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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 24, 1999.
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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WASTE CONNECTIONS, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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<S> <C> <C>
DELAWARE 94-3283464
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
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2260 DOUGLAS BOULEVARD, SUITE 280
ROSEVILLE, CALIFORNIA 95661
(916) 772-2221
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
RONALD J. MITTELSTAEDT
PRESIDENT, CHIEF EXECUTIVE OFFICER AND CHAIRMAN
WASTE CONNECTIONS, INC.
2260 DOUGLAS BOULEVARD, SUITE 280
ROSEVILLE, CALIFORNIA 95661
(916) 772-2221
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
COPIES OF ALL COMMUNICATIONS TO:
CAROLYN S. REISER, ESQ.
SHARTSIS, FRIESE & GINSBURG LLP
ONE MARITIME PLAZA, 18TH FLOOR
SAN FRANCISCO, CALIFORNIA 94111
(415) 421-6500
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
As soon as practicable after the effective date of this Registration Statement.
If the only Securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, please check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, please check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
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<S> <C> <C> <C>
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PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF EACH CLASS OF AMOUNT TO BE OFFERING PRICE AGGREGATE OFFERING
SECURITIES TO BE REGISTERED REGISTERED(1)(2) PER UNIT(1)(2) PRICE(1)(2)(3)
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Debt Securities...............................
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Preferred Stock, $0.01 par value(5)...........
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Common Stock, $0.01 par value(6)..............
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Total................................ $200,000,000
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<CAPTION>
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AMOUNT OF
TITLE OF EACH CLASS OF REGISTRATION
SECURITIES TO BE REGISTERED FEE(4)
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Debt Securities...............................
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Preferred Stock, $0.01 par value(5)...........
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Common Stock, $0.01 par value(6)..............
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Total................................ $55,600
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(1) There are being registered under this Registration Statement such
indeterminate number of shares of Common Stock and Preferred Stock of the
Registrant, and such indeterminate principal amount of Debt Securities of
the Registrant, as shall have an aggregate initial offering price not to
exceed $200,000,000. If any Debt Securities are issued at an original issue
discount, then the securities registered shall include such additional Debt
Securities as may be necessary such that the aggregate initial public
offering price of all securities issued pursuant to this Registration
Statement will equal $200,000,000. Any securities registered under this
Registration Statement may be sold separately or as units with other
securities registered under this Registration Statement. The proposed
maximum initial offering price per unit will be determined from time to time
by the Registrant in connection with the issuance by the Registrant of the
securities registered under this Registration Statement.
(2) Not specified with respect to each class of securities to be registered
pursuant to General Instruction II.D of Form S-3 under the Securities Act.
(3) Estimated solely for the purpose of calculating the registration fee. Any
offering of Debt Securities denominated in any foreign currency or currency
unit will be treated as the equivalent in U.S. dollars based on the exchange
rate applicable to the purchase of such Debt Securities from the Registrant.
No separate consideration will be received for Common Stock, Preferred Stock
or Debt Securities that are issued upon conversion or exchange of Debt
Securities or Preferred Stock registered hereunder.
(4) Calculated pursuant to Rule 457.
(5) Including such indeterminate number of shares of Preferred Stock as may from
time to time be issued (i) at indeterminate prices, or (ii) upon conversion
or exchange of Debt Securities registered hereunder, to the extent any such
Debt Securities are, by their terms, convertible into Preferred Stock.
(6) Including such indeterminate number of shares of Common Stock as may from
time to time be issued (i) at indeterminate prices or (ii) upon conversion
or exchange of Debt Securities or Preferred Stock registered hereunder, to
the extent any of such Debt Securities or shares of Preferred Stock are, by
their terms, convertible into Common Stock.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF THE
SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
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THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WASTE
CONNECTIONS MAY NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED
WITH THE SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT
AN OFFER TO SELL THESE SECURITIES AND IT IS NOT SOLICITING AN OFFER TO BUY THESE
SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
SUBJECT TO COMPLETION DATED SEPTEMBER 24, 1999
[LOGO]
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$200,000,000
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Waste Connections, Inc. is a regional, integrated solid waste services company
that provides solid waste collection, transfer, disposal and recycling services
in secondary markets of the Western U.S.
From time to time, we may issue any of the following securities:
- debt securities
- preferred stock
- common stock
We will provide the specific terms of these securities in one or more
supplements to this prospectus. You should read this prospectus and any
prospectus supplement carefully before you invest.
Our common stock is traded on the Nasdaq National Market under the symbol
"WCNX." The applicable prospectus supplement will contain information, where
applicable, as to any other listing on the Nasdaq National Market or any
securities exchange of the securities covered by the prospectus supplement.
We may sell the securities directly to investors, through agents designated from
time to time or to or through underwriters or dealers. See "Plan of
Distribution." If any underwriters are involved in the sale of any securities in
respect of which this prospectus is being delivered, the names of such
underwriters and any applicable commissions or discounts will be set forth in a
prospectus supplement. The net proceeds we expect to receive from such sale also
will be set forth in a prospectus supplement.
This prospectus may not be used to offer or sell any securities unless
accompanied by a prospectus supplement.
INVESTING IN THE SECURITIES OFFERED UNDER THIS PROSPECTUS INVOLVES RISKS. SEE
"RISK FACTORS" BEGINNING ON PAGE 4.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
Prospectus dated September , 1999.
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WASTE CONNECTIONS
Waste Connections is a regional, integrated solid waste services company
that provides solid waste collection, transfer, disposal and recycling services
in secondary markets of the Western U.S.
Waste Connections' executive offices are located at 2260 Douglas Boulevard,
Suite 280, Roseville, California 95661. Our telephone number is (916) 772-2221.
ABOUT THIS PROSPECTUS
This prospectus is part of a Registration Statement that we filed with the
Securities and Exchange Commission (the "SEC"), which registers the distribution
of the securities offered under this prospectus. The Registration Statement,
including the attached exhibits and schedules, contains additional information
about our company and the securities. The Registration Statement can be read at
the SEC's web site or at the offices mentioned under the heading "Where You Can
Find More Information."
The Registration Statement uses a "shelf" registration process. Under the
shelf process, we may, from time to time over approximately the next two years,
sell debt securities, preferred stock and common stock, either separately or in
units, in one or more offerings, up to a total dollar amount of $200,000,000 or
the equivalent of this amount in foreign currencies or foreign currency units.
This prospectus provides you with a general description of the securities
we may offer. Each time we sell securities, we will provide a prospectus
supplement that will contain specific information about the terms of that
offering. The prospectus supplement may also add, update or change information
contained in this prospectus. You should read both this prospectus and any
prospectus supplement, together with additional information described under the
heading "Where You Can Find More Information."
You should rely only on the information in this prospectus and in any
prospectus supplement, including any information incorporated by reference. We
have not authorized anyone to provide you with different information. We may
only use this prospectus to sell securities if it is accompanied by a prospectus
supplement. We are only offering the securities in states where offers are
permitted. You should not assume that the information in this prospectus or any
prospectus supplement is accurate at any date other than the date on the cover
page of these documents.
This prospectus contains registered service marks, trademarks and trade names of
Waste Connections, including the Waste Connections, Inc. name and logo.
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RISK FACTORS
You should carefully consider the risks described below before making an
investment decision. The risks and uncertainties described below are not the
only ones facing our company. Additional risks and uncertainties not presently
known to us or that we currently deem immaterial may also impair our business
operations.
Any or all of the following risks could materially and adversely affect our
business, financial condition and results of operations. As a result, the
trading price of our common stock could decline, and you may lose all or part of
your investment.
This prospectus also contains forward-looking statements that involve risks
and uncertainties. Our actual results could differ materially from those
anticipated in the forward-looking statements as a result of the risks described
below and elsewhere in this prospectus and other factors that we cannot now
foresee.
WE MAY HAVE DIFFICULTY EXECUTING OUR GROWTH STRATEGY
Our growth strategy includes expanding through acquisitions, acquiring
additional exclusive arrangements and generating internal growth. Whether we can
execute our growth strategy depends on several factors, including the success of
existing and emerging competition, the availability of acquisition candidates,
our ability to maintain profit margins in the face of competitive pressures, our
ability to continue to recruit, train and retain qualified employees, the
strength of demand for our services and the availability of capital to support
our growth.
RAPID GROWTH MAY STRAIN OUR MANAGEMENT, OPERATIONAL, FINANCIAL AND OTHER
RESOURCES
From inception through September 22, 1999, we acquired 90 solid waste
services related businesses. To maintain and manage our growth, we will need to
expand our management information systems capabilities and our operational and
financial systems and controls. We will also need to attract, train, motivate,
retain and manage additional senior managers, technical professionals and other
employees. Failure to do any of these things would materially and adversely
affect our business and financial results.
OUR GROWTH AND FUTURE FINANCIAL PERFORMANCE DEPEND SIGNIFICANTLY ON OUR ABILITY
TO INTEGRATE ACQUIRED BUSINESSES INTO OUR ORGANIZATION AND OPERATIONS
Part of our strategy is to achieve economies of scale and operating
efficiencies by growing through acquisitions. We may not achieve these goals
unless we effectively combine the operations of acquired businesses with our
existing operations. Our senior management team may not be able to integrate our
completed and future acquisitions. Any difficulties we encounter in the
integration process could materially and adversely affect our business and
financial results.
OUR GROWTH MAY BE LIMITED BY THE INABILITY TO MAKE ACQUISITIONS ON ATTRACTIVE
TERMS
Although we have identified numerous acquisition candidates that we believe
are suitable, we may not be able to acquire them at prices or on terms and
conditions favorable to us. As a result, our growth would be limited.
WE COMPETE FOR ACQUISITION CANDIDATES WITH OTHER PURCHASERS, SOME OF WHICH HAVE
GREATER FINANCIAL RESOURCES THAN WASTE CONNECTIONS
Other companies have adopted or will probably adopt our strategy of
acquiring and consolidating regional and local businesses. We expect that
increased consolidation in the solid waste services industry will increase
competitive pressures. Increased competition for acquisition candidates may make
fewer acquisition opportunities available to us, and may cause us to
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make acquisitions on less attractive terms, such as higher purchase prices.
Acquisition costs may increase to levels beyond our financial capability or to
levels that would adversely affect our operating results and financial
condition. Our ongoing ability to make acquisitions will depend in part on the
relative attractiveness of our common stock as consideration for potential
acquisition candidates. This attractiveness may depend largely on the relative
market price and capital appreciation prospects of our common stock compared to
the stock of our competitors. If the market price of our common stock were to
decline materially over a prolonged period of time, we may find it difficult to
make acquisitions on attractive terms.
TIMING AND STRUCTURE OF ACQUISITIONS MAY CAUSE FLUCTUATIONS IN OUR QUARTERLY
RESULTS
We are not always able to control the timing of our acquisitions. Obtaining
third party consents and regulatory approvals, completing due diligence on the
acquired businesses, and finalizing transaction terms and documents are not
entirely within our control and may take longer than we anticipate, causing
certain transactions to be delayed. Our inability to complete acquisitions in
the time frames that we expect may adversely affect our business, financial
condition and operating results. In addition, whether we account for an
acquisition using the purchase or the pooling-of-interests method determines how
the acquisition affects our financial results.
WE HAVE ONLY A LIMITED OPERATING HISTORY FROM WHICH YOU MAY EVALUATE OUR
BUSINESS AND PROSPECTS
Waste Connections was formed in September 1997 and commenced operations on
October 1, 1997. Accordingly, you should consider the disclosures about Waste
Connections in this prospectus in light of the risks, expenses and difficulties
that companies frequently encounter in their early stages of development. Our
senior management team may not be able to manage Waste Connections successfully
or to implement our operating and growth strategies.
WE MAY BE UNABLE TO COMPETE EFFECTIVELY WITH GOVERNMENTAL SERVICE PROVIDERS AND
LARGER AND BETTER CAPITALIZED COMPANIES
Our industry is highly competitive and fragmented and requires substantial
labor and capital resources. Some of the markets in which we compete or will
likely compete are served by one or more large, national solid waste companies,
as well as by numerous regional and local solid waste companies of varying sizes
and resources, some of which have accumulated substantial goodwill in their
markets. We also compete with counties, municipalities and solid waste districts
that maintain their own waste collection and disposal operations. These
operators may have financial advantages over Waste Connections because of their
access to user fees and similar charges, tax revenues and tax-exempt financing.
Some of our competitors may also be better capitalized, have greater name
recognition or be able to provide services at a lower cost than Waste
Connections.
WE MAY LOSE CONTRACTS THROUGH COMPETITIVE BIDDING, EARLY TERMINATION OR
GOVERNMENTAL ACTION
We derive a substantial portion of our revenue from services provided under
exclusive municipal contracts, franchise agreements and governmental
certificates. Many of these will be subject to competitive bidding at some time
in the future. We also intend to bid on additional municipal contracts and
franchise agreements. However, we may not be the successful bidder. In addition,
some of our customers may terminate their contracts with us before the end of
the contract term. Municipalities in Washington may by law annex unincorporated
territory, which would remove such territory from the area covered by
governmental certificates issued to us by the Washington Utilities and
Transportation Commission (the "WUTC"). Annexation would
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reduce the areas covered by our governmental certificates and subject more of
our Washington operations to competitive bidding in the future. Moreover,
legislative action could amend or repeal the laws governing governmental
certificates, which could materially and adversely affect Waste Connections. If
we were not able to replace revenues from contracts lost through competitive
bidding or early termination or from the renegotiation of existing contracts
with other revenues within a reasonable time period, the lost revenues could
materially and adversely affect our business and financial results.
WE MAY NOT HAVE ENOUGH CAPITAL OR BE ABLE TO RAISE ENOUGH ADDITIONAL CAPITAL ON
SATISFACTORY TERMS TO MEET OUR CAPITAL REQUIREMENTS
Continued growth will require additional capital. We expect to finance
future acquisitions through cash from operations, borrowings under our credit
facility, issuing additional equity or debt securities and/or seller financing.
If acquisition candidates are unwilling to accept, or we are unwilling to issue,
shares of our common stock as part of the consideration for acquisitions or if
our common stock does not maintain a sufficient market value, we may have to use
more of our cash or borrowings under our credit facility to fund acquisitions.
Using cash for acquisitions limits our financial flexibility and makes us more
likely to seek additional capital through future debt or equity financings. If
available cash from operations and borrowings under the credit facility are not
sufficient to fund acquisitions, we will need additional equity and/or debt
financing. If we seek more debt, we may have to agree to financial covenants
that limit our operational and financial flexibility. If we seek more equity, we
may dilute the ownership interests of our then-existing stockholders. We will
also need to make substantial capital expenditures to develop or acquire new
landfills, transfer stations and other facilities and to maintain such
properties.
WE DEPEND SIGNIFICANTLY ON THE SERVICES OF THE MEMBERS OF OUR SENIOR MANAGEMENT
TEAM, AND THE DEPARTURE OF ANY OF THOSE PERSONS MIGHT MATERIALLY AND ADVERSELY
AFFECT OUR BUSINESS AND FINANCIAL RESULTS
We currently maintain "key man" life insurance for Ronald J. Mittelstaedt,
the President, Chief Executive Officer and Chairman, in the amount of $3
million. Key members of our management have entered into employment agreements
with Waste Connections with terms ranging from three to five years. We may not
be able to enforce these agreements.
THE GEOGRAPHIC CONCENTRATION OF OUR BUSINESS MAKES OUR OPERATING RESULTS
VULNERABLE TO DOWNTURNS IN REGIONAL ECONOMIES
We operate in 14 states: California, Idaho, Iowa, Kansas, Minnesota,
Nebraska, New Mexico, Oklahoma, Oregon, South Dakota, Texas, Utah, Washington
and Wyoming. We expect to focus our operations on the Western U.S. for at least
the foreseeable future. A significant portion of our revenues are derived from
services provided in Washington. Our business and financial results would be
harmed by downturns in the general economy of the Western U.S., particularly in
Washington, and other factors affecting the region, such as state regulations
affecting the solid waste services industry and severe weather conditions. We
may not complete enough acquisitions in other markets to lessen our geographic
concentration.
SEASONAL FLUCTUATIONS MAY ADVERSELY AFFECT OUR BUSINESS AND FINANCIAL RESULTS
Based on historic trends experienced by the businesses we have acquired, we
expect our operating results to vary seasonally, with revenues typically lowest
in the first quarter, higher in the second and third quarters, and lower in the
fourth quarter than in the second and third quarters. This seasonality reflects
the lower volume of solid waste generated during the late fall, winter and early
spring months because of decreased construction and demolition activities during
the winter months in the Western U.S. In addition, some of our operating costs
should be generally higher in the winter months. Adverse winter weather
conditions slow waste collection activities, resulting in higher labor and
operational costs. Greater precipitation in the
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winter increases the weight of collected waste, resulting in higher disposal
costs, which are calculated on a per ton basis. Because of these factors, we
expect operating income to be generally lower in the winter months.
EXTENSIVE AND EVOLVING ENVIRONMENTAL LAWS AND REGULATIONS MAY ADVERSELY AFFECT
OUR BUSINESS
Environmental laws and regulations have been enforced more and more
stringently in recent years because of greater public interest in protecting the
environment. These laws and regulations impose substantial costs on Waste
Connections and affect our business in many ways, including as described below.
In addition, federal, state and local governments may change the rights they
grant to and the restrictions they impose on solid waste services companies, and
such changes could have a material adverse effect on Waste Connections.
- WE MAY BE UNABLE TO OBTAIN AND MAINTAIN LICENSES OR PERMITS AND ZONING,
ENVIRONMENTAL AND/OR OTHER LAND USE APPROVALS THAT WE NEED TO OWN AND
OPERATE OUR LANDFILLS
These licenses or permits and approvals are difficult and time-consuming
to obtain and renew, and elected officials and citizens' groups
frequently oppose them. Failure to obtain and maintain the permits and
approvals we need to own or operate landfills (including increasing their
capacity) could materially and adversely affect our business and
financial condition.
- EXTENSIVE REGULATIONS THAT GOVERN THE DESIGN, OPERATION AND CLOSURE OF
LANDFILLS MAY ADVERSELY AFFECT OUR BUSINESS
These regulations include the regulations ("Subtitle D Regulations") that
establish minimum federal requirements adopted by the U.S. Environmental
Protection Agency in October 1991 under Subtitle D of the Resource
Conservation and Recovery Act of 1976. If Waste Connections fails to
comply with these regulations, we could be required to undertake
investigatory or remedial activities, curtail operations or close a
landfill temporarily or permanently. Future changes to these regulations
may require us to modify, supplement or replace equipment or facilities
at substantial costs. If regulatory agencies fail to enforce these
regulations vigorously or consistently, our competitors whose facilities
do not comply with the Subtitle D Regulations or their state counterparts
may obtain an advantage over us. Our financial obligations arising from
any failure to comply with these regulations could materially and
adversely affect our business and financial results.
- WE MAY BE SUBJECT IN THE NORMAL COURSE OF BUSINESS TO JUDICIAL AND
ADMINISTRATIVE PROCEEDINGS INVOLVING FEDERAL, STATE OR LOCAL AGENCIES OR
CITIZENS' GROUPS, WHICH COULD ADVERSELY AFFECT OUR BUSINESS
Governmental agencies may impose fines or penalties on us. They may also
attempt to revoke or deny renewal of our operating permits, franchises or
licenses for violations or alleged violations of environmental laws or
regulations, or to require us to remediate potential environmental
problems relating to waste that we or our predecessors collected,
transported, disposed of or stored. Individuals or community groups might
also bring actions against us in connection with our operations. Any
adverse outcome in these proceedings could have a material adverse effect
on our business and financial results and create adverse publicity about
Waste Connections.
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- WE MAY INCUR LIABILITIES FOR ENVIRONMENTAL DAMAGE
We are liable for any environmental damage that our solid waste
facilities cause, including damage to neighboring landowners or
residents, particularly as a result of the contamination of soil,
groundwater or surface water, and especially drinking water. We may be
liable for damage resulting from conditions existing before we acquired
these facilities. We may also be liable for any off-site environmental
contamination caused by pollutants or hazardous substances whose
transportation, treatment or disposal that we or our predecessors
arranged. Any substantial liability for environmental damage could
materially and adversely affect our business and financial results.
EACH BUSINESS THAT WE ACQUIRE OR HAVE ACQUIRED MAY HAVE LIABILITIES THAT WE FAIL
OR ARE UNABLE TO DISCOVER, INCLUDING LIABILITIES THAT ARISE FROM PRIOR OWNERS'
FAILURE TO COMPLY WITH ENVIRONMENTAL LAWS
As a successor owner, we may be legally responsible for these liabilities.
Even if we obtain legally enforceable representations, warranties and
indemnities from the sellers of such businesses, they may not cover the
liabilities fully. Some environmental liabilities, even if we do not expressly
assume them, may be imposed on Waste Connections under various legal theories.
Our insurance program does not cover liabilities associated with any
environmental cleanup or remediation of our own sites. A successful uninsured
claim against Waste Connections could materially and adversely affect our
business and financial results.
OUR GROWTH MAY BE LIMITED BY THE INABILITY TO OBTAIN NEW LANDFILLS AND EXPAND
EXISTING ONES
We currently own and operate a number of landfills. Our ability to meet our
growth objectives may depend in part on our ability to acquire, lease and expand
landfills and develop new landfill sites. We may not be able to obtain new
landfill sites or expand the permitted capacity of our landfills when necessary.
IN SOME AREAS IN WHICH WE OPERATE, SUITABLE LAND FOR NEW SITES OR EXPANSION OF
EXISTING LANDFILL SITES MAY BE UNAVAILABLE
Operating permits for landfills in states where we operate must generally
be renewed at least every five years. It has become increasingly difficult and
expensive to obtain required permits and approvals to build, operate and expand
solid waste management facilities, including landfills and transfer stations.
The process often takes several years, requires numerous hearings and compliance
with zoning, environmental and other requirements and is resisted by citizen,
public interest or other groups. We may not be able to obtain or maintain the
permits we require to expand, and such permits may contain burdensome terms and
conditions. Even when granted, final permits to expand are often not approved
until the remaining permitted disposal capacity of a landfill is very low. Local
laws and ordinances also may affect our ability to obtain permits to expand
landfills. If we were to exhaust our permitted capacity at a landfill, our
ability to expand internally would be limited, and we could be required to cap
and close that landfill and forced to dispose of collected waste at more distant
landfills or at landfills operated by our competitors. The resulting increased
costs would materially and adversely affect our business and financial results.
OUR ACCRUALS FOR OUR LANDFILL CLOSURE AND POST-CLOSURE COSTS MAY BE INADEQUATE
We may be required to pay closure and post-closure costs of landfills and
any disposal facilities that we own or operate. We accrue for future closure and
post-closure costs of our owned landfills, generally for a term of 30 years
after final closure of a landfill, based on engineering estimates of consumption
of permitted landfill airspace over the useful life of the
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landfill. Our obligations to pay closure or post-closure costs may exceed the
amount we accrued and reserved and other amounts available from funds or
reserves established to pay such costs. This could materially and adversely
affect our business and financial results.
WE MAY INCUR ADDITIONAL CHARGES RELATED TO CAPITALIZED EXPENDITURES
In accordance with generally accepted accounting principles, we capitalize
some expenditures and advances relating to acquisitions, pending acquisitions
and landfill development projects. We expense indirect acquisition costs such as
executive salaries, general corporate overhead, public affairs and other
corporate services as we incur those costs. We charge against earnings any
unamortized capitalized expenditures and advances (net of any amount that we
estimate we will recover, through sale or otherwise) that relate to any
operation that is permanently shut down, any pending acquisition that is not
consummated and any landfill development project that we do not expect to
complete. Therefore, Waste Connections may incur charges against earnings in
future periods, which could materially and adversely affect our business and
financial results.
FAILURE TO COMPLY WITH COVENANTS AND CONDITIONS OF OUR CREDIT FACILITY COULD
ADVERSELY AFFECT OUR BUSINESS
Our credit facility requires us to obtain the consent of the lending banks
before acquiring any other business for more than $20 million in cash and
assumed debt. If we are not able to obtain our banks' consent to acquisitions of
this size, we may not be able to complete them, which could inhibit our growth.
Our credit facility also contains financial covenants based on our current and
projected financial condition after completing an acquisition. If we cannot
satisfy these financial covenants on a pro forma basis after completing an
acquisition, we would not be able to complete the acquisition without a waiver
from our lending banks. Whether or not a waiver is needed, if the results of our
future operations differ materially from what we expect, we may no longer be
able to comply with the covenants in the credit facility. Our failure to comply
with these covenants may result in a default under the credit facility, which
would allow our lending banks to accelerate the date for repayment of debt
incurred under the credit facility and materially and adversely affect our
business and financial results.
FLUCTUATIONS IN PRICES FOR RECYCLED COMMODITIES MAY ADVERSELY AFFECT OUR
OPERATING RESULTS
We provide recycling services to some of our customers. The sale prices of
and demand for recyclable waste products, particularly wastepaper, are
frequently volatile and may adversely affect our operating results.
STOCKHOLDERS WILL EXPERIENCE DILUTION WHEN WE ISSUE ADDITIONAL SHARES OF OUR
COMMON STOCK
Investors will experience dilution when we issue common stock on the
exercise of outstanding stock options and warrants or as consideration for
acquisitions. We have registered 12,644,165 additional shares of common stock
since our May 1998 initial public offering to be issued from time to time in
connection with acquisitions and have issued 6,444,570 of these shares as of the
date of this prospectus. When all of these shares have been issued, we expect to
register additional shares of common stock for acquisitions in the future. We
also issued an additional 3,999,307 shares of common stock in a follow-on public
offering in February 1999, and we may make additional primary public offerings
of our common stock in the future. These future issuances may cause additional
dilution.
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PROVISIONS IN OUR CHARTER AND BYLAWS MAY DETER CHANGES IN CONTROL THAT COULD
BENEFIT OUR STOCKHOLDERS
Certain provisions in our Amended and Restated Certificate of Incorporation
and Amended and Restated By-Laws, and in the Delaware General Corporation Law,
may deter tender offers and hostile takeovers and delay or prevent changes in
control or management of Waste Connections, including transactions in which
stockholders might be paid more than current market prices for their shares.
These provisions may also limit our stockholders' ability to approve
transactions that they believe are in their best interests.
WE DO NOT INTEND TO PAY CASH DIVIDENDS ON THE COMMON STOCK
We intend to retain all earnings to help fund the operation and expansion
of our business. In addition, our credit facility prohibits us from paying cash
dividends without the consent of our lenders.
FAILURE TO MAKE TIMELY YEAR 2000 MODIFICATIONS MAY AFFECT OUR OPERATIONS
We will need to modify or replace portions of our software so that our
computer systems will function properly with respect to dates in the year 2000
("Year 2000") and afterwards. We have completed Year 2000 conversions at the
following locations: Vancouver, Idaho Falls, Oregon Paper Fibers, Mountain Home,
Layton, Orem, Price, Amador, Madera, Kingsburg, Riverdale, Mammoth, Brookings,
Florence, Yakima and Heartland, at a total cost of approximately $125,000.
Upcoming Year 2000 conversions relating to recent acquisitions include Denver
and Las Cruces, at an estimated additional cost of approximately $25,000. These
will be concluded before the end of 1999. Additional acquisitions in the future
may require additional Year 2000 conversions, at additional cost. Because our
operations rely primarily on mechanical systems such as trucks to collect solid
waste, we do not expect our operations to be significantly affected by Year 2000
issues. Our customers may need to make Year 2000 modifications to software and
hardware that they use to generate records, bills and payments relating to Waste
Connections. We do not rely on vendors on a routine basis except for providers
of disposal services. We take waste to a site and are normally billed based on
tonnage disposed. We believe that if our disposal vendors encounter Year 2000
problems, they will convert to manual billing based on scale recordings until
they resolve those issues.
In assessing our exposure to Year 2000 issues, we believe our biggest
challenges lie in the following areas: Year 2000 issues at our banks, large
(typically municipal) customers and acquired businesses between the time we
acquire them and the time we implement our own systems. We are obtaining Year
2000 compliance certifications from our vendors, banks and customers. If Waste
Connections and our vendors, banks and customers do not complete required Year
2000 modifications on time, the Year 2000 issue could materially affect our
operations. We believe, however, that in the most reasonably likely worst case,
the effects of Year 2000 issues on our operations would be brief and small
relative to our overall operations. We have not made a contingency plan to
minimize operational problems if Waste Connections and our vendors, banks and
customers do not timely complete all required Year 2000 modifications.
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RATIO OF EARNINGS TO COMBINED FIXED CHARGES
AND PREFERRED STOCK DIVIDENDS
The ratio of earnings to combined fixed charges and preferred stock
dividends for Waste Connections are set forth below for the periods indicated.
<TABLE>
<CAPTION>
SIX MONTHS
YEAR ENDED DECEMBER 31, ENDED
----------------------------------------------- JUNE 30,
1994 1995 1996 1997 1998 1999
------- ------- ------- ------- ------- ----------
<S> <C> <C> <C> <C> <C> <C>
Ratio of earnings to
combined fixed charges and
preferred stock
dividends................. 3.1 8.3 2.9 N/A(1) 2.2 1.9
Pro Forma ratio of earnings
to combined fixed charges
and preferred stock
dividends(2).............. 1.9 1.6
</TABLE>
- ----------------
(1) For the year ended December 31, 1997, the Company's earnings were inadequate
to cover combined fixed charges and preferred stock dividends. The coverage
deficiency was $3,433,000.
(2) Gives effect to our acquisitions of Columbia Resource Co., LP and Finley
Buttes Limited Partnership and International Environmental Industries, Inc.
as if such acquisitions occurred on January 1, 1998.
For purposes of calculating the ratios, fixed charges consist of interest
on debt, amortization of discount on debt, and the interest portion of rental
expense on operating leases.
The ratio of earnings to fixed charges is calculated as follows:
(income before extraordinary charges and income taxes) + (fixed charges) -
(capitalized interest)
(fixed charges)
USE OF PROCEEDS
Unless the applicable prospectus supplement states otherwise, we intend to
use the net proceeds from the sale of the offered securities to reduce our
outstanding indebtedness under our credit facility, to finance acquisitions, for
capital expenditures and for working capital. We intend to invest unused net
proceeds in short-term interest-bearing securities until we apply them to these
specific purposes. We continually evaluate potential acquisition candidates and
intend to continue to pursue acquisition opportunities.
DESCRIPTION OF DEBT SECURITIES
We may from time to time offer and sell debt securities (the "Debt
Securities"), consisting of debentures, notes and/or other unsecured evidences
of indebtedness. The Debt Securities will be either our unsecured senior debt
securities (the "Senior Debt Securities"), or our unsecured subordinated debt
securities (the "Subordinated Debt Securities"). The Senior Debt Securities will
be issued under an Indenture (the "Senior Indenture") between us and a trustee
(the "Senior Trustee"). The Senior Debt Securities will be our direct, unsecured
obligations and will rank equally with all of our outstanding unsecured senior
indebtedness. The Subordinated Debt Securities will be issued under a second
indenture (the "Subordinated Indenture") between us and a trustee (the
"Subordinated Trustee"), which may be the same as the Senior Trustee. The
Subordinated Debt Securities will be our direct, unsecured obligations and,
unless otherwise specified in the prospectus supplement relating to a particular
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series of Subordinated Securities offered by such prospectus supplement, will be
subject to the subordination provisions. The Senior Indenture and the
Subordinated Indenture are together called the "Indentures," and the Senior
Trustee and the Subordinated Trustee are together called the "Trustee."
The following summary of certain provisions of the Indentures is not
complete. You should refer to the form of each Indenture, copies of which are
exhibits to the Registration Statement. Section references below are to the
section in the applicable Indenture. Capitalized terms have the meanings
assigned to them in the applicable Indenture. The referenced sections of the
Indentures and the definitions of capitalized terms are incorporated by
reference.
The following section describes certain general terms and provisions of the
Debt Securities. The particular terms of the Debt Securities offered by any
prospectus supplement will be described in the applicable prospectus supplement.
Other than as may be indicated in the applicable prospectus supplement, no
provisions of the Indentures afford holders of the Debt Securities protection in
the event of a highly leveraged transaction involving Waste Connections.
General. The Indentures do not limit the aggregate principal amount of Debt
Securities that we may issue. Each Indenture provides that Debt Securities of
any series may be issued under it up to the aggregate principal amount
authorized from time to time by us and may be denominated in any currency or
currency unit that we designate. Neither the Indentures nor the Debt Securities
will limit or otherwise restrict the amount of other indebtedness that we may
incur or the other securities that we or any of our subsidiaries may issue
(section 3.01).
Debt Securities of a series may be issuable in registered form without
coupons ("Registered Securities"), in bearer form with or without coupons
attached ("Bearer Securities") or in the form or one or more global securities
in registered or bearer form (each, a "Global Security"). Bearer Securities, if
any, will be offered only to non-United States persons and to offices located
outside the United States of certain United States financial institutions.
The prospectus supplement relating to each series of Debt Securities being
offered will specify the particular terms of those Debt Securities. The terms
may include:
- the title and type of the Debt Securities;
- any limit on the aggregate principal amount of the Debt Securities or
aggregate initial public offering price;
- the priority of payment of the Debt Securities;
- the price or prices (which may be expressed as a percentage of the
aggregate principal amount thereof) at which the Debt Securities will be
issued;
- the date or dates on which the principal and premium, if any, of the Debt
Securities are payable;
- the interest rate or rates (which may be fixed or variable) of the Debt
Securities, if any;
- the Interest Payment Date or Dates, if any, or the method or methods by
which such dates may be determined, if any, the date or dates on which
payment of interest, if any, will commence, and the Regular Record Dates
for such Interest Payment Dates;
- the extent to which any of the Debt Securities will be issuable in
temporary or permanent global form, or the manner in which any interest
payable on a temporary or permanent Global Debt Security will be paid;
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- each office or agency where, subject to the terms of the applicable
Indenture, the Debt Securities may be presented for registration or
transfer or exchange;
- the place or places where, subject to the terms of the applicable
Indenture, the principal (and premium, if any) and interest, if any, on
the Debt Securities will be payable;
- the date or dates, if any, after which the Debt Securities may be
redeemed or purchased in whole or in part, at our option or mandatorily
pursuant to any sinking, purchase or analogous fund or may be required to
be purchased or redeemed at the option of the holder, and the redemption
or repayment price or prices;
- the denomination or denominations in which the Debt Securities will be
issuable;
- the currency, currencies or units based on or related to currencies for
which the Debt Securities may be purchased and the currency, currencies
or currency units in which the principal of, premium, if any, and any
interest on such Debt Securities may be payable;
- whether the Debt Securities will be convertible into shares of Common or
Preferred Stock and if so, the terms of such conversion;
- any index used to determine the amount of payments of principal of,
premium, if any, and interest on the Debt Securities;
- whether any of the Debt Securities are to be issuable as Bearer
Securities and/or Registered Securities, and if issuable as Bearer
Securities, any limitations on issuance of such Bearer Securities and any
provisions regarding the transfer or exchange of such Bearer Securities
(including exchange for registered Debt Securities of the same series);
- the payment of any additional amounts with respect to the Debt
Securities;
- whether any of the Debt Securities will be issued as Original Issue
Discount Securities (as defined below);
- information with respect to book-entry procedures, if any;
- any additional covenants or Events of Default not currently set forth in
the applicable Indenture; and
- any other terms of the Debt Securities not inconsistent with the
provisions of the applicable Indenture.
If any of the Debt Securities are sold for one or more foreign currencies
or foreign currency units or if the principal of, premium, if any, or interest
on any series of Debt Securities is payable in one or more foreign currencies or
foreign currency units, the restrictions, elections, tax consequences, specific
terms and other information with respect to such issue of Debt Securities and
such currencies or currency units will be set forth in the applicable prospectus
supplement (section 3.01).
Debt Securities may be issued as original issue discount Debt Securities
(bearing no interest or interest at a rate that at the time of issuance is below
market rates) ("Original Issue Discount Securities"), to be sold at a
substantial discount below their stated principal amount. There may not be any
periodic payments of interest on Original Issue Discount Securities. In the
event of an acceleration of the maturity of any Original Issue Discount
Security, the amount payable to the holder of such Original Issue Discount
Security upon such acceleration will be determined in accordance with the
prospectus supplement, the terms of such security and the Indenture, but will be
an amount less than the amount payable at the maturity of the principal of such
Original Issue Discount Security (section 7.02). The federal income tax
considerations with respect to Original Issue Discount Securities will be
explained in the prospectus supplement we prepare for the Original Issue
Discount Securities.
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Consolidation, Merger of Sale of Assets. Each Indenture provides that we
may, without the consent of the holders of any of the Debt Securities
outstanding under the applicable Indenture, consolidate with, merge into or
transfer our assets substantially as an entirety to any person, provided that:
- any successor assumes our obligations on the applicable Debt Securities
and under the applicable Indenture;
- after giving effect to the transaction, there is no Default or Event of
Default that is continuing; and
- certain other conditions under the applicable Indenture are met (section
10.1).
Accordingly, such consolidation, merger or transfer of assets substantially
as an entirety, which meets the conditions described above, would not create any
Event of Default which would entitle holders of the Debt Securities, or the
Trustee on their behalf, to take any of the actions described below under
"-- Events of Default, Waivers, Etc."
Leveraged and Other Transactions. The Indentures and the Debt Securities do
not contain, among other things, provisions that would protect holders of the
Debt Securities in the event of a highly leveraged or other transaction
involving Waste Connections that could adversely affect the holders of Debt
Securities.
Modification of the Indenture; Waiver of Covenants. Each Indenture provides
that, with the consent of the holders of not less than a majority in aggregate
principal amount of the outstanding Debt Securities of each affected series,
modifications and alterations of such Indenture may be made that affect the
rights of the holders of such Debt Securities. However, no such modification or
alteration may be made without the consent of the holder of each Debt Security
so affected which would, among other things:
- Change the maturity of the principal of, or of any installment of
interest (or premium, if any) on, any Debt Security issued pursuant to
such Indenture;
- Change the principal amount thereof, premium thereon, if any, or interest
thereon;
- Change the method of calculation of interest or the currency of payment
of principal or interest (or premium, if any) thereon;
- Reduce the minimum rate of interest thereon;
- Impair the right to bring suit for the enforcement of any such payment on
or with respect to any such Debt Security;
- Reduce the amount of principal of an Original Issue Discount Security
that would be due and payable upon an acceleration of the maturity
thereof;
- Reduce the above-stated percentage in principal amount of outstanding
Debt Securities required to modify or alter such Indenture (section
9.02); or
- Change our obligation to maintain an office or agency as required by the
applicable Indenture.
Global Securities. The Debt Securities of a series may be issued in the
form of one or more Global Securities that will be deposited with a Depositary
or its nominee identified in the applicable prospectus supplement. In such a
case, one or more Global Securities will be issued in a denomination or
aggregate denominations equal to the portion of the aggregate principal amount
of outstanding Debt Securities of the series to be represented by the Global
Security or Securities. Unless and until it is exchanged in whole or in part for
Debt Securities in definitive registered form, a Global Security may not be
registered for transfer or exchange except as a
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<PAGE> 15
whole by the Depositary for the Global Security to a nominee for the Depositary
(section 3.05) and except in the circumstances described in the applicable
prospectus supplement.
The specific terms of the depositary arrangement with respect to any
portion of a series of Debt Securities and certain limitations and restrictions
relating to a series of Bearer Securities in the form of one or more Global
Securities will be described in the applicable prospectus supplement.
Event of Default, Waivers, Etc. An Event of Default with respect to the
Senior Debt Securities of any series, and a Default with respect to the
Subordinated Debt Securities of any series, is defined in the applicable
Indentures as:
(i) Default in the payment of principal of or premium, if any, on any
Debt Security of that series when due;
(ii) Default in the payment of interest on any Debt Security of that
series when due, which continues for 30 days;
(iii) Default in the performance by us of any of our other covenants
in the applicable Indenture with respect to the Debt Securities of such
series, which continues for 90 days after written notice;
(iv) Certain events of bankruptcy, insolvency or reorganization of our
company; and
(v) Any other event that may be specified in a prospectus supplement
with respect to any series of Debt Securities (section 7.01 of the Senior
Indenture; section 7.07 of the Subordinated Indenture).
If an Event of Default with respect to any series of Senior Debt Securities
or a Default specified in clauses (iv) and (v) of this section with respect to
the Subordinated Debt Securities occurs and is continuing, either the Trustee or
the holders of not less than 25% in aggregate principal amount of the Debt
Securities of such series outstanding may declare the principal amount (or if
such Debt Securities are Original Issue Discount Securities, such portion of the
principal mount as may be specified in the terms of that series) of all Debt
Securities of that series to be immediately due and payable. The holders of a
majority in aggregate principal amount of the Debt Securities of any series may
waive such Event of Default or Default, as applicable, resulting in acceleration
of such Debt Securities, but only if all events of Default or Default, as
applicable, with respect to the Debt Securities of such series have been
remedied and all payments due (other than those due as a result of acceleration)
have been made (sections 7.02 and 7.13).
If an Event of Default with respect to the Senior Debt Securities or a
Default with respect to the Subordinated Debt Securities occurs and is
continuing, the Trustee may, in its discretion, and at the written request of
holders of not less than a majority in aggregate principal amount of the Debt
Securities of any series, and upon reasonable indemnity against the costs,
expenses and liabilities to be incurred in compliance with such request and
subject to certain other conditions set forth in the applicable Indenture will,
proceed to protect the rights of the holders of all the Debt Securities of such
series (sections 7.03 and 7.07). Prior to acceleration of maturity of the Debt
Securities of any series outstanding under the applicable Indenture, the holders
of a majority in aggregate principal amount of such Debt Securities may waive
any past default under the applicable Indenture except a default in the payment
of principal of, premium, if any, or interest on the Debt Securities of such
series (section 7.02).
The Indentures provide that upon the occurrence of an Event of Default with
respect to the Senior Debt Securities specified in clauses (i) or (ii) of this
section or a Default with respect to the Subordinated Debt Securities specified
in clauses (i) or (ii) of this section, we will, upon demand of the Trustee, pay
to it, for the benefit of the holder of any such Debt Security, the whole amount
then due and payable on such Debt Securities for principal, premium, if any, and
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interest. The Indentures further provide that that if we fail to pay such amount
upon such demand, the Trustee may, among other things, institute a judicial
proceeding for the collection of the amount due (section 7.03).
The Indentures also provide that notwithstanding any other provision of the
applicable Indenture, the holder of any Debt Security of any series will have
the right to institute suit for the enforcement of any payment of principal of,
premium, if any, and interest on such Debt Securities when due and that such
right will not be impaired without the consent of such holder (section 7.08).
We are required to file annually with the applicable Trustee a written
statement as to the existence or non-existence of defaults under the Indentures
or the Debt Securities (section 5.05).
Subordination of the Subordinated Debt Securities. The Subordinated Debt
Securities will be our direct, unsecured obligations and, unless otherwise
specified in the prospectus supplement relating to a particular series of
Subordinated Debt Securities offered by such prospectus supplement, will be
subject to the subordination provisions described in this section. Upon any
distribution of our assets due to any dissolution, winding up, liquidation or
reorganization, the payment of the principal of, premium, if any, and interest
on the Subordinated Debt Securities is to be subordinated in right of payment to
all Senior Indebtedness. In certain events of bankruptcy or insolvency, the
payment of the principal of and interest on the Subordinated Debt Securities
will, to the extent provided in the Subordinated Indenture, also be effectively
subordinated in right of payment to all General Obligations (as defined below).
Upon any distribution of our assets due to any dissolution, winding up,
liquidation or reorganization, the holders of Senior Indebtedness will first be
entitled to receive payment in full of all amounts due or to become due before
the holders of the Subordinated Debt Securities will be entitled to receive any
payment in respect of the Subordinated Debt Securities. If upon any such payment
or distribution of assets, after giving effect to such subordination provisions
in favor of the holders of Senior Indebtedness, (i) there remain any amounts of
cash, property or securities available for payment or distribution in respect of
the Subordinated Debt Securities ("Excess Proceeds") and (ii) if, at such time,
any creditors in respect of General Obligations have not received payment in
full of all amounts due or to become due on or in respect of such General
Obligations, then such Excess Proceeds will first be applied to pay or provide
for the payment in full of such General Obligations before any payment or
distribution may be made in respect of the Subordinated Debt Securities
(sections 14.02 and 14.09).
In addition, no payment may be made on the Subordinated Debt Securities, or
in respect of any redemption, retirement, purchase or other acquisition of any
of the Subordinated Debt Securities, at any time in the event:
- there is a default in the payment of the principal of, premium, if any,
interest on or otherwise in respect of any Senior Indebtedness; or
- any event of default with respect to any Senior Indebtedness has occurred
and is continuing or would occur as a result of such payment on the
Subordinated Debt Securities or any redemption, retirement, purchase or
other acquisition of any of the Subordinated Debt Securities, permitting
the holders of such Senior Indebtedness to accelerate the maturity
thereof (section 14.03).
Except as described above, our obligation to make payments of the principal
of, premium, if any, or interest on the Subordinated Debt Securities will not be
affected (section 14.04).
By reason of the subordination in favor of the holders of Senior
Indebtedness, in the event of a distribution of assets upon any dissolution,
winding up, liquidation or reorganization, our creditors who are not holders of
Senior Indebtedness or the Subordinated Debt Securities may
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recover less, proportionately, than holders of Senior Indebtedness and may
recover more, proportionately, than holders of the Subordinated Debt Securities.
Subject to payment in full of all Senior Indebtedness, the holders of
Subordinated Debt Securities will be subrogated to the rights of the holders of
Senior Indebtedness to receive payments or distributions of cash, property or
securities of our company applicable to Senior Indebtedness. Subject to payment
in full of all General Obligations, the holders of the Subordinated Debt
Securities will be subrogated to the rights of the creditors in respect of
General Obligations to receive payments or distributions of cash, property or
securities of our company applicable to such creditors in respect of General
Obligations (sections 14.02 and 14.09).
"Senior Indebtedness" for purposes of the Subordinated Indenture is the
principal of, premium, if any, and interest on:
- all of our indebtedness for money borrowed (other than (i) the
Subordinated Debt Securities and (ii) the Junior Subordinated
Indebtedness (as defined below)) whether outstanding on the date of
execution of the Subordinated Indenture or created, assumed or incurred
after that date, except such indebtedness as is by its terms expressly
stated to be not superior in right of payment to the Subordinated Debt
Securities or to rank equally with the Subordinated Debt Securities; and
- any deferrals, renewals or extensions of any such Senior Indebtedness.
The term "indebtedness for money borrowed" as used in this prospectus
includes, without limitation, any obligation of, or any obligation guaranteed by
us for the repayment of borrowed money, whether or not evidenced by bonds,
debentures, notes or other written instruments, and any deferred obligation for
the payment of the purchase price of property or assets. The Subordinated
Indenture does not limit our issuance of additional Senior Indebtedness.
The Subordinated Debt Securities will rank senior in right of payment to
our Junior Subordinated Indebtedness upon any distribution of our assets due to
any dissolution, winding up, liquidation or reorganization, to the extent
provided in the instruments creating our Junior Subordinated Indebtedness.
"Junior Subordinated Indebtedness" is the principal of, premium, if any, and
interest on:
- all of our indebtedness for money borrowed whether outstanding on the
date of the execution of the Subordinated Indenture or created, assumed
or incurred after that date that is by its terms subordinated to the
Subordinated Debt Securities; and
- any deferrals, renewals or extensions of any of such Junior Subordinated
Indebtedness.
Unless otherwise specified in the prospectus supplement relating to a
particular series of Subordinated Debt Securities offered thereby, the term
"General Obligations" means all obligations to make payment on account of claims
in respect of derivative products such as interest and foreign exchange rate
contracts, commodity contracts and similar arrangements, other than:
(i) obligations on account of Senior Indebtedness;
(ii) obligations on account of indebtedness for money borrowed
ranking equal with or subordinate to the Subordinated Debt Securities; and
(iii) obligations which by their terms are expressly stated not to be
senior in right of payment to the Subordinated Debt Securities or to rank
equally with the Subordinated Debt Securities.
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<PAGE> 18
Unless otherwise specified in the prospectus supplement relating to any
series of Subordinated Debt Securities, payment of principal of the Subordinated
Debt Securities may be accelerated only in case of the bankruptcy, insolvency or
reorganization of our company.
Concerning the Trustee, we and certain of our affiliates maintain a banking
relationship with the Trustee and its affiliates. The Trustee also acts as the
transfer agent, registrar and dividend disbursing agent for our common stock.
DESCRIPTION OF PREFERRED STOCK
The following summary describes the general terms of the preferred stock,
$0.01 par value (the "Preferred Stock"), to which any prospectus supplement may
relate. Certain terms of any series of the Preferred Stock offered by any
prospectus supplement will be described in such prospectus supplement. If so
indicated in the prospectus supplement, the terms of that series may differ from
the terms described below. The provisions of the Preferred Stock described below
are not complete. You should refer to our Amended and Restated Certificate of
Incorporation (the "Certificate") and any certificate of amendment to the
Certificate or certificate of designations filed with the SEC in connection with
the offering of Preferred Stock.
General. Under our Certificate, our Board of Directors has the authority,
without further stockholder action, to issue from time to time Preferred Stock
in one or more series and for such consideration as may be fixed from time to
time by our Board of Directors. Our Board also has the authority to fix and
determine, in the manner provided by law, the relative rights and preferences of
the shares of any series so established, such as dividend and voting rights. Our
Certificate authorizes 7,500,000 shares of Preferred Stock. Prior to the
issuance of each series of Preferred Stock, our Board will adopt resolutions
creating and designating the series as a series of Preferred Stock.
The Preferred Stock will have the dividend, liquidation, redemption, voting
and conversion rights set forth below unless otherwise specified in the
applicable prospectus supplement. You should read the prospectus supplement
relating to the particular series of Preferred Stock offered thereby for
specific terms, including:
- the designation, stated value and liquidation preference of such
Preferred Stock and the number of shares offered;
- the initial public offering price at which such shares will be issued;
- the dividend rate or rates (or method of calculation), the dividend
periods, the date on which dividends will be payable and whether such
dividends will be cumulative or noncumulative and, if cumulative, the
dates from which dividends will begin to cumulate;
- any redemption or sinking fund provisions;
- any conversion provisions; and
- any additional voting, dividend, liquidation, redemption, sinking fund
and other rights, preferences, privileges, limitations and restrictions
on such Preferred Stock.
No shares of Preferred Stock are currently outstanding. The Preferred Stock
will, when issued, be fully paid and nonassessable and have no preemptive
rights. Unless otherwise specified in the applicable prospectus supplement, the
shares of each series of Preferred Stock will upon issuance rank equally in all
respects with each other then outstanding series of Preferred Stock. Unless
otherwise specified in the applicable prospectus supplement, Bank Boston N.A.,
c/o Boston EquiServe, L.P., will be the transfer agent and registrar for the
Preferred Stock.
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Rank. Any series of the Preferred Stock will, with respect to dividend
rights and rights on liquidation, winding up or dissolution, rank:
- senior to all classes of Common Stock and to all equity securities issued
by us, the terms of which specifically provide that the equity securities
will rank junior to the Preferred Stock;
- equally with all equity securities issued by us, the terms of which
specifically provide that the equity securities will rank equally with
the Preferred Stock; and
- junior to all equity securities issued by us, the terms of which
specifically provide that the equity securities will rank senior to the
Preferred Stock.
Dividends. The holders of the Preferred Stock will be entitled to receive,
when, as and if declared by our Board, dividends at such rates and on such dates
as will be specified in the applicable prospectus supplement. Such rates may be
fixed or variable or both. If variable, the formula used for determining the
dividend rate for each dividend period will be specified in the applicable
prospectus supplement. Dividends will be payable to the holders of record as
they appear on our stock books on such record dates as will be fixed by our
Board. Dividends may be paid in the form of cash, Preferred Stock (of the same
or a different series) or Common Stock, in each case as specified in the
applicable prospectus supplement.
Dividends on any series of the Preferred Stock may be cumulative or
noncumulative, as specified in the applicable prospectus supplement. If the
dividends on a series of the Preferred Stock are noncumulative ("Noncumulative
Preferred Stock"), and our Board fails to declare a dividend payable on a
dividend payment date, then the holders of such Preferred Stock will have no
right to receive a dividend in respect to the dividend period relating to such
dividend payment date, and we will not be obligated to pay the dividend accrued
for such period, whether or not dividends on such Preferred Stock are declared
or paid on any future dividend payment dates.
We will not declare or pay or set apart for payment any dividends on any
series of the Preferred Stock that rank, as to dividends, on a parity with or
junior to the outstanding Preferred Stock of any series unless (i) if such
outstanding Preferred Stock has a cumulative dividend ("Cumulative Preferred
Stock"), full cumulative dividends have been or contemporaneously are declared
and paid or declared and a sum sufficient for the payment thereof set apart for
such payment on such Preferred Stock for all dividend periods terminating on or
prior to the date of payment of any such dividends on such other series of the
Preferred Stock or (ii) if such outstanding Preferred Stock is Noncumulative
Preferred Stock, full dividends for the then-current dividend period on such
Preferred Stock have been or contemporaneously are declared and paid or declared
and a sum sufficient for the payment thereof set apart for such payment.
Until full dividends are paid (or declared and payment is set aside) on the
Preferred Stock ranking equal as to dividends, then:
- we will declare any dividends pro rata among the Preferred Stock of each
series and any Preferred Stock ranking equal to such Preferred Stock as
to dividends (i.e., the dividends we declare per share on each series of
such Preferred Stock will bear the same relationship to each other that
the full accrued dividends per share on each such series of the Preferred
Stock (which will not, if such Preferred Stock is Noncumulative Preferred
Stock, include any accumulation in respect to unpaid dividends for prior
dividend periods) bear to each other);
- other than such pro rata dividends, we will not declare or pay any
dividends or declare or make any distributions upon any security ranking
junior to or equal with the Preferred Stock as to dividends or upon
liquidation (except dividends on common stock payable in common stock,
dividends or distributions paid for with securities ranking junior to the
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<PAGE> 20
Preferred Stock as to dividends and upon liquidation and cash in lieu of
fractional shares in connection with such dividends); and
- we will not redeem, purchase or otherwise acquire (or set aside money for
a sinking fund for) Common Stock or any other securities ranking junior
to or equal with the Preferred Stock as to dividends or upon liquidation
(except by conversion into or exchange for stock junior to the Preferred
Stock as to dividends and upon liquidation).
