suite 700, Fort Lauderdale, Florida 33309-7098,
Attention: Secretary.
<PAGE>
- --------------------------------------------------------------------------------
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
(Print or type assignee's name, address and zip code)
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint agent to transfer this Security
on the books of the Company. The agent may substitute another to
act for him.
Date: Your Signature:
-------------------------- ---------------------------------
(Sign exactly as your name appears
on the other side of the Security)
Signature Guarantee:
------------------------------------------
(Signature must be guaranteed)
- --------------------------------------------------------------------------------
[THE FOLLOWING PROVISION TO BE INCLUDED
ON ALL CERTIFICATES EXCEPT PERMANENT
OFFSHORE PHYSICAL NOTES]
In connection with any transfer of this Note occurring prior
to the date that is the earlier of (i) the date of an effective registration
statement with respect to the Registered Exchange Offer or the resale of the
Initial Notes and (ii) May 20, 1999, the undersigned confirms that without
utilizing any general solicitation or general advertising that:
[Check One]
[ ](a) this Note is being transferred in compliance with the exemption
from registration under the Securities Act of 1933, as amended,
provided by Rule 144A thereunder.
<PAGE>
2
or
[ ](b) this Note is being transferred other than in accordance with (a)
above and documents are being furnished that comply with the conditions
of transfer set forth in this Note and the Indenture.
If neither of the foregoing boxes is checked, the Trustee or other Registrar
shall not be obligated to register this Note in the name of any Person other
than the Holder hereof unless and until the conditions to any such transfer of
registration set forth herein and in Section 2.06 of the Indenture shall have
been satisfied.
Date:
---------------- ----------------------------------------------
NOTICE: The signature must correspond
with the name as written
upon the face of the
within-mentioned instrument
in every particular,
without alteration or any
change whatsoever.
Signature Guarantee:
------------------------------------------------------------
TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing
this Note for its own account or an account with respect to which it exercises
sole investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act of
1933, as amended, and is aware that the sale to it is being made in reliance on
Rule 144A and acknowledges that it has received such information regarding the
Company as the undersigned has requested pursuant to Rule 144A or has determined
not to request such information and that it is aware that the transferor is
relying upon the undersigned's foregoing representations in order to claim the
exemption from registration provided by Rule 144A.
Dated: NOTICE: To be executed by an executive officer.
-----------------------
<PAGE>
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the
Company pursuant to Section 4.08 of the Indenture, check the box:
/ /
If you want to elect to have only part of this Security
purchased by the Company pursuant to Section 4.08 of the Indenture, state the
Principal Amount at Maturity: $
Date: Your Signature:
------------------ ---------------------------------------
(Sign exactly as your name appears
on the other side of the Security)
Your Signature:
---------------------------------------
(Sign exactly as your name appears
on the other side of the Security)
Signature Guarantee:
------------------------------------------------------------
(Signature must be guaranteed)
<PAGE>
EXHIBIT C
[FORM OF FACE OF FIRST PRIORITY EXCHANGE NOTE]
FOR PURPOSES OF SECTION 1273 OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE"), THIS SECURITY HAS ORIGINAL ISSUE DISCOUNT. FOR
PURPOSES OF SECTION 1273 OF THE CODE, THE ISSUE PRICE IS $649.49 AND THE AMOUNT
OF ORIGINAL ISSUE DISCOUNT IS $350.51, IN EACH CASE PER $1,000 PRINCIPAL AMOUNT
AT MATURITY OF THIS SECURITY. FOR PURPOSES OF SECTION 1275 OF THE CODE, THE
ISSUE DATE OF THIS SECURITY IS MAY 20, 1997. FOR PURPOSES OF SECTION 1272 OF THE
CODE, THE YIELD TO MATURITY (COMPOUNDED SEMI-ANNUALLY) IS 11 1/8%. IN ADDITION,
THERE MAY BE CONTINGENT INTEREST PAYABLE ON THIS SECURITY.
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY ("DTC") TO THE COMPANY OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER REPRESENTATIVE OF
DTC AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO
TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR
THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL
SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS
SET FORTH IN SECTIONS 2.12 AND 2.13 OF THE INDENTURE.](4)
- --------
(4) Bracketed language is the Global Note Legend to be included only in the
Global Notes.
<PAGE>
No. CUSIP
COLEMAN ESCROW CORP.
Senior Secured First Priority Discount Note due 2001
Principal Amount at Maturity $
--------------
Coleman Escrow Corp., a Delaware corporation, promises to pay
to , or registered assigns, the
principal sum of Dollars on May 15,
2001.
Additional provisions of this Security are set forth on the
other side of this Security.
COLEMAN ESCROW CORP.
by
--------------------------
Vice President
--------------------------
Assistant Secretary
Dated:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
FIRST TRUST NATIONAL [Seal]
ASSOCIATION
as Trustee, certifies that
this is one of the Securities
referred to in the Indenture.
by
-----------------------------
Authorized Signatory
<PAGE>
[FORM OF REVERSE SIDE OF FIRST PRIORITY EXCHANGE NOTE]
COLEMAN ESCROW CORP.
Senior Secured First Priority Discount Exchange Note due 2001
1. Interest
There will be no periodic payments of interest. Coleman Escrow
Corp., a Delaware corporation (such corporation, and its successors and assigns
under the Indenture hereinafter referred to, being called the "Company"), shall
pay interest on overdue Principal at the rate of 12 1/8% per annum, and it shall
pay interest on overdue installments of interest at the same rate to the extent
lawful.
2. Method of Payment
Holders must surrender Securities to a Paying Agent to collect
Principal payments. The Company will pay Principal in money of the United States
that at the time of payment is legal tender for payment of public and private
debts. However, the Company may pay Principal and interest, if any, by check
payable in such money; provided, that all payments with respect to U.S. Global
Notes and Physical Notes the holders of which have given wire transfer
instructions to the Company, will be required to be made by wire transfer of
immediately available funds to the accounts specified by the holders thereof.
