EXHIBIT 4-7
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ARVIN INDUSTRIES, INC.
and
_______________________________
Debt Warrant Agent
_________________
[SENIOR] [SUBORDINATED] DEBT WARRANT AGREEMENT
Dated as of ______________
________________
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* OPTIONS REPRESENTED BY BRACKETED OR BLANK SECTIONS HEREIN SHALL BE
DETERMINED IN CONFORMITY WITH APPLICABLE PROSPECTUS SUPPLEMENT OR
SUPPLEMENTS
TABLE OF CONTENTS<**>
Page
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PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
RECITALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE I ISSUANCE OF DEBT WARRANTS AND EXECUTION AND DELIVERY OF
DEBT WARRANT CERTIFICATES
Section 1.01. Issuance of Debt Warrants . . . . . . . . . . . . 1
Section 1.02. Form and Execution of Debt Warrant Certificates . 2
Section 1.03. Issuance and Delivery of Debt Warrant
Certificates . . . . . . . . . . . . . . . . . . . . . . . . 3
Section 1.04. Temporary Debt Warrant Certificates . . . . . . . 3
Section 1.05. Payment of Certain Taxes . . . . . . . . . . . . . 4
Section 1.06. "Holder" . . . . . . . . . . . . . . . . . . . . . 4
ARTICLE II DURATION AND EXERCISE OF DEBT WARRANTS
Section 2.01. Duration of Debt Warrants . . . . . . . . . . . . 4
Section 2.02. Exercise of Debt Warrants . . . . . . . . . . . . 5
ARTICLE III OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS OF DEBT
WARRANTS
Section 3.01. No Rights as Holder of Underlying Debt Securities
Conferred by Debt Warrants or Debt Warrant Certificates . . . . . 6
Section 3.02. Lost, Stolen, Destroyed or Mutilated Debt Warrant
Certificates . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 3.03. Holder of Debt Warrants May Enforce Rights . . . . 7
ARTICLE IV EXCHANGE AND TRANSFER OF DEBT WARRANTS
[Section 4.01. Debt Warrant Register; Exchange and Transfer of Debt
Warrants . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 4.02. Treatment of Holders of Debt Warrants . . . . . . 8
Section 4.03. Cancellation of Debt Warrant Certificates . . . . 8
ARTICLE V CONCERNING THE DEBT WARRANT AGENT
Section 5.01. Debt Warrant Agent . . . . . . . . . . . . . . . . 9
Section 5.02. Conditions of Debt Warrant Agent's Obligations . . 9
Section 5.03. Resignation and Removal; Appointment of Successor 11
Section 5.04. Compliance With Applicable Laws . . . . . . . . . 13
Section 5.05. Office . . . . . . . . . . . . . . . . . . . . . . 14
ARTICLE VI MISCELLANEOUS
Section 6.01. Consolidation or Merger of the Company and Conveyance
or Transfer Permitted Subject to Certain Conditions . . . . . . . 14
Section 6.02. Rights and Duties of Successor Corporation . . . . 14
Section 6.03. Supplements and Amendments . . . . . . . . . . . . 14
<**> The Table of Contents is not part of the Debt Warrant Agreement.
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Section 6.04. Notices and Demands to the Company and Debt
Warrant Agent . . . . . . . . . . . . . . . . . . . . . . . 15
Section 6.05. Addresses . . . . . . . . . . . . . . . . . . . . 15
Section 6.06. Applicable Law . . . . . . . . . . . . . . . . . . 15
Section 6.07. Delivery of Prospectus . . . . . . . . . . . . . . 15
Section 6.08. Governmental Approvals . . . . . . . . . . . . . . 15
Section 6.09. Persons Having Rights under Debt Warrant
Agreement . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 6.10. Delivery of Prospectus . . . . . . . . . . . . . . 16
Section 6.11. Headings . . . . . . . . . . . . . . . . . . . . . 16
Section 6.12. Counterparts . . . . . . . . . . . . . . . . . . . 16
Section 6.13. Inspection of Agreement . . . . . . . . . . . . . 16
TESTIMONIUM . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
SIGNATURES . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
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THIS [SENIOR] [SUBORDINATED] DEBT WARRANT AGREEMENT, dated
as of __________, between Arvin Industries, Inc., an Indiana
corporation (the "Company"), and ____________________, a __________
organized and existing under the laws of __________, as warrant agent
(the "Debt Warrant Agent").
