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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 1, 1998
REGISTRATION NO. 333-49613
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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EASTERN ENVIRONMENTAL SERVICES, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 59-2840783
(STATE OR OTHER JURISDICTION (IRS EMPLOYERIDENTIFICATION NO.)
OFINCORPORATION OR ORGANIZATION)
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1000 CRAWFORD PLACE, SUITE 400 LOUIS D. PAOLINO, JR.
MT. LAUREL, NEW JERSEY 08054 CHAIRMAN AND CHIEF EXECUTIVE OFFICER
(609) 235-6009 1000 CRAWFORD PLACE, SUITE 400
(ADDRESS, INCLUDING ZIP CODE, AND MT. LAUREL, NEW JERSEY 08054
TELEPHONE NUMBER,INCLUDING AREA CODE, (609) 235-6009
OF REGISTRANT'S PRINCIPAL EXECUTIVE (NAME, ADDRESS, INCLUDING ZIP CODE,
OFFICES) AND TELEPHONE NUMBER, INCLUDING AREA
CODE, OF AGENT FOR SERVICE)
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COPIES TO:
H. JOHN MICHEL, JR., ESQUIRE STEPHEN P. FARRELL, ESQUIRE
JAMES BIEHL, ESQUIRE MORGAN, LEWIS & BOCKIUS LLP
DRINKER BIDDLE & REATH LLP 101 PARK AVENUE
1345 CHESTNUT STREET NEW YORK, NEW YORK 10178-0060
PHILADELPHIA, PENNSYLVANIA 19107-3496 TELEPHONE NO.: (212) 309-6000
TELEPHONE NO.: (215) 988-2700 FACSIMILE NO.: (212) 309-6273
FACSIMILE NO.: (215) 988-2757
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after the effective date of this Registration Statement, as determined
by market conditions and other factors.
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, check the following box. [X]
If this Form is filed to register additional securities for any 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, 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. [X]
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CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
PROPOSED PROPOSED
MAXIMUM MAXIMUM AMOUNT OF
TITLE OF EACH CLASS OF AMOUNT TO BE OFFERING PRICE AGGREGATE REGISTRATION
SECURITIES TO BE REGISTERED REGISTERED(1) PER SHARE(2) OFFERING PRICE(2) FEE
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<S> <C> <C> <C> <C>
Common Stock, $.01 par
value................. 500,000 $24.94 $12,470,000 $3,680
</TABLE>
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(1) Represents shares that may be offered from time to time by the selling
stockholders named herein.
(2) Estimated pursuant to Rule 457(c) solely for the purpose of calculating
the registration fee.
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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 THEREAFTER 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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PROSPECTUS
U.S. $400,000,000
[LOGO OF EASTERN ENVIRONMENTAL SERVICES, INC. APPEARS HERE]
COMMON STOCK
PREFERRED STOCK
DEPOSITORY SHARES
DEBT SECURITIES
WARRANTS
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500,000 SHARES
COMMON STOCK
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Eastern Environmental Services, Inc. (the "Company") may offer from time to
time (i) shares of Common Stock, par value $.01 per share ("Common Stock"),
(ii) shares of Preferred Stock, par value $.01 per share ("Preferred Stock"),
in one or more series, which may be issued in form of Depository Shares (as
defined herein) evidenced by Depository Receipts (as defined herein), (iii)
debt securities ("Debt Securities"), which may be either senior debt
securities ("Senior Securities") or subordinated debt securities
("Subordinated Securities"), consisting of debentures, notes and/or other
unsecured evidences of indebtedness in one or more series, or (iv) warrants
("Warrants") to purchase Debt Securities, Preferred Stock or Common Stock, at
an aggregate initial offering price not to exceed U.S. $400,000,000 in
amounts, at prices and on terms to be determined at the time of offering. The
Common Stock, Preferred Stock, Depository Shares, Debt Securities, and
Warrants are collectively referred to herein as the "Securities."
The accompanying Prospectus Supplement sets forth with regard to the
particular Securities in respect of which this Prospectus is being delivered
(i) in the case of Common Stock, the aggregate number of shares offered, the
initial public offering price, and the other terms of the offering thereof;
(ii) in the case of Preferred Stock, the designation, aggregate principal
amount, and stated value and liquidation preference per share, initial public
offering price, dividend rate (or method of calculation), dates on which
dividends shall be payable and dates from which interest shall accrue, any
redemption or sinking fund provisions, any conversion or exchange rights, any
listing of the Preferred Stock on a securities exchange, and any other terms
in connection with the offering and sale of such Preferred Stock; (iii) in the
case of Debt Securities, the title, aggregate principal amount, denominations
(which may be in United States dollars, in any other currency, currencies or
currency unit), maturity, rate, if any (which may be fixed or variable), or
method of calculation thereof, and time of payment of any interest, any terms
for redemption at the option of the Company or the holder, any terms for
sinking fund payments, any conversion or exchange rights, any listing on a
securities exchange and the initial public offering price and any other terms
in connection with the offering and sale of such Debt Securities; (iv) in the
case of Warrants, the number and terms thereof, the designation and the number
of Securities issuable upon their exercise, the exercise price, any listing of
the Warrants or the underlying Securities on a securities exchange and
(Continued on next page)
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THIS PROSPECTUS MAY NOT BE USED TO CONSUMMATE SALES OF SECURITIES UNLESS
ACCOMPANIED BY A PROSPECTUS SUPPLEMENT.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
The date of this Prospectus is May , 1998
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(Continued from previous page)
any other terms in connection with the offering, sale and exercise of the
Warrants; and (v) in the case of Depository Shares, the fractional share of
Preferred Stock represented by each such Depository Share. The Prospectus
Supplement will also contain information, as applicable, about certain United
States Federal income tax considerations relating to the Securities in respect
of which this Prospectus is being delivered. If so specified in the applicable
Prospectus Supplement, Debt Securities of a series may be issued in whole or
in part in the form of one or more temporary or permanent global securities.
The Securities may be sold directly, through agents, underwriters or dealers
as designated from time to time, or through a combination of such methods. See
"Plan of Distribution." If agents of the Company or any dealers or
underwriters are involved in the sale of the Securities in respect of which
this Prospectus is being delivered, the names of such agents, dealers or
underwriters will be set forth in, and any applicable commissions or discounts
will be set forth in or may be calculated from, the Prospectus Supplement with
respect to such Securities.
This Prospectus also relates to an aggregate of 500,000 shares of Common
Stock (the "Stockholder Shares") owned by the Environmental Opportunities
Fund, L.P. and the Environmental Opportunities Fund (Cayman), L.P. (the
"Selling Stockholders") that may be offered for the account of the Selling
Stockholders. The Stockholder Shares will be offered pursuant to this
Prospectus and the applicable Prospectus Supplement only in connection with an
underwritten offering of Securities by the Company.
The Company's Common Stock is included for quotation on the National Market
tier of the Nasdaq Stock Market under the trading symbol "EESI." Any Common
Stock sold by the Company pursuant to a Prospectus Supplement will be
similarly so included, subject to official notice of issuance.
NO DEALER, SALESPERSON OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR MAKE ANY REPRESENTATIONS, OTHER THAN THOSE CONTAINED OR
INCORPORATED BY REFERENCE IN THIS PROSPECTUS AND THE ACCOMPANYING PROSPECTUS
SUPPLEMENT, AND IF GIVEN OR MADE SUCH INFORMATION OR REPRESENTATIONS MUST NOT
BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY OR ANY AGENT,
UNDERWRITER OR DEALER. THIS PROSPECTUS AND THE ACCOMPANYING PROSPECTUS
SUPPLEMENT DO NOT CONSTITUTE AN OFFER OF ANY SECURITIES OTHER THAN THOSE TO
WHICH THEY RELATE, OR AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY
THOSE SECURITIES TO WHICH THEY RELATE IN ANY JURISDICTION TO ANY PERSON TO
WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION IN SUCH JURISDICTION.
THE DELIVERY OF THIS PROSPECTUS AND/OR THE ACCOMPANYING PROSPECTUS SUPPLEMENT
AT ANY TIME DOES NOT IMPLY THAT THE INFORMATION HEREIN OR THEREIN IS CORRECT
AS OF ANY TIME SUBSEQUENT TO ITS DATE.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information may be inspected and copied at the public
reference facilities maintained by the Commission at 450 Fifth Street, N.W.,
Washington, D.C. 20549 and at the Commission's Regional Offices at Seven World
Trade Center, Suite 1300, New York, New York 10048 and Citicorp Center, 500
West Madison Street, Suite 1400, Chicago, Illinois 60661. Copies of such
material also can be obtained from the Public Reference Section of the
Commission at 450 Fifth Street, N.W., Washington, D.C. 20549, at prescribed
rates. The Commission maintains a web site at http://www.sec.gov that contains
reports, proxy and information statements and other information regarding
registrants, like the Company, that file electronically with the Commission.
The Company's Common Stock is quoted on the National Market tier of the Nasdaq
Stock Market, and reports, proxy statements and other information concerning
the Company may be inspected at the National Association of Securities
Dealers, Inc. at 1735 K Street, N.W., Washington, D.C. 20006-1500.
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The Company has filed with the Commission a Registration Statement on Form
S-3 (together with any amendments thereto, the "Registration Statement") under
the Securities Act of 1933, as amended (the "Securities Act"), with respect to
the securities offered hereby. As permitted by the rules and regulations of
the Commission, this Prospectus does not contain all of the information set
forth in the Registration Statement and exhibits thereto. Statements contained
in this Prospectus or in any document incorporated by reference in this
Prospectus as to the contents of any contract or other document referred to
herein or therein are not necessarily complete, and in each instance where
such contract or document has been filed as an exhibit to the Registration
Statement, or other document incorporated by reference, reference is made to
the copy of such contract or other document, each such statement being
qualified in all respects by such reference.
This Prospectus and the Prospectus Supplement contain certain statements of
a forward-looking nature relating to future events or the future financial
performance of the Company. Prospective investors are cautioned that such
statements are only predictions and that actual events or results could differ
materially. In evaluating such statements prospective investors should
specifically consider any factors identified in this Prospectus, the
Prospectus Supplement and in the documents incorporated by reference herein.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents have been previously filed by the Company with the
Commission and are hereby incorporated by reference in this Prospectus as of
their respective dates:
(i) The Company's Annual Report on Form 10-K for the fiscal year ended
June 30, 1997 (as amended on Form 10-K/A filed October 28, 1997), excluding
the financial statements and notes thereto, selected consolidated financial
data, and the information contained under Management's Discussion and
Analysis of Financial Condition and Results of Operations which have been
(a) superseded by the financial statements and notes thereto, the selected
consolidated financial data, and the information contained under
Management's Discussion and Analysis of Financial Condition and Results of
Operations included in the Company's Current Report on Form 8-K dated
February 27, 1998 and (b) supplemented by the financial statements and
notes thereto, the selected consolidated financial data, and the
information contained under Management's Discussion and Analysis of
Financial Condition and Results of Operations included in the Company's
Current Report on Form 8-K dated April 29, 1998.
(ii) The Company's Quarterly Reports on Form 10-Q for the quarters ended
September 30, 1997 (filed November 13, 1997) and December 31, 1997 (filed
February 17, 1998); the financial statements and notes thereto contained in
the Quarterly Report on Form 10-Q for the quarter ended September 30, 1997
are deemed to be outdated as they are not on a basis consistent with the
consolidated financial statements and notes thereto included in the
Company's Current Report on Form 8-K dated February 27, 1998 as they do not
reflect:
(a) pooling of interests accounting for an acquisition that occurred
subsequent to September 30, 1997; and
(b) earnings per share information calculated in accordance with the
recently issued pronouncement FASB 128, Earnings Per Share.
(iii) The following Current Reports on Form 8-K of the Company:
(a) five Forms 8-K/A filed July 10, 1997, for the purpose of: (1)
amending the Company's Form 8-K/A dated July 2, 1996; (2) amending the
Company's Form 8-K dated September 27, 1996; (3) amending the Company's
Form 8-K dated December 10, 1996; (4) amending the Company's Form 8-K
dated January 31, 1997; and (5) amending the Company's Form 8-K dated
March 31, 1997;
(b) Form 8-K dated May 12, 1997 (as amended on Form 8-K/A filed July
11, 1997 and as amended on Form 8-K/A filed July 25, 1997);
(c) Form 8-K dated August 15, 1997 (as amended on Form 8-K/A filed
October 10, 1997);
(d) Form 8-K dated August 20, 1997 (as amended on Form 8-K/A filed
November 3, 1997);
(e) Form 8-K dated October 17, 1997;
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(f) Form 8-K dated October 27, 1997;
(g) Form 8-K dated December 1, 1997 (as amended on Form 8-K/A filed
February 17, 1998);
(h) Form 8-K dated December 1, 1997 (as amended on Form 8-K/A filed
February 13, 1998);
(i) Form 8-K dated February 12, 1998 (as amended on Form 8-K/A filed
April 27, 1998);
(j) Form 8-K dated February 27, 1998;
(k) Form 8-K dated March 9, 1998 (as amended on Form 8-K/A filed
April 8, 1998);
(l) Form 8-K dated March 31, 1998 (as amended on Form 8-K/A filed
April 24, 1998);
(m) Form 8-K dated March 31, 1998;
(n) Form 8-K dated April 1, 1998;
(o) Form 8-K dated April 29, 1998; and
(p) Form 8-K dated April 30, 1998.
(iv) The description of the Common Stock contained in the Registration
Statement on Form 8-A (File No. 0-16102), including all amendments and
reports filed for the purpose of updating such description prior to the
termination of the Offering.
Additionally, all documents and reports filed by the Company with the
Commission pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act
subsequent to the date of this Prospectus and prior to termination of the
Offering shall be deemed to be incorporated by reference in this Prospectus
and to be a part hereof from the date of filing of such documents or reports.
Any statement or information contained in a document incorporated or deemed to
be incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Prospectus to the extent that a statement
contained herein or in any subsequently filed document which also is or is
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any statement or information so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a part of this
Prospectus.
The Company will provide without charge to each person to whom a copy of
this Prospectus is delivered, upon written or oral request, a copy of any or
all of the documents that have been incorporated by reference in this
Prospectus, other than exhibits to such documents, unless such exhibits are
specifically incorporated by reference into the documents that this Prospectus
incorporates. Requests for such copies should be submitted in writing to
Eastern Environmental Services, Inc., 1000 Crawford Place, Suite 400, Mt.
Laurel, New Jersey 08054, Attention: Investor Relations, or by telephone to
(609) 235-6009.
THE COMPANY
The Company is a non-hazardous solid waste management company specializing
in the collection, transportation and disposal of residential, industrial,
commercial and special waste, principally in the eastern United States. In
June 1996, the Company's Board of Directors and management team implemented an
acquisition program in the solid waste industry.
The Company believes that opportunities exist to acquire solid waste
collection, transportation and disposal businesses in the eastern United
States and to develop within its existing markets. As part of its acquisition
program, the Company reviews acquisition opportunities on an ongoing basis and
is currently in various stages of negotiating the acquisition of additional
solid waste management businesses. There can be no assurance that any of such
acquisition negotiations will result in the actual acquisition of additional
solid waste management businesses.
The Company's principal executive offices are located at 1000 Crawford
Place, Suite 400, Mt. Laurel, New Jersey 08054, and its telephone number is
(609) 235-6009.
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RISK FACTORS
In addition to the other information in this Prospectus and any applicable
Prospectus Supplement, the following factors and the factors set forth in the
applicable Prospectus Supplement should be considered carefully in evaluating
an investment in the Securities. To the extent that any risk factor contained
in any Prospectus Supplement conflicts with or supersedes any risk factor
contained in this Prospectus, the risk factor in such Prospectus Supplement
shall control.
HISTORY OF LOSSES; WORKING CAPITAL DEFICITS; CONTINUING CHARGES
The Company has reported net losses and working capital deficits in prior
fiscal years. In connection with the financing of its acquisitions and
business growth, the Company has incurred, and anticipates that it will
continue to incur, significant debt and interest charges under its revolving
credit facility. In addition, the Company will continue to recognize a
significant amount of goodwill amortization charges in connection with its
acquisitions of collection and transportation businesses and transfer stations
that are accounted for under the "purchase" method of accounting. Such
goodwill is amortized over a period not to exceed 40 years depending on the
business acquired, resulting in an annual non-cash charge to earnings during
that period. As the Company continues to pursue its acquisition program, its
financial position and results of operations may fluctuate significantly from
period to period.
ABILITY TO MANAGE GROWTH
The Company's strategy of growing primarily through acquisitions has placed,
and is expected to continue to place, significant burdens on the Company's
management and on its operational and other resources. The Company will need
to attract, train, motivate, retain and supervise its senior managers,
technical professionals and other employees. Any failure to expand its
management information system capabilities, to implement and improve its
operational and financial systems and controls or, to recruit appropriate
additional personnel in an efficient manner and at a pace consistent with the
Company's business growth, could have a material adverse effect on the
Company's business and results of operations.
DEPENDENCE ON ACQUISITIONS FOR GROWTH
The rate of future growth and profitability of the Company is largely
dependent on its ability to identify and acquire additional solid waste
collection, transportation, and disposal businesses. This strategy involves
risks inherent in assessing the values, strengths, weaknesses, risks and
profitability of acquisition candidates, including adverse short-term effects
on the Company's reported operating results, diversion of management's
attention, dependence on retaining, hiring and training key personnel, and
risks associated with unanticipated problems or latent liabilities. There can
be no assurance that acquisition opportunities will be available, that the
Company will have access to the capital required to finance potential
acquisitions, that the Company will continue to acquire businesses, or that
any business acquired by the Company will be integrated successfully into the
Company's operations or prove profitable.
AVAILABILITY OF ACQUISITION TARGETS
Increased competition for acquisition candidates may result in fewer
acquisition opportunities being made available to the Company as well as less
advantageous acquisition terms which may increase acquisition costs to levels
that are beyond the Company's financial capability or that may have an adverse
effect on the Company's business and results of operations. Accordingly, no
assurance can be given as to the number or timing of the Company's
acquisitions or as to the availability of financing necessary to complete an
acquisition. The Company also believes that a significant factor in its
ability to consummate acquisitions following the Offering will be the
attractiveness of the Common Stock as an investment to potential acquisition
candidates. Such attractiveness may, in large part, be dependent upon the
market price and capital appreciation prospects of the Common Stock compared
to the equity securities of the Company's competitors. Many of the Company's
competitors for
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acquisitions are larger, more established companies with significantly greater
capital resources than the Company and whose equity securities may be more
attractive than the Common Stock. To the extent the Common Stock is less
attractive to acquisition candidates, the Company's acquisition program may be
adversely affected.
ABILITY TO INTEGRATE ACQUIRED BUSINESSES AND ACHIEVE OPERATING EFFICIENCIES
The Company is in the process of combining the businesses and assets that it
has recently acquired into an integrated operating structure. This process may
require, among other things, changes in the operation methods and strategies
of these separate businesses. The future growth and profitability of the
Company will be substantially dependent upon its ability to operate recently
acquired companies as well as additional businesses that may be acquired in
the future, and integrate them in the Company's operations. The Company's
strategy is to achieve economies of scale and operating efficiencies through
increases in its size resulting from acquisitions. There can be no assurance
that the Company's efforts to integrate acquired operations will be effective
or that expected efficiencies and economies of scale will be realized. The
failure to achieve any of these results could have a material adverse effect
on the Company's business and results of operations.
POTENTIAL LIABILITIES ASSOCIATED WITH ACQUISITIONS
The businesses acquired by the Company may have liabilities that the Company
does not discover or may be unable to discover during its preacquisition
investigations, including liabilities arising from environmental contamination
or noncompliance by prior owners with environmental laws or regulatory
requirements, and for which the Company, as a successor owner or operator, may
be responsible. Certain environmental liabilities, even if not expressly
assumed by the Company, may nonetheless be imposed on the Company under
certain legal theories of successor liability, including the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended.
The businesses acquired by the Company handled and stored petroleum, motor
oil, and other hazardous substances at their facilities. In the past, there
may have been releases of these hazardous substances into the soil or
groundwater. The Company may be required under federal, state, or local law to
investigate and remediate this contamination, if any. Any indemnities or
warranties, due to their limited scope, amount, duration, the financial
limitations of the indemnitor or warrantor, or other reasons, may not fully
cover such liabilities.
NEED FOR ADDITIONAL CAPITAL; POTENTIAL DILUTION
The Company's acquisition program required a steady increase in capital,
which is expected to continue in the future as the Company pursues its
strategy. The Company has used with respect to completed acquisitions and
intends to use with respect to future acquisitions a combination of Common
Stock, cash and the assumption of debt as consideration. In the event the
Company issues Common Stock to make future acquisitions, the Company's
stockholders may experience dilution in the net tangible book value per share
of Common Stock and a regular infusion of additional Common Stock into the
capital markets. To the extent the Company is unable to use Common Stock to
make future acquisitions, its ability to grow may be adversely affected. The
Company's capital requirements also include working capital needs to maintain
daily operations and significant capital expenditures for cell construction
and expansion of its landfills, closure and post-closure care costs associated
with its landfills, equipment purchases, and debt repayment obligations and/or
financial assurance obligations. To the extent that generated cash is not
sufficient to meet the Company's capital needs, the Company will be required
to raise additional funds through bank borrowings (such as its existing credit
facility) and significant additional equity and/or debt financings. No
assurance can be given that additional funding will be available on terms
favorable to the Company.
DEPENDENCE ON KEY PERSONNEL
The Company's operations are substantially dependent upon the services of
its executive officers, particularly Louis D. Paolino, Jr., the Chairman of
the Board, Chief Executive Officer, and President of the Company. The loss of
the services of Mr. Paolino or one or more of the other executive officers of
the Company
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could have a material adverse effect on the Company's business and results of
operations. The Company does not maintain key-man life insurance policies on
its executive officers.
DEPENDENCE ON THIRD PARTY LANDFILLS
A substantial portion of the solid waste collected by the Company is
delivered to third party landfills under informal arrangements or without
long-term contracts. If these third parties increase their disposal fees and
the Company is unable to pass along the increase to its customers, or if these
third parties discontinue their arrangements with the Company and the Company
is unable to locate alternative disposal sites, the Company's business and
results of operations would be materially adversely affected.
EXTENSIVE PERMITTING AND LICENSING REQUIREMENTS
The Company is required to obtain and maintain in effect various federal,
state and local permits and licenses in connection with its solid waste
collection and transportation operations. The Company also is required to
obtain and maintain in effect various facility permits and other governmental
approvals, including those related to environmental, zoning and land use, in
order to develop and operate a landfill, a transfer station or a waste hauling
operation, and is required to obtain additional permits and approvals to
expand its existing landfill operations. These permits and approvals are
difficult, time consuming, and costly to obtain, may be subject to community
opposition, opposition by various local elected officials or citizens,
regulatory delays and other uncertainties, and may be dependent upon the
Company's facilities being included in state or local solid waste management
plans and the Company's entering into satisfactory host agreements with local
communities. In addition, operating permits may be subject to modification,
renewal or revocation by the issuing agencies after issuance, which may
increase the Company's obligations and reopen opportunities for opposition
relating to the permits. Moreover, from time to time, regulatory agencies may
impose moratoria on, or otherwise delay, the review or granting of these
permits or approvals or such agencies may modify the procedures or increase
the stringency of the standards applicable to the review or granting of such
permits or approvals.
There can be no assurance that the Company will be successful in obtaining
and maintaining in effect the permits and approvals required for the
successful operation and growth of its business, including permits and
approvals required for the development of additional disposal capacity needed
to replace existing capacity that becomes exhausted. The failure of the
Company to obtain or maintain in effect a permit or approval significant to
its business would have a material adverse effect on the Company's business
and results of operations.
POTENTIAL PENNSYLVANIA LANDFILL RESTRICTIONS
One of the Company's Pennsylvania landfill operations, acquired by the
Company in December 1996, has been in existence since 1972. From 1972 to 1988,
the 110-acre area of the landfill which received waste or was authorized by
state permits to receive waste had either received all necessary local zoning
approvals or was not required by local ordinance to receive a zoning permit or
other approval to operate. In 1988, the Company received a state expansion
permit for a 32-acre lined expansion area increasing the size of the permitted
disposal area to 142 acres as well as a conditional use zoning approval from
the local township. However, in 1990, the township adopted a new zoning
ordinance which limited the height of municipal waste landfills to 35 feet
above the original land contour. The landfill, as permitted in 1988 and as
currently designed and permitted, exceeds the height limit in certain areas.
The Company has maintained that the current permitted area is an existing
nonconforming use and is not subject to the 35 foot height limitation imposed
by the 1990 ordinance. If the township seeks to impose this limitation, and is
successful, the existing permitted capacity of the landfill would be
materially reduced resulting in significant costs to the Company.
KENTUCKY LANDFILL OBLIGATIONS
The Company ceased operations at its Somerset, Kentucky landfill on June 30,
1995 because the existing permitted disposal area did not meet current state
law design requirements. From June 30, 1995 to June 30, 1996,
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the Company operated a transfer station at the landfill site and disposed of
waste at an alternate location. The Company simultaneously pursued a final
state permit for an expansion area designed to meet the new state standards.
The suspension of landfill operations and the diversion of waste to an
alternate location had an adverse effect on the Company's operating results
and the Company discontinued its transfer station operation on July 1, 1996.
On July 1, 1997, the Company recommenced operation of its transfer station to
fulfill the obligations of the disposal franchise until the Company's
expansion area is completed. The Company received a final permit to construct
its expansion area on October 14, 1996 (reissued February 26, 1997). The final
permit issued for the Kentucky landfill expansion area incorporated the
requirements contained in an October 8, 1996 Agreed Order which settled an
administrative appeal filed by the Somerset Pulaski County Concerned Citizens
Group. Prior to actual construction of the expansion area, the Company was
required to complete an additional hydrogeologic investigation to confirm the
adequacy of the groundwater monitoring program approved in the final permit.
These studies are complete and indicate that the groundwater monitoring
program is adequate. The Company, however, has not yet received final approval
from the state regulatory authority with respect to the final permit.
GOVERNMENT REGULATION
The Company is subject to extensive and evolving federal, state and local
environmental laws and regulations that have become increasingly stringent in
recent years as a result of greater public interest in protecting the
environment. These laws and regulations affect the Company's business in many
ways and will continue to impose substantial costs on the Company.
The design, operation and closure of landfills is extensively regulated.
These regulations include, among others, the regulations establishing minimum
federal requirements adopted by the United States Environmental Protection
Agency (the "EPA") in October 1991 under Subtitle D (the "Subtitle D
Regulations") of the Resource Conservation and Recovery Act of 1976 ("RCRA").
The Subtitle D Regulations, which generally became effective in October 1993,
include location restrictions, facility design standards, operating criteria,
closure and post-closure requirements, financial assurance requirements,
groundwater monitoring requirements, groundwater remediation standards, and
corrective action requirements. In addition, the Subtitle D Regulations
require that new landfill units meet more stringent liner design criteria
(typically, composite soil and synthetic liners or two or more synthetic
liners) designed to keep leachate out of groundwater and have extensive
collection systems to collect leachate for treatment prior to disposal.
Groundwater monitoring wells must also be installed at virtually all landfills
to monitor groundwater quality and, indirectly, the effectiveness of the
leachate collection system operation. The Subtitle D Regulations also require,
where threshold test levels are present, that methane gas generated at
landfills be controlled in a manner that protects human health and the
environment. Each state is required to revise its landfill regulations to meet
these requirements or such requirements will be automatically imposed upon it
by the EPA. Each state is also required to adopt and implement a permit
program or other appropriate system to ensure that landfills within the state
comply with Subtitle D Regulations' criteria. Most states have adopted
extensive landfill regulations that have been updated or replaced with new
regulations consistent with, or more stringent than, the Subtitle D
Regulations. Failure to comply with these regulations could require the
Company to undertake investigatory or remedial activities, to curtail or
modify operations, or to close a landfill temporarily or permanently. Future
changes in federal or state regulations may require the Company to modify,
supplement or replace equipment or facilities at costs that may be
substantial. The failure of regulatory agencies to enforce these regulations
vigorously or consistently may give an advantage to competitors of the Company
whose facilities do not comply with the Subtitle D Regulations or its state
counterparts. The Company's ultimate financial obligations related to any
failure to comply with these regulations could have a material adverse effect
on the Company's business and results of operations.
The Company is also regulated under the Federal Water Pollution Control Act
of 1972 (the "Clean Water Act") and the Clean Air Act, as amended in 1990 (the
"Clean Air Act"). The Clean Water Act regulates the discharge of pollutants
from a variety of sources, including landfills, into streams or other surface
waters. If runoff or collected leachate from the Company's landfills or
transfer stations is discharged into surface waters, the Clean Water Act would
require the Company to apply for and obtain a discharge permit, conduct
sampling
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<PAGE>
and monitoring and, under certain circumstances, reduce the quantity of
pollutants in such discharge. Also, virtually all landfills are required to
comply with federal storm water regulations issued in November 1990, which are
designed to prevent contaminated landfill storm water runoff from flowing into
surface waters. The Clean Water Act also requires permits for discharges of
fill material into wetlands. These permits, which are occasionally required
for landfill construction or expansion, can take the form of categorical
"nationwide permits," for which little paperwork is required, or site specific
permits, which require detailed applications and extensive administrative
review. Site-specific permits are issued by the Army Corps of Engineers, with
input from the relevant state, pursuant to criteria developed by U.S. EPA, and
may require mitigation measures such as the creation of substitute wetlands.
The Clean Air Act, including the 1990 amendments, provides for federal,
state and local regulation of emissions of air pollutants into the atmosphere,
including emissions resulting from landfill operations. The EPA recently
promulgated new standards regulating air emissions of certain regulated
pollutants from municipal solid waste landfills. The EPA and the states in
which the Company has operated also have adopted regulations under Title V of
the Clean Air Act requiring permits for certain disposal facilities. These
standards, combined with the new permitting programs established under the
1990 Clean Air Act amendments, will subject many of the Company's landfills to
new permitting requirements and may require the installation of gas recovery
systems. Landfills located in areas with air pollution problems may be subject
to even more extensive air pollution controls and emissions limitations. The
Company's continued compliance with these existing and future regulations may
impose a significant expense upon the Company which could have a material
adverse effect on the Company's business and results of operations.
The Occupational Safety and Health Act of 1970, as amended ("OSHA"),
authorizes the Occupational Safety and Health Administration to promulgate
occupational safety and health standards. Various of those promulgated
standards, including standards for notices of hazards, safety in excavation
and the handling of asbestos, may apply to certain of the Company's
operations. OSHA regulations set forth requirements for the training of
employees handling, or who may be exposed in the work place to, concentrations
of asbestos-containing materials that exceed specified action levels. The OSHA
regulations also set standards for employee protection, including medical
surveillance, the use of respirators, protective clothing and decontamination
units, during asbestos demolition, removal, or encapsulation as well as its
storage, transportation, and disposal. In addition, OSHA specifies a maximum
permissible exposure level for airborne asbestos in the workplace. The Company
has no direct involvement in asbestos removal or abatement projects. However,
asbestos-containing waste materials are accepted at certain of the Company's
landfills that are authorized to accept such materials, and some of the
Company's collection businesses receive asbestos-containing waste materials
which have already been packaged and labeled. These packages are loaded onto
the Company's vehicles by employees of the asbestos abatement contractors for
transportation to and disposal at the Company's authorized landfills.
Accordingly, OSHA regulations designed to minimize employees' exposure to
airborne asbestos fibers and provide employees with proper training and
protection generally apply to the Company's operations in the transportation,
handling and disposal of asbestos waste.
In addition, most states and municipalities in which the Company operates or
may operate have adopted laws or requirements which limit or ban certain
categories of waste or mandate the disposal or recycling of local refuse.
These recycling laws and requirements have the effect of reducing landfill
disposal tonnage. Additionally, certain permits and approvals, as well as
state and local regulations, may seek to limit a landfill to accepting waste
that originates from specified geographic areas or seek to restrict the
importation of out-of-state waste. Legislative or regulatory restrictions
generally have not withstood judicial challenges. However, from time to time,
federal legislation is proposed which would allow individual states to
prohibit the disposal of out-of-state waste or to limit the amount that could
be imported for disposal. This legislation would also authorize in certain
instances local governmental units to mandate the flow of waste to certain
designated facilities or impose other flow control restrictions. Although no
such federal legislation has been enacted to date, if such federal legislation
should be enacted in the future, states in which the Company operates
landfills could act to limit or prohibit the importation of out-of-state waste
or require the Company's collection operations to utilize certain designated
sites. Such federal or state actions could have an adverse effect on the
Company's landfills that receive a
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<PAGE>
significant portion of waste originating from other states and on the
Company's collection operations. A restriction on out-of-state waste also
could result in higher disposal costs for the Company's collection operations.
If the Company were unable to pass such higher costs through to its customers,
the Company's business and results of operations could be adversely affected.
Each state in which the Company currently operates, or may operate in the
future, also has laws and regulations governing the generation, storage,
treatment, handling, transportation and disposal of solid waste, water and air
pollution and, in most cases, the siting, design, operation, maintenance,
closure and post-closure maintenance of landfills and other solid waste
management facilities. Many states also have programs that require
investigation and clean-up of sites containing hazardous materials in a manner
comparable to or more stringent than CERCLA. These statutes impose
requirements for investigation and clean-up of contaminated sites and
liability for costs and damages associated with such sites. Some of the state
laws provide for the imposition of liens on property owned by responsible
parties. Many municipalities also have ordinances, local laws and regulations
affecting the Company's operations. These include zoning and health measures
that limit solid waste management activities to specified sites or activities.
REGULATION BY NEW YORK CITY TRADE WASTE COMMISSION
In 1996, the New York City Council enacted Local Law 42 ("Local Law 42") in
order to control the corrupting influence of organized crime on the waste
hauling industry. Local Law 42 created the Trade Waste Commission (the "TWC")
and established rules for licensing and regulating the operations of the
commercial and industrial waste industry in New York City. The law prohibits
the collection, disposal or transfer of commercial and industrial waste
without a license issued by the TWC and requires TWC approval of all
acquisitions or other business combinations in New York City proposed by all
licensees. Each such acquisition or sale transaction generally must be
submitted for review by the TWC 30 days before the transaction takes effect,
although the amount of time required for review depends on the complexity of
the transaction and the need to investigate the background of the principals
involved. In September 1997, one of the Company's subsidiaries received a
license from the TWC which enables it to conduct New York City collections
operations. The license, like all TWC licenses, has a term of two years. The
TWC also sets maximum rates for the industry and establishes operational
requirements. The Company's New York City collection operations are subject to
Local Law 42, which could preclude or materially impact the Company's
operations in this region, the time and cost of completing future acquisitions
in this region, and the rates which may be charged for collection services.
PUBLIC UTILITY REGULATION
The rates that the Company may charge at its West Virginia landfill for the
disposal of municipal solid waste are regulated by the West Virginia Public
Service Commission. Rate regulation in West Virginia and the adoption of rate
regulation in other states in which the Company owns landfills could have an
adverse effect on the Company's business and results of operations.
POSSIBLE LEGAL ACTION
Companies in the solid waste management business, including the Company, are
frequently subject in the normal course of business to judicial and
administrative proceedings involving federal, state or local agencies or
citizen groups. These governmental agencies may seek to impose fines or
penalties on the Company, to revoke or deny renewal of the Company's operating
permits or licenses for violations or alleged violations of environmental laws
or regulations, or require that the Company make expenditures to remediate
potential environmental problems relating to waste disposed of or stored by
the Company or its predecessors, or resulting from its or its predecessors'
transportation and collection operations. Any adverse outcome in these
proceedings could have an adverse effect on the Company's business and results
of operations and may subject the Company to adverse publicity. The Company
may also be subject to actions brought by local governments, individuals or
community groups in connection with the permitting or licensing of its
operations, any alleged violation of such permits or licenses, or other
matters.
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POTENTIAL ENVIRONMENTAL LIABILITY
GENERAL. The Company is subject to liability for any environmental damage
that its solid waste facilities may cause to neighboring landowners,
particularly as a result of the contamination of drinking water sources or
soil, including damage resulting from the conditions existing prior to the
acquisition of such facilities by the Company. The Company also may be subject
to liability from any off-site environmental contamination caused by
pollutants or hazardous substances whose transportation, treatment or disposal
was arranged by the Company or its predecessors. Any substantial liability for
environmental damage incurred by the Company could have a material adverse
effect on the Company's business and results of operations.
CERCLA imposes strict, joint, and several liability on the present owners
and operators of facilities from which a release of hazardous substances into
the environment has occurred, as well as any party that owned or operated the
facility at the time of disposal of the hazardous substances regardless of
when the hazardous substance was first detected. Similar liability is imposed
upon the generators of waste that contains hazardous substances and hazardous
substance transporters that select the treatment, storage, or disposal site.
All such persons, who are referred to as potentially responsible parties
("PRPs"), generally are jointly and severally liable for the expense of
investigation, clean-up and natural resource damages relating to environmental
contamination, regardless of whether they exercised due care or complied with
all relevant laws and regulations. These costs can be substantial. Liability
can be based upon the existence of even very small amounts of the more than
700 "hazardous substances" listed by the U.S. EPA and is not limited to the
disposal of "hazardous wastes," as statutorily defined. It is likely that
hazardous substances have in the past come to be located in landfills which
the Company has been associated as an owner or operator or as a result of its
solid waste collection operations. Moreover, the Company's solid waste
collection operations may have transported hazardous substances in the past
and may do so on occasion in the future.
The National Emission Standards for Hazardous Air Pollutants ("NESHAPs")
regulate the collection, packaging, transportation and disposal of asbestos-
containing material. NESHAPs regulate visible emissions of asbestos fibers to
outside air and require emissions controls and appropriate work practices. The
Company transports and disposes of asbestos-containing materials. There can be
no assurance that the Company will not face claims resulting from
environmental liabilities relating to these and other materials in its solid
waste management operations.
PENNSYLVANIA LANDFILL. Prior to 1990, one of the Company's Pennsylvania
landfills disposed of municipal solid waste in an unlined disposal area. This
unlined area was operated by the former owner and has caused localized
groundwater contamination. As a condition to a recent permit modification, the
Company has agreed to remove all waste from unlined areas to remove the source
of contamination and relocate the waste to a Subtitle D approved disposal area
at the landfill. For the period of trash relocation, the Company will operate
a groundwater removal and treatment system which has received a permit for the
associated surface water discharge. Relocation of solid waste began in April
1997 and is scheduled to be completed over a 12-year period in connection with
new pad construction. At December 31, 1997, the Company had accrued
approximately $5.4 million for such relocation. An additional condition of the
permit modification requires groundwater monitoring of five private water
supply wells off-site. Low levels of volatile organic compounds have been
detected in two of these private water supply wells. The Company has not
established a specific financial reserve for potential costs relating to this
remediation or any additional potential liabilities associated with this
contamination, but it is not expected to be significant. The Company currently
believes that ultimate resolution of these matters should not be material to
it and should not have a material adverse effect on its business or results of
operations. However, there can be no assurance that the Company's ultimate
financial obligations related to these matters will not have a material
adverse effect on the Company's business and results of operations.
SUPERFUND LIABILITY. One of the Company's solid waste collection
subsidiaries is a party to a Superfund litigation, which has been settled by
substantially all of the defendants. The Company is being defended in this
action by one of its insurance carriers, which did not accept a $13,000
settlement offer. Because the settlement offer was not accepted, the Company
could be subject to claims for any deficiency between the amount
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<PAGE>
contributed by all settling parties and the actual costs of remediating the
site. While the Company has no reason to believe that any such claims will be
asserted and has no meaningful basis to estimate the amount of such claims, no
assurances can be given that they would not be brought or that the amount
claimed would not be substantial. Were any such claim to be asserted, the
Company would expect to vigorously defend them and believes that its
liability, if any, would be either covered by insurance or, under applicable
law, the responsibility of the carrier because of its failure to accept
settlement. However, no assurances can be given that insurance proceeds would
cover the entire amount of the claim or that the Company would prevail in any
action against the carrier. Accordingly, there can be no assurance that the
Company's ultimate financial obligations related to this matter will not have
a material adverse effect on the Company's business and results of operations.
ABILITY TO MEET BONDING REQUIREMENTS
The Company is required to post a form of financial assurance at its
landfills to ensure proper closure and post-closure monitoring and
maintenance. Additionally, some of the Company's collection and transportation
contracts require performance and payment bonds to guarantee project
completion and certain states may require collateral bonds to secure
compliance with hazardous waste transportation requirements. The Company's
ability to meet these bonding requirements is contingent upon the Company's
performance record and creditworthiness. Any inability by the Company to
maintain bonding capacity or a sizable increase in payment could have a
material adverse impact on the Company's business and results of operations.
LIMITS ON INSURANCE COVERAGE
The Company carries insurance covering its assets and operations, including
pollution liability coverage. Specifically, each of the Company's landfills
has pollution liability coverage of $5.0 million per occurrence or $5.0
million in the aggregate subject to a $500,000 deductible per occurrence.
Nevertheless, there can be no assurance that the Company's insurance will
provide sufficient coverage in the event an environmental claim is made
against the Company or that the Company will be able to maintain in place such
insurance at reasonable costs. An uninsured or underinsured claim against the
Company of sufficient magnitude could have a material adverse effect on the
Company's business and results of operations. The Company also is subject to
the risk of claims by employees and others made after the expiration of the
policy coverage period, including asbestos-related illnesses (such as
asbestosis, lung cancer, mesothelioma and other cancers), which may not become
apparent until many years after exposure. From May 15, 1985 through April 28,
1988, the Company carried claims-made general liability coverage. Any claims
presented on the basis of exposure during that period may not be covered by
insurance and any liability resulting therefrom could, consequently, have an
adverse effect on the Company's business and results of operations.
WASTE REDUCTION PROGRAMS
Alternatives to landfill disposal, such as recycling, incineration and
composting, are increasingly being used. There also has been an increasing
trend at the state and local levels to mandate recycling and waste reduction
at the source and to prohibit the disposal of certain types of wastes at
landfills. Many states (including states in which the Company operates) have
enacted laws that require counties to adopt comprehensive plans to reduce the
volume of solid waste deposited in landfills through waste planning,
composting, recycling or other programs. Some states (including most states in
which the Company operates) have adopted legislation that prohibits the
disposal of yard waste, tires, and other items in landfills. These
developments could result in a reduction in the volume of waste destined for
landfills in certain areas, which may affect the Company's ability to operate
its landfills at their full capacity and/or affect the prices that can be
charged for landfill disposal services. Such effects could have a material
adverse effect on the Company's business and results of operations.