3. Paying Agent and Registrar
Initially, First Trust National Association ("Trustee"), will
act as Paying Agent and Registrar. The Company may appoint and change any Paying
Agent, Registrar or co-registrar without notice. The Company or any of its
domestically incorporated Wholly Owned Recourse Subsidiaries may act as Paying
Agent, Registrar, co-registrar or transfer agent.
4. Indenture
The Company issued the Securities under an Indenture dated as
of May 20, 1997 ("Indenture"), between the Company and the Trustee. The terms of
the Securities include those stated in the Indenture and those made part of the
Indenture by reference to the Trust Indenture Act of 1939 (15 U.S.C. ss.ss.
77aaa-77bbbb) as in effect on the date of the Indenture (the "Act").
Capitalized terms used
<PAGE>
2
herein and not defined herein have the meanings ascribed thereto in the
Indenture. The Securities are subject to all such terms, and Securityholders are
referred to the Indenture and the Act for a statement of those terms.
The Securities are secured obligations of the Company limited
to with respect to the First Priority Initial Notes, $600,475,000 aggregate
Principal Amount at Maturity, and with respect to the Second Priority Initial
Notes, $131,560,000 aggregate Principal Amount at Maturity (each subject to
Section 2.07 of the Indenture). This Security is one of the First Priority
Exchange Notes referred to in the Indenture. The Securities include the First
Priority Initial Notes, the Second Priority Initial Notes and any Exchange Notes
issued in exchange for the Initial Notes pursuant to the Indenture. The First
Priority Initial Notes, the Second Priority Initial Notes and the Exchange Notes
are treated as a single class of securities under the Indenture except as
expressly provided therein. The Indenture imposes certain limitations on, among
other things, the issuance of debt and redeemable stock by the Company, the
issuance of debt and preferred stock by Holdings, Worldwide, Coleman and its
Subsidiaries, the payment of dividends and other distributions on, and
acquisitions or retirements of, the Company's Capital Stock, the creation of
liens on assets of the Company, the sale or transfer of assets and Subsidiary
stock and transactions with Affiliates.
5. Optional Redemption
Except as set forth below, the Securities may not be redeemed
by the Company prior to May 15, 2000. On and after such date, the Company may
redeem the Securities in whole at any time or in part from time to time at the
redemption prices listed below (expressed as percentages of Accreted Value as of
the redemption date) for the periods indicated plus accrued and unpaid interest,
if any, to the redemption date (subject to the right of holders of record on the
relevant record date to receive interest due, if any, on the relevant interest
payment date):
Period Redemption Price
------ ----------------
From May 15, 2000 through
May 14, 2001 102.781%
Thereafter, the Company may redeem the Securities in whole at any time or in
part from time to time at a redemption price of 100% of the Principal Amount at
Maturity of the Securities to be redeemed, plus accrued and unpaid interest, if
any, to the redemption date.
<PAGE>
3
The Securities may be redeemed at the option of the Company at
any time as a whole at a redemption price equal to the sum of (i) the Accreted
Value thereof at the date of redemption, plus (ii) the Applicable Premium at the
date of redemption.
6. Mandatory Redemption
In the event a Triggering Event occurs at any time when any
amount of the Escrowed Funds shall remain subject to the escrow of the Escrow
Agreement, the Company shall redeem the Securities (or a portion thereof, if the
proviso to this sentence is applicable), at a redemption price in cash equal to
100% of the Accreted Value thereof at the redemption date, plus accrued and
unpaid interest, if any, to the redemption date on the 45th day (or if such day
is not a Business Day, the next following Business Day) following the occurrence
of a Triggering Event; provided, however, that if the amount of Escrowed Funds
remaining subject to the escrow of the Escrow Agreement at the redemption date
(the "Available Funds") is less than the aggregate Accreted Value of all the
Securities at the redemption date, then the Company shall be obligated to redeem
pursuant to this paragraph only a portion of the Securities having an aggregate
Accreted Value at the redemption date equal to the amount of Available Funds.
7. Notice of Redemption
Notice of redemption will pursuant to paragraph 5 be mailed at
least 30 days but not more than 60 days before the redemption date and notice of
redemption pursuant to paragraph 6 will be mailed promptly following the
occurrence of a Triggering Event but at least 30 days before the redemption date
to each Holder of Securities to be redeemed at his registered address.
Securities in denominations larger than $1,000 Principal Amount at Maturity may
be redeemed in part but only in whole multiples of $1,000 Principal Amount at
Maturity. If money sufficient to pay the redemption price of all Securities (or
portions thereof) to be redeemed on the redemption date is deposited with the
Paying Agent on or before the redemption date and certain other conditions are
satisfied, on and after such date Accreted Value ceases to increase, and
interest, if any, ceases to accrue, on such Securities (or such portions
thereof) called for redemption.
8. Put Provisions
Upon a Change of Control, any Holder of Securities will have
the right to cause the Company to repurchase all or any part of the Securities
of such
<PAGE>
4
Holder at a repurchase price equal to the Put Amount of the Securities to be
repurchased plus accrued and unpaid interest, if any, to the date of repurchase,
in each case as provided in, and subject to the terms of, the Indenture.
9. Guarantee; Security; Priority
To secure the due and punctual payment of the Principal and
interest, if any, on the Securities and all other amounts payable by the Company
under the Indenture and the Securities when and as the same shall be due and
payable, whether at maturity, by acceleration or otherwise, according to the
terms of the Securities and the Indenture, (i) Coleman Worldwide Corporation
("Guarantor") has guaranteed the Obligations on a non-recourse basis pursuant to
the terms of the Indenture and (ii) each of the Company and the Guarantor has
granted a security interest in the Collateral provided by it to the Trustee for
the benefit of the Holders of Securities pursuant to the Indenture. The
Collateral is subject to release from the Lien of the Indenture to the extent
provided therein. Proceeds of Collateral will be applied first to pay all First
Priority Initial Notes and First Priority Exchange Notes in full before any
payments are made on the Second Priority Initial Notes or the Second Priority
Exchange Notes.