We will not owe any interest, or any money in lieu of interest, on any
dividend payment on any series of the Preferred Stock that may be past due.
Redemption. A series of the Preferred Stock may be redeemable, in whole or
in part, at our option, and may be subject to mandatory redemption pursuant to a
sinking fund or otherwise, in each case upon terms, at the times and at the
redemption prices specified in the applicable prospectus supplement. Redeemed
shares of the Preferred Stock will become authorized but unissued shares of
Preferred Stock that we may issue in the future.
The prospectus supplement relating to a series of Preferred Stock that is
subject to mandatory redemption will specify the number of shares of such
Preferred Stock that we will redeem each year and the redemption price per
share. If shares of Preferred Stock are redeemed, we will pay all accrued and
unpaid dividends thereon (which will not, if such Preferred Stock is
Noncumulative Preferred Stock, include any accumulation in respect of unpaid
dividends for prior dividend periods) up to but excluding the date of
redemption. The redemption price may be payable in cash or other property, as
specified in the applicable prospectus supplement. If the redemption price for
the Preferred Stock of any series is payable only from the net proceeds of the
issuance of our capital stock, the terms of such Preferred Stock may provide
that, if no such capital stock will have been issued or to the extent the net
proceeds from any issuance are insufficient to pay in full the aggregate
redemption price then due, such Preferred Stock will automatically and
mandatorily be converted into shares of our applicable capital stock pursuant to
conversion provisions specified in the applicable prospectus supplement.
If fewer than all the outstanding shares of Preferred Stock of any series
are to be redeemed, our Board will determine the number of shares to be
redeemed. We will redeem the shares pro rata from the holders of record of such
shares in proportion to the number of such shares held by such holders (with
adjustments to avoid redemption of fractional shares) or by lot or by any other
method as may be determined by our Board.
Even though the terms of a series of the Cumulative Preferred Stock may
permit redemption of such Cumulative Preferred Stock in whole or in part, if any
dividends, including accumulated dividends, on that series are past due:
- we will not redeem any Preferred Stock of that series unless we
simultaneously redeem all outstanding Preferred Stock of that series; and
- we will not purchase or otherwise acquire any Preferred Stock of that
series.
The prohibition discussed in the preceding sentence will not prohibit us
from purchasing or acquiring Preferred Stock of that series pursuant to a
purchase or exchange offer if we make the offer on the same terms to all holders
of that series.
Conversion Rights. The prospectus supplement relating to a series of
convertible Preferred Stock will describe the terms on which shares of such
series are convertible into our Common Stock, or another series of Preferred
Stock.
Rights Upon Liquidation. Unless the applicable prospectus supplement states
otherwise, if we voluntarily or involuntarily liquidate, dissolve or wind up our
business, the holders of the Preferred Stock will be entitled to receive out of
our assets available for distribution to
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<PAGE> 21
stockholders, before any distribution of assets is made to holders of our common
stock or any other class or series of shares ranking junior to such Preferred
Stock upon liquidation, liquidating distributions in the amount of the
liquidation preference of such Preferred Stock plus accrued and unpaid dividends
(which will not, if such Preferred Stock is Noncumulative Preferred Stock,
include any accumulation in respect of unpaid dividends for prior dividend
periods). If we voluntarily or involuntarily liquidate, dissolve or wind up our
business, the amounts payable with respect to the Preferred Stock of any series
and any of our other securities ranking equal as to any such distribution are
not paid in full, the holders of such Preferred Stock and of such other shares
will share ratably in any such distribution of our assets in proportion to the
full respective preferential amounts to which they are entitled. After payment
of the full amount of the liquidating distribution to which they are entitled,
the holders of the Preferred Stock of any series will not be entitled to any
further participation in any distribution of our assets.
Voting Rights. Except as described in this section or in the applicable
prospectus supplement, or except as expressly required by applicable law, the
holders of the Preferred Stock will not be entitled to vote. If the holders of a
series of Preferred Stock are entitled to vote and the applicable prospectus
supplement does not state otherwise, each such share will be entitled to one
vote on matters on which holders of such series of the Preferred Stock are
entitled to vote. For any series of Preferred Stock having one vote per share,
the voting power of such series, on matters on which holders of such series and
holders of other series of Preferred Stock are entitled to vote as a single
class, will depend on the number of shares in such series, not the aggregate
stated value, liquidation preference or initial offering price of the shares of
such series of Preferred Stock.
Unless we receive the consent of the holders of an outstanding series of
Preferred Stock and the outstanding shares of all other series of Preferred
Stock which (i) rank equal with such series either as to dividends or the
distribution of assets upon liquidation, dissolution or winding up of our
business and (ii) have voting rights that are exercisable and that are similar
to those of such series, we will not:
- authorize, create or issue, or increase the authorized or issued amount
of, any class or series of stock ranking prior to such outstanding
Preferred Stock with respect to payment of dividends or the distribution
of assets upon liquidation, dissolution or winding up of our business; or
- amend, alter or repeal, whether by merger, consolidation or otherwise,
the provisions of our Certificate or of the resolutions contained in any
certificate of designations creating such series of Preferred Stock so as
to materially and adversely affect any right, preference privilege or
voting power of such outstanding Preferred Stock.
This consent must be given by the holders of a majority of all such
outstanding Preferred Stock described in the preceding sentence, voting together
as a single class. We will not be required to obtain this consent with respect
to the actions listed in the second bullet point above, however, if we only (i)
increase the amount of the authorized Preferred Stock, (ii) create and issue
another series of Preferred Stock, or (iii) increase the amount of authorized
shares of any series of Preferred Stock, if such Preferred Stock in each case
ranks equal with or junior to the Preferred Stock with respect to the payment of
dividends and the distribution of assets upon liquidation, dissolution or
winding up of our business.
DESCRIPTION OF COMMON STOCK
This section describes the general terms and provisions of the shares of
our common stock, par value $0.01 per share (the "Common Stock"). The summary is
not complete and is qualified in its entirety by reference to the description of
the Common Stock incorporated by reference in this prospectus. See
"Incorporation by Reference." We have also filed our
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<PAGE> 22
Certificate and our bylaws as exhibits to the Registration Statement. You should
read our Certificate and our bylaws for additional information before you buy
any Common Stock. See "Where You Can Find More Information."
General. As of September 15, 1999, our authorized Common Stock was
50,000,000 shares, of which 20,683,888 shares were issued and outstanding.
Dividends. Holders of Common stock are entitled to receive pro rata
dividends when, as and if declared by our Board of Directors out of any funds
that we can legally use to pay dividends. We may pay dividends in cash, stock or
other property. In certain cases, holders of Common Stock may not receive
dividends until we have satisfied our obligations to any holders of outstanding
Preferred Stock. If we liquidate, dissolve or wind up our business, the holders
of Preferred Stock will receive an amount per share equal to the amount fixed
and determined by our Board of Directors, plus any amount equal to all the
dividends accrued on the Preferred Stock, before any distribution will be made
on the Common Stock.
Voting Rights. Each share of Common Stock is entitled to one vote on each
matter submitted to a vote of stockholders. The holders of the Common Stock have
noncumulative voting rights, which means that, subject to the rights of the
holders of a series of Preferred Stock, if any, to elect one or more directors,
as set forth in our Certificate or the certificate of designations creating such
series, the holders of more than 50% of the shares of Common Stock voting for
the election of directors can elect 100% of the directors standing for election
at any meeting if they choose to do so. In such event, the holders of the
remaining shares of Common Stock voting for the election of directors will not
be able to elect any person or persons to our Board of Directors.
Other Rights. The Common Stock has no conversion rights and is not
redeemable. The holders of the Common Stock do not have any preemptive rights to
subscribe for additional shares of our stock or other securities of ours except
as may be granted by our Board of Directors. There is no restriction on our
purchase of shares of Common Stock except for certain regulatory limits.
Fully Paid. The issued and outstanding shares of Common Stock are fully
paid and nonassessable (i.e., the full purchase price for the outstanding shares
of Common Stock has been paid and the holders of such shares will not be
assessed any additional monies for such shares).
Listing. The Common Stock is listed on the Nasdaq National Market under the
symbol "WCNX." Bank Boston N.A., c/o Boston EquiServe, L.P. is the transfer
agent, registrar and dividend reimbursing agent for the Common Stock.
Certain Statutory, Charter and Bylaw Provisions. Our Certificate provides
that the Board will be divided into three classes serving staggered terms, and
that the number of directors in each class will be as nearly equal as is
possible based on the number of directors constituting the entire Board. At each
annual meeting of stockholders, successors to directors of the class whose term
expires at such meeting will be elected to serve for three-year terms.
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<PAGE> 23
PLAN OF DISTRIBUTION
The Securities may be distributed from time to time in one or more
transactions at a fixed price or prices (which may be changed from time to
time), at market prices prevailing at the time of sale, at prices related to
such prevailing market prices or at negotiated prices. Each prospectus
supplement will describe the method of distribution of the Securities offered
therein.
We may sell Securities directly, through agents designated from time to
time, through underwriting syndicates led by one or more managing underwriters
or through one or more underwriters acting alone. Each prospectus supplement
will describe the terms of the Securities to which that prospectus supplement
relates, the name or names of any underwriters or agents with whom we have
entered into arrangements with respect to the sale of such Securities, the
public offering or purchase price of such Securities and the net proceeds we
will receive from such sale. In addition, each prospectus supplement will
describe any underwriting discounts and other items constituting underwriters'
compensation, any discounts and commissions allowed or paid to dealers, if any,
any commissions allowed or paid to agents, and the securities exchange or
exchanges, if any, on which such Securities will be listed. Dealer trading may
take place in certain of the Securities, including Securities not listed on any
securities exchange.
If so indicated in the applicable prospectus supplement, we will authorize
underwriters or agents to solicit offers by certain institutions to purchase
Securities from us, pursuant to delayed delivery contracts providing for payment
and delivery at a future date. Institutions with which such contracts may be
made include, among others:
- commercial and savings banks;
- insurance companies;
- pension funds;
- investment companies; and
- educational and charitable institutions.
In all cases, such institutions must be approved by us. Unless otherwise
set forth in the applicable prospectus supplement, the obligations of any
purchaser under any such contract will not be subject to any conditions except
that (i) the purchase of the Securities will not at the time of delivery be
prohibited under the laws of the jurisdiction to which such purchaser is
subject, and (ii) if the Securities are also being sold to underwriters acting
as principals for their own account, the underwriters will have purchased such
Securities not sold for delayed delivery. The underwriters and such other
persons will not have any responsibility in respect of the validity or
performance of such contracts.
Any underwriter or agent participating in the distribution of the
Securities may be deemed to be an underwriter, as that term is defined in the
Securities Act of 1933, of the Securities so offered and sold and any discounts
or commissions received by them, and any profit realized by them on the sale or
resale of the Securities may be deemed to be underwriting discounts and
commissions under the Securities Act of 1933.
Except as indicated in the applicable prospectus supplement, the Securities
are not expected to be listed on a securities exchange, except for the Common
Stock, which is listed on the Nasdaq National Market, and any underwriters or
dealers will not be obligated to make a market in Securities. We cannot predict
the activity or liquidity of any trading in the Securities.
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<PAGE> 24
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and other
information with the SEC. You may read and copy any document that we file at the
SEC's public reference rooms in Washington, D.C., Chicago, Illinois and New
York, New York. Please call the SEC at 1-800-732-0330 for more information on
the public reference rooms. Our SEC filings are also available to the public
from commercial document retrieval services and at the web site that the SEC
maintains at "http://www.sec.gov." Our common stock is listed on the Nasdaq
National Market, and you may also inspect and copy our SEC filings at the
offices of the National Association of Securities Dealers, Inc. located at 1735
K Street, N.W., Washington, D.C. 20549.
This prospectus is part of a registration statement on Form S-3 that we
have filed with the SEC under the Securities Act of 1933. This prospectus omits
part of the registration statement, as permitted by the rules and regulations of
the SEC. You may inspect and copy the registration statement, including
exhibits, at the SEC's public reference rooms or from its web site. Our
statements in this prospectus about the contents of any contract or other
document are not necessarily complete. You should refer to the copies of the
documents filed as exhibits to the registration statement for complete
information.
INCORPORATION BY REFERENCE
The SEC allows us to "incorporate by reference" the information we file
with the SEC, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is
an important part of this prospectus, and information that we file later with
the SEC will automatically update and supersede this information. We incorporate
by reference the documents listed below and any future filings we make with the
SEC under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of
1934 prior to the termination of this offering:
A. Annual Report on Form 10-K for the year ended December 31, 1998.
B. Quarterly Report on Form 10-Q/A for the quarter ended September
30, 1998.
C. Quarterly Report on Form 10-Q for the quarter ended March 31,
1999.
D. Quarterly Report on Form 10-Q/A for the quarter ended March 31,
1999.
E. Quarterly Report on Form 10-Q for the quarter ended June 30,
1999.
F. Report on Form 8-K/A filed July 16, 1998.
G. Report on Form 8-K/A filed September 11, 1998.
H. Report on Form 8-K filed January 5, 1999.
I. Report on Form 8-K filed January 13, 1999.
J. Report on Form 8-K filed February 2, 1999.
K. Report on Form 8-K/A filed April 5, 1999.
L. Report on Form 8-K filed April 14, 1999.
M. Report on Form 8-K/A filed April 29, 1999.
N. Report on Form 8-K filed May 7, 1999.
O. Report on Form 8-K/A filed July 15, 1999.
P. Report on Form 8-K filed August 5, 1999.
Q. Report on Form 8-K filed August 25, 1999.
R. Report on Form 8-K filed August 31, 1999.
S. Report on Form 8-K/A filed September 2, 1999.
T. Report on Form 8-K filed September 15, 1999.
U. The description of our common stock contained in our registration
statement on Form 8-A, File No. 0-23981, filed under the
Securities Exchange Act of 1934.
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<PAGE> 25
You may request a copy of these filings at no cost, by writing or
telephoning the office of Steven F. Bouck, Waste Connections, Inc., 2260 Douglas
Boulevard, Suite 280, Roseville, California 95661, telephone (916) 772-2221.
You should rely only on the information incorporated by reference or
provided in this prospectus, any prospectus supplement and the registration
statement. We have not authorized anyone to provide you with different
information. You should not assume that the information in this prospectus and
any prospectus supplement is accurate as of any date other than the date on the
front of the document.
LEGAL MATTERS
Shartsis, Friese & Ginsburg LLP, San Francisco, California, has issued an
opinion on the validity of the Securities we are offering. Certain partners and
associate attorneys of Shartsis, Friese & Ginsburg LLP own an aggregate of 3,400
shares of our common stock. Certain statements pertaining to our G certificates
awarded by the WUTC that appear in this prospectus will be passed upon for us by
Williams, Kastner & Gibbs PLLC, Seattle, Washington.
EXPERTS
Ernst & Young LLP, independent auditors, have audited our historical and
supplemental financial statements and schedule included in our Annual Report on
Form 10-K for the year ended December 31, 1998, our restated financial
statements and schedules included in our Current Reports on Form 8-K filed
August 5, 1999 and September 15, 1999 (which give retroactive effect to
poolings-of-interests consummated through March 31, 1999 and June 30, 1999,
respectively), the combined financial statements of the Murrey Companies
included in our Current Reports on Form 8-K and Form 8-K/A filed February 2,
1999 and April 5, 1999, respectively, and the financial statements of Arrow
Sanitary Service, Inc. included in our Current Report on Form 8-K/A filed July
16, 1998, as set forth in their reports, which are incorporated by reference in
this prospectus and elsewhere in the registration statement. Such financial
statements and schedules are incorporated by reference in reliance on Ernst &
Young LLP's reports, given on their authority as experts in accounting and
auditing.
Perkins & Company, P.C., independent auditors, have audited the combined
financial statements of Columbia Resource Co., L.P. and Finley-Buttes Limited
Partnership included in our Current Report on Form 8-K/A filed April 29, 1999,
as set forth in their report, which is incorporated by reference in this
prospectus and elsewhere in the registration statement. Such financial
statements are incorporated by reference in reliance on Perkins & Company,
P.C.'s report, given on their authority as experts in accounting and auditing.
Grant Thornton LLP, independent certified public accountants, have audited
the financial statements of Shrader Refuse and Recycling Company included in our
Current Report on Form 8-K/A filed September 11, 1998, as set forth in their
report, which is incorporated by reference in this prospectus and elsewhere in
the registration statement. Such financial statements are incorporated by
reference in reliance on Grant Thornton LLP's report, given on their authority
as experts in accounting and auditing.
PricewaterhouseCoopers LLP, independent accountants, have audited the
combined financial statements of International Environmental Industries, Inc.
and subsidiary and JOS Enterprises Ltd. included in our Current Report on Form
8-K/A dated August 11, 1999 and filed September 2, 1999, as set forth in their
report, which is incorporated by reference in this prospectus and elsewhere in
the registration statement. Such financial statements are incorporated by
reference in reliance on PricewaterhouseCoopers LLP's report, given on their
authority as experts in accounting and auditing.
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<PAGE> 26
YOU SHOULD RELY ONLY ON THE INFORMATION IN THIS PROSPECTUS. WASTE CONNECTIONS
HAS NOT AUTHORIZED ANYONE TO PROVIDE YOU WITH INFORMATION DIFFERENT FROM THAT
CONTAINED IN THIS PROSPECTUS. THIS PROSPECTUS IS NOT AN OFFER TO SELL, AND IT
DOES NOT SEEK AN OFFER TO BUY, THESE SECURITIES IN ANY JURISDICTION WHERE THE
OFFER OR SALE IS NOT PERMITTED. THE INFORMATION IN THIS PROSPECTUS IS CORRECT
ONLY AS OF THE DATE OF THIS PROSPECTUS, REGARDLESS OF WHEN THIS PROSPECTUS IS
DELIVERED OR THESE SECURITIES ARE SOLD.
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Waste Connections..................... 3
About this Prospectus................. 3
Risk Factors.......................... 4
Ratio of Earnings to Fixed Charges.... 11
Use of Proceeds....................... 11
Description of Debt Securities........ 11
Description of Preferred Stock........ 17
Description of Common Stock........... 21
Plan of Distribution.................. 23
Where You Can Find More
Information......................... 24
Incorporation by Reference............ 24
Legal Matters......................... 25
Experts............................... 25
</TABLE>
[LOGO]
$200,000,000
Prospectus
September , 1999
<PAGE> 27
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
<TABLE>
<S> <C>
SEC Registration Fee........................................ $ 55,600
NASDAQ Listing Fee*......................................... $ 17,500
Trustees' Fees and Expenses*................................ $ 15,000
Accounting Fees and Expenses*............................... $ 20,000
Legal Fees and Expenses*.................................... $ 25,000
Miscellaneous Expenses*..................................... $ 20,000
--------
Total*...................................................... $153,100
========
</TABLE>
- ---------------
* Estimated.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Amended and Restated Certificate of Incorporation (the "Restated
Certificate") of Waste Connections provides that a director will not be
personally liable to Waste Connections or its stockholders for monetary damages
for breach of fiduciary duty as a director, except for liability (i) for any
breach of the director's duty of loyalty to the corporation or its stockholders,
(ii) for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) under Section 174 of the
Delaware General Corporation Law (the "Delaware Law"), which concerns unlawful
payments of dividends, stock purchases or redemptions, or (iv) for any
transaction from which the director derived an improper personal benefit. If the
Delaware Law is subsequently amended to permit further limitation of the
personal liability of directors, the liability of a director of Waste
Connections will be eliminated or limited to the fullest extent permitted by the
Delaware Law as amended.
Section 145(a) of the Delaware Law provides that a corporation may
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative (other than an action by or in
the right of the corporation) by reason of the fact that the person is or was a
director, officer, employee or agent of the corporation, or is or was serving at
the request of the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by the person in connection with
such action, suit or proceeding if the person acted in good faith and in a
manner the person reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe the person's conduct was
unlawful. The termination of any action, suit or proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its equivalent,
shall not, of itself, create a presumption that the person did not act in good
faith and in a manner which the person reasonably believed to be in or not
opposed to the best interest of the corporation, and, with respect to any
criminal action or proceeding, had reasonable cause to believe that the person's
conduct was unlawful.
Section 145(b) of the Delaware Law states that a corporation may indemnify
any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the right of the
corporation to procure a judgment in its favor by reason of the fact that the
person is or was a director, officer, employee or agent of the corporation, or
is or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise against expenses (including attorneys' fees) actually and
reasonably incurred by the person in
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connection with the defense or settlement of such action or suit if the person
acted in good faith and in a manner the person reasonably believed to be in or
not opposed to the best interests of the corporation and except that no
indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable to the corporation
unless and only to the extent that the Court of Chancery or the court in which
such action or suit was brought shall determine upon application that, despite
the adjudication of liability but in view of all the circumstances of the case,
such person is fairly and reasonably entitled to indemnity for such expenses
which the Court of Chancery or such other court shall deem proper.
Section 145(c) of the Delaware Law provides that to the extent that a
present or former director or officer of a corporation has been successful on
the merits or otherwise in defense of any action, suit or proceeding referred to
in subsections (a) and (b) of Section 145, or in defense of any claim, issue or
matter therein, such person shall be indemnified against expenses (including
attorneys' fees) actually and reasonably incurred by such person in connection
therewith.
Section 145(d) of the Delaware Law states that any indemnification under
subsections (a) and (b) of Section 145 (unless ordered by a court) shall be made
by the corporation only as authorized in the specific case upon a determination
that indemnification of the present or former director, officer, employee or
agent is proper in the circumstances because the person has met the applicable
standard of conduct set forth in subsections (a) and (b) of Section 145. Such
determination shall be made, with respect to a person who is a director or
officer at the time of such determination, (i) by a majority of the directors
who were not parties to such action, suit or proceeding, even though less than a
quorum, or (ii) by a committee of such directors designated by majority vote of
such directors, even though less than a quorum, or (iii) if there are no such
directors, or if such directors so direct, by independent legal counsel in a
written opinion, or (iv) by the stockholders.
Section 145(e) of the Delaware Law provides that expenses (including
attorneys' fees) incurred by an officer or director in defending any civil,
criminal, administrative or investigative action, suit or proceeding may be paid
by the corporation in advance of the final disposition of such action, suit or
proceeding upon receipt of an undertaking by or on behalf of such director or
officer to repay such amount if it shall ultimately be determined that such
person is not entitled to be indemnified by the corporation as authorized in
Section 145. Such expenses (including attorneys' fees) incurred by former
officers and directors or other employees and agents may be so paid upon such
terms and conditions, if any, as the corporation deems appropriate.
Section 145(f) of the Delaware Law states that the indemnification and
advancement of expenses provided by, or granted pursuant to, the other
subsections of Section 145 shall not be deemed exclusive of any other rights to
which those seeking indemnification or advancement of expenses may be entitled
under any bylaw, agreement, vote of stockholders or disinterested directors or
otherwise, both as to action in such person's official capacity and as to action
in another capacity while holding such office.
Section 145(g) of the Delaware Law provides that a corporation shall have
the power to purchase and maintain insurance on behalf of any person who is or
was a director, officer, employee or agent of the corporation, or is or was
serving at the request of the corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise, against any liability asserted against him and incurred by such
person in any such capacity, or arising out of such person's status as such,
whether or not the corporation would have the power to indemnify such person
against such liability under the provisions of Section 145.
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<PAGE> 29
Section 145(j) of the Delaware Law states that the indemnification and
advancement of expenses provided by, or granted pursuant to, Section 145 shall,
unless otherwise provided when authorized or ratified, continue as to a person
who has ceased to be a director, officer, employee or agent and shall inure to
the benefit of the heirs, executors and administrators of such a person.
Pursuant to Section 145 of the Delaware Law, Waste Connections has
purchased insurance on behalf of its present and former directors and officers
against any liability asserted against or incurred by them in such capacity or
arising out of their status as such. Waste Connections has entered into
indemnification agreements with each of its directors and officers providing for
mandatory indemnification and advancement of expenses to the maximum extent
permitted by the Delaware Law.
ITEM 16. EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF EXHIBITS
------- -----------------------
<C> <S>
4.1 Amended and Restated Certificate of Incorporation
(incorporated by reference to Exhibit No. 3.1 to the
Registration Statement on Form S-1 Commission file No.
333-48029)
4.2 Amended and Restated Bylaws, effective March 18, 1998
(incorporated by reference to Exhibit No. 3.2 to the
Registration Statement on Form S-1 Commission file No.
333-48029)
4.3 Form of Senior Indenture
4.4 Form of Subordinated Indenture
5.1 Opinion of Shartsis, Friese & Ginsburg LLP
12.1 Statement regarding computation of ratio of earnings to
fixed charges
12.2 Statement of computation of pro forma ratio of earnings to
combined fixed charges and preferred stock dividends
23.1 Consent of Shartsis, Friese & Ginsburg LLP (included in
Exhibit 5.1)
23.2 Consent of Ernst & Young LLP, Independent Auditors
23.3 Consent of Perkins & Company, P.C., Independent Auditors
23.4 Consent of Grant Thornton LLP, Independent Certified Public
Accountants
23.5 Consent of Williams, Kastner & Gibbs PLLC
23.6 Consent of PricewaterhouseCoopers, LLP, Independent Auditors
24.1 Power of Attorney (included in Part II of the Registration
Statement under the caption "Signatures")
</TABLE>
ITEM 17. UNDERTAKINGS
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities (other
than the payment by the Registrant of expenses incurred or paid by a director,
officer or controlling person of the Registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the Registrant will,
unless in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such
II-3
<PAGE> 30
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement: (i) to include
any prospectus required by Section 10(a)(3) of the Securities Act of
1933; (ii) to reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the Registration Statement; (iii) to include any material
information with respect to the plan of distribution not previously
disclosed in the Registration Statement or any material change to such
information in the Registration Statement; provided, however, that
provisions (i) and (ii) do not apply if the information required to be
included in a post-effective amendment by those provisions is contained
in periodic reports filed by the Registrant pursuant to Section 13 or
15(d) of the Securities Exchange Act of 1934 that are incorporated by
reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a
new Registration Statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered that remain unsold at the
termination of the offering.
(4) That for purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as
part of this registration statement in reliance upon Rule 430A and
contained in a form of prospectus filed by the Registrant pursuant to
Rule 424(b)(1) or (4) or 497(h) under the Securities Act of 1933 shall
be deemed to be part of this registration statement as of the time it
was declared effective.
(5) That, for purposes of determining any liability under the Securities
Act of 1933, each filing of Registrant's annual report pursuant to
section 13(a) or section 15(d) of the Securities Exchange Act of 1934
(and, where applicable, each filing of an employee benefit plan's
annual report pursuant to section 15(d) of the Securities Exchange Act
of 1934) that is incorporated by reference in the registration
statement shall be deemed to be a new registration statement relating
to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
(6) That, insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the foregoing
provisions, or otherwise, the Registrant has been advised that in the
opinion of the Securities and Exchange Commission such indemnification
is against public policy as expressed in the Act and is, therefore,
unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the
Registrant in the successful defense of any action, suit or proceeding)
is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will,
unless in the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final
adjudication of the issue.
II-4
<PAGE> 31
(7) To file an application for the purpose of determining the eligibility
of the trustee to act under subsection (a) of Section 310 of the Trust
Indenture Act in accordance with the rules and regulations prescribed
by the Commission under Section 305(b)(2) of the Trust Indenture Act.
II-5
<PAGE> 32
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Roseville, State of California, on September 24,
1999.
WASTE CONNECTIONS, INC.
By: /s/ RONALD J. MITTELSTAEDT
------------------------------------
Ronald J. Mittelstaedt
President, Chief Executive Officer
and Chairman
Such person whose signature appears below hereby appoints Ronald J.
Mittelstaedt and Steven F. Bouck, and each of them, each of whom may act without
joinder of the other, as his or her true and lawful attorney-in-fact and agent,
with full power of substitution and resubstitution, for him or her and in his or
her name, place and stead, in any and all capacities, to execute in the name and
on behalf of such person any amendment or any post-effective amendment to this
Registration Statement, and any registration statement relating to any offering
made in connection with the offering covered by this Registration Statement that
is to be effective on filing pursuant to Rule 462(b) under the Securities Act of
1933, as amended, and to file the same, with exhibits thereto, and other
documents in connection therewith, with the Commission, granting unto said
attorneys-in-fact and agents full power and authority to do and perform each and
every act and thing appropriate or necessary to be done, as fully and for all
intents and purposes as he or she might or could to in person, hereby ratifying
and confirming all that said attorneys-in-fact and agents or their substitute or
substitutes may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on September 24, 1999.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
/s/ RONALD J. MITTELSTAEDT President, Chief September 24, 1999
- ----------------------------------------------------- Executive Officer and
Ronald J. Mittelstaedt Chairman
/s/ EUGENE V. DUPREAU Director and Vice September 24, 1999
- ----------------------------------------------------- President -- Western
Eugene V. Dupreau Division
/s/ MICHAEL W. HARLAN Director September 24, 1999
- -----------------------------------------------------
Michael W. Harlan
/s/ WILLIAM J. RAZZOUK Director September 24, 1999
- -----------------------------------------------------
William J. Razzouk
</TABLE>
II-6
<PAGE> 33
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
/s/ STEVEN F. BOUCK Executive Vice September 24, 1999
- ----------------------------------------------------- President and Chief
Steven F. Bouck Financial Officer
/s/ MICHAEL R. FOOS Chief Accounting September 24, 1999
- ----------------------------------------------------- Officer and Vice
Michael R. Foos President -- Finance
/s/ IRMGARD R. WILCOX Director September 24, 1999
- -----------------------------------------------------
Irmgard R. Wilcox
</TABLE>
II-7
<PAGE> 34
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT PAGE
NUMBER DESCRIPTION OF EXHIBITS NUMBER
- ------- ----------------------- ------
<C> <S> <C>
4.1 Amended and Restated Certificate of Incorporation
(incorporated by reference to Exhibit No. 3.1 to the
Registration Statement on Form S-1 Commission file No.
333-48029)..................................................
4.2 Amended and Restated Bylaws, effective March 18, 1998
(incorporated by reference to Exhibit No. 3.2 to the
Registration Statement on Form S-1 Commission file No.
333-48029)..................................................
4.3 Form of Senior Indenture....................................
4.4 Form of Subordinated Indenture..............................
5.1 Opinion of Shartsis, Friese & Ginsburg LLP..................
12.1 Statement regarding computation of ratio of earnings to
fixed charges...............................................
12.2 Statement of computation of pro forma ratio of earnings to
combined fixed charges and preferred stock dividends........
23.1 Consent of Shartsis, Friese & Ginsburg LLP (included in
Exhibit 5.1)................................................
23.2 Consent of Ernst & Young LLP, Independent Auditors..........
23.3 Consent of Perkins & Company, P.C., Independent Auditors....
23.4 Consent of Grant Thornton LLP, Independent Certified Public
Accountants.................................................
23.5 Consent of Williams, Kastner & Gibbs PLLC...................
23.6 Consent of PricewaterhouseCoopers LLP, Independent
Auditors....................................................
24.1 Power of Attorney (included in Part II of the Registration
Statement under the caption "Signatures")...................
</TABLE>
<PAGE> 1
EXHIBIT 4.3
THIS INDENTURE is entered into as of [______________], 1999, between WASTE
CONNECTIONS, INC., a corporation organized and existing under the laws of the
State of Delaware (hereinafter called the "Company"), having its principal
executive office at 2260 Douglas Blvd., Suite 280, Roseville, California 95661,
and [_____________], a [_____________] banking corporation (hereinafter the
"Trustee"), having its principal corporate trust office at
[_____________________________].
RECITALS OF THE COMPANY
The Company deems it necessary from time to time to issue its unsecured
debentures, notes, bonds and other evidences of indebtedness to be issued in one
or more series (hereinafter called the "Securities") as hereinafter set forth,
and to provide therefor the Company has duly authorized the execution and
delivery of this Indenture.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities
by the Holders thereof, it is mutually covenanted and agreed, for the equal and
proportionate benefit of all Holders of the Securities or of any series thereof,
as follows:
ARTICLE ONE
Definitions and Other
Provisions of General Application
SECTION 1.01. Definitions. For all purposes of this Indenture, except as
otherwise expressly provided or unless the context otherwise requires:
(i) the term "this Indenture" means this instrument as originally executed
or as it may from time to time be supplemented or amended by one or more
indentures supplemental hereto entered into pursuant to
<PAGE> 2
the applicable provisions hereof and shall include the terms of particular
series of Securities established as contemplated by Section 3.01;
(ii) all references in this instrument to designated "Articles", "Sections"
and other subdivisions are to the designated Articles, Sections and other
subdivisions of this Indenture. The words "herein", "hereof" and "hereunder" and
other words of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision;
(iii) the terms defined in this Article have the meanings assigned to them
in this Article and include the plural as well as the singular;
(iv) all other terms used herein which are defined in the Trust Indenture
Act, either directly or by reference therein, have the meanings assigned to them
therein; and
(v) all accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting principles,
and, except as may be otherwise expressly provided herein or in one or more
indentures supplemental hereto, the term "generally accepted accounting
principles" with respect to any computation required or permitted hereunder
shall mean such accounting principles as are generally accepted at the date of
such computation.
"Act", when used with respect to any Holder, has the meaning specified in
Section 1.04.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any Person authorized to act on behalf of the
Trustee to authenticate Securities pursuant to Section 8.14.
<PAGE> 3
3
"Authorized Newspaper" means a newspaper, in an official language of the
country of publication or in the English language, customarily published on each
Business Day, whether or not published on Saturdays, Sundays or holidays, and of
general circulation in the place in connection with which the term is used or in
the financial community of such place. Where successive publications are
required to be made in Authorized Newspapers, the successive publications may be
made in the same or in different newspapers in the same city meeting the
foregoing requirements and in each case on any Business Day.
["Authorized Officer" means the Chairman of the Board, the President, any
Vice President, the Treasurer, the Secretary, any Assistant Treasurer or any
Assistant Secretary of the Company.]
"Bearer Security" means any Security in the form established pursuant to
Section 2.02 which is payable to bearer, including, without limitation, unless
the context otherwise indicates, a Security in global bearer form.
"Board of Directors" means either the board of directors of the Company or
any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the Company to have been duly adopted by the Board
of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day" means any day, other than a Saturday or Sunday, on which
banking institutions in the City of Sacramento, California and any Place of
Payment for the Securities are open for business.
["CEDEL" or "CEDEL S.A." means Cedel Bank, societe anonyme or its
successors.]
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Exchange Act, or if any time after the
execution and delivery of this instrument such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
<PAGE> 4
4
"Common Depositary" has the meaning specified in Section 3.04(b)(ii).
"Company" means the Person named as the "Company" in the first paragraph of
this instrument until any successor corporation shall have become such pursuant
to the applicable provisions of this Indenture, and thereafter "Company" shall
mean any such successor corporation.
"Company Request" and "Company Order" mean, respectively, a written request
or order signed in the name of the Company by its [Chairman of the Board, its
President, or a Vice President, and by its Treasurer, an Assistant Treasurer,
its Secretary or an Assistant Secretary], and delivered to the Trustee.
"corporation" includes corporations, associations, companies and business
trusts.
"coupon" means any interest coupon appertaining to a Bearer Security.
"Defaulted Interest" has the meaning specified in Section 3.07.
"Depositary" means, with respect to the Securities of any series issuable
or issued in the form of a Global Security, the Person designated as Depositary
by the Company pursuant to Section 3.01 until a successor Depositary shall have
been appointed pursuant to Section 3.05, and thereafter "Depositary" shall mean
or include each Person who is then a Depositary hereunder, and if at any time
there is more than one such Person, "Depositary" as used with respect to the
Securities of any such series shall mean the Depositary with respect to the
Securities of that series.
"Designated Currency" has the meaning specified in Section 3.12.
"Designated Office" means the office of the Trustee located at
[_____________________________________________].
"Dollar" or "$" means the coin or currency of the United States of America
as at the time of payment is legal tender for the payment of public and private
debts.
"Euroclear" means Morgan Guaranty Trust Company of New York, Brussels
Office, as operator of the Euroclear System.
<PAGE> 5
5
"European Communities" means the European Economic Community, the European
Coal and Steel Community and the European Atomic Energy Community.
"Event of Default" has the meaning specified in Section 7.01.
"Exchange Act" means the Securities Exchange Act of 1934, as amended from
time to time, and any statute successor thereto.
"Exchange Rate" shall have the meaning specified as contemplated in Section
3.01.
"Exchange Rate Agent" shall have the meaning specified as contemplated in
Section 3.01.
"Exchange Rate Officer's Certificate" with respect to any date for the
payment of principal of (and premium, if any) and interest on any series of
Securities, means a Certificate setting forth the applicable Exchange Rate and
the amounts payable in Dollars and Foreign Currencies in respect of the
principal of (and premium, if any) and interest on Securities denominated in any
composite currency or Foreign Currency, and signed by the [Chairman of the
Board, the President, any Vice President, the Treasurer or any Assistant
Treasurer] of the Company or the Exchange Rate Agent appointed pursuant to
Section 3.01 and delivered to the Trustee.
"Foreign Currency" means a currency issued by the government of any country
other than the United States of America.
"Global Exchange Date" has the meaning specified in Section 3.04(b)(iv).
"Global Security" means a Security issued to evidence all or a part of a
series of Securities in accordance with Section 3.03.
"Holder", with respect to a Registered Security, means a Person in whose
name such Registered Security is registered in the Security Register and, with
respect to a Bearer Security (or any temporary Global Security) or a coupon,
means the bearer thereof.
"interest", when used with respect to an Original Issue Discount Security
which by its terms bears interest only after Maturity, means interest payable
after Maturity.
<PAGE> 6
6
"Interest Payment Date", when used with respect to any series of
Securities, means the Stated Maturity of an installment of interest on such
Securities.
"Maturity", when used with respect to any Security, means the date on which
the principal of such Security (or any installment of principal) becomes due and
payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Officers' Certificate" means a certificate signed by [the Chairman of the
Board, the President, or a Vice President, and by the Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary of the Company], and
delivered to the Trustee. Each such certificate shall contain the statements set
forth in Section 1.02, if applicable.
"Opinion of Counsel" means a written opinion of counsel, who may (except as
otherwise expressly provided in this Indenture) be an employee of the Company,
and who shall be reasonably acceptable to the Trustee. Each such opinion shall
contain the statements set forth in Section 1.02, if applicable.
"Original Issue Discount Security" means any Security which provides for an
amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 7.02.
"Outstanding", when used with respect to Securities or Securities of any
series, means, as of the date of determination, all such Securities theretofore
authenticated and delivered under this Indenture, except:
(i) such Securities theretofore canceled by the Trustee or delivered to
the Trustee for cancellation;
(ii) such Securities for whose payment or redemption money in the necessary
amount has been theretofore deposited with the Trustee or any Paying Agent
(other than the Company) in trust or set aside and segregated in trust by the
Company (if the Company shall act as its own Paying Agent) for the Holders of
such Securities; provided that, if such Securities are to be redeemed, notice of
such redemption has been duly
<PAGE> 7
7
given pursuant to this Indenture or provision therefor satisfactory to the
Trustee has been made; and
(iii) such Securities in lieu of which other Securities have been
authenticated and delivered pursuant to Section 3.06 of this Indenture;
provided, however, that in determining whether the Holders of the requisite
principal amount of such Securities Outstanding have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or whether a
quorum is present at a meeting of Holders of Securities, the principal amount of
Original Issue Discount Securities that shall be deemed to be Outstanding for
such purposes shall be the amount of the principal thereof that would be due and
payable as of the date of such determination upon a declaration of acceleration
of the Maturity thereof pursuant to Section 7.02, and Securities owned by the
Company or any other obligor upon the Securities or any Affiliate of the Company
or such other obligor shall be disregarded and deemed not to be Outstanding,
except that, in determining whether the Trustee shall be protected in relying
upon any such request, demand, authorization, direction, notice, consent or
waiver, only Securities which a Responsible Officer of the Trustee actually
knows to be so owned shall be disregarded. Securities so owned which have been
pledged in good faith may be regarded as Outstanding if the pledgee establishes
to the satisfaction of the Trustee the pledgee's right so to act with respect to
such Securities and that the pledgee is not the Company or any other obligor
upon the Securities or any Affiliate of the Company or such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of, premium, if any, or interest on any Securities or any coupons
appertaining thereto on behalf of the Company.
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Place of Payment", when used with respect to the Securities of any series,
means the place or places where, subject to the provisions of Section 5.02, the
principal of (and premium, if any) and interest on the Securities of that series
are payable as specified in accordance with Section 3.01.
<PAGE> 8
8
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and for the purposes of this definition, any Security
authenticated and delivered under Section 3.06 in lieu of a mutilated,
destroyed, lost or stolen Security shall be deemed to evidence the same debt as
the mutilated, destroyed, lost or stolen Security.
"Principal Corporate Trust Office" means the office of the Trustee, at
which at any particular time its corporate trust business shall be principally
administered, which office at the date of execution of this instrument is at the
address set forth in the first paragraph of this instrument.
"Principal Paying Agent" means the Paying Agent, if any, designated as such
by the Company pursuant to Section 3.01 of this Indenture.
"Redemption Date", when used with respect to any Security to be redeemed,
means the date fixed for such redemption by or pursuant to this Indenture.
"Redemption Price", when used with respect to any Security to be redeemed,
means the price specified in such Security at which it is to be redeemed
pursuant to this Indenture.
"Registered Security" means any Security in the form established pursuant
to Section 2.02 which is registered in the Security Register.
"Regular Record Date" for the interest payable on any Security on any
Interest Payment Date means the date, if any, specified in such Security as the
"Regular Record Date".
"Remarketing Entity", when used with respect to the Securities of any
series which are repayable at the option of the Holders thereof before their
Stated Maturity, means any Person designated by the Company to purchase any such
Securities.
"Repayment Date", when used with respect to any Security to be repaid upon
exercise of an option for repayment by the Holder, means the date fixed for such
repayment pursuant to this Indenture.
<PAGE> 9
9
"Repayment Price", when used with respect to any Security to be repaid upon
exercise of an option for repayment by the Holder, means the price at which it
is to be repaid pursuant to this Indenture.
"Responsible Officer", when used with respect to the Trustee, means any
officer or agent of the Trustee with direct responsibility for the
administration of this Indenture and also means, with respect to a particular
corporate trust matter, any other officer or agent of the Trustee to whom such
matter is referred because of his knowledge of and familiarity with the
particular subject.
"Security" or "Securities" means any Security or Securities, as the case
may be, authenticated and delivered under this Indenture; provided, however,
that, if at any time there is more than one Person acting as Trustee under this
Indenture, "Securities", with respect to any such Person, shall mean Securities
authenticated and delivered under this Indenture, exclusive, however, of
Securities of any series as to which such Person is not Trustee.
"Security Register" has the meaning specified in Section 3.05.
"Security Registrar" has the meaning specified in Section 3.05.
"Special Record Date" for the payment of any Defaulted Interest means the
date fixed by the Trustee pursuant to Section 3.07.
"Stated Maturity", when used with respect to any Security, or any
installment of principal thereof or interest thereon, means the date specified
in such Security as the fixed date on which the principal of such Security, or
such installment of principal or interest, is due and payable.
"Subsidiary of the Company" or "Subsidiary" means a corporation at least a
majority of the outstanding voting stock of which is owned, directly or
indirectly, by the Company or by one or more Subsidiaries of the Company, or by
the Company and one or more Subsidiaries of the Company.
As used under this heading, the term "voting stock" means stock having
ordinary voting power for the election of directors irrespective of whether or
not stock of any other class or classes shall have or might have voting power by
reason of the happening of any contingency.
<PAGE> 10
10
"Trustee" means the Person named as the "Trustee" in the first paragraph of
this instrument until a successor Trustee shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Trustee" shall mean or
include each Person who is then a Trustee hereunder, and if at any time there is
more than one such Person, "Trustee" as used with respect to the Securities of
any series shall mean the Trustee with respect to Securities of that series.
"Trust Indenture Act" or "TIA" (except as herein otherwise expressly
provided) means the Trust Indenture Act of 1939, as in force at the date as of
which this instrument was executed, and, to the extent required by law, as
amended.
"United States" means the United States of America (including the States
and the District of Columbia), its territories, its possessions and other areas
subject to its jurisdiction.
"United States Alien", except as otherwise provided in or pursuant to this
Indenture, means any Person who, for United States Federal income tax purposes,
is a foreign corporation, a nonresident alien individual, a nonresident alien
fiduciary of a foreign estate or trust, or a foreign partnership, one or more of
the members of which is, for United States Federal income tax purposes, a
foreign corporation, a nonresident alien individual or a nonresident alien
fiduciary of a foreign estate or trust.
"vice president", when used with respect to the Company or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "vice president".
SECTION 1.02. Compliance Certificates and Opinions. Upon any application or
request by the Company to the Trustee to take any action under any provision of
this Indenture, the Company shall furnish to the Trustee an Officers'
Certificate stating that all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with and an Opinion
of Counsel stating that in the opinion of such counsel all such conditions
precedent, if any, have been complied with, except that in the case of any such
application or request as to which the furnishing of such documents is
specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need be
furnished.
<PAGE> 11
11
Every certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture (except as otherwise expressly provided
in this Indenture) shall include:
(i) a statement that each individual signing such certificate or opinion
has read such covenant or condition and the definitions herein relating thereto;
(ii) 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;
(iii) a statement that, in the opinion of each such individual, 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
(iv) a statement as to whether, in the opinion of each such individual,
such condition or covenant has been complied with.
SECTION 1.03. Form of Documents Delivered to Trustee. In any case where
several matters are required to be certified by, or covered by an opinion of,
any specified Person, it is not necessary that all such matters be certified by,
or covered by the opinion of, only one such Person, or that they be so certified
or covered by only one document, but one such Person may certify or give an
opinion with respect to some matters and one or more other such Persons as to
other matters, and any such Person may certify or give an opinion as to such
matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the
<PAGE> 12
12
certificate or opinion or representations with respect to such matters are
erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 1.04. Acts of Holders. (i) Any request, demand, authorization,
direction, notice, consent, waiver or other action provided by this Indenture to
be given or taken by Holders or Holders of any series may be embodied in and
evidenced by one or more instruments of substantially similar tenor signed by
such Holders in person or by an agent duly appointed in writing. If Securities
of a series are issuable in whole or in part as Bearer Securities, any request,
demand, authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be given or taken by Holders may, alternatively,
be embodied in and evidenced by the record of Holders of Securities voting in
favor thereof, either in person or by proxies duly appointed in writing, at any
meeting of Holders of Securities duly called and held in accordance with the
provisions of Article Fifteen, or a combination of such instruments and any such
record. Except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments or record or both are delivered to
the Trustee, and, where it is hereby expressly required, to the Company. Such
instrument or instruments and any such record (and the action embodied therein
and evidenced thereby) are herein sometimes referred to as the "Act" of the
Holders signing such instrument or instruments and so voting at any such
meeting. Proof of execution of any such instrument or of a writing appointing
any such agent, or the holding by any Person of a Security, shall be sufficient
for any purpose of this Indenture and (subject to Section 8.01) conclusive in
favor of the Trustee and the Company, if made in the manner provided in this
Section. The record of any meeting of Holders of Securities shall be proved in
the manner provided in Section 15.06.
(ii) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by the certificate of any notary public or other officer authorized
by law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by or on behalf of any legal entity other than an individual, such
<PAGE> 13
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certificate or affidavit shall also constitute proof of the authority of the
Person executing the same. The fact and date of the execution of any such
instrument or writing, or the authority of the Person executing the same, may
also be proved in any other manner which the Trustee deems sufficient.
(iii) The ownership of Registered Securities shall be proved by the
Security Register.
(iv) The principal amount and serial numbers of Bearer Securities held by
any Person, and the date of holding the same, may be proved by the production of
such Bearer Securities or by a certificate executed, as depositary, by any trust
company, bank or other depositary, wherever situated, if such certificate shall
be deemed by the Trustee to be satisfactory, showing that at the date therein
mentioned such Person had on deposit with such depositary, or exhibited to it,
the Bearer Securities therein described; or such facts may be proved by the
certificate or affidavit of the Person holding such Bearer Securities, if such
certificate or affidavit is deemed by the Trustee to be satisfactory. The
Trustee and the Company may assume that such ownership of any Bearer Security
continues until (1) another certificate or affidavit bearing a later date issued
in respect of the same Bearer Security is produced, or (2) such Bearer Security
is produced to the Trustee by some other Person, or (3) such Bearer Security is
surrendered in exchange for a Registered Security, or (4) such Bearer Security
is no longer Outstanding.
(v) The fact and date of execution of any such instrument or writing, the
authority of the Person executing the same and the principal amount and serial
numbers of Bearer Securities held by the Person so executing such instrument or
writing and the date of holding the same may also be proved in any other manner
which the Trustee deems sufficient; and the Trustee may in any instance require
further proof with respect to any of the matters referred to in this Section.
(vi) Any request, demand, authorization, direction, notice, consent, waiver
or other action by the Holder of any Security shall bind every future Holder of
the same Security and the Holder of every Security issued upon the registration
of transfer thereof or in exchange therefor or in lieu thereof, in respect of
any action taken, suffered or omitted by the Trustee or the Company in reliance
thereon, whether or not notation of such action is made upon such Security.
<PAGE> 14
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(vii) For purposes of determining the principal amount of Outstanding
Securities of any series the Holders of which are required, requested or
permitted to give any request, demand, authorization, direction, notice,
consent, waiver or take any other Act under the Indenture, each Security
denominated in a Foreign Currency or composite currency shall be deemed to have
the principal amount determined by the Exchange Rate Agent by converting the
principal amount of such Security in the currency in which such Security is
denominated into Dollars at the Exchange Rate as of the date such Act is
delivered to the Trustee and, where it is hereby expressly required, to the
Company, by Holders of the required aggregate principal amount of the
Outstanding Securities of such series (or, if there is no such rate on such
date, such rate on the date determined as specified as contemplated in Section
3.01).
(viii) The Company may, in the circumstances permitted by the Trust
Indenture Act, set a record date for purposes of determining the identity of
Holders of Securities of any series entitled to give any request, demand,
authorization, direction, notice, consent, waiver or take any other Act, or to
vote or consent to any action by vote or consent authorized or permitted to be
given or taken by Holders of Securities of such series. If not set by the
Company prior to the first solicitation of a Holder of Securities of such Series
made by any Person in respect of any such action, or in the case of any such
vote, prior to such vote, such record date shall be the later of 30 days prior
to the first solicitation of such consent or the date of the most recent list of
Holders of such Securities furnished to the Trustee pursuant to Section 6.01
prior to such solicitation.
(ix) Without limiting the foregoing, a Holder entitled hereunder to
take any action hereunder with regard to any particular Security may do so with
regard to all or any part of the principal amount of such Security or by one or
more duly appointed agents, each of which may do so pursuant to such appointment
with regard to all or any part of such principal amount. Any notice given or
action taken by a Holder or its agents with regard to different parts of such
principal amount pursuant to this paragraph shall have the same effect as if
given or taken by separate Holders of each such different part.
(x) Without limiting the generality of the foregoing, unless
otherwise specified pursuant to Section 3.01 or pursuant to one or more
indentures supplemental hereto, a Holder, including a Depositary that
<PAGE> 15
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is the Holder of a Global Security, may make, give or take, by a proxy or
proxies duly appointed in writing, any request, demand, authorization,
direction, notice, consent, waiver or other action provided in this Indenture to
be made, given or taken by Holders, and a Depositary that is the Holder of a
Global Security may provide its proxy or proxies to the beneficial owners of
interests in any such Global Security through such Depositary's standing
instructions and customary practices.
(xi) The Company may fix a record date for the purpose of determining
the Persons who are beneficial owners of interests in any Global Security held
by a Depositary entitled under the procedures of such Depositary to make, give
or take, by a proxy or proxies duly appointed in writing, any request, demand,
authorization, direction, notice, consent, waiver or other action provided in
this Indenture to be made, given or taken by Holders. If such a record date is
fixed, the Holders on such record date or their duly appointed proxy or proxies,
and only such Persons, shall be entitled to make, give or take such request,
demand, authorization, direction, notice, consent, waiver or other action,
whether or not such Holders remain Holders after such record date. No such
request, demand, authorization, direction, notice, consent, waiver or other
action shall be valid or effective if made, given or taken more than 90 days
after such record date.
SECTION 1.05. Notices, etc., to Trustee and Company. Any request,
demand, authorization, direction, notice, consent, waiver or Act of Holders or
other document provided or permitted by this Indenture to be made upon, given or
furnished to, or filed with:
(i) the Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder if made, given, furnished or filed in writing to or
with the Trustee at its Designated Office, Attention:_______________ with a copy
to its Principal Corporate Trust Office, Attention: Corporate Trustee
Administration Department; or
(ii) the Company by any Holder or by the Trustee shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if in
writing and mailed, first-class, postage prepaid, to the Company, to the
attention of its Treasurer, addressed to it at the address of its principal
office specified in the first paragraph of this Indenture or at any other
address previously furnished in writing to the Trustee by the Company.
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SECTION 1.06. Notices to Holders; Waiver. Where this Indenture or any
Security provides for notice to Holders of any event:
(1) such notice shall be sufficiently given (unless otherwise herein
or in such Security expressly provided) if in writing and mailed, first class,
postage prepaid, to each Holder of Registered Securities affected by such event,
at his address as it appears in the Security Register, not later than the latest
date, and not earlier than the earliest date, prescribed for the giving of such
notice.
(2) such notice shall be sufficiently given to Holders of Bearer
Securities if published in an Authorized Newspaper in The City of [__________]
and, if the Securities of such series are then listed on The International Stock
Exchange of the United Kingdom and the Republic of Ireland Limited and such
stock exchange shall so require, in London and, if the Securities of such series
are then listed on the Luxembourg Stock Exchange and such stock exchange shall
so require, in Luxembourg and, if the Securities of such series are then listed
on any other stock exchange and such stock exchange shall so require, in any
other required city outside the United States, or, if not practicable, elsewhere
in Europe on a Business Day 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 of such notice.
In case by reason of the suspension of regular mail service or by reason of any
other cause it shall be impracticable to give such notice to Holders of
Registered Securities by mail, then such notification as shall be made with the
approval of the Trustee shall constitute a sufficient notification for every
purpose hereunder. In any case where notice to Holders of Registered Securities
is given by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder of Registered Securities shall affect
the sufficiency of such notice with respect to other Holders of Registered
Securities or the sufficiency of any notice by publication to Holders of Bearer
Securities given as provided above.