COMPETITION
The solid waste management industry is highly competitive and the Company
believes that industry consolidation will increase competitive pressures. The
Company competes with several large national waste management companies,
including Waste Management, Inc. (formerly WMX Technologies, Inc.), Browning
Ferris
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Industries, Inc., U.S.A. Waste Services, Inc., and Allied Waste Industries,
Inc. A number of these competitors have significantly greater financial,
technical, marketing and other resources than the Company. The Company also
competes with numerous well-established smaller, local or regional firms. In
addition, municipalities that operate their own waste collection and disposal
facilities often enjoy the benefits of tax-exempt financing and may control
the disposal of waste collected within their jurisdictions. Increased
competition from these companies or municipalities could have a material
adverse effect on the Company's business and results of operations.
The Company provides residential collection services under municipal
contracts with terms ranging from one to five years. As is customary in the
waste management industry, such contracts come up for competitive bidding
periodically and there is no assurance that the Company will be the successful
bidder or will be able to retain such contracts. If the Company is unable to
replace any contract lost through the competitive bidding process with a
comparable contract within a reasonable time period or to use any surplus
equipment in other service areas, the Company's business and results of
operations could be adversely affected.
SEASONALITY; ECONOMIC CONDITIONS
The Company's revenues tend to be somewhat lower in the winter months. This
is primarily attributable to the fact that the volume of waste relating to
construction and demolition activities tends to increase in the spring and
summer months and the volume of industrial and residential waste in the
regions in which the Company operates tends to decrease during the winter
months. In addition, particularly harsh weather conditions may affect the
Company's operations by interfering with collection, transportation and
disposal operations, delaying the development of landfill capacity, and/or
reducing the volume of waste generated by the Company's customers, which could
have a material adverse effect on the Company's business and results of
operations.
The Company's business is affected by general economic conditions, both
nationally and in the geographic regions in which the Company's operations are
currently located. There can be no assurance that a national or local economic
downturn will not result in a reduction in the volume of waste being
collected, transported and disposed of by the Company and/or the prices that
the Company can charge for its services.
ANTI-TAKEOVER PROVISIONS; CHANGE IN CONTROL PROVISIONS
The Company's Certificate of Incorporation authorizes the issuance of up to
50,000,000 shares of Preferred Stock. No shares of Preferred Stock are
outstanding as of the date of this Prospectus. It is not possible to state the
precise effect of Preferred Stock upon the rights of the holders of the
Company's Common Stock until the Board of Directors determines the respective
preferences, limitations and relative rights of the holders of one or more
series or classes of the Preferred Stock. However, such effect might include:
(i) reduction of the amount otherwise available for payment of dividends on
Common Stock, to the extent dividends are payable on any issued shares of
Preferred Stock, and restrictions on dividends on Common Stock if dividends on
the Preferred Stock are in arrears, (ii) dilution of the voting power of the
Common Stock to the extent that the Preferred Stock has voting rights, and
(iii) the holders of Common Stock not being entitled to share in the Company's
assets upon liquidation until satisfaction of any liquidation preference
granted to the Preferred Stock.
The Preferred Stock may be viewed as having the effect of discouraging an
unsolicited attempt by another person or entity to acquire control of the
Company and may therefore have an anti-takeover effect. Issuances of
authorized preferred shares can be implemented and have been implemented by
some companies in recent years with voting or conversion privileges intended
to make acquisition of the Company more difficult or costly. Such an issuance
could discourage or limit the stockholders' participation in certain types of
transactions that might be proposed (such as a tender offer), whether or not
such transactions were favored by the majority of the stockholders, and could
enhance the ability of officers and directors to retain their positions.
In addition, certain of the Company's executive officers that have entered
into employment agreements with the Company will be entitled to receive
certain bonuses in cash or Common Stock upon a change in control of the
Company in such amounts that, in the aggregate, could have an adverse effect
on the Company's liquidity and capital resources. Accordingly, such provisions
could discourage or prevent bids to take over the Company and decrease values
that would otherwise be obtained by stockholders for their Common Stock.
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The Company is subject to the anti-takeover provisions of Section 203 of the
Delaware General Corporation Law, which prohibits the Company from engaging in
a "business combination" with an "interested stockholder" for a period of
three years after the date of the transaction in which the person became an
interested stockholder, unless the business combination is approved in a
prescribed manner. The application of Section 203 also could have the effect
of delaying or preventing a change in control of the Company without further
action by the stockholders.
CONTROL BY MANAGEMENT
Executive officers and directors of the Company as a group beneficially own
a significant amount of the outstanding Common Stock. As a result, these
existing stockholders, if acting together, will be able to influence
significantly the election of individuals to the Board of Directors and the
outcome of other matters submitted for stockholder consideration.
VOLATILITY OF STOCK PRICE
The market price of the Common Stock has been and is likely to continue to
be highly volatile. Factors such as fluctuations in the Company's quarterly
revenues and operating results, the Company's ongoing acquisition program,
governmental regulations, market conditions for waste management stocks in
general, and economic conditions generally may have a significant impact on
the market price of the Common Stock. In addition, as the Company pursues its
acquisition program, it may agree to issue shares of Common Stock that will
generally become available for resale which may have an impact on the market
price of the Common Stock.
LACK OF CASH DIVIDENDS ON COMMON STOCK
The Company does not expect to pay any cash dividends on the Common Stock in
the foreseeable future. Any cash otherwise available for such dividends will
be reinvested in the Company's business. In addition, the Company's current
credit facility agreement prohibits the payment of cash dividends without
prior bank approval.
YEAR 2000 DISCLOSURE
Currently, there is significant uncertainty regarding the impact of the Year
2000 on information systems, such as those used by the Company. The Company
does not currently believe that the effects of any Year 2000 non-compliance on
the Company's information systems should have any material adverse impact on
the Company's business or results of operations; however, there can be no
assurance that the Company will not incur expenses or experience business
disruption as a result of system problems associated with the century change.
USE OF PROCEEDS
Except as otherwise described in the accompanying Prospectus Supplement, the
net proceeds from the sale of Securities will be used for general corporate
purposes, which may include acquisitions, repayment or refinancing of
indebtedness, working capital, capital expenditures, and repurchases and
redemptions of securities. The Company will not receive any proceeds from any
sale of the Stockholder Shares.
DIVIDEND POLICY
The Company does not anticipate paying any cash dividends in the foreseeable
future and intends to retain all working capital and earnings, if any, for use
in the Company's operations and in the expansion of its business. Any future
determination with respect to the payment of dividends will be at the
discretion of the Board of Directors and will depend upon, among other things,
the Company's results of operations, financial condition and capital
requirements, the term of any then existing indebtedness, general business
conditions, and such other factors as the Board of Directors deems relevant.
The Company's credit facility prohibits the payment of cash dividends without
prior bank approval.
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RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the Company's consolidated ratio of earnings
to fixed charges for the periods indicated:
<TABLE>
<CAPTION>
SIX MONTHS YEAR ENDED JUNE 30,
ENDED ------------------------------
DECEMBER 31, 1997 1997 1996 1995 1994 1993(2)
----------------- ---- ---- ---- ---- -------
(UNAUDITED)
<S> <C> <C> <C> <C> <C> <C>
Consolidated ratio of earnings to
fixed charges (1)............... 6.3x 2.7x -- 3.3x 4.0x --
</TABLE>
- --------
(1) The consolidated ratio of earnings to fixed charges was derived from the
Company's supplemental consolidated financial statements included in the
Company's Current Report on Form 8-K dated April 29, 1998.
(2) Subsequent to June 30, 1996, the Company acquired Super Kwik, Inc. and its
affiliates ("Super Kwik"), Donno Company, Inc. and its affiliates
("Donno"), and subsequent to June 30, 1997, the Company acquired Hamm's
Sanitation, Inc. and H.S.S. Inc. ("Hamm's"), Bluegrass Containment, Inc.,
the Stamato Companies, and the Ecology Systems, Inc. in separate
transactions. Each of these business combinations was accounted for as a
pooling of interests and, accordingly, the Company's consolidated
financial statements were restated for periods prior to the acquisition to
include the results of operations, financial position, and cash flows of
those companies. The consolidated ratio of earnings to fixed charges for
the year ended June 30, 1993 has not been restated to include these
acquisitions.
For purposes of computing the ratio of earnings to fixed charges, "earnings"
consists of earnings before income taxes and fixed charges. "Fixed charges"
consist of interest on all indebtedness and that portion of rental expense
under operating leases that management believes to be representative of
interest. Earnings in 1996 and 1993 were insufficient to cover fixed charges
by $148,000 and $1.5 million, respectively.
Because the Company has no outstanding Preferred Stock, the ratio of
earnings to the sum of fixed charges and preferred stock dividends is the same
as the ratio of earnings to fixed charges.
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<PAGE>
DESCRIPTION OF CAPITAL STOCK
The authorized capital stock of the Company consists of 150,000,000 shares
of Common Stock, $.01 par value per share, and 50,000,000 shares of Preferred
Stock, $.01 par value per share (the "Preferred Stock"). At April 1, 1998,
there were 25,140,462 shares of Common Stock outstanding and no shares of
Preferred Stock outstanding. In addition, at April 1, 1998, there were
outstanding stock options and warrants for the purchase of a total of
3,336,707 shares of Common Stock and an additional 4,903,464 shares reserved
for issuance pursuant to future option grants under the Company's stock option
plans. The following description of the Company's capital stock is a summary,
does not purport to be complete and is subject in all respects to the
applicable provisions of the Company's Certificate of Incorporation, and the
information herein is qualified in its entirety by this reference.
COMMON STOCK
Holders of Common Stock are entitled to one vote for each share held on all
matters submitted to a vote of stockholders. Holders of Common Stock are not
entitled to cumulative voting rights.
Subject to the terms of any outstanding series of Preferred Stock, the
holders of record of the Common Stock are entitled to receive dividends in
such amounts and at such times as may be declared by the Board of Directors.
Upon the liquidation, dissolution or winding up of the Company, whether
voluntary or involuntary, after payment or provision for payment of the debts
or liabilities of the Company, and any amounts required to be paid to the
holders of the Preferred Stock, holders of Common Stock shall be entitled to
share ratably in the remaining assets of the Company. Except as described
above, holders of the Common Stock have no preemptive, subscription,
redemption or conversion rights, nor are they entitled to the benefit of any
sinking fund. The outstanding shares of Common Stock are validly issued, fully
paid and nonassessable by the Company.
PREFERRED STOCK
The Board of Directors of the Company is empowered, without approval of the
stockholders, to cause the Preferred Stock to be issued in one or more series,
and to determine the numbers of shares of each series and the rights,
preferences and limitations of each series. The specific matters that may be
determined by the Board of Directors include the dividend rights, redemption
rights, liquidation preferences, if any, conversion and exchange rights,
retirement and sinking fund provisions and other rights, qualifications,
limitations and restrictions of any wholly unissued series of Preferred Stock
(or of the entire class of Preferred Stock if none of such shares have been
issued), the number of shares constituting such series and the terms and
conditions of the issue thereof. The rights, preferences and limitations of
any series of Preferred Stock will be set forth in a certificate of
designations adopted by the Board of Directors or a duly authorized committee
thereof. The particular terms of any series of Preferred Stock offered hereby
will be set forth in the Prospectus Supplement relating thereto. The
description of the terms of a particular series of Preferred Stock that will
be set forth in the applicable Prospectus Supplement does not purport to be
complete and is qualified in its entirety by reference to the provisions of
the Company's Certificate of Incorporation and the certificate of designations
relating to each series of the Preferred Stock, which will be filed as an
exhibit to or incorporated by reference in the Registration Statement of which
this Prospectus is a part at or prior to the time of issuance of such series
of the Preferred Stock.
ANTI-TAKEOVER PROVISIONS
The Company is a Delaware corporation and is subject to Section 203
("Section 203") of the Delaware General Corporation Law (the "DGCL"). In
general, Section 203 prevents an "interested stockholder" (defined generally
as a person owning 15% or more of a corporation's outstanding voting stock)
from engaging in a "business combination" (as defined) with a Delaware
corporation for three years following the time such person became an
interested stockholder unless: (i) before such person became an interested
stockholder, the board of directors of the corporation approved the
transaction in which the interested stockholder became an interested
stockholder or approved the business combination; (ii) upon consummation of
the transaction that resulted in the
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interested stockholder's becoming an interested stockholder, the interested
stockholder owned at least 85% of the voting stock of the corporation
outstanding at the time the transaction commenced (excluding stock held by
directors who are also officers of the corporation and by employee stock plans
that do not provide employees with the right to determine confidentially
whether shares held subject to the plan will be tendered in a tender or
exchange offer); or (iii) at the time of or following the time of the
transaction in which such person became an interested stockholder, the
business combination was approved by the board of directors of the corporation
and authorized at a meeting of stockholders by the affirmative vote of the
holders of 66 2/3% of the outstanding voting stock of the corporation not
owned by the interested stockholder. Under Section 203, the restrictions
described above also do not apply to certain business combinations proposed by
an interested stockholder following the announcement or notification of one of
certain extraordinary transactions involving the corporation and a person who
has not been an interested stockholder during the previous three years or who
became an interested stockholder with the approval of a majority of the
corporation's directors or during certain prescribed times, if the
extraordinary transaction is approved or not opposed by a majority of the
directors who were directors prior to any such person becoming an interested
stockholder during the previous three years or were recommended for election
or elected to succeed such directors by a majority of such directors.
Section 203 defines a business combination to include: (i) any merger or
consolidation of the corporation with the interested stockholder; (ii) any
sale, transfer, pledge or other disposition of 10% or more of the assets of
the corporation involving the interested stockholder; (iii) subject to certain
exceptions, any transaction which results in the issuance or transfer by the
corporation of any stock of the corporation to the interested stockholder;
(iv) any transaction involving the corporation which has the effect of
increasing the proportionate share of the stock of any class or series of the
corporation beneficially owned by the interested stockholder; or (v) the
receipt by the interested stockholder of the benefit of any loans, advances,
guarantees, pledges or other financial benefits provided by or through the
corporation.
In addition, certain of the Company's executive officers who have entered
into employment agreements with the Company will be entitled to receive
certain bonuses in cash or Common Stock upon a change in control of the
Company in such amounts that, in the aggregate, could have an adverse effect
on the Company's liquidity and capital resources. Accordingly, such provisions
could discourage or prevent bids to takeover the Company and decrease values
that would otherwise be obtained by stockholders for their Common Stock.
LIMITATIONS ON LIABILITY
Delaware law authorizes corporations to limit or eliminate the personal
liability of directors to corporations and their stockholders for monetary
damages for breach of a director's fiduciary duty of care. The duty of care
requires that, when acting on behalf of the corporation, directors must
exercise an informed business judgment based on all material information
reasonably available to them. Absent the limitations authorized by Delaware
law, directors are accountable to corporations and their stockholders for
monetary damages for conduct constituting gross negligence in the exercise of
their duty of care. Delaware law enables corporations to limit available
relief to equitable remedies such as injunction or rescission. The Company's
Certificate of Incorporation limits the liability of directors of the Company
to the fullest extent permitted by Delaware law. Specifically, directors of
the Company will not be personally liable for monetary damages for breach of a
director's fiduciary duty as a director, except for liability (i) for any
breach of the director's duty of loyalty to the Company 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 DGCL,
or (iv) for any transaction from which the director derived an improper
personal benefit.
The inclusion of this provision in the Company's Certificate of
Incorporation may have the effect of reducing the likelihood of derivative
litigation against directors for breach of their duty of care, even though
such an action, if successful, might otherwise have benefited the Company and
its stockholders. The Company's Certificate of Incorporation provides
indemnification to its officers and directors and certain other persons with
respect to certain matters, and the Company has entered into agreements with
each of its directors and executive officers providing for indemnification
with respect to certain matters.
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STOCK TRANSFER AGENT AND REGISTRAR
The stock transfer agent and registrar for the Common Stock is American
Stock Transfer and Trust Company.
DESCRIPTION OF DEPOSITARY SHARES
The description set forth below and in any Prospectus Supplement of certain
provisions of the Deposit Agreement (as defined below) and of the Depositary
Shares and Depositary Receipts (as defined below) does not purport to be
complete and is subject to and qualified in its entirety by reference to the
forms of Deposit Agreement and Depositary Receipts relating to each series of
the Preferred Stock which will be filed with the Commission at or prior to the
time of the offering of such series of the Preferred Stock.
GENERAL
The Company may, at its option, elect to offer fractional interests
("Depository Shares") in shares of Preferred Stock, rather than shares of
Preferred Stock. In the event such option is exercised, the Company will
provide for the issuance by a Depositary to the public of receipts
("Depository Receipts") for Depositary Shares, each of which will represent a
fractional interest (to be set forth in the Prospectus Supplement relating to
a particular series of the Preferred Stock which will be filed with the
Commission at or prior to the time of the offering of such series of the
Preferred Stock as described below).
The shares of any series of the Preferred Stock underlying the Depositary
Shares will be deposited under a separate Deposit Agreement (the "Deposit
Agreement") between the Company and a bank or trust company selected by the
Company having its principal office in the United States and having a combined
capital and surplus of at least $50,000,000 (the "Depositary"). The Prospectus
Supplement relating to a series of Depositary Shares will set forth the name
and address of the Depositary. Subject to the terms of the Deposit Agreement,
each owner of a Depositary Share will be entitled, in proportion to the
applicable fractional interest in a share of Preferred Stock underlying such
Depositary Shares, to all the rights and preferences of the Preferred Stock
underlying such Depositary Share (including dividend, voting, redemption,
conversion and liquidation rights).
The Depositary Shares will be evidenced by Depositary Receipts issued
pursuant to the Deposit Agreement.
Pending the preparation of definitive engraved Depositary Receipts, the
Depositary may, upon the written order of the Company, issue temporary
Depositary Receipts substantially identical to (and entitling the holders
thereof to all the rights pertaining to) the definitive Depositary Receipts
but not in definitive form. Definitive Depositary Receipts will be prepared
thereafter without unreasonable delay, and temporary Depositary Receipts will
be exchangeable for definitive Depositary Receipts at the Company's expense.
Upon surrender of Depositary Receipts at the office of the Depositary and
upon payment of the charges provided in the Deposit Agreement and subject to
the terms thereof, a holder of Depositary Shares is entitled to have the
Depositary deliver to such holder the whole shares of Preferred Stock
underlying the Depositary Shares evidenced by the surrendered Depositary
Receipts.
DIVIDENDS AND OTHER DISTRIBUTIONS
The Depositary will distribute all cash dividends or other cash
distributions received in respect of the Preferred Stock to the record holders
of Depositary Shares relating to such Preferred Stock in proportion to the
number of such Depositary Shares owned by such holders on the relevant record
date. The Depositary shall distribute only such amount, however, as can be
distributed without attributing to any holder of Depositary Shares a fraction
of one cent, and any balance not so distributed shall be added to and treated
as part of the next sum received by the Depositary for distribution to record
holders of Depositary Shares.
In the event of a distribution other than in cash, the Depositary will
distribute property received by it to the record holders of Depositary Shares
entitled thereto, unless the Depositary determines that it is not feasible to
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make such distribution, in which case the Depositary may, with the approval of
the Company, sell such property and distribute the net proceeds from such sale
to such holders.
The Deposit Agreement will also contain provisions relating to the manner in
which any subscription or similar rights offered by the Company to holders of
the Preferred Stock shall be made available to holders of Depositary Shares.
REDEMPTION OF DEPOSITARY SHARES
If a series of the Preferred Stock underlying the Depositary Shares is
subject to redemption, the Depositary Shares will be redeemed from the
proceeds received by the Depositary resulting from the redemption, in whole or
in part, of such series of the Preferred Stock held by the Depositary. The
Depositary shall mail notice of redemption not less than 30 and not more than
60 days prior to the date fixed for redemption to the record holders of the
Depositary Shares to be so redeemed at their respective addresses appearing in
the Depositary's books. The redemption price per Depositary Share will be
equal to the applicable fraction of the redemption price per share payable
with respect to such series of the Preferred Stock. Whenever the Company
redeems shares of Preferred Stock held by the Depositary, the Depositary will
redeem as of the same redemption date the number of Depositary Shares relating
to shares of Preferred Stock so redeemed. If less than all of the Depositary
Shares are to be redeemed, the Depositary Shares to be redeemed will be
selected by lot or pro rata as may be determined by the Depositary.
After the date fixed for redemption, the Depositary Shares so called for
redemption will no longer be deemed to be outstanding and all rights of the
holders of the Depositary Shares will cease, except the right to receive the
moneys payable upon such redemption and any money or other property to which
the holders of such Depositary Shares were entitled upon such redemption upon
surrender to the Depositary of the Depositary Receipts evidencing such
Depositary Shares.
VOTING THE PREFERRED STOCK
Upon receipt of notice of any meeting at which the holders of the Preferred
Stock are entitled to vote, the Depositary will mail the information contained
in such notice of meeting to the record holders of the Depositary Shares
relating to such Preferred Stock. Each record holder of such Depositary Shares
on the record date (which will be the same date as the record date for the
Preferred Stock) will be entitled to instruct the Depositary as to the
exercise of the voting rights pertaining to the number of shares of Preferred
Stock underlying such holder's Depositary Shares. The Depositary will
endeavor, insofar as practicable, to vote the number of shares of Preferred
Stock underlying such Depositary Shares in accordance with such instructions,
and the Company will agree to take all action which may be deemed necessary by
the Depositary in order to enable the Depositary to do so. The Depositary will
abstain from voting shares of Preferred Stock to the extent it does not
receive specific instructions from the holders of Depositary Shares relating
to such Preferred Stock.
AMENDMENT AND TERMINATION OF THE DEPOSITARY AGREEMENT
The form of Depositary Receipt evidencing the Depositary Shares and any
provision of the Deposit Agreement may at any time be amended by agreement
between the Company and the Depositary. However, any amendment which
materially and adversely alters the rights of the existing holders of
Depositary Shares will not be effective unless such amendment has been
approved by the record holders of at least a majority of the Depositary Shares
then outstanding. A Deposit Agreement may be terminated by the Company or the
Depositary only if (i) all outstanding Depositary Shares relating thereto have
been redeemed or (ii) there has been a final distribution in respect of the
Preferred Stock of the relevant series in connection with any liquidation,
dissolution or winding up of the Company and such distribution has been
distributed to the holders of the related Depositary Shares.
CHARGES OF DEPOSITARY
The Company will pay all transfer and other taxes and governmental charges
arising solely from the existence of the depositary arrangements. The Company
will pay charges of the Depositary in connection with
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the initial deposit of the Preferred Stock and any redemption of the Preferred
Stock. Holders of Depositary Shares will pay other transfer and other taxes
and governmental charges and such other charges as are expressly provided in
the Deposit Agreement to be for their accounts.
RESIGNATION AND REMOVAL OF DEPOSITARY
The Depositary may resign at any time by delivering to the Company notice of
its election to do so, and the Company may at any time remove the Depositary,
any such resignation or removal to take effect upon the appointment of a
successor Depositary and its acceptance of such appointment. Such successor
Depositary must be appointed within 60 days after delivery of the notice of
resignation or removal and must be a bank or trust company having its
principal office in the United States and having a combined capital and
surplus of at least $50,000,000.
MISCELLANEOUS
The Depositary will forward to the holders of Depositary Shares all reports
and communications from the Company which are delivered to the Depositary and
which the Company is required to furnish to the holders of the Preferred
Stock.
Neither the Depositary nor the Company will be liable if it is prevented or
delayed by law or any circumstance beyond its control in performing its
obligations under the Deposit Agreement. The obligations of the Company and
the Depositary under the Deposit Agreement will be limited to performance in
good faith of their duties thereunder and they will not be obligated to
prosecute or defend any legal proceeding in respect of any Depositary Shares
or Preferred Stock unless satisfactory indemnity is furnished. They may rely
upon written advice of counsel or accountants, or information provided by
persons presenting Preferred Stock for deposit, holders of Depositary Shares
or other persons believed to be competent and on documents believed to be
genuine.
DESCRIPTION OF DEBT SECURITIES
The following sets forth certain general terms and provisions of the
Company's Debt Securities. The extent to which such general provisions do not
apply to any series of Debt Securities will be described in the relevant
Prospectus Supplement.
The Debt Securities constitute either Senior Securities or Subordinated
Securities. The Senior Securities offered hereby are to be issued in one or
more series under an Indenture (as amended or supplemented from time to time,
the "Senior Indenture") to be entered into between the Company and Summit
Bank, as trustee (the "Senior Trustee"). The Subordinated Securities offered
hereby are to be issued in one or more series under an Indenture (as amended
or supplemented from time to time, the "Subordinated Indenture") to be entered
into between the Company and Summit Bank, as trustee (the "Subordinated
Trustee"). The Senior Indenture and the Subordinated Indenture are referred to
collectively herein as the "Indentures" and the Senior Trustee and the
Subordinated Trustee are referred to collectively herein as the "Trustees."
Copies of the Indentures have been filed as exhibits to the Registration
Statement of which this Prospectus forms a part. The Indentures will be
executed by the Company and the Trustees on or prior to the issuance of any
Debt Securities thereunder.
The Company's Amended and Restated Revolving Credit Agreement, dated as of
October 27, 1997 (the "Credit Agreement"), among the Company, BankBoston,
N.A., as Agent, and the bank lenders named therein, currently prohibits the
issuance of the Senior Securities. If the Company determines to issue any such
Senior Securities, the Company must obtain a waiver from the bank lenders in
accordance with the provisions of the Credit Agreement.
The terms of the Debt Securities include those stated in the applicable
Indenture and those made a part of the applicable Indenture by reference to
the Trust Indenture Act of 1939, as amended (the "TIA"). The Debt
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Securities are subject to all such terms and the holders of Debt Securities
are referred to the applicable Indenture and the TIA for a statement of such
terms.
The following summaries of certain provisions of each Indenture and the Debt
Securities are not complete and are qualified in their entirety by reference
to the provisions of each Indenture, including the definitions of capitalized
terms used herein without definition. Numerical references in parentheses are
to sections in the applicable Indenture and unless otherwise indicated
capitalized terms have the meanings given them in the applicable Indenture.
GENERAL
Unless otherwise specified in a Prospectus Supplement, (i) the Senior
Securities, when issued, will rank pari passu in right of payment with all
other unsubordinated obligations of the Company and will rank senior in right
of payment to all subordinated obligations of the Company, and (ii) the
Subordinated Securities, when issued, will be subordinate in right of payment
to the prior payment in full of all Senior Debt (as defined herein), including
all Senior Securities of the Company, and will rank pari passu in right of
payment with all other subordinated obligations of the Company. Holders of
secured obligations of the Company, including secured Debt Securities, will,
however, have claims that are prior to the claims of holders of unsecured Debt
Securities with respect to the assets securing such secured obligations. All
Debt Securities will effectively be subordinate in right of payment to the
prior payment in full of all indebtedness of the Company's subsidiaries and
all other obligations and other liabilities, including trade payables, of the
Company's subsidiaries.
The Indentures do not limit the aggregate amount of Debt Securities which
may be issued thereunder. Except as otherwise provided in the applicable
Prospectus Supplement, the Indentures, as they apply to any series of Debt
Securities, do not limit the incurrence or issuance of other secured or
unsecured debt of the Company, whether under any of the Indentures, or any
other indenture that the Company may enter into in the future or otherwise.
See "--Subordination under the Subordinated Indenture" and the Prospectus
Supplement relating to any offering of Subordinated Securities.
The Debt Securities will be issuable in one or more series pursuant to an
indenture supplement to the applicable Indenture or a resolution of the
Company's Board of Directors or a committee thereof. (Section 2.1 of each
Indenture)
Reference is made to the applicable Prospectus Supplement which will
accompany this Prospectus for a description of the specific series of Debt
Securities being offered thereby, including: (i) the title of such Debt
Securities; (ii) any limit upon the aggregate principal amount of such Debt
Securities; (iii) the date or dates on which the principal of and premium, if
any, on such Debt Securities will mature or the method of determining such
date or dates; (iv) the rate or rates (which may be fixed or variable) at
which such Debt Securities will bear interest, if any, and the method of
calculating such rate or rates; (v) the date or dates from which interest, if
any, will accrue or the method by which such date or dates will be determined;
(vi) the date or dates on which interest, if any, will be payable and the
record date or dates therefor; (vii) the place or places where principal of,
premium, if any, and interest, if any, on such Debt Securities will be payable
or at which Debt Securities may be surrendered for registration of transfer or
exchange; (viii) the period or periods within which, the price or prices at
which, if other than in United States dollars, the currency or currencies
(including currency unit or units) in which, and the other terms and
conditions upon which, such Debt Securities may be redeemed, in whole or in
part, at the option of the Company; (ix) the obligation of the Company to
redeem or purchase such Debt Securities pursuant to any sinking fund or
analogous provisions or upon the happening of a specified event or at the
option of a holder thereof and the period or periods within which, the price
or prices at which, if other than in United States dollars, the currency or
currencies (including currency unit or units) in which, and the other terms
and conditions upon which, such Debt Securities shall be redeemed or
purchased, in whole or in part, pursuant to such obligation; (x) the
denominations in which such Debt Securities are authorized to be issued; (xi)
the currency or currency unit in which Debt Securities may be denominated
and/or the currency or currencies (including currency unit or units) in which
principal of, premium, if any, and interest, if any, on such Debt
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Securities will be payable and whether the Company, or the holders of any such
Debt Securities, may elect to receive payments in respect of such Debt
Securities in a currency or currency unit other than that in which such Debt
Securities are stated to be payable; (xii) if the amount of principal of, or
any premium or interest on, any of such Debt Securities may be determined with
reference to an index or pursuant to a formula or other method, the manner in
which such amounts will be determined; (xiii) if other than the principal
amount thereof, the portion of the principal amount of such Debt Securities
which will be payable upon declaration of the acceleration of the maturity
thereof or the method by which such portion shall be determined; (xiv)
provisions, if any, granting special rights to the holders of Debt Securities
upon the occurrence of such events as may be specified; (xv) any addition to,
or modification or deletion of, any Event of Default or any covenant of the
Company specified in the Indenture with respect to such Debt Securities; (xvi)
the circumstances under which the Company will pay additional amounts on the
Debt Securities held by non-U.S. persons in respect of taxes, assessments or
similar charges; (xvii) whether the Debt Securities will be issued in
registered or bearer form or both; (xviii) the application, if any, of such
means of defeasance or covenant defeasance as may be specified for such Debt
Securities; (xix) whether such Debt Securities are to be issued in whole or in
part in the form of one or more temporary or permanent global securities and,
if so, the identity of the depositary or its nominee, if any, for such global
security or securities and the circumstances under which beneficial owners of
interests in the global security may exchange such interests for certificated
Debt Securities to be registered in the names of or to be held by such
beneficial owners or their nominees; (xx) in the case of the Subordinated
Indenture, the relative degree to which such Debt Securities of the series
shall be senior to or be subordinated to other series of such Debt Securities,
and to other indebtedness of the Company, as the case may be, in right of
payment, whether such other series of Debt Securities and other indebtedness
are outstanding or not; (xxi) whether such Debt Securities are secured or
unsecured and, if secured, the security and related terms in connection
therewith; (xxii) the terms, if any, upon which such Debt Securities may be
converted or exchanged into or for Common Stock, Preferred Stock or other
securities or property of the Company; (xxiii) any restrictions on the
registration, transfer or exchange of the Debt Securities; and (xxiv) any
other terms not inconsistent with the terms of the Indentures pertaining to
such Debt Securities. (Section 3.1 of each Indenture) Unless otherwise
specified in the applicable Prospectus Supplement, the Debt Securities will
not be listed on any securities exchange.
The number of shares of Common Stock or Preferred Stock that will be
issuable upon the conversion or exchange of any Debt Securities issued with
conversion or exchange provisions will be adjusted to prevent dilution
resulting from stock splits, stock dividends or similar transactions, and the
nature and amount of the securities, assets or other property to be received
upon the conversion or exchange of such Debt Securities will be changed as
necessary in the event of any consolidation, merger, combination or similar
transaction. The specific provisions will be set forth in the applicable
Prospectus Supplement.
Unless otherwise specified in the applicable Prospectus Supplement, Debt
Securities in registered form will be issued in denominations of U.S.$1,000 or
any integral multiples of U.S.$1,000 and Debt Securities in bearer form will
be issued in denominations of U.S.$5,000 or any integral multiples of
U.S.$5,000. (Section 3.2 of each Indenture) Where Debt Securities of any
series are issued in bearer form, the special restrictions and considerations,
including special offering restrictions and material U.S. federal income tax
considerations, applicable to any such Debt Securities and to payments in
respect of and transfers and exchanges of such Debt Securities will be
described in the applicable Prospectus Supplement. Debt Securities in bearer
form will be transferable by delivery. (Section 3.5 of each Indenture)
Debt Securities may be sold at a substantial discount below their stated
principal amount, bearing no interest or interest at a rate which at the time
of issuance is below market rates. Material U.S. federal income tax
consequences and special considerations applicable to any such Debt Securities
will be described in the applicable Prospectus Supplement.
If the purchase price of any of the Debt Securities is payable in one or
more foreign currencies or currency units or if any Debt Securities are
denominated in one or more foreign currencies or currency units or if the
principal of, premium, if any, or interest, if any, on any Debt Securities is
payable in one or more foreign currencies or currency units, the restrictions,
elections, material U.S. federal income tax considerations and other
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information with respect to such issue of Debt Securities and such foreign
currency or currency units will be set forth in the applicable Prospectus
Supplement.
If any index is used to determine the amount of payments of principal of,
premium, if any, or interest, if any, on any series of Debt Securities,
material U.S. federal income tax, accounting and other considerations
applicable thereto will be described in the applicable Prospectus Supplement.
The general provisions of the Indentures do not afford holders of the Debt
Securities protection in the event of a highly leveraged transaction,
restructuring, change in control, merger or similar transaction involving the
Company that may adversely affect holders of the Debt Securities.
PAYMENT, REGISTRATION, TRANSFER AND EXCHANGE
Unless otherwise provided in the applicable Prospectus Supplement, payments
in respect of the Debt Securities will be made in the designated currency at
such office or agency as the Company may designate from time to time, except
that interest payments, if any, on Debt Securities in registered form may be
made (i) by checks mailed to the holders of Debt Securities entitled thereto
at their registered addresses or (ii) by wire transfer to an account
maintained by the holders of the Debt Securities entitled thereto as specified
in the Register. (Sections 3.7(a) and 9.2 of each Indenture) Each payment in
respect of the Debt Securities shall be considered to have been made on the
date such payment is due if there shall have been sent to the Trustee or
paying agent by wire transfer (received by no later than the business day
following such due date), or the Trustee or paying agent otherwise holds, on
such due date sufficient funds to make such payment. (Section 9.1 of each
Indenture) Unless otherwise indicated in an applicable Prospectus Supplement,
scheduled payments of any installment of interest on Debt Securities in
registered form will be made to the person in whose name such Debt Security is
registered at the close of business on the regular record date for such
interest. (Section 3.7(a) of each Indenture)
Payment in respect of Debt Securities in bearer form will be made in the
currency and in the manner designated in the Prospectus Supplement, subject to
any applicable laws and regulations, at such paying agencies outside the
United States as the Company may appoint from time to time. The paying agents
outside the United States, if any, initially appointed by the Company for a
series of Debt Securities will be named in the Prospectus Supplement. Unless
otherwise provided in the applicable Prospectus Supplement, the Company may at
any time designate additional paying agents or rescind the designation of any
paying agents, except that, if Debt Securities of a series are issuable in
registered form, the Company will be required to maintain at least one paying
agent in each place of payment for such series and if Debt Securities of a
series are issuable in bearer form, the Company will be required to maintain
at least one paying agent in a place of payment outside the United States
where Debt Securities of such series and any coupons appertaining thereto may
be presented and surrendered for payment. (Section 9.2 of each Indenture)
Unless otherwise provided in the applicable Prospectus Supplement, Debt
Securities in registered form will be transferable or exchangeable at the
agency of the Company, maintained for such purpose as designated by the
Company, from time to time. (Sections 3.5 and 9.2 of each Indenture) Debt
Securities may be transferred or exchanged without service charge, although
the Company may require a holder to pay any tax or other governmental charge
imposed in connection therewith. (Section 3.5 of each Indenture)
GLOBAL DEBT SECURITIES
The Debt Securities of a series may be issued in whole or in part in the
form of one or more fully registered global securities (a "Registered Global
Security"). Each Registered Global Security will be registered in the name of
a depositary (the "Depositary") or a nominee for the Depositary identified in
the applicable Prospectus Supplement, will be deposited with such Depositary
or nominee or a custodian therefor and will bear a legend regarding the
restrictions on exchanges and registration of transfer thereof and any such
other matters as may be provided for pursuant to the applicable Indenture. In
such a case, one or more Registered Global Securities will
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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 such Registered Global Security or Securities. (Section 3.3
of each Indenture) Unless and until it is exchanged in whole or in part for
Debt Securities in definitive certificated form, a Registered Global Security
may not be transferred or exchanged except as a whole by the Depositary for
such Registered Global Security 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, or except in the
circumstances described in the applicable Prospectus Supplement. (Section 3.5
of each Indenture)
The specific terms of the depositary arrangement with respect to any portion
of a series of Debt Securities to be represented by a Registered Global
Security will be described in the applicable Prospectus Supplement.
Upon the issuance of any Registered Global Security, and the deposit of such
Registered Global Security with or on behalf of the Depositary for such
Registered Global Security, the Depositary will credit on its book-entry
registration and transfer system the respective principal amounts of the Debt
Securities represented by such Registered Global Security to the accounts of
institutions ("Participants") that have accounts with the Depositary. The
accounts to be credited will be designated by the underwriters or agents
engaging in the distribution of such Debt Securities or by the Company, if
such Debt Securities are offered and sold directly by the Company. Ownership
of beneficial interests in a Registered Global Security will be limited to
Participants or persons that may hold interests through Participants.
Ownership of beneficial interests in a Registered Global Security will be
shown on, and the transfer of that ownership will be effected only through,
records maintained by the Depositary for such Registered Global Security or by
its nominee. Ownership of beneficial interests in such Registered Global
Security by persons who hold through Participants will be shown on, and the
transfer of such beneficial interests within such Participants will be
effected only through, records maintained by such Participants.
So long as the Depositary for a Registered Global Security, or its nominee,
is the owner of such Registered Global Security, such Depositary or such
nominee, as the case may be, will be considered the sole owner or holder of
the Debt Security represented by such Registered Global Security for all
purposes under each Indenture. (Section 3.8 of each Indenture) Accordingly,
each person owning a beneficial interest in such Registered Global Security
must rely on the procedures of the Depositary and, if such person is not a
Participant, on the procedures of the Participant through which such person
owns its interest, to exercise any rights of a holder under such Indenture.
The Company understands that under existing industry practices, if it requests
any action of holders or if an owner of a beneficial interest in a Registered
Global Security desires to give or take any instruction or action which a
holder is entitled to give or take under the Indenture, the Depositary would
authorize the Participants holding the relevant beneficial interests to give
or take such instruction or action, and such Participants would authorize
beneficial owners owning through such Participants to give or take such
instruction or action or would otherwise act upon the instructions of
beneficial owners holding through them.
Unless otherwise specified in the Prospectus Supplement, payments with
respect to principal, premium, if any, and interest, if any, on the Debt
Securities represented by a Registered Global Security registered in the name
of the Depositary or its nominee will be made to such Depositary or its
nominee, as the case may be, as the registered owner of such Registered Global
Security. The Company expects that the Depositary for any Debt Securities
represented by a Registered Global Security, upon receipt of any payment of
principal or interest in respect of such Registered Global Security, will
credit immediately Participants' accounts with payments in amounts
proportionate to their respective beneficial interests in the Registered
Global Security as shown on the records of the Depositary. The Company also
expects that payments by Participants to owners of beneficial interests in
such Registered Global Security held through such Participants will be
governed by standing instructions and customary practices, as is now the case
with securities in bearer form held for the accounts of customers or
registered in "street name," and will be the responsibility of such
Participants. None of the Company, the respective Trustees or any agent of the
Company or the respective Trustees shall have any responsibility or liability
for any aspect of the records relating to or payments made on account of
beneficial
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interests in any Registered Global Security, or for maintaining, supervising
or reviewing any records relating to such beneficial interests. (Section 3.8
of each Indenture)
Unless otherwise specified in the applicable Prospectus Supplement, if the
Depositary for any Debt Securities represented by a Registered Global Security
is at any time unwilling or unable to continue as depositary of such
Registered Global Security and a successor depositary is not appointed by the
Company within 90 days, the Company will issue Debt Securities in certificated
form in exchange for such Registered Global Security. In addition, the Company
in its sole discretion may at any time determine not to have any of the Debt
Securities of a series represented by one or more Registered Global Securities
and, in such event, will issue Debt Securities of such series in certificated
form in exchange for all of the Registered Global Securities representing such
series of Debt Securities. (Section 3.5 of each Indenture)
The Debt Securities of a series may also be issued in whole or in part in
the form of one or more bearer global securities (a "Bearer Global Security")
that will be deposited with a depositary, or with a nominee for such
depositary, identified in the applicable Prospectus Supplement. Any such
Bearer Global Securities may be issued in temporary or permanent form.
(Section 3.4 of each Indenture) The specific terms and procedures, including
the specific terms of the depositary arrangement, with respect to any portion
of a series of Debt Securities to be represented by one or more Bearer Global
Securities will be described in the applicable Prospectus Supplement.