10. Denominations; Transfer; Exchange
The Securities are in registered form without coupons in
denominations of Principal Amount at Maturity of $1,000 and whole multiples of
$1,000. A Holder may transfer or exchange Securities in accordance with the
Indenture. The Registrar may require a Holder, among other things, to furnish
appropriate endorsements or transfer documents and to pay any taxes and fees
required by law or permitted by the Indenture. The Registrar need not register
the transfer of or exchange any Securities selected for redemption (except, in
the case of a Security to be redeemed in part, the portion of the Security not
to be redeemed) or any Securities for a period of 15 days before a selection of
Securities to be redeemed.
11. Persons Deemed Owners
The registered Holder of this Security may be treated as the
owner of it for all purposes.
<PAGE>
5
12. Unclaimed Money
If money for the payment of Principal or interest, if any,
remains unclaimed for two years, the Trustee or Paying Agent shall pay the money
back to the Company at its request unless an abandoned property law designates
another person. After any such payment, Holders entitled to the money must look
only to the Company and not to the Trustee for payment.
13. Defeasance
Subject to certain conditions, the Company at any time may
terminate some or all of its obligations under the Securities and the Indenture
if the Company deposits with the Trustee money or U.S. Government Obligations
for the payment of Principal and interest, if any, on the Securities to
redemption or maturity, as the case may be.
14. Amendment, Waiver
Subject to certain exceptions set forth in the Indenture, (i)
the Indenture or the Securities may be amended with the written consent of the
Holders of at least a majority in Principal Amount at Maturity outstanding of
the Securities and (ii) any default or noncompliance with any provision may be
waived with the written consent of the Holders of a majority in Principal Amount
at Maturity outstanding of the Securities. Subject to certain exceptions set
forth in the Indenture, without the consent of any Securityholder, the Company
and the Trustee may amend the Indenture or the Securities to cure any ambiguity,
omission, defect or inconsistency, or to comply with Article V of the Indenture,
or to provide for uncertificated Securities in addition to or in place of
certificated Securities, or to add guarantees with respect to the Securities or
to secure (or provide additional security for) the Securities, or to add
additional covenants or surrender rights and powers conferred on the Company, or
to comply with any request of the SEC in connection with qualifying the
Indenture under the Act or to otherwise comply with the Act, or to make any
change that does not adversely affect the rights of any Securityholder. A
consent to any amendment or waiver of any provision in the Indenture or in the
Securities by any Holder given in connection with a tender of such Holder's
Securities shall not be rendered invalid by such tender.
<PAGE>
6
15. Defaults and Remedies
Under the Indenture, Events of Default include (i) default for
30 days in payment of interest, if any, on the Securities; (ii) default in
payment of Principal on the Securities at maturity, upon redemption pursuant to
paragraph 5 or paragraph 6 of the Securities, upon declaration or otherwise, or
failure by the Company to redeem or purchase Securities when required; (iii)
failure by the Company to comply with other agreements in the Indenture or the
Securities or the Escrow Agreement, in certain cases subject to notice and lapse
of time; (iv) certain accelerations (including failure to pay within any grace
period after final maturity) of other Debt of the Company or any Significant
Subsidiary if the total principal amount on the portion of such Debt that is
accelerated (or so unpaid) exceeds $25,000,000 and continues for 5 days after
the required notice to the Company or such Significant Subsidiary; (v) certain
events of bankruptcy or insolvency with respect to the Company or any
Significant Subsidiary; (vi) certain judgments or decrees for the payment of
money in excess of $25,000,000; and (vii) failure by the Guarantor to purchase
LYONS when required and the aggregate purchase price of such LYONS not so
purchased exceeds $25 million. If an Event of Default occurs and is continuing,
the Trustee or the Holders of at least 25% in Principal Amount at Maturity of
the Securities may declare the Default Amount of all the Securities to be due
and payable immediately. Certain events of bankruptcy or insolvency are Events
of Default which will result in the Default Amount of the Securities being due
and payable immediately upon the occurrence of such Events of Default.
Securityholders may not enforce the Indenture or the
Securities except as provided in the Indenture. The Trustee may refuse to
enforce the Indenture or the Securities unless it receives reasonable indemnity
or security. Subject to certain limitations, Holders of a majority in Principal
Amount of Maturity of the Securities may direct the Trustee in its exercise of
any trust or power. The Trustee may withhold from Securityholders notice of any
continuing Default (except a Default in payment of Principal or interest) if it
determines that withholding notice is in their interest.
16. Trustee Dealings with the Company
Subject to certain limitations imposed by the Act, the Trustee
under the Indenture, in its individual or any other capacity, may become the
owner or pledgee of Securities and may otherwise deal with and collect
obligations owed to it by the Company or its Affiliates and may otherwise deal
with the Company or its Affiliates with the same rights it would have if it were
not Trustee.
<PAGE>
7
17. No Recourse Against Others
A director, officer, employee or stockholder, as such, of the
Company, the Guarantor or the Trustee shall not have any liability for any
obligations of the Company, the Guarantor or the Trustee under the Securities or
the Indenture or for any claim based on, in respect of or by reason of such
obligations or their creation. By accepting a Security, each Securityholder
waives and releases all such liability. The waiver and release are part of the
consideration for the issue of the Securities.
18. Authentication
This Security shall not be valid until an authorized signatory
of the Trustee (or an authenticating agent) manually signs the certificate of
authentication on the other side of this Security.
19. Abbreviations
Customary abbreviations may be used in the name of a
Securityholder or an assignee, such as TEN COM (=tenants in common), TEN ENT
(=tenants by the entireties), JT TEN (=joint tenants with rights of survivorship
and not as tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to
Minors Act).