WHEREAS, the Company and _____________________ has entered
into an Indenture dated as of __________, 19__ (the "Indenture") with
____________________, trustee (the "Trustee"), providing for the
issuance by the Company from time to time, in one or more series, of
debt securities evidencing its unsecured, ________________
indebtedness (such debt securities, being referred to as the
"Securities"); and
WHEREAS, the Company proposes to issue warrants (the "Debt
Warrants") representing the right to purchase Debt Securities of one
or more series (the "Underlying Debt Securities"); and
WHEREAS, the Company has duly authorized the execution and
delivery of this Debt Warrant Agreement to provide for the issuance of
Debt Warrants to be exercisable at such times and for such prices, and
to have such other provisions, as shall be fixed as hereinafter
provided;
NOW, THEREFORE, in consideration of the premises and the
mutual agreements herein contained, the parties hereto agree as
follows:
ARTICLE I
ISSUANCE OF DEBT WARRANTS AND EXECUTION AND DELIVERY
OF DEBT WARRANT CERTIFICATES
Section 1.01. Issuance of Debt Warrants. Debt Warrants may be
issued from time to time, together with or separately from any
Securities (the "Offered Debt Securities"). Prior to the issuance of
any Debt Warrants, there shall be established by or pursuant to a
resolution or resolutions duly adopted by the Company's Board of
Directors or by any committee thereof duly authorized to act with
respect thereto (a "Board Resolution"):
(a) the title and aggregate number of such Debt Warrants;
(b) the offering price of such Debt Warrants, if any;
(c) whether such Debt Warrants are to be issued with any
Offered Debt Securities and, if so, the title, aggregate
principal amount and terms of any such Offered Debt Securities;
the number of Debt Warrants to be issued with each $1,000
principal amount of such Offered Debt Securities (or such other
principal amount of such Offered Debt Securities as is provided
for in the Board Resolution); and the date, if any, on and after
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which such Debt Warrants and such Offered Debt Securities will be
separately transferable (the "Detachable Date");
(d) the title, aggregate principal amount, ranking and
terms (including the subordination and conversion provisions) of
the Underlying Debt Securities that may be purchased upon
exercise of such Debt Warrants;
(e) the time or times at which, or period or periods during
which, such Debt Warrants may be exercised, the minimum or
maximum amount of Debt Warrants which may be exercised at any one
time and the final date on which such Debt Warrants may be
exercised (the "Expiration Date");
(f) the principal amount of Underlying Debt Securities that
may be purchased upon exercise of each Debt Warrant and the
price, or the manner of determining the price (the "Debt Warrant
Price"), at which such principal amount may be purchased upon
such exercise;
(g) the terms of any right to redeem or call such Debt
Warrants; and
(h) any other terms of such Debt Warrants not inconsistent
with the provisions of this Agreement.
Section 1.02. Form and Execution of Debt Warrant Certificates.
(a) The Debt Warrants shall be evidenced by warrant
certificates (the "Debt Warrant Certificates"), which may be in
registered or bearer form and otherwise shall be substantially in such
form or forms as shall be established by or pursuant to a Board
Resolution. Each Debt Warrant Certificate, whenever issued, shall be
dated the date it is countersigned by the Debt Warrant Agent and may
have such letters, numbers or other identifying marks and such legends
or endorsements printed, lithographed or engraved thereon as are not
inconsistent with the provisions of this Agreement, or as may be
required to comply with any applicable law, rule or regulation or with
any rule or regulation of any securities exchange on which the Debt
Warrants may be listed, or to conform to usage, as the officer of the
Company executing the same may approve (such officer's execution
thereof to be conclusive evidence of such approval). Each Debt
Warrant Certificate shall evidence one or more Debt Warrants.
(b) The Debt Warrant Certificates shall be signed in the
name and on behalf of the Company by its Chairman of the Board of
Directors, its Vice Chairman of the Board of Directors, its President,
any Executive Vice President, its Vice President - Finance, and by its
Secretary or an Assistant Secretary. Such signatures may be manual or
facsimile signatures of the present or any future holder of any such
office and may be imprinted or otherwise reproduced on the Debt
Warrant Certificates. The seal of the Company may be in the form of a
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facsimile thereof and may be impressed, affixed, imprinted or
otherwise reproduced on the Debt Warrant Certificates.
(c) No Debt Warrant Certificate shall be valid for any
purpose, and no Debt Warrant evidenced thereby shall be deemed issued
or exercisable, until such Debt Warrant Certificate has been
countersigned by the manual or facsimile signature of the Debt Warrant
Agent. Such signature by the Debt Warrant Agent upon any Debt Warrant
Certificate executed by the Company shall be conclusive evidence that
the Debt Warrant Certificate so countersigned has been duly issued
hereunder.
(d) In case any officer of the Company who shall have
signed any Debt Warrant Certificate either manually or by facsimile
signature shall cease to be such officer before the Debt Warrant
Certificate so signed shall have been countersigned and delivered by
the Debt Warrant Agent, such Debt Warrant Certificate nevertheless may
be countersigned and delivered as though the person who signed such
Debt Warrant Certificate had not ceased to be such officer of the
Company; and any Debt Warrant Certificate may be signed on behalf of
the Company by such person as, at the actual date of the execution of
such Debt Warrant Certificate, shall be the proper officer of the
Company, although at the date of the execution of this Agreement such
person was not such an officer.
Section 1.03. Issuance and Delivery of Debt Warrant
Certificates. At any time and from time to time after the execution
and delivery of this Agreement, the Company may deliver Debt Warrant
Certificates executed by the Company to the Debt Warrant Agent for
countersignature. Except as provided in the following sentence, the
Debt Warrant Agent shall thereupon countersign and deliver such Debt
Warrant Certificates to or upon the written request of the Company.
Subsequent to the original issuance of a Debt Warrant Certificate
evidencing Debt Warrants, the Debt Warrant Agent shall countersign a
new Debt Warrant Certificate evidencing such Debt Warrants only if
such Debt Warrant Certificate is issued in exchange or substitution
for one or more previously countersigned Debt Warrant Certificates
evidencing such Debt Warrants or in connection with their transfer, as
hereinafter provided.
Section 1.04. Temporary Debt Warrant Certificates. Pending the
preparation of definitive Debt Warrant Certificates, the Company may
execute, and upon the order of the Company the Debt Warrant Agent
shall countersign and deliver, temporary Debt Warrant Certificates
that are printed, lithographed, typewritten, mimeographed or otherwise
produced, substantially of the tenor of the definitive Debt Warrant
Certificates in lieu of which they are issued and with such
appropriate insertions, omissions, substitutions and other variations
as the officer executing such Debt Warrant Certificates may determine,
as evidenced by such officer's execution of such Debt Warrant
Certificates.