In case by reason of the suspension of publication of any Authorized
Newspaper or Authorized Newspapers or by reason of any other cause it shall be
impracticable to publish any notice to Holders of Bearer Securities as provided
above, then such notification to Holders of Bearer
<PAGE> 17
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Securities as shall be given with the approval of the Trustee shall constitute
sufficient notice to such Holders for every purpose hereunder. Neither the
failure to give notice by publication to Holders of Bearer Securities as
provided above, nor any defect in any notice so published, shall affect the
sufficiency of any notice mailed to Holders of Registered Securities as provided
above.
Where this Indenture provides for notice in any manner, such notice may
be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
SECTION 1.07. Language of Notices, etc. Any request, demand,
authorization, direction, notice, consent, or waiver required or permitted under
this Indenture shall be in the English language, except that any published
notice may be in an official language of the country of publication.
SECTION 1.08. Conflict with Trust Indenture Act. If and to the extent
that any provision of this Indenture limits, qualifies or conflicts with the
duties imposed by, or with another provision (an "incorporated provision")
included in this Indenture by operation of, Sections 310 to 318, inclusive, of
the TIA, such imposed duties or incorporated provision shall control.
SECTION 1.09. Effect of Headings and Table of Contents. The Article and
Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
SECTION 1.10. Successors and Assigns. All covenants and agreements in
this Indenture by the Company shall bind its successors and assigns, whether so
expressed or not.
SECTION 1.11. Separability Clause. In case any provision in this
Indenture or in the Securities shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
SECTION 1.12. Benefits of Indenture. Nothing in this Indenture or in the
Securities, express or implied,
<PAGE> 18
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shall give to any Person, other than the parties hereto and their successors
hereunder and the Holders, any benefit or any legal or equitable right, remedy
or claim under this Indenture.
SECTION 1.13. Legal Holidays. Unless otherwise provided as contemplated
by Section 3.01 with respect to any series of Securities, in any case where any
Interest Payment Date, Stated Maturity, Repayment Date or Redemption Date of any
Security or any date on which any Defaulted Interest is proposed to be paid
shall not be a Business Day at any Place of Payment, then (notwithstanding any
other provisions of the Securities or this Indenture) payment of the principal
of, premium, if any, or interest on any Securities need not be made at such
Place of Payment on such date, but may be made on the next succeeding Business
Day with the same force and effect as if made on the Interest Payment Date,
Stated Maturity, Repayment Date or Redemption Date or on the date on which
Defaulted Interest is proposed to be paid, and, if such payment is made, no
interest shall accrue on such payment for the period from and after any such
Interest Payment Date, Stated Maturity, Repayment Date or Redemption Date, or
date on which Defaulted Interest is proposed to be paid, as the case may be.
SECTION 1.14. Governing Law. This Indenture and the Securities shall be
construed in accordance with and governed by the laws of the State of
[___________].
ARTICLE TWO
Security Forms
SECTION 2.01. Forms Generally. All Securities and any related coupons
shall have such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture, and may have such
letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any
securities exchange or as may, consistently herewith, be determined by the
officers executing such Securities or coupons, as evidenced by their execution
of the Securities or coupons.
The Trustee's certificates of authentication shall be in substantially
the form set forth in this Article.
Unless otherwise provided as contemplated by Section 3.01 with respect
to any series of Securities, the
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Securities of each series shall be issuable in registered form without coupons.
If so provided as contemplated by Section 3.01, the Securities of a series shall
be issuable solely in bearer form, or in both registered form and bearer form.
Unless otherwise specified as contemplated by Section 3.01, Securities in bearer
form shall have interest coupons attached.
The definitive Securities and coupons shall be printed, lithographed or
engraved or produced by any combination of these methods on a steel engraved
border or steel engraved borders or may be produced in any other manner, all as
determined by the officers executing such Securities or coupons, as evidenced by
their execution of such Securities or coupons.
SECTION 2.02. Form of Securities. Each Security and coupon shall be in
one of the forms approved from time to time by or pursuant to a Board Resolution
or an indenture supplemental hereto. Upon or prior to the delivery of a Security
or coupons in any such form to the Trustee for authentication, the Company shall
deliver to the Trustee the following:
(i) such indenture supplemental hereto or the Board Resolution by or
pursuant to which such form of Security or coupons has been approved, certified
by the Secretary or an Assistant Secretary of the Company;
(ii) the Officers' Certificate required by Section 3.01 of this
Indenture;
(iii) the Company Order required by Section 3.03 of this Indenture;
and
(iv) the Opinion of Counsel required by Section 3.03 of this
Indenture.
If temporary Securities of any series are issued in global form as
permitted by Section 3.04, the form thereof also shall be established as
provided in this Section 2.02.
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SECTION 2.03. Form of Trustee's Certificate of Authentication.
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
[___________-] as Trustee,
by _______________________________
Authorized Officer/Signatory
SECTION 2.04. Global Securities. If Securities of a series are issuable
in whole or in part in global form, as specified as contemplated by Section
3.01, then, notwithstanding clause (xii) of Section 3.01 and the provisions of
Section 3.02, such Global Security shall represent such of the outstanding
Securities of such series as shall be specified therein and may provide that it
shall represent the aggregate amount of Outstanding Securities from time to time
endorsed thereon and that the aggregate amount of Outstanding Securities
represented thereby may from time to time be reduced or increased to reflect
exchanges or increased to reflect the issuance of additional uncertificated
securities of such series. Any endorsement of a Global Security to reflect the
amount, or any increase or decrease in the amount, of Outstanding Securities
represented thereby shall be made in such manner and upon instructions given by
such Person or Persons as shall be specified therein or in the Company Order to
be delivered to the Trustee pursuant to Section 3.03 or Section 3.04.
Global Securities may be issued in either registered or bearer form and
in either temporary or permanent form.
ARTICLE THREE
The Securities
SECTION 3.01. Title and Terms. The aggregate principal amount of
Securities which may be authenticated and delivered under this Indenture is
unlimited. The
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Securities may be issued up to the aggregate principal amount of Securities from
time to time authorized by or pursuant to a Board Resolution.
The Securities may be issued in one or more series. All Securities of
each series issued under this Indenture shall in all respects be equally and
ratably entitled to the benefits hereof with respect to such series without
preference, priority or distinction on account of the actual time or times of
the authentication and delivery or Maturity of the Securities of such series.
There shall be established in or pursuant to a Board Resolution, and set forth
in, or determined in the manner provided in, an Officers' Certificate, or
established in one or more indentures supplemental hereto, prior to the issuance
of Securities of any series:
(i) the title of the Securities of the series (which shall
distinguish the Securities of the series from all other Securities);
(ii) any limit upon the aggregate principal amount or aggregate
initial public offering price of the Securities of the series which may be
authenticated and delivered under this Indenture (except for Securities
authenticated and delivered upon registration of transfer of, or in exchange
for, or in lieu of, other Securities of that series pursuant to this Article
Three or Sections 4.07, 9.06 or 14.03);
(iii) the priority of payment, if any, of the Securities;
(iv) The price or prices (which may be expressed as a percentage of
the aggregate principal amount thereof) at which the Securities will be issued;
(v) the date or dates on which the principal and premium, if any, of
the Securities of the series is payable;
(vi) the rate or rates at which the Securities of the series shall
bear interest, if any, or the method or methods by which such rates may be
determined, if any, the date or dates from which such interest shall accrue, the
Interest Payment Dates on which such interest shall be payable, the Regular
Record Date for the interest payable on any Interest Payment Date and the basis
upon which interest shall be calculated if
<PAGE> 22
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other than that of a 360-day year consisting of twelve 30-day months;
(vii) the extent to which any of the Securities will be issuable in
temporary or permanent global form, and in such case, the Depositary for such
Global Security or Securities, the terms and conditions, if any, upon which such
Global Security may be exchanged in whole or in part for definitive securities,
and the manner in which any interest payable on a temporary or permanent Global
Security will be paid, whether or not consistent with Section 3.04 or 3.05;
(viii) the office or offices or agency where, subject to Section 5.02,
the Securities may be presented for registration of transfer or exchange;
(ix) the place or places where, subject to the provisions of Section
5.02, the principal of (and premium, if any) and interest, if any, on Securities
of the series shall be payable;
(x) the period or periods within which, the price or prices at which
and the terms and conditions upon which Securities of the series may be
redeemed, in whole or in part, at the option of the Company;
(xi) the obligation, if any, of the Company to redeem or purchase
Securities of the series pursuant to any sinking fund or analogous provisions or
at the option of a Holder thereof and the period or periods within which, the
price or prices at which and the terms and conditions upon which Securities of
the series shall be redeemed or purchased, in whole or in part, pursuant to such
obligation;
(xii) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which Registered Securities of the series shall be
issuable; and, if other than $5,000 or any integral multiple thereof, the
denominations in which Bearer Securities of the series shall be issuable;
(xiii) the currency or currencies of denominations of the Securities of
any series, which may be in Dollars, any Foreign Currency or any composite
currency, and, if any such currency of denomination is a composite currency, the
agency or organization, if any, responsible for overseeing such composite
currency;
<PAGE> 23
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(xiv) the currency or currencies in which payment of the principal of
(and premium, if any) and interest on the Securities will be made, the currency
or currencies, if any, in which payment of the principal of (and premium, if
any) or the interest on Registered Securities, at the election of each of the
Holders thereof, may also be payable and the periods within which and the terms
and conditions upon which such election is to be made and the Exchange Rate and
the Exchange Rate Agent;
(xv) if the amount of payments of principal of (and premium, if any)
or any interest on Securities of the series may be determined with reference to
an index, the method or methods by which such amounts shall be determined;
(xvi) whether Securities of the series are to be issuable as
Registered Securities, Bearer Securities or both, whether Securities of the
series are to be issuable with or without coupons or both and, in the case of
Bearer Securities, the date as of which such Bearer Securities shall be dated if
other than the date of original issuance of the first Security of such series of
like tenor and term to be issued;
(xvii) whether, and under what conditions, additional amounts will be
payable to Holders of Securities of the series pursuant to Section 5.04;
(xviii) whether any of the Securities will be issued as Original Issue
Discount Securities and the portion of the principal amount of such Securities
which shall be payable upon declaration of acceleration of the Maturity thereof
pursuant to Section 7.02;
(xix) information with respect to book-entry procedures, if any;
(xx) any addition to or change in the Events of Default or covenants
of the Company pertaining to the Securities of the series; and
(xxi) any other terms of the series.
All Securities of any one series and the coupons appertaining to Bearer
Securities of such series, if any, shall be substantially identical except, in
the case of Registered Securities, as to denomination and except as may
otherwise be provided in or pursuant to such Board
<PAGE> 24
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Resolution and set forth, or determined in the manner provided in such Officers'
Certificate or in any indenture supplemental hereto.
Securities of any particular series may be issued at various times, with
different dates on which the principal or any installment of principal is
payable, with different rates of interest, if any, or different methods by which
rates of interest may be determined, with different dates on which such interest
may be payable and with different Redemption Dates or Repayment Dates and may be
denominated in different currencies or payable in different currencies.
Notwithstanding Section 3.01(ii) and unless otherwise expressly provided
with respect to a series of Securities, the aggregate principal amount of a
series of Securities may be increased and additional Securities of such series
may be issued up to the maximum aggregate principal amount authorized with
respect to such series as increased.
SECTION 3.02. Denominations. The Securities of each series shall be
issuable in such form and denominations as shall be specified as contemplated by
Section 3.01. In the absence of any specification with respect to the Securities
of any series, the Registered Securities of each series shall be issuable only
as Securities without coupons in denominations of $1,000 and any integral
multiple thereof and the Bearer Securities of each series, if any, shall be
issuable with coupons and in denominations of $5,000 and any integral multiple
thereof.
SECTION 3.03. Execution, Authentication, Delivery and Dating. The
Securities shall be executed on behalf of the Company by its [Chairman of the
Board, its President, or one of its Vice Presidents or its Treasurer and by its
Secretary or one of its Assistant Secretaries]. The signatures of any or all of
these officers on the Securities may be manual or facsimile. Coupons shall bear
the facsimile signature of the Company's [Chairman of the Board, its President,
one of its Vice Presidents or its Treasurer].
Securities and coupons bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and
<PAGE> 25
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delivery of such Securities or did not hold such offices at the date of such
Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series, together with
any coupons appertaining thereto, executed by the Company to the Trustee for
authentication, together with a Company Order for the authentication and
delivery of such Securities, and the Trustee shall, upon receipt of the Company
Order, authenticate and deliver such Securities as in this Indenture provided
and not otherwise; provided, however, that, in connection with its original
issuance, no Bearer Security shall be mailed or otherwise delivered to any
location in the United States; and provided further that a Bearer Security may
be delivered in connection with its original issuance only if the Person
entitled to receive such Bearer Security shall have delivered to the Trustee, or
such other Person as shall be specified in a temporary Global Security delivered
pursuant to Section 3.04, a certificate in the form required by Section 3.11(i).
If the Company shall establish pursuant to Section 3.01 that the
Securities of a series are to be issued in whole or in part in the form of one
or more Global Securities in registered or permanent bearer form, then the
Company shall execute and the Trustee shall, in accordance with this Section and
a Company Order for the authentication and delivery of such Global Securities
with respect to such series, authenticate and deliver one or more Global
Securities in permanent or temporary form that (i) shall represent and shall be
denominated in an aggregate amount equal to the aggregate principal amount of
the Outstanding Securities of such series to be represented by one or more
Global Securities, (ii) shall be registered, if in registered form, in the name
of the Depositary for such Global Security or Securities or the nominee of such
Depositary, and (iii) shall be delivered by the Trustee to such Depositary or
pursuant to such Depositary's instructions.
Each Depositary designated pursuant to Section 3.01 for a Global
Security in registered form must, at the time of its designation and at all
times while it serves as Depositary, be a clearing agency registered under the
Exchange Act and any other applicable statute or regulation.
In authenticating such Securities, and accepting the additional
responsibilities under this Indenture in
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relation to such Securities, the Trustee shall be entitled to receive, and
(subject to Section 8.01) shall be fully protected in relying upon, an Opinion
of Counsel complying with Section 1.02 and stating that:
(i) the form of such Securities and coupons, if any, has been
established in conformity with the provisions of this Indenture;
(ii) the terms of such Securities and coupons, if any, or the manner
of determining such terms, have been established in conformity with the
provisions of this Indenture;
(iii) that such Securities and coupons, when authenticated and
delivered by the Trustee and issued by the Company in the manner and subject to
any conditions specified in such Opinion of Counsel, will constitute valid and
legally binding obligations of the Company, enforceable against the Company in
accordance with their terms, subject to bankruptcy, insolvency, reorganization,
fraudulent transfer, moratorium and other laws of general applicability relating
to or affecting the enforcement of creditors' rights and to general principles
of equity; and
(iv) such other matters as the Trustee may reasonably request.
The Trustee shall not be required to authenticate such Securities if the
issue thereof will adversely affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 3.01 and of this Section 3.03,
if all Securities of a series are not to be originally issued at one time, it
shall not be necessary to deliver the Board Resolution or Officers' Certificate
otherwise required pursuant to Section 3.01 or the Company Order and Opinion of
Counsel otherwise required pursuant to this Section 3.03 at or prior to the time
of authentication of each Security of such series if such documents are
delivered at or prior to the authentication upon original issuance of the first
Security of such series to be issued and such documents reasonably contemplate
the issuance of all Securities of such series; provided that any subsequent
request by the Company to the Trustee to authenticate Securities of such series
upon original issuance shall constitute a representation and warranty by
<PAGE> 27
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the Company that as of the date of such request, the statements made in the
Officers' Certificate or other certificates delivered pursuant to Sections 1.02
and 3.01 shall be true and correct as if made on such date.
A Company Order, Officers' Certificate or Board Resolution or
supplemental indenture delivered by the Company to the Trustee in the
circumstances set forth in the preceding paragraph may provide that Securities
which are the subject thereof will be authenticated and delivered by the Trustee
or its agent on original issue from time to time in the aggregate principal
amount, if any, established for such series pursuant to such procedures
acceptable to the Trustee as may be specified from time to time by Company Order
upon the telephonic (promptly confirmed in writing), electronic or written order
of Persons designated in such Company Order, Officers' Certificate, supplemental
indenture or Board Resolution and that such Persons are authorized to determine,
consistent with such Company Order, Officers' Certificate, supplemental
indenture or Board Resolution, such terms and conditions of said Securities as
are specified in such Company Order, Officers' Certificate, supplemental
indenture or Board Resolution.
Each Registered Security shall be dated the date of its authentication;
and unless otherwise specified as contemplated by Section 3.01, each Bearer
Security and any temporary Global Security referred to in Section 3.04 shall be
dated as of the date of original issuance of such Security.
No Security or coupon appertaining thereto shall be entitled to any
benefit under this Indenture or be valid or obligatory for any purpose, unless
there appears on such Security a certificate of authentication substantially in
the form provided for herein executed by the Trustee by manual signature of an
authorized officer, and such certificate upon any Security shall be conclusive
evidence, and the only evidence, that such Security has been duly authenticated
and delivered hereunder. Except as permitted by Section 3.06, the Trustee shall
not authenticate and deliver any Bearer Security unless all appurtenant coupons
for interest then matured have been detached and canceled. Notwithstanding the
foregoing, if any Security or portion thereof shall have been duly authenticated
and delivered hereunder but never issued and sold by the Company, and the
Company shall deliver such Security to the Trustee for cancellation as provided
in Section 3.09 together with a written statement (which need not comply with
Section 1.02 and need not be accompanied by an Opinion of Counsel)
<PAGE> 28
28
stating that such Security or portion thereof has never been issued and sold by
the Company, for all purposes of this Indenture such Security shall be deemed
never to have been authenticated and delivered hereunder and shall never be
entitled to the benefits of this Indenture.
SECTION 3.04. Temporary Securities. (a) Pending the preparation of
definitive Securities of any series, the Company may execute, and upon Company
Order and the receipt of the certifications and opinions required under Sections
3.01 and 3.03, the Trustee shall authenticate and deliver, temporary Securities
which are printed, lithographed, typewritten, mimeographed or otherwise
produced, in any authorized denominations, substantially of the tenor of the
definitive Securities in lieu of which they are issued in registered form or, if
authorized, in bearer form with one or more coupons or without coupons, and with
such appropriate insertions, omissions, substitutions and other variations as
the officers executing such Securities may determine, as evidenced by their
execution of such Securities. In the case of any series which may be issuable as
Bearer Securities, such temporary Securities may be in global form, representing
such of the Outstanding Securities of such series as shall be specified therein.
(b) Unless otherwise provided pursuant to Section 3.01:
(i) Except in the case of temporary Securities in global form, each
of which shall be exchanged in accordance with the provisions of the following
paragraphs, if temporary Securities of any series are issued, the Company will
cause definitive Securities of such series to be prepared without unreasonable
delay. After the preparation of definitive Securities, the temporary Securities
of such series shall be exchangeable for definitive Securities of such series
upon surrender of the temporary Securities of such series at the office or
agency of the Company in a Place of Payment for that series, without charge to
the Holder. Upon surrender for cancellation of any one or more temporary
Securities of any series (accompanied, if applicable, by all unmatured coupons
and all matured coupons in default appertaining thereto), the Company shall
execute and the Trustee shall authenticate and deliver in exchange therefor a
like principal amount of definitive Securities of such series of authorized
denominations; provided, however, that no definitive Bearer Security shall be
delivered in exchange for a temporary Registered Security; and provided further.
<PAGE> 29
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that a definitive Bearer Security shall be delivered in exchange for a temporary
Bearer Security only in compliance with the conditions set forth in the
provisions of the third paragraph of Section 3.03. Until so exchanged, the
temporary Securities of any series shall in all respects be entitled to the same
benefits under this Indenture as definitive Securities of such series.
(ii) If temporary Securities of any series are issued in global form,
any such temporary Global Security shall, unless otherwise provided in such
temporary Global Security, be delivered to the London office of a depositary or
common depositary (the "Common Depositary"), for the benefit of the operator of
Euroclear and CEDEL S.A., for credit to the respective accounts of the
beneficial owners of such Securities (or to such other accounts as they may
direct). Upon receipt of written instructions (which need not comply with
Section 1.02) signed on behalf of the Company by any Person authorized to give
such instructions, the Trustee or any Authenticating Agent shall endorse such
temporary Global Security to reflect the initial principal amount, or an
increase in the principal amount, of Outstanding Securities represented thereby.
Until such initial endorsement, such temporary Global Security shall not
evidence any obligation of the Company. Such temporary Global Security shall at
any time represent the aggregate principal amount of Outstanding Securities
theretofore endorsed thereon as provided above, subject to reduction to reflect
exchanges as described below.
(iii) Unless otherwise specified in such temporary Global Security,
and subject to the second proviso in the following paragraph, the interest of a
beneficial owner of Securities of a series in a temporary Global Security shall
be exchanged for definitive Securities (including a definitive Global Bearer
Security) of such series and of like tenor following the Global Exchange Date
(as defined below) when the account holder instructs Euroclear or CEDEL S.A., as
the case may be, to request such exchange on his behalf and delivers to
Euroclear or CEDEL S.A., as the case may be, a certificate in the form required
by Section 3.11(i), dated no earlier than 15 days prior to the Global Exchange
Date, copies of which certificate shall be available from the offices of
Euroclear and CEDEL S.A., the Trustee, any Authenticating Agent appointed for
such series of Securities and each Paying
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Agent. Unless otherwise specified in such temporary Global Security, any such
exchange shall be made free of charge to the beneficial owners of such temporary
Global Security, except that a Person receiving definitive Securities must bear
the cost of insurance, postage, transportation and the like in the event that
such Person does not take delivery of such definitive Securities in person at
the offices of Euroclear or CEDEL S.A. Definitive Securities in bearer form to
be delivered in exchange for any portion of a temporary Global Security shall be
delivered only outside the United States.
(iv) Without unnecessary delay but in any event not later than the
date specified in, or determined pursuant to the terms of, any such temporary
Global Security as the "Global Exchange Date" (the "Global Exchange Date"), the
Company shall deliver to the Trustee, or, if the Trustee appoints an
Authenticating Agent pursuant to Section 8.14, to any such Authenticating Agent,
definitive Securities in aggregate principal amount equal to the principal
amount of such temporary Global Security, executed by the Company. Unless
otherwise specified as contemplated by Section 3.01, such definitive Securities
shall be in the form of Bearer Securities or Registered Securities, or any
combination thereof, as may be specified by the Company, the Trustee or any such
Authenticating Agent, as may be appropriate. On or after the Global Exchange
Date, such temporary Global Security shall be surrendered by the Common
Depositary to the Trustee or any such Authenticating Agent, as the Company's
agent for such purpose, to be exchanged, in whole or from time to time in part,
for definitive Securities without charge and the Trustee or any such
Authenticating Agent shall authenticate and deliver, in exchange for each
portion of such temporary Global Security, an equal aggregate principal amount
of definitive Securities of the same series, of authorized denominations and of
like tenor as the portion of such temporary Global Security to be exchanged,
which, except as otherwise specified as contemplated by Section 3.01, shall be
in the form of Bearer Securities or Registered Securities, or any combination
thereof; provided, however, that, unless otherwise specified in such temporary
Global Security, upon such presentation by the Common Depositary, such temporary
Global Security is accompanied by a certificate dated the Global Exchange Date
or a subsequent date and signed by Euroclear as to the portion of such temporary
Global
<PAGE> 31
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Security held for its account then to be exchanged and a certificate dated the
Global Exchange Date or a subsequent date and signed by CEDEL S.A., as to the
portion of such temporary Global Security held for its account then to be
exchanged, each in the form required by Section 3.11(ii); and provided further
that a definitive Bearer Security (including a definitive global Bearer
Security) shall be delivered in exchange for a portion of a temporary Global
Security only in compliance with the conditions set forth in the provisions of
the third paragraph of Section 3.03.
(v) Upon any exchange of a portion of any such temporary Global
Security, such temporary Global Security shall be endorsed by the Trustee or any
such Authenticating Agent, as the case may be, to reflect the reduction of the
principal amount evidenced thereby, whereupon its remaining principal amount
shall be reduced for all purposes by the amount so exchanged. Until so exchanged
in full, such temporary Global Security shall in all respects be entitled to the
same benefits under this Indenture as definitive Securities of such series
authenticated and delivered hereunder, except that, unless otherwise specified
as contemplated by Section 3.01, interest payable on such temporary Global
Security on an Interest Payment Date for Securities of such series occurring
prior to the applicable Global Exchange Date shall be payable, without interest,
to Euroclear and CEDEL S.A. on or after such Interest Payment Date upon delivery
by Euroclear and CEDEL S.A. to the Trustee or the Paying Agent, as the case may
be, of a certificate or certificates in the form required by Section 3.11(iii),
for credit on or after such Interest Payment Date to the respective accounts of
the Persons who are the beneficial owners of such temporary Global Security on
such Interest Payment Date and who have each delivered to Euroclear or CEDEL
S.A., as the case may be, a certificate in the form required by Section
3.11(iv). Any interest so received by Euroclear and CEDEL S.A. and not paid as
herein provided prior to the Global Exchange Date shall be returned to the
Trustee or Paying Agent, as the case may be, which, upon expiration of two years
after such Interest Payment Date, shall repay such interest to the Company on
Company Request in accordance with Section 5.03.
SECTION 3.05. Registration, Registration of Transfer and Exchange. With
respect to Registered Securities, the Company shall keep or cause to be kept a
<PAGE> 32
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register (sometimes referred to as the "Security Register") in which, subject to
such reasonable regulations as it may prescribe, the Company shall provide for
the registration of Registered Securities and the registration of transfers of
Registered Securities and the Company shall appoint a "Security Registrar", and
may appoint any "Co-Security Registrar" as may be appropriate, to keep the
Security Register. Such Security Register shall be in written form or in any
other form capable of being converted into written form within a reasonable
time. At all reasonable times the information contained in such Security
Register shall be available for inspection by the Trustee at the office of the
Security Registrar. In the event that any Registered Securities issued hereunder
have The City of [__________] as a Place of Payment, the Company shall appoint
either a Security Registrar or Co-Security Registrar located in The City of
[_________].
Upon surrender for registration of transfer of any Registered Security
of any series at the office or agency of the Company maintained pursuant to
Section 5.02 for such purpose in a Place of Payment for such series, the Company
shall execute, and the Trustee shall authenticate and deliver, in the name of
the designated transferee or transferees, one or more new Registered Securities
of such series of any authorized denominations and of a like aggregate principal
amount, tenor and Stated Maturity.
At the option of the Holder, Registered Securities of any series may be
exchanged for other Registered Securities of such series, of any authorized
denominations and of like aggregate principal amount, tenor and Stated Maturity,
upon surrender of the Securities to be exchanged at such office or agency.
Whenever any Securities are so surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and deliver, the Securities which
the Holder making the exchange is entitled to receive.
Registered Securities may not be exchanged for Bearer Securities.
At the option of the Holder, Bearer Securities of any series may be
exchanged for Registered Securities of the same series of any authorized
denominations and of a like aggregate principal amount and tenor, upon surrender
of the Bearer Securities to be exchanged at any such office or agency, with all
unmatured coupons and all matured coupons in default thereto appertaining. If
the Holder of a Bearer Security is unable to produce any such unmatured coupon
or coupons or matured coupon or coupons in default, such
<PAGE> 33
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exchange may be effected if the Bearer Securities are accompanied by payment in
funds acceptable to the Company in an amount equal to the face amount of such
missing coupon or coupons, or the surrender of such missing coupon or coupons
may be waived by the Company and the Trustee if there be furnished to them such
security or indemnity as they may require to save each of them and any Paying
Agent harmless. If thereafter the Holder of such Security shall surrender to any
Paying Agent any such missing coupon in respect of which such a payment shall
have been made, such Holder shall be entitled to receive the amount of any such
payment from the Company; provided, however, that interest represented by
coupons shall be payable only upon presentation and surrender of those coupons
at an office or agency of a Paying Agent, maintained pursuant to Section 5.02
for such purpose, located outside the United States. Notwithstanding the
foregoing, in case a Bearer Security of any series is surrendered at any such
office or agency in exchange for a Registered Security of the same series and
like tenor after the close of business at such office or agency on (i) any
Regular Record Date and before the opening of business at such office or agency
on the relevant Interest Payment Date, or (ii) any Special Record Date and
before the opening of business at such office or agency on the related date for
payment of Defaulted Interest, such Bearer Security shall be surrendered without
the coupon relating to such Interest Payment Date or proposed date for payment,
as the case may be.
Notwithstanding any other provision of this Section, unless and until it
is exchanged in whole or in part for individual Securities represented thereby,
a Global Security representing all or a portion of the Securities of a series
may not be transferred except as a whole by the Depositary for such series to a
nominee of such Depositary or by a nominee of such Depositary to such Depositary
or another nominee of such Depositary or by such Depositary or any such nominee
to a successor Depositary for such series or a nominee of such successor
Depositary.
Whenever any Securities are so surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and deliver, the Securities
which the Holder making the exchange is entitled to receive.
If at any time the Depositary for the Securities of a series notifies
the Company that it is unwilling or unable to continue as Depositary for the
Securities of such series or if at any time the Depositary for the Securities of
such series shall no longer be eligible under
<PAGE> 34
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Section 3.03, the Company shall appoint a successor Depositary with respect to
the Securities of such series. If a successor Depositary for the Securities of
such series is not appointed by the Company within 90 days after the Company
receives such notice or becomes aware of such ineligibility, the Company's
election pursuant to Section 3.01(vii) shall no longer be effective with respect
to the Securities of such series and the Company will execute, and the Trustee,
upon receipt of a Company Order for the authentication and delivery of
definitive Securities of such series, will authenticate and deliver Securities
of such series of like tenor and terms in definitive form in an aggregate
principal amount equal to the principal amount of the Global Security or
Securities representing such series in exchange for such Global Security or
Securities.
The Company may at any time and in its sole discretion determine that
the Securities of any series issued in the form of one or more Global Securities
shall no longer be represented by such Global Security or Securities. In such
event, the Company will execute, and the Trustee, upon receipt of a Company
Order for the authentication and delivery of definitive Securities of such
series, will authenticate and deliver, Securities of such series of like tenor
and terms in definitive form in an aggregate principal amount equal to the
principal amount of the Global Security or Securities representing such series
in exchange for such Global Security or Securities.
If specified by the Company pursuant to Section 3.01 with respect to a
series of Securities, the Depositary for such series of Securities may surrender
a Global Security for such series of Securities in exchange in whole or in part
for Securities of such series of like tenor and terms and in definitive form on
such terms as are acceptable to the Company, the Trustee and such Depositary.
Thereupon, the Company shall execute, and the Trustee upon receipt of a Company
Order for the authentication and delivery of definitive Securities of such
series, shall authenticate and deliver, without service charge:
(a) to the Depositary or to each Person specified by such Depositary
a new Security or Securities of the same series, of like tenor and terms and of
any authorized denomination as requested by such Person in aggregate principal
amount equal to and in exchange for such Person's beneficial interest in the
Global Security; and
<PAGE> 35
35
(b) to such Depositary a new Global Security of like tenor and terms and
in an authorized denomination equal to the difference, if any, between the
principal amount of the surrendered Global Security and the aggregate principal
amount of Securities delivered to Holders thereof.
In any exchange provided for in any of the preceding three paragraphs,
the Company will execute and the Trustee, pursuant to a Company Order, will
authenticate and deliver, Securities (a) in definitive registered form in
authorized denominations, if the Securities of such series are issuable as
Registered Securities, (b) in definitive bearer form in authorized
denominations, with coupons attached, if the Securities of such series are
issuable as Bearer Securities or (c) as either Registered or Bearer Securities,
if the Securities of such series are issuable in either form; provided, however,
that no definitive Bearer Security shall be delivered in exchange for a
temporary Global Security other than in accordance with the provisions of
Sections 3.03 and 3.04.
Upon the exchange of Global Securities for Securities in definitive
form, such Global Securities shall be canceled by the Trustee. Registered
Securities issued in exchange for a Global Security pursuant to this Section
3.05 shall be registered in such names and in such authorized denominations, and
delivered to such addresses, as the Depositary for such Global Security,
pursuant to instructions from its direct or indirect participants or otherwise,
shall instruct the Trustee in writing. The Trustee shall deliver such Registered
Securities to the Persons in whose names such Securities are so registered or to
the Depositary. The Trustee shall deliver Bearer Securities issued in exchange
for a Global Security pursuant to this Section 3.05 to the Depositary or to the
Persons at such addresses, and in such authorized denominations, as the
Depositary for such Global Security, pursuant to instructions from its direct or
indirect participants or otherwise, shall instruct the Trustee in writing;
provided, however, that no definitive Bearer Security shall be delivered in
exchange for a temporary Global Security other than in accordance with the
provisions of Sections 3.03 and 3.04.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the
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Securities surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or
exchange shall (if so required by the Company or the Security Registrar) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
Unless otherwise provided in the Securities to be registered for
transfer or exchanged, no service charge shall be made for any registration of
transfer or exchange of Securities, but the Company may (unless otherwise
provided in such Securities) require payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in connection with any
registration of transfer or exchange of Securities, other than exchanges
expressly provided in this Indenture to be made at the Company's own expense or
without expense or without charge to the Holders.
Neither the Company, the Security Registrar nor any Co-Security
Registrar shall be required (i) to issue, register the transfer of or exchange
any Securities of any series during a period beginning at the opening of
business 15 days before the day of selection of Securities of such series to be
redeemed and ending at the close of business on (A) if Securities of the series
are issuable only as Registered Securities, the day of the mailing of the
relevant notice of redemption of Registered Securities of such series so
selected for redemption or (B) if Securities of the series are issuable as
Bearer Securities, the day of the first publication of the relevant notice of
redemption or, if Securities of the series are also issuable as Registered
Securities and there is no publication, the mailing of the relevant notice of
redemption, or (ii) to register the transfer or exchange of any Securities or
portions thereof so selected for redemption.
Notwithstanding anything herein to the contrary, the exchange of Bearer
Securities into Registered Securities shall be subject to applicable laws and
regulations in effect at the time of exchange; none of the Company, the Trustee
nor the Security Registrar shall exchange any Bearer Securities into Registered
Securities if it has received an Opinion of Counsel that as a result of such
exchanges the Company would suffer adverse consequences under the United States
Federal income tax laws and regulations then in
<PAGE> 37
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effect and the Company has delivered to the Trustee a Company Order directing
the Trustee not to make such exchanges unless and until the Trustee receives a
subsequent Company Order to the contrary. The Company shall deliver copies of
such Company Orders to the Security Registrar.
SECTION 3.06. Mutilated, Destroyed, Lost and Stolen Securities. If (i)
any mutilated Security or Security with a mutilated coupon is surrendered to the
Trustee or the Security Registrar, or if the Company, the Trustee and the
Security Registrar receive evidence to their satisfaction of the destruction,
loss or theft of any Security or coupon and (ii) there is delivered to the
Company, the Trustee and the Security Registrar such security or indemnity as
may be required by them to save each of them harmless, then, in the absence of
notice to the Company, the Trustee or the Security Registrar that such Security
has been acquired by a bona fide purchaser, the Company shall execute and upon
its request the Trustee shall authenticate and deliver, in lieu of any such
mutilated, destroyed, lost or stolen Security or in exchange for the Security to
which a mutilated, destroyed, lost or stolen coupon appertains (with all
appurtenant coupons not mutilated, destroyed, lost or stolen), a new Security of
the same series and Stated Maturity and of like tenor and principal amount,
bearing a number not contemporaneously outstanding and, if applicable, with
coupons corresponding to the coupons appertaining thereto; provided, however,
that any new Bearer Security will be delivered only in compliance with the
conditions set forth in Section 3.05.
In case any such mutilated, destroyed, lost or stolen Security or coupon
has become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Security, pay such Security; provided, however,
that payment of principal of (and premium, if any) and any interest on Bearer
Securities shall be payable only at an office or agency located outside the
United States, and, in the case of interest, unless otherwise specified as
contemplated by Section 3.01, only upon presentation and surrender of the
coupons appertaining thereto.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
<PAGE> 38
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Every new Security of any series, with its coupons, if any, issued
pursuant to this Section in lieu of any destroyed, lost or stolen Security, or
in exchange for a Security with a destroyed, lost or stolen coupon, shall
constitute an original additional contractual obligation of the Company, whether
or not the destroyed, lost or stolen Security and its coupons, if any, or the
destroyed, lost or stolen coupon shall be at any time enforceable by anyone, and
shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities of the same series and their
coupons, if any, duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities or coupons.
SECTION 3.07. Payment of Interest; Interest Rights Preserved. Unless
otherwise provided as contemplated by Section 3.01, interest on any Registered
Security which is payable, and is punctually paid or duly provided for, on any
Interest Payment Date shall unless otherwise provided in such Security be paid
to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest. Unless otherwise specified as contemplated by Section 3.01,
in case a Bearer Security of any series is surrendered in exchange for a
Registered Security of such series after the close of business (at an office or
agency referred to in Section 3.05) on any Regular Record Date and before the
opening of business (at such office or agency) on the next succeeding Interest
Payment Date, such Bearer Security shall be surrendered without the coupon
relating to such Interest Payment Date and interest will not be payable on such
Interest Payment Date in respect of the Registered Security issued in exchange
for such Bearer Security, but will be payable only to the Holder of such coupon
when due in accordance with the provisions of this Indenture. At the option of
the Company, payment of interest on any Registered Security may be made by check
in the currency designated for such payment pursuant to the terms of such
Registered Security mailed to the address of the Person entitled thereto as such
address shall appear in the Security Register or by wire transfer to an account
in such currency designated by such Person in writing not later than ten days
prior to the date of such payment.
Any interest on any Registered Security which is payable, but is not
punctually paid or duly provided for, on
<PAGE> 39
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any Interest Payment Date (herein called "Defaulted Interest") shall forthwith
cease to be payable to the Holder on the relevant Regular Record Date by virtue
of his having been such Holder, and such Defaulted Interest may be paid by the
Company, at its election in each case, as provided in clause (i) or clause (ii)
below.
(i) The Company may elect to make payments of any Defaulted Interest to
the Persons in whose names any such Registered Securities (or their respective
Predecessor Securities) are registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest, which shall be fixed in
the following manner. The Company shall notify the Trustee in writing of the
amount of Defaulted Interest proposed to be paid on each Registered Security and
the date of the proposed payment, and at the same time the Company shall deposit
with the Trustee an amount of money equal to the aggregate amount proposed to be
paid in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of the proposed
payment, such money when deposited to be held in trust for the benefit of the
Persons entitled to such Defaulted Interest as in this clause provided.
Thereupon the Trustee shall fix a Special Record Date for the payment of such
Defaulted Interest which shall be not more than 15 nor less than 10 days prior
to the date of the proposed payment and not less than 10 days after the receipt
by the Trustee of the notice of the proposed payment. The Trustee shall promptly
notify the Company of such Special Record Date and, in the name and at the
expense of the Company, shall cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor to be mailed, first
class, postage prepaid, to each Holder at his address as it appears in the
Security Register, not less than 10 days prior to such Special Record Date.
Notice of the proposed payment of such Defaulted Interest and the Special Record
Date therefor having been mailed as aforesaid, such Defaulted Interest shall be
paid to the Persons in whose names such Registered Securities (or their
respective Predecessor Securities) are registered on such Special Record Date
and shall no longer be payable pursuant to the following clause (ii). In case a
Bearer Security of any series is surrendered at the office or agency in a Place
of Payment for such series in exchange for a Registered Security of such series
after the close of business at such office or agency on any Special Record Date
and before the opening of
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business at such office or agency on the related proposed date of payment of
Defaulted Interest, such Bearer Security shall be surrendered without the coupon
relating to such proposed date for payment and Defaulted Interest will not be
payable on such proposed date for payment in respect of the Registered Security
issued in exchange for such Bearer Security, but will be payable only to the
Holder of such coupon when due in accordance with the provisions of this
Indenture.
(ii) The Company may make payment of any Defaulted Interest in any
other lawful manner not inconsistent with the requirements of any securities
exchange on which the Securities with respect to which there exists such default
may be listed, and upon such notice as may be required by such exchange, if,
after notice given by the Company to the Trustee of the proposed payment
pursuant to this clause, such payment shall be deemed practicable by the
Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of, or in exchange
for, or in lieu of, any other Security shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Security.
Subject to the limitations set forth in Section 5.02, the Holder of any
coupon appertaining to a Bearer Security shall be entitled to receive the
interest payable on such coupon upon presentation and surrender of such coupon
on or after the Interest Payment Date of such coupon at an office or agency
maintained for such purpose pursuant to Section 5.02.
SECTION 3.08. Persons Deemed Owners. Title to any Bearer Security, any
coupons appertaining thereto and any temporary Global Security shall pass by
delivery.
Prior to due presentment for registration of transfer of any Registered
Security, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name such Security is registered as the owner of
such Security for the purpose of receiving payment of principal of, premium, if
any, and (subject to Section 3.07) interest on such Security, and for all
purposes whatsoever, whether or not such Security be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
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The Company, the Trustee and any agent of the Company or the Trustee may
treat the bearer of any Bearer Security and the bearer of any coupon as the
absolute owner of such Security or coupon for the purpose of receiving payment
thereof or on account thereof and for all other purposes whatsoever, whether or
not such Security or coupon be overdue, and neither the Company, the Trustee nor
any agent of the Company or the Trustee shall be affected by notice to the
contrary.
None of the Company, the Trustee, any Paying Agent, any Authenticating
Agent or the Security Registrar will have the responsibility or liability for
any aspect of the records relating to or payments made on account of beneficial
ownership interest of a Global Security or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interest, and they
shall be fully protected in acting or refraining from acting on any such
information provided by the Depositary.
SECTION 3.09. Cancellation. Unless otherwise provided with respect to a
series of Securities, all Securities and coupons surrendered for payment,
registration of transfer, exchange, repayment or redemption shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee.
All Securities so delivered or surrendered directly to the Trustee for any such
purpose shall be promptly cancelled by it. The Company may at any time deliver
to the Trustee for cancellation any Securities previously authenticated and
delivered hereunder which the Company may have acquired in any manner
whatsoever, and all Securities so delivered shall be promptly cancelled by the
Trustee. No Securities shall be authenticated in lieu of or in exchange for any
Securities cancelled as provided in this Section, except as expressly permitted
by this Indenture or such Securities. All cancelled Securities or coupons held
by the Trustee shall be disposed of by the Trustee in accordance with its
customary procedures and the Trustee shall deliver a certificate of such
disposition to the Company.
SECTION 3.10. Computation of Interest. Interest on the Securities of
each series shall be computed as shall be specified as contemplated by Section
3.01.
SECTION 3.11. Form of Certification. Unless otherwise provided pursuant
to Section 3.01:
(i) Whenever any provision of this Indenture or the forms of
Securities contemplate that certification
<PAGE> 42
42
be given by a Person entitled to receive a Bearer Security, such certification
shall be provided substantially in the form of Exhibit A hereto, with only such
changes as shall be approved by the Company.
(ii) Whenever any provision of this Indenture or the forms of
Securities contemplate that certification be given by Euroclear and CEDEL S.A.
in connection with the exchange of a portion of a temporary Global Security,
such certification shall be provided substantially in the form of Exhibit B
hereto, with only such changes as shall be approved by the Company.
(iii) Whenever any provision of the Indenture or the forms of
Securities contemplate that certification be given by Euroclear and CEDEL S.A.
in connection with payment of interest with respect to a temporary Global
Security prior to the related Global Exchange Date, such certification shall be
provided substantially in the form of Exhibit C hereto, with only such changes
as shall be approved by the Company.
(iv) Whenever any provision of the Indenture or the forms of
Securities contemplate that certification be given by a beneficial owner of a
portion of a temporary Global Security in connection with payment of interest
with respect to a temporary Global Security prior to the related Global Exchange
Date, such certification shall be provided substantially in the form of Exhibit
D hereto, with only such changes as shall be approved by the Company.
SECTION 3.12. Judgments. The Company may provide, pursuant to Section
3.01, for the Securities of any series that, to the fullest extent possible
under applicable law and except as may otherwise be specified as contemplated in
Section 3.01, (a) the obligation, if any, of the Company to pay the principal of
(and premium, if any) and interest on the Securities of any series and any
appurtenant coupons in a Foreign Currency, composite currency or Dollars (the
"Designated Currency") as may be specified pursuant to Section 3.01 is of the
essence and agrees that judgments in respect of such Securities shall be given
in the Designated Currency; (b) the obligation of the Company to make payments
in the Designated Currency of the principal of (and premium, if any) and
interest on such Securities and any appurtenant coupons shall, notwithstanding
any payment in any other currency (whether pursuant to a judgment or otherwise),
be discharged only to the extent of the amount in the Designated Currency that
the Holder receiving such payment
<PAGE> 43
43
may, in accordance with normal banking procedures, purchase with the sum paid in
such other currency (after any premium and cost of exchange) in the country of
issue of the Designated Currency in the case of Foreign Currency or Dollars or
in the international banking community in the case of a composite currency on
the Business Day immediately following the day on which such Holder receives
such payment; (c) if the amount in the Designated Currency that may be so
purchased for any reason falls short of the amount originally due, the Company
shall pay such additional amounts as may be necessary to compensate for such
shortfall; and (d) any obligation of the Company not discharged by such payment
shall be due as a separate and independent obligation and, until discharged as
provided herein, shall continue in full force and effect.
SECTION 3.13 CUSIP Numbers. The Company in issuing the Securities may
use "CUSIP" numbers or Euroclear or CEDEL reference numbers (if then generally
in use), and if, so, the Trustee shall use such numbers in notices of redemption
or other related material as a convenience to Holders; provided that, any such
notice or other related material 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 redemption or other related material 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.
ARTICLE FOUR
Redemption of Securities
SECTION 4.01. Applicability of Article. Securities of any series which
are redeemable before their Stated Maturity shall be redeemable in accordance
with their terms and, except as otherwise specified as contemplated by Section
3.01 for Securities of any series, in accordance with this Article.
SECTION 4.02. Election To Redeem; Notice to Trustee. The election of the
Company to redeem any Securities redeemable at the option of the Company shall
be evidenced by an Officers' Certificate. In case of any redemption at the
election of the Company of the Securities of any series, the Company shall, at
least 60 days prior to the Redemption Date fixed by the Company (unless a
shorter notice shall be satisfactory to the Trustee), notify the
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44
Trustee and the Security Registrar of such Redemption Date and of the principal
amount of Securities of such series to be redeemed. In the case of any
redemption of Securities (i) prior to the expiration of any restriction on such
redemption provided in the terms of such Securities or elsewhere in this
Indenture, or (ii) pursuant to an election of the Company which is subject to a
condition specified in the terms of such Securities, the Company shall furnish
the Trustee with an Officers' Certificate evidencing compliance with such
restriction or condition.
SECTION 4.03. Selection by Security Registrar of Securities To Be
Redeemed. If less than all the Securities of any series with the same terms are
to be redeemed, the particular Securities to be redeemed shall be selected not
more than 60 days prior to the Redemption Date by the Security Registrar from
the Outstanding Securities of such series having such terms not previously
called for redemption, by such method as the Security Registrar shall deem fair
and appropriate and which may provide for the selection for redemption of
portions of the principal amount of Securities of such series of a denomination
equal to or larger than the minimum authorized denomination for Securities of
such series. Unless otherwise provided by the terms of the Securities of any
series so selected for partial redemption, the portions of the principal of
Securities of such series so selected for partial redemption shall be, in the
case of Registered Securities, equal to $1,000 or an integral multiple thereof
or, in the case of Bearer Securities, equal to $5,000 or an integral multiple
thereof, and the principal amount of any such Security which remains outstanding
shall not be less than the minimum authorized denomination for Securities of
such series.
The Security Registrar shall promptly notify the Company, the Trustee
and the Co-Security Registrar, if any, in writing of the Securities selected for
redemption and, in the case of any Security selected for partial redemption, the
principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Security redeemed or to be redeemed only in part, to the
portion of the principal of such Security which has been or is to be redeemed.
SECTION 4.04. Notice of Redemption. Notice of redemption shall be given
in the manner provided in Section 1.06, not less than 30 nor more than 60 days
prior
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45
to the Redemption Date, to each Holder of Securities to be redeemed.
All notices of redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price;
(iii) if less than all Outstanding Securities of any series having the
same terms are to be redeemed, the identification (and, in the case of partial
redemption, the respective principal amounts) of the particular Securities to be
redeemed;
(iv) that on the Redemption Date the Redemption Price will become due
and payable upon each such Security to be redeemed, and that interest, if any,
thereon shall cease to accrue on and after said date;
(v) the place or places where such Securities, together in the case
of Bearer Securities with all remaining coupons appertaining thereto, if any,
maturing after the Redemption Date, are to be surrendered for payment of the
Redemption Price;
(vi) that the redemption is from a sinking fund, if such is the case;
and
(vii) the CUSIP number or the Euroclear or the CEDEL reference number
(or any other number used by a Depositary to identify such Securities), if any,
of the Securities to be redeemed.
A notice of redemption published as contemplated by Section 1.06 need
not identify particular Registered Securities to be redeemed.
Notice of redemption of Securities to be redeemed at the election of the
Company shall be given by the Company or, on Company Request, by the Trustee in
the name and at the expense of the Company.
SECTION 4.05. Deposit of Redemption Price. At or prior to the opening of
business on any Redemption Date, the Company shall deposit or cause to be
deposited with the Trustee or with a Paying Agent (or, if the Company is acting
as its own Paying Agent, segregate and hold in trust as provided in Section
5.03) an amount of money sufficient to pay the Redemption Price of all the
Securities which are to
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46
be redeemed on that date; provided, however, that deposits with respect to
Bearer Securities shall be made with a Paying Agent or Paying Agents located
outside the United States except as otherwise provided in Section 5.02, unless
otherwise specified as contemplated by Section 3.01.
SECTION 4.06. Securities Payable on Redemption Date. Notice of
redemption having been given as aforesaid, the Securities so to be redeemed
shall, on the Redemption Date, become due and payable at the Redemption Price
therein specified and from and after such date (unless the Company shall default
in the payment of the Redemption Price) such Securities shall cease to bear
interest and the coupons for such interest appertaining to any Bearer Securities
so to be redeemed, except to the extent provided below, shall be void. Upon
surrender of any such Securities for redemption in accordance with said notice,
such Securities shall be paid by the Company at the Redemption Price; provided,
however, that installments of interest on Bearer Securities whose Stated
Maturity is on or prior to the Redemption Date shall be payable only at an
office or agency located outside the United States and, unless otherwise
specified as contemplated by Section 3.01, only upon presentation and surrender
of coupons for such interest. Installments of interest on Registered Securities
whose Stated Maturity is on or prior to the Redemption Date shall be payable to
the Holders of such Securities, or one or more Predecessor Securities,
registered as such on the close of business on the relevant Regular Record Dates
according to their terms and the provisions of Section 3.07.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant coupons maturing after the Redemption Date, such
Security may be paid after deducting from the Redemption Price an amount equal
to the face amount of all such missing coupons, or the surrender of such missing
coupon or coupons may be waived by the Company and the Trustee if there be
furnished to them such security or indemnity as they may require to save each of
them and any Paying Agent harmless. If thereafter the Holder of such Security
shall surrender to the Trustee or any Paying Agent any such missing coupon in
respect of which a deduction shall have been made from the Redemption Price,
such Holder shall be entitled to receive the amount so deducted; provided,
however, that interest represented by coupons shall be payable only at an office
or agency located outside the United States and, unless otherwise specified as
contemplated by Section 3.01, only upon presentation and surrender of those
coupons.
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If any Security called for redemption shall not be paid upon surrender
thereof for redemption, the principal shall, until paid, bear interest from the
Redemption Date at the rate borne by such Security, or as otherwise provided in
such Security.
SECTION 4.07. Securities Redeemed in Part. Any Security which is to be
redeemed only in part shall be surrendered at the office or agency of the
Company in a Place of Payment therefor (with, if the Company or the Security
Registrar so requires, due endorsement by, or a written instrument of transfer
in form satisfactory to the Company and the Security Registrar duly executed by,
the Holder of such Security or his attorney duly authorized in writing), and the
Company shall execute, and the Trustee shall authenticate and deliver to the
Holder of such Security without service charge, a new Security or Securities of
the same series and Stated Maturity, containing identical terms and conditions,
of any authorized denominations as requested by such Holder, in aggregate
principal amount equal to and in exchange for the unredeemed portion of the
principal of the Security so surrendered.
SECTION 4.08. Redemption Suspended During Event of Default. The Trustee
shall not redeem any Securities (unless all Securities then Outstanding are to
be redeemed) or commence the giving of any notice of redemption of Securities
during the continuance of any Event of Default known to the Trustee, except that
where the giving of notice of redemption of any Securities shall theretofore
have been made, the Trustee shall redeem such Securities, provided funds are
deposited with it for such purpose. Any moneys theretofore or thereafter
received by the Trustee shall, during the continuance of such Event of Default,
be held in trust for the benefit of the Holders and applied in the manner set
forth in Section 7.06; provided, however, that in case such Event of Default
shall have been waived as provided herein or otherwise cured, such moneys shall
thereafter be held and applied in accordance with the provisions of this
Article.
ARTICLE FIVE
Covenants
SECTION 5.01. Payment of Principal, Premium and Interest. The Company
covenants and agrees for the benefit of each series of Securities that it will
duly and punctually pay the principal of, premium, if any, and
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48
interest on the Securities of such series in accordance with the terms of the
Securities of such series, any coupons appertaining thereto and this Indenture.
Unless otherwise specified as contemplated by Section 3.01 with respect to any
series of Securities, any interest due on Bearer Securities on or before
Maturity shall be payable only outside the United States upon presentation and
surrender of the several coupons for such interest installments as are evidenced
thereby as they severally mature.