20. CUSIP Numbers
Pursuant to a recommendation promulgated by the Committee on
Uniform Security Identification Procedures, the Company has caused CUSIP numbers
to be printed on the Securities and has directed the Trustee to use CUSIP
numbers in notices of redemption as a convenience to Securityholders. No
representation is made as to the accuracy of such numbers either as printed on
the Securities or as contained in any notice of redemption and reliance may be
placed only on the other identification numbers placed thereon.
The Company will furnish to any Securityholder upon written request and without
charge to the Securityholder a copy of the Indenture which has in it the text of
this Security in larger type. Requests may be made to: Coleman Escrow Corp.,
5900 North Andrews Avenue, Suite 700, Fort Lauderdale, Florida 33309-7098,
Attention: Secretary.
<PAGE>
- --------------------------------------------------------------------------------
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
(Print or type assignee's name, address and zip code)
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint agent to transfer this Security
on the books of the Company. The agent may substitute another to
act for him.
Date: Your Signature:
-------------------------- ---------------------------------
(Sign exactly as your name appears
on the other side of the Security)
Signature Guarantee:
------------------------------------------
(Signature must be guaranteed)
- --------------------------------------------------------------------------------
<PAGE>
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the
Company pursuant to Section 4.08 of the Indenture, check the box:
$
/ /
If you want to elect to have only part of this Security
purchased by the Company pursuant to Section 4.08 of the Indenture, state the
Principal Amount at Maturity: $
Date: Your Signature:
------------------ ---------------------------------------
(Sign exactly as your name appears
on the other side of the Security)
Your Signature:
---------------------------------------
(Sign exactly as your name appears
on the other side of the Security)
Signature Guarantee:
------------------------------------------------------------
(Signature must be guaranteed)
<PAGE>
EXHIBIT D
[FORM OF SECOND PRIORITY EXCHANGE NOTE]
FOR PURPOSES OF SECTION 1273 OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE"), THIS SECURITY HAS ORIGINAL ISSUE DISCOUNT. FOR
PURPOSES OF SECTION 1273 OF THE CODE, THE ISSUE PRICE IS $608.12 AND THE AMOUNT
OF ORIGINAL ISSUE DISCOUNT IS $391.88, IN EACH CASE PER $1,000 PRINCIPAL AMOUNT
AT MATURITY OF THIS SECURITY. FOR PURPOSES OF SECTION 1275 OF THE CODE, THE
ISSUE DATE OF THIS SECURITY IS MAY 20, 1997. FOR PURPOSES OF SECTION 1272 OF THE
CODE, THE YIELD TO MATURITY (COMPOUNDED SEMI-ANNUALLY) IS 12 7/8%. IN ADDITION,
THERE MAY BE CONTINGENT INTEREST PAYABLE ON THIS SECURITY.
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY ("DTC") TO THE COMPANY OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER REPRESENTATIVE OF
DTC AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO
TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR
THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL
SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS
SET FORTH IN SECTIONS 2.12 AND 2.13 OF THE INDENTURE.](5)
- --------
(5) Bracketed language is the Global Note Legend to be included only in the
Global Notes.
<PAGE>
No. CUSIP
COLEMAN ESCROW CORP.
Senior Secured First Priority Discount Note due 2001
Principal Amount at Maturity $
--------------
Coleman Escrow Corp., a Delaware corporation, promises to pay
to , or registered assigns, the
principal sum of Dollars on May 15,
2001.
Additional provisions of this Security are set forth on the
other side of this Security.
COLEMAN ESCROW CORP.
by
------------------------
Vice President
------------------------
Assistant Secretary
Dated:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
FIRST TRUST NATIONAL [Seal]
ASSOCIATION
as Trustee, certifies that
this is one of the Securities
referred to in the Indenture.
by
-----------------------------
Authorized Signatory
<PAGE>
[FORM OF REVERSE SIDE OF SECOND PRIORITY EXCHANGE NOTE]
COLEMAN ESCROW CORP.
Senior Secured Second Priority Discount Exchange Note due 2001
1. Interest
There will be no periodic payments of interest. Coleman Escrow
Corp., a Delaware corporation (such corporation, and its successors and assigns
under the Indenture hereinafter referred to, being called the "Company"), shall
pay interest on overdue Principal at the rate of 13 7/8% per annum, and it shall
pay interest on overdue installments of interest at the same rate to the extent
lawful.
2. Method of Payment
Holders must surrender Securities to a Paying Agent to collect
Principal payments. The Company will pay Principal in money of the United States
that at the time of payment is legal tender for payment of public and private
debts. However, the Company may pay Principal and interest, if any, by check
payable in such money; provided, that all payments with respect to U.S. Global
Notes and Physical Notes the holders of which have given wire transfer
instructions to the Company, will be required to be made by wire transfer of
immediately available funds to the accounts specified by the holders thereof.
3. Paying Agent and Registrar
Initially, First Trust National Association ("Trustee"), will
act as Paying Agent and Registrar. The Company may appoint and change any Paying
Agent, Registrar or co-registrar without notice. The Company or any of its
domestically incorporated Wholly Owned Recourse Subsidiaries may act as Paying
Agent, Registrar, co-registrar or transfer agent.
4. Indenture
The Company issued the Securities under an Indenture dated as
of May 20, 1997 ("Indenture"), between the Company and the Trustee. The terms of
the Securities include those stated in the Indenture and those made part of the
Indenture by reference to the Trust Indenture Act of 1939 (15 U.S.C. ss.ss.
77aaa-77bbbb) as in effect on the date of the Indenture (the "Act"). Capitalized
terms used herein and not defined herein have the
<PAGE>
2
meanings ascribed thereto in the Indenture. The Securities are subject to all
such terms, and Securityholders are referred to the Indenture and the Act for a
statement of those terms.