CONSOLIDATION, MERGER OR SALE OF ASSETS
Each Indenture permits the Company to consolidate with or merge into any
person or persons or to sell, transfer or lease its properties and assets as,
or substantially as, an entirety to any person if, (i) the person (other than
the Company) formed by such consolidation, or into which the Company is
merged, or which acquires or leases the properties and assets of the Company,
as, or substantially as, an entirety, is organized and existing under the laws
of the United States, any state thereof or the District of Columbia, (ii) such
person expressly assumes the Company's obligations on the Debt Securities
issued under such Indenture, (iii) immediately after giving effect to such
consolidation, merger, sale, transfer or lease, no Default or Event of Default
under such Indenture exists, and (iv) with respect to any series of Debt
Securities, the Company satisfies any other conditions, if any, established
with respect to such series of Debt Securities pursuant to and in accordance
with Section 3.1 of the applicable Indenture. (Section 7.1 of each Indenture)
EVENTS OF DEFAULT, NOTICE AND CERTAIN RIGHTS ON DEFAULT
Except as otherwise provided in a Prospectus Supplement relating to the Debt
Securities of a particular series, Events of Default with respect to Debt
Securities of any series are defined in each Indenture as: (i) default in the
payment of any interest on any Debt Security of that series, and the
continuance of such default for a period of 30 days; (ii) default in the
payment of any installment of the principal of or any premium on any Debt
Security of that series when due, whether at maturity, upon redemption, by
declaration or otherwise or in the payment of a mandatory sinking fund payment
when and as due by the forms of the Debt Securities of that series; (iii)
failure by the Company to comply with any other covenant or agreement
contained in the Indenture under which the Debt Securities of that series were
issued and the continuance of such default for a period of 90 days after
written notice as provided in such Indenture; (iv) certain events of
bankruptcy, insolvency and reorganization of the Company; and (v) default by
the Company under any indenture or other instrument under which any
indebtedness for borrowed money having an outstanding aggregate principal
amount of at least $25 million has been issued or by which it is governed as a
result of which such indebtedness shall have been accelerated, and such
acceleration is not rescinded, cured or annulled within 30 days after written
notice thereof to the Company by the Trustee for such series or to the Company
and the Trustee for such series by the holders of at least 25% of the
aggregate principal amount of the Debt Securities of such series then
outstanding, provided that such Event of Default will be cured or waived if
the default that resulted in the acceleration of such other indebtedness is
cured or waived, as the case may be. (Section 5.1 of each Indenture) Events of
Default with respect to a specified series of Debt Securities may be deleted
from or added to the Indenture or may be modified
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and, if so deleted, added or modified, will be described in the applicable
Prospectus Supplement. (Sections 3.1 and 5.1 of each Indenture)
Each Indenture provides that the relevant Trustee will, within 90 days after
the occurrence of a Default that is continuing with respect to the Debt
Securities of any series, give to the holders of the Debt Securities of that
series notice of all Defaults known to it unless such Default shall have been
cured or waived; provided that except in the case of a Default in payment of
principal, premium, if any, or interest on the Debt Securities of that series,
such Trustee shall be protected in withholding such notice if it in good faith
determines that withholding such notice is in the interests of holders of the
Debt Securities of that series. (Section 6.2 of each Indenture) "Default"
means any event which is, or after notice or passage of time, or both, would
be, an Event of Default. (Section 1.1 of each Indenture)
Each Indenture provides that, if an Event of Default specified therein
(other than an Event of Default of the type described in clause (iv) of the
second preceding paragraph) occurs with respect to the Debt Securities of any
series and is continuing, the Trustee for such series or the holders of 25% in
aggregate principal amount of all outstanding Debt Securities of that series
(calculated as provided for in each Indenture) may declare the principal of
(or, if the Debt Securities of that series are Original Issue Discount
Securities or Indexed Securities, such portion of the principal amount
specified in the Prospectus Supplement) and accrued interest, if any, on all
the Debt Securities of that series to be due and payable and upon such
declaration, such principal (or, in the case of Original Issue Discount
Securities or Indexed Securities, such portion of the principal amount
specified in the Prospectus Supplement) and interest, if any, shall be
immediately due and payable. If an Event of Default of the type described in
clause (iv) of the second preceding paragraph occurs with respect to the Debt
Securities of any series and is continuing, then the principal of (or, if the
Debt Securities of that series are Original Issue Discount Securities or
Indexed Securities, the applicable portion of such principal amount) and
accrued interest, if any, on all the Debt Securities of that series shall be
immediately due and payable without any declaration or act on the part of the
Trustee for such series or any holder of such Debt Securities. If the
principal of and interest on Subordinated Securities is accelerated as
described in this paragraph, the payment of such principal and interest shall
remain subordinated to the extent provided in Article 15 of the Subordinated
Indenture. (Section 5.2 of each Indenture)
Each Indenture provides that the holders of not less than a majority in
aggregate principal amount of any series of Debt Securities by written notice
to the Trustee for such series may waive, on behalf of the holders of all Debt
Securities of such series, any past Default or Event of Default with respect
to that series and its consequences except a Default or Event of Default in
the payment of the principal of, premium, if any, or interest, if any, on any
Debt Security or with respect to a covenant or provision that cannot be
amended or modified without consent of each holder of such series of Debt
Securities adversely affected. (Section 5.7 of each Indenture)
Reference is made to the Prospectus Supplement relating to each series of
Debt Securities that are Original Issue Discount Securities for the particular
provisions relating to acceleration of the maturity of a portion of the
principal amount of such Original Issue Discount Securities upon the
occurrence of an Event of Default and the continuation thereof.
Each Indenture provides that, if a Default or an Event of Default shall have
occurred and be continuing, the holders of not less than a majority in
aggregate principal amount of the Debt Securities of each series affected
(with each such series voting as a class) may, subject to certain limited
conditions, direct the time, method and place of conducting any proceeding for
any remedy available to the Trustee for such series, or exercising any trust
or power conferred on such Trustee. (Section 5.8 of each Indenture)
Each Indenture includes a covenant that the Company will file annually with
the relevant Trustee a certificate as to the presence or absence of certain
defaults under the terms of such Indenture. (Section 9.5 of each Indenture)
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MODIFICATION AND WAIVER
Each Indenture contains provisions permitting the Company and the relevant
Trustee to enter into one or more supplemental indentures without the consent
of the holders of any of the Debt Securities in order: (i) to evidence the
succession of another entity to the Company, and the assumption of the
covenants and obligations of the Company, under the Debt Securities and such
Indenture by such successor to the Company; (ii) to add to the covenants of
the Company for the benefit of the holders of all or any series of Debt
Securities or surrender any right or power conferred on the Company by such
Indenture; (iii) to add additional Events of Default with respect to any
series of Debt Securities; (iv) to add to or change any provisions to such
extent as necessary to facilitate the issuance or administration of Debt
Securities in bearer form or to facilitate the issuance or administration of
Debt Securities in global form; (v) to change or eliminate any provision
affecting only Debt Securities not yet issued; (vi) to secure the Debt
Securities; (vii) to establish the form or terms of Debt Securities of any
series; (viii) to evidence and provide for successor Trustees or to add or
change any provisions to such extent as necessary to permit or facilitate the
appointment of a separate Trustee or Trustees for specific series of Debt
Securities; (ix) to permit payment in respect of Debt Securities in bearer
form in the United States to the extent allowed by law; (x) to correct or
supplement any defective or inconsistent provisions or to make any other
provisions with respect to matters or questions arising under such Indenture,
provided that any such action does not adversely affect in any material
respect the interests of any holder of Debt Securities of any series then
outstanding; (xi) to cure any ambiguity, correct any mistake or comply with
any mandatory provision of law; (xii) in the case of the Subordinated
Indenture, to modify the subordination provisions thereof in a manner not
adverse to the holders of Subordinated Securities of any series then
outstanding; (xiii) to make provision with respect to any conversion or
exchange rights of holders not adverse to the holders of any Debt Securities
of any series then outstanding with such conversion or exchange rights,
including providing for the conversion or exchange of Debt Securities into
Common Stock or Preferred Stock or other securities or property of the
Company; or (xiv) to effect the qualification of such Indenture under the TIA
or to add provisions expressly required under the TIA. (Section 8.1 of each
Indenture)
Each Indenture also contains provisions permitting the Company, and the
relevant Trustee, with the consent of the holders of a majority in aggregate
principal amount of the outstanding Debt Securities of all series adversely
affected by such supplemental indenture (voting as one class), to execute
supplemental indentures adding any provisions to or changing or eliminating
any of the provisions of such Indenture or any supplemental indenture or
modifying the rights of the holders of Debt Securities of such series, except
that, without the consent of the holder of each Debt Security so affected, no
such supplemental indenture may: (i) change the time for payment of principal
or premium, if any, or interest on any Debt Security; (ii) reduce the
principal on any Debt Security, or change the manner in which the amount of
any of the foregoing is determined; (iii) reduce the interest rate, or reduce
the amount of premium, if any, payable upon the redemption of any Debt
Security or change the manner in which the amount of the premium, if any, or
interest is determined; (iv) reduce the amount of principal payable upon
acceleration of the maturity of any Original Issue Discount or Indexed
Security; (v) change the currency or currency unit in which any Debt Security
or any premium or interest thereon is payable; (vi) impair the right to
institute suit for the enforcement of any payment on or with respect to any
Debt Security after such payment has become due; (vii) reduce the percentage
in principal amount of the outstanding Debt Securities of any series, the
consent of whose holders is required for modification or amendment of such
Indenture or for waiver of compliance with certain provisions of the Indenture
or for waiver of certain defaults, or reduce the quorum or voting requirements
applicable to meetings of holders of Debt Securities issuable in bearer form;
(viii) change the obligation of the Company to maintain an office or agency in
the places and for the purposes specified in such Indenture; (ix) in the case
of the Subordinated Indenture, modify the subordination provisions thereof in
a manner adverse to the holders of Subordinated Securities of any series then
outstanding; (x) modify the provisions that set forth the provisions in each
Indenture that may not be changed without the consent of the holder of each
Debt Security affected thereby; or (xi) make any change adversely affecting
any rights of the holders to convert or exchange convertible or exchangeable
Debt Securities. (Section 8.2 of each Indenture)
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The Holders of a majority in aggregate principal amount of the Outstanding
Debt Securities of any series may waive compliance by the Company with certain
restrictive provisions of the applicable Indenture. (Section 9.6 of each
Indenture) The Holders of a majority in aggregate principal amount of the
Outstanding Debt Securities of any series may waive any past default under the
applicable Indenture, except a default in the payment of principal, premium or
interest and certain covenants and provisions of the applicable Indenture
which cannot be amended without the consent of the Holder of each Outstanding
Debt Security of such series affected. (Section 5.7 of each Indenture)
SUBORDINATION UNDER THE SUBORDINATED INDENTURE
The payment of the principal of (and premium, if any) and interest on the
Subordinated Securities will, in certain circumstances as set forth in the
Subordinated Indenture, be subordinated in right of payment to the prior
payment in full of all Senior Debt of the Company. Upon any payment or
distribution of assets of the Company, to creditors upon any liquidation,
dissolution, winding up, reorganization, assignment for the benefit of
creditors, marshaling of assets and liabilities or any bankruptcy, insolvency
or similar proceedings of the Company, the holders of Senior Debt of the
Company, will be entitled to receive payment in full of the principal of (and
premium, if any) and interest on such Senior Debt, including all amounts due
or to become due on all such Senior Debt, or provision will be made for
payment in cash or cash equivalents or otherwise in a manner satisfactory to
the holders of such Senior Debt, before the holders of Subordinated Securities
of the Company, are entitled to receive any Securities Payments. "Securities
Payment" means any payment or distribution of any kind, whether in cash,
property or securities (including any payment or distribution deliverable by
reason of the payment of any other Debt subordinated to the Subordinated
Securities) on account of the principal of (and premium, if any) or interest
on the Subordinated Securities or on account of the purchase or redemption or
other acquisition of Subordinated Securities by the Company or any subsidiary
of the Company. In the event that, notwithstanding the foregoing, the
Subordinated Trustee or the holder of any Subordinated Securities receives any
Securities Payment before all Senior Debt of the Company is paid in full or
payment thereof is provided for in cash or cash equivalents or otherwise in a
manner satisfactory to the holders of such Senior Debt, then and in such event
such Debt Securities Payment will be required to be paid over or delivered
forthwith to the holders of Senior Debt for application to the payment of all
Senior Debt of the Company, remaining unpaid, to the extent necessary to pay
such Senior Debt in full. (Sections 15.1 and 15.2 of the Subordinated
Indenture)
The Company, may not make any Securities Payments if there has occurred and
is continuing a default in the payment of the principal of (or premium, if
any) or interest on Senior Debt of the Company, or if there has occurred and
is continuing any event of default with respect to Senior Debt of the Company,
which has resulted in such Senior Debt becoming or being declared due and
payable prior to the date on which it would otherwise have become due and
payable (a "Senior Payment Default"). In addition, if any default (other than
a Senior Payment Default), with respect to any Senior Debt of the Company,
permitting after notice or lapse of time (or both) the holders thereof (or a
trustee on behalf thereof) to accelerate the maturity thereof (a "Senior
Nonmonetary Default") has occurred and is continuing and the Company, and the
Subordinated Trustee have received written notice thereof from any holder or
holders of Senior Debt with a principal amount in excess of $50 million, then
the Company may not make any Securities Payments for a period (a "blockage
period") commencing on the date the Company and the Subordinated Trustee
receive such written notice and ending on the earlier of (x) 179 days after
such date and (y) the date, if any, on which the Senior Debt of the Company,
to which such default relates is discharged or such default is waived or
otherwise cured. (Section 15.3 of the Subordinated Indenture)
In any event, not more than one blockage period with respect to any
Subordinated Securities may be commenced during any period of 360 consecutive
days. No Senior Payment Default or Senior Nonmonetary Default that existed or
was continuing on the date of commencement of any blockage period with respect
to the Senior Debt of the Company, will be, or can be, made the basis for the
commencement of a subsequent blockage period, unless such default has been
cured for a period of not less than 90 consecutive days. In the event that,
notwithstanding the foregoing, the Company, makes any Securities Payment to
the Subordinated Trustee or any holder of the Subordinated Securities
prohibited by the subordination provisions, then and in such event such
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Securities Payment will be required to be paid over and delivered forthwith to
the holders of the Senior Debt of the Company. (Section 15.3 of the
Subordinated Indenture)
By reason of such subordination, in the event of insolvency, creditors of
the Company, who are not holders of Senior Debt of the Company or of the
Subordinated Securities, may recover less, ratably, than holders of such
Senior Debt and may recover more, ratably, than the holders of the
Subordinated Securities.
"Debt" means (without duplication), with respect to any Person, whether
recourse is to all or a portion of the assets of such Person, (i) every
obligation of such Person for money borrowed, (ii) every obligation of such
Person evidenced by bonds, debentures, notes or other similar instruments,
including obligations incurred in connection with the acquisition of property,
assets or businesses, (iii) every reimbursement obligation of such Person with
respect to letters of credit, bankers' acceptances or similar facilities
issued for the account of such Person, (iv) every obligation of such Person
issued or assumed as the deferred purchase price of property or services, (v)
every Capital Lease Obligation of such Person, (vi) the maximum fixed
redemption or repurchase price of Redeemable Interests of such Person at the
time of determination, (vii) every net payment obligation of such Person under
interest rate swap or similar agreements or foreign currency hedge, exchange
or similar agreements at the time of determination and (viii) every obligation
of the type referred to in Clauses (i) through (vii) of another Person and all
dividends of another Person the payment of which, in either case, such Person
has Guaranteed or for which such Person is responsible or liable, directly or
indirectly, jointly or severally, as obligor, Guarantor or otherwise.
"Senior Debt" means, except as otherwise provided in a Prospectus Supplement
relating to any series of Debt Securities, all Debt of the Company (including
Debt of others guaranteed by the Company); provided, however, the following
shall not constitute Senior Debt: (A) any Debt owed to a Person when such
Person is a Subsidiary of the Company; (B) any Debt which by the terms of the
instrument creating or evidencing the same is pari passu or subordinate in
right of payment to the Subordinated Securities; (C) any Debt incurred in
violation of the applicable Indenture; or (D) any Debt which is subordinate in
right of payment in any respect to any other Debt of the Company. For purposes
of this definition, "Debt" includes any obligation to pay principal, premium
(if any), interest, penalties, reimbursement or indemnity amounts, fees and
expenses (including interest accruing on or after the filing of any petition
in bankruptcy or for reorganization relating to the Company, whether or not a
claim for post-petition interest is allowed in such proceeding).
The subordination provisions described above will cease to be applicable to
the applicable Subordinated Securities upon any defeasance or covenant
defeasance of such Subordinated Securities as described under "--Defeasance
and Covenant Defeasance."
The Subordinated Indenture places no limitation on the amount of additional
Senior Debt that may be incurred by the Company. The Company expects from time
to time to incur additional indebtedness constituting Senior Debt.
The Subordinated Indenture provides that the foregoing subordination
provisions, insofar as they relate to any particular issue of Subordinated
Securities, may be changed prior to such issuance. Any such change would be
described in the Prospectus Supplement relating to such Subordinated
Securities. (Section 3.1 of the Subordinated Indenture)
DEFEASANCE AND COVENANT DEFEASANCE
DEFEASANCE AND DISCHARGE. Unless otherwise provided in the applicable
Prospectus Supplement relating to the Debt Securities of a particular series,
the Company, will be discharged from any and all obligations in respect of the
Debt Securities of, or within, any series (except for certain obligations to
register the transfer or exchange of Debt Securities, to replace stolen, lost
or mutilated Debt Securities, to convert or exchange Debt Securities, to
maintain paying agencies and to hold monies for payment in trust) upon the
deposit with the relevant Trustee, in trust, of money and/or Government
Obligations which through the payment of interest and
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principal in respect thereof in accordance with their terms will provide money
in an amount sufficient to pay the principal of, premium, if any, and each
installment of interest on such Debt Securities at the maturity of such
payments in accordance with the terms of the applicable Indenture and such
Debt Securities. (Sections 3.1 and 4.4 of each Indenture) Such a trust may
only be established if, among other things, the Company, delivers to the
relevant Trustee an officer's certificate and opinion of counsel (who may be
counsel to the Company) stating that (A) either (i) the Company, has received
from, or there has been published by, the Internal Revenue Service a ruling or
(ii) since the date of the Indenture there has been a change in the applicable
Federal income tax law, to the effect that holders of such Debt Securities
will not recognize income, gain or loss for Federal income tax purposes as a
result of such defeasance and will be subject to Federal income tax on the
same amount and in the same manner and at the same times as would have been
the case if such defeasance had not occurred and (B) all conditions precedent
in the applicable Indenture relating to such defeasance have been complied
with. (Section 4.6 of the Indenture)
DEFEASANCE OF CERTAIN COVENANTS AND CERTAIN EVENTS OF DEFAULT. Unless
otherwise provided in the applicable Prospectus Supplement relating to the
Debt Securities of a particular series, upon the deposit with the relevant
Trustee, in trust, of money and/or Government Obligations which through the
payment of interest and principal in respect thereof in accordance with their
terms will provide money in an amount sufficient to pay the principal of,
premium, if any, and each installment of interest on such Debt Securities at
the maturity of such payments in accordance with the terms of such Indenture
and such Debt Securities, the Company may omit to comply with certain
covenants applicable to the Debt Securities of, or within, any series and the
occurrence of any Event of Default described in clause (iii) or clause (v)
under the caption "Events of Default, Notice and Certain Rights on Default"
above or any additional Event of Default established with respect to such
series of Debt Securities pursuant to Section 3.1 of the applicable Indenture,
shall not be deemed to be a Default or Event of Default under such Indenture
and such Debt Securities. The obligations of the Company under such Indenture
and such Debt Securities, other than with respect to the covenants referred to
above, and the Events of Default, other than the Events of Default referred to
above, shall remain in full force and effect. (Sections 3.1 and 4.5 of each
Indenture) Such a trust may only be established if, among other things, the
Company, has delivered to the relevant Trustee an officer's certificate and
opinion of counsel (who may be counsel to the Company) to the effect that (A)
holders of such Debt Securities will not recognize income, gain or loss for
Federal income tax purposes as a result of such defeasance and will be subject
to income tax on the same amount and in the same manner and at the same times
as would have been the case if such defeasance had not occurred and (B) all
conditions precedent in the applicable Indenture relating to such covenant
defeasance have been complied with. (Section 4.6 of the Indenture)
In addition, with respect to the Subordinated Indenture, in order to be
discharged or omit compliance with certain covenants as described above, no
default in the payment of principal of, premium, if any, or interest on any
Senior Debt shall have occurred and be continuing and no other event of
default with respect to the Senior Debt shall have occurred and be continuing
and shall have resulted in such Senior Debt becoming or being declared due and
payable prior to the date it would have become due and payable. (Section 4.6
of the Subordinated Indenture)
In the event the Company exercises its option to omit compliance with
certain covenants of the Indenture with respect to such Debt Securities as
described in the preceding paragraphs and such Debt Securities are declared
due and payable because of the occurrence of any Event of Default other than
an Event of Default described in clause (iii) or (v) under the caption "Events
of Default, Notice and Certain Rights on Default" above, the amount of money
and Government Obligations on deposit with the relevant Trustee will be
sufficient to pay amounts due on such Debt Securities at the time of their
stated maturity but may not be sufficient to pay amounts due on such Debt
Securities at the time of the acceleration resulting from such Event of
Default. However, the Company would remain liable for any such deficiency.
NOTICES
Notices to holders of registered Debt Securities will be given by mail to
the addresses of such holders as they may appear in the Register. (Section 1.6
of each Indenture)
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OWNER OF DEBT SECURITIES
Unless otherwise provided in the applicable Prospectus Supplement relating
to the Debt Securities of a particular series, the Company, the applicable
Trustee and any agent of the Company or the applicable Trustee, may treat the
person in whose name a Debt Security in registered form is registered, and may
treat the bearer of a Debt Security in bearer form, as the absolute owner
thereof (whether or not such Debt Security may be overdue) for the purpose of
receiving payment and for all other purposes. (Section 3.8 of each Indenture)
GOVERNING LAW
The Indentures and the Debt Securities will be governed by, and construed in
accordance with, the laws of the State of New York. (Section 1.12 of each
Indenture)
THE TRUSTEE
Summit Bank is the Trustee under each of the Indentures. Pursuant to the
provisions of the TIA, upon a default under the Senior Indenture or the
Subordinated Indenture, the Trustee may be deemed to have a conflicting
interest, by virtue of its acting as the Trustee under each of the Indentures,
thereby requiring it to resign and be replaced by a successor Trustee under
one or more of the Indentures.
DESCRIPTION OF WARRANTS
GENERAL
The Company may issue Warrants, including Warrants to purchase Debt
Securities ("Debt Warrants"), Preferred Stock, Common Stock or other of its
securities. Warrants may be issued independently or together with any Debt
Securities and may be attached to or separate from such Debt Securities. Each
series of Warrants will be issued under a separate warrant agreement (each a
"Warrant Agreement") to be entered into between the Company and a warrant
agent ("Warrant Agent"). The Warrant Agent will act solely as an agent of the
Company in connection with the Warrants of such series and will not assume any
obligation or relationship of agency or trust for or with any holders or
beneficial owners of Warrants. The description of the terms of the Warrants
that is set forth below, and the description of the terms of the Warrants that
will be set forth in the applicable Prospectus Supplement, do not purport to
be complete and are qualified in their entirety by reference to the Warrant
Agreement and warrant certificate relating to such Warrants.
DEBT WARRANTS
The applicable Prospectus Supplement will describe the following terms of
the Debt Warrants in respect of which this Prospectus is being delivered: (i)
the title of such Debt Warrants; (ii) the aggregate number of such Debt
Warrants; (iii) the price or prices at which such Debt Warrants will be
issued; (iv) the currency or currencies, including composite currencies, in
which the price of such Debt Warrants may be payable; (v) the designation,
aggregate principal amount and terms of the Debt Securities purchasable upon
exercise of such Debt Warrants; (vi) if applicable, the designation and terms
of the Debt Securities with which such Debt Warrants are issued and the number
of such Debt Warrants issued with each such Debt Security; (vii) the currency
or currencies, including composite currencies, in which the principal of or
any premium or interest on the Debt Securities purchasable upon exercise of
such Debt Warrant will be payable; (viii) if applicable, the date on and after
which such Debt Warrants and the related Debt Securities will be separately
transferable; (ix) the price at which and currency or currencies, including
composite currencies, in which the Debt Securities purchasable upon exercise
of such Debt Warrants may be purchased; (x) the date on which the right to
exercise such Debt Warrants shall commence and the date on which such right
shall expire; (xi) if applicable, the minimum or maximum amount of such Debt
Warrants which may be exercised at any one time; (xii) information with
respect to book-entry procedures, if any; (xiii) if applicable, a discussion
of certain United States Federal income tax considerations; and (xiv) any
other terms of such Debt Warrants, including terms, procedures and limitations
relating to the exchange and exercise of such Debt Warrants. Prior to the
exercise of their Debt Warrants, holders
31
<PAGE>
of Debt Warrants exercisable for Debt Securities will not have any of the
rights of holders of the Debt Securities purchasable upon such exercise and
will not be entitled to payments of principal of (or premium, if any) or
interest, if any, on the Debt Securities purchasable upon such exercise.
OTHER WARRANTS
The Company may issue other Warrants. The applicable Prospectus Supplement
will describe the following terms of any such other Warrants in respect of
which this Prospectus is being delivered: (i) the title of such Warrants; (ii)
the securities (which may include Preferred Stock or Common Stock) for which
such Warrants are exercisable; (iii) the price or prices at which such
Warrants will be issued; (iv) the currency or currencies, including composite
currencies, in which the price of such Warrants may be payable; (v) if
applicable, the designation and terms of the Debt Securities or Preferred
Stock with which such Warrants are issued and the number of such Warrants
issued with each such Debt Security or share of Preferred Stock; (vi) if
applicable, the date on and after which such Warrants and the related Debt
Securities or Preferred Stock will be separately transferable; (vii) if
applicable, a discussion of certain United States Federal income tax
considerations; and (viii) any other terms of such Warrants, including terms,
procedures and limitations relating to the exchange and exercise of such
Warrants. The applicable Prospectus Supplement will also set forth (a) the
amount of securities called for by such Warrants, and, if applicable, the
amount of Warrants outstanding, and (b) information relating to provisions, if
any, for a change in the exercise price or the expiration date of such
Warrants and the kind, frequency and timing of any notice to be given. Prior
to the exercise of their Warrants for shares of Preferred Stock or Common
Stock, holders of such Warrants will not have any rights of holders of the
Preferred Stock or Common Stock purchasable upon such exercise and will not be
entitled to dividend payments, if any, or voting rights of the Preferred Stock
or Common Stock purchasable upon such exercise.
EXERCISE OF WARRANTS
Each Warrant will entitle the holder thereof to purchase for cash or other
consideration such principal amount or such number of securities of the
Company at such exercise price as shall in each case be set forth in, or be
determinable as set forth in, the Prospectus Supplement relating to the
Warrants offered thereby. Warrants may be exercised as set forth in the
Prospectus Supplement relating to the Warrants offered thereby at any time up
to the close of business on the expiration date set forth in such Prospectus
Supplement. After the close of business on the expiration date (or such later
expiration date as may be extended by the Company), unexercised Warrants will
become void.
Upon receipt of payment and the warrant certificate properly completed and
duly executed at the corporate trust office of the Warrant Agent or any other
office indicated in the applicable Prospectus Supplement, the Company will, as
soon as practicable, forward the securities purchasable upon such exercise. If
less than all of the Warrants represented by such warrant certificate are
exercised, a new warrant certificate will be issued for the remaining
Warrants.
MODIFICATIONS
The Debt Warrant Agreement and the terms of the Debt Warrants and the Debt
Warrant certificates relating to such Debt Warrants may be amended by the
Company and the Debt Warrant Agent, without the consent of the holders, for
the purpose of curing any ambiguity, or of curing, correcting or supplementing
any defective or inconsistent provision therein or in any other manner which
the Company may deem necessary or desirable and which will not adversely
affect the interests of the holders of Debt Warrants in any material respect.
32
<PAGE>
SELLING STOCKHOLDERS
The following table sets forth as of April 1, 1998 certain information
regarding the beneficial ownership of the Common Stock by each of the Selling
Stockholders prior to and after an offering of all of the Stockholder Shares.
Except as otherwise indicated, each Selling Stockholder has sole voting power
and sole investment power with respect to all shares beneficially owned by
such Selling Stockholder. The chief investment officer of each of the Selling
Stockholders is Kenneth Chuan-kai Leung, a director of the Company. The
applicable Prospectus Supplement also will provide the information set forth
in the following table when the Stockholder Shares are offered in connection
with an underwritten offering of Securities by the Company.
<TABLE>
<CAPTION>
SHARES BENEFICIALLY SHARES BENEFICIALLY
OWNED OWNED
BEFORE OFFERING NUMBER OF AFTER OFFERING
---------------------- SHARES ----------------------
NUMBER PERCENT BEING OFFERED NUMBER PERCENT
----------- ---------- ------------- ----------- ----------
<S> <C> <C> <C> <C> <C>
Environmental Opportuni-
ties Fund, L.P......... 889,699 3.5% 444,850 444,849 1.8%
Environmental Opportuni-
ties Fund (Cayman),
L.P.................... 110,303 * 55,150 55,153 *
</TABLE>
- --------
* Less than 1%.
PLAN OF DISTRIBUTION
The Company may sell Securities to or through one or more underwriters or
dealers and also may sell Securities directly to institutional investors or
other purchasers, or through agents.
The distribution of the Securities may be effected from time to time in one
or more transactions at a fixed price or prices, which may be changed, or at
market prices prevailing at the time of sale, at prices related to such
prevailing market prices or at negotiated prices.
The Company may also make at-the-market offerings of equity securities
through an underwriter or underwriters, acting as principal(s) or as agent(s)
for the Company. The amount of equity securities offered in such offerings
will not exceed in the aggregate ten percent of the aggregate market value of
the Company's outstanding Common Stock held by non-affiliates of Company in
accordance with Rule 415 of the Securities Act.
In connection with the sale of Securities, underwriters or agents may
receive compensation from the Company or from purchasers of Securities for
whom they may act as agents in the form of discounts, concessions or
commissions. Underwriters may sell Securities to or through dealers, and such
dealers may receive compensation in the form of discounts, concessions or
commissions from the underwriters and/or commissions from the purchasers for
whom they may act as agents. Underwriters, dealers and agents that participate
in the distribution of Securities may be deemed to be underwriters, and any
discounts or commissions received by them from the Company and any profit on
the resale of Securities by them may be deemed to be underwriting discounts
and commissions, under the Securities Act. Any such underwriter or agent will
be identified, and any such compensation received from the Company will be
described, in the related Prospectus Supplement.
Under agreements which may be entered into by the Company, underwriters and
agents who participate in the distribution of Securities may be entitled to
indemnification by the Company against certain liabilities, including
liabilities under the Securities Act.
If so indicated in the related Prospectus Supplement, the Company will
authorize underwriters or other persons acting as the Company's agents to
solicit offers by certain institutions to purchase Securities from the Company
pursuant to contracts providing for payment and delivery on a future date.
Institutions with which such contracts may be made include commercial and
savings banks, insurance companies, pension funds, investment companies,
educational and charitable institutions and others, but in all cases such
institutions must be approved by the Company. The obligations of any purchaser
under any such contract will be subject to the condition that the purchase of
the Securities shall not at the time of delivery be prohibited under the laws
of the jurisdiction to which such purchaser is subject. The underwriters and
such other agents will not have any responsibility in respect of the validity
or performance of such contracts.
33
<PAGE>
Certain of the underwriters or agents and their associates may engage in
transactions with and perform services for the Company or its affiliates in
the ordinary course of their respective businesses.
The Securities may or may not be listed on a national securities exchange or
Nasdaq (other than the Common Stock, which is listed on the Nasdaq National
Market). Any Common Stock sold by the Company pursuant to a Prospectus
Supplement will be listed on the Nasdaq National Market. No assurances can be
given that there will be an active trading market for the Securities.
The specific terms and manner of sale of the Securities in respect of which
this Prospectus is being delivered are set forth or summarized in the
Prospectus Supplement.
The Stockholder Shares will be offered pursuant to this Prospectus and the
applicable Prospectus Supplement only in connection with an underwritten
offering of Securities by the Company.
VALIDITY OF SECURITIES
The validity of the Securities offered will be passed upon for the Company
by Drinker Biddle & Reath LLP, Philadelphia, Pennsylvania and for the
Underwriters or agents, if any, by Morgan, Lewis & Bockius LLP, New York, New
York.
EXPERTS
The consolidated financial statements of the Company as of June 30, 1997 and
1996 and for each of the three years in the period ended June 30, 1997
appearing in the Company's Current Report on Form 8-K (dated February 27,
1998), which are incorporated by reference herein, have been audited by Ernst
& Young LLP, independent auditors, as set forth in their report thereon
included therein and incorporated by reference herein which, as to each of the
two years in the period ended June 30, 1996, is based in part on the reports
of Bardall, Weintraub P.C. and Paternostro, Callahan & DeFreitas, LLP,
independent auditors. Such financial statements are incorporated by reference
herein in reliance upon such reports given upon the authority of such firms as
experts in accounting and auditing.
The supplemental consolidated financial statements of the Company as of June
30, 1997 and 1996 and for each of the three years in the period ended June 30,
1997 appearing in the Company's Current Report on Form 8-K (dated April 29,
1998), which are incorporated by reference herein, have been audited by Ernst
& Young LLP, independent auditors, as set forth in their report thereon
included therein and incorporated by reference herein which, as to each of the
two years in the period ended June 30, 1996, is based in part on the reports
of Bardall, Weintraub P.C. and Paternostro, Callahan & DeFreitas, LLP,
independent auditors. Such financial statements are incorporated by reference
herein in reliance upon such reports given upon the authority of such firms as
experts in accounting and auditing.
The combined financial statements of Allied Environmental Services, Inc. and
affiliates as of and for the period ended June 30, 1996 and 1995 and at and
for the years then ended appearing in the Company's Current Report on Form 8-K
dated July 2, 1996, as amended by its Form 8-K/A dated July 10, 1997, which
are incorporated by reference herein, have been audited by BDO Seidman LLP,
independent auditors, as set forth in their report thereon included therein
and incorporated by reference herein. Such financial statements are
incorporated by reference herein in reliance upon such report given upon the
authority of such firm as experts in accounting and auditing.
The combined financial statements of Allied Environmental Services, Inc.,
Allied Environmental Services, West, Inc., Allied Mid-Atlantic, Inc. and
Allied Waste Management, Inc. as of June 30, 1994 and for the year then ended
appearing in the Company's Current Report on Form 8-K dated July 2, 1996, as
amended by its Form
34
<PAGE>
8-K/A dated July 10, 1997, which are incorporated by reference herein, have
been audited by B.J. Klinger & Co., P.C., independent auditors, as set forth
in their report thereon included therein and incorporated by reference herein.
Such financial statements are incorporated by reference herein in reliance
upon such report given upon the authority of such firm as experts in
accounting and auditing.
The combined financial statements of Super Kwik, Inc. and Waste Maintenance
Services, Inc. appearing in the Company's Current Report on Form 8-K dated
September 27, 1996, as amended by its Form 8-K/A dated July 10, 1997, which
are incorporated by reference herein, have been audited by Bardall, Weintraub
P.C., independent auditors, as set forth in their report thereon included
therein and incorporated by reference herein. Such financial statements are
incorporated by reference herein in reliance upon such report given upon the
authority of such firm as experts in accounting and auditing.
The financial statements of R&A Bender, Inc. and R&A Property, Ltd.
appearing in the Company's Current Report on Form 8-K dated December 10, 1996,
as amended by its Form 8-K/A dated July 10, 1997, which are incorporated by
reference herein, have been audited by Boyer & Ritter, CPAs, independent
auditors, as set forth in their reports thereon included therein and
incorporated by reference herein. Such financial statements are incorporated
by reference herein in reliance upon such reports given upon the authority of
such firm as experts in accounting and auditing.
The combined financial statements of Donno Company, Inc. and affiliates
appearing in the Company's Current Report on Form 8-K dated January 31, 1997,
as amended by its Form 8-K/A dated July 10, 1997, which are incorporated by
reference herein, have been audited by Paternostro, Callahan & DeFreitas, LLP,
independent auditors, as set forth in their report thereon included therein
and incorporated by reference herein. Such financial statements are
incorporated by reference herein in reliance upon such report given upon the
authority of such firm as experts in accounting and auditing.
The financial statements of Apex Waste Services, Inc. appearing in the
Company's Current Report on Form 8-K dated March 31, 1997, as amended by its
Form 8-K/A dated July 10, 1997, which are incorporated by reference herein,
have been audited by Daniel P. Irwin & Associates, P.C., independent auditors,
as set forth in their report thereon included therein and incorporated by
reference herein. Such financial statements are incorporated by reference
herein in reliance upon such report given upon the authority of such firm as
experts in accounting and auditing.
The combined financial statements of Waste Services, Inc. and affiliates as
of December 31, 1996 and for the year then ended appearing in the Company's
Current Report on Form 8-K dated May 12, 1997, as amended by its Forms 8-K/A
dated July 11, 1997 and July 25, 1997, which are incorporated by reference
herein, have been audited by Ernst & Young LLP, independent auditors, as set
forth in their report thereon included therein and incorporated herein by
reference. Such financial statements are incorporated herein by reference in
reliance upon such report given upon the authority of such firm as experts in
accounting and auditing.
The financial statements of Pappy, Inc. as of October 31, 1996 and 1995 and
for the years then ended appearing in the Company's Current Report on Form 8-K
dated August 15, 1997, as amended by its Form 8-K/A filed October 10, 1997,
which are incorporated by reference herein, have been audited by Ernst & Young
LLP, independent auditors, as set forth in their report thereon included
therein and incorporated by reference herein. Such financial statements are
incorporated by reference herein in reliance upon such report given upon the
authority of such firm as experts in accounting and auditing.
The financial statements of Soil Remediation of Philadelphia, Inc. and USA
Waste of Fairless Hills, Inc. appearing in the Company's Current Report on
Form 8-K dated August 20, 1997 as amended by its Form 8-K/A dated November 3,
1997, which are incorporated by reference herein, have been audited by Daniel
P. Irwin & Associates, P.C., independent auditors, as set forth in their
report thereon included therein and incorporated by reference herein. Such
financial statements are incorporated by reference herein in reliance upon
such report given upon the authority of such firm as experts in accounting and
auditing.
35
<PAGE>
The consolidated financial statements of Pine Grove, Inc. as of December 31,
1996 and for the year then ended appearing in the Company's Current Report on
Form 8-K dated December 1, 1997 as amended by its Form 8-K/A dated February
17, 1998, which are incorporated by reference herein, have been audited by
Ernst & Young LLP, independent auditors, as set forth in their report thereon
included therein and incorporated herein by reference. Such financial
statements are incorporated by reference herein in reliance upon such report
given upon the authority of such firm as experts in accounting and auditing.
The financial statements of Bluegrass Containment, Inc. appearing in the
Company's Current Report on Form 8-K dated March 9, 1998, as amended by its
Form 8-K/A dated April 8, 1998, which are incorporated by reference herein,
have been audited by Strothman & Company PSC, independent auditors, as set
forth in their report thereon included therein and incorporated by reference
herein. Such financial statements are incorporated by reference herein in
reliance upon such reports given upon the authority of such firm as experts in
accounting and auditing.
The combined financial statements of Hudson Jersey Sanitation Co. and
affiliates appearing in the Company's Current Report on Form 8-K dated March
31, 1998, as amended by its Form 8-K/A dated April 24, 1998, which are
incorporated by reference herein, have been audited by Mills & DeFilippis,
independent auditors, as set forth in their report thereon included therein
and incorporated by reference herein. Such financial statements are
incorporated by reference herein in reliance upon such report given upon the
authority of such firm as experts in accounting and auditing.
The consolidated financial statements of Atlantic Waste Disposal, Inc. and
subsidiaries as of June 30, 1997 and 1996 and for the years then ended
incorporated in this Prospectus by reference from the Company's Current Report
on Form 8-K dated on or about April 30, 1998, have been audited by Deloitte &
Touche LLP, independent auditors, as stated in their report, which is
incorporated herein by reference, and have been so incorporated in reliance
upon the report of such firm given upon their authority as experts in
accounting and auditing.
36
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following tables sets forth the costs and expenses of the issuance and
distribution of the Securities being registered hereby:
<TABLE>
<S> <C>
SEC registration fee............................................ $ 121,680
Blue Sky fees and expenses (including legal fees)............... 15,000*
Legal fees and expenses......................................... 350,000*
Accounting fees and expenses.................................... 400,000*
Printing and engraving expenses................................. 400,000*
Rating agency fees.............................................. 100,000*
Trustees' fees and expenses..................................... 20,000*
Nasdaq listing fee.............................................. 35,000*
Transfer agent and registrar fee and expenses................... 10,000*
Miscellaneous................................................... 50,000*
----------
Total......................................................... $1,501,680*
==========
</TABLE>
- --------
* Estimated
Of the total SEC Registration Fee, $3,680 will be borne by the Selling
Stockholders, and in connection with an offering of the Stockholder Shares,
the Company and the Selling Stockholders will share all expenses of the
offering in proportion to the number of shares sold.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the General Corporation Law of the State of Delaware (the
"DGCL") provides, in general, that a corporation incorporated under the laws
of the State of Delaware, such as the Company, 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 (other than an action by or
in the right of the corporation) by reason of the fact that such 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 enterprise, against expenses (including attorneys' fees),
judgments, fines, and amounts paid in settlement actually and reasonably
incurred by such person in connection with such action, suit, or proceeding if
such person acted in good faith and in a manner such 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 such person's conduct was unlawful. In the case of an action
by or in the right of the corporation, a Delaware corporation may indemnify
any such person against expenses (including attorneys' fees), actually and
reasonably incurred by such person in connection with the defense or
settlement of such action or suit if such person acted in good faith and in a
manner such person reasonably believed to be in or not opposed to the best
interests of the corporation, 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 determines upon application that, despite the adjudication of
liability but in view of all circumstances of the case, such person is fairly
and reasonably entitled to indemnity for such expenses.
Article Tenth, Paragraph (a) of the Certificate of Incorporation provides
that each person who was or is made a party or is threatened to be made a
party to or is involved in any action, suit, or proceeding, whether civil,
criminal, administrative or investigative (hereinafter, a "proceeding"), by
reason of the fact that he or she, or a person of whom he or she is the legal
representative, is or was a director or officer of the Company or is or was
serving at the request of the Company as a director, officer, employee, or
agent of another company or of a partnership, joint venture, trust or other
enterprise, including service with respect to employee benefit plans, whether
or not the basis of such proceeding is alleged action in an official capacity
as a director, officer, employee, or agent, or in any other capacity while
serving as a director, officer, employee, or agent, shall be indemnified and
held harmless by the Company to the fullest extent authorized by the DGCL, as
the same exists
II-1
<PAGE>
or may hereafter be amended (but, in the case of any such amendment, only to
the extent that such amendment permits the Company to provide broader
indemnification rights than said law permitted the Company to provide prior to
such amendment), against all expense, liability, and loss (including
attorneys' fees, judgments, fines, ERISA excise taxes or penalties and amounts
paid or to be paid in settlement) reasonably incurred or suffered by such
person in connection therewith. Such indemnification continues as to a person
who has ceased to be a director, officer, employee, or agent or in any other
capacity while serving as a director, officer, employee, or agent and inures
to the benefit of his or her heirs, executors, and administrators; provided,
however, that except as provided in Paragraph (b) of the Article Tenth
(described below), the Company shall indemnify any such person seeking
indemnification in connection with a proceeding (or part thereof) initiated by
such person only if such proceeding (or part thereof) was authorized by the
board of directors of the Company. Article Tenth, Paragraph (a) further
provides that such right to indemnification shall be a contract right and
shall include the right to be paid by the Company the expenses incurred in
defending any such proceeding in advance of its final disposition; provided,
however, that, if the DCGL requires, the payment of such expenses incurred by
a director or officer (in his or her capacity as a director or officer and not
in any other capacity in which service was or is rendered by such person while
a director or officer, including, without limitation, service to an employee
benefit plan) in advance of the final disposition of a proceeding shall be
made only upon delivery to the Company of an undertaking, by or on behalf of
such director or officer, to repay all amounts so advanced if it shall
ultimately be determined that such director or officer is not entitled to be
indemnified under the Certificate of Incorporation or otherwise. The Company
may, by action of its Board of Directors, provide indemnification to employees
and agents of the Company with the same scope and effect as the foregoing
indemnification of directors and officers. The foregoing right to
indemnification and advancement of expenses is not exclusive.