SECTION 5.02. Maintenance of Office or Agency. If Securities of a series
are issuable only as Registered Securities, the Company will maintain in each
Place of Payment for any series of Securities an office or agency where
Securities of that series may be presented or surrendered for payment, where
Securities of that series may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Company in respect of the
Securities of that series and this Indenture may be served. The Company will
give prompt written notice to the Trustee of the location, and of any change in
the location, of such office or agency. If Securities of a series may be
issuable as Bearer Securities, the Company will maintain (A) in
[_______________] an office or agency where any Registered Securities of that
series may be presented or surrendered for payment, where any Registered
Securities of that series may be surrendered for registration of transfer, where
Securities of that series may be surrendered for exchange and where notices and
demands to or upon the Company in respect of the Securities of that series and
this Indenture may be served, (B) subject to any laws or regulations applicable
thereto, in a Place of Payment for that series which is located outside the
United States, an office or agency where Securities of that series and related
coupons may be presented and surrendered for payment (including payment of any
additional amounts payable on Securities of that series pursuant to Section
5.04); provided, however, that if the Securities of that series are listed on
The International Stock Exchange of the United Kingdom and the Republic of
Ireland Limited or the Luxembourg Stock Exchange or any other stock exchange
located outside the United States and such stock exchange shall so require, the
Company will maintain a Paying Agent for the Securities of that series in London
or Luxembourg or any other required city located outside the United States, as
the case may be, so long as the Securities of that series are listed on such
exchange, and (C) subject to any laws or regulations applicable thereto, in a
Place of Payment for such series located outside the United States an office or
agency where any Registered Securities of that series may be
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surrendered for registration of transfer, where Securities of that series may be
surrendered for exchange and where notices and demands to or upon the Company in
respect of the Securities of that series and this Indenture may be served. The
Company will give prompt written notice to the Trustee of the location, and any
change in the location, of any such office or agency. If at any time the Company
shall fail to maintain any such required office or agency in respect of any
series of Securities or shall fail to furnish the Trustee with the address
thereof, such presentations, and surrenders of Securities of that series may be
made and notices and demands may be made or served at the Principal Corporate
Trust Office of the Trustee, except that Bearer Securities of that series and
the related coupons may be presented and surrendered for payment (including
payment of any additional amounts payable on Bearer Securities of that series
pursuant to Section 5.04) at the place specified for the purpose as contemplated
by Section 3.01, and the Company hereby appoints the Trustee as its agent to
receive such respective presentations, surrenders, notices and demands.
Except as otherwise provided in the form of Bearer Security of any
particular series pursuant to the provisions of this Indenture, no payment of
principal, premium or interest on Bearer Securities shall be made at any office
or agency of the Company in the United States or by check mailed to any address
in the United States or by transfer to an account maintained with a bank located
in the United States; provided, however, payment of principal of and any premium
and interest denominated in Dollars (including additional amounts payable in
respect thereof) on any Bearer Security may be made at an office or agency of,
and designated by, the Company located in the United States if (but only if)
payment of the full amount of such principal, premium, interest or additional
amounts in Dollars at all offices outside the United States maintained for the
purpose by the Company in accordance with this Indenture is illegal or
effectively precluded by exchange controls or similar restrictions and the
Trustee receives an Opinion of Counsel that such payment within the United
States is legal. Unless otherwise provided as contemplated by Section 3.01 with
respect to any series of Securities, at the option of the Holder of any Bearer
Security or related coupon, payment may be made by check in the currency
designated for such payment pursuant to the terms of such Bearer Security
presented or mailed to an address outside the United States or by transfer to an
account in such currency maintained by the payee with a bank located outside the
United States.
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50
The Company may also from time to time designate one or more other
offices or agencies where the Securities of one or more series may be presented
or surrendered for any or all of such purposes specified above in this Section
and may constitute and appoint one or more Paying Agents for the payment of such
Securities, in one or more other cities, and may from time to time rescind such
designations and appointments; provided, however, that no such designation,
appointment or rescission shall in any manner relieve the Company of its
obligation to maintain an office or agency in each Place of Payment for
Securities of any series for such purposes. The Company will give prompt written
notice to the Trustee of any such designation or rescission and of any change in
the location of any such other office or agency. Unless and until the Company
rescinds one or more such appointments, the Company hereby appoints: (i) The
[________], as its Paying Agent in The City of [_________] with respect to all
series of Securities having a Place of Payment in The City of [_________] [and
(ii) the [________] at its principal office as its Paying Agent in the
[________] with respect to all series of Securities having a Place of Payment in
the [________]].
SECTION 5.03. Money for Security Payments To Be Held in Trust. If the
Company shall at any time act as its own Paying Agent for any series of
Securities, it will, on or before each due date of the principal of, premium, if
any, or interest on any of the Securities of such series and any appurtenant
coupons, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal, premium or interest so becoming
due until such sums shall be paid to such Persons or otherwise disposed of as
herein provided, and will promptly notify the Trustee of its action or failure
so to act.
Whenever the Company shall have one or more Paying Agents for any series
of Securities, it will, at or prior to the opening of business on each due date
of the principal of, premium, if any, or interest on any Securities of such
series and any appurtenant coupons, deposit with a Paying Agent a sum sufficient
to pay the principal, premium or interest so becoming due, such sum to be held
in trust for the benefit of the Persons entitled to such principal, premium or
interest, and (unless such Paying Agent is the Trustee) the Company will
promptly notify the Trustee of its action or failure so to act.
The Company will cause each Paying Agent other than the Trustee for any
series of Securities to execute and deliver to the Trustee an instrument in
which such Paying
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Agent shall agree with the Trustee subject to the provisions of this Section,
that such Paying Agent will:
(i) hold all sums held by it for the payment of principal of,
premium, if any, or interest on Securities of such series and any appurtenant
coupons in trust for the benefit of the Persons entitled thereto until such sums
shall be paid to such Persons or otherwise disposed of as herein provided;
(ii) give the Trustee notice of any default by the Company (or any
other obligor upon the Securities of such series) in the making of any payment
of principal, premium or interest on the Securities of such series or any
appurtenant coupons; and
(iii) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so held in
trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent, and, upon such payments by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of, premium, if any,
or interest on any Security of any series or any appurtenant coupons and
remaining unclaimed for two years after such principal, premium or interest has
become due and payable shall be paid to the Company on Company Request, or (if
then held by the Company) shall be discharged from such trust; and the Holder of
such Security or any coupon appertaining thereto shall thereafter, as an
unsecured general creditor, look only to the Company for payment thereof, and
all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease; provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company cause to
be published once, in an Authorized Newspaper in each Place of Payment, notice
that such money remains unclaimed and that,
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after a date specified therein, which shall not be less than 30 days from the
date of such publication, any unclaimed balance of such money then remaining
will be repaid to the Company.
SECTION 5.04. Additional Amounts. If the Securities of a series provide
for the payment of additional amounts, the Company will pay to the Holder of any
Security of any series or any coupon appertaining thereto additional amounts as
provided therein. Whenever in this Indenture there is mentioned, in any context,
the payment of the principal of (or premium, if any) or interest on, or in
respect of, any Security of any series or payment of any related coupon or the
net proceeds received on the sale or exchange of any Security of any series,
such mention shall be deemed to include mention of the payment of additional
amounts provided for in this Section to the extent that, in such context,
additional amounts are, were or would be payable in respect thereof pursuant to
the provisions of this Section and express mention of the payment of additional
amounts (if applicable) in any provisions hereof shall not be construed as
excluding additional amounts in those provisions hereof where such express
mention is not made.
If the Securities of a series provide for the payment of additional
amounts, at least 10 days prior to the first Interest Payment Date with respect
to that series of Securities (or if the Securities of that series will not bear
interest prior to Maturity, the first day on which a payment of principal (and
premium, if any) is made), and at least 10 days prior to each date of payment of
principal (and premium, if any) or interest if there has been any change with
respect to the matters set forth in the below-mentioned Officers' Certificate,
the Company will furnish the Trustee and the Company's Principal Paying Agent or
Paying Agents, if other than the Trustee, with an Officers' Certificate
instructing the Trustee and such Paying Agent or Paying Agents whether such
payment of principal of (and premium, if any) or interest on the Securities of
that series shall be made to Holders of Securities of that series or any related
coupons who are United States Aliens without withholding for or on account of
any tax, assessment or other governmental charge described in the Securities of
that series. If any such withholding shall be required, then such Officers'
Certificate shall specify by country the amount, if any, required to be withheld
on such payments to such Holders of Securities or coupons and the Company will
pay to the Trustee or such Paying Agent the additional amounts required by this
Section. The Company covenants to
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indemnify the Trustee and any Paying Agent for, and to hold them harmless
against, any loss, liability or reasonable expense incurred without negligence
or bad faith on their part arising out of or in connection with actions taken or
omitted by any of them in reliance on any Officers' Certificate furnished
pursuant to this Section.
SECTION 5.05. Statement as to Compliance. The Company will deliver to
the Trustee, within 120 days after the end of each fiscal year of the Company,
an Officers' Certificate (which need not comply with Section 1.02) (provided,
however, that one of the signatories of which shall be the Company's principal
executive officer, principal financial officer or principal accounting officer)
stating, as to each signer thereof, that:
(i) a review of the activities of the Company during such year and
of performance under this Indenture and under the terms of the Securities has
been made under his supervision; and
(ii) to the best of his knowledge, based on such review, (a) the
Company has fulfilled all its obligations and complied with all conditions and
covenants under this Indenture and under the terms of the Securities throughout
such year, or, if there has been a default in the fulfillment of any such
obligation, condition or covenant specifying each such default known to him and
the nature and status thereof, and (b) no event has occurred and is occurring
which is, or after notice or lapse of time or both would become, an Event of
Default, or if such an event has occurred and is continuing, specifying such
event known to him and the nature and status thereof.
For purposes of this Section, compliance or default shall be determined
without regard to any period of grace or requirement of notice provided for
herein.
SECTION 5.06. Maintenance of Corporate Existence, Rights and Franchises.
So long as any of the Securities shall be Outstanding, the Company will do or
cause to be done all things necessary to preserve and keep in full force and
effect its corporate existence, rights and franchises to carry on its business;
provided, however, that nothing in this Section 5.06 shall (i) require the
Company to preserve any such right or franchise if the Board of Directors shall
determine that the preservation thereof is no longer desirable in the conduct of
the business of the Company and that the loss thereof is not disadvantageous in
any material
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respect to the Holders, (ii) prevent any consolidation or merger of the Company,
or any conveyance or transfer of its property and assets substantially as an
entirety to any person, permitted by Article Ten, or (iii) prevent the
liquidation or dissolution of the Company after any conveyance or transfer of
its property and assets substantially as an entirety to any person permitted by
Article Ten.
ARTICLE SIX
Holders' Lists and Reports by Trustee and Company
SECTION 6.01. Company To Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee (i)
semiannually, not more than 10 days after each March 1 and September 1, a list,
in such form as the Trustee may reasonably require, containing all the
information in the possession or control of the Company, any of its Paying
Agents (other than the Trustee) or the Security Registrar, if other than the
Trustee, as to the names and addresses of the Holders of Securities as of such
March 1 and September 1, and (ii) at such other times as the Trustee may request
in writing, within 30 days after receipt by the Company of any such request, a
list of similar form and content as of a date not more than 15 days prior to the
time such list is requested to be furnished; provided, however, that if and so
long as the Trustee is the Security Registrar for Securities of a series, no
such list need be furnished with respect to such series of Securities.
SECTION 6.02. Preservation of Information; Communications to Holders.
(i) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders of Securities contained in the
most recent list furnished to the Trustee as provided in Section 6.01 and the
names and addresses of Holders of Securities received by the Trustee in its
capacity as the Security Registrar, if so acting. The Trustee may destroy
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any list furnished to it as provided in Section 6.01 upon receipt of a new list
so furnished.
(ii) If three or more Holders of Securities of any series
(hereinafter referred to as "applicants") apply in writing to the Trustee, and
furnish to the Trustee reasonable proof that each such applicant has owned a
Security of such series for a period of at least six months preceding the date
of such application, and such application states that the applicants desire to
communicate with other Holders of Securities of such series or with the Holders
of all Securities with respect to their rights under this Indenture or under
such Securities and is accompanied by a copy of the form of proxy or other
communication which such applicants propose to transmit, then the Trustee shall,
within five Business Days after the receipt of such application, at its
election, either:
(a) afford such applicants access to the information preserved at
the time by the Trustee in accordance with Section 6.02(i); or
(b) inform such applicants as to the approximate number of Holders
of Securities of such series or all Securities, as the case may be, whose names
and addresses appear in the information preserved at the time by the Trustee in
accordance with Section 6.02(i), and as to the approximate cost of mailing to
such Holders the form of proxy or other communication, if any, specified in such
application.
If the Trustee shall elect not to afford such applicants access to such
information, the Trustee shall, upon the written request of such applicants,
mail to each Holder of a Security of such series or all Holders of Securities,
as the case may be, whose names and addresses appear in the information
preserved at the time by the Trustee in accordance with Section 6.02(i), a copy
of the form of proxy or other communication which is specified in such request,
with reasonable promptness after a tender to the Trustee of the material to be
mailed and of payment, or provision for the payment, of the reasonable expenses
of mailing, unless, within five days after such tender, the Trustee shall mail
to such applicants and file with the Commission, together with a copy of the
material to be mailed, a written statement to the effect that, in the opinion of
the Trustee, such mailing would be contrary to the best interests of the Holders
of Securities of such series or all Securities, as the case may be, or would be
in violation of applicable law. Such written statement shall
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specify the basis of such opinion. If the Commission, after opportunity for a
hearing upon the objections specified in the written statement so filed, shall
enter an order refusing to sustain any of such objections or if, after the entry
of an order sustaining one or more of such objections, the Commission shall
find, after notice and opportunity for hearing, that all the objections so
sustained have been met and shall enter an order so declaring, the Trustee shall
mail copies of such material to all such Holders of Securities with reasonable
promptness after the entry of such order and the renewal of such tender;
otherwise, the Trustee shall be relieved of any obligation or duty to such
applicants respecting their application.
(iii) Every Holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the Trustee
shall be held accountable by reason of the disclosure of any such information as
to the names and addresses of the Holders of Securities in accordance with
Section 6.02(ii), regardless of the source from which such information was
derived, and that the Trustee shall not be held accountable by reason of mailing
any material pursuant to a request made under Section 6.02(ii).
SECTION 6.03. Reports by Trustee. (i) Within 60 days after May 15 of
each year commencing with the year 2000, the Trustee shall mail to each Holder
reports concerning the Trustee and its action under the Indenture as may be
required pursuant to Section 313(a) of the Trust Indenture Act if and to the
extent and in the manner provided pursuant thereto. The Trustee shall also
comply with the other provisions of Section 313 of the Trust Indenture Act.
(ii) Reports pursuant to this Section shall be transmitted by mail
(1) to all Holders of Registered Securities, as their names and addresses appear
in the Security Register and (2) to such Holders of Bearer Securities as have,
within the two years preceding such transmission, filed their names and
addresses with the Trustee for that purpose, and (3) except in the cases of
reports under Section 313(b)(2) of the Trust Indenture Act, to each Holder of a
Security of any series whose name and address appear in the information
preserved at the time by the Trustee in accordance with Section 6.02(i).
(iii) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each securities exchange
upon which any
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Securities are listed, and also with the Commission. The Company will notify the
Trustee when any Securities are listed on any securities exchange.
SECTION 6.04. Reports by Company. The Company will:
(i) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual reports and
of the information, documents and other reports (or copies of such portions of
any of the foregoing as the Commission may from time to time by rules and
regulations prescribe) which the Company may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the Exchange Act; or, if
the Company is not required to file information, documents or reports pursuant
to either of said Sections, then it will file with the Trustee and the
Commission, in accordance with rules and regulations prescribed from time to
time by the Commission, such of the supplementary and periodic information,
documents and reports which may be required pursuant to Section 13 of the
Exchange Act in respect of a security listed and registered on a national
securities exchange as may be prescribed from time to time in such rules and
regulations;
(ii) file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance by the
Company with the conditions and covenants of this Indenture as may be required
from time to time by such rules and regulations; and
(iii) transmit by mail to Holders of Securities, in the manner and to
the extent provided in Section 6.03(ii), within 30 days after the filing thereof
with the Trustee, such summaries of any information, documents and reports
required to be filed by the Company pursuant to paragraphs (i) and (ii) of this
Section as may be required by rules and regulations prescribed from time to time
by the Commission.
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ARTICLE SEVEN
Remedies
SECTION 7.01. Events of Default. "Event of Default", with respect to any
series of Securities, wherever used herein, means any one of the following
events (whatever the reason for such Event of Default and whether it shall be
voluntary or involuntary or be effected by operation of law or pursuant to any
judgment, decree or order of any court or any order, rule or regulation of any
administrative or governmental body), unless it is either inapplicable to a
particular series or it is specifically deleted or modified in the supplemental
indenture or Board Resolution under which such series of Securities is issued or
in the form of Security for such series:
(i) default in the payment of any interest upon any Security of that
series when it becomes due and payable, and continuance of such default for a
period of 30 days; or
(ii) default in the payment of the principal of (or premium, if any,
on) any Security of that series at its Maturity; or
(iii) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture (other than a covenant or warranty a
default in whose performance or whose breach is elsewhere in this Section
specifically dealt with or which has expressly been included in this Indenture
solely for the benefit of series of Securities other than that series), and
continuance of such default or breach for a period of 90 days after there has
been given, by registered or certified mail, to the Company by the Trustee or to
the Company and the Trustee by the Holders of at least 25% in principal amount
of the Outstanding Securities of that series a written notice specifying such
default or breach and requiring it to be remedied and stating that such notice
is a "Notice of Default" hereunder; or
(iv) the entry of a decree or order by a court having jurisdiction in
the premises granting relief in respect of the Company in an involuntary case
under the Federal Bankruptcy Code, adjudging the Company a bankrupt, or
approving as properly filed a petition seeking reorganization, arrangement,
adjustment or composition of or in respect of the Company under the Federal
Bankruptcy Code or any other applicable Federal
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or State bankruptcy, insolvency or similar law, or appointing a receiver,
liquidator, custodian, assignee, trustee, sequestrator (or other similar
official) of the Company, or of substantially all of its properties, or ordering
the winding up or liquidation of its affairs, and the continuance of any such
decree or order unstayed and in effect for a period of 60 consecutive days; or
(v) the institution by the Company of proceedings to be adjudicated
a bankrupt, or the consent of the Company to the institution of bankruptcy
proceedings against it, or the filing by the Company of a petition or answer or
consent seeking reorganization or relief under the Federal Bankruptcy Code or
any other applicable Federal or State bankruptcy, insolvency or similar law, or
the consent by the Company to the filing of any such petition or to the
appointment of a receiver, liquidator, custodian, assignee, trustee,
sequestrator (or other similar official) of the Company or of substantially all
of its properties; or
(viii) any other Event of Default provided with respect to Securities
of that series.
SECTION 7.02. Acceleration of Maturity; Rescission and Annulment. If an
Event of Default with respect to any series of Securities for which there are
Securities Outstanding occurs and is continuing, then, and in every such case,
the Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Securities of such series may declare the principal of all the
Securities of such series (or, if the Securities of that series are Original
Issue Discount Securities, such portion of the principal amount as may be
specified in the terms of that series) to be immediately due and payable, by a
notice in writing to the Company (and to the Trustee if given by Holders), and
upon any such declaration the same shall become immediately due and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of such series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences, and any
Event of Default giving rise to such declaration shall not be deemed to have
occurred, if:
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(i) the Company has paid or deposited with the Trustee a sum
sufficient to pay:
(a) all overdue installments of interest on all Securities
of such series;
(b) the principal of and premium, if any, on any Securities
of such series which have become due otherwise than by such declaration of
acceleration and interest thereon at the rate or rates prescribed therefor by
the terms of the Securities of such series;
(c) to the extent that payment of such interest is lawful,
interest upon overdue installments of interest at the rate or rates prescribed
therefor by the terms of the Securities of such series; and
(d) all sums paid or advanced by the Trustee hereunder and
the reasonable compensation, expenses, disbursements and advances of the
Trustee, the Security Registrar, any Paying Agent, and their agents and counsel
and all other amounts due the Trustee under Section 8.07; and
(ii) all Events of Default with respect to Securities of that series,
other than the nonpayment of the principal of Securities of that series which
have become due solely by such declaration of acceleration, have been cured or
waived as provided in Section 7.13.
No such recession shall affect any subsequent default or impair any
right consequent thereon.
SECTION 7.03. Collection of Indebtedness and Suits for Enforcement by
Trustee. The Company covenants that if:
(i) default is made in the payment of any installment of interest on
any Security of any series when such interest becomes due and payable and such
default continues for a period of 30 days; or
(ii) default is made in the payment of the principal of or premium,
if any, on any Security of any series at the Maturity thereof;
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holder of any such Security or coupon
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appertaining thereto, if any, the whole amount then due and payable on any such
Security or coupon for principal, premium, if any, and interest, with interest
upon the overdue principal and premium, if any, and (to the extent that payment
of such interest shall be lawful) upon overdue installments of interest, at the
rate or rates prescribed therefor by the terms of any such Security; and, in
addition thereto, such further amount as shall be sufficient to cover the
reasonable costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel and any other amounts due the Trustee under Section 8.07.
If the Company fails to pay such amounts forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, and may
prosecute such proceeding to judgment or final decree, and may enforce the same
against the Company or any other obligor upon such Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon such Securities, wherever
situated.
If an Event of Default with respect to any series of Securities occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such series by
such appropriate judicial proceedings as the Trustee shall deem most effectual
to protect and enforce any such rights, whether for the specific enforcement of
any covenant or agreement in this Indenture or in aid of the exercise of any
power granted herein, or to enforce any other proper remedy.
SECTION 7.04. Trustee May File Proofs of Claim. In case of the pendency
of any receivership, insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition or other judicial proceeding relative to
the Company or any other obligor upon the Securities or the property of the
Company or of such other obligor or their creditors, the Trustee (irrespective
of whether the principal of any Securities shall then be due and payable as
therein expressed or by declaration or otherwise and irrespective of whether the
Trustee shall have made any demand on the Company for the payment of overdue
principal, premium, if any, or interest) shall be entitled and empowered, by
intervention in such proceeding or otherwise:
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(i) to file and prove a claim for the whole amount of principal,
premium, if any, and interest owing and unpaid in respect of the Securities and
to file such other papers or documents as may be necessary or advisable in order
to have the claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel and any other amounts due the Trustee under Section 8.07) and of the
Holders allowed in such judicial proceeding; and
(ii) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any receiver, assignee, trustee, liquidator, sequestrator or other similar
official in any such judicial proceeding is hereby authorized by each Holder to
make such payments to the Trustee, and in the event that the Trustee shall
consent to the making of such payments directly to the Holders, to pay to the
Trustee any amount due to it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 8.07.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder of a Security
or coupon any plan of reorganization, arrangement, adjustment or composition
affecting the Securities or the rights of any Holder thereof, or to authorize
the Trustee to vote in respect of the claim of any Holder of a Security or
coupon in any such proceeding.
SECTION 7.05. Trustee May Enforce Claims Without Possession of
Securities. All rights of action and claims under this Indenture or under the
Securities of any series, or coupons (if any) appertaining thereto, may be
prosecuted and enforced by the Trustee without the possession of any of the
Securities of such series or coupons appertaining thereto or the production
thereof in any proceeding relating thereto, and any such proceeding instituted
by the Trustee shall be brought in its own name as trustee of an express trust,
and any recovery of judgment shall, after provision for the payment of the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel and any other amounts due the Trustee under Section 8.07,
be for the ratable benefit of the Holders of the Securities of such series and
coupons appertaining
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thereto in respect of which such judgment has been recovered.
SECTION 7.06. Application of Money Collected. Any money collected by the
Trustee with respect to a series of Securities pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee, and,
in case of the distribution of such money on account of principal, premium, if
any, or interest, upon presentation of the Securities of such series or coupons
appertaining thereto, if any, or both, as the case may be, and the notation
thereon of the payment if only partially paid and upon surrender thereof if
fully paid:
FIRST: To the payment of all amounts due the Trustee under Section 8.07;
SECOND: To the payment of the amounts then due and unpaid upon the
Securities of such series and coupons for principal, premium, if any, and
interest, in respect of which or for the benefit of which such money has been
collected, ratably, without preference or priority of any kind, according to the
amounts due and payable on Securities of such series and coupons, if any, for
principal, premium, if any, and interest, respectively. The Holders of each
series of Securities denominated in any composite currency or a Foreign Currency
and any matured coupons relating thereto shall be entitled to receive a ratable
portion of the amount determined by the Exchange Rate Agent by converting the
principal amount Outstanding of such series of Securities and matured but unpaid
interest on such series of Securities in the currency in which such series of
Securities is denominated into Dollars at the Exchange Rate as of the Business
Day immediately preceding the date of payment; and
THIRD: The balance, if any, to the Person or Persons entitled thereto.
SECTION 7.07. Limitation on Suits. No Holder of any Security of any
series or any related coupons shall have any right to institute any proceeding,
judicial or otherwise, with respect to this Indenture, or for the appointment of
a receiver or trustee, or for any other remedy hereunder, unless:
(i) such Holder has previously given written notice to the Trustee
of a continuing Event of Default with respect to Securities of such series;
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(ii) the Holders of not less than a majority in principal amount of
the Outstanding Securities of such series shall have made written request to the
Trustee to institute proceedings in respect of such Event of Default in its own
name as Trustee hereunder;
(iii) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(iv) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such proceeding; and
(v) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a majority in
principal amount of the Outstanding Securities of such series;
it being understood and intended that no one or more Holders of Securities of
such series shall have any right in any manner whatever by virtue of, or by
availing of, any provision of this Indenture to affect, disturb or prejudice the
rights of any other Holders of Securities of such series or to obtain or to seek
to obtain priority or preference over any other such Holders or to enforce any
right under this Indenture, except in the manner herein provided and for the
equal and ratable benefit of all the Holders of Securities of such series.
SECTION 7.08. Unconditional Right of Holders To Receive Principal,
Premium and Interest. Notwithstanding any other provision in this Indenture, the
Holder of any Security or coupon shall have the right, which is absolute and
unconditional, to receive payment of the principal of, premium, if any, and
(subject to Section 3.07) interest on such Security or payment of such coupon on
the respective Stated Maturities expressed in such Security or coupon (or, in
the case of redemption or repayment, on the Redemption Date or Repayment Date)
and to institute suit for the enforcement of such payment, and such rights shall
not be impaired without the consent of such Holder.
SECTION 7.09. Restoration of Rights and Remedies. If the Trustee or any
Holder of a Security or coupon has instituted any proceeding to enforce any
right or remedy under this Indenture and such proceeding has been discontinued
or abandoned for any reason, or has been determined adversely to the Trustee or
to such Holder, then
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and in every such case the Company, the Trustee and the Holders shall, subject
to any determination in such proceeding, be restored severally and respectively
to their former positions hereunder, and thereafter all rights and remedies of
the Trustee and the Holders shall continue as though no such proceeding had been
instituted.
SECTION 7.10. Rights and Remedies Cumulative. Except as otherwise
provided with respect to the replacement or payment of mutilated, lost,
destroyed or stolen Securities or coupons in the last paragraph of Section 3.06,
no right or remedy herein conferred upon or reserved to the Trustee or to the
Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
SECTION 7.11. Delay or Omission Not Waiver. No delay or omission of the
Trustee or of any Holder of any Security or coupon to exercise any right or
remedy accruing upon any Event of Default shall impair any such right or remedy
or constitute a waiver of any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article or by law to the Trustee or to the
Holders may be exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders, as the case may be.
SECTION 7.12. Control by Holders. The Holders of a majority in principal
amount of the Outstanding Securities of any series shall have the right to
direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee or exercising any trust or power conferred on the
Trustee with respect to the Securities of such series; provided that:
(i) such direction shall not be in conflict with any rule of law or
with this Indenture;
(ii) the Trustee shall not determine that the action so directed
would be unjustly prejudicial to the Holders not taking part in such direction;
(iii) subject to the provisions of Section 8.01, the Trustee shall
have the right to decline to follow any such direction if the Trustee in good
faith shall, by a
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Responsible Officer or Officers of the Trustee, determine that the proceeding so
directed would involve the Trustee in personal liability; and
(iv) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
SECTION 7.13. Waiver of Past Defaults. The Holders of a majority in
principal amount of the Outstanding Securities of any series may on behalf of
the Holders of all the Securities of such series waive any past default
hereunder and its consequences, except a default not theretofore cured:
(i) in the payment of the principal of, premium, if any, or interest
on any Security of such series; or
(ii) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of each
Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of the Securities of such series under this Indenture; but no such
waiver shall extend to any subsequent or other default or impair any right
consequent thereon.
SECTION 7.14. Undertaking for Costs. All parties to this Indenture
agree, and each Holder of any Security by his acceptance thereof shall be deemed
to have agreed, that any court may in its discretion require, in any suit for
the enforcement of any right or remedy under this Indenture, or in any suit
against the Trustee for any action taken, suffered or omitted by it as Trustee,
the filing by any party litigant in such suit of an undertaking to pay the costs
of such suit, and that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees, against any party litigant in such suit,
having due regard to the merits and good faith of the claims or defenses made by
such party litigant; but the provisions of this Section shall not apply to any
suit instituted by the Company, to any suit instituted by the Trustee, to any
suit instituted by any Holder, or group of Holders, holding in the aggregate
more than 10% in principal amount of the Outstanding Securities of any series,
or to any suit instituted by any Holder of Securities or coupons for the
enforcement of the payment of the principal of, premium, if
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any, or interest on any Security or payment of any coupon on or after the
respective Stated Maturities expressed in such Security or coupon (or, in the
case of redemption or repayment, on or after the Redemption Date or Repayment
Date).
SECTION 7.15. Waiver of Stay or Extension Laws. The Company covenants
(to the extent that it may lawfully do so) that it will not at any time insist
upon, or plead, or in any manner whatsoever claim or take the benefit or
advantage of, any stay or extension law wherever enacted, now or at any time
hereafter in force, which may affect the covenants or the performance of this
Indenture; and the Company (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law, and covenants that it
will not hinder, delay or impede the execution of any power herein granted to
the Trustee, but will suffer and permit the execution of every such power as
though no such law had been enacted.
ARTICLE EIGHT
The Trustee
SECTION 8.01. Certain Duties and Responsibilities. (i) Except during the
continuance of an Event of Default with respect to any series of Securities:
(a) the Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture with respect to
Securities of such series, and no implied covenants or obligations shall be read
into this Indenture against the Trustee with respect to such series; and
(b) in the absence of bad faith on its part, the Trustee may
conclusively rely with respect to such series, 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; but in the case of any such certificate or opinions which by any
provision hereof are specifically required to be furnished to the Trustee, the
Trustee shall be under a duty to examine the same to determine whether or not
they conform as to form to the requirements of the Indenture.
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(ii) In case an Event of Default with respect to any series of
Securities has occurred and is continuing, the Trustee shall exercise such of
the rights and powers vested in it by this Indenture with respect to such
series, and use the same degree of care and skill in their exercise, as a
prudent person would exercise or use under the circumstances in the conduct of
his or her own affairs.
(iii) 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:
(a) this Subsection shall not be construed to limit the effect of
Subsection (i) of this Section;
(b) the Trustee shall not be liable for any error or judgment made
in good faith by a Responsible Officer, unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent facts;
(c) the Trustee shall not be liable with respect to any action
taken, suffered or omitted to be taken by it in good faith in accordance with
the direction of the Holders of a majority in principal amount of the
Outstanding Securities of any series relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred upon the Trustee, under this Indenture with respect
to Securities of such series; and
(d) no provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any of its
rights or powers, if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
(iv) Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this
Section.
SECTION 8.02. Notice of Default. Within 90 days after the occurrence of
any default hereunder with respect to Securities of any series, the Trustee
shall transmit by mail to all Holders of Securities of such series entitled to
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receive reports pursuant to Section 6.03(ii) notice of such default hereunder
known to the Trustee, unless such default shall have been cured or waived;
provided, however, that, except in the case of a default in the payment of the
principal of, premium, if any, or interest on any Security of such series, or
any related coupons or in the payment of any sinking fund installment with
respect to Securities of such series the Trustee shall be protected in
withholding such notice if and so long as the board of directors, the executive
committee or a trust committee of directors and/or Responsible Officers of the
Trustee in good faith determines that the withholding of such notice is in the
interests of the Holders of Securities of such series; and provided further,
that, in the case of any default of the character specified in Section 7.01(iii)
with respect to Securities of such series, no such notice to Holders of
Securities of such series shall be given until at least 90 days after the
occurrence thereof. For the purpose of this Section, the term "default", with
respect to Securities of any series, means any event which is, or after notice
or lapse of time, or both, would become, an Event of Default with respect to
Securities of such series.
SECTION 8.03. Certain Rights of Trustee. Except as otherwise provided in
Section 8.01:
(i) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, note or other
paper or document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(ii) any request or direction of the Company mentioned herein shall
be sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors may be sufficiently evidenced by a Board
Resolution;
(iii) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
be herein specifically prescribed) may, in the absence of bad faith on its part,
rely upon an Officers' Certificate;
(iv) the Trustee may consult with counsel and the advice of such
counsel or any Opinion of Counsel shall
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be full and complete authorization and protection in respect of any action
taken, suffered or omitted by it hereunder in good faith and in reliance
thereon;
(v) 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;
(vi) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
security or other paper or document, but the Trustee, in its discretion, may
make further inquiry or investigation into such facts or matters as it may see
fit, and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and premises
of the Company, personally or by agent or attorney and, if so requested to do so
by any of the Holders, at the sole cost and expense of the Holders;
(vii) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder;
(viii) the Trustee shall not be charged with knowledge of any default
(as defined in Section 8.02) or Event of Default unless either (1) a Responsible
Officer of the Trustee shall have actual knowledge of such default or Event of
Default or (2) written notice of such default or Event of Default shall have
been given to the Trustee by the Company or any Holder;
(ix) the Trustee shall not be liable for any action taken, suffered
or omitted by it in good faith and reasonably believed by it to be authorized or
within the discretion or rights or powers conferred upon it by this Indenture;
and
(x) in the event that the Trustee is also acting as Paying Agent,
Authenticating Agent or Security
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Registrar hereunder, the rights and protections afforded to the Trustee pursuant
to this Article Eight shall also be afforded to such Paying Agent,
Authenticating Agent or Security Registrar.
SECTION 8.04. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the Trustee's
certificates of authentication, shall be taken as the statements of the Company,
and neither the Trustee nor any Authenticating Agent assumes responsibility for
their correctness. The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Securities. The Trustee shall not be
accountable for the use or application by the Company of Securities or the
proceeds thereof.
SECTION 8.05. May Hold Securities. The Trustee, any Authenticating
Agent, any Paying Agent, the Security Registrar or any other agent of the
Company, in its individual or any other capacity, may become the owner or
pledgee of Securities and, subject to Sections 8.08 and 8.13, may otherwise deal
with the Company with the same rights it would have if it were not Trustee,
Authenticating Agent, Paying Agent, Security Registrar or such other agent.
SECTION 8.06. Money Held in Trust. Money held by the Trustee in trust
hereunder need not be segregated from other funds except to the extent required
by law. The Trustee shall be under no liability for interest on any money
received by it hereunder except as otherwise agreed in writing with the Company.
SECTION 8.07. Compensation and Reimbursement. The Company agrees:
(i) to pay to the Trustee from time to time reasonable compensation for
all services rendered by it hereunder (which compensation shall not be limited
by any provision of law in regard to the compensation of a trustee of an express
trust);
(ii) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and advances
incurred or made by the Trustee in accordance with any provision of this
Indenture (including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense, disbursement
or advance as may be attributable to its negligence or bad faith; and
<PAGE> 72
73
(iii) to indemnify the Trustee for, and to hold it harmless against,
any loss, liability or expense incurred without negligence or bad faith on its
part, arising out of or in connection with the acceptance or administration of
this trust, including the costs and expenses of defending itself against any
claim or liability in connection with the exercise or performance of any of its
powers or duties hereunder.
As security for the performance of the obligations of the Company under
this Section the Trustee shall have a lien prior to the Securities upon all
property and funds held or collected by the Trustee as such, except funds held
in trust for the payment of principal of, premium, if any, or interest on
particular Securities.
Without prejudice to any other rights available to the Trustee under
applicable law, when the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 7.01(iv) or (v), the
expenses (including the reasonable fees and expenses of its counsel) and the
compensation for the services are intended to constitute expenses of
administration under any applicable bankruptcy, insolvency or other similar law.
The obligations of the Company set forth in this Section 8.07 and any
lien arising hereunder shall survive the resignation or removal of any Trustee,
the discharge of the Company's obligations pursuant to Article Eleven of this
Indenture and the termination of this Indenture and the repayment of the
Securities whether at the Stated Maturity or otherwise.
SECTION 8.08. Disqualification; Conflicting Interests. If the Trustee
has or shall acquire a conflicting interest within the meaning of Section 310 of
the Trust Indenture Act, the Trustee shall either eliminate such conflicting
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture. To the extent
permitted by the Trust Indenture Act, the Trustee shall not be deemed to have a
conflicting interest with respect to the Securities of any series by virtue of
being Trustee with respect to the Securities of any particular series of
Securities other than that series.
SECTION 8.09. Corporate Trustee Required; Eligibility. There shall at
all times be a Trustee with respect to each series of Securities hereunder which
shall be a corporation organized and doing business under the laws
<PAGE> 73
74
of the United States of America, any State thereof or the District of Columbia,
authorized under such laws to exercise corporate trust powers, having a combined
capital and surplus of at least $5,000,000, subject to supervision or
examination by Federal or State authority; provided, however, that if Section
310(a) of the Trust Indenture Act or the rules and regulations of the Commission
under the Trust Indenture Act at any time permit a corporation organized and
doing business under the laws of any other jurisdiction to serve as trustee of
an indenture qualified under the Trust Indenture Act, this Section 8.09 shall be
automatically deemed amended to permit a corporation organized and doing
business under the laws of any such jurisdiction to serve as Trustee hereunder.
If such corporation publishes reports of condition at least annually, pursuant
to law or to the requirements of the aforesaid supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published.
Neither the Company nor any person directly or indirectly controlling,
controlled by or under common control with the Company may serve as Trustee. If
at any time the Trustee with respect to any series of Securities shall cease to
be eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article.
SECTION 8.10. Resignation and Removal; Appointment of Successor. (i) No
resignation or removal of the Trustee and no appointment of a successor Trustee
pursuant to this Article shall become effective until the acceptance of
appointment by the successor Trustee under Section 8.11.
(ii) The Trustee may resign with respect to any series of Securities
at any time by giving written notice thereof to the Company. If an instrument of
acceptance by a successor Trustee shall not have been delivered to the resigning
Trustee within 30 days after the giving of such notice of resignation, the
resigning Trustee may petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to Securities of such series.
(iii) The Trustee may be removed with respect to any series of
Securities at any time by Act of the Holders of a majority in principal amount
of the Outstanding Securities of such series, delivered to the Trustee and to
the Company.
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(iv) If at any time:
(a) the Trustee shall fail to comply with Section 8.08 with respect
to any series of Securities after written request therefor by the Company or by
any Holder who has been a bona fide Holder of a Security of such series for at
least six months; or
(b) the Trustee shall cease to be eligible under Section 8.09 with
respect to any series of Securities and shall fail to resign after written
request therefor by the Company or by any Holder of Securities of such series;
or
(c) the Trustee shall become incapable of acting with respect to any
series of Securities or shall be adjudged a bankrupt or insolvent or a receiver
of the Trustee or of its property shall be appointed or any public officer shall
take charge or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation;
then, in any such case, (1) the Company by a Board Resolution may remove the
Trustee with respect to such series, or (2) subject to Section 7.14, any Holder
who has been a bona fide Holder of a Security of such series for at least six
months may, on behalf of himself and all others similarly situated, petition any
court of competent jurisdiction for the removal of the Trustee and the
appointment of a successor Trustee with respect to such series.
(v) If the Trustee shall resign, be removed or become incapable of
acting with respect to any series of Securities, or if a vacancy shall occur in
the office of Trustee with respect to any series of Securities for any cause,
the Company, by a Board Resolution, shall promptly appoint a successor Trustee
or Trustees with respect to the Securities of that or those series (it being
understood that any such successor Trustee may be appointed with respect to the
Securities of one or more or all of such series and that at any time there shall
be only one Trustee with respect to the Securities of any particular series) and
shall comply with the applicable requirements of Section 8.11. If, within one
year after such resignation, removal or incapability, or the occurrence of such
vacancy, a successor Trustee with respect to such series of Securities shall be
appointed by the Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring
Trustee
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with respect to such series, the successor Trustee so appointed shall, forthwith
upon its acceptance of such appointment, become the successor Trustee with
respect to such series and to that extent supersede the successor Trustee
appointed by the Company with respect to such series. If no successor Trustee
with respect to such series shall have been so appointed by the Company or the
Holders of Securities of such series and accepted appointment in the manner
hereinafter provided, any Holder who has been a bona fide Holder of a Security
of such series for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to such series.
(vi) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series and each
appointment of a successor Trustee with respect to the Securities of any series
by mailing written notice of such event by first-class mail, postage prepaid, to
the Holders of Registered Securities of such series as their names and addresses
appear in the Security Register and, if Securities of such series are issuable
as Bearer Securities, by publishing notice of such event once in an Authorized
Newspaper in each Place of Payment for the Securities of such series located
outside the United States. Each notice shall include the name of the successor
Trustee with respect to the Securities of such series and the address of its
Principal Corporate Trust Office.
SECTION 8.11. Acceptance of Appointment by Successor. (i) In the case of
the appointment hereunder of a successor Trustee with respect to any series of
Securities, every such successor Trustee so appointed shall execute, acknowledge
and deliver to the Company and to the retiring Trustee an instrument accepting
such appointment, and thereupon the resignation or removal of the retiring
Trustee shall become effective with respect to all or any series as to which it
is resigning as Trustee, and such successor Trustee, without any further act,
deed or conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee with respect to all or any such series; but, on
request of the Company or such successor Trustee, such retiring Trustee shall
upon payment of its charges, execute and deliver an instrument transferring to
such successor Trustee all the rights, powers and trusts of such retiring
Trustee with respect to all or any such series; and shall duly assign, transfer
and deliver to such successor Trustee all property and money
<PAGE> 76
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held by such retiring Trustee hereunder with respect to all or any such series,
subject nevertheless to its lien, if any, provided for in Section 8.07.
(ii) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (a) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates, (b)
if the retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee, and
(c) shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein or
in such supplemental indenture shall constitute such Trustees co-trustees of the
same trust and that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee; and upon the execution and delivery of such supplemental
indenture the resignation or removal of the retiring Trustee shall become
effective to the extent provided therein and each such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates; but, on request of the Company or any successor Trustee, such
retiring Trustee shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder with
respect to the Securities of that or those series to which the appointment of
such successor Trustee relates, subject nevertheless to its lien, if any,
provided for in Section 8.07.
(iii) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more
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fully and certainly vesting in and confirming to such successor Trustee all such
rights, powers and trusts referred to in paragraph (i) or (ii) of this Section,
as the case may be.
(iv) No successor Trustee with respect to a series of Securities
shall accept its appointment unless at the time of such acceptance such
successor Trustee shall be qualified and eligible with respect to such series
under this Article.
SECTION 8.12. Merger, Conversion, Consolidation or Succession to
Business of Trustee. Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to all or substantially all of the
corporate trust business of the Trustee, shall be the successor of the Trustee
hereunder; provided that such corporation shall be otherwise qualified and
eligible under this Article, without the execution or filing of any paper or any
further act on the part of any of the parties hereto. In case any Securities
shall have been authenticated, but not delivered, by the Trustee then in office,
any successor by merger, conversion or consolidation to such authenticating
Trustee may adopt such authentication and deliver the Securities so
authenticated with the same effect as if such successor Trustee had itself
authenticated such Securities.
SECTION 8.13. Preferential Collection of Claims Against Company. If and
when the Trustee shall be or become a creditor of the Company (or any other
obligor upon the Securities), the Trustee shall be subject to the provisions of
Section 311 of the Trust Indenture Act regarding the collection of any claims as
a creditor against the Company (or any such other obligor). A Trustee that has
resigned or been removed shall be subject to and comply with said Section 311 to
the extent required thereby.
SECTION 8.14. Appointment of Authenticating Agents. The Trustee may
appoint an Authenticating Agent or Agents, which may include any Affiliate of
the Company, with respect to one or more series of Securities. Such
Authenticating Agent or Agents at the option of the Trustee shall be authorized
to act on behalf of the Trustee to authenticate Securities of such series issued
upon original issuance, exchange, registration of transfer or partial redemption
thereof or pursuant to Section 3.06, and Securities so authenticated shall be
entitled to the
<PAGE> 78
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benefits of this Indenture and shall be valid and obligatory for all purposes as
if authenticated by the Trustee hereunder. Whenever reference is made in this
Indenture to the authentication and delivery of Securities by the Trustee or the
Trustee's certificate of authentication or the delivery of Securities to the
Trustee for authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an Authenticating Agent,
a certificate of authentication executed on behalf of the Trustee by an
Authenticating Agent and delivery of Securities to the Authenticating Agent on
behalf of the Trustee. Each Authenticating Agent shall be acceptable to the
Company and shall at all times be a corporation organized and doing business
under the laws of the United States of America, any State thereof or the
District of Columbia, authorized under such laws to act as Authenticating Agent,
having a combined capital and surplus of not less than $5,000,000 and subject to
supervision or examination by Federal or State authority. Notwithstanding the
foregoing, an Authenticating Agent located outside the United States may be
appointed by the Trustee if previously approved in writing by the Company and if
such Authenticating Agent meets the minimum capitalization requirements of this
Section 8.14. If such Authenticating Agent publishes reports of condition at
least annually, pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this Section, the combined capital
and surplus of such Authenticating Agent shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time an Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, such Authenticating Agent shall
resign immediately in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent; provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the
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80
Company. The Trustee may at any time (and upon request by the Company shall)
terminate the agency of an Authenticating Agent by giving written notice thereof
to such Authenticating Agent and to the Company. Upon receiving such a notice of
resignation or upon such termination, or in case at any time such Authenticating
Agent shall cease to be eligible in accordance with the provisions of this
Section, the Trustee may appoint a successor Authenticating Agent which shall be
acceptable to the Company. Any successor Authenticating Agent upon acceptance of
its appointment hereunder shall become vested with all the rights, powers and
duties of its predecessor hereunder, with like effect as if originally named as
an Authenticating Agent. No successor Authenticating Agent shall be appointed
unless eligible under the provisions of this Section.
If an appointment with respect to one or more series is made pursuant to
this Section, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternate
certificate of authentication in the following form:
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
[____________________], as Trustee,
by ___________________________
as Authenticating Agent
by ___________________________
Authorized Signatory
ARTICLE NINE
Supplemental Indentures
SECTION 9.01. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holder of any Securities or coupons, the Company,
when authorized by a Board Resolution, and the Trustee, at any time and from
time to time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
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81
(i) to evidence the succession of another corporation or Person to
the Company, and the assumption by any such successor of the covenants of the
Company herein and in the Securities contained; or
(ii) to evidence and provide for the acceptance of appointment by
another corporation as a successor Trustee hereunder with respect to one or more
series of Securities and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the administration
of the trusts hereunder by more than one Trustee, pursuant to Section 8.11; or
(iii) to add to the covenants of the Company, for the benefit of the
Holders of Securities of all or any series of Securities or coupons (and if such
covenants are to be for the benefit of less than all series of Securities or
coupons, stating that such covenants are expressly being included solely for the
benefit of such series), or to surrender any right or power herein conferred
upon the Company; or
(iv) to cure any ambiguity, to correct or supplement any provision
herein which may be inconsistent with any other provision herein, or to make any
other provisions with respect to matters or questions arising under the
Indenture; provided that such action shall not adversely affect the interests of
the Holders of Securities of any series or any related coupons in any material
respect; or
(v) to add any additional Events of Default with respect to all or
any series of the Securities (and, if such Event of Default is applicable to
less than all series of Securities, specifying the series to which such Event of
Default is applicable); or
(vi) to add to, change or eliminate any of the provisions of this
Indenture to provide that Bearer Securities may be registrable as to principal,
to change or eliminate any restrictions on the payment of principal of (or
premium, if any) or any interest on Bearer Securities, to permit Bearer
Securities to be issued in exchange for Registered Securities, to permit Bearer
Securities to be issued in exchange for Bearer Securities of other authorized
denominations or to permit or facilitate the issuance of Securities in
uncertificated form; provided any such action shall not adversely affect the
interests of the Holders of
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Securities of any series or any related coupons in any material respect; or
(vii) to add to, change or eliminate any of the provisions of this
Indenture; provided that any such addition, change or elimination (a) shall
become effective only when there is no Security Outstanding of any series
created prior to the execution of such supplemental indenture which is adversely
affected by such change in or elimination of such provision or (b) shall not
apply to any Securities Outstanding; or
(viii) to establish the form or terms of Securities of any series as
permitted by Sections 2.02 and 3.01; or
(ix) to add to or change any provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the issuance of Securities
convertible into other securities; or
(x) to evidence any changes to Section 8.09 as permitted by the
terms thereof; or
(xi) to add to or change or eliminate any provision of this Indenture
as shall be necessary or desirable in accordance with any amendments to the
Trust Indenture Act; provided such action shall not adversely affect the
interest of Holders of Securities of any series or any appurtenant coupons in
any material respect.
SECTION 9.02. Supplemental Indentures With Consent of Holders. With the
consent of the Holders of not less than a majority in aggregate principal amount
of the Outstanding Securities of all series affected by such supplemental
indenture or indentures (acting as one class), by Act of said Holders delivered
to the Company and the Trustee, the Company, when authorized by a Board
Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders of Securities of each such
series and any related coupons under this Indenture; provided, however, that no
such supplemental indenture shall, without the consent of the Holder of each
Outstanding Security affected thereby:
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(i) change the Maturity of the principal of, or the Stated Maturity
of any installment of interest (or premium, if any) on, any Security, or reduce
the principal amount thereof or any premium thereon or the rate of interest
thereon, or change the obligation of the Company to pay additional amounts
pursuant to Section 5.04 (except as contemplated by Section 10.01(i) and
permitted by Section 9.01), or reduce the amount of the principal of an Original
Issue Discount Security that would be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 7.02, or change the
method of calculating interest thereon or the coin or currency in which any
Security (or premium, if any, thereon) or the interest thereon is payable, or
reduce the minimum rate of interest thereon, or impair the right to institute
suit for the enforcement of any such payment on or after the Stated Maturity
thereof (or, in the case of redemption or repayment, on or after the Redemption
Date or Repayment Date);
(ii) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any such
supplemental indenture or the consent of whose Holders is required for any
waiver of certain defaults hereunder and their consequences) provided for in
this Indenture or reduce the requirements of Section 15.04 for a quorum;
(iii) change any obligation of the Company to maintain an office or
agency in the places and for the purposes specified in Section 5.02; or
(iv) modify any of the provisions of this Section or Section 7.13,
except to increase any such percentage or to provide that certain other
provisions of this Indenture cannot be modified or waived.
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included solely for
the benefit of one or more particular series of Securities, or which modifies
the rights of the Holders of Securities of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any
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proposed supplemental indenture, but it shall be sufficient if such Act shall
approve the substance thereof.
SECTION 9.03. Execution of Supplemental Indentures. In executing, or
accepting the additional trusts created by, any supplemental indenture permitted
by this Article or the modifications thereby of the trusts created by this
Indenture, the Trustee shall be entitled to receive, and (subject to Section
8.01) shall be fully protected in relying upon, an Opinion of Counsel stating
that the execution of such supplemental indenture is authorized or permitted by
and complies with this Indenture. The Trustee may, but shall not be obligated
to, enter into any such supplemental indenture which affects the Trustee's own
rights, liabilities, duties or immunities under this Indenture or otherwise.
SECTION 9.04. Effect of Supplemental Indentures. Upon the execution of
any supplemental indenture under this Article, this Indenture shall be modified
in accordance therewith, and such supplemental indenture shall form a part of
this Indenture for all purposes; and every Holder of Securities theretofore or
thereafter authenticated and delivered hereunder shall be bound thereby.
SECTION 9.05. Conformity with Trust Indenture Act. Every supplemental
indenture executed pursuant to this Article shall conform to the requirements of
the TIA as then in effect.
SECTION 9.06. Reference in Securities to Supplemental Indentures.
Securities authenticated and delivered after the execution of any supplemental
indenture pursuant to this Article may, and shall, if required by the Trustee,
bear a notation in form approved by the Trustee as to any matter provided for in
such supplemental indenture. If the Company shall so determine, new Securities
so modified as to conform, in the opinion of the Trustee and the Company, to any
such supplemental indenture may be prepared and executed by the Company and
authenticated and delivered by the Trustee in exchange for Outstanding
Securities.
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ARTICLE TEN
Consolidation, Merger, Conveyance or Transfer
SECTION 10.01. Company May Consolidate, etc., Only on Certain Terms. The
Company shall not consolidate with or merge into any other corporation or convey
or transfer its properties and assets substantially as an entirety to any
Person, unless:
(i) the Person formed by such consolidation or into which the
Company is merged or the Person which acquires by conveyance or transfer the
properties and assets of the Company substantially as an entirety shall
expressly assume, by an indenture supplemental hereto, executed and delivered to
the Trustee, in form satisfactory to the Trustee, the due and punctual payment
of the principal of, premium, if any, and interest (including all additional
amounts, if any, payable pursuant to Section 5.04) on all the Securities and the
performance of every covenant of this Indenture on the part of the Company to be
performed or observed;
(ii) immediately after giving effect to such transaction, no Event of
Default, and no event which, after notice or lapse of time, or both, would
become an Event of Default, shall have happened and be continuing; and
(iii) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel each stating that such consolidation,
merger, conveyance or transfer and such supplemental indenture comply with this
Article and that all conditions precedent herein provided for relating to such
transaction have been complied with.
SECTION 10.02. Successor Corporation Substituted. Upon any consolidation
or merger, or any conveyance or transfer of the properties and assets of the
Company substantially as an entirety in accordance with Section 10.01, the
successor Person formed by such consolidation or into which the Company is
merged or to which such conveyance or transfer is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Company under
this Indenture with the same effect as if such successor Person had been named
as the Company herein. In the event of any such conveyance or transfer, the
Company as the predecessor corporation shall be relieved of all obligations and
covenants under this
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Indenture and may be dissolved, wound up and liquidated at any time thereafter.