The Securities are secured obligations of the Company limited
to with respect to the First Priority Initial Notes, $600,475,000 aggregate
Principal Amount at Maturity, and with respect to the Second Priority Initial
Notes, $131,560,000 aggregate Principal Amount at Maturity (each subject to
Section 2.07 of the Indenture). This Security is one of the Second Priority
Exchange Notes referred to in the Indenture. The Securities include the First
Priority Initial Notes, the Second Priority Initial Notes and any Exchange Notes
issued in exchange for the Initial Notes pursuant to the Indenture. The First
Priority Initial Notes, the Second Priority Initial Notes and the Exchange Notes
are treated as a single class of securities under the Indenture except as
expressly provided therein. The Indenture imposes certain limitations on, among
other things, the issuance of debt and redeemable stock by the Company, the
issuance of debt and preferred stock by Holdings, Worldwide, Coleman and its
Subsidiaries, the payment of dividends and other distributions on, and
acquisitions or retirements of, the Company's Capital Stock, the creation of
liens on assets of the Company, the sale or transfer of assets and Subsidiary
stock and transactions with Affiliates.
5. Optional Redemption
Except as set forth below, the Securities may not be redeemed
by the Company prior to May 15, 2000. On and after such date, the Company may
redeem the Securities in whole at any time or in part from time to time at the
redemption prices listed below (expressed as percentages of Accreted Value as of
the redemption date) for the periods indicated plus accrued and unpaid interest,
if any, to the redemption date (subject to the right of holders of record on the
relevant record date to receive interest due, if any, on the relevant interest
payment date):
Period Redemption Price
------ ----------------
From May 15, 2000 through
May 14, 2001 103.219%
Thereafter, the Company may redeem the Securities in whole at any time or in
part from time to time at a redemption price of 100% of the Principal Amount at
Maturity of the Securities to be redeemed, plus accrued and unpaid interest, if
any, to the redemption date.
The Securities may be redeemed at the option of the Company at
any time as a whole at a redemption price equal to the sum of (i) the Accreted
Value thereof at the date of redemption, plus (ii) the Applicable Premium at the
date of redemption.
<PAGE>
3
6. Mandatory Redemption
In the event a Triggering Event occurs at any time when any
amount of the Escrowed Funds shall remain subject to the escrow of the Escrow
Agreement, the Company shall redeem the Securities (or a portion thereof, if the
proviso to this sentence is applicable), at a redemption price in cash equal to
100% of the Accreted Value thereof at the redemption date, plus accrued and
unpaid interest, if any, to the redemption date on the 45th day (or if such day
is not a Business Day, the next following Business Day) following the occurrence
of a Triggering Event; provided, however, that if the amount of Escrowed Funds
remaining subject to the escrow of the Escrow Agreement at the redemption date
(the "Available Funds") is less than the aggregate Accreted Value of all the
Securities at the redemption date, then the Company shall be obligated to redeem
pursuant to this paragraph only a portion of the Securities having an aggregate
Accreted Value at the redemption date equal to the amount of Available Funds.
7. Notice of Redemption
Notice of redemption pursuant to paragraph 5 will be mailed at
least 30 days but not more than 60 days before the redemption date and notice of
redemption pursuant to paragraph 6 will be mailed promptly following the
occurrence of a Triggering Event but at least 30 days before the redemption date
to each Holder of Securities to be redeemed at his registered address.
Securities in denominations larger than $1,000 Principal Amount at Maturity may
be redeemed in part but only in whole multiples of $1,000 Principal Amount at
Maturity. If money sufficient to pay the redemption price of all Securities (or
portions thereof) to be redeemed on the redemption date is deposited with the
Paying Agent on or before the redemption date and certain other conditions are
satisfied, on and after such date Accreted Value ceases to increase, and
interest, if any, ceases to accrue, on such Securities (or such portions
thereof) called for redemption.
8. Put Provisions
Upon a Change of Control, any Holder of Securities will have
the right to cause the Company to repurchase all or any part of the Securities
of such Holder at a repurchase price equal to the Put Amount of the Securities
to be repurchased plus accrued and unpaid interest, if any, to the date of
repurchase, in each case as provided in, and subject to the terms of, the
Indenture.
<PAGE>
4
9. Guarantee; Security; Priority
To secure the due and punctual payment of the Principal and
interest, if any, on the Securities and all other amounts payable by the Company
under the Indenture and the Securities when and as the same shall be due and
payable, whether at maturity, by acceleration or otherwise, according to the
terms of the Securities and the Indenture, (i) Coleman Worldwide Corporation
("Guarantor") has guaranteed the Obligations on a non-recourse basis pursuant to
the terms of the Indenture and (ii) each of the Company and the Guarantor has
granted a security interest in the Collateral provided by it to the Trustee for
the benefit of the Holders of Securities pursuant to the Indenture. The
Collateral is subject to release from the Lien of the Indenture to the extent
provided therein. Proceeds of Collateral will be applied first to pay all First
Priority Initial Notes and First Priority Exchange Notes in full before any
payments are made on the Second Priority Initial Notes or the Second Priority
Exchange Notes.
10. Denominations; Transfer; Exchange
The Securities are in registered form without coupons in
denominations of Principal Amount at Maturity of $1,000 and whole multiples of
$1,000. A Holder may transfer or exchange Securities in accordance with the
Indenture. The Registrar may require a Holder, among other things, to furnish
appropriate endorsements or transfer documents and to pay any taxes and fees
required by law or permitted by the Indenture. The Registrar need not register
the transfer of or exchange any Securities selected for redemption (except, in
the case of a Security to be redeemed in part, the portion of the Security not
to be redeemed) or any Securities for a period of 15 days before a selection of
Securities to be redeemed.
11. Persons Deemed Owners
The registered Holder of this Security may be treated as the
owner of it for all purposes.