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If temporary Debt Warrant Certificates are issued, the
Company will cause definitive Debt Warrant Certificates to be prepared
without unreasonable delay. After the preparation of definitive Debt
Warrant Certificates, the temporary Debt Warrant Certificates shall be
exchangeable for definitive Debt Warrant Certificates upon surrender
of the temporary Debt Warrant Certificates at the corporate trust
office of the Debt Warrant Agent or __________, without charge to the
Holder, as defined in Section 1.06 hereof. Upon surrender for
cancellation of any one or more temporary Debt Warrant Certificates,
the Company shall execute and the Debt Warrant Agent shall countersign
and deliver in exchange therefor definitive Debt Warrant Certificates
representing the same aggregate number of Debt Warrants. Until so
exchanged, the temporary Debt Warrant Certificates shall in all
respects be entitled to the same benefits under this Agreement as
definitive Debt Warrant Certificates.
Section 1.05. Payment of Certain Taxes. The Company will pay
all stamp and other duties, if any, to which this Agreement or the
original issuance of the Debt Warrants or Debt Warrant Certificates
may be subject under the laws of the United States of America or any
state or locality.
Section 1.06. "Holder". The term "Holder" or "Holders", as used
herein with reference to a Debt Warrant Certificate, shall mean [if
registered Debt Warrants the person or persons in whose name such Debt
Warrant Certificate shall then be registered as set forth in the Debt
Warrant Register to be maintained by the Debt Warrant Agent pursuant
to Section 4.01 for that purpose] [if bearer Debt Warrants - the
bearer of such Debt Warrant Certificate] or, in the case of Debt
Warrants that are issued with Offered Debt Securities and cannot then
be transferred separately therefrom, [if registered Offered Debt
Securities and Debt Warrants that are not then detachable - the person
or persons in whose name the related Offered Debt Securities shall be
registered as set forth in the security register to be maintained by
the Trustee for such Offered Debt Securities pursuant to the
Indenture] [if bearer Offered Debt Securities and Debt Warrants that
are not then detachable - the bearer of the related Offered Debt
Security], prior to the Detachable Date. [If registered Offered Debt
Securities and Debt Warrants that are not then detachable - The
Company will, or will cause the security registrar of any such Offered
Debt Securities to, make available to the Debt Warrant Agent at all
times (including on and after the Detachable Date, in the case of Debt
Warrants originally issued with Offered Debt Securities and not
subsequently transferred separately therefrom) such information as to
holders of Offered Debt Securities with Debt Warrants as may be
necessary to keep the Warrant Register up to date.]
ARTICLE II
DURATION AND EXERCISE OF DEBT WARRANTS
Section 2.01. Duration of Debt Warrants. Each Debt Warrant may
be exercised at the time or times, or during the period or periods,
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provided by or pursuant to the Board Resolution relating thereto and
specified in the Debt Warrant Certificate evidencing such Debt
Warrant. Each Debt Warrant not exercised at or before 5:00 P.M., New
York City time, on its Expiration Date shall become void, and all
rights of the Holder of such Debt Warrant thereunder and under this
Agreement shall cease, provided that the Company reserves the right
to, and may, in its sole discretion, at any time and from time to
time, at such time or times as the Company so determines, extend the
Expiration Date of the Warrants for such periods of time as it
chooses. Whenever the Expiration Date of the Debt Warrants is so
extended, the Company shall at least [20] days prior to the then
Expiration Date cause to be mailed to the Debt Warrant Agent and the
registered Holders of the Debt Warrants in accordance with the
provisions of Section 6.04 hereof a notice stating that the Expiration
Date has been extended and setting forth the new Expiration Date.
Section 2.02. Exercise of Debt Warrants. (a) The Holder of a
Debt Warrant shall have the right, at its option, to exercise such
Debt Warrant and, subject to subsection (f) of this Section 2.02,
purchase the principal amount of Underlying Debt Securities provided
for therein at the time or times or during the period or periods
referred to in Section 2.01 and specified in the Debt Warrant
Certificate evidencing such Debt Warrant. Except as may be provided
in a Debt Warrant Certificate, a Debt Warrant may be exercised by
completing the form of election to purchase set forth on the reverse
side of the Debt Warrant Certificate, by duly executing and delivering
the same, together with payment in full of the Debt Warrant Price in
lawful money of the United States of America, in cash or by certified
or official bank check or by bank wire transfer, to the Debt Warrant
Agent. Except as may be provided in a Debt Warrant Certificate, the
date on which such Debt Warrant Certificate and payment are received
by the Debt Warrant Agent as aforesaid shall be deemed to be the date
on which the Debt Warrant is exercised and the Underlying Debt
Securities are issued.
(b) Upon the exercise of a Debt Warrant, the Company shall
issue, pursuant to the Indenture, in authorized denominations to or
upon the order of the Holder of such Debt Warrant, the Underlying Debt
Securities to which such Holder is entitled, in the form required
under such Indenture, registered, in the case of Underlying Debt
Securities in registered form, in such name or names as may be
directed by such Holder.
(c) If fewer than all of the Debt Warrants evidenced by a
Debt Warrant Certificate are exercised, the Company shall execute, and
an authorized officer of the Debt Warrant Agent shall countersign and
deliver, a new Debt Warrant Certificate evidencing the number of Debt
Warrants remaining unexercised.
(d) The Debt Warrant Agent shall deposit all funds received
by it in payment of the Debt Warrant Price in the account of the
Company maintained with it for such purpose and shall advise the
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Company by telephone by 5:00 P.M., New York City time, of each day on
which a payment of the Debt Warrant Price for Debt Warrants is
received of the amount so deposited in its account. The Debt Warrant
Agent shall promptly confirm such telephone advice in writing to the
Company.