ARTICLE ELEVEN
Satisfaction and Discharge
SECTION 11.01. Satisfaction and Discharge of Indenture. This Indenture
shall cease to be of further effect (except as to any surviving rights of
registration of transfer or exchange of Securities herein expressly provided for
and rights to receive payments thereon and any right to receive additional
amounts, as provided in Section 5.04), and the Trustee, on receipt of a Company
Request and at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture, when:
(i) either:
(a) all Securities theretofore authenticated and delivered
(other than (1) coupons appertaining to Bearer Securities surrendered for
exchange for Registered Securities and maturing after such exchange, whose
surrender is not required or has not been waived as provided in Section 3.05,
(2) coupons appertaining to Bearer Securities called for redemption and maturing
after the relevant Redemption Date, whose surrender has been waived as provided
in Section 4.06, (3) coupons appertaining to Bearer Securities surrendered for
repayment pursuant to Section 15.03 and maturing after the Repayment Date, whose
surrender has been waived as provided in Section 15.03, (4) Securities and
coupons which have been destroyed, lost or stolen and which have been replaced
or paid as provided in Section 3.06, and (5) Securities for whose payment money
has theretofore been deposited in trust or segregated and held in trust by the
Company and thereafter repaid to the Company or discharged from such trust, as
provided in Section 5.03) have been delivered to the Trustee for cancellation;
or
(b) all such Securities not theretofore delivered to the
Trustee for cancellation:
(1) have become due and payable, or
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(2) will become due and payable at their Maturity
within one year, or
(3) are to be called for redemption within one year
under arrangements satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the Company,
and the Company, in the case of (b) (1), (2) or (3) above, has deposited or
caused to be deposited with the Trustee, as trust funds in trust for the
purpose, an amount sufficient to pay and discharge the entire indebtedness on
such Securities and coupons not theretofore delivered to the Trustee for
cancellation, for principal, premium, if any, and interest to the date of such
deposit (in the case of Securities which have become due and payable), or to the
Maturity or Redemption Date, as the case may be;
(ii) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(iii) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel each stating that all conditions precedent
herein provided for relating to the satisfaction and discharge of this Indenture
have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 8.07 and, if money shall
have been deposited with the Trustee pursuant to subclause (b) of clause (i) of
this Section, the obligations of the Trustee under Section 11.02 and the last
paragraph of Section 5.03 shall survive.
SECTION 11.02. Application of Trust Money. Subject to the provisions of
the last paragraph of Section 5.03, all money deposited with the Trustee
pursuant to Section 11.01 shall be held in trust and applied by it, in
accordance with the provisions of the Securities, the coupons, if any, and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent), as the Trustee may
determine, to the Persons entitled thereto, of the principal, premium, if any,
and interest for whose payment such money has been deposited with the Trustee;
but such money need not be segregated from other funds except to the extent
required by law.
<PAGE> 87
88
SECTION 11.03. Reinstatement. If the Trustee or any Paying Agent is
unable to apply any money in accordance with Section 11.02 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
Section 11.01 until such time as the Trustee or any Paying Agent is permitted to
apply all such money in accordance with Section 11.02.
ARTICLE TWELVE
Immunity of Incorporators, Stockholders, Officers and Directors
SECTION 12.01. Exemption from Individual Liability. No recourse under or
upon any obligation, covenant or agreement of this Indenture, or of any Security
or coupon, or for any claim based thereon or otherwise in respect thereof, shall
be had against any incorporator, stockholder, officer or director, as such,
past, present or future, of the Company or of any successor corporation, either
directly or through the Company, whether by virtue of any constitution, statute
or rule of law, or by the enforcement of any assessment or penalty or otherwise;
it being expressly understood that this Indenture and the obligations issued
hereunder are solely corporate obligations of the Company, and that no such
personal liability whatever shall attach to, or is or shall be incurred by, the
incorporators, stockholders, officers or directors, as such, of the Company or
of any successor corporation, or any of them, because of the creation of the
indebtedness hereby authorized, or under or by reason of the obligations,
covenants or agreements contained in this Indenture or in any of the Securities
or coupons or implied therefrom; and that any and all such personal liability,
either at common law or in equity or by constitution or statute, of, and any and
all such rights and claims against, every such incorporator, stockholder,
officer or director, as such, because of the creation of the indebtedness hereby
authorized, or under or by reason of the obligations, covenants or agreements
contained in this Indenture or in any of the Securities or coupons or implied
therefrom, are hereby expressly waived and released as a condition of, and as a
consideration for, the execution of this Indenture and the issuance of the
Securities.
<PAGE> 88
89
ARTICLE THIRTEEN
Sinking Funds
SECTION 13.01. Applicability of Article. The provisions of this Article
shall be applicable to any sinking fund for the retirement of Securities of a
series except as otherwise specified as contemplated by Section 3.01 for
Securities of such series.
The minimum amount of any sinking fund payment provided for by the terms
of Securities of any series is herein referred to as a "mandatory sinking fund
payment", and any payment in excess of such minimum amount provided for by the
terms of Securities of any series is herein referred to as an "optional sinking
fund payment". If provided for by the terms of Securities of any series, the
cash amount of any sinking fund payment may be subject to reduction as provided
in Section 13.02. Each sinking fund payment shall be applied to the redemption
of Securities of any series as provided for by the terms of Securities of such
series.
SECTION 13.02. Satisfaction of Sinking Fund Payments with Securities.
The Company (i) may deliver Outstanding Securities of a series (other than any
previously called for redemption), together in the case of any Bearer Securities
of such series with all unmatured coupons appertaining thereto and (ii) may
apply as a credit Securities of a series which have been redeemed either at the
election of the Company pursuant to the terms of such Securities or through the
application of permitted optional sinking fund payments pursuant to the terms of
such Securities, in each case in satisfaction of all or any part of any sinking
fund payment with respect to the Securities of such series required to be made
pursuant to the terms of such Securities as provided for by the terms of such
series; provided that such Securities have not been previously so credited. Such
Securities shall be received and credited for such purpose by the Trustee at the
Redemption Price specified in such Securities for redemption through operation
of the sinking fund and the amount of such sinking fund payment shall be reduced
accordingly.
SECTION 13.03. Redemption of Securities for Sinking Fund. Not less than
60 days prior to each sinking fund payment date for any series of Securities,
the Company will deliver to the Trustee and the Security Registrar an Officers'
Certificate specifying (i) the amount of the next ensuing sinking fund payment
for that series pursuant to the
<PAGE> 89
90
terms of that series, (ii) the portion thereof, if any, which is to be satisfied
by payment of cash and the portion thereof, if any, which is to be satisfied by
delivering and crediting Securities of that series pursuant to Section 13.02,
and (iii) that none of such Securities has theretofore been so credited and
stating the basis for such credit, and will also deliver to the Trustee any
Securities to be so delivered. Not less than 30 days before each sinking fund
payment date the Security Registrar shall select the Securities to be redeemed
upon such sinking fund payment date in the manner specified in Section 4.03 and
cause notice of the redemption thereof to be given in the name of and at the
expense of the Company in the manner provided in Section 4.04. Such notice
having been duly given, the redemption of such Securities shall be made upon the
terms and in the manner stated in Sections 4.06 and 4.07 and shall be subject to
Section 4.08.
ARTICLE FOURTEEN
Repayment at the Option of Holders
SECTION 14.01. Applicability of Article. Securities of any series which
are repayable at the option of the Holders thereof before their Stated Maturity
shall be repaid in accordance with their terms and (except as otherwise
specified pursuant to Section 3.01 for Securities of such series) in accordance
with this Article.
SECTION 14.02. Repayment of Securities. Each Security which is subject
to repayment in whole or in part at the option of the Holder thereof on a
Repayment Date shall be repaid at the applicable Repayment Price together with
interest accrued to such Repayment Date as specified pursuant to Section 3.01.
SECTION 14.03. Exercise of Option, Notice. Each Holder desiring to
exercise such Holder's option for repayment shall, as conditions to such
repayment, surrender the Security to be repaid in whole or in part together with
written notice of the exercise of such option at any office or agency of the
Company in a Place of Payment, not less than 30 nor more than 45 days prior to
the Repayment Date; provided, however, that surrender of Bearer Securities
together with written notice of exercise of such option shall be made at an
office or agency located outside the United States except as otherwise provided
in Section 5.02. Such notice, which shall be irrevocable, shall specify the
principal amount of such Security to be repaid, which shall
<PAGE> 90
91
be equal to the minimum authorized denomination for such Security or an integral
multiple thereof, and shall identify the Security to be repaid and, in the case
of a partial repayment of the Security, shall specify the denomination or
denominations of the Security or Securities of the same series to be issued to
the Holder for the portion of the principal of the Security surrendered which is
not to be repaid.
If any Bearer Security surrendered for repayment shall not be
accompanied by all unmatured coupons and all matured coupons in default, such
Bearer Security may be paid after deducting from the Repayment Price an amount
equal to the face amount of all such missing coupons, or the surrender of such
missing coupon or coupons may be waived by the Company and the Trustee if there
be furnished to them such security or indemnity as they may require to save each
of them and any Paying Agent harmless. If thereafter the Holder of such Bearer
Security shall surrender to the Trustee or any Paying Agent any such missing
coupon in respect of which a deduction shall have been made from the Repayment
Price, such Holder shall be entitled to receive the amount so deducted without
interest thereon; provided, however, that interest represented by coupons shall
be payable only at an office or agency located outside the United States except
as otherwise provided in Section 5.02.
The Company shall execute and the Trustee shall authenticate and deliver
without service charge to the Holder of any Registered Security so surrendered a
new Registered Security or Securities of the same series and tenor, of any
authorized denomination specified in the foregoing notice, in an aggregate
principal amount equal to any portion of the principal of the Registered
Security so surrendered which is not to be repaid.
The Company shall execute and the Trustee shall authenticate and deliver
without service charge to the Holder of any Bearer Security so surrendered a new
Registered Security or Securities or new Bearer Security or Securities (and all
appurtenant unmatured coupons and matured coupons in default) or any combination
thereof of the same series and tenor of any authorized denomination or
denominations specified in the foregoing notice, in an aggregate principal
amount equal to any portion of the principal of the Security so surrendered
which is not to be repaid; provided, however, that the issuance of a Registered
Security therefor shall be subject to applicable laws and regulations, including
provisions of the United States Federal income tax laws and regulations in
effect at the
<PAGE> 91
92
time of the exchange; neither the Company, the Trustee nor the Security
Registrar shall issue Registered Securities for Bearer Securities if it has
received an Opinion of Counsel that as a result of such issuance the Company
would suffer adverse consequences under the United States Federal income tax
laws then in effect and the Company has delivered to the Trustee a Company Order
directing the Trustee not to make such issuances thereafter unless and until the
Trustee receives a subsequent Company Order to the contrary. The Company shall
deliver copies of such Company Order to the Security Registrar.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the repayment of Securities shall relate,
in the case of any Security repaid or to be repaid only in part, to the portion
of the principal of such Security which has been or is to be repaid.
SECTION 14.04. Election of Repayment by Remarketing Entities. The
Company may elect, with respect to Securities of any series which are repayable
at the option of the Holders thereof before their Stated Maturity, at any time
prior to any Repayment Date to designate one or more Remarketing Entities to
purchase, at a price equal to the Repayment Price, Securities of such series
from the Holders thereof who give notice and surrender their Securities in
accordance with Section 14.03.
SECTION 14.05. Securities Payable on the Repayment Date. Notice of
exercise of the option of repayment having been given and the Securities so to
be repaid having been surrendered as aforesaid, such Securities shall, unless
purchased in accordance with Section 14.04, on the Repayment Date become due and
payable at the price therein specified and from and after the Repayment Date
such Securities shall cease to bear interest and shall be paid on the Repayment
Date, and the coupons for such interest appertaining to Bearer Securities so to
be repaid, except to the extent provided above, shall be void, unless the
Company shall default in the payment of such price, in which case the Company
shall continue to be obligated for the principal amount of such Securities and
shall be obligated to pay interest on such principal amount at the rate
prescribed therefor by such Securities from time to time until payment in full
of such principal amount.
<PAGE> 92
93
ARTICLE FIFTEEN
Meetings of Holders of Securities
SECTION 15.01. Purposes for Which Meetings May Be Called. If Securities
of a series are issuable in whole or in part as Bearer Securities, a meeting of
Holders of Securities of such series may be called at any time and from time to
time pursuant to this Article to make, give or take any request, demand,
authorization, direction, notice, consent, waiver or other Act provided by this
Indenture to be made, given or taken by Holders of Securities of such series.
SECTION 15.02. Call, Notice and Place of Meetings. (i) The Trustee may
at any time call a meeting of Holders of Securities of any series issuable in
whole or in part as Bearer Securities for any purpose specified in Section
15.01, to be held at such time and at such place in the City of Sacramento,
California, [____________], or in London as the Trustee shall determine. Notice
of every meeting of Holders of Securities of any series, setting forth the time
and the place of such meeting and in general terms the action proposed to be
taken at such meeting, shall be given, in the manner provided in Section 1.06,
not less than 21 nor more than 180 days prior to the date fixed for the meeting.
(ii) In case at any time the Company, pursuant to a Board Resolution,
or the Holders of at least 10% in principal amount of the Outstanding Securities
of any such series shall have requested the Trustee to call a meeting of the
Holders of Securities of such series for any purpose specified in Section 15.01,
by written request setting forth in reasonable detail the action proposed to be
taken at the meeting, and the Trustee shall not have made the first publication
of the notice of such meeting within 21 days after receipt of such request or
shall not thereafter proceed to cause the meeting to be held as provided herein,
then the Company or the Holders of Securities of such series in the amount above
specified, as the case may be, may determine the time and the place in the City
of Sacramento, California, [____________], or in London for such meeting and may
call such meeting for such purposes by giving notice thereof as provided in
subsection (i) of this Section.
<PAGE> 93
94
SECTION 15.03. Persons Entitled to Vote at Meetings. To be entitled to
vote at any meeting of Holders of Securities of any series, a Person shall be
(1) a Holder of one or more Outstanding Securities of such series, or (2) a
Person appointed by an instrument in writing as proxy for a Holder or Holders of
one or more Outstanding Securities of such series by such Holder or Holders. The
only Persons who shall be entitled to be present or to speak at any meeting of
Holders of Securities of any series shall be the Persons entitled to vote at
such meeting and their counsel, any representatives of the Trustee and its
counsel and any representatives of the Company and its counsel.
SECTION 15.04. Quorum; Action. The Persons entitled to vote a majority
in principal amount of the Outstanding Securities of a series shall constitute a
quorum for a meeting of Holders of Securities of such series; provided, however,
that if any action is to be taken at such meeting with respect to a consent or
waiver which this Indenture expressly provides may be given by the Holders of a
greater percentage in principal amount of the Outstanding Securities of a
series, the Persons entitled to vote such greater percentage in principal amount
of the Outstanding Securities of such series shall constitute a quorum. In the
absence of a quorum within 30 minutes of the time appointed for any such
meeting, the meeting shall, if convened at the request of Holders of Securities
of such series, be dissolved. In the absence of a quorum in any other case the
meeting may be adjourned for a period of not less than 10 days as determined by
the chairperson of the meeting prior to the adjournment of such meeting. In the
absence of a quorum at any such adjourned meeting, such adjourned meeting may be
further adjourned for a period of not less than 10 days as determined by the
chairperson of the meeting prior to the adjournment of such adjourned meeting.
Notice of the reconvening of any adjourned meeting shall be given as provided in
Section 15.02(i), except that such notice need be given only once not less than
five days prior to the date on which the meeting is scheduled to be reconvened.
Notice of the reconvening of an adjourned meeting shall state expressly the
percentage, as provided above, of the principal amount of the Outstanding
Securities of such series which shall constitute a quorum.
Except as limited by the provisos to Section 9.02, any resolution
presented to a meeting or adjourned meeting duly reconvened at which a quorum is
present as aforesaid may be adopted only by the affirmative vote of the Holders
of a majority in principal amount of the Outstanding Securities of the series;
provided, however, that, except as
<PAGE> 94
95
limited by the provisos to Section 9.02, any resolution with respect to any
consent or waiver which this Indenture expressly provides may be given by the
Holders of a greater percentage in principal amount of the Outstanding
Securities of a series may be adopted at a meeting or an adjourned meeting duly
reconvened and at which a quorum is present as aforesaid only by the affirmative
vote of the Holders of such greater percentage in principal amount of the
Outstanding Securities of that series; and provided further that, except as
limited by the provisos to Section 9.02, any resolution with respect to any
request, demand, authorization, direction, notice, consent, waiver or other Act
which this Indenture expressly provides may be made, given or taken by the
Holders of a specified percentage, which is less than a majority in principal
amount of the Outstanding Securities of a series may be adopted at a meeting or
an adjourned meeting duly reconvened and at which a quorum is present as
aforesaid by the affirmative vote of the Holders of such specified percentage in
principal amount of the Outstanding Securities of that series.
Any resolution passed or decision taken at any meeting of Holders of
Securities of any series duly held in accordance with this Section shall be
binding on all the Holders of Securities of such series and the related coupons,
whether or not present or represented at the meeting.
SECTION 15.05. Determination of Voting Rights; Conduct and Adjournment
of Meetings.
(a) Notwithstanding any other provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable for any
meeting of Holders of Securities of such series in regard to proof of the
holding of Securities of such series and of the appointment of proxies and in
regard to the appointment and duties of inspectors of votes, the submission and
examination of proxies, certificates and other evidence of the right to vote,
and such other matters concerning the conduct of the meeting as it shall deem
appropriate. Except as otherwise permitted or required by any such regulations,
the holding of Securities shall be proved in the manner specified in Section
1.04 and the appointment of any proxy shall be proved in the manner specified in
Section 1.04 or, in the case of Bearer Securities, by having the signature of
the person executing the proxy witnessed or guaranteed by any trust company,
bank or banker authorized by Section 1.04 to certify to the holding of Bearer
Securities. Such regulations may provide that written instruments appointing
<PAGE> 95
96
proxies, regular on their face, may be presumed valid and genuine without the
proof specified in Section 1.04 or other proof.
(b) The Trustee shall, by an instrument in writing, appoint a
temporary chairperson of the meeting, unless the meeting shall have been called
by the Company or by Holders of Securities as provided in Section 15.02(ii), in
which case the Company or the Holders of Securities of the series calling the
meeting, as the case may be, shall in like manner appoint a temporary
chairperson. A permanent chairperson and a permanent secretary of the meeting
shall be elected by vote of the Persons entitled to vote a majority in principal
amount of the Outstanding Securities of such series represented at the meeting.
(c) At any meeting each Holder of a Security of such series or proxy
shall be entitled to one vote for each $1,000 principal amount (or the
equivalent in any composite currency or a Foreign Currency) of Securities of
such series held or represented by him; provided, however, that no vote shall be
cast or counted at any meeting in respect of any Security challenged as not
Outstanding and ruled by the chairperson of the meeting not to be Outstanding.
The chairperson of the meeting shall have no right to vote, except as a Holder
of a Security of such series or proxy.
(d) Any meeting of Holders of Securities of any series duly called
pursuant to Section 15.02 at which a quorum is present may be adjourned from
time to time by Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the meeting; and the
meeting may be held as so adjourned without further notice.
SECTION 15.06. Counting Votes and Recording Action of Meetings. The vote
upon any resolution submitted to any meeting of Holders of Securities of any
series shall be by written ballots on which shall be subscribed the signatures
of the Holders of Securities of such series or of their representatives by proxy
and the principal amounts and serial numbers of the Outstanding Securities of
such series held or represented by them. The permanent chairperson of the
meeting shall appoint two inspectors of votes who shall count all votes cast at
the meeting for or against any resolution and who shall make and file with the
secretary of the meeting their verified written reports in triplicate of all
votes cast at the meeting. A record, at least in triplicate, of the proceedings
of each meeting of Holders of Securities of any series shall be prepared by the
secretary
<PAGE> 96
97
of the meeting and there shall be attached to said record the original reports
of the inspectors of votes on any vote by ballot taken thereat and affidavits by
one or more persons having knowledge of the facts setting forth a copy of the
notice of the meeting and showing that said notice was given as provided in
Section 15.02 and, if applicable, Section 15.04. Each copy shall be signed and
verified by the affidavits of the permanent chairperson and secretary of the
meeting and one such copy shall be delivered to the Company, and another to the
Trustee to be preserved by the Trustee, the latter to have attached thereto the
ballots voted at the meeting. Any record so signed and verified shall be
conclusive evidence of the matters therein stated.
ARTICLE SIXTEEN
Miscellaneous
SECTION 16.01. Counterparts. This Indenture may be executed in any
number of counterparts, each of which shall be an original; but such
counterparts shall together constitute but one and the same instrument.
[_________________], hereby accepts the trusts in this Indenture
declared and provided, upon the terms and conditions hereinabove set forth.
<PAGE> 97
98
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
WASTE CONNECTIONS, INC.
by
-----------------------------------
Name:
Title:
[Seal]
Attest: [CORPORATE SEAL]
- ----------------------------------------
Assistant Secretary
[_______________________], as
by
-----------------------------------
Name:
Title:
[Seal]
[CORPORATE SEAL]
<PAGE> 98
STATE OF ) ) ss.: COUNTY OF )
On this [________] day of [________], 1999, before me personally came to
me known, [________], who, being by me duly sworn, did depose and say that he
resides at [________] that he is [________] of WASTE CONNECTIONS, INC., one of
the corporations described in and which executed the foregoing instrument; that
he knows the corporate seal of said corporation; that the seal affixed to said
instrument is such corporate seal; that it was so affixed by authority of the
Board of Directors of said corporation; and that he signed his name thereto by
like authority.
----------------------------------------
Notary Public [Notarial Seal]
<PAGE> 99
STATE OF ,)
) ss.:
COUNTY OF ,)
On this [________] of [________] 1999, before me personally appeared
[________], to me known, who, being by me duly sworn, did depose and say that he
resides at [________]; that he is a [________]of [________] one of the parties
described in and which executed the foregoing instrument; that he knows the
corporate seal of said corporation; that the seal affixed to said instrument is
such corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation; and that he signed his name thereto by like
authority.
- --------------------------------------
Notary Public [Notarial Seal]
<PAGE> 100
EXHIBIT A
FORM OF CERTIFICATE TO BE GIVEN BY
PERSON ENTITLED TO RECEIVE BEARER SECURITY
CERTIFICATE
...................
[Insert title or sufficient description of
Securities to be delivered]
This is to certify that the above-captioned Securities are not being
acquired by or on behalf of a United States person, or, if a beneficial interest
in the Securities is being acquired by or on behalf of a United States person,
that such United States person is a financial institution within the meaning of
Section 1.165-12(c)(1)(v) of the United States Treasury regulations which agrees
to comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the
Internal Revenue Code of 1986, as amended and the regulations thereunder. If the
undersigned is a dealer, the undersigned agrees to obtain a similar certificate
from each person entitled to delivery of any of the above-captioned Securities
in bearer form purchased from it; provided, however, that, if the undersigned
has actual knowledge that the information contained in such a certificate is
false, the undersigned will not deliver a Security in temporary or definitive
bearer form to the person who signed such certificate notwithstanding the
delivery of such certificate to the undersigned.
As used herein, "United States person" means any citizen or resident of
the United States, any corporation, partnership or other entity created or
organized in or under the laws of the United States and any estate or trust the
income of which is subject to United States Federal income taxation regardless
of its source, and "United States" means the United States of America (including
the States and the District of Columbia), its territories, its possessions and
other areas subject to its jurisdiction.
We undertake to advise you by telex if the above statement as to
beneficial ownership is not correct on the date of delivery of the
above-captioned Securities in bearer form as to all of such Securities.
We understand that this certificate is required in connection with
certain tax legislation in the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably
<PAGE> 101
authorize you to produce this certificate or a copy thereof to any interested
party in such proceedings.
Dated: 19 [To be dated no earlier than 15 days prior to the Exchange Date]
[Name of Person Entitled to
Receive Bearer Security)
----------------------------------------
Authorized Signatory)
Name:
Title:
<PAGE> 102
EXHIBIT B
FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR AND CEDEL S.A.
IN CONNECTION WITH THE
EXCHANGE OF A PORTION OF A TEMPORARY GLOBAL SECURITY
CERTIFICATE
...................
[Insert title or sufficient description
of Securities to be delivered]
This is to certify with respect to $____ principal amount of the
above-captioned Securities (i) that we have received from each of the persons
appearing in our records as persons entitled to a portion of such principal
amount (our "Qualified Account Holders") a certificate with respect to such
portion substantially in the form attached hereto, and (ii) that we are not
submitting herewith for exchange any portion of the temporary global Security
representing the above-captioned Securities excepted in such certificates.
We further certify that as of the date hereof we have not received any
notification from any of our Qualified Account Holders to the effect that the
statements made by such Qualified Account Holders with respect to any portion of
the part submitted herewith for exchange are no longer true and cannot be relied
upon as of the date hereof.
Dated: , 19
[To be dated no earlier than the Exchange Date]
[MORGAN GUARANTY TRUST COMPANY OF
NEW YORK, Brussels Office, as
Operator of the Euroclear System]
[CEDEL S.A.]
By
-------------------------------------
<PAGE> 103
EXHIBIT C
FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR AND
CEDEL S.A. TO OBTAIN INTEREST PRIOR TO AN EXCHANGE DATE
CERTIFICATE
...................
[Insert title or sufficient description of Securities]
This is to certify that, as of the Interest Payment Date on [Insert
Date], the undersigned, which is a holder of an interest in the temporary global
Security representing the above Securities, is not a United States person.
As used herein, "United States person" means any citizen or resident of
the United States, any corporation, partnership or other entity created or
organized in or under the laws of the United States and any estate or trust the
income of which is subject to United States Federal income taxation regardless
of its source, and "United States" means the United States of America (including
the States and the District of Columbia), its territories, its possessions and
other areas subject to its jurisdiction.
We confirm that the interest payable on such Interest Payment Date will
be paid to each of the persons appearing in our records as being entitled to
interest to be paid on the above date from whom we have received a written
certification dated not earlier than 15 days prior to such Interest Payment Date
to the effect that the beneficial owner of such portion with respect to which
interest is to be paid on such date either is not a United States person or is a
United States person which is a financial institution which has provided an
Internal Revenue Service Form W-9 or is an exempt recipient as defined in United
States Treasury Regulations (S) 1.6049-4(c)(1)(ii). We undertake to retain
certificates received from our member organizations in connection herewith for
four years from the end of the calendar year in which such certificates are
received.
<PAGE> 104
The foregoing reflects any advice received subsequent to the date of any
certificate stating that the statements contained in such certificate are no
longer correct.
Dated: , 19 [To be dated on or after the relevant Interest Payment Date]
[MORGAN GUARANTY TRUST COMPANY OF
NEW YORK, Brussels Office, as
Operator of the Euroclear System]
[CEDEL S.A.]
By
-------------------------------------
<PAGE> 105
EXHIBIT D
FORM OF CERTIFICATE TO BE GIVEN BY BENEFICIAL OWNERS TO
OBTAIN INTEREST PRIOR TO AN EXCHANGE DATE
CERTIFICATE
...................
[Insert title or sufficient description of Securities]
This is to certify that as of the date hereof, no portion of the
temporary global Security representing the above-captioned Securities and held
by you for our account is beneficially owned by a United States person or, if
any portion thereof held by you for our account is beneficially owned by a
United States person, such United States person is a financial institution
within the meaning of Section 1.165-12(c)(1)(v) of the United States Treasury
regulations which agrees to comply with Section 165(j)(3)(A), (B) or (C) of the
Internal Revenue Code of 1986, as amended and the regulations thereunder, and
certifies that either it has provided an Internal Revenue Service Form W-9 or is
an exempt recipient as defined in Section 1.6049-4(c)(1)(ii) of the United
States Treasury regulations.
As used herein, "United States person" means any citizen or resident of
the United States, any corporation, partnership or other entity created or
organized in or under the laws of the United States and any estate or trust the
income of which is subject to United States Federal income taxation regardless
of its source, and "United States" means the United States of America (including
the States and the District of Columbia), its territories, its possessions and
other areas subject to its jurisdiction.
We undertake to advise you by telex if the above statement as to
beneficial ownership is not correct on the Interest Payment Date on [Insert
Date] as to any such portion of such temporary global Security.
We understand that this certificate is required in connection with
certain tax legislation in the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be
<PAGE> 106
relevant, we irrevocably authorize you to produce this certificate or a copy
thereof to any interested party in such proceedings.
Dated: , 19 [To be dated on or after the 15th day before the relevant
Interest Payment Date]
[Name of Account Holder]
----------------------------------------
(Authorized Signatory) Name:
Title:
<PAGE> 1
EXHIBIT 4.4
THIS INDENTURE is entered into as of [___________], 1999, between WASTE
CONNECTIONS, INC., a corporation organized and existing under the laws of the
State of Delaware (hereinafter called the "Company"), having its principal
executive office at 2260 Douglas Blvd., Suite 280, Roseville, California 95661,
and [_____________], a _____________ banking corporation (hereinafter the
"Trustee"), having its principal corporate trust office at
[_____________________________].
RECITALS OF THE COMPANY
The Company deems it necessary from time to time to issue its unsecured
subordinated debentures, notes, bonds and other evidences of indebtedness to be
issued in one or more series (hereinafter called the "Securities") as
hereinafter set forth, and to provide therefor the Company has duly authorized
the execution and delivery of this Indenture.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Securities or of any
series thereof, as follows:
ARTICLE ONE
Definitions and Other Provisions of General Application
SECTION 1.01. Definitions. For all purposes of this Indenture, except as
otherwise expressly provided or unless the context otherwise requires:
(i) the term "this Indenture" means this instrument as originally
executed or as it may from time to time be supplemented or amended by one or
more indentures supplemental hereto entered into pursuant to the applicable
provisions hereof and shall include the
<PAGE> 2
2
terms of particular series of Securities established as contemplated by Section
3.01;
(ii) all references in this instrument to designated "Articles",
"Sections" and other subdivisions are to the designated Articles, Sections and
other subdivisions of this Indenture. The words "herein", "hereof" and
"hereunder" and other words of similar import refer to this Indenture as a whole
and not to any particular Article, Section or other subdivision;
(iii) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(iv) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein; and
(v) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles, and, except as may be otherwise expressly provided herein or in one
or more indentures supplemental hereto, the term "generally accepted accounting
principles" with respect to any computation required or permitted hereunder
shall mean such accounting principles as are generally accepted at the date of
such computation.
"Act", when used with respect to any Holder, has the meaning specified
in Section 1.04.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any Person authorized to act on behalf of
the Trustee to authenticate Securities pursuant to Section 8.14.
"Authorized Newspaper" means a newspaper, in an official language of the
country of publication or in the
<PAGE> 3
3
English language, customarily published on each Business Day, whether or not
published on Saturdays, Sundays or holidays, and of general circulation in the
place in connection with which the term is used or in the financial community of
such place. Where successive publications are required to be made in Authorized
Newspapers, the successive publications may be made in the same or in different
newspapers in the same city meeting the foregoing requirements and in each case
on any Business Day.
["Authorized Officer" means the Chairman of the Board, the President,
any Vice President, the Treasurer, the Secretary, any Assistant Treasurer or any
Assistant Secretary of the Company.]
"Bearer Security" means any Security in the form established pursuant to
Section 2.02 which is payable to bearer, including, without limitation, unless
the context otherwise indicates, a Security in global bearer form.
"Board of Directors" means either the board of directors of the Company
or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day" means any day, other than a Saturday or Sunday, on which
banking institutions in the City of Sacramento, California and any Place of
Payment for the Securities are open for business.
["CEDEL" or "CEDEL S.A." means Cedel Bank, societe anonyme or its
successors.]
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Exchange Act, or if any time after the
execution and delivery of this instrument such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
"Common Depositary" has the meaning specified in Section 3.04(b)(ii).
<PAGE> 4
4
"Company" means the Person named as the "Company" in the first paragraph
of this instrument until any successor corporation shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean any such successor corporation.
"Company Request" and "Company Order" mean, respectively, a written
request or order signed in the name of the Company by its [Chairman of the
Board, its President, or a Vice President, and by its Treasurer, an Assistant
Treasurer, its Secretary or an Assistant Secretary], and delivered to the
Trustee.
"corporation" includes corporations, associations, companies and
business trusts.
"coupon" means any interest coupon appertaining to a Bearer Security.
"Default" has the meaning specified in Section 7.07.
"Defaulted Interest" has the meaning specified in Section 3.07.
"Depositary" means, with respect to the Securities of any series
issuable or issued in the form of a Global Security, the Person designated as
Depositary by the Company pursuant to Section 3.01 until a successor Depositary
shall have been appointed pursuant to Section 3.05, and thereafter "Depositary"
shall mean or include each Person who is then a Depositary hereunder, and if at
any time there is more than one such Person, "Depositary" as used with respect
to the Securities of any such series shall mean the Depositary with respect to
the Securities of that series.
"Designated Currency" has the meaning specified in Section 3.12.
"Dollar" or "$" means the coin or currency of the United States of
America as at the time of payment is legal tender for the payment of public and
private debts.
"Euroclear" means Morgan Guaranty Trust Company of New York, Brussels
Office, as operator of the Euroclear System.
"European Communities" means the European Economic Community, the
European Coal and Steel Community and the European Atomic Energy Community.
<PAGE> 5
5
"Event of Default" has the meaning specified in Section 7.01.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time, and any statute successor thereto.
"Exchange Rate" shall have the meaning specified as contemplated in
Section 3.01.
"Exchange Rate Agent" shall have the meaning specified as contemplated
in Section 3.01.
"Exchange Rate Officer's Certificate" with respect to any date for the
payment of principal of (and premium, if any) and interest on any series of
Securities, means a certificate setting forth the applicable Exchange Rate and
the amounts payable in Dollars and Foreign Currencies in respect of the
principal of (and premium, if any) and interest on Securities denominated in any
composite currency or Foreign Currency, and signed by the [Chairman of the
Board, the President, any Vice President, the Treasurer or any Assistant
Treasurer] of the Company or the Exchange Rate Agent appointed pursuant to
Section 3.01 and delivered to the Trustee.
"Existing Subordinated Indebtedness" means, unless otherwise determined
with respect to any series of Securities pursuant to Section 3.01, the Company's
[ ].
"Foreign Currency" means a currency issued by the government of any
country other than the United States of America.
"General Obligations" means, unless otherwise determined with respect to
any series of Securities pursuant to Section 3.01, all obligations of the
Company to make payment on account of claims in respect of derivative products
such as interest and foreign exchange rate contracts, commodity contracts and
similar arrangements, other than (i) obligations on account of Senior
Indebtedness, (ii) obligations on account of indebtedness for money borrowed
ranking pari passu with or subordinate to the Securities and (iii) obligations
which by their terms are expressly stated not to be superior in right of payment
to the Securities or to rank on a parity with the Securities; provided, however,
that notwithstanding the foregoing, in the event that any rule, guideline or
interpretation promulgated or issued by the Board of Governors of the Federal
Reserve System (or other competent
<PAGE> 6
6
regulatory agency or authority), as from time to time in effect, establishes or
specifies criteria for the inclusion in regulatory capital of subordinated debt
of a bank holding company requiring that such subordinated debt be subordinated
to obligations to creditors in addition to those set forth above, then the term
"General Obligations" shall also include such additional obligations to
creditors, as from time to time in effect pursuant to such rules, guidelines or
interpretations. For purposes of this definition, "claim" shall have the meaning
assigned thereto in Section 101(4) of the Bankruptcy Code of 1978, as amended to
the date of this instrument.
"Global Exchange Date" has the meaning specified in Section 3.04(b)(iv).
"Global Security" means a Security issued to evidence all or a part of a
series of Securities in accordance with Section 3.03.
"Holder", with respect to a Registered Security, means a Person in whose
name such Registered Security is registered in the Security Register and, with
respect to a Bearer Security (or any temporary Global Security) or a coupon,
means the bearer thereof.
"interest", when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means interest
payable after Maturity.
"Interest Payment Date", when used with respect to any series of
Securities, means the Stated Maturity of an installment of interest on such
Securities.
"Maturity", when used with respect to any Security, means the date on
which the principal of such Security (or any installment of principal) becomes
due and payable as therein or herein provided, whether at the Stated Maturity or
by declaration of acceleration, call for redemption or otherwise.
"Officers' Certificate" means a certificate signed by the [Chairman of
the Board, the President, or a Vice President, and by the Treasurer, an
Assistant Treasurer, the Secretary or an Assistant Secretary] of the Company,
and delivered to the Trustee. Each such certificate shall contain the statements
set forth in Section 1.02, if applicable.
<PAGE> 7
7
"Opinion of Counsel" means a written opinion of counsel, who may (except
as otherwise expressly provided in this Indenture) be an employee of the
Company, and who shall be reasonably acceptable to the Trustee. Each such
opinion shall contain the statements set forth in Section 1.02, if applicable.
"Original Issue Discount Security" means any Security which provides for
an amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 7.02.
"Outstanding" when used with respect to Securities or Securities of any
series, means, as of the date of determination, all such Securities theretofore
authenticated and delivered under this Indenture, except:
(i) such Securities theretofore canceled by the Trustee or delivered
to the Trustee for cancellation;
(ii) such Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee or any Paying
Agent (other than the Company) in trust or set aside and segregated in trust by
the Company (if the Company shall act as its own Paying Agent) for the Holders
of such Securities; provided that, if such Securities are to be redeemed, notice
of such redemption has been duly given pursuant to this Indenture or provision
therefor satisfactory to the Trustee has been made; and
(iii) such Securities in lieu of which other Securities have been
authenticated and delivered pursuant to Section 3.06 of this Indenture;
provided, however, that in determining whether the Holders of the requisite
principal amount of such Securities Outstanding have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or whether a
quorum is present at a meeting of Holders of Securities, the principal amount of
Original Issue Discount Securities that shall be deemed to be Outstanding for
such purposes shall be the amount of the principal thereof that would be due and
payable as of the date of such determination upon a declaration of acceleration
of the Maturity thereof pursuant to Section 7.02, and Securities owned by the
Company or any other obligor upon the Securities or any Affiliate of the Company
or such other obligor shall be disregarded and deemed not to be Outstanding,
except that, in determining whether the Trustee shall be protected in relying
upon any
<PAGE> 8
8
such request, demand, authorization, direction, notice, consent or waiver, only
Securities which a Responsible Officer of the Trustee actually knows to be so
owned shall be disregarded. Securities so owned which have been pledged in good
faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect to such
Securities and that the pledgee is not the Company or any other obligor upon the
Securities or any Affiliate of the Company or such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of, premium, if any, or interest on any Securities or any coupons
appertaining thereto on behalf of the Company.
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Place of Payment", when used with respect to the Securities of any
series, means the place or places where, subject to the provisions of Section
5.02, the principal of (and premium, if any) and interest on the Securities of
that series are payable as specified in accordance with Section 3.01.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and for the purposes of this definition, any Security
authenticated and delivered under Section 3.06 in lieu of a mutilated,
destroyed, lost or stolen Security shall be deemed to evidence the same debt as
the mutilated, destroyed, lost or stolen Security.
"Principal Corporate Trust Office" means the office of the Trustee, at
which at any particular time its corporate trust business shall be principally
administered, which office at the date of execution of this instrument is at the
address set forth in the first paragraph of this instrument
"Principal Paying Agent" means the Paying Agent, if any, designated as
such by the Company pursuant to Section 3.01 of this Indenture.
"Redemption Date", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
<PAGE> 9
9
"Redemption Price", when used with respect to any Security to be
redeemed, means the price specified in such Security at which it is to be
redeemed pursuant to this Indenture.
"Registered Security" means any Security in the form established
pursuant to Section 2.02 which is registered in the Security Register.
"Regular Record Date" for the interest payable on any Security on any
Interest Payment Date means the date, if any, specified in such Security as the
"Regular Record Date".
"Remarketing Entity", when used with respect to the Securities of any
series which are repayable at the option of the Holders thereof before their
Stated Maturity, means any Person designated by the Company to purchase any such
Securities.
"Repayment Date", when used with respect to any Security to be repaid
upon exercise of option for repayment by the Holder, means the date fixed for
such repayment pursuant to this Indenture.
"Repayment Price", when used with respect to any Security to be repaid
upon exercise of option for repayment by the Holder, means the price at which it
is to be repaid pursuant to this Indenture.
"Responsible Officer", when used with respect to the Trustee, means any
officer of the Trustee with direct responsibility for the administration of this
Indenture and also means, with respect to a particular corporate trust matter,
any other officer of the Trustee to whom such matter is referred because of his
knowledge of and familiarity with the particular subject.
"Security" or "Securities" means any Security or Securities, as the case
may be, authenticated and delivered under this Indenture; provided, however,
that, if at any time there is more than one Person acting as Trustee under this
Indenture, "Securities", with respect to any such Person, shall mean Securities
authenticated and delivered under this Indenture, exclusive, however, of
Securities of any series as to which such Person is not Trustee.
"Security Register" has the meaning specified in Section 3.05.
<PAGE> 10
10
"Security Registrar" has the meaning specified in Section 3.05.
"Senior Indebtedness" means the principal of, premium, if any, and
interest on (i) all of the Company's indebtedness for money borrowed, other than
the Securities and the Existing Subordinated Indebtedness, whether outstanding
on the date of execution of this Indenture or thereafter created, assumed or
incurred, except such indebtedness as is by its terms expressly stated to be not
superior in right of payment to the Securities or the Existing Subordinated
Indebtedness or to rank pari passu with the Securities or the Existing
Subordinated Indebtedness and (ii) any deferrals, renewals or extensions of any
such Senior Indebtedness. The term "indebtedness for money borrowed" as used in
the foregoing sentence shall include, without limitation, any obligation of, or
any obligation guaranteed by, the Company for the repayment of borrowed money,
whether or not evidenced by bonds, debentures, notes or other written
instruments, and any deferred obligation for the payment of the purchase price
of property or assets.
"Special Record Date" for the payment of any Defaulted Interest means
the date fixed by the Trustee pursuant to Section 3.07.
"Stated Maturity", when used with respect to any Security, or any
installment of principal thereof or interest thereon, means the date specified
in such Security as the fixed date on which the principal of such Security, or
such installment of principal or interest, is due and payable.
"Subsidiary of the Company" or "Subsidiary" means a corporation at least
a majority of the outstanding voting stock of which is owned, directly or
indirectly, by the Company or by one or more Subsidiaries of the Company, or by
the Company and one or more Subsidiaries of the Company.
As used under this heading, the term "voting stock" means stock having
ordinary voting power for the election of directors irrespective of whether or
not stock of any other class or classes shall have or might have voting power by
reason of the happening of any contingency.
"Trustee" means the Person named as the "Trustee" in the first paragraph
of this instrument until a successor Trustee shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Trustee" shall mean
or include each Person who is then a Trustee hereunder,
<PAGE> 11
11
and if at any time there is more than one such Person, "Trustee" as used with
respect to the Securities of any series shall mean the Trustee with respect to
Securities of that series.
"Trust Indenture Act" or "TIA" (except as herein otherwise expressly
provided) means the Trust Indenture Act of 1939, as in force at the date as of
which this instrument was executed, and, to the extent required by law, as
amended.
"United States" means the United States of America (including the States
and the District of Columbia), its territories, its possessions and other areas
subject to its jurisdiction.
"United States Alien", except as otherwise provided in or pursuant to
this Indenture, means any Person who, for United States Federal income tax
purposes, is a foreign corporation, a nonresident alien individual, a non-
resident alien fiduciary of a foreign estate or trust, or a foreign partnership
one or more of the members of which is, for United States Federal income tax
purposes, a foreign corporation, a non-resident alien individual or a non-
resident alien fiduciary of a foreign estate or trust.
"vice president", when used with respect to the Company or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "vice president".
SECTION 1.02. Compliance Certificates and Opinions. Upon any application
or request by the Company to the Trustee to take any action under any provision
of this Indenture, the Company shall furnish to the Trustee an Officers'
Certificate stating that all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with and an Opinion
of Counsel stating that in the opinion of such counsel all such conditions
precedent, if any, have been complied with, except that in the case of any such
application or request as to which the furnishing of such documents is
specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need be
furnished.
Every certificate or opinion with respect to compliance with a condition
or covenant provided for in this Indenture (except as otherwise expressly
provided in this Indenture) shall include:
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12
(i) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein relating
thereto;
(ii) 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;
(iii) a statement that, in the opinion of each such individual, 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
(iv) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 1.03. Form of Documents Delivered to Trustee. In any case where
several matters are required to be certified by, or covered by an opinion of,
any specified Person, it is not necessary that all such matters be certified by,
or covered by the opinion of, only one such Person, or that they be so certified
or covered by only one document, but one such Person may certify or give an
opinion with respect to some matters and one or more other such Persons as to
other matters, and any such Person may certify or give an opinion as to such
matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments
<PAGE> 13
13
under this Indenture, they may, but need not, be consolidated and form one
instrument.
SECTION 1.04. Acts of Holders. (i) Any request, demand, authorization,
direction, notice, consent, waiver or other action provided by this Indenture to
be given or taken by Holders or Holders of any series may be embodied in and
evidenced by one or more instruments of substantially similar tenor signed by
such Holders in person or by an agent duly appointed in writing. If Securities
of a series are issuable in whole or in part as Bearer Securities, any request,
demand, authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be given or taken by Holders may, alternatively,
be embodied in and evidenced by the record of Holders of Securities voting in
favor thereof, either in person or by proxies duly appointed in writing, at any
meeting of Holders of Securities duly called and held in accordance with the
provisions of Article Sixteen or a combination of such instruments and any such
record. Except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments or record or both are delivered to
the Trustee, and, where it is hereby expressly required, to the Company. Such
instrument or instruments and any such record (and the action embodied therein
and evidenced thereby) are herein sometimes referred to as the "Act" of the
Holders signing such instrument or instruments and so voting at any such
meeting. Proof of execution of any such instrument or of a writing appointing
any such agent, or the holding by any Person of a Security, shall be sufficient
for any purpose of this Indenture and (subject to Section 8.01) conclusive in
favor of the Trustee and the Company, if made in the manner provided in this
Section. The record of any meeting of Holders of Securities shall be proved in
the manner provided in Section 16.06.
(ii) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by the certificate of any notary public or other officer authorized
by law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by or on behalf of any legal entity other than an individual, such
certificate or affidavit shall also constitute proof of the authority of the
Person executing the same. The fact and date of the execution of any such
instrument or writing, or the authority of the Person executing the same, may
also be proved in any other manner which the Trustee deems sufficient.
<PAGE> 14
14
(iii) The ownership of Registered Securities shall be proved by the
Security Register.
(iv) The principal amount and serial numbers of Bearer Securities
held by any Person, and the date of holding the same, may be proved by the
production of such Bearer Securities or by a certificate executed, as
depositary, by any trust company, bank or other depositary, wherever situated,
if such certificate shall be deemed by the Trustee to be satisfactory, showing
that at the date therein mentioned such Person had on deposit with such
depositary, or exhibited to it, the Bearer Securities therein described; or such
facts may be proved by the certificate or affidavit of the Person holding such
Bearer Securities, if such certificate or affidavit is deemed by the Trustee to
be satisfactory. The Trustee and the Company may assume that such ownership of
any Bearer Security continues until (1) another certificate or affidavit bearing
a later date issued in respect of the same Bearer Security is produced, or (2)
such Bearer Security is produced to the Trustee by some other Person, or (3)
such Bearer Security is surrendered in exchange for a Registered Security, or
(4) such Bearer Security is no longer Outstanding.
(v) The fact and date of execution of any such instrument or
writing, the authority of the Person executing the same and the principal amount
and serial numbers of Bearer Securities held by the Person so executing such
instrument or writing and the date of holding the same may also be proved in any
other manner which the Trustee deems sufficient; and the Trustee may in any
instance require further proof with respect to any of the matters referred to in
this Section.
(vi) Any request, demand, authorization, direction, notice, consent,
waiver or other action by the Holder of any Security shall bind every future
Holder of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof, in
respect of any action taken, suffered or omitted by the Trustee or the Company
in reliance thereon, whether or not notation of such action is made upon such
Security.
(vii) For purposes of determining the principal amount of Outstanding
Securities of any series the Holders of which are required, requested or
permitted to give any request, demand, authorization, direction, notice,
consent, waiver or take any other Act under the Indenture, each Security
denominated in a Foreign Currency or composite currency shall be deemed to have
the principal amount
<PAGE> 15
15
determined by the Exchange Rate Agent by converting the principal amount of such
Security in the currency in which such Security is denominated into Dollars at
the Exchange Rate as of the date such Act is delivered to the Trustee and, where
it is hereby expressly required, to the Company, by Holders of the required
aggregate principal amount of the Outstanding Securities of such series (or, if
there is no such rate on such date, such rate on the date determined as
specified as contemplated in Section 3.01).
(viii) The Company may, in the circumstances permitted by the Trust
Indenture Act, set a record date for purposes of determining the identity of
Holders of Securities of any series entitled to give any request, demand,
authorization, direction, notice, consent, waiver or take any other Act, or to
vote or consent to any action by vote or consent authorized or permitted to be
given or taken by Holders of Securities of such series. If not set by the
Company prior to the first solicitation of a Holder of Securities of such Series
made by any Person in respect of any such action, or in the case of any such
vote, prior to such vote, such record date shall be the later of 30 days prior
to the first solicitation of such consent or the date of the most recent list of
Holders of such Securities furnished to the Trustee pursuant to Section 6.01
prior to such solicitation.
(ix) Without limiting the foregoing, a Holder entitled hereunder to
take any action hereunder with regard to any particular Security may do so with
regard to all or any part of the principal amount of such Security or by one or
more duly appointed agents, each of which may do so pursuant to such appointment
with regard to all or any part of such principal amount. Any notice given or
action taken by a Holder or its agents with regard to different parts of such
principal amount pursuant to this paragraph shall have the same effect as if
given or taken by separate Holders of each such different part.
(x) Without limiting the generality of the foregoing, unless
otherwise specified pursuant to Section 3.01 or pursuant to one or more
indentures supplemental hereto, a Holder, including a Depositary that is the
Holder of a Global Security, may make, give or take, by a proxy or proxies duly
appointed in writing, any request, demand, authorization, direction, notice,
consent, waiver or other action provided in this Indenture to be made, given or
taken by Holders, and a Depositary that is the Holder of a Global Security may
provide its proxy or proxies to the beneficial owners of interests in any such
<PAGE> 16
16
Global Security through such Depositary's standing instructions and customary
practices.
(xi) The Company may fix a record date for the purpose of determining
the Persons who are beneficial owners of interests in any Global Security held
by a Depositary entitled under the procedures of such Depositary to make, give
or take, by a proxy or proxies duly appointed in writing, any request, demand,
authorization, direction, notice, consent, waiver or other action provided in
this Indenture to be made, given or taken by Holders. If such a record date is
fixed, the Holders on such record date or their duly appointed proxy or proxies,
and only such Persons, shall be entitled to make, give or take such request,
demand, authorization, direction, notice, consent, waiver or other action,
whether or not such Holders remain Holders after such record date. No such
request, demand, authorization, direction, notice, consent, waiver or other
action shall be valid or effective if made, given or taken more than 90 days
after such record date.
SECTION 1.05. Notices, etc., to Trustee and Company. Any request,
demand, authorization, direction, notice, consent, waiver or Act of Holders or
other document provided or permitted by this Indenture to be made upon, given or
furnished to, or filed with:
(i) the Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder if made, given, furnished or filed in writing to or
with the Trustee at its Principal Corporate Trust Office, Attention: Corporate
Trustee Administration Department; or
(ii) the Company by any Holder or by the Trustee shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if in
writing and mailed, first-class, postage prepaid, to the Company, to the
attention of its Treasurer, addressed to it at the address of its principal
office specified in the first paragraph of this Indenture or at any other
address previously furnished in writing to the Trustee by the Company.
SECTION 1.06. Notices to Holders; Waiver. Where this Indenture or any
Security provides for notice to Holders of any event:
(1) such notice shall be sufficiently given (unless otherwise herein
or in such Security expressly provided) if in writing and mailed, first- class,
postage prepaid, to each Holder of Registered Securities affected by such event,
at his address as it
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appears in the Security Register, not later than the latest date, and not
earlier than the earliest date, prescribed for the giving of such notice.
(2) such notice shall be sufficiently given to Holders of Bearer
Securities if published in an Authorized Newspaper in The City of [________]
and, if the Securities of such series are then listed on The International Stock
Exchange of the United Kingdom and the Republic of Ireland Limited and such
stock exchange shall so require, in London and, if the Securities of such series
are then listed on the Luxembourg Stock Exchange and such stock exchange shall
so require, in Luxembourg and, if the Securities of such series are then listed
on any other stock exchange and such stock exchange shall so require, in any
other required city outside the United States, or, if not practicable, elsewhere
in Europe on a Business Day 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 of such notice.
In case by reason of the suspension of regular mail service or by reason of any
other cause it shall be impracticable to give such notice to Holders of
Registered Securities by mail, then such notification as shall be made with the
approval of the Trustee shall constitute a sufficient notification for every
purpose hereunder. In any case where notice to Holders of Registered Securities
is given by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder of Registered Securities shall affect
the sufficiency of such notice with respect to other Holders of Registered
Securities or the sufficiency of any notice by publication to Holders of Bearer
Securities given as provided above.
In case by reason of the suspension of publication of any Authorized
Newspaper or Authorized Newspapers or by reason of any other cause it shall be
impracticable to publish any notice to Holders of Bearer Securities as provided
above, then such notification to Holders of Bearer Securities as shall be given
with the approval of the Trustee shall constitute sufficient notice to such
Holders for every purpose hereunder. Neither the failure to give notice by
publication to Holders of Bearer Securities as provided above, nor any defect in
any notice so published, shall affect the sufficiency of any notice mailed to
Holders of Registered Securities as provided above.
Where this Indenture provides for notice in any manner, such notice may
be waived in writing by the Person
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entitled to receive such notice, either before or after the event, and such
waiver shall be the equivalent of such notice. Waivers of notice by Holders
shall be filed with the Trustee, but such filing shall not be a condition
precedent to the validity of any action taken in reliance upon such waiver.
SECTION 1.07. Language of Notices, etc. Any request, demand,
authorization, direction, notice, consent, or waiver required or permitted under
this Indenture shall be in the English language, except that any published
notice may be in an official language of the country of publication.