Article Tenth, Paragraph (b) of the Certificate of Incorporation further
provides that if a claim described under Paragraph (a) of Article Tenth is not
paid in full by the Company within thirty days after a written claim has been
received by the Company, the claimant may at any time thereafter bring suit
against the Company to recover the unpaid amount of the claim and, if
successful, in whole or in part, the claimant shall be entitled to be paid
also the expense of prosecuting such claim. It shall be a defense to any such
action (other than an action brought to enforce a claim for expenses incurred
in defending any proceeding in advance of its final disposition where the
required undertaking, if any is required, has been tendered to the Company)
that the claimant has not met the standards of conduct which make it
permissible under the DGCL for the Company to indemnify the claimant for the
amount claimed, but the burden of providing such defense shall be on the
Company. Neither the failure of the Company (including its Board of Directors,
independent legal counsel, or its stockholders) to have made a determination
prior to the commencement of such action that indemnification of the claimant
is proper in the circumstances because he or she has met the applicable
standard of conduct set forth in the DGCL, nor an actual determination by the
Company (including its Board of Directors, independent legal counsel, or its
stockholders) that the claimant has not met such applicable standard or
conduct, shall be a defense to the action or create a presumption that the
claimant has not met the applicable standard of conduct.
As permitted by Article Tenth of the Certificate of Incorporation and
Section 145(g) of the DGCL, the directors and officers of the Company and its
subsidiaries are covered by policies of insurance under which they are
insured, within limits and subject to certain limitations, against certain
expenses in connection with the defense of actions, suits or proceedings, and
certain liabilities which might be imposed as a result of such actions, suits
or proceedings, in which they are parties by reason of being or having been
directors or officers; the Company is similarly insured, with respect to
certain payments it might be required to make to its directors or officers
under the applicable statutes and its charter provisions. The Company has also
entered into indemnification agreements with certain of its directors and
officers.
II-2
<PAGE>
ITEM 16. EXHIBITS.
The following Exhibits are filed as part of this Registration Statement:
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DOCUMENT
------- --------
<C> <S>
1.1 Form of Debt Security Underwriting Agreement*
1.2 Form of Equity Security Underwriting Agreement*
1.3 Form of Distribution Agreement*
4.3 Form of Senior Indenture between Eastern Environmental Services, Inc.
and Summit Bank, as trustee
4.4 Form of Subordinated Indenture between Eastern Environmental Services,
Inc. and Summit Bank, as trustee
4.5 Form of Preferred Stock Certificate*
4.6 Form of Deposit Agreement, including form of Depositary Receipt for
Depositary Shares*
4.7 Form of Debt Securities*
4.8 Form of Warrants*
4.9 Form of Warrant Agreement*
5 Opinion of Drinker Biddle & Reath LLP
12 Statement Re Computation of Ratios of Earnings to Fixed Charges
23.8 Consent of Ernst & Young LLP
23.9 Consent of Deloitte & Touche LLP
23.10 Consent of Strothman & Company PSC
23.11 Consent of Mills and DeFilippis LLP
25.1 Statement of Eligibility on Form T-1 of the Senior Trustee
25.2 Statement of Eligibility on Form T-1 of the Subordinated Trustee
</TABLE>
- --------
* The form or forms of Debt Security Underwriting Agreement, Equity Security
Underwriting Agreement, Distribution Agreement, Preferred Stock
Certificate, Debt Securities, Warrants, Warrant Agreement, Deposit
Agreement and Depositary Receipts with respect to each particular offering
of Debt Securities, Common Stock, Preferred Stock, Warrants or Depositary
Receipts, as applicable, will be filed as an exhibit to a Report on Form 8-
K and incorporated herein by reference.
ITEM 17. UNDERTAKINGS.
(a) The undersigned 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. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the
maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement; and
II-3
<PAGE>
(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 the undertakings set forth in paragraphs (1)(i) and
(1)(ii) do not apply if the information required to be included in a post-
effective amendment by those paragraphs is contained in periodic reports filed
by the Registrant pursuant to section 13 or section 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 which remain unsold at the
termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to section 13(a) or 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.
(c) 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 permitted under Item 15
above 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 against the Registrant by such
director, officer or controlling person in connection with the securities
being registered hereby, 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 such issue.
(d) The undersigned Registrant hereby undertakes that:
(1) 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 Company pursuant to Rule 424(b)(1) or (4)
or 497(h) under the Securities Act shall be deemed to be part of this
Registration Statement as of the time it was declared effective.
(2) For purposes of determining any liability under the Securities Act of
1933, each post-effective amendment that contains a form of prospectus
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.
(e) The undersigned registrant hereby undertakes to file an application for
the purpose of determining the eligibility of the Senior Trustee and the
Subordinated 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 Act.
II-4
<PAGE>
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 AMENDMENT NO. 1
TO REGISTRATION STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED,
THEREUNTO DULY AUTHORIZED, IN MT. LAUREL, NEW JERSEY ON MAY 1, 1998.
Eastern Environmental Services, Inc.
/s/ Louis D. Paolino, Jr.
By: _________________________________
LOUIS D. PAOLINO, JR.
CHAIRMAN OF THE BOARD, CHIEF
EXECUTIVE OFFICER AND PRESIDENT
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS AMENDMENT
NO. 1 TO REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS, IN
THE CAPACITIES INDICATED, ON MAY 1, 1998.
SIGNATURE TITLE
/s/ Louis D. Paolino, Jr. Chairman of the Board, Chief Executive
- ------------------------------------- Officer, President and Director
LOUIS D. PAOLINO, JR. (Principal Executive Officer)
/s/ Gregory M. Krzemien Chief Financial Officer and Treasurer
- ------------------------------------- (Principal Financial Officer)
GREGORY M. KRZEMIEN
Controller (Principal Accounting
/s/ Ronald R. Pirollo Officer)
- -------------------------------------
RONALD R. PIROLLO
George O. Moorehead* Director
- -------------------------------------
GEORGE O. MOOREHEAD
Kenneth Chuan-Kai Leung* Director
- -------------------------------------
KENNETH CHUAN-KAI LEUNG
* Gregory M. Krzemien, pursuant to a Power of Attorney executed by each of
the directors and officers noted above and included in the signature page
of the initial filing of this Registration Statement, by signing his name
hereto, does hereby sign and execute this Amendment No. 1 to Registration
Statement on behalf of each of the persons noted above, in the capacities
indicated, and does hereby sign and execute this Amendment No. 1 to
Registration Statement on his own behalf, in the capacities indicated.
/s/ Gregory M. Krzemien
_______________________________
GREGORY M. KRZEMIEN
II-5
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DOCUMENT
------- --------
<C> <S>
4.3 Form of Senior Indenture between Eastern Environmental Services, Inc.
and Summit Bank, as trustee
4.4 Form of Subordinated Indenture between Eastern Environmental Services,
Inc. and Summit Bank, as trustee
5 Opinion of Drinker Biddle & Reath LLP
12 Statement Re Computation of Ratios of Earnings to Fixed Charges
23.8 Consent of Ernst & Young LLP
23.9 Consent of Deloitte & Touche LLP
23.10 Consent of Strothman & Company PSC
23.11 Consent of Mills and DeFilippis LLP
25.1 Statement of Eligibility on Form T-1 of the Senior Trustee
25.2 Statement of Eligibility on Form T-1 of the Subordinated Trustee
</TABLE>
II-6
<PAGE>
EXHIBIT 4.3
EASTERN ENVIRONMENTAL SERVICES, INC., as Issuer
to
Summit Bank, as Trustee
SENIOR INDENTURE
Dated as of _________________, ____
Providing for Issuance of
Senior Debt Securities in Series
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION.......................................... 6
Section 1.1 Definitions.................................. 6
Section 1.2 Compliance Certificates and Opinions......... 16
Section 1.3 Form of Documents Delivered to Trustee....... 16
Section 1.4 Acts of Holders.............................. 17
Section 1.5 Notices, Etc., to Trustee and Company........ 19
Section 1.6 Notice to Holders; Waiver.................... 19
Section 1.7 Headings and Table of Contents............... 20
Section 1.8 Successor and Assigns........................ 20
Section 1.9 Separability................................. 20
Section 1.10 Benefits of Indenture........................ 20
Section 1.11 Incorporators, Stockholders, Officers and
Directors of the Company Exempt from
Individual Liability....................... 21
Section 1.12 Governing Law; Conflict with Trust
Indenture Act.............................. 21
Section 1.13 Legal Holidays............................... 21
Section 1.14 Moneys of Different Currencies to Be
Segregated................................. 21
Section 1.15 Independence of Covenants.................... 22
Section 1.16 Counterparts................................. 22
ARTICLE 2
SECURITY FORMS.................................................. 22
Section 2.1 Forms Generally.............................. 22
Section 2.2 Form of Trustee's Certificate of
Authentication............................. 23
Section 2.3 Securities in Global Form.................... 23
Section 2.4 Form of Legend for Securities in Global
Form....................................... 24
ARTICLE 3
THE SECURITIES.................................................. 24
Section 3.1 Amount Unlimited; Issuable in Series......... 24
Section 3.2 Denominations................................ 28
Section 3.3 Execution, Authentication, Delivery and
Dating..................................... 28
Section 3.4 Temporary Securities......................... 31
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<PAGE>
Section 3.5 Registration, Transfer and Exchange.......... 32
Section 3.6 Replacement Securities....................... 36
Section 3.7 Payment of Interest; Interest Rights
Preserved.................................. 37
Section 3.8 Persons Deemed Owners........................ 39
Section 3.9 Cancellation................................. 40
Section 3.10 Computation of Interest...................... 41
Section 3.11 CUSIP Numbers................................ 41
Section 3.12 Currency and Manner of Payment in Respect
of Securities.............................. 41
ARTICLE 4
SATISFACTION, DISCHARGE AND DEFEASANCE............................ 41
Section 4.1 Termination of Company's Obligations Under
the Indenture.............................. 41
Section 4.2 Application of Trust Funds................... 43
Section 4.3 Applicability of Defeasance Provisions;
Company's Option to Effect Defeasance
or Covenant Defeasance..................... 43
Section 4.4 Defeasance and Discharge..................... 43
Section 4.5 Covenant Defeasance.......................... 44
Section 4.6 Conditions to Defeasance or Covenant
Defeasance................................. 44
Section 4.7 Deposited Money and Government Obligations
to Be Held in Trust........................ 46
Section 4.8 Repayment to Company......................... 46
Section 4.9 Indemnity for Government Obligations......... 46
Section 4.10 Reinstatement................................ 46
ARTICLE 5
DEFAULTS AND REMEDIES........................................... 47
Section 5.1 Events of Default............................ 47
Section 5.2 Acceleration; Rescission and Annulment....... 48
Section 5.3 Collection of Indebtedness and Suits for
Enforcement by Trustee..................... 49
Section 5.4 Trustee May File Proofs of Claim............. 50
Section 5.5 Trustee May Enforce Claims Without
Possession of Securities................... 50
Section 5.6 Delay or Omission Not Waiver................. 50
Section 5.7 Waiver of Past Defaults...................... 50
Section 5.8 Control by Majority.......................... 51
Section 5.9 Limitation on Suits by Holders............... 51
-ii-
<PAGE>
Section 5.10 Rights of Holders to Receive Payment......... 52
Section 5.11 Application of Money Collected............... 52
Section 5.12 Restoration of Rights and Remedies........... 53
Section 5.13 Rights and Remedies Cumulative............... 53
Section 5.14 Undertaking for Costs........................ 53
Section 5.15 Waiver of Stay, Extension or Usury Laws...... 53
ARTICLE 6
THE TRUSTEE..................................................... 54
Section 6.1 Certain Duties and Responsibilities.......... 54
Section 6.2 Notice of Defaults........................... 54
Section 6.3 Certain Rights of Trustee.................... 54
Section 6.4 Not Responsible for Recitals or Issuance
of Securities.............................. 55
Section 6.5 May Hold Securities.......................... 55
Section 6.6 Money Held in Trust.......................... 56
Section 6.7 Compensation and Reimbursement............... 56
Section 6.8 Conflicting Interests........................ 56
Section 6.9 Corporate Trustee Required; Eligibility...... 56
Section 6.10 Resignation and Removal; Appointment
of Successor............................... 56
Section 6.11 Acceptance of Appointment by Successor....... 58
Section 6.12 Merger, Conversion, Consolidation or
Succession to Business..................... 59
Section 6.13 Preferential Collection of Claims
Against Company............................ 59
Section 6.14 Appointment of Authenticating Agent.......... 59
ARTICLE 7
CONSOLIDATION, MERGER OR SALE BY THE COMPANY.................... 62
Section 7.1 Consolidation, Merger or Sale of Assets
Permitted.................................. 62
ARTICLE 8
SUPPLEMENTAL INDENTURES......................................... 63
Section 8.1 Supplemental Indentures Without Consent
of Holders................................. 63
Section 8.2 Supplemental Indentures With Consent of
Holders.................................... 64
Section 8.3 Compliance with Trust Indenture Act.......... 65
Section 8.4 Execution of Supplemental Indentures......... 65
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<PAGE>
Section 8.5 Effect of Supplemental Indentures............ 66
Section 8.6 Reference in Securities to Supplemental
Indentures................................. 66
Section 8.7 Notice of Supplemental Indentures............ 66
ARTICLE 9
COVENANTS....................................................... 66
Section 9.1 Payment of Principal, Premium, if any, and
Interest................................... 66
Section 9.2 Maintenance of Office or Agency.............. 67
Section 9.3 Money for Securities Payments to Be Held
in Trust; Unclaimed Money.................. 68
Section 9.4 Corporate Existence.......................... 69
Section 9.5 Annual Review Certificate.................... 69
Section 9.6 Waiver of Certain Covenants.................. 70
ARTICLE 10
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY............... 70
Section 10.1 Company to Furnish Trustee Names and
Addresses of Holders....................... 70
Section 10.2 Preservation of Information, Communications
to Holders................................. 70
Section 10.3 Reports by Trustee........................... 71
Section 10.4 Reports by the Company....................... 71
ARTICLE 11
REDEMPTION...................................................... 72
Section 11.1 Applicability of Article..................... 72
Section 11.2 Election to Redeem; Notice to Trustee........ 72
Section 11.3 Selection of Securities to Be Redeemed....... 72
Section 11.4 Notice of Redemption......................... 73
Section 11.5 Deposit of Redemption Price.................. 74
Section 11.6 Securities Payable on Redemption Date........ 74
Section 11.7 Securities Redeemed in Part.................. 75
ARTICLE 12
SINKING FUNDS................................................... 75
Section 12.1 Applicability of Article..................... 75
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<PAGE>
Section 12.2 Satisfaction of Sinking Fund Payments
with Securities............................ 76
Section 12.3 Redemption of Securities for Sinking Fund.... 76
ARTICLE 13
MEETINGS OF HOLDERS OF BEARER SECURITIES........................ 76
Section 13.1 Purposes for Which Meetings May Be Called.... 76
Section 13.2 Call, Notice and Place of Meetings........... 77
Section 13.3 Persons Entitled to Vote at Meetings......... 77
Section 13.4 Quorum; Action............................... 77
Section 13.5 Determination of Voting Rights; Conduct and
Adjournment of Meetings.................... 78
Section 13.6 Counting Votes and Recording Action of
Meetings................................... 79
ARTICLE 14
CONVERSION OR EXCHANGE OF SECURITIES............................ 80
Section 14.1 Applicability of Article..................... 80
Section 14.2 Exercise of Conversion or Exchange Privilege. 80
Section 14.3 No Fractional Equity Securities.............. 81
Section 14.4 Adjustment of Conversion or Exchange Price;
Consolidation or Merger.................... 82
Section 14.5 Notice of Certain Corporate Actions.......... 83
Section 14.6 Reservation of Equity Securities............. 84
Section 14.7 Payment of Certain Taxes Upon Conversion
or Exchange................................ 84
Section 14.8 Duties of Trustee Regarding Conversion
or Exchange................................ 84
Section 14.9 Repayment of Certain Funds Upon Conversion
or Exchange................................ 84
-v-
<PAGE>
SENIOR INDENTURE (the "Indenture"), dated as of ___________, ____,
between EASTERN ENVIRONMENTAL SERVICES, INC., a corporation duly organized and
existing under the laws of the State of Delaware (the "Company"), having its
principal office at 1000 Crawford Place, Suite 101, Mt. Laurel, New Jersey
08054, and Summit Bank, a state banking association, as Trustee (the
"Trustee").
RECITALS
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
unsubordinated debentures, notes or other evidences of indebtedness
("Securities") to be issued in one or more series as herein provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed as
follows for the equal and ratable benefit of the Holders of the Securities:
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
Section 1.1 Definitions. (a) For all purposes of this Indenture,
-----------
except as otherwise expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(2) 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;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles as in effect in the United States of America from time to time;
provided that when two or more principles are so generally accepted, it
shall mean that set of principles consistent with those in use by the
Company;
(4) 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.
-2-
<PAGE>
"Affiliate" of any specified Person means any Person directly or
indirectly controlling or controlled by, or under direct or indirect common
control with, such specified Person. For purposes of this definition, "control"
when used with respect to any specified Person means the power to direct the
management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
"Agent" means any Paying Agent, Foreign Currency Agent or Registrar.
"Authenticating Agent" means any Person appointed by the Trustee
pursuant to Section 6.14 to act on behalf of Trustee to authenticate Securities
of one or more series.
"Authorized Newspaper" means a newspaper of general circulation, in
the 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. Whenever successive publications in an
Authorized Newspaper are required hereunder they may be made (unless otherwise
expressly provided herein) on the same or different days of the week and in the
same or different Authorized Newspapers.
"Bearer Security" means any Security issued hereunder which is payable
to bearer.
"Board" or "Board of Directors" means the Board of Directors of the
Company, or any duly authorized committee thereof.
"Board Resolution" means a copy of a resolution of the Board of
Directors, 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 the certificate, and delivered to the Trustee.
"Business Day", when used with respect to any Place of Payment or any
other particular location referred to in this Indenture or in the Securities,
means, unless otherwise specified with respect to any Securities pursuant to
Section 3.1, each Monday, Tuesday, Wednesday, Thursday and Friday which is not a
day on which banking institutions in that Place of Payment or particular
location are authorized or obligated by law, regulation or executive order to
close.
"Capital Lease Obligation" of any Person means the obligation to pay
rent or other payment amounts under a lease of (or other arrangements conveying
the right to use) real or personal property of such Person which is required to
be classified and accounted for as a capital lease or a liability on a balance
sheet of such Person in accordance with generally accepted accounting
principles. The stated maturity of such obligation shall be the date of the
-3-
<PAGE>
last payment of rent or any other amount due under such lease prior to the first
date upon which such lease may be terminated by the lessee without payment of a
penalty. The principal amount of such obligation shall be the capitalized amount
thereof that would appear on a balance sheet of such Person in accordance with
generally accepted accounting principles.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of 1934, as
amended, or, if at any time after the execution of this Indenture such
Commission is not existing and performing the duties now assigned to it under
the Trust Indenture Act, then the body performing such duties at such time.
"Company" means the Person named as the Company in the first paragraph
of this Indenture until a successor Person shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter means such
successor.
"Company Order" and "Company Request" mean, respectively, a written
order or request signed in the name of the Company by two Officers, one of whom
must be the Chairman of the Board, the President, the Chief Executive Officer,
the Chief Operating Officer, the Chief Financial Officer, a Vice President, the
Treasurer or the Secretary of the Company.
"consent", "waive" and "rescind", when used with respect to the
consent, waiver or rescission of or by the Holders of a specified percentage in
aggregate principal amount of Securities of any series issuable as Bearer
Securities, shall mean any of (i) a favorable vote with respect to such consent,
waiver or rescission, at any meeting of Holders of Securities of such series
duly called and held in accordance with the provisions of Article 13, by the
Holders of the applicable percentage in aggregate principal amount of such
Securities specified in the third paragraph of Section 13.4; (ii) written
consents, waivers or rescissions of or by the Holders of such specified
percentage in aggregate principal amount of such Securities; and (iii) a
combination of the favorable vote with respect to such consent, waiver or
rescission, at any meeting of Holders of Securities of such series duly called
and held in accordance with the provisions of Article 13, by the Holders of less
than the applicable percentage in aggregate principal amount of such Securities
specified in the third paragraph of Section 13.4 and written consents, waivers
or rescissions of other Holders of such Securities, where the sum of the
percentage of such Holders so voting in favor and the percentage of such Holders
signing such written consents, waivers or rescissions is equal to at least such
specified percentage.
"Corporate Trust Office" means the office of the Trustee at which at
any particular time its corporate trust business shall be administered, which
office at the date hereof is located at 210 Main Street, Hackensack, New
Jersey 07601, Attention: Corporate Trust Administration.
"currency unit" for all purposes of this Indenture shall include any
composite currency, including, without limitation, ECU.
-4-
<PAGE>
"Debt" means (without duplication), with respect to any Person,
whether recourse is to all or a portion of the assets of such Person, (i) every
obligation of such Person for money borrowed, (ii) every obligation of such
Person evidenced by bonds, debentures, notes or other similar instruments,
including obligations Incurred in connection with the acquisition of property,
assets or businesses, (iii) every reimbursement obligation of such Person with
respect to letters of credit, bankers' acceptances or similar facilities issued
for the account of such Person, (iv) every obligation of such Person issued or
assumed as the deferred purchase price of property or services, (v) every
Capital Lease Obligation of such Person, (vi) the maximum fixed redemption or
repurchase price of Redeemable Interests of such Person at the time of
determination, (vii) every net payment obligation of such Person under interest
rate swap or similar agreements or foreign currency hedge, exchange or similar
agreements at the time of determination and (viii) every obligation of the type
referred to in Clauses (i) through (vii) of another Person and all dividends of
another Person the payment of which, in either case, such Person has Guaranteed
or for which such Person is responsible or liable, directly or indirectly,
jointly or severally, as obligor, Guarantor or otherwise.
"Default" means any event which is, or after notice or passage of
time, or both, would be, an Event of Default.
"Depositary", when used with respect to the Securities of or within
any series issuable or issued in whole or in part in global form, means the
Person designated as Depositary by the Company pursuant to Section 3.1(b) until
a successor Depositary shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter shall mean or include each Person
which is then a Depositary hereunder, and if at any time there is more than one
such Person, shall be a collective reference to such Persons.
"Dollar" means the currency of the United States as at the time of
payment is legal tender for the payment of public and private debts.
"ECU" means the European Currency Unit as defined and revised from
time to time by the Council of the European Communities.
"European Monetary System" means the European Monetary System
established by the Resolution of December 5, 1978 of the Council of the European
Communities.
"Exchange Rate Certificate" means a certificate, signed by The Foreign
Currency Agent, setting forth (i) the applicable Market Exchange Rate or the
applicable bid quotation and (ii) the Dollar amount of principal (and premium,
if any) and interest, if any (on an aggregate basis and on the basis of a
Security having the lowest denomination principal amount in the relevant
currency or currency unit), that would be payable with respect to a Security of
the applicable series on the basis of such Market Exchange Rate or the
applicable bid quotation.
-5-
<PAGE>
"Foreign Currency" means any currency issued by the government of one
or more countries other than the United States or by any recognized
confederation or association of such governments.
"Foreign Currency Agent" means any Person authorized by the Company to
determine the Market Exchange Rates with respect to any Securities and to
provide Exchange Rate Certificates and any other services required under this
Indenture in connection with any Securities denominated or payable in a Foreign
Currency.
"Government Obligations" means securities which are (i) direct
obligations of the United States or, if specified as contemplated by Section
3.1, the government which issued the currency in which the Securities of a
particular series are payable, for the payment of which its full faith and
credit is pledged or (ii) obligations of a Person controlled or supervised by
and acting as an agency or instrumentality of the United States or, if specified
as contemplated by Section 3.1, such government which issued the foreign
currency in which the Securities of a particular series are payable, the payment
of which is unconditionally guaranteed as a full faith and credit obligation by
the United States or such other government, which, in either case, are not
callable or redeemable at the option of the issuer thereof, and shall also
include a depository receipt issued by a bank or trust company as custodian with
respect to any such Government Obligation or a specific payment of interest on
or principal of any such Government Obligation held by such custodian for the
account of the holder of a depository receipt, provided that (except as required
by law) such custodian is not authorized to make any deduction from the amount
payable to the holder of such depository receipt from any amount received by the
custodian in respect of the Government Obligation evidenced by such depository
receipt.
"Holder" means, with respect to a Bearer Security, a bearer thereof or
of an interest coupon appertaining thereto and, with respect to a Registered
Security, a Person in whose name a Security is registered on the register.
"Indenture" means this Senior Indenture as amended and restated hereby
or as amended, waived or supplemented from time to time and shall include and
incorporate by reference the forms and terms of particular series of Securities
established as contemplated hereunder.
"Indexed Security" means a Security the terms of which provide that
the principal amount thereof payable at Stated Maturity may be more or less than
the principal face amount thereof at original issuance.
"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 and, when used with respect to any other Security, means
the interest payable thereon in accordance with its terms.
"Interest Payment Date", when used with respect to any Security, means
the Stated Maturity of an installment of interest on such Security.
"Market Exchange Rate" means, unless otherwise specified with respect
to any Securities pursuant to Section 3.1, (i) for a conversion of any currency
unit into Dollars, the exchange rate between the relevant currency unit and
Dollars calculated by the method specified
-6-
<PAGE>
pursuant to Section 3.1 for the Securities of the relevant series, and (ii) for
a conversion of any Foreign Currency into Dollars, the applicable exchange rate
between such Foreign Currency and Dollars set forth under the heading, "Currency
Trading -- Exchange Rates" in the "Money & Investing" section of The Wall Street
Journal (or in such other section of The Wall Street Journal in which foreign
currency exchange rates may be regularly published from time to time) as of the
most recent available date, in each case as determined by the Foreign Currency
Agent. Unless otherwise specified with respect to any Securities pursuant to
Section 3.1, in the event of the unavailability of any of the exchange rates
provided for in the foregoing clauses (i) and (ii), the Foreign Currency Agent
shall use the average of the quotations from at least three major banks
acceptable to the Company in The City of New York (which may include any such
bank acting as Foreign Currency Agent under this Indenture), or such other
quotations as the Foreign Currency Agent and the Company shall deem appropriate.
"Maturity", when used with respect to any Security, means the date on
which the principal of such Security or an installment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Officer" means the Chairman of the Board, the President, the Chief
Executive Officer, the Chief Operating Officer, the Chief Financial Officer, any
Vice President, the Treasurer, any Assistant Treasurer, the Secretary or any
Assistant Secretary of the Company.
"Officers' Certificate", when used with respect to the Company, means
a certificate signed by two Officers, one of whom must be the Chairman of the
Board, the President, the Chief Executive Officer, the Chief Operating Officer,
the Chief Financial Officer, any Vice President, the Treasurer or the Secretary
of the Company.
"Opinion of Counsel" means a written opinion from the general counsel
of the Company or other legal counsel who is reasonably acceptable to the
Trustee. Such counsel may be an employee of or counsel to the Company.
"Original Issue Discount Security" means any Security which provides
for an amount less than the stated principal amount thereof to be due and
payable upon declaration of acceleration of the Maturity thereof pursuant to
Section 5.2.
"Outstanding", when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(i) Securities theretofore canceled by the Trustee or delivered to
the Trustee for cancellation;
(ii) Securities, or portions thereof, for whose payment or redemption
money or Government Obligations (as provided for in Section 4.7) in the
necessary amount has been theretofore deposited with the Trustee or any Paying
Agent (other than the Company) in trust or
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<PAGE>
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 and any interest
coupons appertaining thereto, 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;
(iii) Securities, except to the extent provided in Sections 4.4 and
4.5, with respect to which the Company has effected defeasance and/or covenant
defeasance as provided in Article 4; and
(iv) Securities which have been replaced or paid pursuant to Section
3.6 or in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any such
Securities in respect of which there shall have been presented to the Trustee
proof satisfactory to it that such Securities are held by a bona fide purchaser
in whose hands such Securities are valid obligations of the Company; provided,
however, that in determining whether the Holders of the requisite principal
amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, or whether
sufficient funds are available for redemption or for any other purpose, and for
the purpose of making the calculations required by Section 313 of the Trust
Indenture Act, (w) the principal amount of any Original Issue Discount
Securities that may be counted in making such determination or calculation and
that shall be deemed to be Outstanding for such purpose shall be equal to the
amount of principal thereof that would be (or shall have been declared to be)
due and payable, at the time of such determination, upon a declaration of
acceleration of the Maturity thereof pursuant to Section 5.2, (x) the principal
amount of any Security denominated in a Foreign Currency that may be counted in
making such determination or calculation and that shall be deemed Outstanding
for such purpose shall be equal to the Dollar equivalent, determined as of the
date such Security is originally issued by the Company as set forth in an
Exchange Rate Certificate, of the principal amount (or, in the case of an
Original Issue Discount Security, the Dollar equivalent as of such date of
original issuance of the amount determined as provided in clause (w) above) of
such Security, (y) the principal amount of any Indexed Security that may be
counted in making such determination or calculation and that shall be deemed
Outstanding for such purpose shall be equal to the principal face amount of such
Indexed Security at original issuance, unless otherwise provided with respect to
such Security pursuant to Section 3.1, and (z) Securities owned by the Company
or any other obligor upon the Securities or any Affiliate of the Company or of
such other obligor shall be disregarded and deemed not to be Outstanding, except
that, in determining whether the Trustee shall be protected in making such
calculation or in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Securities which the Trustee knows to
be so owned shall be so disregarded. Securities so owned which have been pledged
in good faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect to such
Securities and that the pledgee is not the Company or any other obligor upon the
Securities or any Affiliate of the Company or of such other obligor.
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"Paying Agent" means any Person authorized by the Company to pay the
principal of, premium, if any, interest, if any, and any other payments due on
any Securities on behalf of the Company.
"Periodic Offering" means an offering of Securities of a series from
time to time the specific terms of which Securities, including, without
limitation, the rate or rates of interest or formula or formulae for determining
the rate or rates of interest thereon, if any, the Maturity thereof, the
redemption provisions, if any, and any other terms specified as contemplated by
Section 3.1, with respect thereto, are to be determined by the Company upon the
issuance of such Securities.
"Person" means any individual, corporation, partnership, joint
venture, limited liability company, association, joint-stock company, trust,
other entity, unincorporated organization or government or any agency or
political subdivision thereof.
"Place of Payment", when used with respect to the Securities of or
within any series, means the place or places where the principal of, premium, if
any, interest and any other payments due on such Securities are payable as
specified as contemplated by Sections 3.1 and 9.2.
"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 3.6 in exchange for or 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.
"Redeemable Interest" of any Person means any equity security of or
other ownership interest in such Person that by its terms (or by the terms of
any security into which it is convertible or for which it is exchangeable) or
otherwise (including upon the occurrence of an event) matures or is required to
be redeemed (pursuant to any sinking fund obligation or otherwise) or is
convertible into or exchangeable for Debt or is redeemable at the option of the
holder thereof, in whole or in part, at any time prior to the final Stated
Maturity of the Securities.
"Redemption Date", when used with respect to any Security to be
redeemed, means the date fixed for such redemption pursuant to this Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, in whole or in part, means the price at which it is to be redeemed
pursuant to this Indenture.
"Registered Security" means any Security issued hereunder and
registered as to principal and interest in the Register.
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"Regular Record Date" for the interest payable on any Interest Payment
Date on the Securities of or within any series means the date specified for that
purpose as contemplated by Section 3.1.
"Responsible Officer", when used with respect to the Trustee, shall
mean any vice president, the secretary, any assistant secretary, the treasurer,
any assistant treasurer, any trust officer or assistant trust officer, or any
officer of the Trustee customarily performing functions similar to those
performed by any of the above designated officers and also shall mean, with
respect to a particular corporate trust matter, any officer to whom such matter
is referred because of his knowledge of and familiarity with the particular
subject.
"Security" or "Securities" has the meaning stated in the first recital
of this Indenture and more particularly means a Security or Securities of the
Company issued, authenticated and delivered under this Indenture.
"Special Record Date" for the payment of any Defaulted Interest means
a date fixed by the Trustee pursuant to Section 3.7.
"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 or in an interest coupon representing such installment of
interest as the fixed date on which the principal of such Security or such
installment of principal or interest is due and payable.
"Subsidiary" of any Person means any Person of which at least a
majority of the outstanding voting securities having ordinary voting power for
the election of directors or other governing body, or other ownership interests
ordinarily constituting a majority voting interest, is owned or controlled,
directly or indirectly, by such Person or by one or more Subsidiaries of such
Person, or by such Person and one or more Subsidiaries of such Person.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as amended
and as in effect on the date of this Indenture, except as provided in Section
8.3; provided, however, that if the Trust Indenture Act of 1939 is amended after
such date, "Trust Indenture Act" means, to the extent required by any such
amendment, the Trust Indenture Act of 1939 as so amended.
"Trustee" means the party named as such in the first paragraph of this
Indenture until a successor Trustee replaces it pursuant to the applicable
provisions of this Indenture, and thereafter means such successor Trustee and
if, at any time, there is more than one Trustee, "Trustee" as used with respect
to the Securities of any series shall mean the Trustee with respect to the
Securities of that series.
"United States" means, unless otherwise specified with respect to the
Securities of any series as contemplated by Section 3.1, the United States of
America (including the States
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thereof and the District of Columbia), its territories, its possessions and
other areas subject to its jurisdiction.
"U.S. Person" means, unless otherwise specified with respect to the
Securities of any series as contemplated by Section 3.1, a citizen, national or
resident of the United States, a corporation, partnership or other entity
created or organized in or under the laws of the United States or any political
subdivision thereof, or an estate or trust, the income of which is subject to
United States federal income taxation regardless of its source.
"Vice President", when used with respect to the Company, means any
Vice President of the Company whether or not designated by a number or a word or
words added before or after the title "Vice President."
(b) The following terms shall have the meanings specified in the
Sections referred to opposite such term below:
Term Section
- ---- -------
"Act" 1.4(a)
"Bankruptcy Law" 5.1
"Common Stock" 14.1(b)(i)
"covenant defeasance" 4.5
"Custodian" 5.1
"Defaulted Interest" 3.7(b)
"defeasance" 4.4
"Equity Securities" 14.1(b)
"Events of Default" 5.1
"NASDAQ" 14.3
"Preferred Stock" 14.1(b)(ii)
"Register" 3.5
"Registrar" 3.5
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Section 1.2 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 such certificates
and opinions as may be required under the Trust Indenture Act (including Section
314(c) of the Trust Indenture Act). Each such certificate or opinion shall be
given in the form of an Officers' Certificate, if to be given by an officer or
officers of the Company, or an Opinion of Counsel, if to be given by counsel,
and shall comply with the requirements of the Trust Indenture Act and any other
requirements set forth in this Indenture.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than pursuant to
Section 2.3, the last paragraph of Section 3.3 and Section 9.5) shall include:
(1) a statement that each individual signing such certificate or
opinion has read such condition or covenant and the definitions herein relating
thereto;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he or
she has made such examination or investigation as is necessary to enable him or
her to express an informed opinion as to whether or not such condition or
covenant has been complied with; and
(4) a statement as to whether, in the opinion of each such individual,
such condition or covenant has been complied with.
Section 1.3 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 20 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 or her certificate or opinion is
based are erroneous. Any such certificate or opinion or any 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 officer or counsel knows, or in the
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exercise of reasonable care should know, that the certificate or opinion or
representations as to such matters are erroneous.
Any certificate, statement or opinion of an officer of the Company or
of counsel may be based, insofar as it relates to accounting matters, upon a
certificate or opinion of or representations by an accountant or firm of
accountants in the employ of the Company, unless such officer or counsel, as the
case may be, knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to the accounting matters
upon which his certificate, statement or opinion is based 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 1.4 Acts of Holders. (a) Any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be given or taken by Holders may be embodied in and evidenced
by one or more instruments of substantially similar tenor signed (either
physically or by means of a facsimile or an electronic transmission, provided,
in the case of an electronic transmission, that it is transmitted through the
facilities of a Depositary) by such Holders in person or by agent or proxy duly
appointed in writing. If Securities of a series are issuable 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 of Securities of such series may, alternatively, be embodied in and
evidenced by the record of Holders of Securities of such series voting in favor
thereof pursuant to the third paragraph of Section 13.4, either in person or by
proxies duly appointed in writing, at any meeting of Holders of Securities of
such series duly called and held in accordance with the provisions of Article
13, 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 received (either physically or
by means of a facsimile or an electronic transmission, provided, in the case of
an electronic transmission, that it is transmitted through the facilities of a
Depositary) by the Trustee and, where it is hereby expressly required, to the
Company. Such instrument or instruments and 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 or, in the case of Holders of
Securities of a series issuable as Bearer Securities, so voting at such meeting.
The Company and the Trustee may assume that any Act of a Holder has not been
modified or revoked unless written notice to the contrary is received prior to
the time that the action to which such Act relates has become effective. Proof
of execution of any such instrument or of a writing appointing any such agent
shall be sufficient for any purpose of this Indenture and (subject to Section
315 of the Trust Indenture Act) 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 issuable as Bearer Securities shall be proved
in the manner provided in Section 13.6.
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(b) The fact and date of the execution by any Person of any such
instrument or writing and the authority of the Person executing the same may be
proved in any manner which the Trustee deems sufficient.
(c) The ownership of Bearer Securities may be proved by the
production of such Bearer Securities or by a certificate executed by any trust
company, bank, banker or other depository, 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 trust company,
bank, banker or other depository, 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 (i) another
such certificate or affidavit bearing a later date issued in respect of the same
Bearer Security is produced, (ii) such Bearer Security is produced to the
Trustee by some other Person, (iii) such Bearer Security is surrendered in
exchange for a Registered Security or (iv) such Bearer Security is no longer
Outstanding. The ownership of Bearer Securities may also be proved in any other
manner which the Trustee deems sufficient.
(d) The ownership of Registered Securities shall be proved by the
Register.
(e) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future Holder
of the same Security and any interest coupons appertaining thereto and the
Holder of every Security or interest coupon issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee or the Company in
reliance thereon, whether or not notation of such Act is made upon such Security
or interest coupon.
(f) If the Company shall solicit from the Holders any request,
demand, authorization, direction, notice, consent, waiver or other Act, the
Company may, at its option, by or pursuant to a Board Resolution, fix in advance
a record date for the determination of Holders of Registered Securities entitled
to give such request, demand, authorization, direction, notice, consent, waiver
or other Act, but the Company shall have no obligation to do so. Notwithstanding
Section 316(c) of the Trust Indenture Act, any such record date shall be the
record date specified in or pursuant to such Board Resolution, which shall be a
date not more than 30 days prior to the first solicitation of Holders generally
in connection therewith and no later than the date such first solicitation is
completed. If such a record date is fixed, such request, demand, authorization,
direction, notice, consent, waiver or other Act may be given before or after
such record date, but only the Holders of Registered Securities of record at the
close of business on such record date shall be deemed to be Holders for the
purposes of determining whether Holders of the requisite proportion of
Outstanding Securities have authorized or agreed or consented to such request,
demand, authorization, direction, notice, consent, waiver or other Act, and for
that purpose the Outstanding Securities shall be computed as of such record
date;
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provided that no such authorization, agreement or consent by the Holders on such
record date shall be deemed effective unless it shall become effective pursuant
to the provisions of this Indenture not later than six months after the record
date.
Without limiting the foregoing, a Holder entitled to give or 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 the principal amount of such Security to which such
appointment relates.
Section 1.5 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,
(1) 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 Corporate Trust Office, Attention: Corporate Trust
Department, or at any other address previously furnished in writing to the
Holders or the Company by the Trustee, or, with respect to notices by the
Company, transmitted by facsimile transmission (confirmed by guaranteed
overnight courier) to the following facsimile number: __________ or to any other
facsimile number previously furnished in writing to the Company by the Trustee,
or
(2) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if in
writing and mailed, first-class postage prepaid, addressed to it at the address
of the Company's principal office specified in the first paragraph of this
instrument or at any other address previously furnished in writing to the
Trustee by the Company or, with respect to notices by the Trustee, transmitted
by facsimile transmission (confirmed by guaranteed overnight courier) to the
following facsimile number: __________ or to any other facsimile number
previously furnished in writing to the Trustee by the Company.
Section 1.6 Notice to Holders; Waiver. Where this Indenture
provides for notice to Holders of any event, (i) if any of the Securities
affected by such event are Registered Securities, such notice to the Holders
thereof shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each such Holder
affected by such event, at his or her address as it appears in the Register,
within the time prescribed for the giving of such notice, and (ii) if any of the
Securities affected by such event are Bearer Securities, notice to the Holders
thereof shall be sufficiently given (unless otherwise herein or in the terms of
such Bearer Securities expressly provided) if published once in an Authorized
Newspaper in New York, New York, and in such other city or cities, if any, as
may be specified as contemplated by Section 3.1. Such notices shall be deemed
to have been given on the date of such mailing or publication.
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In any case where notice to Holders is given by mail or by
publication, neither the failure to mail or publish such notice, nor any defect
in any notice so mailed or published, to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders of Registered
Securities or of Bearer Securities. Any notice mailed to a Holder in the manner
herein prescribed shall be conclusively deemed to have been received by such
Holder, whether or not such Holder actually receives such notice.
If by reason of the suspension of regular mail service or by reason of
any other cause it shall be impracticable to give such notice as provided above,
then such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder. If it is
impossible or, in the opinion of the Trustee, impracticable to give any notice
by publication in the manner herein required, then such publication in lieu
thereof as shall be made with the approval of the Trustee shall constitute a
sufficient publication of such notice.
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.
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 equivalent of such notice.
Waivers of notice by Holders shall be filed with the Trustee, but such filing
shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
In case by reason of suspension of regular mail service or any other
cause it shall be impracticable to give such notice by mail, then such
notification as shall be made with the approval of the Trustee shall constitute
sufficient notification for every purpose hereunder.
Section 1.7 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 1.8 Successor and Assigns. All covenants and agreements in
this Indenture by the Company shall bind its successors and assigns, whether so
expressed or not.
Section 1.9 Separability. In case any provision of this Indenture
or 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 1.10 Benefits of Indenture. Nothing in this Indenture or in
the Securities, expressed or implied, 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.