(e) The Debt Warrant Agent shall, from time to time, as
promptly as practicable, advise the Company and the Trustee of (i) the
number of Debt Warrants of each title exercised as provided herein,
(ii) the instructions of each Holder with respect to delivery of the
Underlying Debt Securities to which such Holder is entitled upon such
exercise, (iii) the delivery of Debt Warrant Certificates evidencing
the balance, if any, of the Debt Warrants remaining unexercised after
such exercise, and (iv) such other information as the Company or the
Trustee shall reasonably require. Such notice may be given by
telephone to be promptly confirmed in writing.
(f) The Holder, and not the Company, shall be required to
pay any stamp or other tax or other governmental charge that may be
imposed in connection with any transfer involved in the issuance of
the Underlying Debt Securities; and in the event that any such
transfer is involved, the Company shall not be required to issue any
Underlying Debt Securities (and the Holder's purchase of the
Underlying Debt Securities upon the exercise of such Holder's Debt
Warrant shall not be deemed to have been consummated) until such tax
or other charge shall have been paid or it has been established to the
Company's satisfaction that no such tax or other charge is due.
ARTICLE III
OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS
OF DEBT WARRANTS
Section 3.01. No Rights as Holder of Underlying Debt Securities
Conferred by Debt Warrants or Debt Warrant Certificates. No Debt
Warrant or Debt Warrant Certificate shall entitle the Holder to any of
the rights of a holder of Underlying Debt Securities, including,
without limitation, the right to receive the payment of principal of
(or premium, if any, on) or interest, if any, on Underlying Debt
Securities or to enforce any of the covenants in the Indenture.
Section 3.02. Lost, Stolen, Destroyed or Mutilated Debt Warrant
Certificates. Upon receipt by the Company and the Debt Warrant Agent
of evidence reasonably satisfactory to them of the ownership of and
the loss, theft, destruction or mutilation of any Debt Warrant
Certificate and of indemnity (other than in connection with any
mutilated Debt Warrant Certificates surrendered to the Debt Warrant
Agent for cancellation) reasonably satisfactory to them, the Company
shall execute, and the Debt Warrant Agent shall countersign and
deliver, in exchange for or in lieu of each lost, stolen, destroyed or
mutilated Debt Warrant Certificate, a new Debt Warrant Certificate
evidencing a like number of Debt Warrants of the same title. Upon the
issuance of a new Debt Warrant Certificate under this Section, the
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Company may require the payment of a sum sufficient to cover any stamp
or other tax or other governmental charge that may be imposed in
connection therewith and any other expenses (including the fees and
expenses of the Debt Warrant Agent) in connection therewith. Every
substitute Debt Warrant Certificate executed and delivered pursuant to
this Section in lieu of any lost, stolen or destroyed Debt Warrant
Certificate shall represent a contractual obligation of the Company,
whether or not such lost, stolen or destroyed Debt Warrant Certificate
shall be at any time enforceable by anyone, and shall be entitled to
the benefits of this Agreement equally and proportionately with any
and all other Debt Warrant Certificates, duly executed and delivered
hereunder, evidencing Debt Warrants of the same title. The provisions
of this Section are exclusive and shall preclude (to the extent
lawful) all other rights and remedies with respect to the replacement
of lost, stolen, destroyed or mutilated Debt Warrant Certificates.
Section 3.03. Holder of Debt Warrants May Enforce Rights.
Notwithstanding any of the provisions of this Agreement, a Holder,
without the consent of the Debt Warrant Agent, the Trustee, the holder
of any Underlying Debt Securities or the Holder of any other Debt
Warrant, may, on its own behalf and for its own benefit, enforce, and
may institute and maintain any suit, action or proceeding against the
Company to enforce, or otherwise in respect of, its right to exercise
its Debt Warrant or Debt Warrants in the manner provided in this
Agreement and its Debt Warrant Certificate.
ARTICLE IV
EXCHANGE AND TRANSFER OF DEBT WARRANTS
[Section 4.01. Debt Warrant Register; Exchange and Transfer of
Debt Warrants. If registered Debt Warrants - The Debt Warrant Agent
shall maintain, at its corporate trust office [or at __________], a
register (the " Debt Warrant Register") in which, upon the issuance of
Debt Warrants, or on and after the Detachable Date in the case of Debt
Warrants not separately transferable prior thereto, and, subject to
such reasonable regulations as the Debt Warrant Agent may prescribe,
it shall register Debt Warrant Certificates and exchanges and
transfers thereof. The Debt Warrant Register shall be in written form
or in any other form capable of being converted into written form
within a reasonable time.]
Except as provided in the following sentence, upon surrender
at the corporate trust office of the Debt Warrant Agent [or at
__________] Debt Warrant Certificates may be exchanged for one or more
other Debt Warrant Certificates evidencing the same aggregate number
of Debt Warrants of the same title, or may be transferred in whole or
in part. A Debt Warrant Certificate evidencing Debt Warrants that are
not then transferable separately from the Offered Debt Security with
which they were issued may be exchanged or transferred prior to its
Detachable Date only together with such Offered Debt Security and only
for the purpose of effecting, or in conjunction with, an exchange or
transfer of such Offered Debt Security; and on or prior to the
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Detachable Date, [if registered Offered Debt Securities and Debt
Warrants - each exchange or transfer of such Offered Debt Security on
the security register of the Offered Debt Securities shall operate
also to exchange or transfer the related Debt Warrant] [if bearer
Offered Debt Securities and Debt Warrants - an exchange or transfer of
possession of the related Offered Debt Security shall operate also to
exchange or transfer the related Debt Warrants]. [If registered Debt
Warrants - A transfer shall be registered upon surrender of a Debt
Warrant Certificate to the Debt Warrant Agent at its corporate trust
office [or at __________ for transfer, properly endorsed or
accompanied by appropriate instruments of transfer and written
instructions for transfer, all in form satisfactory to the Company and
the Debt Warrant Agent duly signed by the registered holder or holders
thereof or by the duly appointed legal representative thereof or by a
duly authorized attorney, such signature to be guaranteed by (a) a
bank or trust company, (b) a broker or dealer that is a member of the
National Association of Securities Dealers, Inc. (the "NASD") or (c) a
member of a national securities exchange. Upon any such registration
of transfer, a new Debt Warrant Certificate shall be issued to the
transferee.] Whenever a Debt Warrant Certificate is surrendered for
exchange or transfer, the Debt Warrant Agent shall countersign and
deliver to the person or persons entitled thereto one or more Debt
Warrant Certificates duly executed by the Company, as so requested.