SECTION 1.08. Conflict with Trust Indenture Act. If and to the extent
that any provision of this Indenture limits, qualifies or conflicts with the
duties imposed by, or with another provision (an "incorporated provision")
included in this Indenture by operation of, Sections 310 to 318, inclusive, of
the TIA, such imposed duties or incorporated provision shall control.
SECTION 1.09. Effect of Headings and Table of Contents. The Article and
Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
SECTION 1.10. Successors and Assigns. All covenants and agreements in
this Indenture by the Company shall bind its successors and assigns, whether so
expressed or not.
SECTION 1.11. Separability Clause. In case any provision in this
Indenture or in the Securities shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
SECTION 1.12. Benefits of Indenture. Nothing in this Indenture or in the
Securities, express or implied, shall give to any Person, other than the parties
hereto and their successors hereunder, the Holders and, to the extent provided
in Article Fourteen hereof, the holders of Senior Indebtedness and creditors in
respect of General Obligations, any benefit or any legal or equitable right,
remedy or claim under this Indenture.
SECTION 1.13. Legal Holidays. Unless otherwise provided as contemplated
by Section 3.01 with respect to any series of Securities, in any case where any
Interest Payment Date, Stated Maturity, Repayment Date or Redemption Date of
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any Security or any date on which any Defaulted Interest is proposed to be paid
shall not be a Business Day at any Place of Payment, then (notwithstanding any
other provisions of the Securities or this Indenture) payment of the principal
of, premium, if any, or interest on any Securities need not be made at such
Place of Payment on such date, but may be made on the next succeeding Business
Day with the same force and effect as if made on the Interest Payment Date,
Stated Maturity, Repayment Date or Redemption Date or on the date on which
Defaulted Interest is proposed to be paid and, if such payment is made, no
interest shall accrue on such payment for the period from and after any such
Interest Payment Date, Stated Maturity, Repayment Date or Redemption Date or
date on which Defaulted Interest is proposed to be paid, as the case may be.
SECTION 1.14. Governing Law. This Indenture and the Securities shall be
construed in accordance with and governed by the laws of the State of
[___________].
ARTICLE TWO
Security Forms
SECTION 2.01. Forms Generally. All Securities and any related coupons
shall have such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture, and may have such
letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any
securities exchange or as may, consistently herewith, be determined by the
officers executing such Securities or coupons, as evidenced by their execution
of the Securities or coupons.
The Trustee's certificates of authentication shall be in substantially
the form set forth in this Article.
Unless otherwise provided as contemplated by Section 3.01 with respect
to any series of Securities, the Securities of each series shall be issuable in
registered form without coupons. If so provided as contemplated by Section 3.01,
the Securities of a series shall be issuable solely in bearer form, or in both
registered form and bearer form. Unless otherwise specified as contemplated by
Section 3.01, Securities in bearer form shall have interest coupons attached.
The definitive Securities and coupons shall be printed, lithographed or
engraved or produced by any
<PAGE> 20
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combination of these methods on a steel engraved border or steel engraved
borders or may be produced in any other manner, all as determined by the
officers executing such Securities or coupons, as evidenced by their execution
of such Securities or coupons.
SECTION 2.02. Form of Securities. Each Security and coupon shall be in
one of the forms approved from time to time by or pursuant to a Board Resolution
or an indenture supplemental hereto. Upon or prior to the delivery of a Security
or coupons in any such form to the Trustee for authentication, the Company shall
deliver to the Trustee the following:
(i) such indenture supplemental hereto or the Board Resolution by or
pursuant to which such form of Security or coupons has been approved, certified
by the Secretary or an Assistant Secretary of the Company;
(ii) the Officers' Certificate required by Section 3.01 of this
Indenture;
(iii) the Company Order required by Section 3.03 of this Indenture;
and
(iv) the Opinion of Counsel required by Section 3.03 of this
Indenture.
If temporary Securities of any series are issued in global form as
permitted by Section 3.04, the form thereof also shall be established as
provided in this Section 2.02.
SECTION 2.03. Form of Trustee's Certificate of Authentication.
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
[ ], as Trustee
by _________________________________ Authorized Officer
<PAGE> 21
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SECTION 2.04. Global Securities. If Securities of a series are issuable
in whole or in part in global form, as specified as contemplated by Section
3.01, then, notwithstanding clause (xii) of Section 3.01 and the provisions of
Section 3.02, such Global Security shall represent such of the outstanding
Securities of such series as shall be specified therein and may provide that it
shall represent the aggregate amount of Outstanding Securities from time to time
endorsed thereon and that the aggregate amount of Outstanding Securities
represented thereby may from time to time be reduced or increased to reflect
exchanges or increased to reflect the issuance of additional uncertificated
securities of such series. Any endorsement of a Global Security to reflect the
amount, or any increase or decrease in the amount, of Outstanding Securities
represented thereby shall be made in such manner and upon instructions given by
such Person or Persons as shall be specified therein or in the Company Order to
be delivered to the Trustee pursuant to Section 3.03 or Section 3.04.
Global Securities may be issued in either registered or bearer form and
in either temporary or permanent form.
ARTICLE THREE
The Securities
SECTION 3.01. Title and Terms. The aggregate principal amount of
Securities which may be authenticated and delivered under this Indenture is
unlimited. The Securities may be issued up to the aggregate principal amount of
Securities from time to time authorized by or pursuant to a Board Resolution.
The Securities may be issued in one or more series. All Securities of
each series issued under this Indenture shall in all respects be equally and
ratably entitled to the benefits hereof with respect to such series without
preference, priority or distinction on account of the actual time or times of
the authentication and delivery or Maturity of the Securities of such series.
There shall be established in or pursuant to a Board Resolution, and set forth
in, or determined in the manner provided in, an Officers' Certificate, or
established in one or more indentures supplemental hereto, prior to the issuance
of Securities of any series:
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(i) the title of the Securities of the series (which shall
distinguish the Securities of the series from all other Securities);
(ii) any limit upon the aggregate principal amount or aggregate
initial public offering price of the Securities of the series which may be
authenticated and delivered under this Indenture (except for Securities
authenticated and delivered upon registration of transfer of, or in exchange
for, or in lieu of, other Securities of that series pursuant to this Article
Three or Sections 4.07, 9.06 or 15.03);
(iii) the priority of payment, if any, of the Securities;
(iv) The price or prices (which may be expressed as a percentage of
the aggregate principal amount thereof) at which the Securities will be issued;
(v) the date or dates on which the principal and premium, if any, of
the Securities of the series is payable;
(vi) the rate or rates at which the Securities of the series shall
bear interest, if any, or the method or methods by which such rates may be
determined, if any, the date or dates from which such interest shall accrue, the
Interest Payment Dates on which such interest shall be payable, the Regular
Record Date for the interest payable on any Interest Payment Date and the basis
upon which interest shall be calculated if other than that of a 360-day year
consisting of twelve 30-day months;
(vii) the extent to which any of the Securities will be issuable in
temporary or permanent global form, and in such case, the Depositary for such
Global Security or Securities, the terms and conditions, if any, upon which such
Global Security may be exchanged in whole or in part for definitive securities,
and the manner in which any interest payable on a temporary or permanent Global
Security will be paid, whether or not consistent with Section 3.04 or 3.05;
(viii) the office or offices or agency where, subject to Section 5.02,
the Securities may be presented for registration of transfer or exchange;
(ix) the place or places where, subject to the provisions of Section
5.02, the principal of (and
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premium, if any) and interest, if any, on Securities of the series shall be
payable;
(x) the period or periods within which, the price or prices at which
and the terms and conditions upon which Securities of the series may be
redeemed, in whole or in part, at the option of the Company;
(xi) the obligation, if any, of the Company to redeem or purchase
Securities of the series pursuant to any sinking fund or analogous provisions or
at the option of a Holder thereof and the period or periods within which, the
price or prices at which and the terms and conditions upon which Securities of
the series shall be redeemed or purchased, in whole or in part, pursuant to such
obligation;
(xii) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which Registered Securities of the series shall be
issuable; and, if other than $5,000 or any integral multiple thereof, the
denominations in which Bearer Securities of the series shall be issuable;
(xiii) the currency or currencies of denominations of the Securities of
any series, which may be in Dollars, any Foreign Currency or any composite
currency, and, if any such currency of denomination is a composite currency, the
agency or organization, if any, responsible for overseeing such composite
currency;
(xiv) the currency or currencies in which payment of the principal of
(and premium, if any) and interest on the Securities will be made, the currency
or currencies, if any, in which payment of the principal of (and premium, if
any) or the interest on Registered Securities, at the election of each of the
Holders thereof, may also be payable and the periods within which and the terms
and conditions upon which such election is to be made and the Exchange Rate and
the Exchange Rate Agent;
(xv) if the amount of payments of principal of (and premium, if any)
or any interest on Securities of the series may be determined with reference to
an index, the method or methods by which such amounts shall be determined;
(xvi) whether Securities of the series are to be issuable as
Registered Securities, Bearer Securities or both, whether Securities of the
series are to be
<PAGE> 24
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issuable with or without coupons or both and, in the case of Bearer Securities,
the date as of which such Bearer Securities shall be dated if other than the
date of original issuance of the first Security of such series of like tenor and
term to be issued;
(xvii) whether, and under what conditions, additional amounts will be
payable to Holders of Securities of the series pursuant to Section 5.04;
(xviii) whether any of the Securities will be issued as Original Issue
Discount Securities and the portion of the principal amount of such Securities
which shall be payable upon declaration of acceleration of the Maturity thereof
pursuant to Section 7.02;
(xix) information with respect to book-entry procedures, if any;
(xx) any addition to or change in the Events of Default or covenants
of the Company pertaining to the Securities of the series; and
(xxi) any other terms of the series.
All Securities of any one series and the coupons appertaining to Bearer
Securities of such series, if any, shall be substantially identical except, in
the case of Registered Securities, as to denomination and except as may
otherwise be provided in or pursuant to such Board Resolution and set forth, or
determined in the manner provided in such Officers' Certificate or in any
indenture supplement hereto.
Securities of any particular series may be issued at various times, with
different dates on which the principal or any installment of principal is
payable, with different rates of interest, if any, or different methods by which
rates of interest may be determined, with different dates on which such interest
may be payable and with different Redemption Dates or Repayment Dates and may be
denominated in different currencies or payable in different currencies.
All Securities shall be subordinate and junior in right of payment to
the obligations of the Company to holders of Senior Indebtedness and creditors
in respect of General Obligations of the Company as provided in Article
Fourteen.
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Notwithstanding Section 3.01(ii) and unless otherwise expressly provided
with respect to a series of Securities, the aggregate principal amount of a
series of Securities may be increased and additional Securities of such series
may be issued up to the maximum aggregate principal amount authorized with
respect to such series as increased.
SECTION 3.02. Denominations. The Securities of each series shall be
issuable in such form and denominations as shall be specified as contemplated by
Section 3.01. In the absence of any specification with respect to the Securities
of any series, the Registered Securities of each series shall be issuable only
as Securities without coupons in denominations of $1,000 and any integral
multiple thereof and the Bearer Securities of each series, if any, shall be
issuable with coupons and in denominations of $5,000 and any integral multiple
thereof.
SECTION 3.03. Execution, Authentication, Delivery and Dating. The
Securities shall be executed on behalf of the Company by its [Chairman of the
Board, its President, or one of its Vice Presidents, or its Treasurer and by its
Secretary or one of its Assistant Secretaries]. The signatures of any or all of
these officers on the Securities may be manual or facsimile. Coupons shall bear
the facsimile signature of the Company's [Chairman of the Board, its President,
or one of its Vice Presidents, or its Treasurer].
Securities and coupons bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Securities or
did not hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series, together with
any coupons appertaining thereto, executed by the Company to the Trustee for
authentication, together with a Company Order for the authentication and
delivery of such Securities, and the Trustee shall, upon receipt of the Company
Order, authenticate and deliver such Securities as in this Indenture provided
and not otherwise; provided, however, that, in connection with its original
issuance, no Bearer Security shall be mailed or otherwise delivered to any
location in the United States; and provided further that a Bearer Security may
be delivered in connection with its
<PAGE> 26
26
original issuance only if the Person entitled to receive such Bearer Security
shall have delivered to the Trustee, or such other Person as shall be specified
in a temporary Global Security delivered pursuant to Section 3.04, a certificate
in the form required by Section 3.11(i).
If the Company shall establish pursuant to Section 3.01 that the
Securities of a series are to be issued in whole or in part in the form of one
or more Global Securities in registered or permanent bearer form, then the
Company shall execute and the Trustee shall, in accordance with this Section and
a Company Order for the authentication and delivery of such Global Securities
with respect to such series, authenticate and deliver one or more Global
Securities in permanent or temporary form that (i) shall represent and shall be
denominated in an aggregate amount equal to the aggregate principal amount of
the Outstanding Securities of such series to be represented by one or more
Global Securities, (ii) shall be registered, if in registered form, in the name
of the Depositary for such Global Security or Securities or the nominee of such
Depositary and (iii) shall be delivered by the Trustee to such Depositary or
pursuant to such Depositary's instructions.
Each Depositary designated pursuant to Section 3.01 for a Global
Security in registered form must, at the time of its designation and at all
times while it serves as Depositary, be a clearing agency registered under the
Exchange Act and any other applicable statute or regulation.
In authenticating such Securities, and accepting the additional
responsibilities under this Indenture in relation to such Securities, the
Trustee shall be entitled to receive, and (subject to Section 8.01) shall be
fully protected in relying upon, an Opinion of Counsel complying with Section
1.02 and stating that:
(i) the form of such Securities and coupons, if any, has been
established in conformity with the provisions of this Indenture;
(ii) the terms of such Securities and coupons, if any, or the manner
of determining such terms, have been established in conformity with the
provisions of this Indenture;
(iii) that such Securities and coupons, when authenticated and
delivered by the Trustee and issued by the Company in the manner and subject to
any
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27
conditions specified in such Opinion of Counsel, will constitute valid and
legally binding obligations of the Company, enforceable against the Company in
accordance with their terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and other laws of general applicability
relating to or affecting the enforcement of creditors' rights and to general
principles of equity; and
(iv) such other matters as the Trustee may reasonably request.
The Trustee shall not be required to authenticate such Securities if the
issue thereof will adversely affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 3.01 and of this Section 3.03,
if all Securities of a series are not to be originally issued at one time, it
shall not be necessary to deliver the Board Resolution or Officers' Certificate
otherwise required pursuant to Section 3.01 or the Company Order and Opinion of
Counsel otherwise required pursuant to this Section 3.03 at or prior to the time
of authentication of each Security of such series if such documents are
delivered at or prior to the authentication upon original issuance of the first
Security of such series to be issued and such documents reasonably contemplate
the issuance of all Securities of such series; provided that any subsequent
request by the Company to the Trustee to authenticate Securities of such series
upon original issuance shall constitute a representation and warranty by the
Company that as of the date of such request, the statements made in the
Officers' Certificate or other certificates delivered pursuant to Sections 1.02
and 3.01 shall be true and correct as if made on such date.
A Company Order, Officers' Certificate or Board Resolution or
supplemental indenture delivered by the Company to the Trustee in the
circumstances set forth in the preceding paragraph may provide that Securities
which are the subject thereof will be authenticated and delivered by the Trustee
or its agent on original issue from time to time in the aggregate principal
amount, if any, established for such series pursuant to such procedures
acceptable to the Trustee as may be specified from time to time by Company Order
upon the telephonic (promptly confirmed in writing), electronic or written order
of Persons designated in such Company Order, Officers' Certificate, supplemental
indenture or Board Resolution and that such Persons are authorized to
<PAGE> 28
28
determine, consistent with such Company Order, Officers' Certificate,
supplemental indenture or Board Resolution, such terms and conditions of said
Securities as are specified in such Company Order, Officers' Certificate,
supplemental indenture or Board Resolution.
Each Registered Security shall be dated the date of its authentication;
and unless otherwise specified as contemplated by Section 3.01, each Bearer
Security and any temporary Global Security referred to in Section 3.04 shall be
dated as of the date of original issuance of such Security.
No Security or coupon appertaining thereto shall be entitled to any
benefit under this Indenture or be valid or obligatory for any purpose, unless
there appears on such Security a certificate of authentication substantially in
the form provided for herein executed by the Trustee by manual signature of an
authorized officer, and such certificate upon any Security shall be conclusive
evidence, and the only evidence, that such Security has been duly authenticated
and delivered hereunder. Except as permitted by Section 3.06, the Trustee shall
not authenticate and deliver any Bearer Security unless all appurtenant coupons
for interest then matured have been detached and canceled. Notwithstanding the
foregoing, if any Security or portion thereof shall have been duly authenticated
and delivered hereunder but never issued and sold by the Company, and the
Company shall deliver such Security to the Trustee for cancellation as provided
in Section 3.09 together with a written statement (which need not comply with
Section 1.02 and need not be accompanied by an Opinion of Counsel) stating that
such Security or portion thereof has never been issued and sold by the Company,
for all purposes of this Indenture such Security shall be deemed never to have
been authenticated and delivered hereunder and shall never be entitled to the
benefits of this Indenture.
SECTION 3.04. Temporary Securities. (a) Pending the preparation of
definitive Securities of any series, the Company may execute, and upon Company
Order and the receipt of the certifications and opinions required under Sections
3.01 and 3.03, the Trustee shall authenticate and deliver, temporary Securities
which are printed, lithographed, typewritten, mimeographed or otherwise
produced, in any authorized denominations, substantially of the tenor of the
definitive Securities in lieu of which they are issued in registered form or, if
authorized, in bearer form with one or more coupons or without coupons, and with
such appropriate insertions, omissions, substitutions and other variations as
the officers executing such Securities
<PAGE> 29
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may determine, as evidenced by their execution of such Securities. In the case
of any series which may be issuable as Bearer Securities, such temporary
Securities may be in global form, representing such of the Outstanding
Securities of such series as shall be specified therein.
(b) Unless otherwise provided pursuant to Section 3.01:
(i) Except in the case of temporary Securities in global form, each
of which shall be exchanged in accordance with the provisions of the following
paragraphs, if temporary Securities of any series are issued, the Company will
cause definitive Securities of such series to be prepared without unreasonable
delay. After the preparation of definitive Securities, the temporary Securities
of such series shall be exchangeable for definitive Securities of such series
upon surrender of the temporary Securities of such series at the office or
agency of the Company in a Place of Payment for that series, without charge to
the Holder. Upon surrender for cancellation of any one or more temporary
Securities of any series (accompanied, if applicable, by all unmatured coupons
and all matured coupons in default appertaining thereto), the Company shall
execute and the Trustee shall authenticate and deliver in exchange therefor a
like principal amount of definitive Securities of such series of authorized
denominations; provided, however, that no definitive Bearer Security shall be
delivered in exchange for a temporary Registered Security; and provided further
that a definitive Bearer Security shall be delivered in exchange for a temporary
Bearer Security only in compliance with the conditions set forth in the
provisions of the third paragraph of Section 3.03. Until so exchanged, the
temporary Securities of any series shall in all respects be entitled to the same
benefits under this Indenture as definitive Securities of such series.
(ii) If temporary Securities of any series are issued in global form,
any such temporary Global Security shall, unless otherwise provided in such
temporary Global Security, be delivered to the London office of a depositary or
common depositary (the "Common Depositary"), for the benefit of the operator of
Euroclear and CEDEL S.A., for credit to the respective accounts of the
beneficial owners of such Securities (or to such other accounts as they may
direct). Upon receipt of written instructions (which need not comply with
Section 1.02) signed on behalf of
<PAGE> 30
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the Company by any Person authorized to give such instructions, the Trustee or
any Authenticating Agent shall endorse such temporary Global Security to reflect
the initial principal amount, or an increase in the principal amount, of
Outstanding Securities represented thereby. Until such initial endorsement, such
temporary Global Security shall not evidence any obligation of the Company. Such
temporary Global Security shall at any time represent the aggregate principal
amount of Outstanding Securities theretofore endorsed thereon as provided above,
subject to reduction to reflect exchanges as described below.
(iii) Unless otherwise specified in such temporary Global Security,
and subject to the second proviso in the following paragraph, the interest of a
beneficial owner of Securities of a series in a temporary Global Security shall
be exchanged for definitive Securities (including a definitive Global Bearer
Security) of such series and of like tenor following the Global Exchange Date
(as defined below) when the account holder instructs Euroclear or CEDEL S.A., as
the case may be, to request such exchange on his behalf and delivers to
Euroclear or CEDEL S.A., as the case may be, a certificate in the form required
by Section 3.11(i), dated no earlier than 15 days prior to the Global Exchange
Date, copies of which certificate shall be available from the offices of
Euroclear and CEDEL S.A., the Trustee, any Authenticating Agent appointed for
such series of Securities and each Paying Agent. Unless otherwise specified in
such temporary Global Security, any such exchange shall be made free of charge
to the beneficial owners of such temporary Global Security, except that a Person
receiving definitive Securities must bear the cost of insurance, postage,
transportation and the like in the event that such Person does not take delivery
of such definitive Securities in person at the offices of Euroclear or CEDEL
S.A. Definitive Securities in bearer form to be delivered in exchange for any
portion of a temporary Global Security shall be delivered only outside the
United States.
(iv) Without unnecessary delay but in any event not later than the
date specified in, or determined pursuant to the terms of, any such temporary
Global Security as the "Global Exchange Date" (the "Global Exchange Date"), the
Company shall deliver to the Trustee, or, if the Trustee appoints an
Authenticating Agent pursuant to Section 8.14, to any such Authenticating Agent,
definitive Securities in
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aggregate principal amount equal to the principal amount of such temporary
Global Security, executed by the Company. Unless otherwise specified as
contemplated by Section 3.01, such definitive Securities shall be in the form of
Bearer Securities or Registered Securities, or any combination thereof, as may
be specified by the Company, the Trustee or any such Authenticating Agent, as
may be appropriate. On or after the Global Exchange Date, such temporary Global
Security shall be surrendered by the Common Depositary to the Trustee or any
such Authenticating Agent, as the Company's agent for such purpose, to be
exchanged, in whole or from time to time in part, for definitive Securities
without charge and the Trustee or any such Authenticating Agent shall
authenticate and deliver, in exchange for each portion of such temporary Global
Security, an equal aggregate principal amount of definitive Securities of the
same series, of authorized denominations and of like tenor as the portion of
such temporary Global Security to be exchanged, which, except as otherwise
specified as contemplated by Section 3.01, shall be in the form of Bearer
Securities or Registered Securities, or any combination thereof; provided,
however, that, unless otherwise specified in such temporary Global Security,
upon such presentation by the Common Depositary, such temporary Global Security
is accompanied by a certificate dated the Global Exchange Date or a subsequent
date and signed by Euroclear as to the portion of such temporary Global Security
held for its account then to be exchanged and a certificate dated the Global
Exchange Date or a subsequent date and signed by CEDEL S.A., as to the portion
of such temporary Global Security held for its account then to be exchanged,
each in the form required by Section 3.11(ii); and provided further that a
definitive Bearer Security (including a definitive global Bearer Security) shall
be delivered in exchange for a portion of a temporary Global Security only in
compliance with the conditions set forth in the provisions of the third
paragraph of Section 3.03.
(v) Upon any exchange of a portion of any such temporary Global
Security, such temporary Global Security shall be endorsed by the Trustee or any
such Authenticating Agent, as the case may be, to reflect the reduction of the
principal amount evidenced thereby, whereupon its remaining principal amount
shall be reduced for all purposes by the amount so exchanged. Until so exchanged
in full, such temporary Global Security shall in all respects be entitled to the
same benefits under this Indenture as definitive Securities
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of such series authenticated and delivered hereunder, except that, unless
otherwise specified as contemplated by Section 3.01, interest payable on such
temporary Global Security on an Interest Payment Date for Securities of such
series occurring prior to the applicable Global Exchange Date shall be payable,
without interest, to Euroclear and CEDEL S.A. on or after such Interest Payment
Date upon delivery by Euroclear and CEDEL S.A. to the Trustee or the Paying
Agent, as the case may be, of a certificate or certificates in the form required
by Section 3.11(iii), for credit on or after such Interest Payment Date to the
respective accounts of the Persons who are the beneficial owners of such
temporary Global Security on such Interest Payment Date and who have each
delivered to Euroclear or CEDEL S.A., as the case may be, a certificate in the
form required by Section 3.11(iv). Any interest so received by Euroclear and
CEDEL S.A. and not paid as herein provided prior to the Global Exchange Date
shall be returned to the Trustee or Paying Agent, as the case may be, which,
upon expiration of two years after such Interest Payment Date, shall repay such
interest to the Company on Company Request in accordance with Section 5.03.
SECTION 3.05. Registration, Registration of Transfer and Exchange. With
respect to Registered Securities, the Company shall keep or cause to be kept a
register (sometimes referred to as the "Security Register") in which, subject to
such reasonable regulations as it may prescribe, the Company shall provide for
the registration of Registered Securities and the registration of transfers of
Registered Securities and the Company shall appoint a "Security Registrar" and
may appoint any "Co-Security Registrar", as may be appropriate, to keep the
Security Register. Such Security Register shall be in written form or in any
other form capable of being converted into written form within a reasonable
time. At all reasonable times the information contained in such Security
Register shall be available for inspection by the Trustee at the office of the
Security Registrar. In the event that any Registered Securities issued hereunder
have The City of [________] as a Place of Payment, the Company shall appoint
either a Security Registrar or Co-Security Registrar located in The City of
[________].
Upon surrender for registration of transfer of any Registered Security
of any series at the office or agency of the Company maintained pursuant to
Section 5.02 for such purpose in a Place of Payment for such series, the Company
shall execute, and the Trustee shall authenticate and
<PAGE> 33
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deliver, in the name of the designated transferee or transferees, one or more
new Registered Securities of such series of any authorized denominations and of
a like aggregate principal amount, tenor and Stated Maturity.
At the option of the Holder, Registered Securities of any series may be
exchanged for other Registered Securities of such series, of any authorized
denominations and of like aggregate principal amount, tenor and Stated Maturity,
upon surrender of the Securities to be exchanged at such office or agency.
Whenever any Securities are so surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and deliver, the Securities which
the Holder making the exchange is entitled to receive.
Registered Securities may not be exchanged for Bearer Securities.
At the option of the Holder, Bearer Securities of any series may be
exchanged for Registered Securities of the same series of any authorized
denominations and of a like aggregate principal amount and tenor, upon surrender
of the Bearer Securities to be exchanged at any such office or agency, with all
unmatured coupons and all matured coupons in default thereto appertaining. If
the Holder of a Bearer Security is unable to produce any such unmatured coupon
or coupons or matured coupon or coupons in default, such exchange may be
effected if the Bearer Securities are accompanied by payment in funds acceptable
to the Company in an amount equal to the face amount of such missing coupon or
coupons, or the surrender of such missing coupon or coupons may be waived by the
Company and the Trustee if there be furnished to them such security or indemnity
as they may require to save each of them and any Paying Agent harmless. If
thereafter the Holder of such Security shall surrender to any Paying Agent any
such missing coupon in respect of which such a payment shall have been made,
such Holder shall be entitled to receive the amount of any such payment from the
Company; provided, however, that interest represented by coupons shall be
payable only upon presentation and surrender of those coupons at an office or
agency of a Paying Agent, maintained pursuant to Section 5.02 for such purpose,
located outside the United States. Notwithstanding the foregoing, in case a
Bearer Security of any series is surrendered at any such office or agency in
exchange for a Registered Security of the same series and like tenor after the
close of business at such office or agency on (i) any Regular Record Date and
before the opening of business at such office or agency on the relevant Interest
Payment Date, or (ii) any Special Record Date and before the opening of business
at such office or agency on the related date for
<PAGE> 34
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payment of Defaulted Interest, such Bearer Security shall be surrendered without
the coupon relating to such Interest Payment Date or proposed date for payment,
as the case may be.
Notwithstanding any other provision of this Section, unless and until it
is exchanged in whole or in part for individual Securities represented thereby,
a Global Security representing all or a portion of the Securities of a series
may not be transferred except as a whole by the Depositary for such series to a
nominee of such Depositary or by a nominee of such Depositary to such Depositary
or another nominee of such Depositary or by such Depositary or any such nominee
to a successor Depositary for such series or a nominee of such successor
Depositary.
Whenever any Securities are so surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and deliver, the Securities
which the Holder making the exchange is entitled to receive.
If at any time the Depositary for the Securities of a series notifies
the Company that it is unwilling or unable to continue as Depositary for the
Securities of such series or if at any time the Depositary for the Securities of
such series shall no longer be eligible under Section 3.03, the Company shall
appoint a successor Depositary with respect to the Securities of such series. If
a successor Depositary for the Securities of such series is not appointed by the
Company within 90 days after the Company receives such notice or becomes aware
of such ineligibility, the Company's election pursuant to Section 3.01(vii)
shall no longer be effective with respect to the Securities of such series and
the Company will execute, and the Trustee, upon receipt of a Company Order for
the authentication and delivery of definitive Securities of such series, will
authenticate and deliver Securities of such series of like tenor and terms in
definitive form in an aggregate principal amount equal to the principal amount
of the Global Security or Securities representing such series in exchange for
such Global Security or Securities.
The Company may at any time and in its sole discretion determine that
the Securities of any series issued in the form of one or more Global Securities
shall no longer be represented by such Global Security or Securities. In such
event, the Company will execute, and the Trustee, upon receipt of a Company
Order for the authentication and delivery of definitive Securities of such
series, will authenticate and deliver, Securities of such series of like tenor
and terms in definitive form in an aggregate principal
<PAGE> 35
35
amount equal to the principal amount of the Global Security or Securities
representing such series in exchange for such Global Security or Securities.
If specified by the Company pursuant to Section 3.01 with respect to a
series of Securities, the Depositary for such series of Securities may surrender
a Global Security for such series of Securities in exchange in whole or in part
for Securities of such series of like tenor and terms and in definitive form on
such terms as are acceptable to the Company, the Trustee and such Depositary.
Thereupon, the Company shall execute, and the Trustee upon receipt of a Company
Order for the authentication and delivery of definitive Securities of such
series, shall authenticate and deliver, without service charge:
(a) to the Depositary or to each Person specified by such Depositary
a new Security or Securities of the same series, of like tenor and terms and of
any authorized denomination as requested by such Person in aggregate principal
amount equal to and in exchange for such Person's beneficial interest in the
Global Security; and
(b) to such Depositary a new Global Security of like tenor and terms
and in an authorized denomination equal to the difference, if any, between the
principal amount of the surrendered Global Security and the aggregate principal
amount of Securities delivered to Holders thereof.
In any exchange provided for in any of the preceding three paragraphs,
the Company will execute and the Trustee, pursuant to a Company Order, will
authenticate and deliver, Securities (a) in definitive registered form in
authorized denominations, if the Securities of such series are issuable as
Registered Securities, (b) in definitive bearer form in authorized
denominations, with coupons attached, if the Securities of such series are
issuable as Bearer Securities or (c) as either Registered or Bearer Securities,
if the Securities of such series are issuable in either form; provided, however,
that no definitive Bearer Security shall be delivered in exchange for a
temporary Global Security other than in accordance with the provisions of
Sections 3.03 and 3.04.
Upon the exchange of Global Securities for Securities in definitive
form, such Global Securities shall be canceled by the Trustee. Registered
Securities issued in exchange for a Global Security pursuant to this Section
3.05 shall be registered in such names and in such authorized
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36
denominations, and delivered to such addresses, as the Depositary for such
Global Security, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee in writing. The Trustee
shall deliver such Registered Securities to the Persons in whose names such
Securities are so registered or to the Depositary. The Trustee shall deliver
Bearer Securities issued in exchange for a Global Security pursuant to this
Section 3.05 to the Depositary or to the Persons at such addresses, and in such
authorized denominations, as the Depositary for such Global Security, pursuant
to instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee in writing; provided, however, that no definitive Bearer
Security shall be delivered in exchange for a temporary Global Security other
than in accordance with the provisions of Sections 3.03 and 3.04.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or
exchange shall (if so required by the Company or the Security Registrar) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
Unless otherwise provided in the Securities to be registered for
transfer or exchanged, no service charge shall be made for any registration of
transfer or exchange of Securities, but the Company may (unless otherwise
provided in such Securities) require payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in connection with any
registration of transfer or exchange of Securities, other than exchanges
expressly provided in this Indenture to be made at the Company's own expense or
without expense or without charge to Holders.
Neither the Company, the Security Registrar nor any Co-Security
Registrar shall be required (i) to issue, register the transfer of or exchange
any Securities of any series during a period beginning at the opening of
business 15 days before the day of selection of Securities of such series to be
redeemed and ending at the close of business on
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(A) if Securities of the series are issuable only as Registered Securities, the
day of the mailing of the relevant notice of redemption of Registered Securities
of such series so selected for redemption or (B) if Securities of the series are
issuable as Bearer Securities, the day of the first publication of the relevant
notice of redemption or, if Securities of the series are also issuable as
Registered Securities and there is no publication, the mailing of the relevant
notice of redemption, or (ii) to register the transfer or exchange of any
Securities or portions thereof so selected for redemption.
Notwithstanding anything herein to the contrary, the exchange of Bearer
Securities into Registered Securities shall be subject to applicable laws and
regulations in effect at the time of exchange; none of the Company, the Trustee
nor the Security Registrar shall exchange any Bearer Securities into Registered
Securities if it has received an Opinion of Counsel that as a result of such
exchanges the Company would suffer adverse consequences under the United States
Federal income tax laws and regulations then in effect and the Company has
delivered to the Trustee a Company Order directing the Trustee not to make such
exchanges unless and until the Trustee receives a subsequent Company Order to
the contrary. The Company shall deliver copies of such Company Orders to the
Security Registrar.
SECTION 3.06. Mutilated, Destroyed, Lost and Stolen Securities. If (i)
any mutilated Security or Security with a mutilated coupon is surrendered to the
Trustee or the Security Registrar, or if the Company, the Trustee and the
Security Registrar receive evidence to their satisfaction of the destruction,
loss or theft of any Security or coupon and (ii) there is delivered to the
Company, the Trustee and the Security Registrar such security or indemnity as
may be required by them to save each of them harmless, then, in the absence of
notice to the Company, the Trustee or the Security Registrar that such Security
has been acquired by a bona fide purchaser, the Company shall execute and upon
its request the Trustee shall authenticate and deliver, in lieu of any such
mutilated, destroyed, lost or stolen Security or in exchange for the Security to
which a mutilated, destroyed, lost or stolen coupon appertains (with all
appurtenant coupons not mutilated, destroyed, lost or stolen), a new Security of
the same series and Stated Maturity and of like tenor and principal amount,
bearing a number not contemporaneously outstanding and, if applicable, with
coupons corresponding to the coupons appertaining thereto; provided, however,
that any new Bearer Security will be delivered only in compliance with the
conditions set forth in Section 3.05.
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In case any such mutilated, destroyed, lost or stolen Security or coupon
has become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Security, pay such Security; provided, however,
that payment of principal of (and premium, if any) and any interest on Bearer
Securities shall be payable only at an office or agency located outside the
United States, and, in the case of interest, unless otherwise specified as
contemplated by Section 3.01, only upon presentation and surrender of the
coupons appertaining thereto.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series, with its coupons, if any, issued
pursuant to this Section in lieu of any destroyed, lost or stolen Security, or
in exchange for a Security with a destroyed, lost or stolen coupon, shall
constitute an original additional contractual obligation of the Company, whether
or not the destroyed, lost or stolen Security and its coupons, if any, or the
destroyed, lost or stolen coupon shall be at any time enforceable by anyone, and
shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities of the same series and their
coupons, if any, duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities or coupons.
SECTION 3.07. Payment of Interest; Interest Rights Preserved. Unless
otherwise provided as contemplated by Section 3.01, interest on any Registered
Security which is payable, and is punctually paid or duly provided for, on any
Interest Payment Date shall unless otherwise provided in such Security be paid
to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest. Unless otherwise specified as contemplated by Section 3.01,
in case a Bearer Security of any series is surrendered in exchange for a
Registered Security of such series after the close of business (at an office or
agency referred to in Section 3.05) on any Regular Record Date and before the
opening of business (at such office or agency) on the next succeeding Interest
Payment
<PAGE> 39
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Date, such Bearer Security shall be surrendered without the coupon relating to
such Interest Payment Date and interest will not be payable on such Interest
Payment Date in respect of the Registered Security issued in exchange for such
Bearer Security, but will be payable only to the Holder of such coupon when due
in accordance with the provisions of this Indenture. At the option of the
Company, payment of interest on any Registered Security may be made by check in
the currency designated for such payment pursuant to the terms of such
Registered Security mailed to the address of the Person entitled thereto as such
address shall appear in the Security Register or by wire transfer to an account
in such currency designated by such Person in writing not later than ten days
prior to the date of such payment.
Any interest on any Registered Security which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of his having been such Holder,
and such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in clause (i) or clause (ii) below.
(i) The Company may elect to make payments of any Defaulted Interest
to the Persons in whose names any such Registered Securities (or their
respective Predecessor Securities) are registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest, which shall be
fixed in the following manner. The Company shall notify the Trustee in writing
of the amount of Defaulted Interest proposed to be paid on each Registered
Security and the date of the proposed payment, and at the same time the Company
shall deposit with the Trustee an amount of money equal to the aggregate amount
proposed to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to the date of
the proposed payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this clause
provided. Thereupon the Trustee shall fix a Special Record Date for the payment
of such Defaulted Interest which shall be not more than 15 nor less than 10 days
prior to the date of the proposed payment and not less than 10 days after the
receipt by the Trustee of the notice of the proposed payment. The Trustee shall
promptly notify the Company of such Special Record Date and, in the name and at
the expense of the Company, shall cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor to be mailed, first
class, postage prepaid, to each Holder at his address as it appears in the
Security
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Register, not less than 10 days prior to such Special Record Date. Notice of the
proposed payment of such Defaulted Interest and the Special Record Date therefor
having been mailed as aforesaid, such Defaulted Interest shall be paid to the
Persons in whose names such Registered Securities (or their respective
Predecessor Securities) are registered on such Special Record Date and shall no
longer be payable pursuant to the following clause (ii). In case a Bearer
Security of any series is surrendered at the office or agency in a Place of
Payment for such series in exchange for a Registered Security of such series
after the close of business at such office or agency on any Special Record Date
and before the opening of business at such office or agency on the related
proposed date of payment of Defaulted Interest, such Bearer Security shall be
surrendered without the coupon relating to such proposed date for payment and
Defaulted Interest will not be payable on such proposed date for payment in
respect of the Registered Security issued in exchange for such Bearer Security,
but will be payable only to the Holder of such coupon when due in accordance
with the provisions of this Indenture.
(ii) The Company may make payment of any Defaulted Interest in any
other lawful manner not inconsistent with the requirements of any securities
exchange on which the Securities with respect to which there exists such default
may be listed, and upon such notice as may be required by such exchange, if,
after notice given by the Company to the Trustee of the proposed payment
pursuant to this clause, such payment shall be deemed practicable by the
Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of, or in exchange
for, or in lieu of, any other Security shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Security.
Subject to the limitations set forth in Section 5.02, the Holder of any
coupon appertaining to a Bearer Security shall be entitled to receive the
interest payable on such coupon upon presentation and surrender of such coupon
on or after the Interest Payment Date of such coupon at an office or agency
maintained for such purpose pursuant to Section 5.02.
SECTION 3.08. Persons Deemed Owners. Title to any Bearer Security, any
coupons appertaining thereto and any temporary Global Security shall pass by
delivery.
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Prior to due presentment for registration of transfer of any Registered
Security, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name such Security is registered as the owner of
such Security for the purpose of receiving payment of principal of, premium, if
any, and (subject to Section 3.07) interest on such Security, and for all
purposes whatsoever, whether or not such Security be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
The Company, the Trustee and any agent of the Company or the Trustee may
treat the bearer of any Bearer Security and the bearer of any coupon as the
absolute owner of such Security or coupon for the purpose of receiving payment
thereof or on account thereof and for all other purposes whatsoever, whether or
not such Security or coupon be overdue, and neither the Company, the Trustee nor
any agent of the Company or the Trustee shall be affected by notice to the
contrary.
None of the Company, the Trustee, any Paying Agent, any Authenticating
Agent or the Security Registrar will have the responsibility or liability for
any aspect of the records relating to or payments made on account of beneficial
ownership interest of a Global Security or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interest, and they
shall be fully protected in acting or refraining from acting on any such
information provided by the Depositary.
SECTION 3.09. Cancellation. Unless otherwise provided with respect to a
series of Securities, all Securities and coupons surrendered for payment,
registration of transfer, exchange, repayment or redemption shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee.
All Securities so delivered or surrendered directly to the Trustee for any such
purpose shall be promptly cancelled by it. The Company may at any time deliver
to the Trustee for cancellation any Securities previously authenticated and
delivered hereunder which the Company may have acquired in any manner
whatsoever, and all Securities so delivered shall be promptly cancelled by the
Trustee. No Securities shall be authenticated in lieu of or in exchange for any
Securities cancelled as provided in this Section, except as expressly permitted
by this Indenture or such Securities. All cancelled Securities or coupons held
by the Trustee shall be disposed of by the Trustee in accordance with its
customary procedures and the Trustee
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shall deliver a certificate of such disposition to the Company.
SECTION 3.10. Computation of Interest. Interest on the Securities of
each series shall be computed as shall be specified as contemplated by Section
3.01.
SECTION 3.11. Form of Certification. Unless otherwise provided pursuant
to Section 3.01:
(i) Whenever any provision of this Indenture or the forms of
Securities contemplate that certification be given by a Person entitled to
receive a Bearer Security, such certification shall be provided substantially in
the form of Exhibit A hereto, with only such changes as shall be approved by the
Company.
(ii) Whenever any provision of this Indenture or the forms of
Securities contemplate that certification be given by Euroclear and CEDEL S.A.
in connection with the exchange of a portion of a temporary Global Security,
such certification shall be provided substantially in the form of Exhibit B
hereto, with only such changes as shall be approved by the Company.
(iii) Whenever any provision of the Indenture or the forms of
Securities contemplate that certification be given by Euroclear and CEDEL S.A.
in connection with payment of interest with respect to a temporary Global
Security prior to the related Global Exchange Date, such certification shall be
provided substantially in the form of Exhibit C hereto, with only such changes
as shall be approved by the Company.
(iv) Whenever any provision of the Indenture or the forms of
Securities contemplate that certification be given by a beneficial owner of a
portion of a temporary Global Security in connection with payment of interest
with respect to a temporary Global Security prior to the related Global Exchange
Date, such certification shall be provided substantially in the form of Exhibit
D hereto, with only such changes as shall be approved by the Company.
SECTION 3.12. Judgments. The Company may provide, pursuant to Section
3.01, for the Securities of any series that, to the fullest extent possible
under applicable law and except as may otherwise be specified as contemplated in
Section 3.01, (a) the obligation, if any, of the Company to pay the principal of
(and premium, if any) and interest on the Securities of any series and any
appurtenant coupons
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in a Foreign Currency, composite currency or Dollars (the "Designated Currency")
as may be specified pursuant to Section 3.01 is of the essence and agrees that
judgments in respect of such Securities shall be given in the Designated
Currency; (b) the obligation of the Company to make payments in the Designated
Currency of the principal of (and premium, if any) and interest on such
Securities and any appurtenant coupons shall, notwithstanding any payment in any
other currency (whether pursuant to a judgment or otherwise), be discharged only
to the extent of the amount in the Designated Currency that the Holder receiving
such payment may, in accordance with normal banking procedures, purchase with
the sum paid in such other currency (after any premium and cost of exchange) in
the country of issue of the Designated Currency in the case of Foreign Currency
or Dollars or in the international banking community in the case of a composite
currency on the Business Day immediately following the day on which such Holder
receives such payment; (c) if the amount in the Designated Currency that may be
so purchased for any reason falls short of the amount originally due, the
Company shall pay such additional amounts as may be necessary to compensate for
such shortfall; and (d) any obligation of the Company not discharged by such
payment shall be due as a separate and independent obligation and, until
discharged as provided herein, shall continue in full force and effect.
SECTION 3.13 CUSIP Numbers. The Company in issuing the Securities may
use "CUSIP" numbers or Euroclear or CEDEL reference numbers (if then generally
in use), and if, so, the Trustee shall use such numbers in notices of redemption
or other related material as a convenience to Holders; provided that any such
notice or other related material 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 redemption or other related material 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.
ARTICLE FOUR
Redemption of Securities
SECTION 4.01. Applicability of Article. Securities of any series which
are redeemable before their Stated Maturity shall be redeemable in accordance
with their terms and, except as otherwise specified as contemplated by
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Section 3.01 for Securities of any series, in accordance with this Article.
SECTION 4.02. Election To Redeem; Notice to Trustee. The election of the
Company to redeem any Securities redeemable at the option of the Company shall
be evidenced by an Officers' Certificate. In case of any redemption at the
election of the Company of the Securities of any series, the Company shall, at
least 60 days prior to the Redemption Date fixed by the Company (unless a
shorter notice shall be satisfactory to the Trustee), notify the Trustee and the
Security Registrar of such Redemption Date and of the principal amount of
Securities of such series to be redeemed. In the case of any redemption of
Securities (i) prior to the expiration of any restriction on such redemption
provided in the terms of such Securities or elsewhere in this Indenture, or (ii)
pursuant to an election of the Company which is subject to a condition specified
in the terms of such Securities, the Company shall furnish the Trustee with an
Officers' Certificate evidencing compliance with such restriction or condition.
SECTION 4.03. Selection by Security Registrar of Securities To Be
Redeemed. If less than all the Securities of any series with the same terms are
to be redeemed, the particular Securities to be redeemed shall be selected not
more than 60 days prior to the Redemption Date by the Security Registrar from
the Outstanding Securities of such series having such terms not previously
called for redemption, by such method as the Security Registrar shall deem fair
and appropriate and which may provide for the selection for redemption of
portions of the principal amount of Securities of such series of a denomination
equal to or larger than the minimum authorized denomination for Securities of
such series. Unless otherwise provided by the terms of the Securities of any
series so selected for partial redemption, the portions of the principal of
Securities of such series so selected for partial redemption shall be, in the
case of Registered Securities, equal to $1,000 or an integral multiple thereof
or, in the case of Bearer Securities, equal to $5,000 or an integral multiple
thereof, and the principal amount of any such Security which remains outstanding
shall not be less than the minimum authorized denomination for Securities of
such series.
The Security Registrar shall promptly notify the Company, the Trustee
and the Co-Security Registrar, if any, in writing of the Securities selected for
redemption and, in the case of any Security selected for partial redemption, the
principal amount thereof to be redeemed.
<PAGE> 45
45
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Security redeemed or to be redeemed only in part, to the
portion of the principal of such Security which has been or is to be redeemed.
SECTION 4.04. Notice of Redemption. Notice of redemption shall be given
in the manner provided in Section 1.06, not less than 30 nor more than 60 days
prior to the Redemption Date, to each Holder of Securities to be redeemed.
All notices of redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price;
(iii) if less than all Outstanding Securities of any series having the
same terms are to be redeemed, the identification (and, in the case of partial
redemption, the respective principal amounts) of the particular Securities to be
redeemed;
(iv) that on the Redemption Date the Redemption Price will become due
and payable upon each such Security to be redeemed, and that interest, if any,
thereon shall cease to accrue on and after said date;
(v) the place or places where such Securities, together in the case
of Bearer Securities with all remaining coupons appertaining thereto, if any,
maturing after the Redemption Date, are to be surrendered for payment of the
Redemption Price;
(vi) that the redemption is from a sinking fund, if such is the case;
and
(vii) the CUSIP number or the Euroclear or the CEDEL reference number
(or any other number used by a Depositary to identify such Securities), if any,
of the Securities to be redeemed.
A notice of redemption published as contemplated by Section 1.06 need
not identify particular Registered Securities to be redeemed.
Notice of redemption of Securities to be redeemed at the election of the
Company shall be given by the Company
<PAGE> 46
46
or, on Company Request, by the Trustee in the name and at the expense of the
Company.
SECTION 4.05. Deposit of Redemption Price. At or prior to the opening of
business on any Redemption Date, the Company shall deposit or cause to be
deposited with the Trustee or with a Paying Agent (or, if the Company is acting
as its own Paying Agent, segregate and hold in trust as provided in Section
5.03) an amount of money sufficient to pay the Redemption Price of all the
Securities which are to be redeemed on that date; provided, however, that
deposits with respect to Bearer Securities shall be made with a Paying Agent or
Paying Agents located outside the United States except as otherwise provided in
Section 5.02, unless otherwise specified as contemplated by Section 3.01.
SECTION 4.06. Securities Payable on Redemption Date. Notice of
redemption having been given as aforesaid, the Securities so to be redeemed
shall, on the Redemption Date, become due and payable at the Redemption Price
therein specified and from and after such date (unless the Company shall default
in the payment of the Redemption Price) such Securities shall cease to bear
interest and the coupons for such interest appertaining to any Bearer Securities
so to be redeemed, except to the extent provided below, shall be void. Upon
surrender of any such Securities for redemption in accordance with said notice,
such Securities shall be paid by the Company at the Redemption Price; provided,
however, that installments of interest on Bearer Securities whose Stated
Maturity is on or prior to the Redemption Date shall be payable only at an
office or agency located outside the United States and, unless otherwise
specified as contemplated by Section 3.01, only upon presentation and surrender
of coupons for such interest. Installments of interest on Registered Securities
whose Stated Maturity is on or prior to the Redemption Date shall be payable to
the Holders of such Securities, or one or more Predecessor Securities,
registered as such on the close of business on the relevant Regular Record Dates
according to their terms and the provisions of Section 3.07.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant coupons maturing after the Redemption Date, such
Security may be paid after deducting from the Redemption Price an amount equal
to the face amount of all such missing coupons, or the surrender of such missing
coupon or coupons may be waived by the Company and the Trustee if there be
furnished to them such security or indemnity as they may require to save each of
them and any Paying Agent harmless. If thereafter the Holder of such Security
shall surrender to the Trustee or any Paying Agent
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47
any such missing coupon in respect of which a deduction shall have been made
from the Redemption Price, such Holder shall be entitled to receive the amount
so deducted; provided, however, that interest represented by coupons shall be
payable only at an office or agency located outside the United States and,
unless otherwise specified as contemplated by Section 3.01, only upon
presentation and surrender of those coupons.
If any Security called for redemption shall not be paid upon surrender
thereof for redemption, the principal shall, until paid, bear interest from the
Redemption Date at the rate borne by such Security, or as otherwise provided in
such Security.
SECTION 4.07. Securities Redeemed in Part. Any Security which is to be
redeemed only in part shall be surrendered at the office or agency of the
Company in a Place of Payment therefor (with, if the Company or the Security
Registrar so requires, due endorsement by, or a written instrument of transfer
in form satisfactory to the Company and the Security Registrar duly executed by,
the Holder of such Security or his attorney duly authorized in writing), and the
Company shall execute, and the Trustee shall authenticate and deliver to the
Holder of such Security without service charge, a new Security or Securities of
the same series and Stated Maturity, containing identical terms and conditions,
of any authorized denominations as requested by such Holder, in aggregate
principal amount equal to and in exchange for the unredeemed portion of the
principal of the Security so surrendered.
SECTION 4.08. Redemption Suspended During Event of Default. The Trustee
shall not redeem any Securities (unless all Securities then Outstanding are to
be redeemed) or commence the giving of any notice of redemption of Securities
during the continuance of any Event of Default known to the Trustee, except that
where the giving of notice of redemption of any Securities shall theretofore
have been made, the Trustee shall, subject to the provisions of Section 14.04,
redeem such Securities, provided funds are deposited with it for such purpose.
Subject to the rights of the holders of Senior Indebtedness and creditors in
respect of General Obligations, except as aforesaid, any moneys theretofore or
thereafter received by the Trustee shall, during the continuance of such Event
of Default, be held in trust for the benefit of the Holders and applied in the
manner set forth in Section 7.06; provided, however, that in case such Event of
Default shall have been waived as provided herein or otherwise cured, such
moneys shall
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48
thereafter be held and applied in accordance with the provisions of this
Article.
ARTICLE FIVE
Covenants
SECTION 5.01. Payment of Principal, Premium and Interest. The Company
covenants and agrees for the benefit of each series of Securities that it will
duly and punctually pay the principal of, premium, if any, and interest on the
Securities of such series in accordance with the terms of the Securities of such
series, any coupons appertaining thereto and this Indenture. Unless otherwise
specified as contemplated by Section 3.01 with respect to any series of
Securities, any interest due on Bearer Securities on or before Maturity shall be
payable only outside the United States upon presentation and surrender of the
several coupons for such interest installments as are evidenced thereby as they
severally mature.
SECTION 5.02. Maintenance of Office or Agency. If Securities of a series
are issuable only as Registered Securities, the Company will maintain in each
Place of Payment for any series of Securities an office or agency where
Securities of that series may be presented or surrendered for payment, where
Securities of that series may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Company in respect of the
Securities of that series and this Indenture may be served. The Company will
give prompt written notice to the Trustee of the location, and of any change in
the location, of such office or agency. If Securities of a series may be
issuable as Bearer Securities, the Company will maintain (A) in
[________________], an office or agency where any Registered Securities of that
series may be presented or surrendered for payment, where any Registered
Securities of that series may be surrendered for registration of transfer, where
Securities of that series may be surrendered for exchange and where notices and
demands to or upon the Company in respect of the Securities of that series and
this Indenture may be served, (B) subject to any laws or regulations applicable
thereto, in a Place of Payment for that series which is located outside the
United States, an office or agency where Securities of that series and related
coupons may be presented and surrendered for payment (including payment of any
additional amounts payable on Securities of that series pursuant to Section
5.04); provided, however, that if the Securities of that series are listed on
The International Stock Exchange of the United
<PAGE> 49
49
Kingdom and the Republic of Ireland Limited or the Luxembourg Stock Exchange or
any other stock exchange located outside the United States and such stock
exchange shall so require, the Company will maintain a Paying Agent for the
Securities of that series in London or Luxembourg or any other required city
located outside the United States, as the case may be, so long as the Securities
of that series are listed on such exchange, and (C) subject to any laws or
regulations applicable thereto, in a Place of Payment for such series located
outside the United States an office or agency where any Registered Securities of
that series may be surrendered for registration of transfer, where Securities of
that series may be surrendered for exchange and where notices and demands to or
upon the Company in respect of the Securities of that series and this Indenture
may be served. The Company will give prompt written notice to the Trustee of the
location, and any change in the location, of any such office or agency. If at
any time the Company shall fail to maintain any such required office or agency
in respect of any series of Securities or shall fail to furnish the Trustee with
the address thereof, such presentations, and surrenders of Securities of that
series may be made and notices and demands may be made or served at the
Principal Corporate Trust Office of the Trustee, except that Bearer Securities
of that series and the related coupons may be presented and surrendered for
payment (including payment of any additional amounts payable on Bearer
Securities of that series pursuant to Section 5.04) at the place specified for
the purpose as contemplated by Section 3.01, and the Company hereby appoints the
Trustee as its agent to receive such respective presentations, surrenders,
notices and demands.