12. Unclaimed Money
If money for the payment of Principal or interest, if any,
remains unclaimed for two years, the Trustee or Paying Agent shall pay the money
back to the Company at its request unless an abandoned property law designates
another person. After any such payment, Holders entitled to the money must look
only to the Company and not to the Trustee for payment.
<PAGE>
5
13. Defeasance
Subject to certain conditions, the Company at any time may
terminate some or all of its obligations under the Securities and the Indenture
if the Company deposits with the Trustee money or U.S. Government Obligations
for the payment of Principal and interest, if any, on the Securities to
redemption or maturity, as the case may be.
14. Amendment, Waiver
Subject to certain exceptions set forth in the Indenture, (i)
the Indenture or the Securities may be amended with the written consent of the
Holders of at least a majority in Principal Amount at Maturity outstanding of
the Securities and (ii) any default or noncompliance with any provision may be
waived with the written consent of the Holders of a majority in Principal Amount
at Maturity outstanding of the Securities. Subject to certain exceptions set
forth in the Indenture, without the consent of any Securityholder, the Company
and the Trustee may amend the Indenture or the Securities to cure any ambiguity,
omission, defect or inconsistency, or to comply with Article V of the Indenture,
or to provide for uncertificated Securities in addition to or in place of
certificated Securities, or to add guarantees with respect to the Securities or
to secure (or provide additional security for) the Securities, or to add
additional covenants or surrender rights and powers conferred on the Company, or
to comply with any request of the SEC in connection with qualifying the
Indenture under the Act or to otherwise comply with the Act, or to make any
change that does not adversely affect the rights of any Securityholder. A
consent to any amendment or waiver of any provision in the Indenture or in the
Securities by any Holder given in connection with a tender of such Holder's
Securities shall not be rendered invalid by such tender.
15. Defaults and Remedies
Under the Indenture, Events of Default include (i) default for
30 days in payment of interest, if any, on the Securities; (ii) default in
payment of Principal on the Securities at maturity, upon redemption pursuant to
paragraph 5 or paragraph 6 of the Securities, upon declaration or otherwise, or
failure by the Company to redeem or purchase Securities when required; (iii)
failure by the Company to comply with other agreements in the Indenture or the
Securities or the Escrow Agreement, in certain cases subject to notice and lapse
of time; (iv) certain accelerations (including failure to pay within any grace
period after final maturity) of other Debt of the Company or any Significant
Subsidiary if the total principal amount on the portion of such Debt that is
accelerated (or so unpaid) exceeds $25,000,000 and continues for 5 days after
the required notice to the Company or such
<PAGE>
6
Significant Subsidiary; (v) certain events of bankruptcy or insolvency with
respect to the Company or any Significant Subsidiary; (vi) certain judgments or
decrees for the payment of money in excess of $25,000,000; and (vii) failure by
the Guarantor to purchase LYONS when required and the aggregate purchase price
of such LYONS not so purchased exceeds $25 million. If an Event of Default
occurs and is continuing, the Trustee or the Holders of at least 25% in
Principal Amount at Maturity of the Securities may declare the Default Amount of
all the Securities to be due and payable immediately. Certain events of
bankruptcy or insolvency are Events of Default which will result in the Default
Amount of the Securities being due and payable immediately upon the occurrence
of such Events of Default.
Securityholders may not enforce the Indenture or the
Securities except as provided in the Indenture. The Trustee may refuse to
enforce the Indenture or the Securi ties unless it receives reasonable indemnity
or security. Subject to certain limitations, Holders of a majority in Principal
Amount of Maturity of the Securities may direct the Trustee in its exercise of
any trust or power. The Trustee may withhold from Securityholders notice of any
continuing Default (except a Default in payment of Principal or interest) if it
determines that withholding notice is in their interest.
16. Trustee Dealings with the Company
Subject to certain limitations imposed by the Act, the Trustee
under the Indenture, in its individual or any other capacity, may become the
owner or pledgee of Securities and may otherwise deal with and collect
obligations owed to it by the Company or its Affiliates and may otherwise deal
with the Company or its Affiliates with the same rights it would have if it were
not Trustee.
17. No Recourse Against Others
A director, officer, employee or stockholder, as such, of the
Company, the Guarantor or the Trustee shall not have any liability for any
obligations of the Company, the Guarantor or the Trustee under the Securities or
the Indenture or for any claim based on, in respect of or by reason of such
obligations or their creation. By accepting a Security, each Securityholder
waives and releases all such liability. The waiver and release are part of the
consideration for the issue of the Securities.
<PAGE>
7
18. Authentication
This Security shall not be valid until an authorized signatory
of the Trustee (or an authenticating agent) manually signs the certificate of
authentication on the other side of this Security.
19. Abbreviations
Customary abbreviations may be used in the name of a
Securityholder or an assignee, such as TEN COM (=tenants in common), TEN ENT
(=tenants by the entireties), JT TEN (=joint tenants with rights of survivorship
and not as tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to
Minors Act).
20. CUSIP Numbers
Pursuant to a recommendation promulgated by the Committee on
Uniform Security Identification Procedures, the Company has caused CUSIP numbers
to be printed on the Securities and has directed the Trustee to use CUSIP
numbers in notices of redemption as a convenience to Securityholders. No
representation is made as to the accuracy of such numbers either as printed on
the Securities or as contained in any notice of redemption and reliance may be
placed only on the other identification numbers placed thereon.
The Company will furnish to any Securityholder upon written request and without
charge to the Securityholder a copy of the Indenture which has in it the text of
this Security in larger type. Requests may be made to: Coleman Escrow Corp.,
5900 North Andrews Avenue, Suite 700, Fort Lauderdale, Florida 33309-7098,
Attention: Secretary.
<PAGE>
- --------------------------------------------------------------------------------
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
(Print or type assignee's name, address and zip code)
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint agent to transfer this Security
on the books of the Company. The agent may substitute another to
act for him.