The Debt Warrant Agent shall not be required to effect any exchange or
transfer which will result in the issuance of a Debt Warrant
Certificate evidencing a fraction of a Debt Warrant. All Debt Warrant
Certificates issued upon any exchange or transfer of a Debt Warrant
Certificate shall be the valid obligations of the Company, evidencing
the same obligations, and entitled to the same benefits under this
Agreement, as the Debt Warrant Certificate surrendered for such
exchange or transfer.
No service charge shall be made for any exchange or transfer
of Debt Warrants, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be
imposed in connection with any such exchange or transfer, in
accordance with Section 2.02(f) hereof.
Section 4.02. Treatment of Holders of Debt Warrants. Every
Holder of a Debt Warrant, by accepting the Debt Warrant Certificate
evidencing the same, consents and agrees with the Company, the Debt
Warrant Agent and with every other Holder of Debt Warrants of the same
title that the Company and the Debt Warrant Agent may treat the Holder
of a Debt Warrant Certificate (or, if the Debt Warrant Certificate is
not then detachable, the Holder of the related Offered Debt Security)
as the absolute owner of such Debt Warrant for all purposes and as the
person entitled to exercise the rights represented by such Debt
Warrant, any notice to the contrary notwithstanding.
Section 4.03. Cancellation of Debt Warrant Certificates. In the
event that the Company shall purchase, redeem or otherwise acquire any
Debt Warrants after the issuance thereof, the Debt Warrant Certificate
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or Certificates evidencing such Debt Warrants shall thereupon be
delivered to the Debt Warrant Agent and be cancelled by it. The Debt
Warrant Agent shall also cancel any Debt Warrant Certificate
(including any mutilated Debt Warrant Certificate) delivered to it for
exercise, in whole or in part, or for exchange [or transfer] [if Debt
Warrant Certificates are issued in bearer form - , except that Debt
Warrant Certificates delivered to the Debt Warrant Agent in exchange
for Debt Warrant Certificates of other denominations may be retained
by the Debt Warrant Agent for reissue]. Debt Warrant Certificates so
cancelled shall be delivered by the Debt Warrant Agent to the Company
from time to time, or disposed of in accordance with the instructions
of the Company.
ARTICLE V
CONCERNING THE DEBT WARRANT AGENT
Section 5.01. Debt Warrant Agent. The Company hereby appoints
_____________________ as Debt Warrant Agent of the Company in respect
of the Debt Warrants and the Debt Warrant Certificates upon the terms
and subject to the conditions set forth herein; and _______________
hereby accepts such appointment. The Debt Warrant Agent shall have
the powers and authority granted to and conferred upon it in the Debt
Warrant Certificates and hereby and such further powers and authority
acceptable to it to act on behalf of the Company as the Company may
hereafter grant to or confer upon it. All of the terms and provisions
with respect to such powers and authority contained in any Debt
Warrant Certificate are subject to and governed by the terms and
provisions hereof.
Section 5.02. Conditions of Debt Warrant Agent's Obligations.
The Debt Warrant Agent accepts its obligations set forth herein upon
the terms and conditions hereof, including the following, to all of
which the Company agrees and to all of which the rights hereunder of
the Holders shall be subject:
(a) Compensation and Indemnification. The Company agrees
to promptly pay the Debt Warrant Agent the compensation [set
forth in Exhibit A hereto] and to reimburse the Debt Warrant
Agent for reasonable out-of-pocket expenses (including counsel
fees) incurred by the Debt Warrant Agent in connection with the
services rendered hereunder by the Debt Warrant Agent. The
Company also agrees to indemnify the Debt Warrant Agent for, and
to hold it harmless against, any loss, liability or expense
(including the reasonable costs and expenses of defending against
any claim of liability) incurred without negligence or bad faith
on the part of the Debt Warrant Agent arising out of or in
connection with its appointment, status or service as Debt
Warrant Agent hereunder.
(b) Agent for the Company. In acting under this Agreement
and in connection with any Debt Warrant Certificate, the Debt
Warrant Agent is acting solely as agent of the Company and does
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not assume any obligation or relationship of agency or trust for
or with any Holder.
(c) Counsel. The Debt Warrant Agent may consult with
counsel satisfactory to it, and the advice of such counsel shall
be full and complete authorization and protection in respect of
any action taken, suffered or omitted by it hereunder in good
faith and in accordance with the advice of such counsel.
(d) Documents. The Debt Warrant Agent shall be protected
and shall incur no liability for or in respect of any action
taken, suffered or omitted by it in reliance upon any notice,
direction, consent, certificate, affidavit, statement or other
paper or document reasonably believed by it to be genuine and to
have been presented or signed by the proper parties.