Except as otherwise provided in the form of Bearer Security of any
particular series pursuant to the provisions of this Indenture, no payment of
principal, premium or interest on Bearer Securities shall be made at any office
or agency of the Company in the United States or by check mailed to any address
in the United States or by transfer to an account maintained with a bank located
in the United States; provided, however, payment of principal of and any premium
and interest denominated in Dollars (including additional amounts payable in
respect thereof) on any Bearer Security may be made at an office or agency of,
and designated by, the Company located in the United States if (but only if)
payment of the full amount of such principal, premium, interest or additional
amounts in Dollars at all offices outside the United States maintained for the
purpose by the Company in accordance with this Indenture is illegal or
effectively precluded by exchange controls or similar restrictions and the
Trustee receives an Opinion of Counsel that such payment within the United
States is legal. Unless
<PAGE> 50
50
otherwise provided as contemplated by Section 3.01 with respect to any series of
Securities, at the option of the Holder of any Bearer Security or related
coupon, payment may be made by check in the currency designated for such payment
pursuant to the terms of such Bearer Security presented or mailed to an address
outside the United States or by transfer to an account in such currency
maintained by the payee with a bank located outside the United States.
The Company may also from time to time designate one or more other
offices or agencies where the Securities of one or more series may be presented
or surrendered for any or all of such purposes specified above in this Section
and may constitute and appoint one or more Paying Agents for the payment of such
Securities, in one or more other cities, and may from time to time rescind such
designations and appointments; provided, however, that no such designation,
appointment or rescission shall in any manner relieve the Company of its
obligation to maintain an office or agency in each Place of Payment for
Securities of any series for such purposes. The Company will give prompt written
notice to the Trustee of any such designation or rescission and of any change in
the location of any such other office or agency. Unless and until the Company
rescinds one or more such appointments, the Company hereby appoints [(i)] [ ],
as its Paying Agent in The City of [________] with respect to all series of
Securities having a Place of Payment in The City of [________] [and (ii) [ ] at
its principal office as its Paying Agent with respect to all series of
Securities having a Place of Payment in [ ]].
SECTION 5.03. Money for Security Payments To Be Held in Trust. If
Company shall at any time act as its own Paying Agent for any series of
Securities, it will, on or before each due date of the principal of, premium, if
any, or interest on any of the Securities of such series and any appurtenant
coupons, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal, premium or interest so becoming
due until such sums shall be paid to such Persons or otherwise disposed of as
herein provided, and will promptly notify the Trustee of its action or failure
so to act.
Whenever the Company shall have one or more Paying Agents for any series
of Securities, it will, at or prior to the opening of business on each due date
of the principal of, premium, if any, or interest on any Securities of such
series and any appurtenant coupons, deposit with a Paying Agent a sum sufficient
to pay the principal, premium or interest so becoming due, such sum to be held
in trust for
<PAGE> 51
51
the benefit of the Persons entitled to such principal, premium or interest, and
(unless such Paying Agent is the Trustee) the Company will promptly notify the
Trustee of its action or failure so to act.
The Company will cause each Paying Agent other than the Trustee for any
series of Securities to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee subject to the provisions
of this Section, that such Paying Agent will:
(i) hold all sums held by it for the payment of principal of,
premium, if any, or interest on Securities of such series and any appurtenant
coupons in trust for the benefit of the Persons entitled thereto until such sums
shall be paid to such Persons or otherwise disposed of as herein provided;
(ii) give the Trustee notice of any default by the Company (or any
other obligor upon the Securities of such series) in the making of any payment
of principal, premium or interest on the Securities of such series or any
appurtenant coupons; and
(iii) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so held in
trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent, and, upon such payments by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of, premium, if any,
or interest on any Security of any series or any appurtenant coupons and
remaining unclaimed for two years after such principal, premium or interest has
become due and payable shall be paid to the Company on Company Request, or (if
then held by the Company) shall be discharged from such trust; and the Holder of
such Security or any coupon appertaining thereto shall thereafter, as an
unsecured general creditor, look only to the Company for payment thereof, and
all liability of the
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Trustee or such Paying Agent with respect to such trust money, and all liability
of the Company as trustee thereof, shall thereupon cease; provided, however,
that the Trustee or such Paying Agent, before being required to make any such
repayment, may at the expense of the Company cause to be published once, in an
Authorized Newspaper in each Place of Payment, notice that such money remains
unclaimed and that, after a date specified therein, which shall not be less than
30 days from the date of such publication, any unclaimed balance of such money
then remaining will be repaid to the Company.
SECTION 5.04. Additional Amounts. If the Securities of a series provide
for the payment of additional amounts, the Company will pay to the Holder of any
Security of any series or any coupon appertaining thereto additional amounts as
provided therein. Whenever in this Indenture there is mentioned, in any context,
the payment of the principal of (or premium, if any) or interest on, or in
respect of, any Security of any series or payment of any related coupon or the
net proceeds received on the sale or exchange of any Security of any series,
such mention shall be deemed to include mention of the payment of additional
amounts provided for in this Section to the extent that, in such context,
additional amounts are, were or would be payable in respect thereof pursuant to
the provisions of this Section and express mention of the payment of additional
amounts (if applicable) in any provisions hereof shall not be construed as
excluding additional amounts in those provisions hereof where such express
mention is not made.
If the Securities of a series provide for the payment of additional
amounts, at least 10 days prior to the first Interest Payment Date with respect
to that series of Securities (or if the Securities of that series will not bear
interest prior to Maturity, the first day on which a payment of principal (and
premium, if any) is made), and at least 10 days prior to each date of payment of
principal (and premium, if any) or interest if there has been any change with
respect to the matters set forth in the below-mentioned Officers' Certificate,
the Company will furnish the Trustee and the Company's Principal Paying Agent or
Paying Agents, if other than the Trustee, with an Officers' Certificate
instructing the Trustee and such Paying Agent or Paying Agents whether such
payment of principal of (and premium, if any) or interest on the Securities of
that series shall be made to Holders of Securities of that series or any related
coupons who are United States Aliens without withholding for or on account of
any tax, assessment or other governmental charge described in the Securities of
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that series. If any such withholding shall be required, then such Officers'
Certificate shall specify by country the amount, if any, required to be withheld
on such payments to such Holders of Securities or coupons and the Company will
pay to the Trustee or such Paying Agent the additional amounts required by this
Section. The Company covenants to indemnify the Trustee and any Paying Agent
for, and to hold them harmless against, any loss, liability or reasonable
expense incurred without negligence or bad faith on their part arising out of or
in connection with actions taken or omitted by any of them in reliance on any
Officers' Certificate furnished pursuant to this Section.
SECTION 5.05. Statement as to Compliance. The Company will deliver to
the Trustee, within 120 days after the end of each fiscal year of the Company,
an Officers' Certificate (which need not comply with Section 1.02) (provided,
however, that one of the signatories of which shall be the Company's principal
executive officer, principal financial officer or principal accounting officer)
stating, as to each signer thereof, that:
(i) a review of the activities of the Company during such year and
of performance under this Indenture and under the terms of the Securities has
been made under his supervision; and
(ii) to the best of his knowledge, based on such review, (a) the
Company has fulfilled all its obligations and complied with all conditions and
covenants under this Indenture and under the terms of the Securities throughout
such year, or, if there has been a default in the fulfillment of any such
obligation, condition or covenant specifying each such default known to him and
the nature and status thereof, and (b) no event has occurred and is occurring
which is, or after notice or lapse of time or both would become, a Default, or
if such an event has occurred and is continuing, specifying such event known to
him and the nature and status thereof.
For purposes of this Section, compliance or default shall be determined
without regard to any period of grace or requirement of notice provided for
herein.
SECTION 5.06. Maintenance of Corporate Existence, Rights and Franchises.
So long as any of the Securities shall be Outstanding, the Company will do or
cause to be done all things necessary to preserve and keep in full force and
effect its corporate existence, rights and franchises to carry on its business;
provided, however, that nothing in
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this Section 5.06 shall (i) require the Company to preserve any such right or
franchise if the Board of Directors shall determine that the preservation
thereof is no longer desirable in the conduct of the business of the Company and
that the loss thereof is not disadvantageous in any material respect to the
Holders, (ii) prevent any consolidation or merger of the Company, or any
conveyance or transfer of its property and assets substantially as an entirety
to any person, permitted by Article Ten, or (iii) prevent the liquidation or
dissolution of the Company after any conveyance or transfer of its property and
assets substantially as an entirety to any person permitted by Article Ten.
ARTICLE SIX
Holders' Lists and Reports by Trustee and Company
SECTION 6.01. Company To Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee (i)
semiannually, not more than 10 days after each March 1 and September 1, a list,
in such form as the Trustee may reasonably require, containing all the
information in the possession or control of the Company, any of its Paying
Agents (other than the Trustee) or the Security Registrar, if other than the
Trustee, as to the names and addresses of the Holders of Securities as of such
March 1 and September 1, and (ii) at such other times as the Trustee may request
in writing, within 30 days after receipt by the Company of any such request, a
list of similar form and content as of a date not more than 15 days prior to the
time such list is requested to be furnished; provided, however, that if and so
long as the Trustee is the Security Registrar for Securities of a series, no
such list need be furnished with respect to such series of Securities.
SECTION 6.02. Preservation of Information; Communications to Holders.
(i) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders of Securities contained in the
most recent list furnished to the Trustee as provided in Section 6.01 and the
names and addresses of Holders of Securities received by the Trustee in its
capacity as the Security Registrar, if so acting. The Trustee may destroy any
list furnished to it as provided in Section 6.01 upon receipt of a new list so
furnished.
(ii) If three or more Holders of Securities of any series
(hereinafter referred to as "applicants") apply in writing to the Trustee, and
furnish to the Trustee
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reasonable proof that each such applicant has owned a Security of such series
for a period of at least six months preceding the date of such application, and
such application states that the applicants desire to communicate with other
Holders of Securities of such series or with the Holders of all Securities with
respect to their rights under this Indenture or under such Securities and is
accompanied by a copy of the form of proxy or other communication which such
applicants propose to transmit, then the Trustee shall, within five Business
Days after the receipt of such application, at its election, either:
(a) afford such applicants access to the information preserved at
the time by the Trustee in accordance with Section 6.02(i); or
(b) inform such applicants as to the approximate number of Holders
of Securities of such series or all Securities, as the case may be, whose names
and addresses appear in the information preserved at the time by the Trustee in
accordance with Section 6.02(i), and as to the approximate cost of mailing to
such Holders the form of proxy or other communication, if any, specified in such
application.
If the Trustee shall elect not to afford such applicants access to such
information, the Trustee shall, upon the written request of such applicants,
mail to each Holder of a Security of such series or all Holders of Securities,
as the case may be, whose names and addresses appear in the information
preserved at the time by the Trustee in accordance with Section 6.02(i), a copy
of the form of proxy or other communication which is specified in such request,
with reasonable promptness after a tender to the Trustee of the material to be
mailed and of payment, or provision for the payment, of the reasonable expenses
of mailing, unless, within five days after such tender, the Trustee shall mail
to such applicants and file with the Commission, together with a copy of the
material to be mailed, a written statement to the effect that, in the opinion of
the Trustee, such mailing would be contrary to the best interests of the Holders
of Securities of such series or all Securities, as the case may be, or would be
in violation of applicable law. Such written statement shall specify the basis
of such opinion. If the Commission, after opportunity for a hearing upon the
objections specified in the written statement so filed, shall enter an order
refusing to sustain any of such objections or if, after the entry of an order
sustaining one or more of such objections, the Commission shall find, after
notice and opportunity for hearing, that all the objections so sustained have
been met
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and shall enter an order so declaring, the Trustee shall mail copies of such
material to all such Holders of Securities with reasonable promptness after the
entry of such order and the renewal of such tender; otherwise, the Trustee shall
be relieved of any obligation or duty to such applicants respecting their
application.
(iii) Every Holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the Trustee
shall be held accountable by reason of the disclosure of any such information as
to the names and addresses of the Holders of Securities in accordance with
Section 6.02(ii), regardless of the source from which such information was
derived, and that the Trustee shall not be held accountable by reason of mailing
any material pursuant to a request made under Section 6.02(ii).
SECTION 6.03. Reports by Trustee. (i) Within 60 days after May 15 of
each year commencing with the year 2000, the Trustee shall mail to each Holder
reports concerning the Trustee and its action under the Indenture as may be
required pursuant to Section 313(a) of the Trust Indenture Act if and to the
extent and in the manner provided pursuant thereto. The Trustee shall also
comply with the other provisions of Section 313 of the Trust Indenture Act.
(ii) Reports pursuant to this Section shall be transmitted by mail
(1) to all Holders of Registered Securities, as their names and addresses appear
in the Security Register and (2) to such Holders of Bearer Securities as have,
within the two years preceding such transmission, filed their names and
addresses with the Trustee for that purpose, and (3) except in the cases of
reports under Section 313(b)(2) of the Trust Indenture Act, to each Holder of a
Security of any series whose name and address appear in the information
preserved at the time by the Trustee in accordance with Section 6.02(i).
(iii) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each securities exchange
upon which any Securities are listed, and also with the Commission. The Company
will notify the Trustee when any Securities are listed on any securities
exchange.
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SECTION 6.04. Reports by Company. The Company will:
(i) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual reports and
of the information, documents and other reports (or copies of such portions of
any of the foregoing as the Commission may from time to time by rules and
regulations prescribe) which the Company may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the Exchange Act; or, if
the Company is not required to file information, documents or reports pursuant
to either of said Sections, then it will file with the Trustee and the
Commission, in accordance with rules and regulations prescribed from time to
time by the Commission, such of the supplementary and periodic information,
documents and reports which may be required pursuant to Section 13 of the
Exchange Act in respect of a security listed and registered on a national
securities exchange as may be prescribed from time to time in such rules and
regulations;
(ii) file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance by the
Company with the conditions and covenants of this Indenture as may be required
from time to time by such rules and regulations; and
(iii) transmit by mail to Holders of Securities, in the manner and to
the extent provided in Section 6.03(ii), within 30 days after the filing thereof
with the Trustee, such summaries of any information, documents and reports
required to be filed by the Company pursuant to paragraphs (i) and (ii) of this
Section as may be required by rules and regulations prescribed from time to time
by the Commission.
ARTICLE SEVEN
Remedies
SECTION 7.01. Events of Default. "Event of Default", with respect to any
series of Securities, wherever used herein, means any one of the following
events (whatever the reason for such Event of Default and whether it shall be
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voluntary or involuntary or be effected by operation of law or pursuant to any
judgment, decree or order of any court or any order, rule or regulation of any
administrative or governmental body), unless it is either inapplicable to a
particular series or it is specifically deleted or modified in the supplemental
indenture or Board Resolution under which such series of Securities is issued or
in the form of Security for such series:
(i) the entry of a decree or order by a court having jurisdiction in
the premises granting relief in respect of the Company in an involuntary case
under the Federal Bankruptcy Code, adjudging the Company a bankrupt, or
approving as properly filed a petition seeking reorganization, arrangement,
adjustment or composition of or in respect of the Company under the Federal
Bankruptcy Code or any other applicable Federal or State bankruptcy, insolvency
or similar law, or appointing a receiver, liquidator, custodian, assignee,
trustee, sequestrator (or other similar official) of the Company, or of
substantially all of its properties, or ordering the winding up or liquidation
of its affairs under any such law, and the continuance of any such decree or
order unstayed and in effect for a period of 60 consecutive days; or
(ii) the institution by the Company of proceedings to be adjudicated
a bankrupt, or the consent of the Company to the institution of bankruptcy
proceedings against it, or the filing by the Company of a petition or answer or
consent seeking reorganization or relief under the Federal Bankruptcy Code or
any other applicable Federal or State bankruptcy, insolvency or similar law, or
the consent by the Company to the filing of any such petition or to the
appointment of a receiver, liquidator, custodian, assignee, trustee,
sequestrator (or other similar official) of the Company, or of substantially all
of its properties under any such law; or
(iii) any other Event of Default provided with respect to Securities
of that series.
SECTION 7.02. Acceleration of Maturity; Rescission and Annulment. If an
Event of Default with respect to any series of Securities for which there are
Securities Outstanding occurs and is continuing, then, and in every such case,
the Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Securities of such series may declare the principal of all the
Securities of such series (or, if the Securities of that
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series are Original Issue Discount Securities, such portion of the principal
amount as may be specified in the terms of that series) to be immediately due
and payable, by a notice in writing to the Company (and to the Trustee if given
by Holders), and upon any such declaration the same shall become immediately due
and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of such series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences, and any
Event of Default giving rise to such declaration shall not be deemed to have
occurred, if:
(i) the Company has paid or deposited with the Trustee a sum
sufficient to pay:
(a) all overdue installments of interest on all Securities of such
series;
(b) the principal of and premium, if any, on any Securities of such
series which have become due otherwise than by such declaration of acceleration
and interest thereon at the rate or rates prescribed therefor by the terms of
the Securities of such series;
(c) to the extent that payment of such interest is lawful, interest
upon overdue installments of interest at the rate or rates prescribed therefor
by the terms of the Securities of such series; and
(d) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the Trustee,
the Security Registrar, any Paying Agent, and their agents and counsel and all
other amounts due the Trustee under Section 8.07; and
(ii) all other Defaults with respect to Securities of that series,
other than the nonpayment of the principal of Securities of that series which
have become due solely by such declaration of acceleration, have been cured or
waived as provided in Section 7.13.
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No such recession shall affect any subsequent default or impair any
right consequent thereon.
SECTION 7.03. Collection of Indebtedness and Suits for Enforcement by
Trustee. The Company covenants that if:
(i) default is made in the payment of any installment of interest on
any Security of any series when such interest becomes due and payable and such
default continues for a period of 30 days; or
(ii) default is made in the payment of the principal of or premium,
if any, on any Security of any series at the Maturity thereof;
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holder of any such Security or coupon appertaining thereto, if any, the whole
amount then due and payable on any such Security or coupon for principal,
premium, if any, and interest, with interest upon the overdue principal and
premium, if any, and (to the extent that payment of such interest shall be
lawful) upon overdue installments of interest, at the rate or rates prescribed
therefor by the terms of any such Security; and, in addition thereto, such
further amount as shall be sufficient to cover the reasonable costs and expenses
of collection, including the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel and any other amounts due
the Trustee under Section 8.07.
If the Company fails to pay such amounts forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, and may
prosecute such proceeding to judgment or final decree, and may enforce the same
against the Company or any other obligor upon such Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon such Securities, wherever
situated.
If a Default with respect to any series of Securities occurs and is
continuing, the Trustee may in its discretion proceed to protect and enforce its
rights and the rights of the Holders of Securities of such series by such
appropriate judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any such rights, whether for the specific enforcement of any
covenant or agreement in this Indenture or in aid of the exercise of any power
granted herein, or to enforce any other proper remedy.
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SECTION 7.04. Trustee May File Proofs of Claim. In case of the pendency
of any receivership, insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition or other judicial proceeding relative to
the Company or any other obligor upon the Securities or the property of the
Company or of such other obligor or their creditors, the Trustee (irrespective
of whether the principal of any Securities shall then be due and payable as
therein expressed or by declaration or otherwise and irrespective of whether the
Trustee shall have made any demand on the Company for the payment of overdue
principal, premium, if any, or interest) shall be entitled and empowered, by
intervention in such proceeding or otherwise:
(i) to file and prove a claim for the whole amount of principal,
premium, if any, and interest owing and unpaid in respect of the Securities and
to file such other papers or documents as may be necessary or advisable in order
to have the claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel and any other amounts due the Trustee under Section 8.07) and of the
Holders allowed in such judicial proceeding; and
(ii) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any receiver, assignee, trustee, liquidator, sequestrator or other similar
official in any such judicial proceeding is hereby authorized by each Holder to
make such payments to the Trustee, and in the event that the Trustee shall
consent to the making of such payments directly to the Holders, to pay to the
Trustee any amount due to it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 8.07.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder of a Security
or coupon any plan of reorganization, arrangement, adjustment or composition
affecting the Securities or the rights of any Holder thereof, or to authorize
the Trustee to vote in respect of the claim of any Holder of a Security or
coupon in any such proceeding.
SECTION 7.05. Trustee May Enforce Claims Without Possession of
Securities. All rights of action and claims
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under this Indenture or under the Securities of any series, or coupons (if any)
appertaining thereto, may be prosecuted and enforced by the Trustee without the
possession of any of the Securities of such series or coupons appertaining
thereto or the production thereof in any proceeding relating thereto, and any
such proceeding instituted by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgment shall, after provision
for the payment of the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel and any other amounts due the
Trustee under Section 8.07, be for the ratable benefit of the Holders of the
Securities of such series and coupons appertaining thereto in respect of which
such judgment has been recovered.
SECTION 7.06. Application of Money Collected. Any money collected by the
Trustee with respect to a series of Securities pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee, and,
in case of the distribution of such money on account of principal, premium, if
any, or interest, upon presentation of the Securities of such series or coupons
appertaining thereto, if any, or both, as the case may be, and the notation
thereon of the payment if only partially paid and upon surrender thereof if
fully paid:
FIRST: To the payment of all amounts due the Trustee under Section 8.07;
SECOND: Subject to Article Fourteen, to the payment of the amounts then
due and unpaid upon the Securities of such series and coupons for principal,
premium, if any, and interest, in respect of which or for the benefit of which
such money has been collected, ratably, without preference or priority of any
kind, according to the amounts due and payable on Securities of such series and
coupons, if any, for principal, premium, if any, and interest, respectively. The
Holders of each series of Securities denominated in any composite currency or a
Foreign Currency and any matured coupons relating thereto shall be entitled to
receive a ratable portion of the amount determined by the Exchange Rate Agent by
converting the principal amount Outstanding of such series of Securities and
matured but unpaid interest on such series of Securities in the currency in
which such series of Securities is denominated into Dollars at the Exchange Rate
as of the Business Day immediately preceding the date of payment; and
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THIRD: The balance, if any, to the Person or Persons entitled thereto.
SECTION 7.07. Limitation on Suits. No Holder of any Security of any
series or any related coupons shall have any right to institute any proceeding,
judicial or otherwise, with respect to this Indenture, or for the appointment of
a receiver or trustee, or for any other remedy hereunder, unless:
(i) such Holder has previously given written notice to the Trustee
of a continuing Default with respect to Securities of such series;
(ii) the Holders of not less than a majority in principal amount of
the Outstanding Securities of such series shall have made written request to the
Trustee to institute proceedings in respect of such Default in its own name as
Trustee hereunder;
(iii) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(iv) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such proceeding; and
(v) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a majority in
principal amount of the Outstanding Securities of such series;
it being understood and intended that no one or more Holders of Securities of
such series shall have any right in any manner whatever by virtue of, or by
availing of, any provision of this Indenture to affect, disturb or prejudice the
rights of any other Holders of Securities of such series or to obtain or to seek
to obtain priority or preference over any other such Holders or to enforce any
right under this Indenture, except in the manner herein provided and for the
equal and ratable benefit of all the Holders of Securities of such series.
The following events shall be "Defaults" with respect to any series of
Securities under this Indenture:
(a) an Event of Default with respect to such series specified in
Section 7.01; or
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(b) default in the payment of the principal of or premium, if any,
on any Security of such series at its Maturity; or
(c) default in the payment of any interest upon any Security of such
series as and when the same shall become due and payable, and continuance of
such default for a period of 30 days; or
(d) failure on the part of the Company duly to observe or perform
any of the other covenants or agreements on its part in the Securities of such
series or in this Indenture (other than a covenant or warranty a default in
whose performance or whose breach is elsewhere in this Section specifically
dealt with or which has expressly been included in this Indenture solely for the
benefit of series of Securities other than that series) and continuance of such
failure for a period of 90 days after the date on which written notice of such
failure, requiring the Company to remedy the same and stating that such notice
is a "Notice of Default" hereunder, shall have been given by registered mail to
the Company by the Trustee, or to the Company and the Trustee by the holders of
at least 25% in aggregate principal amount of the Securities of such series at
the time Outstanding; or
(e) any other Default provided with respect to Securities of that
Series.
SECTION 7.08. Unconditional Right of Holders To Receive Principal,
Premium and Interest. Notwithstanding any other provision in this Indenture, the
Holder of any Security or coupon shall have the right, which is absolute and
unconditional, to receive payment of the principal of, premium, if any, and
(subject to Section 3.07) interest on such Security or payment of such coupon on
the respective Stated Maturities expressed in such Security or coupon (or, in
the case of redemption or repayment, on the Redemption Date or Repayment Date)
and to institute suit for the enforcement of such payment, and such rights shall
not be impaired without the consent of such Holder.
SECTION 7.09. Restoration of Rights and Remedies. If the Trustee or any
Holder of a Security or coupon has instituted any proceeding to enforce any
right or remedy under this Indenture and such proceeding has been discontinued
or abandoned for any reason, or has been determined adversely to the Trustee or
to such Holder, then and in every such case the Company, the Trustee and the
Holders shall, subject to any determination in such
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proceeding, be restored severally and respectively to their former positions
hereunder, and thereafter all rights and remedies of the Trustee and the Holders
shall continue as though no such proceeding had been instituted.
SECTION 7.10. Rights and Remedies Cumulative. Except as otherwise
provided with respect to the replacement or payment of mutilated, lost,
destroyed or stolen Securities or coupons in the last paragraph of Section 3.06,
no right or remedy herein conferred upon or reserved to the Trustee or to the
Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
SECTION 7.11. Delay or Omission Not Waiver. No delay or omission of the
Trustee or of any Holder of any Security or coupon to exercise any right or
remedy accruing upon any Default shall impair any such right or remedy or
constitute a waiver of any such Default or an acquiescence therein. Every right
and remedy given by this Article or by law to the Trustee or to the Holders may
be exercised from time to time, and as often as may be deemed expedient, by the
Trustee or by the Holders, as the case may be.
SECTION 7.12. Control by Holders. The Holders of a majority in principal
amount of the Outstanding Securities of any series shall have the right to
direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee or exercising any trust or power conferred on the
Trustee with respect to the Securities of such series; provided that:
(i) such direction shall not be in conflict with any rule of law or
with this Indenture;
(ii) the Trustee shall not determine that the action so directed
would be unjustly prejudicial to the Holders not taking part in such direction;
(iii) subject to the provisions of Section 8.01, the Trustee shall
have the right to decline to follow any such direction if the Trustee in good
faith shall, by a Responsible Officer or Officers of the Trustee, determine that
the proceeding so directed would involve the Trustee in personal liability; and
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(iv) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
SECTION 7.13. Waiver of Past Defaults. The Holders of a majority in
principal amount of the Outstanding Securities of any series may on behalf of
the Holders of all the Securities of such series waive any past default
hereunder and its consequences, except a default not theretofore cured:
(i) in the payment of the principal of, premium, if any, or interest
on any Security of such series; or
(ii) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of each
Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Default
or Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of the Securities of such series under this Indenture; but no such
waiver shall extend to any subsequent or other default or impair any right
consequent thereon.
SECTION 7.14. Undertaking for Costs. All parties to this Indenture
agree, and each Holder of any Security by his acceptance thereof shall be deemed
to have agreed, that any court may in its discretion require, in any suit for
the enforcement of any right or remedy under this Indenture, or in any suit
against the Trustee for any action taken, suffered or omitted by it as Trustee,
the filing by any party litigant in such suit of an undertaking to pay the costs
of such suit, and that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees, against any party litigant in such suit,
having due regard to the merits and good faith of the claims or defenses made by
such party litigant; but the provisions of this Section shall not apply to any
suit instituted by the Company, to any suit instituted by the Trustee, to any
suit instituted by any Holder, or group of Holders, holding in the aggregate
more than 10% in principal amount of the Outstanding Securities of any series,
or to any suit instituted by any Holder of Securities or coupons for the
enforcement of the payment of the principal of, premium, if any, or interest on
any Security or payment of any coupon on or after the respective Stated
Maturities expressed in such Security or coupon (or, in the case of redemption
or repayment, on or after the Redemption Date or Repayment Date).
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SECTION 7.15. Waiver of Stay or Extension Laws. The Company covenants
(to the extent that it may lawfully do so) that it will not at any time insist
upon, or plead, or in any manner whatsoever claim or take the benefit or
advantage of, any stay or extension law wherever enacted, now or at any time
hereafter in force, which may affect the covenants or the performance of this
Indenture; and the Company (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law, and covenants that it
will not hinder, delay or impede the execution of any power herein granted to
the Trustee, but will suffer and permit the execution of every such power as
though no such law had been enacted.
ARTICLE EIGHT
The Trustee
SECTION 8.01. Certain Duties and Responsibilities. (i) Except during the
continuance of a Default with respect to any series of Securities:
(a) the Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture with respect to
Securities of such series, and no implied covenants or obligations shall be read
into this Indenture against the Trustee with respect to such series; and
(b) in the absence of bad faith on its part, the Trustee may
conclusively rely with respect to such series, 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; but in the case of any such certificate or opinions which by any
provision hereof are specifically required to be furnished to the Trustee, the
Trustee shall be under a duty to examine the same to determine whether or not
they conform as to form to the requirements of the Indenture.
(ii) In case a Default with respect to any series of Securities has
occurred and is continuing, the Trustee shall exercise such of the rights and
powers vested in it by this Indenture with respect to such series, and use the
same degree of care and skill in their exercise, as a prudent person would
exercise or use under the circumstances in the conduct of his or her own
affairs.
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(iii) 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:
(a) this Subsection shall not be construed to limit the effect of
Subsection (i) of this Section;
(b) the Trustee shall not be liable for any error or judgment made
in good faith by a Responsible Officer, unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent facts;
(c) the Trustee shall not be liable with respect to any action
taken, suffered or omitted to be taken by it in good faith in accordance with
the direction of the Holders of a majority in principal amount of the
Outstanding Securities of any series relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred upon the Trustee, under this Indenture with respect
to Securities of such series; and
(d) no provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any of its
rights or powers, if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
(iv) Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this
Section.
SECTION 8.02. Notice of Default. Within 90 days after the occurrence of
any default hereunder with respect to Securities of any series, the Trustee
shall transmit by mail to all Holders of Securities of such series entitled to
receive reports pursuant to Section 6.03(ii) notice of such default hereunder
known to the Trustee, unless such default shall have been cured or waived;
provided, however, that, except in the case of a default in the payment of the
principal of, premium, if any, or interest on any Security of such series, or
any related coupons or in the payment of any sinking fund installment with
respect to Securities of such series the Trustee shall be protected in
withholding such notice if and so long as the board of directors, the
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executive committee or a trust committee of directors and/or Responsible
Officers of the Trustee in good faith determines that the withholding of such
notice is in the interests of the Holders of Securities of such series; and
provided further that in the case of any default of the character specified in
Section 7.07(d) with respect to Securities of such series, no such notice to
Holders of Securities of such series shall be given until at least 90 days after
the occurrence thereof. For the purpose of this Section, the term "default",
with respect to Securities of any series, means any event which is, or after
notice or lapse of time, or both, would become, a Default or an Event of Default
with respect to Securities of such series.
SECTION 8.03. Certain Rights of Trustee. Except as otherwise provided in
Section 8.01:
(i) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, note or other
paper or document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(ii) any request or direction of the Company mentioned herein shall
be sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors may be sufficiently evidenced by a Board
Resolution;
(iii) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
be herein specifically prescribed) may, in the absence of bad faith on its part,
rely upon an Officers' Certificate;
(iv) the Trustee may consult with counsel and the advice of such
counsel or any Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it hereunder
in good faith and in reliance thereon;
(v) 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
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liabilities which might be incurred by it in compliance with such request or
direction;
(vi) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
security or other paper or document, but the Trustee, in its discretion, may
make further inquiry or investigation into such facts or matters as it may see
fit, and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and premises
of the Company, personally or by agent or attorney and, if so requested to do so
by any of the Holders, at the sole cost and expense of the Holders;
(vii) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder;
(viii) the Trustee shall not be charged with knowledge of any Default
unless either (1) a Responsible Officer of the Trustee shall have actual
knowledge of such Default or (2) written notice of such Default shall have been
given to the Trustee by the Company or any Holder; and
(ix) the Trustee shall not be liable for any action taken, suffered
or omitted by it in good faith and reasonably believed by it to be authorized or
within the discretion or rights or powers conferred upon it by this Indenture;
and
(x) in the event that the Trustee is also acting as Paying Agent,
Authenticating Agent or Security Registrar hereunder, the rights and protections
afforded to the Trustee pursuant to this Article Eight shall also be afforded to
such Paying Agent, Authenticating Agent or Security Registrar.
SECTION 8.04. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the Trustee's
certificates of authentication, shall be taken as the statements of the Company,
and neither the Trustee nor any Authenticating Agent assumes responsibility for
their correctness. The Trustee makes no representations as to the validity or
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sufficiency of this Indenture or of the Securities. The Trustee shall not be
accountable for the use or application by the Company of Securities or the
proceeds thereof.
SECTION 8.05. May Hold Securities. The Trustee, any Authenticating
Agent, any Paying Agent, the Security Registrar or any other agent of the
Company, in its individual or any other capacity, may become the owner or
pledgee of Securities and, subject to Sections 8.08 and 8.13, may otherwise deal
with the Company with the same rights it would have if it were not Trustee,
Authenticating Agent, Paying Agent, Security Registrar or such other agent.
SECTION 8.06. Money Held in Trust. Money held by the Trustee in trust
hereunder need not be segregated from other funds except to the extent required
by law. The Trustee shall be under no liability for interest on any money
received by it hereunder except as otherwise agreed in writing with the Company.
SECTION 8.07. Compensation and Reimbursement. The Company agrees:
(i) to pay to the Trustee from time to time reasonable compensation
for all services rendered by it hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee of an
express trust);
(ii) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and advances
incurred or made by the Trustee in accordance with any provision of this
Indenture (including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense, disbursement
or advance as may be attributable to its negligence or bad faith; and
(iii) to indemnify the Trustee and its officers, directors, employees
and agents for, and to hold it and them harmless against, any loss, liability or
expense incurred without negligence or bad faith on its or their part, arising
out of or in connection with the acceptance or administration of this trust,
including the costs and expenses of defending itself and themselves against any
claim or liability in connection with the exercise or performance of any of its
powers or duties hereunder.
As security for the performance of the obligations of the Company under
this Section the Trustee shall have a lien prior to the Securities upon all
property and funds
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held or collected by the Trustee as such, except funds held in trust for the
payment of principal of, premium, if any, or interest on particular Securities.
Without prejudice to any other rights available to the Trustee under
applicable law, when the Trustee incurs expenses or renders services in
connection with an Event of Default specified in 7.01, the expenses (including
the reasonable fees and expenses of its counsel) and the compensation for the
services are intended to constitute expenses of administration under any
applicable bankruptcy, insolvency or other similar law.
The obligations of the Company set forth in this Section 8.07 and any
lien arising hereunder shall survive the resignation or removal of any Trustee,
the discharge of the Company's obligations pursuant to Article Eleven of this
Indenture and the termination of this Indenture and the repayment of the
Securities whether at the Stated Maturity or otherwise.
SECTION 8.08. Disqualification; Conflicting Interests. If the Trustee
has or shall acquire a conflicting interest within the meaning of Section 310 of
the Trust Indenture Act, the Trustee shall either eliminate such conflicting
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture. To the extent
permitted by the Trust Indenture Act, the Trustee shall not be deemed to have a
conflicting interest with respect to the indentures relating to Existing
Subordinated Indebtedness or to the Securities of any series by virtue of being
Trustee with respect to the Securities of any particular series of Securities
other than that series.
SECTION 8.09. Corporate Trustee Required; Eligibility. There shall at
all times be a Trustee with respect to each series of Securities hereunder which
shall be a corporation organized and doing business under the laws of the United
States of America, any State thereof or the District of Columbia, authorized
under such laws to exercise corporate trust powers, having a combined capital
and surplus of at least $5,000,000, subject to supervision or examination by
Federal or State authority; provided, however, that if Section 310(a) of the
Trust Indenture Act or the rules and regulations of the Commission under the
Trust Indenture Act at any time permit a corporation organized and doing
business under the laws of any other jurisdiction to serve as trustee of an
indenture qualified under the Trust Indenture Act, this Section 8.09 shall be
automatically deemed amended to permit a corporation
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organized and doing business under the laws of any such jurisdiction to serve as
Trustee hereunder. If such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of the aforesaid supervising or
examining authority, then for the purposes of this Section, the combined capital
and surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published.
Neither the Company nor any person directly or indirectly controlling,
controlled by or under common control with the Company may serve as Trustee. If
at any time the Trustee with respect to any series of Securities shall cease to
be eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article.
SECTION 8.10. Resignation and Removal; Appointment of Successor. (i) No
resignation or removal of the Trustee and no appointment of a successor Trustee
pursuant to this Article shall become effective until the acceptance of
appointment by the successor Trustee under Section 8.11.
(ii) The Trustee may resign with respect to any series of Securities
at any time by giving written notice thereof to the Company. If an instrument of
acceptance by a successor Trustee shall not have been delivered to the resigning
Trustee within 30 days after the giving of such notice of resignation, the
resigning Trustee may petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to Securities of such series.
(iii) The Trustee may be removed with respect to any series of
Securities at any time by Act of the Holders of a majority in principal amount
of the Outstanding Securities of such series, delivered to the Trustee and to
the Company.
(iv) If at any time:
(a) the Trustee shall fail to comply with Section 8.08 with respect
to any series of Securities after written request therefor by the Company or by
any Holder who has been a bona fide Holder of a Security of such series for at
least six months;
(b) the Trustee shall cease to be eligible under Section 8.09 with
respect to any series of Securities and shall fail to resign after written
request therefor
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by the Company or by any Holder of Securities of such series; or
(c) the Trustee shall become incapable of acting with respect to any
series of Securities or shall be adjudged a bankrupt or insolvent or a receiver
of the Trustee or of its property shall be appointed or any public officer shall
take charge or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation,
then, in any such case, (1) the Company by a Board Resolution may remove the
Trustee with respect to such series, or (2) subject to Section 7.14, any Holder
who has been a bona fide Holder of a Security of such series for at least six
months may, on behalf of himself and all others similarly situated, petition any
court of competent jurisdiction for the removal of the Trustee and the
appointment of a successor Trustee with respect to such series.
(v) If the Trustee shall resign, be removed or become incapable of
acting with respect to any series of Securities, or if a vacancy shall occur in
the office of Trustee with respect to any series of Securities for any cause,
the Company, by a Board Resolution, shall promptly appoint a successor Trustee
or Trustees with respect to the Securities of that or those series (it being
understood that any such successor Trustee may be appointed with respect to the
Securities of one or more or all of such series and that at any time there shall
be only one Trustee with respect to the Securities of any particular series) and
shall comply with the applicable requirements of Section 8.11. If, within one
year after such resignation, removal or incapability, or the occurrence of such
vacancy, a successor Trustee with respect to such series of Securities shall be
appointed by the Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring
Trustee with respect to such series, the successor Trustee so appointed shall,
forthwith upon its acceptance of such appointment, become the successor Trustee
with respect to such series and to that extent supersede the successor Trustee
appointed by the Company with respect to such series. If no successor Trustee
with respect to such series shall have been so appointed by the Company or the
Holders of Securities of such series and accepted appointment in the manner
hereinafter provided, any Holder who has been A bona fide Holder of a Security
of such series for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for
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the appointment of a successor Trustee with respect to such series.
(vi) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series and each
appointment of a successor Trustee with respect to the Securities of any series
by mailing written notice of such event by first-class mail, postage prepaid, to
the Holders of Registered Securities of such series as their names and addresses
appear in the Security Register and, if Securities of such series are issuable
as Bearer Securities, by publishing notice of such event once in an Authorized
Newspaper in each Place of Payment for the Securities of such series located
outside the United States. Each notice shall include the name of the successor
Trustee with respect to the Securities of such series and the address of its
Principal Corporate Trust Office.
SECTION 8.11. Acceptance of Appointment by Successor. (i) In the case of
the appointment hereunder of a successor Trustee with respect to any series of
Securities, every such successor Trustee so appointed shall execute, acknowledge
and deliver to the Company and to the retiring Trustee an instrument accepting
such appointment, and thereupon the resignation or removal of the retiring
Trustee shall become effective with respect to all or any series as to which it
is resigning as Trustee, and such successor Trustee, without any further act,
deed or conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee with respect to all or any such series; but, on
request of the Company or such successor Trustee, such retiring Trustee shall
upon payment of its charges, execute and deliver an instrument transferring to
such successor Trustee all the rights, powers and trusts of such retiring
Trustee with respect to all or any such series; and shall duly assign, transfer
and deliver to such successor Trustee all property and money held by such
retiring Trustee hereunder with respect to all or any such series, subject
nevertheless to its lien, if any, provided in Section 8.07.
(ii) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (a) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all
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the rights, powers, trusts and duties of the retiring Trustee with respect to
the Securities of that or those series to which the appointment of such
successor Trustee relates, (b) if the retiring Trustee is not retiring with
respect to all Securities, shall contain such provisions as shall be deemed
necessary or desirable to confirm that all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Securities of that or those series
as to which the retiring Trustee is not retiring shall continue to be vested in
the retiring Trustee, and (c) shall add to or change any of the provisions of
this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such Trustee; and upon
the execution and delivery of such supplemental indenture the resignation or
removal of the retiring Trustee shall become effective to the extent provided
therein and each such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Securities of that or those series
to which the appointment of such successor Trustee relates; but, on request of
the Company or any successor Trustee, such retiring Trustee shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates, subject
nevertheless to its lien, if any, provided for in Section 8.07.
(iii) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts referred
to in paragraph (i) or (ii) of this Section, as the case may be.
(iv) No successor Trustee with respect to a series of Securities
shall accept its appointment unless at the time of such acceptance such
successor Trustee shall be qualified and eligible with respect to such series
under this Article.
SECTION 8.12. Merger, Conversion, Consolidation or Succession to
Business of Trustee. Any corporation into which the Trustee may be merged or
converted or with which
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it may be consolidated, or any corporation resulting from any merger, conversion
or consolidation to which the Trustee shall be a party, or any corporation
succeeding to all or substantially all of the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder; provided that such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such Securities.
SECTION 8.13. Preferential Collection of Claims Against Company. If and
when the Trustee shall be or become a creditor of the Company (or any other
obligor upon the Securities), the Trustee shall be subject to the provisions of
Section 311 of the Trust Indenture Act regarding the collection of any claims as
a creditor against the Company (or any such other obligor). A Trustee that has
resigned or been removed shall be subject to and comply with said Section 311 to
the extent required thereby.
SECTION 8.14. Appointment of Authenticating Agents. The Trustee may
appoint an Authenticating Agent or Agents, which may include any Affiliate of
the Company, with respect to one or more series of Securities. Such
Authenticating Agent or Agents at the option of the Trustee shall be authorized
to act on behalf of the Trustee to authenticate Securities of such series issued
upon original issuance, exchange, registration of transfer or partial redemption
thereof or pursuant to Section 3.06, and Securities so authenticated shall be
entitled to the benefits of this Indenture and shall be valid and obligatory for
all purposes as if authenticated by the Trustee hereunder. Whenever reference is
made in this Indenture to the authentication and delivery of Securities by the
Trustee or the Trustee's certificate of authentication or the delivery of
Securities to the Trustee for authentication, such reference shall be deemed to
include authentication and delivery on behalf of the Trustee by an
Authenticating Agent, a certificate of authentication executed on behalf of the
Trustee by an Authenticating Agent and delivery of Securities to the
Authenticating Agent on behalf of the Trustee. Each Authenticating Agent shall
be acceptable to the Company and shall at all times be a corporation organized
and doing business under the laws of the United States of America, any State
thereof or the District of
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Columbia, authorized under such laws to act as Authenticating Agent, having a
combined capital and surplus of not less than $5,000,000 and subject to
supervision or examination by Federal or State authority. Notwithstanding the
foregoing, an Authenticating Agent located outside the United States may be
appointed by the Trustee if previously approved in writing by the Company and if
such Authenticating Agent meets the minimum capitalization requirements of this
Section 8.14. If such Authenticating Agent publishes reports of condition at
least annually, pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this Section, the combined capital
and surplus of such Authenticating Agent shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time an Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, such Authenticating Agent shall
resign immediately in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent; provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Company. The Trustee may at any time (and upon
request by the Company shall) terminate the agency of an Authenticating Agent by
giving written notice thereof to such Authenticating Agent and to the Company.
Upon receiving such a notice of resignation or upon such termination, or in case
at any time such Authenticating Agent shall cease to be eligible in accordance
with the provisions of this Section, the Trustee may appoint a successor
Authenticating Agent which shall be acceptable to the Company. Any successor
Authenticating Agent upon acceptance of its appointment hereunder shall become
vested with all the rights, powers and duties of its predecessor hereunder, with
like effect as if originally named as an Authenticating Agent. No successor
Authenticating Agent shall be appointed unless eligible under the provisions of
this Section.
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If an appointment with respect to one or more series is made pursuant to
this Section, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternate
certificate of authentication in the following form:
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
[ ], as Trustee,
by _____________________________ as Authenticating Agent
by _____________________________ Authorized Signatory
ARTICLE NINE
Supplemental Indentures
SECTION 9.01. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holder of any Securities or coupons, the Company,
when authorized by a Board Resolution, and the Trustee, at any time and from
time to time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(i) to evidence the succession of another corporation or Person to
the Company, and the assumption by any such successor of the covenants of the
Company herein and in the Securities contained; or
(ii) to evidence and provide for the acceptance of appointment by
another corporation as a successor Trustee hereunder with respect to one or more
series of Securities and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the administration
of the trusts hereunder by more than one Trustee, pursuant to Section 8.11; or
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(iii) to add to the covenants of the Company, for the benefit of the
Holders of Securities of all or any series of Securities or coupons (and if such
covenants are to be for the benefit of less than all series of Securities or
coupons, stating that such covenants are expressly being included solely for the
benefit of such series), or to surrender any right or power herein conferred
upon the Company; or
(iv) to cure any ambiguity, to correct or supplement any provision
herein which may be inconsistent with any other provision herein, or to make any
other provisions with respect to matters or questions arising under the
Indenture; provided that such action shall not adversely affect the interests of
the Holders of Securities of any series or any related coupons in any material
respect; or
(v) to add any additional Defaults or Events of Default with respect
to all or any series of the Securities (and, if such Default or Event of Default
is applicable to less than all series of Securities, specifying the series to
which such Default or Event of Default is applicable); or
(vi) to add to, change or eliminate any of the provisions of this
Indenture to provide that Bearer Securities may be registrable as to principal,
to change or eliminate any restrictions on the payment of principal of (or
premium, if any) or any interest on Bearer Securities, to permit Bearer
Securities to be issued in exchange for Registered Securities, to permit Bearer
Securities to be issued in exchange for Bearer Securities of other authorized
denominations or to permit or facilitate the issuance of Securities in
uncertificated form; provided any such action shall not adversely affect the
interests of the Holders of Securities of any series or any related coupons in
any material respect; or
(vii) to add to, change or eliminate any of the provisions of this
Indenture, provided that any such addition, change or elimination (a) shall
become effective only when there is no Security Outstanding of any series
created prior to the execution of such supplemental indenture which is adversely
affected by such change in or elimination of such provision or (b) shall not
apply to any Securities Outstanding; or
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(viii) to establish the form or terms of Securities of any series as
permitted by Sections 2.02 and 3.01; or
(ix) to add to or change any provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the issuance of Securities
convertible into other securities; or
(x) to evidence any changes to Section 8.09 as permitted by the
terms thereof; or
(xi) to add to or change or eliminate any provision of this Indenture
as shall be necessary or desirable in accordance with any amendments to the
Trust Indenture Act; provided such action shall not adversely affect the
interest of Holders of Securities of any series or any appurtenant coupons in
any material respect.
SECTION 9.02. Supplemental Indentures With Consent of Holders. With the
consent of the Holders of not less than a majority in aggregate principal amount
of the Outstanding Securities of all series affected by such supplemental
indenture or indentures (acting as one class), by Act of said Holders delivered
to the Company and the Trustee, the Company, when authorized by a Board
Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders of Securities of each such
series and any related coupons under this Indenture; provided, however, that no
such supplemental indenture shall, without the consent of the Holder of each
Outstanding Security affected thereby:
(i) change the Maturity of the principal of, or the Stated Maturity
of any installment of interest (or premium, if any) on, any Security, or reduce
the principal amount thereof or any premium thereon or the rate of interest
thereon, or change the obligation of the Company to pay additional amounts
pursuant to Section 5.04 (except as contemplated by Section 10.01(i) and
permitted by Section 9.01), or reduce the amount of the principal of an Original
Issue Discount Security that would be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 7.02, or change the
method of calculating interest thereon or the coin or currency in which any
Security (or premium, if any, thereon) or the interest thereon is payable, or
reduce the minimum rate
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of interest thereon, or impair the right to institute suit for the enforcement
of any such payment on or after the Stated Maturity thereof (or, in the case of
redemption or repayment, on or after the Redemption Date or Repayment Date);
(ii) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any such
supplemental indenture or the consent of whose Holders is required for any
waiver of certain defaults hereunder and their consequences provided for in this
Indenture or reduce the requirements of Section 16.04 for a quorum;
(iii) change any obligation of the Company to maintain an office or
agency in the places and for the purposes specified in Section 5.02; or
(iv) modify any of the provisions of this Section or Section 7.13,
except to increase any such percentage or to provide that certain other
provisions of this Indenture cannot be modified or waived.
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included solely for
the benefit of one or more particular series of Securities, or which modifies
the rights of the Holders of Securities of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
SECTION 9.03. Execution of Supplemental Indentures. In executing, or
accepting the additional trusts created by, any supplemental indenture permitted
by this Article or the modifications thereby of the trusts created by this
Indenture, the Trustee shall be entitled to receive, and (subject to Section
8.01) shall be fully protected in relying upon, an Opinion of Counsel stating
that the execution of such supplemental indenture is authorized or permitted by
and complies with this Indenture. The Trustee may, but shall not be obligated
to, enter into any such supplemental indenture which affects the Trustee's own
rights, liabilities, duties or immunities under this Indenture or otherwise.
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SECTION 9.04. Effect of Supplemental Indentures. Upon the execution of
any supplemental indenture under this Article, this Indenture shall be modified
in accordance therewith, and such supplemental indenture shall form a part of
this Indenture for all purposes; and every Holder of Securities theretofore or
thereafter authenticated and delivered hereunder shall be bound thereby.
SECTION 9.05. Conformity with Trust Indenture Act. Every supplemental
indenture executed pursuant to this Article shall conform to the requirements of
the TIA as then in effect.
SECTION 9.06. Reference in Securities to Supplemental Indentures.
Securities authenticated and delivered after the execution of any supplemental
indenture pursuant to this Article may, and shall, if required by the Trustee,
bear a notation in form approved by the Trustee as to any matter provided for in
such supplemental indenture. If the Company shall so determine, new Securities
so modified as to conform, in the opinion of the Trustee and the Company, to any
such supplemental indenture may be prepared and executed by the Company and
authenticated and delivered by the Trustee in exchange for Outstanding
Securities.
SECTION 9.07. Subordination Unimpaired. No supplemental indenture
executed pursuant to this Article shall directly or indirectly modify the
provisions of Article Fourteen in any manner which might alter the subordination
of the Securities.
ARTICLE TEN
Consolidation, Merger, Conveyance or Transfer
SECTION 10.01. Company May Consolidate, etc., Only on Certain Terms. The
Company shall not consolidate with or merge into any other corporation or convey
or transfer its properties and assets substantially as an entirety to any
Person, unless:
(i) the Person formed by such consolidation or into which the
Company is merged or the Person which acquires by conveyance or transfer the
properties and assets of the Company substantially as an entirety shall
expressly assume, by an indenture supplemental hereto, executed and delivered to
the Trustee, in form satisfactory to the Trustee, the due and punctual payment
of the principal of, premium, if any, and
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interest (including all additional amounts, if any, payable pursuant to Section
5.04) on all the Securities and the performance of every covenant of this
Indenture on the part of the Company to be performed or observed;
(ii) immediately after giving effect to such transaction, no Default,
and no event which, after notice or lapse of time, or both, would become a
Default, shall have happened and be continuing; and
(iii) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel each stating that such consolidation,
merger, conveyance or transfer and such supplemental indenture comply with this
Article and that all conditions precedent herein provided for relating to such
transaction have been complied with.
SECTION 10.02. Successor Corporation Substituted. Upon any consolidation
or merger, or any conveyance or transfer of the properties and assets of the
Company substantially as an entirety in accordance with Section 10.01, the
successor Person formed by such consolidation or into which the Company is
merged or to which such conveyance or transfer is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Company under
this Indenture with the same effect as if such successor Person had been named
as the Company herein. In the event of any such conveyance or transfer, the
Company as the predecessor corporation shall be relieved of all obligations and
covenants under this Indenture and may be dissolved, wound up and liquidated at
any time thereafter.