Date: Your Signature:
-------------------------- ---------------------------------
(Sign exactly as your name appears
on the other side of the Security)
Signature Guarantee:
------------------------------------------
(Signature must be guaranteed)
- --------------------------------------------------------------------------------
<PAGE>
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the
Company pursuant to Section 4.08 of the Indenture, check the box:
$
/ /
If you want to elect to have only part of this Security
purchased by the Company pursuant to Section 4.08 of the Indenture, state the
Principal Amount at Maturity: $
Date: Your Signature:
------------------ ---------------------------------------
(Sign exactly as your name appears
on the other side of the Security)
Your Signature:
---------------------------------------
(Sign exactly as your name appears
on the other side of the Security)
Signature Guarantee:
------------------------------------------------------------
(Signature must be guaranteed)
<PAGE>
EXHIBIT E
[FORM OF CERTIFICATE TO BE DELIVERED
UPON TERMINATION OF RESTRICTED PERIOD]
On or after June 29, 1997
First Trust National Association
One Illinois Center
111 East Wacker Drive, Suite 3000
Chicago, IL 60601
Re: COLEMAN ESCROW CORP. (the "Company")
Senior Secured First Priority Discount Notes due 2001
(the "First Priority Initial Notes") and Senior Secured
Second Priority Discount Notes due 2001
(the "Second Priority Initial Notes" and, together with
the First Priority Initial Notes, the "Initial Notes") and
Senior Secured First Priority Discount Exchange Notes
due 2001 (the "First Priority Exchange Notes") and
the Senior Secured Second Priority Discount Exchange
Notes due 2001 (the "Second Priority
Exchange Notes" and, together with the First Priority
Exchange Notes, the "Exchange Notes" and,
together with the Initial Notes, the "Notes")
---------------------------------------------
Ladies and Gentlemen:
This letter relates to Initial Notes represented by temporary
global note certificates (the "Temporary Certificates"). Pursuant to Section
2.01 of the Indenture dated as of May 20, 1997 relating to the Notes (the
"Indenture"), we hereby certify that (1) we are the beneficial owner of
$[_____________] principal amount of First Priority Initial Notes represented by
a Temporary Certificate and $[_____________] principal amount of Second Priority
Initial Notes represented by a Temporary Certificate and (2) we are a person
outside the United States to whom the Initial Notes could be transferred in
accordance with Rule 904 of Regulation S promulgated under the Securities Act of
1933, as amended. Accordingly, you are hereby requested to issue Certificated
Notes representing the undersigned's interest in the principal amount of Initial
Notes represented by the Temporary Certificates, all in the manner provided by
the Indenture.
<PAGE>
2
You and the Company are entitled to rely upon this letter and
are irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceedings or official inquiry
with respect to the matters covered hereby. Terms used in this certificate have
the meanings set forth in Regulation S.
Very truly yours,
[Name of Holder]
By: ______________________________
Authorized Signature
<PAGE>
EXHIBIT F
[FORM OF CERTIFICATE TO BE DELIVERED
IN CONNECTION WITH TRANSFERS TO
NON-QIB INSTITUTIONAL ACCREDITED INVESTORS]
[date]
Coleman Escrow Corp.
c/o First Trust National Association
One Illinois Center
111 East Wacker Drive, Suite 3000
Chicago, IL 60601
Attention: Corporate Trust Department
Dear Sirs:
This certificate is delivered to request a transfer of $
aggregate principal amount at maturity of Senior Secured First Priority Discount
Notes due 2001 (the "First Priority Initial Notes") and $______ aggregate
principal amount at maturity of Senior Secured Second Priority Discount Notes
due 2001 (the "Second Priority Initial Notes" and, together with the First
Priority Initial Notes, the "Notes") of Coleman Escrow Corp. (the "Company").
The undersigned represents and warrants to you that:
(1) We are an institutional "accredited investor" (as defined
in Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities
Act of 1933, as amended (the "Securities Act")) purchasing for our own
account or for the account of such an institutional "accredited
investor," and we are acquiring the Notes not with a view to, or for
offer or sale in connection with, any distribution in violation of the
Securities Act or the securities laws of any State of the United States
or any other applicable jurisdiction. We have such knowledge and
experience in financial and business matters as to be capable of
evaluating the merits and risks of our investment in the Notes and
invest in or purchase securities similar to the Notes in the normal
course of our business. We and any accounts for which we are acting are
each able to bear the economic risk of our or its investment. In the
event that we purchase any Notes, we will acquire Notes having a
minimum purchase price at least $250,000 for our own account and for
each separate account for which we are acting.
(2) We understand and acknowledge that the Notes have not been
registered under the Securities Act, or any other applicable securities
law and unless so registered, may not be sold except as permitted in
the following sentence. We agree on our own behalf and on behalf of any
investor account for which we are purchasing Notes to offer, sell or
otherwise transfer such Notes prior to the date which is two
<PAGE>
2
years after the later of the date of original issue and the last date
on which the Company or any affiliate of the Company was the owner of
such Notes (or any predecessor thereto) (the "Resale Restriction
Termination Date") only (i) to the Company, (ii) pursuant to a
registration statement which has been declared effective under the
Securities Act, (iii) in a transaction complying with the requirements
of Rule 144A under the Securities Act, to a person we reasonably
believe is a "Qualified Institutional Buyer" within the meaning of Rule
l44A (a "QIB") that purchases for its own account or for the account of
a QIB and to whom notice is given that the transfer is being made in
reliance on Rule 144A, (iv) pursuant to offers and sales that occur
outside the United States within the meaning of Regulation S under the
Securities Act, or (v) pursuant to an exemption from registration under
the Securities Act provided by Rule 144 thereunder (if available), in
each case, in a transaction involving a minimum purchase price of
$250,000 for such Notes, subject in each of the foregoing cases to any
requirement of law that the disposition of our property or the property
of such investor account or accounts be at all times within our or
their control and in compliance with any applicable state securities
laws. The foregoing restrictions on resale will not apply subsequent to
the Resale Restriction Termination Date. Each purchaser acknowledges
that the Company and the Trustee reserve the right prior to any offer,
sale or other transfer prior to the Resale Restriction Termination Date
of the Notes pursuant to clauses (iv) or (v) above to require the
delivery of an opinion of counsel, certifications and/or other
information satisfactory to the Company and the Trustee. We understand
that the registrar and transfer agent for the Notes will not be
required to accept for registration or transfer any Notes acquired by
us, except upon presentation of evidence satisfactory to the Company
and the transfer agent that the foregoing restrictions on transfer have
been complied with. We further understand that any Notes acquired by us
will bear a legend reflecting the substance of this paragraph.