(e) Officer's Certificate. Whenever in the performance of
its duties hereunder the Debt Warrant Agent shall reasonably deem
it necessary that any fact or matter be proved or established by
the Company prior to taking, suffering or omitting any action
hereunder, the Debt Warrant Agent may (unless other evidence in
respect thereof be herein specifically prescribed), in the
absence of bad faith on its part, rely upon a certificate signed
by the Chairman of the Board of Directors, the Vice Chairman of
the Board of Directors, the President, an Executive Vice
President, and by the Treasurer, an Assistant Treasurer, the
Secretary or an Assistant Secretary of the Company (an "Officer's
Certificate") delivered by the Company to the Debt Warrant Agent.
(f) Actions Through Agents. The Debt Warrant Agent may
execute and exercise any of the rights or powers hereby vested in
it or perform any duty hereunder either itself or by or through
its attorneys or agents, and the Debt Warrant Agent shall not be
answerable or accountable for any act, default, neglect or
misconduct of any such attorney or agent or for any loss to the
Company resulting from such neglect or misconduct; provided,
however, that reasonable care shall have been exercised in the
selection and continued employment of such attorneys and agents.
(g) Certain Transactions. The Debt Warrant Agent, and any
officer, director or employee thereof, may become the owner of,
or acquire any interest in, any Debt Warrant, with the same
rights that he, she or it would have if it were not the Debt
Warrant Agent, and, to the extent permitted by applicable law,
he, she or it may engage or be interested in any financial or
other transaction with the Company and may serve on, or as
depository, trustee or agent for, any committee or body of
holders of Underlying Debt Securities or other obligations of the
Company as if it were not the Debt Warrant Agent. Nothing in
this Agreement shall be deemed to prevent the Debt Warrant Agent
from acting as Trustee under the Indenture.
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(h) No Liability for Interest. The Debt Warrant Agent
shall not be liable for interest on any monies at any time
received by it pursuant to any of the provisions of this
Agreement or of the Debt Warrant Certificates, except as
otherwise agreed with the Company.
(i) No Liability for Invalidity. The Debt Warrant Agent
shall incur no liability with respect to the validity of this
Agreement (except as to the due execution hereof by the Debt
Warrant Agent) or any Debt Warrant Certificate (except as to the
countersignature thereof by the Debt Warrant Agent).
(j) No Responsibility for Company Representations. The
Debt Warrant Agent shall not be responsible for any of the
recitals or representations contained herein (except as to such
statements or recitals as describe the Debt Warrant Agent or
action taken or to be taken by it) or in any Debt Warrant
Certificate (except as to the Debt Warrant Agent's
countersignature on such Debt Warrant Certificate), all of which
recitals and representations are made solely by the Company.
(k) No Implied Obligations. The Debt Warrant Agent shall
be obligated to perform only such duties as are specifically set
forth herein, and no other duties or obligations shall be
implied. The Debt Warrant Agent shall not be under any
obligation to take any action hereunder that may subject it to
any expense or liability, the payment of which within a
reasonable time is not, in its reasonable opinion, assured to it.
The Debt Warrant Agent shall not be accountable or under any duty
or responsibility for the use by the Company of any Debt Warrant
Certificate countersigned by the Debt Warrant Agent and delivered
by it to the Company pursuant to this Agreement or for the
application by the Company of the proceeds of the issuance or
exercise of Debt Warrants. The Debt Warrant Agent shall have no
duty or responsibility in case of any default by the Company in
the performance of its covenants or agreements contained herein
or in any Debt Warrant Certificate or in case of the receipt of
any written demand from a Holder with respect to such default,
including, without limiting the generality of the foregoing, any
duty or responsibility to initiate or attempt to initiate any
proceedings at law or otherwise or, except as provided in Section
6.04 hereof, to make any demand upon the Company.
Section 5.03. Resignation and Removal; Appointment of Successor.
(a) The Company agrees, for the benefit of the Holders of
the Debt Warrants, that there shall at all times be a Debt Warrant
Agent hereunder until all the Debt Warrants are no longer exercisable.
(b) The Debt Warrant Agent may at any time resign as such
by giving written notice to the Company, specifying the date on which
such resignation shall become effective; provided that such date shall
not be less than [90] days after the date on which such notice is
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given, unless the Company agrees to accept a shorter notice. Such
resignation is subject to the appointment and acceptance of a
successor Debt Warrant Agent, as hereinafter provided. The Debt
Warrant Agent hereunder may be removed at any time by the filing with
it of an instrument in writing signed by or on behalf of the Company
and specifying such removal and the date when it shall become
effective. Notwithstanding the provisions of this Section 5.03(b),
such resignation or removal shall take effect only upon the
appointment by the Company, as hereinafter provided, of a successor
Debt Warrant Agent (which shall be a bank or trust company organized
and doing business under the laws of the United States of America, any
State thereof or the District of Columbia, authorized under the laws
of such jurisdiction to exercise corporate trust powers and having at
the time of its appointment as Debt Warrant Agent a combined capital
and surplus (as set forth in its most recent published report of
financial condition) of at least [$50,000,000]) and the acceptance of
such appointment by such successor Debt Warrant Agent. In the event a
successor Debt Warrant Agent has not been appointed and has not
accepted its duties within [90] days of the Debt Warrant Agent's
notice of resignation, the Debt Warrant Agent may apply to any court
of competent jurisdiction for the designation of a successor Debt
Warrant Agent. The obligations of the Company under Section 5.02(a)
shall continue to the extent set forth therein notwithstanding the
resignation or removal of the Debt Warrant Agent.