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Section 1.11 Incorporators, Stockholders, Officers and Directors of
the Company Exempt from Individual Liability. No recourse under or upon any
obligation, covenant or agreement of or contained in this Indenture or of or
contained in any Security or interest coupon appertaining thereto, or for any
claim based thereon or otherwise in respect thereof, or because of any
indebtedness represented thereby, shall be had against any incorporator,
stockholder, officer or director, as such, past, present or future, of the
Company or any successor Person, either directly or through the Company or any
successor Person, whether by virtue of any constitution, statute or rule of law,
by the enforcement of any assessment or penalty, by any legal or equitable
proceeding or otherwise; it being expressly understood that all such liability
is hereby expressly waived and released as a condition of the acceptance of, and
as a part of the consideration for the execution of this Indenture and the
issuance of, the Securities and any interest coupons appertaining thereto.
Section 1.12 Governing Law; Conflict with Trust Indenture Act. THIS
INDENTURE, THE SECURITIES AND ANY INTEREST COUPONS APPERTAINING THERETO SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
This Indenture is subject to the Trust Indenture Act and if any provision hereof
limits, qualifies or conflicts with the Trust Indenture Act, the Trust Indenture
Act shall control. Whether or not this Indenture is required to be qualified
under the Trust Indenture Act, the provisions of the Trust Indenture Act
required to be included in an indenture in order for such indenture to be so
qualified shall be deemed to be included in this Indenture with the same effect
as if such provisions were set forth herein and any provisions hereof which may
not be included in an indenture which is so qualified shall be deemed to be
deleted or modified to the extent such provisions would be required to be
deleted or modified in an indenture so qualified.
Section 1.13 Legal Holidays. In any case where any Interest Payment
Date, Redemption Date, sinking fund payment date, Stated Maturity or Maturity of
any Security shall not be a Business Day at any Place of Payment, then
(notwithstanding any other provision of this Indenture or of any Security or
interest coupon other than a provision in the Securities of any series which
specifically states that such provision shall apply in lieu of this Section),
payment of principal, premium, if any, or interest need not be made at such
Place of Payment on such date, but may be made on the next succeeding Business
Day at such Place of Payment with the same force and effect as if made on such
date; provided that no interest shall accrue on the amount so payable for the
period from and after such Interest Payment Date, Redemption Date, sinking fund
payment date, Stated Maturity or Maturity, as the case may be, if such amount is
so paid on the next succeeding Business Day.
Section 1.14 Moneys of Different Currencies to Be Segregated. The
Trustee shall make provision for the segregation of all moneys, funds and
accounts held by the Trustee hereunder in one currency from any
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moneys, funds or accounts in any other currencies, notwithstanding any provision
herein which would otherwise permit the Trustee to commingle such amounts.
Section 1.15 Independence of Covenants. All covenants and
agreements in this Indenture shall be given independent effect so that if a
particular action or condition is not permitted by any such covenant, the fact
that it would be permitted by an exception to, or be otherwise within the
limitations of, another covenant shall not avoid 26 the occurrence of a Default
or an Event of Default if such action is taken or condition exists.
Section 1.16 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.
ARTICLE 2
SECURITY FORMS
Section 2.1 Forms Generally. The Securities of each series and the
interest coupons, if any, to be attached thereto shall be in substantially such
form as shall be established by or pursuant to a Board Resolution or in one or
more indentures supplemental hereto, in each case with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture, and may have such letters, numbers or other marks
of identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any applicable securities exchange,
organizational document, governing instrument or law or as may, consistently
herewith, be determined by the officers executing such Securities and interest
coupons, if any, as evidenced by their execution of the Securities and interest
coupons, if any. If temporary Securities of any series are issued as permitted
by Section 3.4, the form thereof also shall be established as provided in the
preceding sentence. If the forms of Securities and interest coupons, if any, of
any series are established by, or by action taken pursuant to, a Board
Resolution, a copy of the Board Resolution together with an appropriate record
of any such action taken pursuant thereto, including a copy of the approved form
of Securities or interest coupons, if any, shall be delivered to the Trustee at
or prior to the delivery of the Company Order contemplated by Section 3.3 for
the authentication and delivery of such Securities.
Unless otherwise specified as contemplated by Section 3.1, Bearer
Securities shall have interest coupons attached.
The definitive Securities and interest coupons, if any, may be
printed, lithographed or engraved on steel engraved borders or may be produced
in any other manner (or, if such Securities are listed on any securities
exchange, any other manner permitted by the rules of such securities exchange),
all as determined by the officers executing such Securities and
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interest coupons, if any, as evidenced by their execution of such Securities and
interest coupons, if any.
Section 2.2 Form of Trustee's Certificate of Authentication. The
Trustee's certificate of authentication shall be in substantially the following
form:
This is one of the Securities of the series described in the within-
mentioned Indenture.
_______________________________,
as Trustee
By:
---------------------------
Authorized Signatory
Section 2.3 Securities in Global Form. If Securities of or within
a series are issuable in whole or in part in global form, any such Security may
provide that it shall represent the aggregate or specified amount of Outstanding
Securities from time to time endorsed thereon and may also provide that the
aggregate amount of Outstanding Securities represented thereby may from time to
time be reduced or increased to reflect exchanges. Any endorsement of a
Security in global form to reflect the amount, or any increase or decrease in
the amount, or changes in the rights of Holders, of Outstanding Securities
represented thereby, shall be made in such manner and by such Person or Persons
as shall be specified therein or in the Company Order to be delivered to the
Trustee pursuant to Section 3.3 or 3.4. Subject to the provisions of Section
3.3, Section 3.4, if applicable, and Section 3.5, the Trustee shall deliver and
redeliver any Security in permanent global form in the manner and upon
instructions given by the Person or Persons specified therein or in the
applicable Company Order. Any instructions by the Company with respect to
endorsement or delivery or redelivery of a Security in global form shall be in
writing but need not comply with Section 1.2 hereof and need not be accompanied
by an Officers' Certificate or an Opinion of Counsel.
The provisions of the last paragraph of Section 3.3 shall apply to any
Security in global form if such Security was never issued and sold by the
Company and the Company delivers to the Trustee the Security in global form
together with written instructions (which need not comply with Section 1.2
hereof and need not be accompanied by an Officers' Certificate or an Opinion of
Counsel) with regard to the reduction in the principal amount of Securities
represented thereby, together with the written statement contemplated by the
last paragraph of Section 3.3.
Notwithstanding the provisions of Section 2.1 and 3.7, unless
otherwise specified as contemplated by Section 3.1, payment of principal of,
premium, if any, and interest on any Registered Security in permanent global
form shall be made to the registered holder thereof.
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Section 2.4 Form of Legend for Securities in Global Form. Any
Security in global form authenticated and delivered hereunder shall bear a
legend in substantially the following form or in such other form as may be
specified in accordance with Section 3.1:
"THIS SECURITY IS IN GLOBAL FORM WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE OF A DEPOSITARY. UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART
FOR SECURITIES IN CERTIFICATED FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT
AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF
THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE
DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH
SUCCESSOR DEPOSITARY."
ARTICLE 3
THE SECURITIES
Section 3.1 Amount Unlimited; Issuable in Series. (a) The
aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited. The Securities may be issued from
time to time in one or more series.
(b) The following matters shall be established with respect to each
series of Securities issued hereunder (i) by a Board Resolution, (ii) by action
taken pursuant to a Board Resolution and (subject to Section 3.3) set forth, or
determined in the manner provided, in an Officers' Certificate or (iii) in one
or more indentures supplemental hereto:
(1) the title of the Securities of the series (which title shall
distinguish the Securities of the series from all other series of Securities);
(2) any limit upon the aggregate principal amount of the Securities of
the series which may be authenticated and delivered under this Indenture (which
limit shall not pertain to Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other Securities
of the series pursuant to Section 3.4, 3.5, 3.6, 8.6 or 11.7 or any Securities
that, pursuant to Section 3.3, are deemed never to have been authenticated and
delivered hereunder);
(3) the date or dates on which the principal of and premium, if any,
on the Securities of the series is payable or the method or methods of
determination thereof;
(4) the rate or rates at which the Securities of the series shall bear
interest, if any, or the method or methods of calculating such rate or rates of
interest, the date or dates from which such interest shall accrue or the method
or methods by which such date or dates shall be
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determined, the Interest Payment Dates on which any such interest shall be
payable, the right, if any, of the Company to defer or extend an Interest
Payment Date and, with respect to Registered Securities, the Regular Record
Date, if any, for the interest payable on any Registered Security on any
Interest Payment Date, and the basis upon which interest shall be calculated if
other than that of a 360-day year of twelve 30-day months;
(5) the place or places where the principal of, premium, if any, and
interest, if any, on Securities of the series shall be payable, any Registered
Securities of the series may be surrendered for registration of transfer,
Securities of the series may be surrendered for exchange and notices and demands
to or upon the Company in respect of the Securities of the series and this
Indenture may be served and where notices to Holders pursuant to Section 1.6
will be published;
(6) the period or periods within which, the price or prices at which,
the currency or currencies (including currency unit or units) in which, and the
other terms and conditions upon which, Securities of the series may be redeemed,
in whole or in part, at the option of the Company and, if other than as provided
in Section 11.3, the manner in which the particular Securities of such series
(if less than all Securities of such series are to be redeemed) are to be
selected for redemption;
(7) the obligation, if any, of the Company to redeem or purchase
Securities of the series pursuant to any sinking fund or analogous provisions or
upon the happening of a specified event or at the option of a Holder thereof and
the period or periods within which, the price or prices at which, the currency
or currencies (including currency unit or units) in which, and the other terms
and conditions upon which, Securities of the series shall be redeemed or
purchased, in whole or in part, pursuant to such obligation;
(8) if other than denominations of $1,000 and any integral multiple
thereof, if Registered Securities, and if other than denominations of $5,000 and
any integral multiple thereof, if Bearer Securities, the denominations in which
Securities of the series shall be issuable;
(9) if other than Dollars, the currency or currencies (including
currency unit or units) in which the principal of, premium, if any, and
interest, if any, on the Securities of the series shall be payable, or in which
the Securities of the series shall be denominated, and the particular provisions
applicable thereto in accordance with, in addition to, or in lieu of the
provisions of Section 3.12;
(10) if the payments of principal of, premium, if any, or interest, if
any, on the Securities of the series are to be made, at the election of the
Company or a Holder, in a currency or currencies (including currency unit or
units) other than that in which such Securities are denominated or designated to
be payable, the currency or currencies (including currency unit or units) in
which such payments are to be made, the terms and conditions of such payments
and
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the manner in which the exchange rate with respect to such payments shall be
determined, and the particular provisions applicable thereto in lieu of the
provisions of Section 3.12;
(11) if the amount of payments of principal of, premium, if any, and
interest, if any, on the Securities of the series shall be determined with
reference to an index, formula or other method (which index, formula or method
may be based, without limitation, on a currency or currencies (including
currency unit or units) other than that in which the Securities of the series
are denominated or designated to be payable), the index, formula or other method
by which such amounts shall be determined and any special voting or defeasance
provisions in connection therewith;
(12) if other than the principal amount thereof, the portion of the
principal amount of such Securities of the series which shall be payable upon
declaration of acceleration thereof pursuant to Section 5.2 or the method by
which such portion shall be determined;
(13) if other than as provided in Section 3.7, the Person to whom any
interest on any Registered Security of the series shall be payable and the
manner in which, or the Person to whom, any interest on any Bearer Securities of
the series shall be payable;
(14) provisions, if any, granting special rights to the Holders of
Securities of the series upon the occurrence of such events as may be specified;
(15) any deletions from, modifications of or additions to the Events
of Default set forth in Section 5.1 or covenants of the Company set forth in
Article 9 pertaining to the Securities of the series;
(16) under what circumstances, if any, and with what procedures and
documentation the Company will pay additional amounts on the Securities and
interest coupons, if any, of that series held by a Person who is not a U.S.
Person (including any modification of the definition of such term) in respect of
taxes, assessments or similar charges withheld or deducted and, if so, whether
the Company will have the option to redeem such Securities rather than pay such
additional amounts (and the terms of any such option);
(17) whether Securities of the series shall be issuable as Registered
Securities or Bearer Securities (with or without interest coupons), or both, and
any restrictions applicable to the offering, sale, transfer or delivery of
Bearer Securities and, if other than as provided in Section 3.5, the terms upon
which Bearer Securities of a series may be exchanged for Registered Securities
of the same series and vice versa;
(18) the date as of which any Bearer Securities of the series and any
temporary global Security representing Outstanding Securities of the series
shall be dated if other than the date of original issuance of the first Security
of the series to be issued;
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(19) the forms of the Securities and interest coupons, if any, of the
series;
(20) the applicability, if any, to the Securities and interest
coupons, if any, of or within the series of Sections 4.4 and 4.5, or such other
means of defeasance or covenant defeasance as may be specified for the
Securities and interest coupons, if any, of such series, and whether, for the
purpose of such defeasance or covenant defeasance, the term "Government
Obligations" shall include obligations referred to in the definition of such
term which are not obligations of the United States or an agency or
instrumentality of the United States;
(21) if other than the Trustee, the identity of the Registrar and any
Paying Agent;
(22) if the Securities of the series shall be issued in whole or in
part in global form, (i) the Depositary for such global Securities, (ii) whether
beneficial owners of interests in any Securities of the series in global form
may exchange such interests for certificated Securities of such series, to be
registered in the names of or to be held by such beneficial owners or their
nominees and to be of like tenor of any authorized form and denomination, and
(iii) if other than as provided in Section 3.5, the circumstances under which
any such exchange may occur;
(23) the designation of the Depositary;
(24) any restrictions on the registration, transfer or exchange of the
Securities;
(25) if the Securities of the series may be issued or delivered
(whether upon original issuance or upon exchange of a temporary Security of such
series or otherwise), or any installment of principal or interest is payable,
only upon receipt of certain certificates or other documents or satisfaction of
other conditions in addition to those specified in this Indenture, the form and
terms of such certificates, documents or conditions;
(26) the terms and conditions of any right to convert or exchange
Securities of the series into or for Equity Securities of the Company or other
securities or property of the Company;
(27) whether the Securities are secured or unsecured, and if secured,
the Security and related terms in connection therewith; and
(28) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture) including any terms which
may be required by or advisable under United States laws or regulations or
advisable (as determined by the Company) in connection with the marketing of
Securities of the series.
(c) All Securities of any one series and interest coupons, if any,
appertaining thereto shall be substantially identical except as to denomination
and except as may otherwise be
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provided (i) by a Board Resolution, (ii) by action taken pursuant to a Board
Resolution and (subject to Section 3.3) set forth, or determined in the manner
provided, in the related Officers' Certificate or (iii) in an indenture
supplemental hereto. All Securities of any one series need not be issued at the
same time and, unless otherwise provided, a series may be reopened, without the
consent of the Holders, for issuances of additional Securities of such series.
(d) If any of the terms of the Securities of any series are
established by action taken pursuant to a Board Resolution, a copy of such Board
Resolution shall be delivered to the Trustee at or prior to the delivery of the
Officers' Certificate setting forth, or providing the manner for determining,
the terms of the Securities of such series, and an appropriate record of any
action taken pursuant thereto in connection with the issuance of any Securities
of such series shall be delivered to the Trustee prior to the authentication and
delivery thereof.
Section 3.2 Denominations. Unless otherwise provided as
contemplated by Section 3.1, any Registered Securities of a series denominated
in Dollars shall be issuable in denominations of U.S. $1,000 and any integral
multiple thereof and any Bearer Securities of a series denominated in Dollars
shall be issuable in the denomination of U.S. $5,000 and any integral multiple
thereof. Securities denominated in a Foreign Currency shall be issuable in such
denominations as are established with respect to such Securities in or pursuant
to this Indenture.
Section 3.3 Execution, Authentication, Delivery and Dating.
Securities shall be executed on behalf of the Company by the Chairman of the
Board, the President, the Chief Executive Officer, the Chief Operating Officer,
the Chief Financial Officer or any Vice President of the Company, and need not
be attested. The Company's seal shall be reproduced on the Securities. The
signatures of any of these officers on the Securities may be manual or
facsimile. The interest coupons, if any, of Bearer Securities shall bear the
facsimile signature of the Chairman of the Board, the President, the Chief
Executive Officer, the Chief Operating Officer, the Chief Financial Officer or
any Vice President of the Company, and need not be attested.
Securities and interest coupons bearing the manual or facsimile
signatures of individuals who were at any time Officers of the Company shall
bind the Company, notwithstanding that such individuals or any of them have
ceased to be Officers prior to the authentication and delivery of such
Securities or were not Officers at the date of such Securities.
At any time and from time to time, the Company may deliver Securities,
together with any interest coupons appertaining thereto, of any series executed
by the Company to the Trustee for authentication, together with a Company Order
for the authentication and delivery of such Securities, and the Trustee in
accordance with such Company Order shall authenticate and deliver such
Securities to or upon the order of the Company (as set forth in such Company
Order); provided, however, that, in the case of Securities of a series offered
in a Periodic Offering, the Trustee shall authenticate and deliver such
Securities from time to time in accordance with such other procedures
(including, without limitation, the receipt by the Trustee
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of oral or electronic instructions from the Company or its duly authorized
agents, promptly confirmed in writing) acceptable to the Trustee as may be
specified by or pursuant to a Company Order delivered to the Trustee prior to
the time of the first authentication of Securities of such series.
If the form or terms of the Securities of a series have been
established by or pursuant to one or more Board Resolutions or one or more
indentures supplemental hereto as permitted by Sections 2.1 and 3.1, 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 315(a) through (d) of the Trust
Indenture Act) shall be fully protected in relying upon,
(i) an Opinion of Counsel stating:
(1) if the form or forms of such Securities and any interest coupons
have been established by or pursuant to a Board Resolution as permitted by
Section 2.1, that such forms have been established in conformity with the
provisions of this Indenture;
(2) if the terms of such Securities and any interest coupons have
been, or, in the case of Securities of a series offered in a Periodic Offering,
will be, established by or pursuant to a Board Resolution as permitted by
Section 3.1, that such terms have been, or, in the case of Securities of a
series offered in a Periodic Offering, will be, established in conformity with
the provisions of this Indenture, subject, in the case of Securities offered in
a Periodic Offering, to any conditions specified in such Opinion of Counsel;
(3) if the form or terms of such Securities have been established in
an indenture supplemental hereto, that such supplemental indenture has been duly
authorized, executed and delivered by the Company and, when duly authorized,
executed and delivered by the Trustee, will constitute a legal, valid and
binding obligation enforceable against the Company in accordance with its terms,
subject to (i) bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and other similar laws of general applicability relating to or
affecting the enforcement of creditors' rights and to general principles of
equity (regardless of whether enforcement is sought in a proceeding in equity or
at law), and (ii) such other reasonable exceptions as may be specified in such
Opinion of Counsel; and
(4) that such Securities, together with any interest coupons
appertaining thereto, when issued by the Company and authenticated and delivered
by the Trustee 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 (i) bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium
and other similar laws of general applicability relating to or affecting the
enforcement of creditors' rights and to general equity principles (regardless of
whether enforcement is sought in a proceeding in equity or at law) and except
further as enforcement
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thereof may be limited by (A) requirements that a claim with respect to any
Securities denominated other than in Dollars (or a Foreign Currency or currency
unit judgment in respect of such claim) be converted into U.S. dollars at a rate
of exchange prevailing on a date determined pursuant to applicable law or (B)
governmental authority to limit, delay or prohibit the making of payments in
Foreign Currencies or currency units or payments outside the United States, and
(ii) such other reasonable exceptions as may be specified in such Opinion of
Counsel; and
(ii) an Officers' Certificate stating that all conditions precedent
provided for in this Indenture relating to the issuance of such Securities have
been complied with and that, to the knowledge of the signers of such
certificate, no Event of Default with respect to such Securities shall have
occurred and be continuing.
Notwithstanding that such form or terms have been so established, the
Trustee shall have the right to decline to authenticate such Securities if, in
the opinion of the Trustee (after consultation with counsel), the issue of such
Securities pursuant to this Indenture will materially adversely affect the
Trustee's own rights, duties or immunities under this Indenture or otherwise or
if the Trustee determines (after consultation with counsel) that such
authentication may not lawfully be made.
Notwithstanding the provisions of Section 3.1 and of the two preceding
paragraphs, if all of the Securities of any series are not to be issued at one
time, it shall not be necessary to deliver the Officers' Certificate otherwise
required pursuant to Section 3.1 or the Company Order and Opinion of Counsel
otherwise required pursuant to the two preceding paragraphs in connection with
the authentication of each Security of such series if such documents, with
appropriate modifications to cover such future issuances, are delivered at or
prior to the authentication upon original issuance of the first Security of such
series to be issued.
With respect to Securities of a series offered in a Periodic Offering,
the Trustee may rely, as to the authorization by the Company of any of such
Securities, the form and terms thereof and the legality, validity, binding
effect and enforceability thereof, upon the Opinion of Counsel and the other
documents delivered pursuant to Sections 2.1 and 3.1 and this Section, as
applicable, in connection with the first authentication of Securities of such
series.
If the Company shall establish pursuant to Section 3.1 that the
Securities of a series are to be issued in whole or in part in global form, then
the Company shall execute and the Trustee shall, in accordance with this Section
and the Company Order with respect to such series, authenticate and deliver one
or more Securities in global form that (i) shall represent and shall be
denominated in an amount equal to the aggregate principal amount of the
Outstanding Securities of such series to be represented by such Security or
Securities in global form, (ii) shall be registered, if a Registered Security,
in the name of the Depositary for such Security or Securities in global form or
the nominee of such Depositary, (iii) shall be delivered by the Trustee to such
Depositary or pursuant to such Depositary's instruction and (iv) shall bear the
legend set forth in Section 2.4.
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Each Depositary designated pursuant to Section 3.1 for a Registered
Security in global form must, at the time of its designation and at all times
while it serves as Depositary, be a clearing agency registered under the
Securities Exchange Act of 1934 and any other applicable statute or regulation.
If requested by the Company, the Trustee shall enter into an agreement with a
Depositary governing the respective duties and rights of such Depositary and the
Trustee with regard to Securities issued in global form.
Each Registered Security shall be dated the date of its authentication
and each Bearer Security shall be dated as of the date specified pursuant to
Section 3.1.
No Security or interest coupon appertaining thereto shall be entitled
to any benefits under this Indenture or be valid or obligatory for any purpose
until authenticated by the manual signature of one of the authorized signatories
of the Trustee or an Authenticating Agent and no interest coupon shall be valid
until the Security to which it appertains has been so authenticated. Such
signature upon any Security shall be conclusive evidence, and the only evidence,
that such Security has been duly authenticated and delivered under this
Indenture and is entitled to the benefits of this Indenture. Except as permitted
by Section 3.6 or 3.7, the Trustee shall not authenticate and deliver any Bearer
Security unless all appurtenant interest coupons for interest then matured have
been detached and canceled.
Notwithstanding the foregoing, if any Security shall have been
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 3.9 together with a written statement (which need not comply
with Section 1.2 hereof and need not be accompanied by an Officers' Certificate
or an Opinion of Counsel) stating that such Security 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 not be
entitled to the benefits of this Indenture.
Section 3.4 Temporary Securities. Pending the preparation of
definitive Securities of any series, the Company may execute and, upon Company
Order, the Trustee shall authenticate and deliver temporary Securities of such
series which are printed, lithographed, typewritten, mimeographed or otherwise
produced, in any authorized denomination, substantially of the tenor and form,
with or without interest coupons, of the definitive Securities in lieu of which
they are issued and with such appropriate insertions, omissions, substitutions
and other variations as the officers executing such Securities may determine, as
conclusively evidenced by their execution of such Securities and interest
coupons, if any. In the case of Securities of any series, such temporary
Securities may be in global form, representing all or a portion of the
Outstanding Securities of such series.
Except in the case of temporary Securities in global form, each of
which shall be exchanged in accordance with the provisions thereof, if temporary
Securities of any series are issued, the Company will cause definitive
Securities of such series to be prepared without
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unreasonable delay. After preparation of definitive Securities of such series,
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 pursuant to Section 9.2 in a Place
of Payment for such series, without charge to the Holder. Upon surrender for
cancellation of any one or more temporary Securities of any series (accompanied
by any unmatured interest coupons appertaining thereto), the Company shall
execute and the Trustee shall authenticate and deliver in exchange therefor a
like principal amount of definitive Securities of the same series of authorized
denominations and of like tenor; provided, however, that no definitive Bearer
Security shall be delivered in exchange for a temporary Registered Security; and
provided, further, that no definitive Bearer Security shall be delivered in
exchange for a temporary Bearer Security unless such delivery shall occur only
outside the United States. 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 except as otherwise specified
as contemplated by Section 3.1.
Section 3.5 Registration, Transfer and Exchange. The Company shall
cause to be kept at the Corporate Trust Office of the Trustee or in any office
or agency to be maintained by the Company in accordance with Section 9.2 in a
Place of Payment a register (the "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. The Register shall be in written form or any other form
capable of being converted into written form within a reasonable time. The
Trustee is hereby initially appointed "Registrar" for the purpose of registering
Registered Securities and transfers of Registered Securities as herein provided.
Upon surrender for registration of transfer of any Registered Security
of any series at the office or agency maintained pursuant to Section 9.2 in a
Place of Payment for that 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 the same series, of any
authorized denominations and of a like aggregate principal amount and tenor and
containing identical terms and provisions.
Bearer Securities (except for any temporary global Bearer Securities)
or any interest coupons appertaining thereto (except for interest coupons
attached to any temporary global Bearer Security) shall be transferable by
delivery.
At the option of the Holder, Registered Securities of any series
(except a Registered Security in global form) may be exchanged for other
Registered Securities of the same series, of any authorized denominations, of a
like aggregate principal amount and tenor and containing identical terms and
provisions, upon surrender of the Registered Securities to be exchanged at such
office or agency. Whenever any Registered Securities are so surrendered for
exchange, the Company shall execute, and the Trustee shall authenticate and
deliver, the Registered Securities which the Holder making the exchange is
entitled to receive. Unless
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otherwise specified as contemplated by Section 3.1, Bearer Securities may not be
issued in exchange for Registered Securities.
Unless otherwise specified as contemplated by Section 3.1, at the
option of the Holder, Bearer Securities of such series may be exchanged for
Registered Securities (if the Securities of such series are issuable in
registered form) or Bearer Securities (if Bearer Securities of such series are
issuable in more than one denomination and such exchanges are permitted by such
series) of the same series, of any authorized denominations, of like aggregate
principal amount and tenor and containing identical terms and conditions, upon
surrender of the Bearer Securities to be exchanged at any such office or agency,
with all unmatured interest coupons and all matured interest coupons in default
thereto appertaining. If the Holder of a Bearer Security is unable to produce
any such unmatured interest coupon or coupons or matured interest coupon or
coupons in default, such exchange may be effected if the Bearer Securities are
accompanied by payment in funds acceptable to the Company and the Trustee in an
amount equal to the face amount of such missing interest coupon or coupons, or
the surrender of such missing interest coupon or interest 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 interest coupon in respect of which such a payment
shall have been made, such Holder shall be entitled to receive the amount of
such payment; provided, however, that, except as otherwise provided in Section
9.2, interest represented by interest coupons shall be payable only upon
presentation and surrender of those interest coupons at an office or agency
located outside the United States. Notwithstanding the foregoing, in case any
Bearer Security of any series is surrendered at any such office or agency in
exchange for a Registered Security of the same series 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 interest coupon relating to
such Interest Payment Date or proposed date of payment, as the case may be (or,
if such interest coupon is so surrendered with such Bearer Security, such
interest coupon shall be returned to the Person so surrendering the Bearer
Security), and interest or Defaulted Interest, as the case may be, will not be
payable on such Interest Payment Date or proposed date for payment, as the case
may be, in respect of the Registered Security issued in exchange for such Bearer
Security, but will be payable only to the Holder of such interest coupon, when
due in accordance with the provisions of this Indenture.
Notwithstanding anything herein to the contrary, the exchange of
Bearer Securities for Registered Securities shall be subject to applicable laws
and regulations in effect at the time of exchange. Neither the Company, the
Trustee nor the Registrar shall exchange any Bearer Securities for Registered
Securities if it has received an Opinion of Counsel that as a result of such
exchange 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 thereafter,
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unless and until the Trustee receives a subsequent Company Order to the
contrary. The Company shall deliver copies of such Company Order to the
Registrar.
Notwithstanding any other provision of this Section, unless and until
it is exchanged in whole or in part for Securities in certificated form, a
Security in global form 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.
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 3.3, 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 prior to the resignation of the Depositary and, in any event, within
90 days after the Company receives such notice or becomes aware of such
ineligibility, the Company's designation of the Depositary pursuant to Section
3.1(b)(23) shall no longer be effective with respect to the Securities of such
series and the Company shall execute, and the Trustee, upon receipt of a Company
Order for the authentication and delivery of certificated Securities of such
series of like tenor, shall authenticate and deliver, Securities of such series
of like tenor in certificated form, in authorized denominations and in an
aggregate principal amount equal to the principal amount of the Security or
Securities of such series of like tenor in global form in exchange for such
Security or Securities in global form.
The Company may at any time in its sole discretion determine that
Securities issued in global form shall no longer be represented by such a
Security or Securities in global form. In such event the Company shall execute,
and the Trustee, upon receipt of a Company Order for the authentication and
delivery of certificated Securities of such series of like tenor, shall
authenticate and deliver, Securities of such series of like tenor in
certificated form, in authorized denominations and in an aggregate principal
amount equal to the principal amount of the Security or Securities of such
series of like tenor in global form in exchange for such Security or Securities
in global form.
If specified by the Company pursuant to Section 3.1 with respect to a
series of Securities, the Depositary for such series may surrender a Security in
global form of such series in exchange in whole or in part for Securities of
such series in certificated form on such terms as are acceptable to the Company
and such Depositary. Thereupon, the Company shall execute, and the Trustee
shall authenticate and deliver, without service charge,
(i) to each Person specified by such Depositary a new
certificated Security or Securities of the same series of like tenor,
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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 Security in global form;
and
(ii) to such Depositary a new Security in global form of like
tenor in a denomination equal to the difference, if any, between the
principal amount of the surrendered Security in global form and the
aggregate principal amount of certificated Securities delivered to
Holders thereof.
Upon the exchange of a Security in global form for Securities in
certificated form, such Security in global form shall be canceled by the
Trustee. Unless expressly provided with respect to the Securities of any series
that such Security may be exchanged for Bearer Securities, Securities in
certificated form issued in exchange for a Security in global form pursuant to
this Section shall be registered in such names and in such authorized
denominations as the Depositary for such Security in global form, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee in writing. The Trustee shall deliver such Securities to
the Persons in whose names such Securities are so registered.
Whenever any Securities are 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.
All Securities issued upon any registration of transfer or upon any
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 Registered Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company, the Registrar or
the Trustee) be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the Company, the Registrar and the Trustee duly
executed by the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
for any exchange of Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any registration or transfer or exchange of Securities, other
than exchanges pursuant to Section 3.4 or 11.7 not involving any transfer.
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The Company shall not be required (i) to issue, register the transfer
of, or exchange any Securities for a period beginning at the opening of business
15 days before any selection for redemption of Securities of like tenor and of
the series of which such Security is a part and ending at the close of business
on the earliest date on which the relevant notice of redemption is deemed to
have been given to all Holders of Securities of like tenor and of such series to
be redeemed; (ii) to register the transfer of or exchange any Registered
Security so selected for redemption, in whole or in part, except the unredeemed
portion of any Security being redeemed in part; or (iii) to exchange any Bearer
Security so selected for redemption, except that such a Bearer Security may be
exchanged for a Registered Security of that series and like tenor; provided that
such Registered Security shall be simultaneously surrendered for redemption.
The foregoing provisions relating to registration, transfer and
exchange may be modified, supplemented or superseded with respect to any series
of Securities by a Board Resolution or in one or more indentures supplemental
hereto.
Section 3.6 Replacement Securities. If a mutilated Security or a
Security with a mutilated interest coupon appertaining to it is surrendered to
the Trustee, together with, in proper cases, such security or indemnity as may
be required by the Company or the Trustee to save each of them harmless, the
Company shall execute and the Trustee shall authenticate and deliver a
replacement Registered Security, if such surrendered Security was a Registered
Security, or a replacement Bearer Security with interest coupons corresponding
to the interest coupons appertaining to the surrendered Security, if such
surrendered Security was a Bearer Security, of the same series and date of
maturity.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any Security
or Security with a destroyed, lost or stolen interest coupon and (ii) such
security or indemnity as may be required by them to save each of them and any
agent of either of them harmless, then, in the absence of notice to the Company
or the Trustee that such Security or interest coupon has been acquired by a bona
fide purchaser, the Company shall execute and the Trustee shall authenticate and
deliver in lieu of any such destroyed, lost or stolen Security or in exchange
for the Security to which a destroyed, lost or stolen interest coupon appertains
(with all appurtenant interest coupons not destroyed, lost or stolen), a
replacement Registered Security, if such Holder's claim appertains to a
Registered Security, or a replacement Bearer Security with interest coupons
corresponding to the interest coupons appertaining to the destroyed, lost or
stolen Bearer Security or the Bearer Security to which such lost, destroyed or
stolen interest coupon appertains, if such Holder's claim appertains to a Bearer
Security, of the same series and principal amount, containing identical terms
and provisions and bearing a number not contemporaneously outstanding with
interest coupons corresponding to the interest coupons, if any, appertaining to
the destroyed, lost or stolen Security.
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In case any such mutilated, destroyed, lost or stolen Security or
interest coupon has become or is about to become due and payable, the Company in
its discretion may, instead of issuing a new Security or interest coupon, pay
such Security or interest coupon; provided, however, that payment of principal
of and any premium or interest on Bearer Securities shall, except as otherwise
provided in Section 9.2, be payable only at an office or agency located outside
the United States and, unless otherwise specified as contemplated by Section
3.1, any interest on Bearer Securities shall be payable only upon presentation
and surrender of the interest 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, its agents and
counsel) connected therewith.
Every new Security of any series with its interest coupons, if any,
issued pursuant to this Section in lieu of any destroyed, lost or stolen
Security, or in exchange for a Security to which a destroyed, lost or stolen
interest coupon appertains, shall constitute an original additional contractual
obligation of the Company, whether or not the destroyed, lost or stolen Security
and its interest coupon, if any, or the destroyed, lost or stolen interest
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 that series and their interest 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 interest
coupons.
Section 3.7 Payment of Interest; Interest Rights Preserved. (a)
Unless otherwise provided as contemplated by Section 3.1, interest, if any, on
any Registered Security which is payable, and is punctually paid or duly
provided for, on any Interest Payment Date shall be paid to the Person in whose
name that Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest at the office or
agency maintained for such purpose pursuant to Section 9.2; provided, however,
that at the option of the Company, interest on any series of Registered
Securities that bear interest may be paid (i) by check mailed to the address of
the Person entitled thereto as it shall appear on the Register of Holders of
Securities of such series or (ii) at the expense of the Company, by wire
transfer to an account maintained by the Person entitled thereto as specified in
the Register of Holders of Securities of such series.
Unless otherwise provided as contemplated by Section 3.1, (i)
interest, if any, on Bearer Securities shall be paid only against presentation
and surrender of the interest coupons for such interest installments as are
evidenced thereby as they mature and (ii) original issue discount, if any, on
Bearer Securities shall be paid only against presentation and surrender of
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such Securities; in either case at the office of a Paying Agent located outside
the United States, unless the Company shall have otherwise instructed the
Trustee in writing, provided that any such instruction for payment in the United
States does not cause any Bearer Security to be treated as a "registration-
required obligation" under United States laws and regulations. The interest, if
any, on any temporary Bearer Security shall be paid, as to any installment of
interest evidenced by an interest coupon attached thereto only upon presentation
and surrender of such interest coupon and, as to other installments of interest,
only upon presentation of such Security for notation thereon of the payment of
such interest. If at the time a payment of principal of or interest, if any, on
a Bearer Security or interest coupon shall become due, the payment of the full
amount so payable at the office or offices of all the Paying Agents outside the
United States is illegal or effectively precluded because of the imposition of
exchange controls or other similar restrictions on the payment of such amount in
U.S. dollars, then the Company may instruct the Trustee in writing to make such
payments at a Paying Agent located in the United States, provided that provision
for such payment in the United States would not cause such Bearer Security to be
treated as a "registration-required obligation" under United States laws and
regulations.
(b) Unless otherwise provided as contemplated by Section 3.1, any
interest on Securities of any series which is payable, but is not punctually
paid or duly provided for, on any Interest Payment Date in the case of
Registered Securities and upon presentation and surrender of the applicable
interest coupon in accordance with the second paragraph of Section 3.7(a) in the
case of Bearer Securities (herein called "Defaulted Interest"), shall forthwith
cease to be payable to the Holders on the relevant Regular Record Date by virtue
of their having been such Holders, and such Defaulted Interest may be paid by
the Company, at its election in each case, as provided in clause (1) or (2)
below:
(1) In the case of Registered Securities, the Company may elect to
make payment of such Defaulted Interest to the Persons in whose names 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 such Registered Security and the date of the
proposed payment, and 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 (1) provided. Thereupon the Trustee shall fix a Special Record Date for
the payment of such Defaulted Interest which shall be not more than 15 Days and
not less than 10 days prior to the date of the proposed payment and not less
than 10 days after the receipt by the Trustee of the notice of the proposed
payment. The Trustee shall promptly notify the Company of such Special Record
Date and, in the name and at the Expense of the Company, shall cause notice of
the proposed payment of such Defaulted Interest and the Special Record Date
therefor to be mailed, first-class postage prepaid, to each Holder of such
Registered Securities at his or her address as it
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appears in the 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 so mailed, such Defaulted Interest shall be
paid to the Persons in whose names such Registered Securities (or their
respective Predecessor Securities) are registered at the close of business on
such Special Record Date and shall no longer be payable pursuant to the
following clause (2).
(2)(x) In the case of Registered Securities, the Company may make
payment of such Defaulted Interest to the Persons in whose names such Registered
Securities (or their respective Predecessor Securities) are registered at the
close of business on a specified date in any other lawful manner not
inconsistent with the requirements of any securities exchange on which such
Registered Securities may be listed, and upon such notice as may be required by
such exchange, if, after notice given by the Company to the Trustee of the
proposed payment pursuant to this clause (2)(x), such manner of payment shall be
deemed practicable by the Trustee; or (y) unless otherwise provided as
contemplated by Section 3.1, in the case of Bearer Securities, the Company may
make payment of Defaulted Interest on such Bearer Securities in any lawful
manner not inconsistent with the requirements of any securities exchange on
which such Bearer Securities may be listed, and upon such notice as may be
required by such exchange, if, after notice given by the Company to the Trustee
of the proposed payment pursuant to this clause (2)(y), such manner of payment
shall be deemed practicable by the Trustee.
(c) Subject to the foregoing provisions of this Section and Section
3.5, 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.
(d) Subject to the provisions of Section 14.2, in the case of any
Registered Security which is converted or exchanged after any Regular Record
Date and on or prior to the next succeeding Interest Payment Date (other than
any Security the principal of (or premium, if any, on) which shall become due
and payable, whether at a Stated Maturity or by declaration of acceleration,
call for redemption, or otherwise, prior to such Interest Payment Date),
interest whose Stated Maturity is on such Interest Payment Date shall be payable
on such Interest Payment Date notwithstanding such conversion or exchange and
such interest (whether or not punctually paid or duly provided for) shall be
paid to the Person in whose name that Registered Security (or any one or more
Predecessor Securities) is registered at the close of business on such Regular
Record Date. Except as otherwise expressly provided in the immediately preceding
sentence, in the case of any Security which is converted or exchanged, interest
whose Stated Maturity is after the date of conversion or exchange of such
Security shall not be payable.
Section 3.8 Persons Deemed Owners. Unless otherwise provided as
contemplated by Section 3.1, prior to due presentment of any Registered Security
for registration of transfer, the Company, the Trustee and any agent of the
Company or the Trustee may treat the Person in whose name such Registered
Security is registered as the owner of such Registered Security for the purpose
of receiving payment of principal of, premium, if any, and (subject to
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Section 3.7) interest on such Registered Security and for all other purposes
whatsoever, whether or not such Registered 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.
Unless otherwise provided as contemplated by Section 3.1, 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 interest coupon as the absolute owner
of such Bearer Security or interest coupon for the purpose of receiving payment
thereof or on account thereof and for all other purposes whatsoever, whether or
not such Bearer Security or interest 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 or any agent of the Company or the
Trustee shall have any responsibility or liability for any aspect of the records
relating to or payments made on account of beneficial ownership interests of a
Security in global form, or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests. No holder of any
beneficial interest in any Security in global form, held on its behalf by or
through a Depositary, shall have any rights under this Indenture with respect to
such Security in global form, and such Depositary may be treated by the Company,
the Trustee and any agent of the Company or the Trustee as the owner of such
Security in global form for all purposes whatsoever. With respect to any
Security in global form, nothing herein shall prevent the Company or the
Trustee, or any agent of the Company or the Trustee, from giving effect to any
written certification, proxy or other authorization furnished by any Depositary
(or its nominee), as a Holder, with respect to such Security in global form or
impair, as between such Depositary and owners of beneficial interests in such
Security in global form, the operation of customary practices governing the
exercise of the rights of such Depositary (or its nominee) as Holder of such
Security in global form.
Section 3.9 Cancellation. All Securities and interest coupons
appertaining thereto, if any, surrendered for payment, redemption, conversion,
registration of transfer or exchange or for credit against any sinking fund
payment shall, if surrendered to any Person other than the Trustee, be delivered
to the Trustee and shall be promptly canceled by it. The Company may at any
time deliver to the Trustee for cancellation any Securities, together with
interest coupons appertaining thereto, if any, previously authenticated and
delivered hereunder which the Company may have acquired in any manner
whatsoever, and may deliver to the Trustee (or to any other Person for delivery
to the Trustee) for cancellation any Securities, together with interest coupons
appertaining thereto, if any, previously authenticated hereunder which the
Company has not issued and sold, and all Securities and interest coupons so
delivered shall be promptly canceled by the Trustee. No Securities shall be
authenticated in lieu of or in exchange for any Securities canceled as provided
in this Section 3.9, except as expressly permitted by this Indenture. All
canceled Securities and interest coupons held by the Trustee shall be disposed
of in accordance with its customary procedures, and the Trustee shall thereafter
deliver to the Company a certificate with respect to such disposition.
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Section 3.10 Computation of Interest. Except as otherwise specified as
contemplated by Section 3.1, interest on the Securities of each series shall be
computed on the basis of a 360-day year of twelve 30-day months.