(3) We are acquiring the Notes purchased by us for our own
account or for one or more accounts as to each of which we exercise
sole investment discretion.
(4) We acknowledge that you, the Company and others will rely
upon our confirmation, acknowledgments and agreements set forth herein,
and we agree to notify you promptly if any of our representations or
warranties herein ceases to be accurate and complete.
(5) We have received a copy of the Offering Memorandum dated
May 15, 1997 relating to the offering of the Notes and acknowledge that
we have had access to such financial and other information, and have
been afforded the opportunity to ask such questions of representatives
of the Company and its affiliates and receive answers thereto, as we
deem necessary in connection with our decision to purchase the Notes.
You are entitled to rely upon this letter and you are irrevocably
authorized to produce
<PAGE>
3
this letter or a copy hereof to any interested party in any
administrative or legal proceeding or official inquiry with respect to
the matters covered hereby.
Very truly yours,
By: (Name of Purchaser)
(Address of Purchaser)
Date:
Upon transfer the Notes would be registered in the name of the new beneficial
owner as follows:
TAXPAYER ID
NAME ADDRESS NUMBER:
- ---- ------- -------
<PAGE>
EXHIBIT G
[FORM OF CERTIFICATE TO BE DELIVERED
IN CONNECTION WITH TRANSFERS
PURSUANT TO REGULATION S]
[date]
First Trust National Association
One Illinois Center
111 East Wacker Drive, Suite 3000
Chicago, IL 60601
Re: Coleman Escrow Corp. (the "Company") Senior Secured
First Priority Discount Notes due 2001 (the "First
Priority Initial Notes") and Senior Secured Second
Priority Discount Notes due 2001 (the "Second
Priority Initial Notes" and, together with the First
Priority Initial Notes, the "Notes")
Ladies and Gentlemen:
In connection with our proposed sale of $________ aggregate
principal amount of the First Priority Initial Notes and $________ aggregate
principal amount of the Second Priority Initial Notes, we confirm that such sale
has been effected pursuant to and in accordance with Regulation S under the
United States Securities Act of 1933, as amended (the "Securities Act"), and,
accordingly, we represent that:
(1) the offer of the Notes was not made to a person in the
United States;
(2) either (a) at the time the buy order was originated, the
transferee was outside the United States or we and any person acting on
our behalf reasonably believed that the transferee was outside the
United States or (b) the transaction was executed in, on or through the
facilities of a designated off-shore securities market and neither we
nor any person acting on our behalf knows that the transaction has been
pre-arranged with a buyer in the United States;
(3) no directed selling efforts have been made in the United
States in contravention of the requirements of Rule 903(b) or Rule
904(b) of Regulation S, as applicable; and
(4) the transaction is not part of a plan or scheme to evade
the registration requirements of the Securities Act.
<PAGE>
2
In addition, if the sale is made during a restricted period
and the provisions of Rule 903(c)(3) or Rule 904(c)(1) of Regulation S are
applicable thereto, we confirm that such sale has been made in accordance with
the applicable provisions of Rule 903(c)(3) or Rule 904(c)(1), as the case may
be.
You and the Company are entitled to rely upon this letter and
are irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceedings or official inquiry
with respect to the matters covered hereby. Terms used in this certificate have
the meanings set forth in Regulation S.
Very truly yours,
[Name of Transferor]
By:_______________________
Authorized Signature
<PAGE>
EXHIBIT H
[FORM OF CERTIFICATE TO BE DELIVERED
IN CONNECTION WITH TRANSFERS PURSUANT TO RULE 144A]
First Trust National Association
One Illinois Center
111 East Wacker Drive, Suite 3000
Chicago, IL 60601
[date]
Re: Coleman Escrow Corp. (the "Company") Senior Secured
First Priority Discount Notes due 2001 (the "First
Priority Initial Notes") and Senior Secured Second
Priority Discount Notes due 2001 (the "Second
Priority Initial Notes" and, together with the First
Priority Initial Notes, the "Notes")
Ladies and Gentlemen:
In connection with our proposed sale of $_______ aggregate
principal amount at maturity of the First Priority Initial Notes and $__________
aggregate principal amount at maturity of the Second Priority Initial Notes, we
hereby certify that such transfer is being effected pursuant to and in
accordance with Rule 144A under the United States Securities Act of 1933, as
amended (the "Securities Act"), and, accordingly, we hereby further certify that
the Notes are being transferred to a person that we reasonably believe is
purchasing the Notes for its own account, or for one or more accounts with
respect to which such person exercises sole investment discretion, and such
person and each such account is a "qualified institutional buyer" within the
meaning of Rule 144A in a transaction meeting the requirements of Rule 144A and
such Notes are being transferred in compliance with any applicable blue sky
securities laws of any state of the United States.
<PAGE>
2
You and the Company are entitled to rely upon this letter and
are irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceedings or official inquiry
with respect to the matters covered hereby.
Very truly yours,
------------------------------
[Name of Transferor]
By:
---------------------------
Authorized Signature
</TABLE>