(c) In case at any time the Debt Warrant Agent shall
resign, or shall be removed, or shall become incapable of acting, or
shall be adjudged a bankrupt or insolvent, or shall file a petition
seeking relief under Title 11 of the United States Code, as now
constituted or hereafter amended, or under any other applicable
federal or state bankruptcy law or similar law, or make an assignment
for the benefit of its creditors, or consent to the appointment of a
receiver or custodian for all or any substantial part of its property,
or shall admit in writing its inability to pay or meet its debts as
they mature, or if a receiver or custodian for it or for all or any
substantial part of its property shall be appointed, or if an order of
any court shall be entered for relief against it under the provisions
of Title 11 of the United States Code, as now constituted or hereafter
amended, or under any other applicable federal or state bankruptcy or
similar law, or if any public officer shall have taken charge or
control of the Debt Warrant Agent or of its property or affairs for
the purpose of rehabilitation, conservation or liquidation, a
successor Debt Warrant Agent, qualified as aforesaid, shall be
appointed by the Company by an instrument in writing, filed with the
successor Debt Warrant Agent. Upon the appointment as aforesaid of a
successor Debt Warrant Agent and acceptance by the successor Debt
Warrant Agent of such appointment, the Debt Warrant Agent so
superseded shall cease to be Debt Warrant Agent hereunder.
(d) Any successor Debt Warrant Agent appointed hereunder
shall execute, acknowledge and deliver to its predecessor and to the
Company an instrument accepting such appointment hereunder, and
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thereupon such successor Debt Warrant Agent, without any further act,
deed or conveyance, shall become vested with all the authority,
rights, powers, trusts, immunities, duties and obligations of such
predecessor with like effect as if originally named as Debt Warrant
Agent hereunder, and such predecessor, upon payment of its charges and
disbursements then unpaid, shall thereupon become obligated to
transfer, deliver and pay over, and such successor Debt Warrant Agent
shall be entitled to receive, [the Debt Warrant Register and] all
monies, securities and other property on deposit with or held by such
predecessor (together with any books and records relating thereto), as
Debt Warrant Agent hereunder.
(e) The Company shall cause notice of the appointment of
any successor Debt Warrant Agent to be [if registered Debt Warrants -
mailed by first-class mail, postage prepaid, to each Holder at its
address appearing on the Debt Warrant Register or, in the case of Debt
Warrants that are issued with Offered Debt Securities and cannot then
be transferred separately therefrom, on the security register for the
Offered Debt Securities] [if bearer Debt Warrants - published in an
Authorized Newspaper (as defined in Section 101 of the Indenture) in
The City of New York and in such other city or cities as may be
specified by the Company at least twice, [the first such publication
to be not earlier than the earliest date and not later than the latest
date prescribed for the giving such notice]. Such notice shall set
forth the name and address of the successor Debt Warrant Agent.
Failure to give any notice provided for in this Section 5.03(e), or
any defect therein, shall not, however, affect the legality or
validity of the appointment of the successor Debt Warrant Agent.
(f) Any corporation into which the Debt Warrant Agent
hereunder may be merged or converted, or any corporation with which
the Debt Warrant Agent may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which the
Debt Warrant Agent shall be a party, or any corporation to which the
Debt Warrant Agent shall sell or otherwise transfer all or
substantially all of its assets and business, provided that such
Corporation shall be qualified as aforesaid, shall be the successor
Debt Warrant Agent under this Agreement without the execution or
filing of any paper, the giving of any notice to Holders or any
further act on the part of the parties hereto.
Section 5.04. Compliance With Applicable Laws. The Debt
Warrant Agent agrees to comply with all applicable federal and state
laws imposing obligations on it in respect of the services rendered by
it under this Debt Warrant Agreement and in connection with the Debt
Warrants, including (but not limited to) the provisions of United
States federal income tax laws regarding information reporting and
backup withholding. The Debt Warrant Agent expressly assumes all
liability for its failure to comply with any such laws imposing
obligations on it, including (but not limited to) any liability for
failure to comply with any applicable provisions of United States
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federal income tax laws regarding information reporting and backup
withholding.
Section 5.05. Office. The Company will maintain an office or
agency where Debt Warrant Certificates may be presented for exchange,
transfer or exercise. The office initially designated for this
purpose shall be the corporate trust office of the Debt Warrant Agent
at _____________________.
ARTICLE VI
MISCELLANEOUS
Section 6.01. Consolidation or Merger of the Company and
Conveyance or Transfer Permitted Subject to Certain Conditions. To
the extent permitted in the Indenture, the Company may consolidate
with or merge into another corporation or other entity, or convey or
transfer all or substantially all of its properties and assets to any
other corporation or other entity.
Section 6.02. Rights and Duties of Successor Corporation. In
case of any such consolidation, merger, conveyance or transfer and
upon any assumption of the duties and obligations of the Company by
the successor corporation, such successor corporation shall succeed to
and be substituted for the Company, with the same effect as if it had
been named herein, and the Company shall be relieved of any further
obligation under this Agreement and the Debt Warrants. Such successor
corporation thereupon may cause to be signed, and may issue either in
its own name or in the name of the Company, any or all of the
Underlying Debt Securities issuable pursuant to the terms hereof. All
the Underlying Debt Securities so issued shall in all respects have
the same legal rank and benefit under the Indenture as the Underlying
Debt Securities theretofore or thereafter issued in accordance with
the terms of this Agreement and the Indenture.
In case of any such consolidation, merger, conveyance or
transfer, such changes in phraseology and form (but not in substance)
may be made in the Underlying Debt Securities thereafter to be issued
as may be appropriate. Section 6.03. Supplements and Amendments.