ARTICLE ELEVEN
Satisfaction and Discharge
SECTION 11.01. Satisfaction and Discharge of Indenture. This Indenture
shall cease to be of further effect (except as to any surviving rights of
registration of transfer or exchange of Securities herein expressly provided for
and rights to receive payments thereon and any right to receive additional
amounts, as provided in Section 5.04), and the Trustee, on receipt of a Company
Request and at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture, when:
(i) either:
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(a) all Securities theretofore authenticated and delivered (other
than (1) coupons appertaining to Bearer Securities surrendered for exchange for
Registered Securities and maturing after such exchange, whose surrender is not
required or has not been waived as provided in Section 3.05, (2) coupons
appertaining to Bearer Securities called for redemption and maturing after the
relevant Redemption Date, whose surrender has been waived as provided in Section
4.06, (3) coupons appertaining to Bearer Securities surrendered for repayment
pursuant to Section 15.03 and maturing after the Repayment Date, whose surrender
has been waived as provided in Section 15.03, (4) Securities and coupons which
have been destroyed, lost or stolen and which have been replaced or paid as
provided in Section 3.06, and (5) Securities for whose payment money has
theretofore been deposited in trust or segregated and held in trust by the
Company and thereafter repaid to the Company or discharged from such trust, as
provided in Section 5.03) have been delivered to the Trustee for cancellation;
or
(b) all such Securities not theretofore delivered to the Trustee for
cancellation:
(1) have become due and payable, or
(2) will become due and payable at their Maturity within one year,
or
(3) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice of redemption
by the Trustee in the name, and at the expense, of the Company,
and the Company, in the case of (b) (1), (2) or (3) above, has deposited
or caused to be deposited with the Trustee, as trust funds in trust for the
purpose, an amount (said amount to be immediately due and payable to the
Holders) sufficient to pay and discharge the entire indebtedness on such
Securities and coupons not theretofore delivered to the Trustee for
cancellation, for principal, premium, if any, and interest to the date of such
deposit (in the case of Securities which have become due and payable), or to the
Maturity or Redemption Date, as the case may be;
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(ii) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(iii) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel each stating that all conditions precedent
herein provided for relating to the satisfaction and discharge of this Indenture
have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 8.07 and, if money shall
have been deposited with the Trustee pursuant to subclause (b) of clause (i) of
this Section, the obligations of the Trustee under Section 11.02 and the last
paragraph of Section 5.03 shall survive. The Trustee may give notice at the
Company's expense to the Holders of Securities Outstanding of the immediate
availability of the amount referred to in clause (i) of this Section 11.01.
Funds held pursuant to this Section shall not be subject to the provisions of
Article Fourteen.
SECTION 11.02. Application of Trust Money. Subject to the provisions of
the last paragraph of Section 5.03, all money deposited with the Trustee
pursuant to Section 11.01 shall be held in trust and applied by it, in
accordance with the provisions of the Securities, the coupons, if any, and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent), as the Trustee may
determine, to the Persons entitled thereto, of the principal, premium, if any,
and interest for whose payment such money has been deposited with the Trustee;
but such money need not be segregated from other funds except to the extent
required by law.
SECTION 11.03. Reinstatement. If the Trustee or any Paying Agent is
unable to apply any money in accordance with Section 11.02 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
Section 11.01 until such time as the Trustee or any Paying Agent is permitted to
apply all such money in accordance with Section 11.02.
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ARTICLE TWELVE
Immunity of Incorporators, Stockholders, Officers and Directors
SECTION 12.01. Exemption from Individual Liability. No recourse under or
upon any obligation, covenant or agreement of this Indenture, or of any Security
or coupon, or for any claim based thereon or otherwise in respect thereof, shall
be had against any incorporator, stockholder, officer or director, as such,
past, present or future, of the Company or of any successor corporation, either
directly or through the Company, whether by virtue of any constitution, statute
or rule of law, or by the enforcement of any assessment or penalty or otherwise;
it being expressly understood that this Indenture and the obligations issued
hereunder are solely corporate obligations of the Company, and that no such
personal liability whatever shall attach to, or is or shall be incurred by, the
incorporators, stockholders, officers or directors, as such, of the Company or
of any successor corporation, or any of them, because of the creation of the
indebtedness hereby authorized, or under or by reason of the obligations,
covenants or agreements contained in this Indenture or in any of the Securities
or coupons or implied therefrom; and that any and all such personal liability,
either at common law or in equity or by constitution or statute, of, and any and
all such rights and claims against, every such incorporator, stockholder,
officer or director, as such, because of the creation of the indebtedness hereby
authorized, or under or by reason of the obligations, covenants or agreements
contained in this Indenture or in any of the Securities or coupons or implied
therefrom, are hereby expressly waived and released as a condition of, and as a
consideration for, the execution of this Indenture and the issuance of the
Securities.
ARTICLE THIRTEEN
Sinking Funds
SECTION 13.01. Applicability of Article. The provisions of this Article
shall be applicable to any sinking fund for the retirement of Securities of a
series except as otherwise specified as contemplated by Section 3.01 for
Securities of such series.
The minimum amount of any sinking fund payment provided for by the terms
of Securities of any series is herein referred to as a "mandatory sinking fund
payment",
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and any payment in excess of such minimum amount provided for by the terms of
Securities of any series is herein referred to as an "optional sinking fund
payment". If provided for by the terms of Securities of any series, the cash
amount of any sinking fund payment may be subject to reduction as provided in
Section 13.02. Each sinking fund payment shall be applied to the redemption of
Securities of any series as provided for by the terms of Securities of such
series.
SECTION 13.02. Satisfaction of Sinking Fund Payments with Securities.
The Company (i) may deliver Outstanding Securities of a series (other than any
previously called for redemption), together in the case of any Bearer Securities
of such series with all unmatured coupons appertaining thereto and (ii) may
apply as a credit Securities of a series which have been redeemed either at the
election of the Company pursuant to the terms of such Securities or through the
application of permitted optional sinking fund payments pursuant to the terms of
such Securities, in each case in satisfaction of all or any part of any sinking
fund payment with respect to the Securities of such series required to be made
pursuant to the terms of such Securities as provided for by the terms of such
series; provided that such Securities have not been previously so credited. Such
Securities shall be received and credited for such purpose by the Trustee at the
Redemption Price specified in such Securities for redemption through operation
of the sinking fund and the amount of such sinking fund payment shall be reduced
accordingly.
SECTION 13.03. Redemption of Securities for Sinking Fund. Not less than
60 days prior to each sinking fund payment date for any series of Securities,
the Company will deliver to the Trustee and the Security Registrar an Officers'
Certificate specifying (i) the amount of the next ensuing sinking fund payment
for that series pursuant to the terms of that series, (ii) the portion thereof,
if any, which is to be satisfied by payment of cash and the portion thereof, if
any, which is to be satisfied by delivering and crediting Securities of that
series pursuant to Section 13.02, and (iii) that none of such Securities has
theretofore been so credited and stating the basis for such credit, and will
also deliver to the Trustee any Securities to be so delivered. Not less than 30
days before each sinking fund payment date the Security Registrar shall select
the Securities to be redeemed upon such sinking fund payment date in the manner
specified in Section 4.03 and cause notice of the redemption thereof to be given
in the name of and at the expense of the Company in the manner provided in
Section 4.04. Such notice having been duly
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given, the redemption of such Securities shall be made upon the terms and in the
manner stated in Sections 4.06 and 4.07 and shall be subject to Section 4.08.
ARTICLE FOURTEEN
Subordination of Securities
SECTION 14.01. Agreement To Subordinate. The Company, for itself, its
successors and assigns, covenants and agrees, and each Holder of a Security by
his acceptance thereof, likewise covenants and agrees, that the payment of the
principal and premium, if any, and interest on each and all of the Securities is
hereby expressly subordinated, to the extent and in the manner hereinafter set
forth, in right of payment to the prior payment in full of all Senior
Indebtedness and, subject to the provisions of Section 14.09, General
Obligations of the Company.
SECTION 14.02. Distribution on Dissolution, Liquidation and
Reorganization; Subrogation of Securities. Upon any distribution of assets of
the Company upon any dissolution, winding up, liquidation or reorganization of
the Company, whether in bankruptcy, insolvency, reorganization or receivership
proceedings or upon an assignment for the benefit of creditors or any other
marshalling of the assets and liabilities of the Company or otherwise (subject
to the power of a court of competent jurisdiction to make other equitable
provision reflecting the rights conferred in this Indenture upon the Senior
Indebtedness and the holders thereof with respect to the Securities and the
Holders thereof (and, upon the General Obligations and the creditors in respect
thereof with respect to the Securities and the Holders thereof) by a lawful plan
of reorganization under applicable bankruptcy law):
(i) the holders of all Senior Indebtedness shall first be entitled
to receive payment in full in accordance with the terms of such Senior
Indebtedness of the principal thereof, premium, if any, and the interest due
thereon (including interest accruing subsequent to the commencement of any
proceeding for the bankruptcy or reorganization of the Company under any
applicable bankruptcy, insolvency, or similar law now or hereafter in effect)
before the Holders of the Securities are entitled to receive any payment upon
the principal of or premium, if any, or interest on indebtedness evidenced by
the Securities;
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(ii) any payment or distribution of assets of the Company of any kind
or character, whether in cash, property or securities, to which the Holders of
the Securities or the Trustee would be entitled except for the provisions of
this Article Fourteen, including any such payment or distribution which may be
payable or deliverable by reason of the payment of any other indebtedness of the
Company being subordinated to the payment of the Securities, shall be paid by
the liquidating trustee or agent or other person making such payment or
distribution, whether a trustee in bankruptcy, a receiver or liquidating trustee
or otherwise, directly to the holders of Senior Indebtedness or their
representative or representatives or to the trustee or trustees under any
indenture under which any instruments evidencing any of such Senior Indebtedness
may have been issued, in accordance with the priorities then existing among
holders of Senior Indebtedness for payment of the aggregate amounts remaining
unpaid on account of the principal of and premium, if any, and interest
(including interest accruing subsequent to the commencement of any proceeding
for the bankruptcy or reorganization of the Company under any applicable
bankruptcy, insolvency or similar law now or hereafter in effect) on the Senior
Indebtedness held or represented by each, to the extent necessary to make
payment in full of all Senior Indebtedness remaining unpaid, after giving effect
to any concurrent payment or distribution to the holders of such Senior
Indebtedness; it being understood that if the Holders of Securities shall fail
to file a proper claim in the form required by any proceeding referred to in
this subparagraph (ii) prior to 30 days before the expiration of the time to
file such claim or claims, then the holders of Senior Indebtedness are hereby
authorized to file an appropriate claim or claims for and on behalf of the
Holders of Securities in the form required in any such proceeding (as are the
creditors in respect of General Obligations in the event Section 14.09 is
applicable); and
(iii) in the event that, notwithstanding the foregoing, any payment or
distribution of assets of the Company of any kind or character, whether in cash,
property or securities, including any such payment or distribution which may be
payable or deliverable by reason of the payment of any other indebtedness of the
Company being subordinate to the payment of the Securities, shall be received by
the Trustee or Holders of the Securities before all Senior Indebtedness is paid
in full, such payment or distribution shall be
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held in trust for the benefit of and shall be paid over to the holders of such
Senior Indebtedness or their representative or representatives or to the trustee
or trustees under any indenture under which any instruments evidencing any of
such Senior Indebtedness may have been issued, ratably as aforesaid, for
application to the payment of all Senior Indebtedness remaining unpaid until all
such Senior Indebtedness shall have been paid in full, after giving effect to
any concurrent payment or distribution to the holders of such Senior
Indebtedness.
Subject to the payment in full of all Senior Indebtedness, the Holders of the
Securities shall be subrogated (equally and ratably with the holders of all
indebtedness of the Company which by its express terms is subordinated to
indebtedness of the Company to substantially the same extent as the Securities
are subordinated and is entitled to like rights of subrogation) to the rights of
the holders of Senior Indebtedness to receive payments or distributions of cash,
property or securities of the Company applicable to the Senior Indebtedness
until the principal of and premium, if any, and interest on the Securities shall
be paid in full and no such payments or distributions to holders of such Senior
Indebtedness to which the Holders of the Securities would be entitled except for
the provisions hereof of cash, property or securities otherwise distributable to
the Senior Indebtedness shall, as between the Company, its creditors, other than
the holders of Senior Indebtedness and the Holders of the Securities, be deemed
to be a payment by the Company to or on account of the Securities. It is
understood that the provisions of this Article Fourteen are and are intended
solely for the purpose of defining the relative rights of the Holders of the
Securities, on the one hand, and the holders of Senior Indebtedness (and, in the
case of Section 14.09, the Holders of the Securities, on the one hand, and
creditors in respect of General Obligations) on the other hand. Nothing
contained in this Article Fourteen or elsewhere in this Indenture or in the
Securities is intended to or shall impair, as between the Company, its
creditors, other than the holders of Senior Indebtedness, and the Holders of the
Securities, the obligation of the Company, which is unconditional and absolute
(and which, subject to the rights under this Article Fourteen of the holders of
the Senior Indebtedness and the rights under Section 14.09 of creditors in
respect of General Obligations, is intended to rank equally with all other
general obligations of the Company), to pay to the Holders of the Securities the
principal of, premium, if any, and interest on the Securities as and when the
same shall become due and payable in accordance with their terms or to affect
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the relative rights of the Holders of the Securities and creditors of the
Company, other than the holders of the Senior Indebtedness and creditors in
respect of General Obligations, nor shall anything herein or in the Securities
prevent the Trustee or the Holder of any Security from exercising all remedies
otherwise permitted by applicable law upon Default under this Indenture, subject
to the rights, if any, under this Article Fourteen of the holders of Senior
Indebtedness and under Section 14.09 of creditors in respect of General
Obligations in respect of cash, property or securities of the Company received
upon the exercise of any such remedy. Upon any payment or distribution of assets
of the Company referred to in this Article Fourteen, the Trustee, subject to the
provisions of Section 8.01, and the Holders of the Securities shall be entitled
to rely upon any order or decree of a court of competent jurisdiction in which
such dissolution, winding up, liquidation or reorganization proceedings are
pending or upon a certificate of the liquidating trustee or agent or other
person making any distribution to the Trustee or to the Holders of the
Securities for the purpose of ascertaining the persons entitled to participate
in such distribution, the holders of the Senior Indebtedness and other
indebtedness of the Company and the creditors in respect of General Obligations,
the amount thereof or payable thereon, the amount or amounts paid or distributed
thereon and all other facts pertinent thereto or to this Article Fourteen. In
the absence of any such liquidating trustee, agent or other person, the Trustee
shall be entitled to rely upon a written notice by a Person representing himself
to be a holder of Senior Indebtedness (or a trustee or representative on behalf
of such holder) or a creditor in respect of General Obligations as evidence that
such Person is a holder of Senior Indebtedness (or is such a trustee or
representative) or a creditor in respect of General Obligations, as the case may
be. In the event that the Trustee determines, in good faith, that further
evidence is required with respect to the right of any Person, as a holder of
Senior Indebtedness or a creditor in respect of General Obligations, to
participate in any payment or distribution pursuant to this Section or Section
14.09, the Trustee may request such Person to furnish evidence to the reasonable
satisfaction of the Trustee as to the amount of Senior Indebtedness or General
Obligations held by such Person, as to the extent to which such Person is
entitled to participation in such payment or distribution, and as to other facts
pertinent to the rights of such Person under this Section or Section 14.09, and
if such evidence is not furnished, the Trustee may defer any payment to such
Person pending judicial determination as to the right of such Person to receive
such payment.
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The obligations of the Company in respect of the Securities shall rank
on a parity with the Existing Subordinated Indebtedness and any other
obligations of the Company ranking on a parity with the Securities.
With respect to the holders of Senior Indebtedness or creditors in
respect of General Obligations, the Trustee undertakes to perform or to observe
only such of its covenants and obligations as are specifically set forth in this
Article, and no implied covenants or obligations with respect to the holders of
Senior Indebtedness or creditors in respect of General Obligations shall be read
into this Indenture against the Trustee. The Trustee, however, shall not be
deemed to owe any fiduciary duty to the holders of Senior Indebtedness or
creditors in respect of General Obligations, and shall not be liable to any such
holders or creditors if it shall mistakenly pay over or distribute to or on
behalf of Holders of Securities or the Company moneys or assets to which any
holders of Senior Indebtedness or creditors in respect of General Obligations
shall be entitled by virtue of this Article Fourteen.
SECTION 14.03. Payments on Securities Prohibited During Event of Default
under Senior Indebtedness. In the event and during the continuation of any
default in the payment of principal of, or premium, if any, or interest on, any
Senior Indebtedness beyond any applicable period of grace, or in the event that
any event of default with respect to any Senior Indebtedness shall have occurred
and be continuing, or would occur as a result of the payment referred to
hereinafter, permitting the holders of such Senior Indebtedness (or a trustee on
behalf of the holders thereof) to accelerate the maturity thereof, then, unless
and until such default or event of default shall have been cured or waived or
shall have ceased to exist, no payment of principal of, or premium or interest
on the Securities, or in respect of any redemption, retirement, purchase or
other acquisition of any of the Securities, shall be made by the Company.
SECTION 14.04. Payments on Securities Permitted. Nothing contained in
this Indenture or in any of the Securities shall (i) impair, as between the
Company and Holders of Securities, the obligation of the Company to make, or
prevent the Company from making, at any time except as provided in Sections
14.02, 14.03, 14.08 and 14.09, payments of principal of or premium, if any, or
interest (including interest accruing subsequent to the commencement of any
proceeding for the bankruptcy or reorganization of the Company under any
applicable bankruptcy, insolvency or similar law now or hereafter in effect) on
the Securities,
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as and when the same shall become due and payable in accordance with the terms
of the Securities, (ii) affect the relative rights of the Holders of the
Securities and creditors of the Company other than the holders of the Senior
Indebtedness of the Company and the creditors in respect of General Obligations,
(iii) prevent the Trustee or the Holder of any Security from exercising all
remedies otherwise permitted by applicable law upon default thereunder, subject
to the rights, if any, under Article Fourteen of the holders of Senior
Indebtedness and the creditors in respect of General Obligations in respect of
cash, property or securities of the Company received upon the exercise of such
remedy, or (iv) prevent the application by the Trustee or any Paying Agent of
any moneys deposited with it hereunder to the payment of or on account of the
principal of or premium, if any, or interest on the Securities or prevent the
receipt by the Trustee or any Paying Agent of such moneys, if, prior to the
second Business Day prior to such deposit, the Trustee or such Paying Agent did
not have written notice of any event prohibiting the making of such deposit by
the Company.
SECTION 14.05. Authorization of Holders to Trustee To Effect
Subordination. Each Holder of a Security by his acceptance thereof authorizes
and directs the Trustee in his behalf to take such action as may be necessary or
appropriate to effectuate the subordination as provided in this Article Fourteen
and appoints the Trustee his attorney-in-fact for any and all such purposes.
SECTION 14.06. Notice to Trustee. Notwithstanding the provisions of this
Article or any other provisions of this Indenture, but subject to Section 14.04
hereof, neither the Trustee nor any Paying Agent shall be charged with knowledge
of the existence of any Senior Indebtedness or General Obligations or of any
event which would prohibit the making of any payment of moneys to or by the
Trustee or such Paying Agent, unless and until the Trustee or such Paying Agent
shall have received written notice thereof from the Company or from the holder
of any Senior Indebtedness or from the representative of any such holder or from
any creditor in respect of General Obligations.
SECTION 14.07. Right of Trustee To Hold Senior Indebtedness or General
Obligations. The Trustee shall be entitled to all of the rights set forth in
this Article in respect of any Senior Indebtedness or General Obligation at any
time held by it in its individual capacity to the same extent as any other
holder of such Senior Indebtedness or creditor in respect of such General
Obligation and nothing
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in this Indenture shall be construed to deprive the Trustee of any of its rights
as such holder or creditor.
Nothing in this Article shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 8.07.
SECTION 14.08. Article Fourteen Not To Prevent Defaults or Events of
Default. The failure to make a payment pursuant to the Securities by reason of
any provision in this Article shall not be construed as preventing the
occurrence of a Default or an Event of Default.
SECTION 14.09. Securities To Rank Pari Passu with Existing Subordinated
Indebtedness; Payment of Proceeds in Certain Cases. (i) Subject to the
provisions of this Section and to any provisions established or determined with
respect to Securities of any series pursuant to Section 3.01, the Securities
shall rank pari passu in right of payment with the Existing Subordinated
Indebtedness.
(ii) Upon the occurrence of any of the events specified in the first
paragraph of Section 14.02, the provisions of that Section and the corresponding
provisions of each indenture or other instrument or document establishing or
governing the terms of any Existing Subordinated Indebtedness shall be given
effect on a pro rata basis to determine the amount of cash, property or
securities which may be payable or deliverable as between the holders of Senior
Indebtedness, on the one hand, and the Holders of the Securities and holders of
Existing Subordinated Indebtedness, on the other hand.
(iii) If, after giving effect to the provisions of Section 14.02, and
the respective corresponding provisions of each indenture or other instrument or
document establishing or governing the terms of any Existing Subordinated
Indebtedness on such pro rata basis, any amount of cash, property or securities
shall be available for payment or distribution in respect of the Securities
("Excess Proceeds"), and any creditors in respect of General Obligations shall
not have received payment in full of all amounts due or to become due on or in
respect of such General Obligations (and provision shall not have been made for
such payment in money or money's worth), then such Excess Proceeds shall first
be applied (ratably with any amount of cash, property or securities available
for payment or distribution in respect of any other
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indebtedness of the Company that by its express terms provides for the payment
over of amounts corresponding to Excess Proceeds to creditors in respect of
General Obligations) to pay or provide for the payment of the General
Obligations remaining unpaid, to the extent necessary to pay all General
Obligations in full, after giving effect to any concurrent payment or
distribution to or for creditors in respect of General Obligations. Any Excess
Proceeds remaining after payment (or provision for payment) in full of all
General Obligations shall be available for payment or distribution in respect of
the Securities.
(iv) In the event that, notwithstanding the foregoing provisions of
subsection (iii) of this Section, the Trustee or Holder of any Security shall,
in the circumstances contemplated by such subsection, have received any payment
or distribution of assets of the Company of any kind or character, whether in
cash, property or securities, before all General Obligations are paid in full or
payment thereof duly provided for, and if such fact shall, at or prior to the
time of such payment or distribution have been made known to the Trustee or, as
the case may be, such Holder, then and in such event, subject to any obligation
that the Trustee or such Holder may have pursuant to Section 14.02, such payment
or distribution shall be paid over or delivered forthwith to the trustee in
bankruptcy, receiver, liquidating trustee, custodian, assignee, agent or other
Person making payment or distribution of assets of the Company for payment in
accordance with subsection (iii).
(v) Subject to the payment in full of all General Obligations, the
Holder of the Securities shall be subrogated (equally and ratably with the
holders of all indebtedness of the Company that by its express terms provides
for the payment over of amounts corresponding to Excess Proceeds to creditors in
respect of General Obligations and is entitled to like rights of subrogation) to
the rights of the creditors in respect of General Obligations to receive
payments or distributions of cash, property or securities applicable to the
General Obligations until the principal of and interest on the Securities shall
be paid in full. For purposes of such subrogation, no payments or distributions
to creditors in respect of General Obligations of any cash, property or
securities to which Holders of the Securities or the Trustee would be entitled
except for the provisions of this Section, and no payments over pursuant to the
provisions of this
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Section to creditors in respect of General Obligations by Holders of Securities
or the Trustee, shall, as among the Company, its creditors (other than creditors
in respect of General Obligations) and the Holders of Securities be deemed to be
a payment or distribution by the Company to or on account of the Securities.
(vi) The provisions of subsections (iii), (iv) and (v) of this
Section are and are intended solely for the purpose of defining the relative
rights of the Holders of the Securities, on the one hand, and the creditors in
respect of General Obligations, on the other hand, after giving effect to the
rights of the holders of Senior Indebtedness, as provided in this Article.
Nothing contained in subsections (iii), (iv) and (v) of this Section is intended
to or shall affect the relative rights against the Company of the Holders of the
Securities and (a) the holders of Senior Indebtedness, (b) the holders of
Existing Subordinated Indebtedness or (c) other creditors of the Company other
than creditors in respect of General Obligations.
ARTICLE FIFTEEN
Repayment at the Option of Holders
SECTION 15.01. Applicability of Article. Securities of any series which
are repayable at the option of the Holders thereof before their Stated Maturity
shall be repaid in accordance with their terms and (except as otherwise
specified pursuant to Section 3.01 for Securities of such series) in accordance
with this Article.
SECTION 15.02. Repayment of Securities. Each Security which is subject
to repayment in whole or in part at the option of the Holder thereof on a
Repayment Date shall be repaid at the applicable Repayment Price together with
interest accrued to such Repayment Date as specified pursuant to Section 3.01.
SECTION 15.03. Exercise of Option, Notice. Each Holder desiring to
exercise such Holder's option for repayment shall, as conditions to such
repayment, surrender the Security to be repaid in whole or in part together with
written notice of the exercise of such option at any office or agency of the
Company in a Place of Payment, not less than 30 nor more than 45 days prior to
the Repayment Date; provided, however, that surrender of Bearer Securities
together with written notice of exercise of such option shall be made at an
office or agency located outside the
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United States except as otherwise provided in Section 5.02. Such notice, which
shall be irrevocable, shall specify the principal amount of such Security to be
repaid, which shall be equal to the minimum authorized denomination for such
Security or an integral multiple thereof, and shall identify the Security to be
repaid and, in the case of a partial repayment of the Security, shall specify
the denomination or denominations of the Security or Securities of the same
series to be issued to the Holder for the portion of the principal of the
Security surrendered which is not to be repaid.
If any Bearer Security surrendered for repayment shall not be
accompanied by all unmatured coupons and all matured coupons in default, such
Bearer Security may be paid after deducting from the Repayment Price an amount
equal to the face amount of all such missing coupons, or the surrender of such
missing coupon or coupons may be waived by the Company and the Trustee if there
be furnished to them such security or indemnity as they may require to save each
of them and any Paying Agent harmless. If thereafter the Holder of such Bearer
Security shall surrender to the Trustee or any Paying Agent any such missing
coupon in respect of which a deduction shall have been made from the Repayment
Price, such Holder shall be entitled to receive the amount so deducted without
interest thereon; provided, however, that interest represented by coupons shall
be payable only at an office or agency located outside the United States except
as otherwise provided in Section 5.02.
The Company shall execute and the Trustee shall authenticate and deliver
without service charge to the Holder of any Registered Security so surrendered a
new Registered Security or Securities of the same series and tenor of any
authorized denomination specified in the foregoing notice, in an aggregate
principal amount equal to any portion of the principal of the Registered
Security so surrendered which is not to be repaid.
The Company shall execute and the Trustee shall authenticate and deliver
without service charge to the Holder of any Bearer Security so surrendered a new
Registered Security or Securities or new Bearer Security or Securities (and all
appurtenant unmatured coupons and matured coupons in default) or any combination
thereof of the same series and tenor of any authorized denomination or
denominations specified in the foregoing notice, in an aggregate principal
amount equal to any portion of the principal of the Security so surrendered
which is not to be repaid; provided, however, that the issuance of a Registered
Security therefor shall be subject to applicable laws and
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regulations, including provisions of the United States Federal income tax laws
and regulations in effect at the time of the exchange; neither the Company, the
Trustee nor the Security Registrar shall issue Registered Securities for Bearer
Securities if it has received an Opinion of Counsel that as a result of such
issuance the Company would suffer adverse consequences under the United States
Federal income tax laws then in effect and the Company has delivered to the
Trustee a Company Order directing the Trustee not to make such issuances
thereafter unless and until the Trustee receives a subsequent Company Order to
the contrary. The Company shall deliver copies of such Company Order to the
Security Registrar.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the repayment of Securities shall relate,
in the case of any Security repaid or to be repaid only in part, to the portion
of the principal of such Security which has been or is to be repaid.
SECTION 15.04. Election of Repayment by Remarketing Entities. The
Company may elect, with respect to Securities of any series which are repayable
at the option of the Holders thereof before their Stated Maturity, at any time
prior to any Repayment Date to designate one or more Remarketing Entities to
purchase, at a price equal to the Repayment Price, Securities of such series
from the Holders thereof who give notice and surrender their Securities in
accordance with Section 15.03.
SECTION 15.05. Securities Payable on the Repayment Date. Notice of
exercise of the option of repayment having been given and the Securities so to
be repaid having been surrendered as aforesaid, such Securities shall, unless
purchased in accordance with Section 15.04, on the Repayment Date become due and
payable at the price therein specified and from and after the Repayment Date
such Securities shall cease to bear interest and shall be paid on the Repayment
Date, and the coupons for such interest appertaining to Bearer Securities so to
be repaid, except to the extent provided above, shall be void, unless the
Company shall default in the payment of such price, in which case the Company
shall continue to be obligated for the principal amount of such Securities and
shall be obligated to pay interest on such principal amount at the rate
prescribed therefor by such Securities from time to time until payment in full
of such principal amount.
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ARTICLE SIXTEEN
Meetings of Holders of Securities
SECTION 16.01. Purposes for Which Meetings May Be Called. If Securities
of a series are issuable in whole or in part as Bearer Securities, a meeting of
Holders of Securities of such series may be called at any time and from time to
time pursuant to this Article to make, give or take any request, demand,
authorization, direction, notice, consent, waiver or other Act provided by this
Indenture to be made, given or taken by Holders of Securities of such series.
SECTION 16.02. Call, Notice and Place of Meetings. (i) The Trustee may
at any time call a meeting of Holders of Securities of any series issuable in
whole or in part as Bearer Securities for any purpose specified in Section
16.01, to be held at such time and at such place in the City of Sacramento,
California, [____________], or in London as the Trustee shall determine. Notice
of every meeting of Holders of Securities of any series, setting forth the time
and the place of such meeting and in general terms the action proposed to be
taken at such meeting, shall be given, in the manner provided in Section 1.06,
not less than 21 nor more than 180 days prior to the date fixed for the meeting.
(ii) In case at any time the Company, pursuant to a Board Resolution,
or the Holders of at least 10% in principal amount of the Outstanding Securities
of any such series shall have requested the Trustee to call a meeting of the
Holders of Securities of such series for any purpose specified in Section 16.01,
by written request setting forth in reasonable detail the action proposed to be
taken at the meeting, and the Trustee shall not have made the first publication
of the notice of such meeting within 21 days after receipt of such request or
shall not thereafter proceed to cause the meeting to be held as provided herein,
then the Company or the Holders of Securities of such series in the amount above
specified, as the case may be, may determine the time and the place in the City
of Sacramento, California, [____________], or in London for such meeting and may
call such meeting for such purposes by giving notice thereof as provided in
subsection (i) of this Section.
SECTION 16.03. Persons Entitled To Vote at Meetings. To be entitled to
vote at any meeting of Holders of Securities of any series, a Person shall be
(1) a Holder of one or more Outstanding Securities of such series, or (2)
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a Person appointed by an instrument in writing as proxy for a Holder or Holders
of one or more Outstanding Securities of such series by such Holder or Holders.
The only Persons who shall be entitled to be present or to speak at any meeting
of Holders of Securities of any series shall be the Persons entitled to vote at
such meeting and their counsel, any representatives of the Trustee and its
counsel and any representatives of the Company and its counsel.
SECTION 16.04. Quorum, Action. The Persons entitled to vote a majority
in principal amount of the Outstanding Securities of a series shall constitute a
quorum for a meeting of Holders of Securities of such series; provided, however,
that if any action is to be taken at such meeting with respect to a consent or
waiver which this Indenture expressly provides may be given by the Holders of a
greater percentage in principal amount of the Outstanding Securities of a
series, the Persons entitled to vote such greater percentage in principal amount
of the Outstanding Securities of such series shall constitute a quorum. In the
absence of a quorum within 30 minutes of the time appointed for any such
meeting, the meeting shall, if convened at the request of Holders of Securities
of such series, be dissolved. In the absence of a quorum in any other case the
meeting may be adjourned for a period of not less than 10 days as determined by
the chairperson of the meeting prior to the adjournment of such meeting. In the
absence of a quorum at any such adjourned meeting, such adjourned meeting may be
further adjourned for a period of not less than 10 days as determined by the
chairperson of the meeting prior to the adjournment of such adjourned meeting.
Notice of the reconvening of any adjourned meeting shall be given as provided in
Section 16.02(i), except that such notice need be given only once not less than
five days prior to the date on which the meeting is scheduled to be reconvened.
Notice of the reconvening of an adjourned meeting shall state expressly the
percentage, as provided above, of the principal amount of the Outstanding
Securities of such series which shall constitute a quorum.
Except as limited by the provisos to Section 9.02, any resolution
presented to a meeting or adjourned meeting duly reconvened at which a quorum is
present as aforesaid may be adopted only by the affirmative vote of the Holders
of a majority in principal amount of the Outstanding Securities of the series;
provided, however, that, except as limited by the provisos to Section 9.02, any
resolution with respect to any consent or waiver which this Indenture expressly
provides may be given by the Holders of a greater percentage in principal amount
of the Outstanding Securities of a series may be adopted at a meeting or an
adjourned
<PAGE> 102
102
meeting duly reconvened and at which a quorum is present as aforesaid only by
the affirmative vote of the Holders of such greater percentage in principal
amount of the Outstanding Securities of that series; and provided further that,
except as limited by the provisos to Section 9.02, any resolution with respect
to any request, demand, authorization, direction, notice, consent, waiver or
other Act which this Indenture expressly provides may be made, given or taken by
the Holders of a specified percentage, which is less than a majority in
principal amount of the Outstanding Securities of a series may be adopted at a
meeting or an adjourned meeting duly reconvened and at which a quorum is present
as aforesaid by the affirmative vote of the Holders of such specified percentage
in principal amount of the Outstanding Securities of that series.
Any resolution passed or decision taken at any meeting of Holders of
Securities of any series duly held in accordance with this Section shall be
binding on all the Holders of Securities of such series and the related coupons,
whether or not present or represented at the meeting.
SECTION 16.05. Determination of Voting Rights; Conduct and Adjournment
of Meetings. (a) Notwithstanding any other provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable for any
meeting of Holders of Securities of such series in regard to proof of the
holding of Securities of such series and of the appointment of proxies and in
regard to the appointment and duties of inspectors of votes, the submission and
examination of proxies, certificates and other evidence of the right to vote,
and such other matters concerning the conduct of the meeting as it shall deem
appropriate. Except as otherwise permitted or required by any such regulations,
the holding of Securities shall be proved in the manner specified in Section
1.04 and the appointment of any proxy shall be proved in the manner specified in
Section 1.04 or, in the case of Bearer Securities, by having the signature of
the person executing the proxy witnessed or guaranteed by any trust company,
bank or banker authorized by Section 1.04 to certify to the holding of Bearer
Securities. Such regulations may provide that written instruments appointing
proxies, regular on their face, may be presumed valid and genuine without the
proof specified in Section 1.04 or other proof.
(b) The Trustee shall, by an instrument in writing, appoint a
temporary chairperson of the meeting, unless the meeting shall have been called
by the Company or by Holders of Securities as provided in
<PAGE> 103
103
Section 16.02(ii), in which case the Company or the Holders of Securities of the
series calling the meeting, as the case may be, shall in like manner appoint a
temporary chairperson. A permanent chairperson and a permanent secretary of the
meeting shall be elected by vote of the Persons entitled to vote a majority in
principal amount of the Outstanding Securities of such series represented at the
meeting.
(c) At any meeting each Holder of a Security of such series or proxy
shall be entitled to one vote for each $1,000 principal amount (or the
equivalent in any composite currency or a Foreign Currency) of Securities of
such series held or represented by him; provided, however, that no vote shall be
cast or counted at any meeting in respect of any Security challenged as not
Outstanding and ruled by the chairperson of the meeting not to be Outstanding.
The chairperson of the meeting shall have no right to vote, except as a Holder
of a Security of such series or proxy.
(d) Any meeting of Holders of Securities of any series duly called
pursuant to Section 16.02 at which a quorum is present may be adjourned from
time to time by Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the meeting; and the
meeting may be held as so adjourned without further notice.
SECTION 16.06. Counting Votes and Recording Action of Meetings. The vote
upon any resolution submitted to any meeting of Holders of Securities of any
series shall be by written ballots on which shall be subscribed the signatures
of the Holders of Securities of such series or of their representatives by proxy
and the principal amounts and serial numbers of the Outstanding Securities of
such series held or represented by them. The permanent chairperson of the
meeting shall appoint two inspectors of votes who shall count all votes cast at
the meeting for or against any resolution and who shall make and file with the
secretary of the meeting their verified written reports in triplicate of all
votes cast at the meeting. A record, at least in triplicate, of the proceedings
of each meeting of Holders of Securities of any series shall be prepared by the
secretary of the meeting and there shall be attached to said record the original
reports of the inspectors of votes on any vote by ballot taken thereat and
affidavits by one or more persons having knowledge of the facts setting forth a
copy of the notice of the meeting and showing that said notice was given as
provided in Section 16.02 and, if applicable, Section 16.04. Each copy shall be
signed and verified by the affidavits of the permanent chairperson and secretary
of the
<PAGE> 104
104
meeting and one such copy shall be delivered to the Company, and another to the
Trustee to be preserved by the Trustee, the latter to have attached thereto the
ballots voted at the meeting. Any record so signed and verified shall be
conclusive evidence of the matters therein stated.
ARTICLE SEVENTEEN
Miscellaneous
SECTION 17.01. Counterparts. This Indenture may be executed in any
number of counterparts, each of which shall be an original; but such
counterparts shall together constitute but one and the same instrument.
[__________________] hereby accepts the trusts in this Indenture
declared and provided, upon the terms and conditions hereinabove set forth.
<PAGE> 105
105
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
WASTE CONNECTIONS, INC.,
by
-------------------------------------
Attest:
- ------------------------- [CORPORATE SEAL]
[________________], as Trustee,
by
-----------------------
[CORPORATE SEAL]
<PAGE> 106
STATE OF ,)
) ss.:
COUNTY OF ) 107
On this day of [ ], 1999, before me personally came to me known, , who,
being by me duly sworn, did depose and say that he resides at ;
that he is [ ] of WASTE CONNECTIONS, INC., one of the corporations described in
and which executed the foregoing instrument; that he knows the corporate seal of
said corporation; that the seal affixed to said instrument is such corporate
seal; that it was so affixed by authority of the Board of Directors of said
corporation; and that he signed his name thereto by like authority.
________________________________ Notary Public [Notarial Seal]
<PAGE> 107
STATE OF ,)
) ss.:
COUNTY OF ) 106
On this day of [ ], 1999 before me personally appeared , to
me known, who, being by me duly sworn, did depose and say that he resides at
[ ]; that he is a [ ]of [ ], one of the parties described in and which executed
the foregoing instrument; that he knows the corporate seal of said corporation;
that the seal affixed to said instrument is such corporate seal; that it was so
affixed by authority of the Board of Directors of said corporation; and that he
signed his name thereto by like authority.
______________________________ Notary Public [Notarial Seal]
<PAGE> 1
Exhibit 5.1
September 24, 1999
Waste Connections, Inc.
2260 Douglas Boulevard, Suite 280
Roseville, California 95661
Ladies and Gentlemen:
We have acted as counsel for Waste Connections, Inc. (the "Company") in
connection with its Registration Statement on Form S-3 filed on September 24,
1999, with the Securities and Exchange Commission under the Securities Act of
1933, as amended. The Registration Statement relates to the contemplated
issuance by the Company from time to time of up to $200,000,000 aggregate public
offering price of (i) debt securities, which may be either senior securities
(the "Senior Securities") or subordinated securities (the "Subordinated
Securities") (collectively, the "Debt Securities"), and either of which may be
convertible into or exchangeable for shares of the Company's common stock, $0.01
par value per share (the "Common Stock"), shares of the Company's preferred
stock, $0.01 par value per share (the "Preferred Stock"), or other Debt
Securities; (ii) shares of Preferred Stock, which may be convertible into shares
of Common Stock or another series of Preferred Stock; and (iii) shares of Common
Stock. The Debt Securities, shares of Preferred Stock and shares of Common Stock
are referred to herein as the "Securities."
The Securities will be sold or delivered from time to time as set forth in
the Registration Statement, amendments thereto, the prospectus contained therein
(the "Prospectus") and supplements to the Prospectus (the "Prospectus
Supplements"). The Senior Securities and the Subordinated Securities will be
issued under indentures (the "Senior Indenture" and the
<PAGE> 2
"Subordinated Indenture," respectively, and collectively, the "Indentures")
between the Company and a trustee (the "Trustee") to be selected by the Company.
In rendering our opinions herein, we have examined originals or copies of
(i) the Amended and Restated Certificate of Incorporation (the "Certificate of
Incorporation") and Amended and Restated Bylaws of the Company, (ii) the Senior
Indenture to be entered into by and between the Company and the Trustee, in the
form included as an exhibit to the Registration Statement, (iii) the
Subordinated Indenture to be entered into by and between the Company and the
Trustee, in the form included as an exhibit to the Registration Statement, and
(iv) such other records, agreements, instruments and documents as we have deemed
relevant or necessary as the basis for the opinions hereinafter expressed. We
have assumed, without investigation, the genuineness of all signatures, the
authenticity of all documents submitted to us as originals, the conformity to
original documents of all documents submitted to us as certified or photostatic
copies and the authenticity of the originals of such copies.
We have also assumed that (i) the Registration Statement and any amendments
thereto (including post-effective amendments) will have become effective; (ii) a
Prospectus Supplement will have been prepared and filed with the Securities and
Exchange Commission describing the Securities offered thereby; (iii) all
Securities will be issued and sold in compliance with applicable federal and
state securities laws and in the manner described in the Registration Statement
and applicable Prospectus Supplement; (iv) the Senior Indenture and Subordinated
Indenture will be duly authorized, executed and delivered by the Company and the
Trustee (which Trustee will be qualified under the Trust Indenture Act of 1939,
as amended), in substantially the forms reviewed by us; (v) a definitive
purchase, underwriting or similar agreement with respect to any Securities
offered will have been duly authorized and validly executed and delivered by the
Company and the other parties thereto; and (vi) any Securities issuable upon
conversion or exchange of any Security being offered will have been duly
authorized, created and, if appropriate, reserved for issuance upon such
conversion or exchange.
Based on the foregoing, and subject to the qualifications and limitations
stated herein, it is our opinion that:
1. When the terms of the issuance and sale of the shares of Common Stock
have been duly approved by the Company's Board of Directors in conformity with
the Certificate of Incorporation, and such shares have been issued and delivered
against payment therefor in an amount in excess of the par value thereof, in
accordance with the applicable definitive purchase, underwriting or similar
agreement and as contemplated in the Registration Statement, and, if issued upon
the conversion or exchange of any Debt Securities or Preferred Stock, when such
shares have been issued and delivered as contemplated by the terms of the
applicable Senior or Subordinated Indenture or Certificate of Designations, the
shares of Common Stock will be duly authorized, validly issued, fully paid and
nonassessable.
2. Upon the fixing of the designations, relative rights, preferences and
limitations of any series of Preferred Stock by the Company's Board of Directors
and the proper and valid filing with the Office of the Secretary of State of the
State of Delaware of a Certificate of Designations setting forth the powers,
designations, preferences and relative, participating, optional or other rights,
if any, or the qualifications, limitations or restrictions thereof, if any,
<PAGE> 3
with respect to such series of Preferred Stock, all in accordance with the
General Corporation Law of the State of Delaware and in conformity with the
Certificate of Incorporation and upon the approval by the Company's Board of
Directors of the specific terms of the issuance, all necessary corporate action
on the part of the Company will have been taken to authorize the issuance and
sale of such series of Preferred Stock proposed to be sold by the Company, and
when such shares of Preferred Stock are issued and delivered against payment
therefor in an amount in excess of the par value thereof, in accordance with the
applicable definitive purchase, underwriting or similar agreement and as
contemplated in the Registration Statement, and, if issued upon the conversion
or exchange of any Debt Securities, issued and delivered as contemplated by the
terms of the applicable Senior or Subordinated Indenture, such shares of
Preferred Stock will be duly authorized, validly issued, fully paid and
nonassessable.
3. When (i) the terms of the Senior Securities and their issue and sale
have been duly established in conformity with the Senior Indenture so as not to
violate any applicable law, agreement or instrument then binding on the Company
or any requirement or restriction imposed on the Company by any court or
governmental body having jurisdiction over the Company, (ii) the Senior
Securities have been duly executed, authenticated, issued and delivered as
contemplated in the Registration Statement and in accordance with the terms of
the Senior Indenture and the applicable definitive purchase, underwriting or
similar agreement upon payment of the consideration provided for therein, and
(iii) the Senior Securities, if issued upon the conversion or exchange of any
other Debt Securities, have been issued and delivered as contemplated by the
terms of the applicable Indenture relating to such other Debt Securities, the
Senior Securities will be legally issued and will constitute valid and binding
obligations of the Company, subject to bankruptcy, insolvency, reorganization,
fraudulent transfer, moratorium or other laws now or hereafter in effect
affecting creditors' rights generally, and subject to general principles of
equity (including, without limitation, standards of materiality, good faith,
fair dealing and reasonableness), whether considered in a proceeding in equity
or at law.
4. When (i) the terms of the Subordinated Securities and their issue and
sale have been duly established in conformity with the Subordinated Indenture so
as not to violate any applicable law, agreement or instrument then binding on
the Company or any requirement or restriction imposed on the Company by any
court or governmental body having jurisdiction over the Company, (ii) the
Subordinated Securities have been duly executed, authenticated, issued and
delivered as contemplated in the Registration Statement and in accordance with
the terms of the Subordinated Indenture and the applicable definitive purchase,
underwriting or similar agreement upon payment of the consideration provided for
therein, and (iii) the Subordinated Securities, if issued upon the conversion or
exchange of any other Debt Securities, have been issued and delivered as
contemplated by the terms of the applicable Indenture relating to such other
Debt Securities, the Subordinated Securities will be legally issued and will
constitute valid and binding obligations of the Company, subject to bankruptcy,
insolvency, reorganization, fraudulent transfer, moratorium or other laws now or
hereafter in effect affecting creditors' rights generally, and subject to
general principles of equity (including, without limitation, standards of
materiality, good faith, fair dealing and reasonableness), whether considered in
a proceeding in equity or at law.
We are qualified to practice law only in the State of California. We are
not qualified and do not express any opinion herein as to the laws of any other
jurisdiction, except the federal laws
<PAGE> 4
of the United States and, to the extent required by the foregoing opinion, the
Delaware General Corporation Law. Otherwise, to the extent this opinion deals
with matters governed by or relating to the laws of any state other than
California, we have assumed that such laws are identical to the internal
substantive laws of the State of California.
We express no opinion as to the legality, validity, binding effect or
enforceability of any provision of the Debt Securities or the Indentures
providing for payments thereunder in a currency other than currency of the
United States of America to the extent that a court of competent jurisdiction
will under applicable law convert any judgment rendered in such other currency
into currency of the United States of America or to the extent that payment in a
currency other than currency of the United States of America is contrary to
applicable law.
We hereby consent to the filing of this opinion with the Securities and
Exchange Commission as an exhibit to the Registration Statement and to the use
of our name whenever it appears in the Registration Statement, including the
Prospectus and any Prospectus Supplement constituting a part thereof, as
originally filed or as subsequently amended.
Very truly yours,
SHARTSIS, FRIESE & GINSBURG LLP
By
Carolyn S. Reiser
<PAGE> 1
EXHIBIT 12.1
STATEMENT OF COMPUTATION OF RATIO OF EARNINGS TO
COMBINED FIXED CHARGES AND PREFERRED STOCK DIVIDENDS
(In thousands)
<TABLE>
<CAPTION>
SIX MONTHS
YEAR ENDED DECEMBER 31, ENDED JUNE 30,
---------------------------------------------------------- --------------
1994 1995 1996 1997 1998 1999
-------- ------- --------- -------- ------- --------
<S> <C> <C> <C> <C> <C> <C>
Earnings:
Income (loss) before income taxes $ 1,501 $ 3,670 $ 1,541 $ (3,433) $ 6,306 $ 2,880
Fixed Charges per below 719 506 803 2,494 5,261 3,309
Less: Capitalized interest per below - - - - - -
Current period amortization of interest capitalized
in prior periods - - - - - 25
-------- ------- -------- -------- ------- -------
Total Earnings $ 2,220 $ 4,176 $ 2,344 $ (939) $11,567 $ 6,214
======== ======= ======== ======== ======= =======
Fixed Charges and Preferred Stock Dividends:
Interest expense $ 552 $ 420 $ 757 $ 1,842 $ 3,299 $ 3,187
Capitalized interest - - - - - -
Interest portion of rent expense 167 86 46 63 197 122
Preferred dividend requirements - - - 589 1,765 -
-------- ------- -------- -------- ------- -------
Total Fixed Charges and Preferred Stock Dividends $ 719 $ 506 $ 803 $ 2,494 $ 5,261 $ 3,309
======== ======= ======== ======== ======= =======
Ratio of Earnings to Combined Fixed Charges and
Preferred Stock Dividends: 3.1 8.3 2.9 - 2.2 1.9
======== ======= ======== ======== ======= =======
Dollar Amount of Deficiency Below 1.0 N/A N/A N/A $ 3,433 N/A N/A
======== ======= ======== ======== ======= =======
</TABLE>
<PAGE> 1
EXHIBIT 12.2
STATEMENT OF COMPUTATION OF PRO FORMA RATIO OF EARNINGS TO
COMBINED FIXED CHARGES AND PREFERRED STOCK DIVIDENDS
(In thousands)
<TABLE>
<CAPTION>
Year ended Six months ended
December 31, 1998 June 30, 1999
----------------- ----------------
<S> <C> <C>
Earnings:
Income before income taxes $13,762 $ 4,141
Fixed Charges per below 15,840 6,753
Less: Capitalized interest per below -- --
Current period amortization of interest
capitalized in prior periods
------- -------
Total Earnings $29,602 $10,894
======= =======
Fixed Charges and Preferred Stock
Dividends:
Interest expense $14,674 $ 6,631
Capitalized interest -- --
Interest portion of rent expense 207 122
Preferred dividend requirements 959 --
------- -------
Total Fixed Charges and Preferred Stock
Dividends $15,840 $ 6,753
======= =======
Ratio of Earnings to Combined Fixed Charges
and Preferred Stock Dividends: 1.9 1.6
======= =======
</TABLE>
<PAGE> 1
EXHIBIT 23.2
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-3) and related Prospectus of Waste Connections,
Inc. for the registration of debt securities and shares of its preferred stock
and its common stock dated September 24, 1999. We also consent to the
incorporation by reference therein of our reports listed below:
Report dated February 17, 1999 with respect to the financial statements and
schedule of Waste Connections, Inc. and Predecessors included in the Waste
Connections, Inc. Annual Report (Form 10-K) for the year ended December 31,
1998, filed with the Securities and Exchange Commission;
Report dated February 17, 1999 with respect to the supplemental
consolidated financial statements of Waste Connections, Inc. and
Predecessors included in the Waste Connections, Inc. Annual Report (Form
10-K) for the year ended December 31, 1998, filed with the Securities and
Exchange Commission;
Report dated February 17, 1999 (except for the third, fourth, and fifth
paragraphs of Note 15, as to which the date is March 30, 1999) with respect
to the financial statements and schedule of Waste Connections, Inc. and
Predecessors included in Waste Connections, Inc.'s Current Report on Form
8-K filed August 5, 1999 with the Securities and Exchange Commission;
Report dated February 17, 1999 (except for the third, fourth, and fifth
paragraphs of Note 15, as to which the date is March 30, 1999, the sixth
paragraph of Note 15, as to which the date is June 30, 1999, and the
seventh paragraph of Note 15, as to which the date is August 11, 1999) with
respect to the financial statements and schedule of Waste Connections, Inc.
and Predecessors included in Waste Connections, Inc.'s Current Report on
Form 8-K filed September 15, 1999 with the Securities and Exchange
Commission;
Report dated February 4, 1999 with respect to the combined financial
statements of The Murrey Companies (which consist of Murrey's Disposal
Company, Inc., American Disposal Company, Inc., D.M. Disposal Co., Inc. and
Tacoma Recycling Company, Inc.) included in Waste Connections, Inc.'s
Current Report on Form 8-K/A filed April 5, 1999 with the Securities and
Exchange Commission;
Report dated October 2, 1998 (except for Note 12, as to which the date is
October 22, 1998) with respect to the combined financial statements of The
Murrey Companies (which consist of Murrey's Disposal Company, Inc.,
American Disposal Company, Inc., D.M. Disposal Co., Inc. and Tacoma
Recycling Company, Inc.) included in Waste Connections, Inc.'s Current
Report on Form 8-K filed February 2, 1999 with the Securities and Exchange
Commission; and
Report dated July 8, 1998, with respect to the financial statements of
Arrow Sanitary Service, Inc. included in Waste Connections, Inc.'s Current
Report on Form 8-K/A filed July 16, 1998 with the Securities and Exchange
Commission.
ERNST & YOUNG LLP
Sacramento, California
September 22, 1999
<PAGE> 1
EXHIBIT 23.3
CONSENT OF PERKINS & COMPANY, P.C., INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in this
Registration Statement on Form S-3 of Waste Connections, Inc. and to the
incorporation by reference therein of our report dated March 9, 1999 (except
for the second paragraph of Note 12, as to which the date is March 31, 1999)
with respect to the combined financial statements of Columbia Resource Co.,
L.P. and Finley-Buttes Limited Partnership included in the Current Report on
Form 8-K/A filed April 29, 1999 of Waste Connections, Inc., filed with the
Securities and Exchange Commission.
PERKINS & COMPANY, P.C.
Portland, Oregon
September 22, 1999
<PAGE> 1
EXHIBIT 23.4
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We have issued our report dated August 24, 1998 accompanying the financial
statements of Shrader Refuse and Recycling Service Company appearing in the Form
8-K/A filed September 11, 1998 of Waste Connections, Inc. which is incorporated
by reference in this Registration Statement. We consent to the incorporation by
reference in the Registration Statement and related Prospectus of the
aforementioned report and to the use of our name as it appears under the caption
"Experts."
GRANT THORNTON LLP
Lincoln, Nebraska
September 22, 1999
<PAGE> 1
EXHIBIT 23.5
CONSENT OF WILLIAMS, KASTNER & GIBBS PLLC
We consent to the reference to our firm under the caption, "Legal Matters" in
the September 1999 Registration Statement (on Form S-3) of Waste Connections,
Inc. with respect to common shares, preferred shares and debt securities of
Waste Connections, Inc. (Registration No. 333- ).
WILLIAMS, KASTNER & GIBBS PLLC
Seattle, Washington
September 23, 1999
<PAGE> 1
EXHIBIT 23.6
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-3 dated September 24, 1999 of Waste Connections, Inc. of our
report dated February 26, 1999, except as to Note 18, which is as of August 19,
1999, relating to the combined financial statements of International
Environmental Industries, Inc. and subsidiary and JOS Enterprises, Ltd. We also
consent to the references to us under the heading "Experts" in such Registration
Statement.
PRICEWATERHOUSECOOPERS LLP
Austin, Texas
September 23, 1999