Section 3.11 CUSIP Numbers. The Company in issuing the Securities may
use "CUSIP" numbers (if then generally in use and in addition to the other
identification numbers printed on the Securities), and, in such case, the
Trustee shall use "CUSIP" numbers in notices of redemption as a convenience to
Holders; provided that any such notice may state that no representation is made
as to the correctness of such numbers either as printed on the Securities or as
contained in any notice of a redemption and that reliance may be placed only on
the other identification numbers printed on the Securities, and any such
redemption shall not be affected by any defect in or omission of such numbers.
Section 3.12 Currency and Manner of Payment in Respect of Securities.
Unless otherwise specified with respect to any Securities pursuant to Section
3.1, payment of the principal of, premium, if any, and interest, if any, on any
Security of such series will be made in the currency or currencies or currency
unit or units in which such Security is payable. The provisions of this Section
3.12 may be modified or superseded pursuant to Section 3.1 with respect to any
Securities.
ARTICLE 4
SATISFACTION, DISCHARGE AND DEFEASANCE
Section 4.1 Termination of Company's Obligations Under the Indenture.
(a) This Indenture shall upon a Company Request cease to be of further effect
with respect to Securities of or within any series and any interest coupons
appertaining thereto (except as to (i) rights of registration, transfer or
exchange of such Securities, (ii) rights of replacement of such Securities which
may have been lost, stolen or mutilated as herein expressly provided for, (iii)
rights of holders of Securities to receive payments of principal thereof and
interest thereon, upon the Stated Maturity thereof (but not upon acceleration),
and rights of the Holders to receive mandatory sinking fund payments, if any,
(iv) rights of holders of Securities to convert or exchange Securities, (v)
rights, obligations, duties and immunities of the Trustee hereunder, (vi) any
rights of the Holders of Securities of such series as beneficiaries hereof with
respect to the property so deposited with the Trustee payable to all or any of
them, and (vii) the obligations of the Company under Section 9.2) and the
Trustee, upon payment of all amounts due it under Section 6.7, at the expense of
the Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture with respect to such Securities and any interest
coupons appertaining thereto when
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(1) either
(A) all such Securities previously authenticated and delivered and all
interest coupons appertaining thereto (other than (i) such interest coupons
appertaining to Bearer Securities surrendered in exchange for Registered
Securities and maturing after such exchange, surrender of which is not required
or has been waived as provided in Section 3.5, (ii) such Securities and interest
coupons which have been destroyed, lost or stolen and which have been replaced
or paid as provided in Section 3.6, (iii) such interest coupons appertaining to
Bearer Securities called for redemption and maturing after the relevant
Redemption Date, surrender of which has been waived as provided in Section 11.6
and (iv) such Securities and interest coupons for whose payment money in the
currency or currencies or currency unit or units in which such Securities are
payable 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 9.3) have been delivered to the Trustee for
cancellation; or
(B) all Securities of such series and, in the case of (i) or (ii) below,
any interest coupons appertaining thereto not theretofore delivered to the
Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity
within one year, or
(iii) 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 (i), (ii) or (iii) above, has irrevocably
deposited or caused to be deposited with the Trustee as trust funds in trust for
the purpose an amount in the currency or currencies or currency unit or units in
which the Securities of such series are payable, sufficient to pay and discharge
the entire indebtedness on such Securities and such interest coupons not
theretofore delivered to the Trustee for cancellation, for principal, premium,
if any, and interest, with respect thereto, to the date of such deposit (in the
case of Securities which have become due and payable) or to the Stated Maturity
or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture as to
such series have been complied with.
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Notwithstanding the satisfaction and discharge of this Indenture, the
obligation of the Company to the Trustee and any predecessor Trustee under
Section 6.7, the obligations of the Company to any Authenticating Agent under
Section 6.14 and, if money shall have been deposited with the Trustee pursuant
to subclause (B) of clause (1) of this Section, the obligations of the Trustee
under Section 4.2, Section 9.2, the last paragraph of Section 9.3 and Section
10.2 shall survive.
Section 4.2 Application of Trust Funds. Subject to the provisions of
the last paragraph of Section 9.3, all money deposited with the Trustee pursuant
to Section 4.1 shall be held in trust and applied by it, in accordance with the
provisions of the Securities, the interest coupons appertaining thereto, 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 any interest for whose payment such money has been deposited with or
received by the Trustee, but such money need not be segregated from other funds
except as otherwise provided herein and except to the extent required by law.
Section 4.3 Applicability of Defeasance Provisions; Company's Option
to Effect Defeasance or Covenant Defeasance. Except as otherwise specified as
contemplated by Section 3.1 for the Securities of any series, the provisions of
Sections 4.3 through 4.9 inclusive, with such modifications thereto as may be
specified pursuant to Section 3.1 with respect to any series of Securities,
shall be applicable to the Securities and any interest coupons appertaining
thereto.
Section 4.4 Defeasance and Discharge. On and after the date on which
the conditions set forth in Section 4.6 are satisfied with respect to the
Securities of or within any series, the Company shall be deemed to have paid and
been discharged from its obligations with respect to such Securities and any
interest coupons appertaining thereto (hereinafter "defeasance"). For this
purpose, such defeasance means that the Company shall be deemed to have paid and
discharged the entire indebtedness represented by such Securities and any
interest coupons appertaining thereto which shall thereafter be deemed to be
"Outstanding" only for the purposes of Section 4.7 and the other Sections of
this Indenture referred to in clause (ii) of this Section, and to have satisfied
all its other obligations under such Securities and any interest coupons
appertaining thereto and this Indenture insofar as such Securities and any
interest coupons appertaining thereto are concerned (and the Trustee, upon
payment of all amounts due it under Section 6.7, at the expense of the Company,
shall on a Company Order execute proper instruments acknowledging the same),
except the following which shall survive until otherwise terminated or
discharged hereunder: (i) the rights of Holders of such Securities and any
interest coupons appertaining thereto to receive, solely from the trust funds
described in Section 4.6(a) and as more fully set forth in such Section,
payments in respect of the principal of, premium, if any, and interest, if any,
on such Securities or any interest coupons appertaining thereto when such
payments are due; (ii) the Company's obligations with respect to such Securities
under Sections 3.5, 3.6, 9.2 and 9.3 and with respect to the payment of
additional amounts, if any,
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payable with respect to such Securities as specified pursuant to Section
3.1(b)(16); (iii) the Company's obligations with respect to a conversion or
exchange of such Securities; (iv) the rights, powers, trusts, duties and
immunities of the Trustee hereunder and (v) this Article 4. Subject to
compliance with this Article 4, the Company may defease the Securities of any
series and any interest coupons appertaining thereto under this Section 4.4
notwithstanding a prior covenant defeasance (as defined herein) under Section
4.5 with respect to such Securities and any interest coupons appertaining
thereto. Following a defeasance, payment of such Securities may not be
accelerated because of an Event of Default.
Section 4.5 Covenant Defeasance. On and after the date on which the
conditions set forth in Section 4.6 (other than Section 4.6(c)) are satisfied
with respect to the Securities of or within any series, (i) the Company shall be
released from its obligations under Sections 7.1 and 9.4 and, if specified
pursuant to Section 3.1, its obligations under any other covenant, with respect
to such Securities and any interest coupons appertaining thereto and (ii) the
occurrence of any event specified in Sections 5.1(3) or 5.1(7) (with respect to
any of the obligations described in clause (i) above) or 5.1(4) shall be deemed
not to be or result in a Default or Event of Default (hereinafter, "covenant
defeasance"), and such Securities and any interest coupons appertaining thereto
shall thereafter be deemed to be not "Outstanding" for the purposes of any
request, demand, authorization, direction, notice, waiver, consent or
declaration or Act of Holders (and the consequences of any thereof) in
connection with Section 7.1 or 9.4, such other covenant specified pursuant to
Section 3.1, or Section 5.1(4), but shall continue to be deemed "Outstanding"
for all other purposes hereunder. For this purpose, such covenant defeasance
means that, with respect to such Securities and any interest coupons
appertaining thereto, the Company may omit to comply with and shall have no
liability in respect of any term, condition or limitation set forth in any such
Section or such other covenant, whether directly or indirectly, by reason of any
reference elsewhere herein to any such Section or such other covenant or by
reason of reference in any such Section or such other covenant to any other
provision herein or in any other document and such omission to comply shall not
constitute a Default or an Event of Default under Section 5.1(3), 5.1(4) or
5.1(7) or otherwise, as the case may be, but, except as specified above, the
remainder of this Indenture and such Securities and any interest coupons
appertaining thereto shall be unaffected thereby.
Section 4.6 Conditions to Defeasance or Covenant Defeasance. The
following shall be the conditions to application of Section 4.4 or Section 4.5
to any Securities of or within a series and any interest coupons appertaining
thereto:
(a) The Company shall have deposited or caused to be deposited
irrevocably with the Trustee (or another trustee satisfying the requirements of
Section 6.9 who shall agree to comply with, and shall be entitled to the
benefits of, the provisions of Sections 4.3 through 4.9 inclusive and the last
paragraph of Section 9.3 applicable to the Trustee, for purposes of such
Sections also a "Trustee") as trust funds in trust for the purpose of making the
payments referred to in clauses (x) and (y) of this Section 4.6(a), specifically
pledged as security for, and dedicated solely to, the benefit of the Holders of
such Securities and any interest coupons appertaining
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thereto, with written instructions to the Trustee as to the application thereof,
(A) money in an amount (in such currency, currencies or currency unit or units
in which such Securities and any interest coupons appertaining thereto are then
specified as payable at Maturity), or (B) if Securities of such series are not
subject to repayment at the option of Holders, Government Obligations which
through the payment of interest and principal in respect thereof in accordance
with their terms will provide, not later than one day before the due date of any
payment referred to in clause (x) or (y) of this Section 4.6(a), money in an
amount or (C) a combination thereof in an amount, sufficient, in the opinion of
a nationally recognized firm of independent certified public accountants or a
nationally recognized investment banking firm expressed in a written
certification thereof delivered to the Trustee, to pay and discharge, and which
shall be applied by the Trustee to pay and discharge, (x) the principal of,
premium, if any, and interest, if any, on such Securities and any interest
coupons appertaining thereto on the Maturity of such principal or installment of
principal or interest and (y) any mandatory sinking fund payments applicable to
such Securities on the day on which such payments are due and payable in
accordance with the terms of this Indenture and such Securities and any interest
coupons appertaining thereto. Before such a deposit the Company may make
arrangements satisfactory to the Trustee for the redemption of Securities at a
future date or dates in accordance with Article 11 which shall be given effect
in applying the foregoing.
(b) No Default or Event of Default with respect to the Securities of
that series shall have occurred or be continuing on the date of such a deposit
or shall occur as a result of such a deposit or, insofar as Sections 5.1(5) and
(6) are concerned, shall occur at any time during the period ending on the 91st
day after the date of such deposit (it being understood that this condition
shall not be deemed satisfied until the expiration of such period).
(c) In the case of an election under Section 4.4, the Company shall
have delivered to the Trustee an Officers' Certificate and an Opinion of Counsel
to the effect that (i) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling, or (ii) since the date of
execution of this Indenture, there has been a change in the applicable U.S.
Federal income tax law, in either case to the effect that, and based thereon
such opinion shall confirm that, the Holders of such Securities and any interest
coupons appertaining thereto will not recognize income, gain or loss for U.S.
Federal income tax purposes as a result of such defeasance and will be subject
to U.S. Federal income tax on the same amount and in the same manner and at the
same times, as would have been the case if such deposit, defeasance and
discharge had not occurred.
(d) In the case of an election under Section 4.5, the Company shall
have delivered to the Trustee an Officers' Certificate and an Opinion of Counsel
to the effect that the Holders of such Securities and any interest coupons
appertaining thereto will not recognize income, gain or loss for U.S. Federal
income tax purposes as a result of such covenant defeasance and will be subject
to U.S. Federal income tax on the same amount and in the same manner and at the
same times, as would have been the case if such deposit and covenant defeasance
had not occurred.
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(e) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent to the defeasance under Section 4.4 or the covenant defeasance under
Section 4.5 (as the case may be) have been complied with.
(f) Such defeasance or covenant defeasance shall be effected in
compliance with any additional or substitute terms, conditions or limitations
which may be imposed on the Company in connection therewith as contemplated by
Section 3.1.
Section 4.7 Deposited Money and Government Obligations to Be Held in
Trust. Subject to the provisions of the last paragraph of Section 9.3, all money
and Government Obligations (or other property as may be provided pursuant to
Section 3.1) (including the proceeds thereof) deposited with the Trustee
pursuant to Section 4.6 in respect of any Securities of any series and any
interest coupons appertaining thereto shall be held in trust and applied by the
Trustee, in accordance with the provisions of such Securities and any interest
coupons appertaining thereto and this Indenture, to the payment, either directly
or through any Paying Agent (including the Company acting as its own Paying
Agent) as the Trustee may determine, to the Holders of such Securities and any
interest coupons appertaining thereto of all sums due and to become due thereon
in respect of principal, premium, if any, and interest, if any, but such money
need not be segregated from other funds except as provided herein and except to
the extent required by law.
Section 4.8 Repayment to Company. The Trustee (and any Paying Agent)
shall promptly pay to the Company upon Company Request any excess money or
securities held by them at any time.
The provisions of the last paragraph of Section 9.3 shall apply to any
money or securities held by the Trustee or any Paying Agent under this Article 4
that remain unclaimed for two years after the Maturity of any series of
Securities for which money or securities have been deposited pursuant to Section
4.6(a).
Section 4.9 Indemnity for Government Obligations. The Company shall
pay, and shall indemnify the Trustee against, any tax, fee or other charge
imposed on or assessed against Government Obligations deposited pursuant to this
Article or the principal and interest and any other amount received on such
Government Obligations.
Section 4.10 Reinstatement. If the Trustee (or Paying Agent) is unable
to apply any money or Government Obligations in accordance with Section 4.6 by
reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, then the
Company's obligations under this Indenture and the Securities shall be revived
and reinstated, with present and prospective effect, as though no deposit had
occurred pursuant to Section 4.6, until such time as the Trustee (or Paying
Agent) is permitted to apply all such money or Government Obligations in
accordance with Section 4.6; provided, however, that
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if the Company makes any payment to the Trustee (or Paying Agent) of principal,
premium, if any, or interest on any Security following the reinstatement of its
obligations, the Trustee (or Paying Agent) shall promptly pay any such amount to
the Holders of the Securities and the Company shall be subrogated to the rights
of the Holders of such Securities to receive such payment from the money and
Government Obligations held by the Trustee (or Paying Agent).
ARTICLE 5
DEFAULTS AND REMEDIES
Section 5.1 Events of Default. An "Event of Default" occurs with
respect to the Securities of any series if (whatever the reason for such Event
of Default and whether it shall be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(1) the Company defaults in the payment of interest on any Security
of that series or any interest coupon appertaining thereto or any additional
amount payable with respect to any Security of that series as specified pursuant
to Section 3.1(b)(16) when the same becomes due and payable and such default
continues for a period of 30 days;
(2) the Company defaults in the payment of any installment of the
principal of or any premium on any Security of that series when the same becomes
due and payable at its Maturity;
(3) the Company fails to comply with any of its agreements or
covenants in, or any of the provisions of, this Indenture with respect to any
Security of that series (other than an agreement, covenant or provision for
which non-compliance is elsewhere in this Section specifically dealt with), and
such non-compliance continues for a period of 90 days after there has been
given, by registered or certified mail, return receipt requested, 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 Outstanding Securities of the 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;
(4) the Company defaults under any mortgage, indenture or instrument
under which there may be issued, or by which there may be secured or evidenced,
any Debt (including this Indenture) having an aggregate principal amount
outstanding of at least $25,000,000, whether such Debt now exists or shall
hereafter be created, and, as a result of such default, such Debt shall become
due and payable, whether by acceleration or otherwise, and such acceleration
shall not be rescinded, annulled or cured within a period of 30 days after there
has been given, by registered or certified mail, return receipt requested, 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
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Outstanding Securities of that series a written notice specifying such default
and requiring it to be remedied and stating that such notice is a "Notice of
Default" hereunder (it being understood however, that the Trustee shall not be
deemed to have knowledge of such default under such agreement or instrument
unless a Responsible Officer of the Trustee shall have received written notice
thereof from the Company, from any Holder, from the holder of any such Debt or
from the trustee under any such agreement or other instrument); provided,
however, that if such default under such mortgage, indenture or instrument is
remedied or cured by the Company or waived by the holders of such Debt, then the
Event of Default hereunder by reason thereof shall be deemed likewise to have
been thereupon remedied, cured or waived without further action upon the part of
either the Trustee or any of such Holders;
(5) the Company pursuant to or within the meaning of any Bankruptcy
Law (A) commences a voluntary case, (B) consents to the entry of an order for
relief against it in an involuntary case, (C) consents to the appointment of a
Custodian of it or for all or substantially all of its property, (D) makes a
general assignment for the benefit of its creditors or (E) admits in writing its
inability generally to pay its debts as they become due;
(6) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that (A) is for relief against the Company in an involuntary
case, (B) appoints a Custodian of the Company or for all or substantially all of
its property, or (C) orders the liquidation of the Company, and such order or
decree remains unstayed and in effect for 90 days; or
(7) there occurs any other Event of Default provided as contemplated
by Section 3.1 with respect to Securities of that series.
The term "Bankruptcy Law" means Title 11, United States Bankruptcy
Code of 1978, as amended, or any similar United States federal or state law
relating to bankruptcy, insolvency, receivership, reorganization or relief of
debtors or any amendment to, successor to or change in any such law. The term
"Custodian" means any receiver, trustee, assignee, liquidator, custodian,
sequestrator or similar official under any Bankruptcy Law.
Section 5.2 Acceleration; Rescission and Annulment. If an Event of
Default with respect to the Securities of any series at the time Outstanding
(other than an Event of Default specified in clause (5) or (6) of Section 5.1)
occurs and is continuing, the Trustee or the Holders of at least 25% in
aggregate principal amount of all of the Outstanding Securities of that series,
by written notice received by the Company (and, if given by the Holders,
received by the Trustee), may declare the principal (or, if the Securities of
that series are Original Issue Discount Securities or Indexed Securities, such
portion of the principal amount as may be specified in the terms of that series)
of and accrued interest, if any, on all the Securities of that series to be due
and payable and upon any such declaration such principal (or, in the case of
Original Issue Discount Securities or Indexed Securities, such specified amount)
and interest, if any, shall be immediately due and payable. If an Event of
Default specified in clause (5) or (6) of Section 5.1
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with respect to the Securities of any series at the time Outstanding occurs and
is continuing, then the principal (or, if the Securities of that series are
Original Issue Discount Securities or Indexed Securities, such portion of the
principal amount as may be specified in the terms of that series) of and accrued
interest, if any, on all the Securities of that series shall ipso facto be
immediately due and payable without any declaration or act on the part of the
Trustee or any Holder of such Securities.
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 aggregate principal amount of the
Outstanding Securities of that series, by written notice to the Trustee, may
rescind and annul such declaration and its consequences if all existing Defaults
and Events of Default with respect to Securities of that series, other than the
non-payment 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 5.7. No such rescission shall affect any subsequent default
or impair any right consequent thereon.
Section 5.3 Collection of Indebtedness and Suits for Enforcement by
Trustee. The Company covenants that if
(1) default is made in the payment of any interest on any Security or
interest coupon, if any, when such interest becomes due and payable and such
default continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or premium,
if any, on) any Security at the Maturity thereof, the Company will, upon demand
of the Trustee, pay to it, for the benefit of the Holders of such Securities or
interest coupons, if any, the whole amount then due and payable on such
Securities for principal, premium, if any, and interest and, to the extent that
payment of such interest shall be legally enforceable, interest on any overdue
principal, premium, if any, and on any overdue interest, at the rate or rates
prescribed therefor in such Securities or interest coupons, if any, and, in
addition thereto, such further amount as shall be sufficient to cover the costs
and expenses of collection, including all amounts due the Trustee, its agents
and counsel under Section 6.7.
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 the 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 the Securities, wherever
situated.
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If an Event of Default with respect to Securities of any series 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 secure any other proper remedy, subject, however, to
Section 5.8.
Section 5.4 Trustee May File Proofs of Claim. In case of any judicial
proceeding relative to the Company (or any other obligor upon the Securities),
its property or its creditors, the Trustee shall be entitled and empowered, by
intervention in such proceeding or otherwise, to take any and all actions
authorized under the Trust Indenture Act in order to have claims of the Holders
and the Trustee allowed in any such proceeding. In particular, the Trustee shall
be authorized to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same; and any custodian,
receiver, assignee, trustee, liquidator, sequestrator or 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 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 6.7.
No provision of this Indenture 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 interest coupon any plan of reorganization, arrangement,
adjustment or composition affecting the Securities or the rights of any Holder
of a Security or interest coupon thereof or to authorize the Trustee to vote in
respect of the claim of any Holder of a Security or interest coupon in any such
proceeding; provided, however, that the Trustee may, on behalf of the Holders,
vote for the election of a trustee in bankruptcy or similar official and be a
member of a creditors' or other similar committee.
Section 5.5 Trustee May Enforce Claims Without Possession of
Securities. All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without the possession
of any of the Securities or the production thereof in any proceeding relating
thereto.
Section 5.6 Delay or Omission Not Waiver. No delay or omission by the
Trustee or any Holder of any Securities to exercise any right or remedy accruing
upon an Event of Default shall impair any such right or remedy or constitute a
waiver of or acquiescence in any such Event of Default.
Section 5.7 Waiver of Past Defaults. The Holders of not less than a
majority in aggregate principal amount of Outstanding Securities of any series
by written notice to the Trustee may waive on behalf of the Holders of all
Securities of such series and any interest
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coupons appertaining thereto a past Default or Event of Default with respect to
that series and its consequences except (i) a Default or Event of Default in the
payment of the principal of, premium, if any, or interest on any Security of
such series or any interest coupon appertaining thereto or (ii) in respect of a
covenant or provision hereof which pursuant to Article 8 cannot be amended or
modified 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 this Indenture but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
Section 5.8 Control by Majority. The Holders of not less than a
majority in aggregate principal amount of the Outstanding Securities of each
series affected (with each such series voting as a class) 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 it with
respect to Securities of that series; provided, however, that (i) the Trustee
may refuse to follow any direction that conflicts with any governmental rule or
law or this Indenture, (ii) the Trustee may refuse to follow any direction that
is unduly prejudicial to the rights of the Holders of Securities of such series
not consenting, or that would in the good faith judgment of the Trustee have a
substantial likelihood of involving the Trustee in personal liability without
adequate indemnity having been offered therefor and (iii) subject to Section
6.1, the Trustee may take any other action deemed proper by the Trustee which is
not inconsistent with such direction.
Section 5.9 Limitation on Suits by Holders. No Holder of any Security
of any series or any interest coupons appertaining thereto shall have any right
to institute any proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless:
(1) the Holder has previously given written notice to the Trustee of
a continuing Event of Default with respect to the Securities of that series;
(2) the Holders of at least 25% in aggregate principal amount of the
Outstanding Securities of that series have made a written request to the Trustee
to institute proceedings in respect of such Event of Default in its own name as
Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee indemnity
satisfactory to the Trustee against any loss, liability or expense to be, or
which may be, incurred by the Trustee in pursuing the remedy;
(4) the Trustee for 60 days after its receipt of such notice, request
and the offer of indemnity has failed to institute any such proceedings; and
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(5) during such 60-day period, the Holders of a majority in aggregate
principal amount of the Outstanding Securities of that series have not given to
the Trustee a direction inconsistent with such written request.
No one or more Holders shall have any right in any manner whatever by
virtue of, or by availing of, any provision of this Indenture to affect, disturb
or prejudice the rights of any other of such Holders, or to obtain or to seek to
obtain priority or preference over any other of 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 of such Holders.
Section 5.10 Rights of Holders to Receive Payment. Notwithstanding any
other provision of this Indenture, but subject to Section 9.2, the right of any
Holder of a Security or interest coupon to receive payment of principal of,
premium, if any, and, subject to Sections 3.5 and 3.7, interest on the Security,
on or after the respective due dates expressed in the Security (or, in case of
redemption, on the Redemption Dates), the right of any Holder of an interest
coupon to receive payment of interest due as provided in such interest coupon,
or to bring suit for the enforcement of any such payment on or after such
respective dates, and the right, if any, to convert or exchange such Security in
accordance with Article 14, shall not be impaired or affected without the
consent of such Holder.
Section 5.11 Application of Money Collected. If the Trustee collects
any money pursuant to this Article, it shall pay out the money 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 and interest coupons, if any, and
the notation thereon of the payment if only partially paid and upon surrender
thereof if fully paid:
First: to the Trustee for amounts due under Section 6.7;
Second: to Holders of Securities and interest coupons in respect of
which or for the benefit of which such money has been collected for amounts due
and unpaid on such Securities for principal of, premium, if any, and interest,
ratably, without preference or priority of any kind, according to the amounts
due and payable on such Securities for principal, premium, if any, and interest,
respectively; and
Third: the balance, if any, to the Company.
The Holders of each series of Securities denominated in ECU, any other
currency unit or a Foreign Currency and any matured interest coupons relating
thereto shall be entitled to receive a ratable portion of the amount determined
by the Foreign Currency 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 U.S. dollars
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at the Market Exchange Rate as of the date of declaration of acceleration of
Maturity of the Securities.
The Trustee may fix a record date and payment date for any payment to
Holders pursuant to this Section 5.11. At least 15 days before such record
date, the Trustee shall mail to each Holder and the Company a notice that states
the record date, the payment date and the amount to be paid.
Section 5.12 Restoration of Rights and Remedies. If the Trustee or any
Holder has instituted any proceeding to enforce any right or remedy under this
Indenture and such proceeding has been discontinued or abandoned for any reason,
or has been determined adversely to the Trustee or to such Holder, then and in
every such case, subject to any determination in such proceeding, the Company,
the Trustee and the Holders shall be restored severally and respectively to
their former positions hereunder and thereafter all rights and remedies of the
Trustee and the Holders shall continue as though no such proceeding had been
instituted.
Section 5.13 Rights and Remedies Cumulative. Except as otherwise
provided with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Securities in the last paragraph of Section 3.6, no right or
remedy herein conferred upon or reserved to the Trustee or 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 60 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 5.14 Undertaking for Costs. In any suit for the enforcement of
any right or remedy under this Indenture, or in any suit against the Trustee for
any action taken, suffered or omitted by it as Trustee, a court may require any
party litigant in such suit to file an undertaking to pay the costs of such
suit, and may assess costs against any such party litigant, in the manner and to
the extent provided in the Trust Indenture Act; provided, however, that neither
this Section nor the Trust Indenture Act shall be deemed to authorize any court
to require such an undertaking or to make such an assessment in any suit
instituted by the Company.
Section 5.15 Waiver of Stay, Extension or Usury 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 or any usury or other law
wherever enacted, now or at any time hereafter in force, which would prohibit or
forgive the Company from paying all or any portion of the principal, of, and
premium, if any, or interest on the Securities contemplated herein or in the
Securities or 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
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granted to the Trustee, but will suffer and permit the execution of every such
power as though no such law had been enacted.
ARTICLE 6
THE TRUSTEE
Section 6.1 Certain Duties and Responsibilities. The duties and
responsibilities of the Trustee shall be as provided by the Trust Indenture Act.
Notwithstanding the foregoing, 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. 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 6.2 Notice of Defaults. If a default occurs hereunder with
respect to Securities of any series, the Trustee shall give the Holders of
Securities of such series notice of such default as and to the extent provided
by the Trust Indenture Act; provided, however, that in the case of any default
of the character specified in Section 5.1(3) with respect to Securities of such
series, no such notice to Holders shall be given until at least 30 days after
the occurrence thereof. For the purpose of this Section, the term "default"
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 6.3 Certain Rights of Trustee. Subject to the provisions
of Section 6.1:
(1) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document believed by it
to be genuine and to have been signed or presented by the proper party or
parties;
(2) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order, and any resolution
of the Board of Directors shall be sufficiently evidenced by a Board Resolution;
(3) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
be herein specifically prescribed) may, in the absence of bad faith on its part,
rely upon an Officers' Certificate;
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(4) the Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon;
(5) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by 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;
(6) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document, but the
Trustee, in its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit, and, if the Trustee shall determine to
make such further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company, personally or by agent or attorney;
(7) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder; and
(8) except with respect to Section 9.1, the Trustee shall have no duty
to inquire as to the performance by the Company of the covenants set forth in
Article 9 beyond its good faith review of any certificates or other notices
received by it from the Company.
Section 6.4 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 any responsibility
for their correctness. The Trustee makes no representations as to the validity
or sufficiency of this Indenture or of the Securities. Neither the Trustee nor
any Authenticating Agent shall be accountable for the use or application by the
Company of Securities or the proceeds thereof.
Section 6.5 May Hold Securities. The Trustee, any Authenticating
Agent, any Paying Agent, any Security Registrar or any other agent of the
Company or the Trustee, in its individual or any other capacity, may become the
owner or pledgee of Securities and, subject to Sections 6.8 and 6.13, may
otherwise deal with the Company and any other obligor upon the Securities with
the same rights it would have if it were not Trustee, Authenticating Agent,
Paying Agent, Security Registrar or such other agent.
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Section 6.6 Money Held in Trust. Money held by the Trustee in
trust hereunder need not be segregated from other funds except to the extent
required by law. The Trustee shall be under no liability for interest on any
money received by it hereunder except as otherwise agreed with the Company.
Section 6.7 Compensation and Reimbursement. The Company agrees
(1) to pay to the Trustee from time to time reasonable compensation
for all services rendered by it hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee of an
express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and advances
incurred or made by the Trustee in accordance with any provision of this
Indenture (including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense, disbursement
or advance as may be attributable to its negligence or bad faith; and
(3) to indemnify the Trustee 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 the
trust or trusts hereunder, 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.
The obligations of the Company under this Section 6.7 to compensate
the Trustee, to pay or reimburse the Trustee, to pay or reimburse the Trustee
for its expenses, disbursements and advances and to indemnify the Trustee shall
survive the satisfaction and discharge of this Indenture.
Section 6.8 Conflicting Interests. If the Trustee has or shall
acquire a conflicting interest within the meaning of the Trust Indenture Act,
the Trustee shall either eliminate such 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.
Section 6.9 Corporate Trustee Required; Eligibility. There shall
at all times be a Trustee hereunder which shall be a Person that is eligible
pursuant to the Trust Indenture Act to act as such, has a combined capital and
surplus of at least $50,000,000. If such Person publishes reports of condition
at least annually, pursuant to law or to the requirements of its supervising or
examining authority, then for the purposes of this Section, the combined capital
and surplus of such Person shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. If at
any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect hereinafter specified in this Article.
Section 6.10 Resignation and Removal; Appointment of Successor. No
resignation or removal of the Trustee and no appointment of a successor Trustee
pursuant to this
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Article shall become effective until the acceptance of appointment by the
successor Trustee in accordance with the applicable requirements of Section
6.11.
The Trustee may resign at any time with respect to the Securities of
one or more series by giving written notice thereof to the Company. If the
instrument of acceptance by a successor Trustee required by Section 6.11 shall
not have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series.
The Trustee may be removed at any time with respect to the Securities
of any series 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.
If at any time:
(1) the Trustee shall fail to comply with Section 6.8 after written
request therefor by the Company or by any Holder who has been a bona fide Holder
of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 6.9 and shall
fail to resign after written request therefor by the Company or by any such
Holder, or
(3) the Trustee shall become incapable of acting or shall be adjudged
a bankrupt or insolvent or a receiver of the Trustee or of its property shall be
appointed or any public officer shall take charge or control of the Trustee or
of its property or affairs for the purpose of rehabilitation, conservation or
liquidation, then, in any such case, (A) the Company by a Board Resolution may
remove the Trustee with respect to all Securities, or (B) subject to Section
5.14, any Holder who has been a bona fide Holder of a Security for at least six
months may, on behalf of himself and all others similarly situated, petition any
court of competent jurisdiction for the removal of the Trustee with respect to
all Securities and the appointment of a successor Trustee or Trustees.
If the Trustee shall resign, be removed or become incapable of acting,
or if a vacancy shall occur in the office of Trustee for any cause, with respect
to the Securities of one or more series, 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 6.11. If, within one year after such resignation,
removal or incapability, or the occurrence of such vacancy, a successor Trustee
with respect to the Securities of any series shall be appointed by Act of the
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Holders of a majority in principal amount of the Outstanding Securities of such
series delivered to the Company and the retiring Trustee, the successor Trustee
so appointed shall, forthwith upon its acceptance of such appointment in
accordance with the applicable requirements of Section 6.11, become the
successor Trustee with respect to the Securities of such series and to that
extent supersede the successor Trustee appointed by the Company. If no successor
Trustee with respect to the Securities of any series shall have been so
appointed by the Company or the Holders and accepted appointment in the manner
required by Section 6.11, 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 the Securities of such
series. 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 to all Holders
of Securities of such series in the manner provided in Section 1.6. Each notice
shall include the name of the successor Trustee with respect to the Securities
of such series and the address of its Corporate Trust Office.
Section 6.11 Acceptance of Appointment by Successor. In case of the
appointment hereunder of a successor Trustee with respect to all 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 and such successor Trustee, without any further act, deed
or conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee; but, on the request of the Company or the
successor Trustee, such retiring Trustee shall, upon payment of its charges,
execute and deliver an instrument transferring to such successor Trustee all the
rights, powers and trusts of the retiring Trustee and shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder.
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 (1) 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, (2)
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
(3) 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
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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.
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 the
first or second preceding paragraph, as the case may be.
No successor Trustee shall accept its appointment unless at the time
of such acceptance such successor Trustee shall be qualified and eligible under
this Article.
Section 6.12 Merger, Conversion, Consolidation or Succession to
Business. Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.
Section 6.13 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
the Trust Indenture Act regarding the collection of claims against the Company
(or any such other obligor).
Section 6.14 Appointment of Authenticating Agent. The Trustee may
appoint an Authenticating Agent or Agents with respect to one or more series of
Securities which shall be authorized to act on behalf of the Trustee to
authenticate Securities of such series issued upon original issue and upon
exchange, registration of transfer or partial redemption thereof or pursuant to
Section 3.6, 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. Wherever reference is made in this
Indenture to the authentication and delivery of
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Securities by the Trustee or the Trustee's certificate of authentication, such
reference shall be deemed to include authentication and delivery on behalf of
the Trustee by an Authenticating Agent and a certificate of authentication
executed on behalf of the Trustee by an Authenticating Agent. 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 $50,000,000 and subject to supervision or examination
by Federal or State authority. 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
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 a 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 and shall give notice of such
appointment in the manner provided in Section 1.6 to all Holders of Securities
of the series with respect to which such Authenticating Agent will serve. 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.
The Trustee agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section, and the
Trustee shall be entitled to be reimbursed for such payments, subject to the
provisions of Section 6.7.
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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 alternative
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 Officer
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ARTICLE 7
CONSOLIDATION, MERGER OR SALE BY THE COMPANY
Section 7.1 Consolidation, Merger or Sale of Assets Permitted. The
Company shall not consolidate with or merge into, or sell, transfer, lease or
otherwise dispose of its properties and assets as, or substantially as, an
entirety to, any Person unless:
(1) (A) the Company will be the surviving entity or (B) the Person
formed by or surviving any such consolidation or merger (if other than the
Company), or to which such sale, transfer, lease or other disposition shall have
been made, is an entity organized and existing under the laws of the United
States, any State thereof or the District of Columbia;
(2) the Person formed by or surviving any such consolidation or
merger (if other than the Company), or to which such sale, transfer, lease or
other disposition shall have been made, expressly assumes by supplemental
indenture all the obligations of the Company under the Securities and this
Indenture, and the Securities and this Indenture will remain in full force and
effect as so supplemented;
(3) immediately after giving effect to such consolidation, merger,
sale, transfer, lease or other disposition, no Default or Event of Default
exists; and
(4) with respect to any series of Securities, the Company satisfies
such other conditions, if any, established with respect to such series of
Securities pursuant to and in accordance with Section 3.1.
The Company shall deliver to the Trustee prior to the proposed
consolidation, merger, sale, transfer, lease or other disposition an Officers'
Certificate to the foregoing effect and an Opinion of Counsel stating that the
proposed consolidation, merger, sale, transfer, lease or other disposition and
such supplemental indenture comply with this Indenture and that all conditions
precedent to the consummation of such transaction under this Section 7.1 have
been met.
Upon any consolidation of the Company with, or merger of the Company
into, any other Person or any sale, transfer, lease or other disposition of
properties and assets of the Company as, or substantially as, an entirety in
accordance with this Section 7.1, the successor Person formed by such
consolidation or into which the Company is merged or to which such sale,
transfer, lease or other disposition is made shall succeed to and be substituted
for, and may exercise every right and power of, the Company hereunder and under
the Securities and any interest coupons appertaining thereto with the same
effect as if such successor Person had been named hereunder and thereunder and
thereafter, except in the case of a lease, the predecessor Person shall be
relieved of all obligations and covenants under this Indenture and the
Securities.
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ARTICLE 8
SUPPLEMENTAL INDENTURES
Section 8.1 Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company and the Trustee, at any time and
from time to time, may enter into indentures supplemental hereto, in form
reasonably satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company and
the assumption by any such successor of the covenants and obligations of
the Company herein and in the Securities and any interest coupons
appertaining thereto; or
(2) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities (and if such covenants are to be
for the benefit of less than all series of securities, 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
(3) to add any additional Events of Default with respect to all or any
series of Securities; or
(4) to add to or change any of the provisions of this Indenture to
such extent as shall be necessary to facilitate the issuance or
administration of Bearer Securities (including, without limitation, to
provide that Bearer Securities may be registrable as to principal only) or
to facilitate the issuance or administration of Securities in global form;
or
(5) to change or eliminate any of the provisions of this Indenture in
respect of one or more series of Securities, provided that any such change
or elimination shall become effective only when there is no Security
Outstanding of any series created prior to the execution of such
supplemental indenture which is entitled to the benefit of such provision;
or
(6) to secure the Securities; or
(7) to establish the form or terms of Securities of any series as
permitted by Sections 2.1 and 3.1; or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of this Indenture
as shall be necessary to provide for or
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facilitate the administration of the trusts hereunder by more than one
Trustee, pursuant to the requirements of Section 6.11; or
(9) if allowed without penalty under applicable laws and regulations,
to permit payment in the United States (including any of the States thereof
and the District of Columbia), its territories, its possessions and other
areas subject to its jurisdiction of principal, premium, if any, or
interest, if any, on Bearer Securities or interest coupons, if any; or
(10) to correct or supplement any provision herein which may be
defective or inconsistent with any other provision herein or to make any
other provisions with respect to matters or questions arising under this
Indenture, provided such action shall not adversely affect in any material
respect the interests of the Holders of Securities of any series; or
(11) to make provision not adverse to the Holders of Outstanding
Securities of any series with respect to any conversion or exchange rights
of Holders pursuant to the requirements of Article 14, including providing
for the conversion or exchange of the Securities into any Equity Securities
or property of the Company; or
(12) to cure any ambiguity, correct any mistake or comply with any
mandatory provision of law; or
(13) to modify, eliminate or add to the provisions of this Indenture
to such extent as shall be necessary to effect the qualification of this
Indenture under the Trust Indenture Act or under any similar federal
statute subsequently enacted, and to add to this Indenture such other
provisions as may be expressly required under the Trust Indenture Act.
Section 8.2 Supplemental Indentures With Consent of Holders. With
the consent of the Holders of not less than a majority of the aggregate
principal amount of the Outstanding Securities of all series adversely affected
by such supplemental indenture (voting as one class), by Act of said Holders
delivered to the Company, the Company and the Trustee may enter into an
indenture or indentures supplemental hereto to add any provisions to or to
change in any manner or eliminate any provisions of this Indenture or of any
other indenture supplemental hereto or to modify in any manner the rights of the
Holders of such Securities; provided, however, that without the consent of the
Holder of each Outstanding Security affected thereby, an amendment under this
Section may not:
(1) change the Stated Maturity of the principal of, or premium, if
any, on, or any installment of principal of or premium, if any, or interest
on, any Security, or reduce the principal amount thereof or the rate of
interest thereon or any premium payable upon the redemption thereof, or
change the manner in which the amount of any principal
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thereof or premium, if any, or interest thereon is determined or reduce the
amount of the principal of any Original Issue Discount Security or Indexed
Security that would be due and payable upon a declaration of acceleration
of the Maturity thereof pursuant to Section 5.2, or change the currency or
currency unit in which any Securities or any premium or the interest
thereon is payable, 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, on or after the Redemption Date);
(2) 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 compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences) provided for in this
Indenture, or reduce the requirements of Section 13.4 for quorum or voting;
(3) change any obligation of the Company to maintain an office or
agency in the places and for the purposes specified in Section 9.2;
(4) make any change that adversely affects any right to convert or
exchange any Security to which the provisions of Article 14 are applicable
or, except as provided in this Indenture, decrease the conversion or
exchange rate or increase the conversion or exchange price of any such
Security; or
(5) make any change in this Section 8.2 except to increase any
percentage or to provide that certain other provisions of this Indenture
cannot be modified or waived with the consent of the Holders of each
Outstanding Security affected thereby.
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 is not necessary under this Section 8.2 for the Holders to consent
to the particular form of any proposed supplemental indenture, but it is
sufficient if they consent to the substance thereof.
Section 8.3 Compliance with Trust Indenture Act. Every amendment
to this Indenture or the Securities of one or more series shall be set forth in
a supplemental indenture that complies with the Trust Indenture Act as then in
effect.
Section 8.4 Execution of Supplemental Indentures. In executing, or
accepting the additional trusts created by, any supplemental indenture permitted
by this Article or the
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modification thereby of the trusts created by this Indenture, the Trustee shall
be entitled to receive, and (subject to Section 6.1) shall be fully protected in
relying upon, an Officers' Certificate and an Opinion of Counsel stating that
the execution of such supplemental indenture is authorized or permitted by this
Indenture. The Trustee may, but shall not be obligated to, enter into any such
supplemental indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
Section 8.5 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 and of any
interest coupon appertaining thereto shall be bound thereby.
Section 8.6 Reference in Securities to Supplemental Indentures.
Securities, including any interest coupons, of any series 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 including any
interest coupons of any series so modified as to conform, in the opinion of 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 including any interest coupons of such series.
Section 8.7 Notice of Supplemental Indentures. Promptly after the
execution by the Company and the Trustee of any supplemental indenture pursuant
to the provisions of Section 8.2, the Company shall give notice thereof to the
Holders of each Outstanding Security affected, in the manner provided for in
Section 1.6, setting forth in general terms the substance of such supplemental
indenture. Any failure of the Company to give such notice, or any defect
therein, shall not, however, in any way impair or affect the validity of any
such supplemental indenture.