(a) The Company and the Debt Warrant Agent may from time to time
supplement or amend this Agreement without the approval or consent of
any Holder in order to cure any ambiguity, to correct or supplement
any provision contained herein that may be defective or inconsistent
with any other provision herein, or to make any other provision in
regard to matters or questions arising hereunder that the Company and
the Debt Warrant Agent may deem necessary or desirable and that shall
not adversely affect the interests of the Holders. Every Holder of
Debt Warrants, whether issued before or after any such supplement or
amendment, shall be bound thereby. Promptly after the effectiveness
of any supplement or amendment that affects the interests of the
Holders, the Company shall give notice thereof, as provided in Section
5.03(d) hereof, to the Holders affected thereby, setting forth in
general terms the substance of such supplement or amendment.
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(b) The Company and the Debt Warrant Agent may modify or
amend this Agreement and the Debt Warrant Certificates with the
consent of the Holders of not fewer than a majority in principal
amount of the underlying Debt Securities represented by the Debt
Warrants affected by such modification or amendment, for any purpose;
provided, however, that no such modification or amendment that
shortens the period of time during which the Debt Warrants may be
exercised, or otherwise materially and adversely affects the exercise
rights of the Holders or reduces the percentage of Holders of
outstanding Debt Warrants the consent of which is required for
modification or amendment of this Agreement or the Debt Warrants, may
be made without the consent of each Holder affected thereby.
Section 6.04. Notices and Demands to the Company and Debt
Warrant Agent. If the Debt Warrant Agent shall receive any notice or
demand addressed to the Company by a Holder pursuant to the provisions
of this Agreement or a Debt Warrant Certificate (other than notices
relating to the exchange[, transfer] or exercise of Debt Warrants),
the Debt Warrant Agent shall promptly forward such notice or demand to
the Company.
Section 6.05. Addresses. Any communications from the Company to
the Debt Warrant Agent with respect to this Agreement shall be
directed to ____________________, Attention: ____________________, and
any communications from the Debt Warrant Agent to the Company with
respect to this Agreement shall be directed to Arvin Industries, Inc.,
One Noblitt Plaza, Box Number 3000, Columbus, Indiana 47202-3000,
Attention: Treasurer, with a copy to the Secretary (or such other
address as shall be specified in writing by the Debt Warrant Agent or
by the Company, as the case may be).
Section 6.06. Applicable Law. This Agreement and the Debt
Warrants shall be governed by and construed in accordance with the
laws of the [State of Indiana] applicable to contracts made and to be
performed entirely within such State.
Section 6.07. Delivery of Prospectus. The Company will furnish
to the Debt Warrant Agent sufficient copies of a prospectus or
prospectuses relating to the Underlying Debt Securities deliverable
upon exercise of any outstanding Debt Warrants (each a "Prospectus"),
and the Debt Warrant Agent agrees to deliver to the Holder of a Debt
Warrant, prior to or concurrently with the delivery of the Underlying
Debt Securities issued upon the exercise thereof, a copy of the
Prospectus relating to such Underlying Debt Securities.
Section 6.08. Governmental Approvals. The Company will take
such action as may be necessary to obtain and keep effective any and
all permits, consents and approvals of governmental agencies and
authorities, and will make all filings under federal and state
securities laws (including, without limitation, the maintenance of the
effectiveness of a registration statement in respect of the Underlying
Debt Securities under the Securities Act of 1933), as may be or become
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requisite in connection with the issuance, sale, transfer and delivery
of Debt Warrants and Debt Warrant Certificates, the exercise of Debt
Warrants and the issuance, sale and delivery of Underlying Debt
Securities issued upon exercise of Debt Warrants.
Section 6.09. Persons Having Rights under Debt Warrant
Agreement. Nothing in this Agreement, expressed or implied, and
nothing that may be inferred from any of the provisions hereof is
intended or shall be construed to confer upon or give to any person or
corporation other than the Company, the Debt Warrant Agent and the
Holders any right, remedy or claim under or by reason of this
Agreement or any covenant, condition, stipulation, promise or
agreement herein; and all covenants, conditions, stipulations,
promises and agreements herein shall be for the sole and exclusive
benefit of the Company, the Debt Warrant Agent and their respective
successors and the Holders.
Section 6.10. Delivery of Prospectus. The Company will
furnish to the Debt Warrant Agent sufficient copies of a prospectus or
prospectuses relating to the Underlying Debt Securities deliverable
upon exercise of any outstanding Debt Warrants (each a "Prospectus"),
and the Debt Warrant, prior to or concurrent with the delivery of the
Underlying Debt Securities issued upon the exercise thereof, a copy of
the Prospectus relating to such Debt Securities.
Section 6.11. Headings. The descriptive headings of the several
Articles and Sections of this Agreement are inserted for convenience
only and shall not control or affect the meaning or construction of
any of the provisions hereof.
Section 6.12. Counterparts. This Agreement may be executed in
one or more counterparts, each of which when so executed and delivered
shall be deemed to be an original; but all such counterparts taken
together shall constitute one and the same agreement.
Section 6.13. Inspection of Agreement. A copy of this Agreement
shall be available during business hours at the office of the Debt
Warrant Agent for inspection by any Holder. The Debt Warrant Agent
may require such Holder to submit its Debt Warrant Certificate for
inspection prior to making such copy available.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed all as of the day and year first above
written.
ARVIN INDUSTRIES, INC.
[Seal]
By _______________________________
Attest: Name and Title:
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_________________________________
Name and Title:
___________________________________
[Seal]
Attest: By ________________________________
Name and Title:
_________________________________
Name and Title:
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Exhibit A
to
[Senior] [Subordinated] Debt Warrant Agreement
dated as of __________, 19__
[Compensation of Debt Warrant Agent]