ARTICLE 9
COVENANTS
Section 9.1 Payment of Principal, Premium, if any, and Interest.
The Company covenants and agrees for the benefit of the Holders of each series
of Securities that it will duly and punctually pay the principal of, premium, if
any, and interest, together with additional amounts, if any, on the Securities
of that series in accordance with the terms of the Securities of such series,
any interest coupons appertaining thereto and this Indenture; provided, however,
that amounts properly withheld under the Internal Revenue Code of 1986, as
amended, by any Person from a payment to any Holder of Securities, after having
requested such Holder to provide applicable information that would allow such
Person to make such payment without
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withholding, shall be considered as having been paid by the Company to such
Holder for purposes of this Indenture. An installment of principal, premium, if
any, or interest shall be considered paid on the date it is due if there shall
have been sent to the Trustee or Paying Agent by wire transfer, or if the
Trustee or Paying Agent otherwise holds, on that date money designated for and
sufficient to pay the installment.
Section 9.2 Maintenance of Office or Agency. Unless otherwise
specified as contemplated by Section 3.1, if Securities of a series are issued
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. Unless otherwise specified as contemplated by
Section 3.1, if Securities of a series are issuable as Bearer Securities, the
Company will maintain, (i) subject to any laws or regulations applicable
thereto, an office or agency in a Place of Payment for that series which is
located outside the United States where Securities of that series and related
interest coupons may be presented and surrendered for payment; 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, 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, 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 (ii)
subject to any laws or regulations applicable thereto, an office or agency in a
Place of Payment for that series which is located outside the United States,
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 or shall fail to furnish the Trustee with the
address thereof, such presentations, surrenders, notices and demands may be made
or served at the Corporate Trust Office of the Trustee, and the Company hereby
appoints the Trustee as its agent to receive all such presentations, surrenders,
notices and demands.
Unless otherwise specified as contemplated by Section 3.1, 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, by check mailed to any
address in the United States, by transfer to an account located in the United
States or upon presentation or surrender in the United States of a Bearer
Security or interest coupon for payment, even if the payment would be credited
to an account located outside the United States; provided, however, that, if the
Securities of a series are denominated and payable in Dollars, payment of
principal of and any premium or interest on any such Bearer Security shall be
made at the office of the Company's Paying Agent, if (but only if) payment in
Dollars of the full amount of such principal, premium or interest, as the case
may be, at all offices or agencies
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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 other similar restrictions.
Unless otherwise specified as contemplated by Section 3.1, the Company
may also from time to time designate one or more other offices or agencies where
the Securities (including any interest coupons, if any) of one or more series
may be presented or surrendered for any or all such purposes and may from time
to time rescind such designations; provided, however, that no such designation
or rescission shall in any manner relieve the Company of its obligation to
maintain an office or agency in each Place of Payment for Securities (including
any interest coupons, if any) 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 otherwise specified as contemplated by Section 3.1, the Trustee
shall initially serve as Paying Agent for any Securities denominated and payable
in Dollars.
Section 9.3 Money for Securities Payments to Be Held in Trust;
Unclaimed Money. If the Company shall at any time act as its own Paying Agent
with respect to any series of Securities and any interest coupons appertaining
thereto, it will, on or before each due date of the principal of, premium, if
any, or interest on any of the Securities of that series, segregate and hold in
trust for the benefit of the Persons entitled thereto a sum sufficient to pay
the principal, premium, if any, or interest so becoming due until such sums
shall be paid to such Persons or otherwise disposed of as herein provided and
will promptly notify the Trustee in writing of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities and any interest coupons appertaining thereto, it will,
prior to each due date of the principal of or any premium or interest on any
Securities of that series, deposit with a Paying Agent a sum sufficient to pay
such amount, such sum to be held as provided by the Trust Indenture Act, 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 for any series of Securities
other than the Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal of,
premium, if any, or interest on Securities of that series 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;
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(2) give the Trustee notice of any default by the Company (or any
other obligor upon the Securities of that series) in the making of any
payment of principal, premium, if any, or interest on the Securities of
that series; and
(3) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the terms set forth in this Indenture; and, upon such payment by any Paying
Agent to the Trustee, such Paying Agent shall be released from all further
liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of any principal of or premium or
interest on any Security of any series and remaining unclaimed for two years
after such principal, premium, if any, or interest has become due and payable
shall be paid to the Company on Company Request, or (if then held by the
Company) shall be discharged from such trust; and the Holder of such Security
and interest coupon, if any, 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 in the name and at the expense of the Company cause to be published once, in
an Authorized Newspaper in each Place of Payment with respect to such series, or
cause to be mailed to such Holder, 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 9.4 Corporate Existence. Subject to Article 7, the Company
will at all times do or cause to be done all things necessary to preserve and
keep in full force and effect its corporate existence and its rights and
franchises; provided that nothing in this Section 9.4 shall prevent the
abandonment or termination of any right or franchise of the Company if it shall
be determined that such abandonment or termination is desirable in the conduct
of the business of the Company.
Section 9.5 Annual Review Certificate. The Company covenants and
agrees to deliver to the Trustee, within 120 days after the end of each fiscal
year of the Company, a certificate from the principal executive officer,
principal financial officer or principal accounting officer of the Company
stating that a review of the activities of the Company during such year and of
performance under this Indenture has been made under his or her supervision and
to the best of his or her knowledge, based on such review, the Company has
fulfilled all of its
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obligations under this Indenture throughout such year, or, if there has been a
default in the fulfillment of any such obligation, specifying each such default
known to him or her and the nature and status thereof. For purposes of this
Section 9.5, such compliance shall be determined without regard to any period of
grace or requirement of notice provided under this Indenture.
Section 9.6 Waiver of Certain Covenants. Except as otherwise
specified as contemplated by Section 3.1 for Securities of such series, the
Company may, with respect to the Securities of any series, omit in any
particular instance to comply with any term, provision or condition set forth in
any covenant provided pursuant to Section 3.1(15), 8.1(2), or 8.1(7) of the
benefit of the Holders of such series if before the time for such compliance the
Holders of at least a majority in principal amount of the Outstanding Securities
of such series shall, by act of such Holders in accordance with Section 1.4,
either waive such compliance in such instance or generally waive compliance with
such term, provision or condition, but no such waiver shall extend to or affect
such term, provision or condition except to the extent so expressly waived, and,
until such waiver shall become effective, the obligations of the Company and the
duties of the Trustee in respect of any such term, provision or condition shall
remain in full forth and effect.
Section 9.7 Appointment of Foreign Currency Agent. If any series of
Securities is denominated or payable in any Foreign Currency, the Company shall
appoint, at the time of original issuance of any Securities of such series, a
Foreign Currency Agent (which may be the Trustee), to determine the Market
Exchange Rates with respect to any Securities of such series and to provide the
Exchange Rate Certificates and any other services required under this Indenture
in connection with any Securities of such series denominated or payable in a
Foreign Currency. In the absence of an appointment by the Company of a Foreign
Currency Agent, the Company shall serve in such capacity. The Company shall give
prompt written notice to the Trustee of any change of Foreign Currency Agent.
ARTICLE 10
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 10.1 Company to Furnish Trustee Names and Addresses of
Holders. The Company will furnish or cause to be furnished to the Trustee:
(a) semi-annually, not more than 15 days after each Regular Record
Date, a list, in such form as the Trustee may reasonably require, of the names
and addresses of the Holders of Registered Securities of each series as of such
Regular Record Date; and
(b) at such other times as the Trustee may request in writing, within
30 days after the 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 furnished;
excluding from any such list names and addresses possessed by the Trustee in its
capacity as Registrar.
Section 10.2 Preservation of Information, Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders of Registered Securities
contained in the most recent list furnished to the Trustee as provided in
Section 10.1 and the names and addresses of Holders of Registered Securities
received by the Trustee in its capacity as Registrar. The Trustee may destroy
any list furnished to it as provided in Section 10.1 upon receipt of a new list
so furnished.
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(b) The rights of Holders of Securities to communicate with other
Holders with respect to their rights under this Indenture or under the
Securities, and the corresponding rights and privileges of the Trustee, shall be
as provided in the Trust Indenture Act.
(c) Every Holder of Securities and interest coupons appertaining
thereto, by receiving and holding the same, agrees with the Company and the
Trustee that neither the Company nor the Trustee nor any agent of either of them
shall be held accountable by reason of the disclosure of information as to the
names and addresses of the Holders of Securities made pursuant to the Trust
Indenture Act.
Section 10.3 Reports by Trustee. (a) The Trustee shall transmit to
Holders of Securities such reports concerning the Trustee and its actions under
this Indenture as may be required pursuant to the Trust Indenture Act, at the
times and in the manner provided pursuant thereto.
(b) Reports so required to be transmitted at stated intervals of not
more than 12 months in each calendar year shall be prepared as of May 15,
commencing with the first May 15 after the first issuance of Securities under
this Indenture.
(c) A copy of each such report shall, at the time of such transmission
to Holders of Securities, be filed by the Trustee with each stock exchange upon
which the Securities of any series may then be listed and also with the
Commission. The Company will notify the Trustee whenever the Securities of any
series are listed on any stock exchange.
Section 10.4 Reports by the Company. (a) The Company shall 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 Securities Exchange Act of 1934, as amended;
or, if the Company is not required to file information, documents or reports
pursuant to either of such sections, then to 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
Securities Exchange Act of 1934, as amended, 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.
(b) The Company shall file with the Trustee and the Commission, in
accordance with the 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 provided for in this
Indenture, as may be required from time to time by such rules and regulations.
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(c) The Company shall transmit by mail to all Holders of Securities,
within 30 days after the filing thereof with the Trustee, in the manner and to
the extent provided in Section 313(c) of the Trust Indenture Act, such summaries
of any information, documents and reports required to be filed by the Company
pursuant to Sections 10.4(a) and (b), as may be required by rules and
regulations prescribed from time to time by the Commission.
ARTICLE 11
REDEMPTION
Section 11.1 Applicability of Article. Securities (including
interest coupons, if any) 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 3.1 for Securities of any series)
in accordance with this Article.
Section 11.2 Election to Redeem; Notice to Trustee. The election of
the Company to redeem any Securities, including interest coupons, if any, that,
at the time of such election, may be redeemed at the option of the Company,
shall be evidenced by or pursuant to a Board Resolution. In the case of any
such redemption at the election of the Company of less than all the Securities
or interest coupons, if any, of any series, the Company shall, at least 45 days
prior to the Redemption Date fixed by the Company (unless a shorter notice shall
be satisfactory to the Trustee), notify the Trustee of such Redemption Date, of
the principal amount of Securities of such series to be redeemed and, if
applicable, of the tenor of the Securities 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 11.3 Selection of Securities to Be Redeemed. Unless
otherwise specified as contemplated by Section 3.1, if less than all the
Securities (including interest coupons, if any) of a series with the same terms
are to be redeemed, the Trustee, not more than 45 days prior to the Redemption
Date, shall select the Securities of the series to be redeemed in such manner as
the Trustee shall deem fair and appropriate. The Trustee shall make the
selection from Securities of the series that are Outstanding and that have not
previously been called for redemption and may provide for the selection for
redemption of portions (equal to the minimum authorized denomination for
Securities, including interest coupons, if any, of that series or any integral
multiple thereof) of the principal amount of Securities, including interest
coupons, if any, of such series of a denomination larger than the minimum
authorized denomination for Securities of that series. The Trustee shall
promptly notify the Company in writing of the Securities selected by the Trustee
for redemption and, in the case of any Securities selected for partial
redemption, the principal amount thereof to be redeemed. If the Company
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shall so direct, Securities registered in the name of the Company, any Affiliate
or any Subsidiary thereof shall not be included in the Securities selected for
redemption.
For purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Securities (including interest
coupons, if any) shall relate, in the case of any Securities (including interest
coupons, if any) redeemed or to be redeemed only in part, to the portion of the
principal amount of such Securities (including interest coupons, if any) which
has been or is to be redeemed.
Section 11.4 Notice of Redemption. Unless otherwise specified as
contemplated by Section 3.1, notice of redemption shall be given in the manner
provided in Section 1.6 not less than 30 days nor more than 60 days prior to the
Redemption Date to the Holders of the Securities to be redeemed.
All notices of redemption shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) if less than all the Outstanding Securities of a series are to be
redeemed, the identification (and, in the case of partial redemption, the
principal amounts) of the particular Security or Securities to be redeemed;
(4) the Place or Places of Payment where such Securities, together in
the case of Bearer Securities with all interest coupons appertaining
thereto, if any, maturing after the Redemption Date, are to be surrendered
for payment of the Redemption Price;
(5) that Securities of the series called for redemption and all
unmatured interest coupons, if any, appertaining thereto must be
surrendered to the Paying Agent to collect the Redemption Price;
(6) that, on the Redemption Date, the Redemption Price will become
due and payable upon each such Security, or the portion thereof, to be
redeemed and, if applicable, that interest thereon will cease to accrue on
and after said date;
(7) that the redemption is from a sinking fund, if such is the case;
(8) that, unless otherwise specified in such notice, Bearer
Securities of any series, if any, surrendered for redemption must be
accompanied by all interest coupons maturing subsequent to the Redemption
Date or the amount of any such missing interest coupon or interest coupons
will be deducted from the Redemption Price, unless security
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or indemnity satisfactory to the Company, the Trustee and any Paying Agent
is furnished;
(9) the CUSIP number, if any, of the Securities;
(10) if applicable, the conversion or exchange price, the date on
which the right to convert or exchange the Securities (or portions thereof
to be redeemed) will terminate and the place or places where such
Securities may be surrendered for conversion or exchange; and
(11) the procedures that a Holder must follow to surrender the
Securities so to be redeemed.
Notice of redemption of Securities to be redeemed shall be given by the Company
or, at the Company's request, by the Trustee in the name and at the expense of
the Company.
Section 11.5 Deposit of Redemption Price. On or prior to any
Redemption Date, the Company shall deposit 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 9.3) an amount of money in the currency or
currencies (including currency unit or units) in which the Securities of such
series are payable (except as otherwise specified pursuant to Section 3.1 for
the Securities of such series) sufficient to pay on the Redemption Date the
Redemption Price of, and (unless the Redemption Date shall be an Interest
Payment Date) interest accrued to the Redemption Date on, all Securities or
portions thereof which are to be redeemed on that date.
Unless any Security by its terms prohibits any redemption obligation
from being satisfied by delivering and crediting Securities (including
Securities redeemed otherwise than through a sinking fund), the Company may
deliver such Securities to the Trustee for crediting of an amount equal to the
then applicable Redemption Price for such Securities against such payment
obligation in accordance with the terms of such Securities and this Indenture.
Section 11.6 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 and accrued interest) such
Securities shall cease to bear interest and the interest coupons for any such
interest appertaining to any Bearer Security so to be redeemed, except to the
extent provided below, shall be void. Except as provided in the next succeeding
paragraph, upon surrender of any such Security, including interest coupons, if
any, for redemption in accordance with said notice, such Security shall be paid
by the Company at the Redemption Price, together with accrued interest to the
Redemption Date; 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 its
possessions (except as otherwise provided in Section 9.2) and, unless otherwise
specified as contemplated by Section 3.1, only upon
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presentation and surrender of interest coupons for such interest; and provided,
further, that, unless otherwise specified as contemplated by Section 3.1,
installments of interest on Registered Securities that are due and payable on
Interest Payment Dates that are 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 at the close of business on the relevant Regular
Record Dates according to their terms and the provisions of Section 3.7.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant interest coupons maturing after the Redemption
Date, such Bearer Security may be paid after deducting from the Redemption Price
an amount equal to the face amount of all such missing interest coupons, or the
surrender of such missing interest coupon or interest 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 interest 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 interest coupons shall be payable only at an office or
agency located outside of the United States (except as otherwise provided
pursuant to Section 9.2) and, unless otherwise specified as contemplated by
Section 3.1, only upon presentation and surrender of those interest coupons.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Security.
Section 11.7 Securities Redeemed in Part. Upon surrender of a
Security that is redeemed in part at any Place of Payment therefor (with, if the
Company or the Trustee so required, due endorsement by, or a written instrument
of transfer in form satisfactory to the Company and the Trustee duly executed
by, the Holder thereof or his or her attorney duly authorized in writing), the
Company shall execute and the Trustee shall authenticate and deliver to the
Holder of that Security, without service charge, a new Security or Securities of
the same series, having the same form, terms and Stated Maturity, in any
authorized denomination equal in aggregate principal amount to the unredeemed
portion of the principal amount of the Security surrendered.
ARTICLE 12
SINKING FUNDS
Section 12.1 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 3.1 for
Securities of such series.
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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 12.2. 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 12.2 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 Bearer Securities of
such series, with all unmatured interest coupons appertaining thereto and (ii)
may apply as a credit Securities of a series which have been (x) 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, (y) converted or exchanged pursuant to Article 14
or (z) previously delivered to the Trustee and canceled without reissuance
pursuant to Section 3.9, 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 12.3 Redemption of Securities for Sinking Fund. Not less
than 45 days prior to each sinking fund payment date for any series of
Securities, the Company will deliver to the Trustee an Officers' Certificate
specifying the amount of the next ensuing sinking fund payment for that series
pursuant to the terms of that series, 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 12.2 and stating the basis for such credit and that such Securities have
not been previously so credited, and will also deliver to the Trustee any
Securities to be so delivered. Not less than 30 days before each such sinking
fund payment date the Trustee shall select the Securities to be redeemed upon
such sinking fund payment date in the manner specified in Section 11.3 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 11.4. Such notice having been
duly given, the redemption of such Securities shall be made upon the terms and
in the manner stated in Sections 11.6 and 11.7.
ARTICLE 13
MEETINGS OF HOLDERS OF BEARER SECURITIES
Section 13. Purposes for Which Meetings May Be Called. A meeting
of Holders of Securities of any series issuable as Bearer Securities may be
called at any time and
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from time to time pursuant to this Article to make, give or take any request,
demand, authorization, direction, notice, consent, election, waiver or other
action provided by this Indenture to be made, given or taken by Holders of
Securities of such series.
Section 13.2 Call, Notice and Place of Meetings. (a) The Trustee
may at any time call a meeting of Holders of Securities of any series issuable
as Bearer Securities for any purpose specified in Section 13.1, to be held at
such time and at such place in The City of New York or in such other place as
may be acceptable to the Company. Notice of every meeting of Holders of
Securities, 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 1.6, not less than 21 nor more than 180 days prior to
the date fixed for the meeting.
(b) In case at any time the Company, pursuant to a Board Resolution,
or the Holders of at least 33 1/3% in principal amount of the Outstanding
Securities of any series shall have requested the Trustee to call a meeting of
the Holders of Securities of such series for any purpose specified in Section
13.1, 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 specified, as the case may be, may determine the time and the place
in The City of New York or such other place as may be acceptable to the Company
for such meeting and may call such meeting for such purposes by giving notice
thereof as provided in paragraph (a) of this Section.
Section 13.3 Persons Entitled to Vote at Meetings. To be entitled
to vote at any meeting of Holders of Securities of any series issuable as Bearer
Securities, a Person shall be (a) a Holder of one or more Outstanding Securities
of such series, or (b) 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 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 13.4 Quorum; Action. The Persons entitled to vote a
majority in principal amount of the Outstanding Securities of the applicable
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 any other
case the meeting may be adjourned for a period of not less than 10 days as
determined by the chairman 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 not less than 10 days as
determined by the chairman of the meeting prior to the adjournment of such
adjourned meeting. Notice of the reconvening of any such adjourned meeting
shall be given as provided in Section 13.2(a), except that such notice need be
given only
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once not less than five days prior to the date on which the meeting is scheduled
to be reconvened.
At the reconvening of any meeting adjourned for a lack of a quorum
pursuant to the preceding paragraph, the Persons entitled to vote 25% in
principal amount of the Outstanding Securities of the applicable series at the
time shall constitute a quorum for the taking of any action set forth in the
notice of the original meeting. Notice of the reconvening of a meeting
adjourned for lack of a quorum shall state expressly the percentage of the
principal amount of the Outstanding Securities of such series which shall
constitute a quorum.
At a meeting or an adjourned meeting duly reconvened and at which a
quorum is present as aforesaid, any resolution and all matters (except as
limited by the proviso to Section 8.2) shall be effectively passed and decided
if passed or decided by the Persons entitled to vote not less than the lesser of
(i) a majority in principal amount of Outstanding Securities of the applicable
series and (ii) 66 2/3% in principal amount of Outstanding Securities of such
series represented and voting at such meeting; provided, however, that any
resolution with respect to any request, demand, authorization, direction,
notice, consent, election, 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
lesser of (i) the Holders of such specified percentage in principal amount of
the Outstanding Securities of such series and (ii) a majority in principal
amount of Outstanding Securities of such series represented and voting at such
meeting or adjourned meeting.
Any resolution passed or decisions taken at any meeting of Holders of
Securities of any series issuable as Bearer Securities duly held in accordance
with this Section shall be binding on all the Holders of Securities of such
series and interest coupons, whether or not present or represented at the
meeting.
In the event that any meeting shall be adjourned for lack of a quorum
or that, at any meeting at which a quorum is present, any proposed resolution or
decision shall not be passed or taken because the Holders of the percentage of
Outstanding Securities of any series issuable as Bearer Securities needed to
approve such resolution or decision did not vote in favor of such resolution or
decision, the principal amount of Outstanding Securities of such series
represented at such meeting and voting in favor of such resolution or decision
may be counted for purposes of calculating whether the consent of the Holders of
the percentage of Outstanding Securities of such series needed in order to make,
give or take any request, demand, authorization, direction, notice, consent,
election, waiver or other action has been obtained, and such vote shall
constitute the consent thereto of such Holders.
Section 13.5 Determination of Voting Rights; Conduct and Adjournment
of Meetings. (a) Notwithstanding any other provisions of this Indenture, the
Trustee may make
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such reasonable regulations as it may deem advisable for any meeting of Holders
of Securities of any series issuable as Bearer Securities 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 of a series issuable as Bearer Securities
shall be proved in the manner specified in Section 1.4 and the appointment of
any proxy shall be provided in the manner specified in Section 1.4 or by having
the signature of the Person executing the proxy witnessed or guaranteed by any
trust company, bank or banker authorized by Section 1.4 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 1.4 or other proof.
(b) The Trustee shall, by an instrument in writing, appoint a
temporary chairman (which may be a Responsible Officer of the Trustee) of the
meeting, unless the meeting shall have been called by the Company or by Holders
of Securities of a series as provided in Section 13.2(b), in which case the
Company or the Holders of Securities of such series calling the meeting, as the
case may be, shall in like manner appoint a temporary chairman. A permanent
chairman 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 or proxy shall be
entitled to one vote for each U.S. $5,000 principal amount of Securities held or
represented by him or her; 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 chairman of the meeting to be not Outstanding. The chairman of
the meeting shall have no right to vote, except as a Holder of a Security or
proxy.
(d) Any meeting of Holders of Securities of a series issuable as
Bearer Securities duly called pursuant to Section 13.2 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 13.6 Counting Votes and Recording Action of Meetings. The
vote upon any resolution submitted to any meeting of Holders of Securities of
any series issuable as Bearer Securities 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 held or represented by them. The
permanent chairman of the meeting shall appoint an inspector 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
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of the meeting its verified written report of all votes cast at the meeting. A
record of the proceedings of each meeting of Holders of Securities shall be
prepared by the applicable secretary of the meeting and there shall be attached
to said record the original report of the inspector 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 13.2 and, if applicable, Section
13.4. At least two copies of such record shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one copy
thereof shall be delivered to the Company and the other 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 14
CONVERSION OR EXCHANGE OF SECURITIES
Section 14.1 Applicability of Article. (a) The provisions of this
Article 14 shall be applicable to the Securities of any series which are
convertible or exchangeable into Equity Securities of the Company, and to the
issuance of such Equity Securities upon the conversion or exchange of such
Securities, except as otherwise specified as contemplated by Section 3.1 for the
Securities of such series.
(b) For purposes of this Article 14, the term "Equity Securities"
shall mean all or any of the following, authorized from time to time: (i) the
Company's Common Stock, $.01 par value (the "Common Stock"), (ii) the Company's
Preferred Stock, $.10 par value (the "Preferred Stock"), and (iii) any other
equity securities of the Company.
Section 14.2 Exercise of Conversion or Exchange Privilege. (a) In
order to exercise a conversion or exchange privilege, the Holder of a Security
of a series with such privilege shall surrender such Security, together, in the
case of any Bearer Security, with all unmatured interest coupons and any matured
interest coupons in default appertaining thereto, to the Company at the office
or agency maintained for that purpose pursuant to Section 9.2, accompanied by
written notice to the Company that the Holder elects to convert or exchange such
Security or a specified portion thereof. Such notice shall also state, if
different from the name and address of such Holder, the name or names (with
address) in which the certificate or certificates for Equity Securities which
shall be issuable on such conversion or exchange shall be issued. Registered
Securities surrendered for conversion or exchange shall (if so required by the
Company or the Trustee) be duly endorsed by or accompanied by instruments of
transfer in forms satisfactory to the Company and the Trustee duly executed by
the registered Holder or its attorney duly authorized in writing.
(b) Registered Securities so surrendered for conversion or exchange
during the period from the close of business on any Regular Record Date to the
opening of business on
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the corresponding Interest Payment Date (excluding Securities or portions
thereof called for redemption during such period) shall also be accompanied by
payment in funds acceptable to the Company of an amount equal to the interest
payable on such Interest Payment Date on the principal amount of such Security
then being converted or exchanged, and such interest shall be payable to such
registered Holder on such Interest Payment Date notwithstanding the conversion
or exchange of such Security, subject to the provisions of Section 3.7 relating
to the payment of Defaulted Interest by the Company.
(c) As promptly as practicable after the receipt of such notice and of
any payment required pursuant to a Board Resolution and, subject to Section 3.3,
set forth, or determined in the manner provided, in an Officers' Certificate, or
established in one or more indentures supplemental hereto setting forth the
terms of such series of Security, and the surrender of such Security in
accordance with such reasonable regulations as the Company may prescribe, the
Company shall issue and shall deliver, at the office or agency at which such
Security is surrendered, to such Holder or on its written order, a certificate
or certificates for the number of Equity Securities issuable upon the conversion
or exchange of such Security (or specified portion thereof), in accordance with
the provisions of such Board Resolution, Officers' Certificate or supplemental
indenture, and cash as provided therein in respect of any fractional share of
such Equity Security otherwise issuable upon such conversion or exchange.
(d) Such conversion or exchange shall be deemed to have been effected
immediately prior to the close of business on the date on which such notice and
such payment, if required, shall have been received in proper order for
conversion or exchange by the Company and such Security shall have been
surrendered as aforesaid and at such time the rights of the Holder of such
Security as such Security Holder shall cease and the person or persons in whose
name or names any certificate or certificates for Equity Securities of the
Company shall be issuable upon such conversion or exchange shall be deemed to
have become the Holder or Holders of record of the Equity Securities represented
thereby. Except as set forth above and subject to paragraph (d) of Section 3.7,
no payment or adjustment shall be made upon any conversion or exchange on
account of any interest accrued on the Securities surrendered for conversion or
exchange, or on account of any dividends on the Equity Securities of the Company
issued upon such conversion or exchange if the record date for the payment of
such dividends occurs prior to or on the date on which such conversion or
exchange shall be deemed to have been effected.
In the case of any Security which is converted or exchanged in part
only, upon such conversion or exchange the Company shall execute and the Trustee
shall authenticate and deliver to or on the order of the Holder thereof, at the
expense of the Company, a new Security or Securities of the same series, of
authorized denominations, in aggregate principal amount equal to the unconverted
or unexchanged portion of such Security.
Section 14.3 No Fractional Equity Securities. No fractional Equity
Security of the Company shall be issued upon conversions or exchanges of
Securities of any series. If more
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<PAGE>
than one Security shall be surrendered for conversion or exchange at one time by
the same Holder, the number of full shares of the Equity Security which shall be
issuable upon conversion or exchange shall be computed on the basis of the
aggregate principal amount of the Securities (or specified portions thereof to
the extent permitted hereby) so surrendered. If, except for the provisions of
this Section 14.3, any Holder of a Security or Securities would be entitled to a
fractional share of any Equity Security of the Company upon the conversion or
exchange of such Security or Securities, or specified portions thereof, the
Company shall pay to such Holder an amount in cash equal to the current market
value of such fractional share computed, (i) if such Equity Security is listed
or admitted to unlisted trading privileges on a national securities exchange, on
the basis of the last reported sale price regular way on the principal exchange
where such Equity Security is listed or admitted, on the last trading day prior
to the date of conversion or exchange upon which such a sale shall have been
effected, (ii) if such Equity Security is not at the time so listed or admitted
on a national securities exchange but is quoted on the National Market System of
the National Association of Securities Dealers, Inc. ("NASDAQ"), on the basis of
the average of the bid and asked prices of such Equity Security on NASDAQ on the
last trading day prior to the date of conversion or exchange, (iii) if such
Equity Security is not at the time so listed or admitted to unlisted trading
privileges on a national securities exchange or quoted on NASDAQ, on the basis
of the average of the bid and asked prices of such Equity Security in the over-
the-counter market, on the last trading day prior to the date of conversion or
exchange, as reported by the National Quotation Bureau Incorporated or similar
organization if the National Quotation Bureau Incorporated is no longer
reporting such information, or (iv) in accordance with the terms of the
supplemental indenture or Board Resolutions setting the terms of the Securities
of such series. For purposes of this Section, "trading day" shall mean each
Monday, Tuesday, Wednesday, Thursday and Friday other than any day on which the
applicable Equity Security is not traded or quoted on a national securities
exchange, or if the applicable Equity Security is not traded or quoted on a
national securities exchange, on NASDAQ or the principal exchange or market on
which the applicable Equity Security is traded or quoted.
Section 14.4 Adjustment of Conversion or Exchange Price;
Consolidation or Merger. The conversion or exchange price of Securities of any
series that is convertible or exchangeable into an Equity Security of the
Company shall be adjusted for any stock dividends, stock splits,
reclassification, combinations or similar transactions, and the securities,
assets or other property into or for which such Securities may be converted or
exchanged as a result of any consolidation, merger, combination or similar
transaction shall be determined, in accordance with the terms of the
supplemental indenture or Board Resolutions setting the terms of the Securities
of such series.
Whenever the conversion or exchange price is adjusted, the Company
shall compute the adjusted conversion or exchange price in accordance with the
terms of the applicable Board Resolution or supplemental indenture and shall
prepare an Officers' Certificate setting forth the adjusted conversion or
exchange price and showing in reasonable detail the facts upon which such
adjustment is based. Whenever the securities, assets or other property into or
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<PAGE>
for which Securities of any series may be converted or exchanged are changed as
a result of any consolidation, merger or similar transaction, the Company shall
determine the nature and amount of such securities, assets or other property in
accordance with the terms of the applicable Board Resolution or supplemental
indenture and shall prepare an Officer's Certificate describing such securities,
assets or other property and stating the amount of such securities, assets or
other property into or for which such Securities have become convertible or
exchangeable. Such certificates shall forthwith be filed at each office or
agency maintained for the purpose of conversion or exchange of Securities
pursuant to Section 9.2 and, if different, with the Trustee. The Company shall
forthwith cause a notice setting forth the adjusted conversion or exchange price
or describing such securities, assets or other property, as applicable, to be
mailed, first class postage prepaid, to each Holder of Registered Securities of
such series at its address appearing on the Register and to any conversion or
exchange agent other than the Trustee.
Section 14.5 Notice of Certain Corporate Actions. If any series of
Securities which are directly or indirectly convertible or exchangeable for any
Equity Securities are Outstanding, in case:
(a) the Company shall declare a dividend (or any other distribution)
on any class of such Equity Securities payable otherwise than in cash out of its
retained earnings (other than a dividend for which approval of any stockholder
of the Company is required); or
(b) the Company shall authorize the granting to the holders of any
class of such Equity Securities of rights, options or warrants to subscribe for
or purchase any shares of capital stock of any class or of any other rights
(other than any such grant for which approval of any stockholder of the Company
is required); or
(c) of any reclassification of any class of such Equity Securities
(other than a subdivision or combination of its outstanding Equity Securities,
or of any consolidation, merger or share exchange to which the Company is a
party and for which approval of any stockholder of the Company is required), or
of the sale of all or substantially all of the assets of the Company; or
(d) of the voluntary or involuntary dissolution, liquidation or
winding up of the Company;
then the Company shall cause to be filed with the Trustee, and shall cause to be
mailed to all Holders at their addresses as they shall appear in the Register,
at least 15 days (or 10 days in any case specified in clause (a) or (b) above)
prior to the applicable record date hereinafter specified, a notice stating (i)
the date on which a record is to be taken for the purpose of such dividend,
distribution, rights, options or warrants, or, if a record is not to be taken,
the date as of which the Holders of such Equity Securities of record to be
entitled to such dividend, distribution, rights, options or warrants are to be
determined, or (ii) the date on which such reclassification, consolidation,
merger, share exchange, sale, dissolution, liquidation or winding up is expected
to
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<PAGE>
become effective, and the date as of which it is expected that holders of such
Equity Securities of record shall be entitled to exchange such Equity Securities
for securities, cash or other property deliverable upon such reclassification,
consolidation, merger, share exchange, sale, dissolution, liquidation or winding
up. If at any time the Trustee shall not be the conversion or exchange agent, a
copy of such notice shall also forthwith be filed by the Company with the
Trustee.
Section 14.6 Reservation of Equity Securities. The Company shall at
all times reserve and keep available, free from preemptive rights, out of its
authorized but unissued Equity Securities, for the purpose of effecting the
conversion or exchange of Securities, the full number of Equity Securities of
the Company then issuable upon the conversion or exchange of all Outstanding
Securities of any series that has conversion or exchange rights.
Section 14.7 Payment of Certain Taxes Upon Conversion or Exchange.
The Company will pay any and all taxes that may be payable in respect of the
issue or delivery of its Equity Securities on conversion or exchange of
Securities pursuant hereto. The Company shall not, however, be required to pay
any tax which may be payable in respect of any transfer involved in the issue
and delivery of its Equity Securities in a name other than that of the Holder of
the Security or Securities to be converted or exchanged, and no such issue or
delivery shall be made unless and until the Person requesting such issue has
paid to the Company the amount of any such tax, or has established, to the
satisfaction of the Company, that such tax has been paid.
Section 14.8 Duties of Trustee Regarding Conversion or Exchange.
Neither the Trustee nor any conversion or exchange agent shall at any time be
under any duty or responsibility to any Holder of Securities of any series that
is convertible or exchangeable into Equity Securities of the Company to
determine whether any facts exist which may require any adjustment of the
conversion or exchange price, or with respect to the nature or extent of any
such adjustment when made, or with respect to the method employed, whether
herein or in any supplemental indenture, any resolutions of the Board of
Directors or written instrument executed by one or more officers of the Company
provided to be employed in making the same. Neither the Trustee nor any
conversion or exchange agent shall be accountable with respect to the validity
or value (or the kind or amount) of any Equity Securities of the Company, or of
any securities or property, which may at any time be issued or delivered upon
the conversion or exchange of any Securities and neither the Trustee nor any
conversion or exchange agent makes any representation with respect thereto.
Subject to the provisions of Section 6.1, neither the Trustee nor any conversion
or exchange agent shall be responsible for any failure of the Company to issue,
transfer or deliver any of its Equity Securities or stock certificates or other
securities or property upon the surrender of any Security for the purpose of
conversion or exchange or to comply with any of the covenants of the Company
contained in this Article 14 or in the applicable supplemental indenture,
resolutions of the Board of Directors or written instrument executed by one or
more duly authorized officers of the Company.
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<PAGE>
Section 14.9 Repayment of Certain Funds Upon Conversion or Exchange.
Any funds which at any time have been deposited by the Company or on its behalf
with the Trustee or any Paying Agent for the purpose of paying the principal of,
and premium, if any, and interest, if any, on any of the Securities (including
funds deposited for any sinking fund referred to in Article 12 hereof) and which
shall not be required for such purposes because of the conversion or exchange of
such Securities as provided in this Article 14 shall after such conversion or
exchange be repaid to the Company by the Trustee upon the Company's written
request by Company Request.
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<PAGE>
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.
EASTERN ENVIRONMENTAL SERVICES, INC.
By:
-----------------------------
Name:
Title:
Seal
Attest:
- --------------------------
Name:
Title:
SUMMIT BANK
By:
-----------------------------
Name:
Title:
Seal
Attest:
- --------------------------
Name:
Title:
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<PAGE>
STATE OF )
------- ) ss.:
COUNTY OF )
-------
On the ___ day of ____________, 199_, before me personally came
_________________, to me known, who, being by me duly sworn, did depose and say
that he is [Title] of Eastern Environmental Services, Inc., one of the
corporations described in and which executed the foregoing instrument; that he
knows the 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
STATE OF )
------- ) ss.:
COUNTY OF )
------
On the ___ day of ____________ 199_, before me personally came
__________________, to me known, who, being by me duly sworn, did depose and say
that [s]he is a [Title] of Summit Bank, one of the corporations described in and
which executed the foregoing instrument; that she knows the 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 [s]he signed [her] [his] name thereto by like authority.
----------------------,
Notary Public
<PAGE>
Reconciliation and tie between Subordinated Indenture, dated as of ,
1998 (the "Indenture") and the Trust Indenture Act of 1939, as amended.
<TABLE>
<CAPTION>
TRUST INDENTURE ACT OF 1939 SECTION INDENTURE SECTION
<S> <C>
310(a)(1)............................................................... 6.9
310(a)(2)............................................................... 6.9
310(a)(3)............................................................... TIA
310(a)(4)............................................................... N/A
310(a)(5)............................................................... TIA
310(b)....................................................... 6.8; 6.10; TIA
311(a).................................................................. TIA
311(b).................................................................. TIA
312(a)..................................................................10.1
312(b).................................................................. TIA
312(c).................................................................. TIA
313(a)............................................................ 10.3; TIA
313(b).................................................................. TIA
313(c).................................................................. TIA
313(d).................................................................. TIA
314(a)....................................................... 10.4; 9.7; TIA
314(b).................................................................. N/A
314(c)(1)............................................................... 1.2
314(c)(2)............................................................... 1.2
314(c)(3)............................................................... N/A
314(d).................................................................. N/A
314(e).................................................................. TIA
314(f).................................................................. TIA
315(a).................................................................. 6.1
315(b).................................................................. 6.2
315(c).................................................................. 6.1
315(d)(1)............................................................... TIA
315(d)(2)............................................................... TIA
315(d)(3)............................................................... TIA
315(e).................................................................. TIA
316(a)(last sentence)................................................... 1.1
316(a)(1)(A)....................................................... 5.2; 5.8
316(a)(1)(B)............................................................ 5.7
316(b)............................................................ 5.9;.5.10
316(c).................................................................. TIA
317(a)(1)............................................................... 5.3
317(a)(2)............................................................... 5.4
317(b).................................................................. 9.3
318(a)................................................................. 1.11
318(b).................................................................. TIA
318(c)............................................................ 1.11; TIA
</TABLE>
This reconciliation and tie section does not constitute a part of the
Indenture.
<PAGE>
EXHIBIT 4.4
===========================================================
EASTERN ENVIRONMENTAL SERVICES, INC. as Issuer
to
SUMMIT BANK, as Trustee
SUBORDINATED INDENTURE
Dated as of _________________,
Providing for Issuance of
Subordinated Debt Securities in Series
===========================================================
<PAGE>
TABLE OF CONTENTS
PAGE
----
RECITALS..................................................................... 1
ARTICLE 1 DEFINITIONS AND OTHER PROVISIONSOF GENERAL APPLICATION............ 1
Section 1.1. Definitions.................................... 1
Section 1.2. Compliance Certificates and Opinions.......... 11
Section 1.3. Form of Documents Delivered to Trustee........ 12
Section 1.4. Acts of Holders............................... 13
Section 1.5. Notices, etc., to Trustee and Company......... 14
Section 1.6. Notice to Holders; Waiver..................... 15
Section 1.7. Headings and Table of Contents................ 16
Section 1.8. Successor and Assigns......................... 16
Section 1.9. Separability.................................. 16
Section 1.10. Benefits of Indenture......................... 16
Section 1.11. Incorporators, Stockholders, Officers and
Directors of the Company Exempt from
Individual Liability......................... 16
Section 1.12. Governing Law; Conflict with
Trust Indenture Act.......................... 17
Section 1.13. Legal Holidays................................ 17
ARTICLE 2 SECURITY FORMS................................................... 18
Section 2.1. Forms Generally............................... 18
Section 2.2. Form of Trustee's Certificate of
Authentication............................... 18
Section 2.3. Securities in Global Form..................... 19
Section 2.4. Form of Legend for Securities in
Global Form.................................. 19
ARTICLE 3 THE SECURITIES................................................... 20
Section 3.1. Amount Unlimited; Issuable in Series.......... 20
Section 3.2. Denominations................................. 24
Section 3.3. Execution, Authentication, Delivery and
Dating....................................... 24
Section 3.4. Temporary Securities.......................... 27
Section 3.5. Registration, Transfer and Exchange........... 28
Section 3.6. Replacement Securities........................ 32
Section 3.7. Payment of Interest; Interest
Rights Preserved............................. 33
Section 3.8. Persons Deemed Owners......................... 35
Section 3.9. Cancellation.................................. 36
Section 3.10. Computation of Interest....................... 37
Section 3.11. CUSIP Numbers................................. 37
Section 3.12. Currency and Manner of Payment in Respect
i
<PAGE>
of Securities................................ 37
ARTICLE 4 SATISFACTION, DISCHARGE AND DEFEASANCE........................... 37
Section 4.1. Termination of Company's Obligations Under
the Indenture................................ 37
Section 4.2. Application of Trust Funds.................... 39
Section 4.3. Applicability of Defeasance Provisions;
Company's Option to Effect Defeasance or
Covenant Defeasance.......................... 39
Section 4.4. Defeasance and Discharge...................... 39
Section 4.5. Covenant Defeasance........................... 40
Section 4.6. Conditions to Defeasance or Covenant
Defeasance................................... 40
Section 4.7. Deposited Money and Government Obligations
to Be Held in Trust.......................... 42
Section 4.8. Repayment to Company.......................... 42
Section 4.9. Indemnity for Government Obligations.......... 42
Section 4.10. Reinstatement................................. 43
ARTICLE 5 DEFAULTS AND REMEDIES....................................... 43
Section 5.1. Events of Default............................. 43
Section 5.2. Acceleration; Rescission and Annulment........ 45
Section 5.3. Collection of Indebtedness and Suits for
Enforcement by Trustee........................ 45
Section 5.4. Trustee May File Proofs of Claim.............. 46
Section 5.5. Trustee May Enforce Claims Without
Possession of Securities.................... 47
Section 5.6. Delay or Omission Not Waiver.................. 47
Section 5.7. Waiver of Past Defaults....................... 47
Section 5.8. Control by Majority........................... 47
Section 5.9. Limitation on Suits by Holders................ 47
Section 5.10. Rights of Holders to Receive Payment.......... 48
Section 5.11. Application of Money Collected................ 48
Section 5.12. Restoration of Rights and Remedies............ 49
Section 5.13. Rights and Remedies Cumulative................ 49
Section 5.14. Undertaking for Costs......................... 49
Section 5.15. Waiver of Stay, Extension or
Usury Laws................................... 50
ARTICLE 6 THE TRUSTEE...................................................... 50
Section 6.1. Certain Duties and Responsibilities........... 50
Section 6.2. Notice of Defaults............................ 50
Section 6.3. Certain Rights of Trustee..................... 50
Section 6.4. Not Responsible for Recitals or
Issuance of Securities....................... 51
Section 6.5. May Hold Securities........................... 52
ii
<PAGE>
Section 6.6. Money Held in Trust........................... 52
Section 6.7. Compensation and Reimbursement................ 52
Section 6.8. Conflicting Interests......................... 52
Section 6.9. Corporate Trustee Required; Eligibility....... 52
Section 6.10. Resignation and Removal;
Appointment of Successor..................... 53
Section 6.11. Acceptance of Appointment by Successor........ 54
Section 6.12. Merger, Conversion, Consolidation or
Succession to Business....................... 55
Section 6.13. Preferential Collection of
Claims Against Company....................... 55
Section 6.14. Appointment of Authenticating Agent........... 56
ARTICLE 7 CONSOLIDATION, MERGER OR SALE OF ASSETS BY THE COMPANY........... 57
Section 7.1. Consolidation, Merger or Sale of
Assets Permitted............................. 57
ARTICLE 8 SUPPLEMENTAL INDENTURES.......................................... 58
Section 8.1. Supplemental Indentures Without
Consent of Holders........................... 58
Section 8.2. Supplemental Indentures With
Consent of Holders........................... 60
Section 8.3. Compliance with Trust Indenture Act........... 61
Section 8.4. Execution of Supplemental Indentures.......... 61
Section 8.5. Effect of Supplemental Indentures............. 62
Section 8.6. Reference in Securities to
Supplemental Indentures...................... 62
Section 8.7. Notice of Supplemental Indentures............. 62
ARTICLE 9 COVENANTS........................................................ 62
Section 9.1. Payment of Principal, Premium, if
any, and Interest............................ 62
Section 9.2. Maintenance of Office or Agency............... 63
Section 9.3. Money for Securities Payments to Be Held in
Trust; Unclaimed Money....................... 64
Section 9.4. Corporate Existence........................... 65
Section 9.5. Annual Review Certificate..................... 65
Section 9.6. Waiver of Certain Covenants................... 65
ARTICLE 10 HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY................ 66
Section 10.1. Company to Furnish Trustee Names and Addresses
of Holders................................... 66
Section 10.2. Preservation of Information, Communications to
Holders...................................... 66
Section 10.3. Reports by Trustee............................ 67
Section 10.4. Reports by the Company........................ 67
ARTICLE 11 REDEMPTION....................................................... 68
Section 11.1. Applicability of Article..................... 68
Section 11.2. Election to Redeem; Notice to Trustee........ 68
iii
<PAGE>
Section 11.3. Selection of Securities to Be Redeemed....... 68
Section 11.4. Notice of Redemption......................... 69
Section 11.5. Deposit of Redemption Price.................. 70
Section 11.6. Securities Payable on Redemption Date........ 70
Section 11.7. Securities Redeemed in Part.................. 71
ARTICLE 12 SINKING FUNDS.................................................... 71
Section 12.1. Applicability of Article..................... 71
Section 12.2. Satisfaction of Sinking Fund
Payments with Securities.................... 72
Section 12.3. Redemption of Securities for
Sinking Fund................................ 72
ARTICLE 13 MEETINGS OF HOLDERS OF BEARER SECURITIES......................... 72
Section 13.1. Purposes for Which Meetings May
Be Called................................... 72
Section 13.2. Call, Notice and Place of Meetings........... 73
Section 13.3. Persons Entitled to Vote at Meetings......... 73
Section 13.4. Quorum; Action............................... 73
Section 13.5. Determination of Voting Rights; Conduct and
Adjournment of Meetings..................... 74
Section 13.6. Counting Votes and Recording
Action of Meetings.......................... 75
ARTICLE 14 CONVERSION OR EXCHANGE OF SECURITIES............................. 76
Section 14.1. Applicability of Article..................... 76
Section 14.2. Exercise of Conversion or
Exchange Privilege.......................... 76
Section 14.3. No Fractional Equity Securities.............. 77
Section 14.4. Adjustment of Conversion or Exchange Price;
Consolidation or Merger..................... 78
Section 14.5. Notice of Certain Corporate Actions.......... 79
Section 14.6. Reservation of Equity Securities............. 80
Section 14.7. Payment of Certain Taxes Upon Conversion or
Exchange.................................... 80
Section 14.8. Duties of Trustee Regarding
Conversion or Exchange...................... 80
Section 14.9. Repayment of Certain Funds Upon Conversion or
Exchange.................................... 80
ARTICLE 15 SUBORDINATION OF SECURITIES...................................... 81
Section 15.1. Securities Subordinate to Senior Debt........ 81
Section 15.2. Payment Over of Proceeds Upon
Dissolution, Etc............................ 81
Section 15.3. No Payment When Senior Debt in Default....... 82
Section 15.4. Certain Payments Permitted................... 83
Section 15.5. Subrogation to Rights of Holders
of Senior Debt.............................. 83
Section 15.6. Provisions Solely to Define
Relative Rights............................. 83
Section 15.7. Trustee to Effectuate Subordination.......... 84
Section 15.8. No Waiver of Subordination Provisions........ 84
iv
<PAGE>
Section 15.9. Notice to Trustee............................ 84
Section 15.10. Reliance on Judicial Order or Certificate of
Liquidating Agent........................... 85
Section 15.11. Trustee Not Fiduciary for Holders of
Senior Debt................................. 85
Section 15.12. Rights of Trustee as Holder of Senior Debt;
Preservation of Trustee's Rights............ 85
Section 15.13. Article Applicable to Paying Agents.......... 85
Section 15.14. Defeasance of this Article 15................ 86
v
<PAGE>
SUBORDINATED INDENTURE (the "Indenture"), dated as of ___________,
1998, between EASTERN ENVIRONMENTAL SERVICES, INC., a corporation duly organized
and existing under the laws of the State of Delaware (the "Company"), having its
principal office at 1000 Crawford Place, Suite 101, Mt. Laurel, New Jersey 08054
and SUMMIT BANK, a national banking association, as Trustee (the "Trustee").
RECITALS
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
Subordinated debentures, notes or other evidences of indebtedness ("Securities")
to be issued in one or more series as herein provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed as
follows for the equal and ratable benefit of the Holders of the Securities:
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
Section 1.1 Definitions. (a) For all purposes of this Indenture,
except as otherwise expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(2) 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;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles as in effect in the United States of America from time to time;
provided that when two or more principles are so generally accepted, it
shall mean that set of principles consistent with those in use by the
Company; and
(4) 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.
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"Affiliate" of any specified Person means any Person directly or
indirectly controlling or controlled by, or under direct or indirect common
control with, such specified Person. For purposes of this definition, "control"
when used with respect to any specified Person means the power to direct the
management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
"Agent" means any Paying Agent, Foreign Currency Agent or Registrar.
"Authenticating Agent" means any person appointed by the Trustee
pursuant to Section 6.14 to act on behalf of Trustee to authenticate Securities
of one or more series.
"Authorized Newspaper" means a newspaper of general circulation, in
the 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. Whenever successive publications in an
Authorized Newspaper are required hereunder they may be made (unless otherwise
expressly provided herein) on the same or different days of the week and in the
same or different Authorized Newspapers.
"Bearer Security" means any Security issued hereunder which is payable
to bearer.
"Board" or "Board of Directors" means the Board of Directors of the
Company, or any duly authorized committee thereof.
"Board Resolution" means a copy of a resolution of the Board of
Directors, 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 the certificate, and delivered to the Trustee.
"Business Day", when used with respect to any Place of Payment or any
other particular location referred to in this Indenture or in the Securities,
means, unless otherwise specified with respect to any Securities pursuant to
Section 3.1, each Monday, Tuesday, Wednesday, Thursday and Friday which is not a
day on which banking institutions in that Place of Payment or particular
location are authorized or obligated by law, regulation or executive order to
close.
"Capital Lease Obligation" of any Person means the obligation to pay
rent or other payment amounts under a lease of (or other arrangements conveying
the right to use) real or personal property of such Person which is required to
be classified and accounted for as a capital lease or a liability on a balance
sheet of such Person in accordance with generally accepted accounting
principles. The stated maturity of such obligation shall be the date of the
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last payment of rent or any other amounts due under such lease prior to the
first date upon which such lease may be terminated by the lessee without payment
of a penalty. The principal amount of such obligation shall be the capitalized
amount thereof that would appear on a balance sheet of such Person in accordance
with generally accepted accounting principles.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of 1934, as
amended, or, if at any time after the execution of this Indenture such
Commission is not existing and performing the duties now assigned to it under
the Trust Indenture Act, then the body performing such duties at such time.
"Company" means the Person named as the Company in the first paragraph
of this Indenture until a successor Person shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter means such
successor.
"Company Order" and "Company Request" mean, respectively, a written
order or request signed in the name of the Company by two Officers, one of whom
must be the Chairman of the Board, the President, the Chief Executive Officer,
the Chief Operating Officer, the Chief Financial Officer, a Vice President, the
Treasurer or the Secretary of the Company.
"consent", "waive" and "rescind", when used with respect to the
consent, waiver or rescission of or by the Holders of a specified percentage in
aggregate principal amount of Securities of any series issuable as Bearer
Securities, shall mean any of (i) a favorable vote with respect to such consent,
waiver or rescission, at any meeting of Holders of Securities of such series
duly called and held in accordance with the provisions of Article 13, by the
Holders of the applicable percentage in aggregate principal amount of such
Securities specified in the third paragraph of Section 13.4; (ii) written
consents, waivers or rescissions of or by the Holders of such specified
percentage in aggregate principal amount of such Securities; and (iii) a
combination of the favorable vote with respect to such consent, waiver or
rescission, at any meeting of Holders of Securities of such series duly called
and held in accordance with the provisions of Article 13, by the Holders of less
than the applicable percentage in aggregate principal amount of such Securities
specified in the third paragraph of Section 13.4 and written consents, waivers
or rescissions of other Holders of such Securities, where the sum of the
percentage of such Holders so voting in favor and the percentage of such Holders
signing such written consents, waivers or rescissions is equal to at least such
specified percentage.
"Corporate Trust Office" means the office of the Trustee,
at which at any particular time its corporate trust business shall be
administered, which office at the date hereof is located at 210 Main Street,
Hackensack, New Jersey, 07601 Attention: Corporate Trust Administration.
"currency unit" for all purposes of this Indenture shall include any
composite currency, including, without limitation, ECU.
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"Debt" means (without duplication), with respect to any Person,
whether recourse is to all or a portion of the assets of such Person, (i) every
obligation of such Person for money borrowed, (ii) every obligation of such
Person evidenced by bonds, debentures, notes or other similar instruments,
including obligations incurred in connection with the acquisition of property,
assets or businesses, (iii) every reimbursement obligation of such Person with
respect to letters of credit, bankers' acceptances or similar facilities issued
for the account of such Person, (iv) every obligation of such Person issued or
assumed as the deferred purchase price of property or services, (v) every
Capital Lease Obligation of such Person, (vi) the maximum fixed redemption or
repurchase price of Redeemable Interests of such Person at the time of
determination, (vii) every net payment obligation of such Person under interest
rate swap or similar agreements or foreign currency hedge, exchange or similar
agreements at the time of determination and (viii) every obligation of the type
referred to in Clauses (i) through (vii) of another Person and all dividends of
another Person the payment of which, in either case, such Person has Guaranteed
or for which such Person is responsible or liable, directly or indirectly,
jointly or severally, as obligor, Guarantor or otherwise.
"Default" means any event which is, or after notice or passage of
time, or both, would be, an Event of Default.
"Depositary", when used with respect to the Securities of or within
any series issuable or issued in whole or in part in global form, means the
Person designated as Depositary by the Company pursuant to Section 3.1(b) until
a successor Depositary shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter shall mean or include each Person
which is then a Depositary hereunder, and if at any time there is more than one
such Person, shall be a collective reference to such Persons.
"Dollar" means the currency of the United States as at the time of
payment is legal tender for the payment of public and private debts.
"ECU" means the European Currency Unit as defined and revised from
time to time by the Council of the European Communities.
"European Monetary System" means the European Monetary System
established by the Resolution of December 5, 1978 of the Council of the European
Communities.
"Exchange Rate Certificate" means a certificate, signed by the Foreign
Currency Agent, setting forth (i) the applicable Market Exchange Rate or the
applicable bid quotation and (ii) the Dollar amount of principal (and premium,
if any) and interest, if any (on an aggregate basis and on the basis of a
Security having the lowest denomination principal amount in the relevant
currency or currency unit), that would be payable with respect to a Security of
the applicable series on the basis of such Market Exchange Rate or the
applicable bid quotation.
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"Foreign Currency" means any currency issued by the government of one
or more countries other than the United States or by any recognized
confederation or association of such governments.
"Foreign Currency Agent" means any Person authorized by the Company to
determine the Market Exchange Rates with respect to any Securities and to
provide Exchange Rate Certificates and any other services required under this
Indenture in connection with any Securities denominated or payable in a Foreign
Currency.
"Government Obligations" means securities which are (i) direct
obligations of the United States or, if specified as contemplated by Section
3.1, the government which issued the currency in which the Securities of a
particular series are payable, for the payment of which its full faith and
credit is pledged or (ii) obligations of a Person controlled or supervised by
and acting as an agency or instrumentality of the United States or, if specified
as contemplated by Section 3.1, such government which issued the foreign
currency in which the Securities of a particular series are payable, the payment
of which is unconditionally guaranteed as a full faith and credit obligation by
the United States or such other government, which, in either case, are not
callable or redeemable at the option of the issuer thereof, and shall also
include a depository receipt issued by a bank or trust company as custodian with
respect to any such Government Obligation or a specific payment of interest on
or principal of any such Government Obligation held by such custodian for the
account of the holder of a depository receipt, provided that (except as required
by law) such custodian is not authorized to make any deduction from the amount
payable to the holder of such depository receipt from any amount received by the
custodian in respect of the Government Obligation evidenced by such depository
receipt.
"Holder" means, with respect to a Bearer Security, a bearer thereof or
of an interest coupon appertaining thereto and, with respect to a Registered
Security, a Person in whose name a Security is registered on the register.
"Indenture" means this Subordinated Indenture as amended and restated
hereby or as amended, waived or supplemented from time to time and shall include
and incorporate by reference the forms and terms of particular series of
Securities established as contemplated hereunder.
"Indexed Security" means a Security the terms of which provide that
the principal amount thereof payable at Stated Maturity may be more or less than
the principal face amount thereof at original issuance.
"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 and, when used with respect to any other Security, means
the interest payable thereon in accordance with its terms.
"Interest Payment Date", when used with respect to any Security, means
the Stated Maturity of an installment of interest on such Security.
"Market Exchange Rate" means, unless otherwise specified with respect
to any Securities pursuant to Section 3.1, (i) for a conversion of any currency
unit into Dollars, the
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exchange rate between the relevant currency unit and Dollars calculated by the
method specified pursuant to Section 3.1 for the Securities of the relevant
series, and (ii) for a conversion of any Foreign Currency into Dollars, the
applicable exchange rate between such Foreign Currency and Dollars set forth
under the heading, "Currency Trading -- Exchange Rates" in the "Money &
Investing" section of The Wall Street Journal (or in such other section of The
Wall Street Journal in which foreign currency exchange rates may be regularly
published from time to time) as of the most recent available date, in each case
as determined by the Foreign Currency Agent. Unless otherwise specified with
respect to any Securities pursuant to Section 3.1, in the event of the
unavailability of any of the exchange rates provided for in the foregoing
clauses (i) and (ii), the Foreign Currency Agent shall use the average of the
quotations from at least three major banks acceptable to the Company in The City
of New York (which may include any such bank acting as Foreign Currency Agent
under this Indenture), or such other quotations as the Foreign Currency Agent
and the Company shall deem appropriate.
"Maturity", when used with respect to any Security, means the date on
which the principal of such Security or an installment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Officer" means the Chairman of the Board, the President, the Chief
Executive Officer, the Chief Operating Officer, the Chief Financial Officer, any
Vice President, the Treasurer, any Assistant Treasurer, the Secretary or any
Assistant Secretary of the Company.
"Officers' Certificate", when used with respect to the Company, means
a certificate signed by two Officers, one of whom must be the Chairman of the
Board, the President, the Chief Executive Officer, the Chief Operating Officer,
the Chief Financial Officer, any Vice President, the Treasurer or the Secretary
of the Company.
"Opinion of Counsel" means a written opinion from the general counsel
of the Company or other legal counsel who is reasonably acceptable to the
Trustee. Such counsel may be an employee of or counsel to the Company.
"Original Issue Discount Security" means any Security which provides
for an amount less than the stated principal amount thereof to be due and
payable upon declaration of acceleration of the Maturity thereof pursuant to
Section 5.2.
"Outstanding", when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(i) Securities theretofore canceled by the Trustee or delivered to
the Trustee for cancellation;
(ii) Securities, or portions thereof, for whose payment or redemption
money or Government Obligations (as provided for in Section 4.7) in the
necessary amount has
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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 and any interest coupons appertaining thereto, provided that, if
such Securities are to be redeemed, notice of such redemption has been duly
given pursuant to this Indenture or provisions therefor satisfactory to the
Trustee have been made;
(iii) Securities, except to the extent provided in Sections 4.4 and
4.5, with respect to which the Company has effected defeasance and/or
covenant defeasance as provided in Article 4; and
(iv) Securities which have been replaced or paid pursuant to Section
3.6 or in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any such
Securities in respect of which there shall have been presented to the
Trustee proof satisfactory to it that such Securities are held by a bona
fide purchaser in whose hands such Securities are valid obligations of the
Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, or whether
sufficient funds are available for redemption or for any other purpose, and for
the purpose of making the calculations required by Section 313 of the Trust
Indenture Act, (w) the principal amount of any Original Issue Discount
Securities that may be counted in making such determination or calculation and
that shall be deemed to be Outstanding for such purpose shall be equal to the
amount of principal thereof that would be (or shall have been declared to be)
due and payable, at the time of such determination, upon a declaration of
acceleration of the Maturity thereof pursuant to Section 5.2, (x) the principal
amount of any Security denominated in a Foreign Currency that may be counted in
making such determination or calculation and that shall be deemed Outstanding
for such purpose shall be equal to the Dollar equivalent, determined as of the
date such Security is originally issued by the Company as set forth in an
Exchange Rate Certificate, of the principal amount (or, in the case of an
Original Issue Discount Security, the Dollar equivalent as of such date of
original issuance of the amount determined as provided in clause (w) above) of
such Security, (y) the principal amount of any Indexed Security that may be
counted in making such determination or calculation and that shall be deemed
Outstanding for such purpose shall be equal to the principal face amount of such
Indexed Security at original issuance, unless otherwise provided with respect to
such Security pursuant to Section 3.1, and (z) Securities owned by the Company
or any other obligor upon the Securities or any Affiliate of the Company or of
such other obligor shall be disregarded and deemed not to be Outstanding, except
that, in determining whether the Trustee shall be protected in making such
calculation or in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Securities which the Trustee knows to
be so owned shall be so disregarded. Securities so owned which have been pledged
in good faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the
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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 of such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of, premium, if any, interest, if any, and any other payments due on
any Securities on behalf of the Company.
"Periodic Offering" means an offering of Securities of a series from
time to time the specific terms of which Securities, including, without
limitation, the rate or rates of interest or formula or formulae for determining
the rate or rates of interest thereon, if any, the Maturity thereof, the
redemption provisions, if any, and any other terms specified as contemplated by
Section 3.1, with respect thereto, are to be determined by the Company upon the
issuance of such Securities.
"Person" means any individual, corporation, partnership, joint
venture, limited liability company, association, joint-stock company, trust,
other entity, unincorporated organization or government or any agency or
political subdivision thereof.
"Place of Payment", when used with respect to the Securities of or
within any series, means the place or places where the principal of, premium, if
any, interest and any other payments due on such Securities are payable as
specified as contemplated by Sections 3.1 and 9.2.
"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 3.6 in exchange for or 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.
"Redeemable Interest" of any Person means any equity security of or
other ownership interest in such Person that by its terms (or by the terms of
any security into which it is convertible or for which it is exchangeable) or
otherwise (including upon the occurrence of an event) matures or is required to
be redeemed (pursuant to any sinking fund obligation or otherwise) or is
convertible into or exchangeable for Debt or is redeemable at the option of the
holder thereof, in whole or in part, at any time prior to the final Stated
Maturity of the Securities.
"Redemption Date", when used with respect to any Security to be
redeemed, means the date fixed for such redemption pursuant to this Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, in whole or in part, means the price at which it is to be redeemed
pursuant to this Indenture.
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"Registered Security" means any Security issued hereunder and
registered as to principal and interest in the Register.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Securities of or within any series means the date specified for that
purpose as contemplated by Section 3.1.
"Responsible Officer", when used with respect to the Trustee, shall
mean any Vice President, the Secretary, any Assistant Secretary, the Treasurer,
any Assistant Treasurer, any Trust Officer or Assistant Trust Officer, or any
officer of the Trustee customarily performing functions similar to those
performed by any of the above designated officers and also shall mean, with
respect to a particular corporate trust matter, any officer to whom such matter
is referred because of his knowledge of and familiarity with the particular
subject.
"Security" or "Securities" has the meaning stated in the first recital
of this Indenture and more particularly means a Security or Securities of the
Company issued, authenticated and delivered under this Indenture.
"Senior Debt" means, except as otherwise provided in a prospectus
supplement relating to any series of Debt Securities, (i) all Debt of the
Company (including Debt of others guaranteed by the Company); provided, however,
the following shall not constitute Senior Debt: (A) any Debt owed to a Person
when such Person is a Subsidiary of the Company, (B) any Debt which by the terms
of the instrument creating or evidencing the same is pari passu or subordinate
in right of payment to the Subordinated Securities, (C) any Debt incurred in
violation of the applicable Indenture or (D) any Debt which is subordinate in
right of payment in any respect to any other Debt of the Company. For purposes
of this definition, "Debt" includes any obligation to pay principal, premium (if
any), interest, penalties, reimbursement or indemnity amounts, fees and expenses
(including interest accruing on or after the filing of any petition in
bankruptcy or for reorganization relating to the Company, whether or not a claim
for post-petition interest is allowed in such proceeding).
"Special Record Date" for the payment of any Defaulted Interest means
a date fixed by the Trustee pursuant to Section 3.7.
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"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 or in an interest coupon representing such installment of
interest as the fixed date on which the principal of such Security or such
installment of principal or interest is due and payable.
"Subsidiary" of any Person means any Person of which at least a
majority of the outstanding voting securities having ordinary voting power for
the election of directors or other governing body, or other ownership interests
ordinarily constituting a majority voting interest, is owned or controlled,
directly or indirectly, by such Person or by one or more Subsidiaries of such
Person, or by such Person and one or more Subsidiaries of such Person.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as amended
and as in effect on the date of this Indenture, except as provided in Section
8.3; provided, however, that if the Trust Indenture Act of 1939 is amended after
such date, "Trust Indenture Act" means, to the extent required by any such
amendment, the Trust Indenture Act of 1939 as so amended.
"Trustee" means the party named as such in the first paragraph of this
Indenture until a successor Trustee replaces it pursuant to the applicable
provisions of this Indenture, and thereafter means such successor Trustee and
if, at any time, there is more than one Trustee, "Trustee" as used with respect
to the Securities of any series shall mean the Trustee with respect to the
Securities of that series.
"United States" means, unless otherwise specified with respect to the
Securities of any series as contemplated by Section 3.1, the United States of
America (including the States thereof and the District of Columbia), its
territories, its possessions and other areas subject to its jurisdiction.
"U.S. Person" means, unless otherwise specified with respect to the
Securities of any series as contemplated by Section 3.1, a citizen, national or
resident of the United States, a corporation, partnership or other entity
created or organized in or under the laws of the United States or any political
subdivision thereof, or an estate or trust, the income of which is subject to
United States federal income taxation regardless of its source.
"Vice President", when used with respect to the Company, means any
Vice President of the Company whether or not designated by a number or a word or
words added before or after the title "Vice President."
(b) The following terms shall have the meanings specified in the
Sections referred to opposite such term below:
Term Section
---- -------
"Act" 1.4(a)
"Bankruptcy Law" 5.1
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Term Section
---- -------
"Common Stock" 14.1(b)(i)
"Company Securities Payment" 15.2
"covenant defeasance" 4.5
"Custodian" 5.1
"Defaulted Interest" 3.7(b)
"defeasance" 4.4
"Equity Securities" 14.1(b)
"Events of Default" 5.1
"NASDAQ" 14.3
"Payment Blockage Period" 15.3
"Preferred Stock" 14.1(b)(ii)
"Register" 3.5
"Registrar" 3.5
"Senior Non-Monetary Default" 15.3
"Senior Payment Default" 15.3
Section 1.2 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 such
certificates and opinions as may be required under the Trust Indenture Act
(including Section 314(c) of the Trust Indenture Act). Each such certificate or
opinion shall be given in the form of an Officers' Certificate, if to be given
by an officer or officers of the Company, or an Opinion of Counsel, if to be
given by counsel, and shall comply with the requirements of the Trust Indenture
Act and any other requirements set forth in this Indenture.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than pursuant to
Section 2.3, the last paragraph of Section 3.3 and Section 9.5) shall include:
(1) a statement that each individual signing such certificate or
opinion has read such condition or covenant and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he or
she has made such examination or investigation as is necessary to enable
him or her to express an informed opinion as to whether or not such
condition or covenant has been complied with; and
(4) a statement as to whether, in the opinion of each such individual,
such condition or covenant has been complied with.
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Section 1.3 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 or her certificate or opinion is
based are erroneous. Any such certificate or opinion or any 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 officer or counsel knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
as to such matters are erroneous.
Any certificate, statement or opinion of an officer of the Company or
of counsel may be based, insofar as it relates to accounting matters, upon a
certificate or opinion of or representations by an accountant or firm of
accountants in the employ of the Company, unless such officer or counsel, as the
case may be, knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to the accounting matters
upon which his certificate, statement or opinion is based 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 1.4 Acts of Holders. (a) Any request, demand, authorization,
direction, notice, consent, waiver or other action provided by this Indenture to
be given or taken by Holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed (either physically or by means
of a facsimile or an electronic transmission, provided, in the case of an
electronic transmission, that it is transmitted through the facilities of a
Depositary) by such Holders in person or by agent or proxy duly appointed in
writing. If Securities of a series are issuable 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 of Securities
of such series may, alternatively, be embodied in and evidenced by the record of
Holders of Securities of such series voting in favor thereof pursuant to the
third paragraph of Section 13.4, either in person or by proxies duly appointed
in writing, at any meeting of Holders of Securities of such series duly called
and held in accordance with the
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provisions of Article 13, 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 received
(either physically or by means of a facsimile or an electronic transmission,
provided, in the case of an electronic transmission, that it is transmitted
through the facilities of a Depositary) by the Trustee and, where it is hereby
expressly required, to the Company. Such instrument or instruments and 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
or, in the case of Holders of Securities of a series issuable as Bearer
Securities, so voting at such meeting. The Company and the Trustee may assume
that any Act of a Holder has not been modified or revoked unless written notice
to the contrary is received prior to the time that the action to which such Act
relates has become effective. Proof of execution of any such instrument or of a
writing appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Section 315 of the Trust Indenture Act) 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 issuable as Bearer
Securities shall be proved in the manner provided in Section 13.6.
(b) The fact and date of the execution by any Person of any such
instrument or writing and the authority of the Person executing the same may be
proved in any manner which the Trustee deems sufficient.
(c) The ownership of Bearer Securities may be proved by the production
of such Bearer Securities or by a certificate executed by any trust company,
bank, banker or other depository, 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 trust company, bank, banker or
other depository, 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 (i) another such certificate or
affidavit bearing a later date issued in respect of the same Bearer Security is
produced, (ii) such Bearer Security is produced to the Trustee by some other
Person, (iii) such Bearer Security is surrendered in exchange for a Registered
Security or (iv) such Bearer Security is no longer Outstanding. The ownership of
Bearer Securities may also be proved in any other manner which the Trustee deems
sufficient.
(d) The ownership of Registered Securities shall be proved by the
Register.
(e) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future Holder
of the same Security and any interest coupons appertaining thereto and the
Holder of every Security or interest coupon issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee or the Company in
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reliance thereon, whether or not notation of such Act is made upon such Security
or interest coupon.
(f) If the Company shall solicit from the Holders any request, demand,
authorization, direction, notice, consent, waiver or other Act, the Company may,
at its option, by or pursuant to a Board Resolution, fix in advance a record
date for the determination of Holders of Registered Securities entitled to give
such request, demand, authorization, direction, notice, consent, waiver or other
Act, but the Company shall have no obligation to do so. Notwithstanding Section
316(c) of the Trust Indenture Act, any such record date shall be the record date
specified in or pursuant to such Board Resolution, which shall be a date not
more than 30 days prior to the first solicitation of Holders generally in
connection therewith and no later than the date such first solicitation is
completed. If such a record date is fixed, such request, demand, authorization,
direction, notice, consent, waiver or other Act may be given before or after
such record date, but only the Holders of Registered Securities of record at the
close of business on such record date shall be deemed to be Holders for the
purposes of determining whether Holders of the requisite proportion of
Outstanding Securities have authorized or agreed or consented to such request,
demand, authorization, direction, notice, consent, waiver or other Act, and for
that purpose the Outstanding Securities shall be computed as of such record
date; provided that no such authorization, agreement or consent by the Holders
on such record date shall be deemed effective unless it shall become effective
pursuant to the provisions of this Indenture not later than six months after the
record date.
Without limiting the foregoing, a Holder entitled to give or 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 the principal amount of such Security to which such
appointment relates.
Section 1.5 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,
(1) 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 Corporate Trust Office, Attention: Corporate
Trust Department, or at any other address previously furnished in writing
to the Holders or the Company by the Trustee, or, with respect to notices
by the Company, transmitted by facsimile transmission (confirmed by
guaranteed overnight courier) to the following facsimile number:
(201) 646-0087 or to any other facsimile number previously furnished in
writing to the Company by the Trustee, or
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(2) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if
in writing and mailed, first-class postage prepaid, addressed to it at the
address of the Company's principal office specified in the first paragraph
of this instrument or at any other address previously furnished in writing
to the Trustee by the Company or, with respect to notices by the Trustee,
transmitted by facsimile transmission (confirmed by guaranteed overnight
courier) to the following facsimile number: (609) 231-1152 or to any other
facsimile number previously furnished in writing to the Trustee by the
Company.
Section 1.6 Notice to Holders; Waiver. Where this Indenture provides
for notice to Holders of any event, (i) if any of the Securities affected by
such event are Registered Securities, such notice to the Holders thereof shall
be sufficiently given (unless otherwise herein expressly provided) if in writing
and mailed, first-class postage prepaid, to each such Holder affected by such
event, at his or her address as it appears in the Register, within the time
prescribed for the giving of such notice, and (ii) if any of the Securities
affected by such event are Bearer Securities, notice to the Holders thereof
shall be sufficiently given (unless otherwise herein or in the terms of such
Bearer Securities expressly provided) if published once in an Authorized
Newspaper in New York, New York, and in such other city or cities, if any, as
may be specified as contemplated by Section 3.1. Such notices shall be deemed to
have been given on the date of such mailing or publication.
In any case where notice to Holders is given by mail or by
publication, neither the failure to mail or publish such notice, nor any defect
in any notice so mailed or published, to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders of Registered
Securities or of Bearer Securities. Any notice mailed to a Holder in the manner
herein prescribed shall be conclusively deemed to have been received by such
Holder, whether or not such Holder actually receives such notice.
If by reason of the suspension of regular mail service or by reason of
any other cause it shall be impracticable to give such notice as provided above,
then such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder. If it is
impossible or, in the opinion of the Trustee, impracticable to give any notice
by publication in the manner herein required, then such publication in lieu
thereof as shall be made with the approval of the Trustee shall constitute a
sufficient publication of such notice.
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.
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 equivalent of such notice.
Waivers of notice by Holders shall be filed
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with the Trustee, but such filing shall not be a condition precedent to the
validity of any action taken in reliance upon such waiver.
In case by reason of suspension of regular mail service or any other
cause it shall be impracticable to give such notice by mail, then such
notification as shall be made with the approval of the Trustee shall constitute
sufficient notification for every purpose hereunder.
Section 1.7 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 1.8 Successor and Assigns. All covenants and agreements in
this Indenture by the Company shall bind its successors and assigns, whether so
expressed or not.
Section 1.9 Separability. In case any provision of this Indenture or
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 1.10 Benefits of Indenture. Nothing in this Indenture or in
the Securities, expressed or implied, 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 1.11 Incorporators, Stockholders, Officers and Directors of
the Company Exempt from Individual Liability. No recourse under or upon any
obligation, covenant or agreement of or contained in this Indenture or contained
in any Security or interest coupon appertaining thereto, or for any claim based
thereon or otherwise in respect thereof, or because of any indebtedness
represented thereby, shall be had against any incorporator, stockholder, officer
or director, as such, past, present or future, of the Company or any successor
Person, either directly or through the Company or any successor Person, whether
by virtue of any constitution, statute or rule of law, by the enforcement of any
assessment or penalty, by any legal or equitable proceeding or otherwise; it
being expressly understood that all such liability is hereby expressly waived
and released as a condition of the acceptance of, and as a part of the
consideration for the execution of this Indenture and the issuance of, the
Securities and any interest coupons appertaining thereto.
Section 1.12 Governing Law; Conflict with Trust Indenture Act. THIS
INDENTURE, THE SECURITIES AND ANY INTEREST COUPONS APPERTAINING THERETO SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
This Indenture is subject to the Trust Indenture Act and if any provision hereof
limits, qualifies or conflicts with the Trust Indenture Act, the Trust Indenture
Act shall control. Whether or not this Indenture is required to be qualified
under the Trust Indenture Act, the provisions of the Trust Indenture Act
required to be included in an
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indenture in order for such indenture to be so qualified shall be deemed to be
included in this Indenture with the same effect as if such provisions were set
forth herein and any provisions hereof which may not be included in an indenture
which is so qualified shall be deemed to be deleted or modified to the extent
such provisions would be required to be deleted or modified in an indenture so
qualified.
Section 1.13 Legal Holidays. In any case where any Interest Payment
Date, Redemption Date, sinking fund payment date, Stated Maturity or Maturity of
any Security shall not be a Business Day at any Place of Payment, then
(notwithstanding any other provision of this Indenture or of any Security or
interest coupon other than a provision in the Securities of any series which
specifically states that such provision shall apply in lieu of this Section),
payment of principal, premium, if any, or interest need not be made at such
Place of Payment on such date, but may be made on the next succeeding Business
Day at such Place of Payment with the same force and effect as if made on such
date; provided that no interest shall accrue on the amount so payable for the
period from and after such Interest Payment Date, Redemption Date, sinking fund
payment date, Stated Maturity or Maturity, as the case may be, if such amount is
so paid on the next succeeding Business Day.
Section 1.14 Moneys of Different Currencies to Be Segregated. The
Trustee shall make provision for the segregation of all moneys, funds and
accounts held by the Trustee hereunder in one currency from any moneys, funds or
accounts in any other currencies, notwithstanding any provision herein which
would otherwise permit the Trustee to commingle such amounts.
Section 1.15 Independence of Covenants. All covenants and agreements
in this Indenture shall be given independent effect so that if a particular
action or condition is not permitted by any such covenant, the fact that it
would be permitted by an exception to, or be otherwise within the limitations
of, another covenant shall not avoid the occurrence of a Default or an Event of
Default if such action is taken or condition exists.
Section 1.16 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.
ARTICLE 2
SECURITY FORMS
Section 2.1 Forms Generally. The Securities of each series and the
interest coupons, if any, to be attached thereto shall be in substantially such
form as shall be established by or pursuant to a Board Resolution or in one or
more indentures supplemental hereto, in each case with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture, and may have such letters, numbers or other marks
of
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identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any applicable securities exchange,
organizational document, governing instrument or law or as may, consistently
herewith, be determined by the officers executing such Securities and interest
coupons, if any, as evidenced by their execution of the Securities and interest
coupons, if any. If temporary Securities of any series are issued as permitted
by Section 3.4, the form thereof also shall be established as provided in the
preceding sentence. If the forms of Securities and interest coupons, if any, of
any series are established by, or by action taken pursuant to, a Board
Resolution, a copy of the Board Resolution together with an appropriate record
of any such action taken pursuant thereto, including a copy of the approved form
of Securities or interest coupons, if any, shall be delivered to the Trustee at
or prior to the delivery of the Company Order contemplated by Section 3.3 for
the authentication and delivery of such Securities.
Unless otherwise specified as contemplated by Section 3.1, Bearer
Securities shall have interest coupons attached.
The definitive Securities and interest coupons, if any, may be
printed, lithographed or engraved on steel engraved borders or may be produced
in any other manner (or, if such Securities are listed on any securities
exchange, any other manner permitted by the rules of such securities exchange),
all as determined by the officers executing such Securities and interest
coupons, if any, as evidenced by their execution of such Securities and interest
coupons, if any.
Section 2.2 Form of Trustee's Certificate of Authentication. The
Trustee's certificate of authentication shall be in substantially the following
form:
This is one of the Securities of the series described in the within-
mentioned Indenture.
----------------------------------------,
as Trustee
By:
-------------------------------------
Authorized Signatory
Section 2.3 Securities in Global Form. If Securities of or within a
series are issuable in whole or in part in global form, any such Security may
provide that it shall represent the aggregate or specified amount of Outstanding
Securities from time to time endorsed thereon and may also provide that the
aggregate amount of Outstanding Securities represented thereby may from time to
time be reduced or increased to reflect exchanges. Any endorsement of a Security
in global form to reflect the amount, or any increase or decrease in the amount,
or changes in the rights of Holders, of Outstanding Securities represented
thereby, shall be made in such manner and by such Person or Persons as shall be
specified therein or in the Company
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Order to be delivered to the Trustee pursuant to Section 3.3 or 3.4. Subject to
the provisions of Section 3.3, Section 3.4, if applicable, and Section 3.5, the
Trustee shall deliver and redeliver any Security in permanent global form in the
manner and upon instructions given by the Person or Persons specified therein or
in the applicable Company Order. Any instructions by the Company with respect to
endorsement or delivery or redelivery of a Security in global form shall be in
writing but need not comply with Section 1.2 hereof and need not be accompanied
by an Officers' Certificate or an Opinion of Counsel.
The provisions of the last paragraph of Section 3.3 shall apply to any
Security in global form if such Security was never issued and sold by the
Company and the Company delivers to the Trustee the Security in global form
together with written instructions (which need not comply with Section 1.2
hereof and need not be accompanied by an Officers' Certificate or an Opinion of
Counsel) with regard to the reduction in the principal amount of Securities
represented thereby, together with the written statement contemplated by the
last paragraph of Section 3.3.
Notwithstanding the provisions of Section 2.1 and 3.7, unless
otherwise specified as contemplated by Section 3.1, payment of principal of,
premium, if any, and interest on any Registered Security in permanent global
form shall be made to the registered holder thereof.
Section 2.4 Form of Legend for Securities in Global Form. Any
Security in global form authenticated and delivered hereunder shall bear a
legend in substantially the following form or in such other form as may be
specified in accordance with Section 3.1:
"THIS SECURITY IS IN GLOBAL FORM WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE OF A DEPOSITARY. UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN
PART FOR SECURITIES IN CERTIFICATED FORM, THIS SECURITY MAY NOT BE
TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE
DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER
NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY."
ARTICLE 3
THE SECURITIES
Section 3.1 Amount Unlimited; Issuable in Series. (a) The aggregate
principal amount of Securities which may be authenticated and delivered under
this Indenture is unlimited. The Securities may be issued from time to time in
one or more series.
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(b) The following matters shall be established with respect to each
series of Securities issued hereunder (i) by a Board Resolution, (ii) by action
taken pursuant to a Board Resolution and (subject to Section 3.3) set forth, or
determined in the manner provided, in an Officers' Certificate or (iii) in one
or more indentures supplemental hereto:
(1) the title of the Securities of the series (which title shall
distinguish the Securities of the series from all other series of
Securities);
(2) any limit upon the aggregate principal amount of the Securities of
the series which may be authenticated and delivered under this Indenture
(which limit shall not pertain to Securities authenticated and delivered
upon registration of, transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Section 3.4, 3.5, 3.6, 8.6 or 11.7 or
any Securities that, pursuant to Section 3.3, are deemed never to have been
authenticated and delivered hereunder);
(3) the date or dates on which the principal of and premium, if any,
on the Securities of the series is payable or the method or methods of
determination thereof;
(4) the rate or rates at which the Securities of the series shall bear
interest, if any, or the method or methods of calculating such rate or
rates of interest, the date or dates from which such interest shall accrue
or the method or methods by which such date or dates shall be determined,
the Interest Payment Dates on which any such interest shall be payable, the
right, if any, of the Company to defer or extend an Interest Payment Date
and, with respect to Registered Securities, the Regular Record Date, if
any, for the interest payable on any Registered Security on any Interest
Payment Date, and the basis upon which interest shall be calculated if
other than that of a 360-day year of twelve 30-day months;
(5) the place or places where the principal of, premium, if any, and
interest, if any, on Securities of the series shall be payable, any
Registered Securities of the series may be surrendered for registration of
transfer, Securities of the series may be surrendered for exchange and
notices and demands to or upon the Company in respect of the Securities of
the series and this Indenture may be served and where notices to Holders
pursuant to Section 1.6 will be published;
(6) the period or periods within which, the price or prices at which,
the currency or currencies (including currency unit or units) in which, and
the other terms and conditions upon which, Securities of the series may be
redeemed, in whole or in part, at the option of the Company and, if other
than as provided in Section 11.3, the manner in which the particular
Securities of such series (if less than all Securities of such series are
to be redeemed) are to be selected for redemption;
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(7) the obligation, if any, of the Company to redeem or purchase
Securities of the series pursuant to any sinking fund or analogous
provisions or upon the happening of a specified event or at the option of a
Holder thereof and the period or periods within which, the price or prices
at which, the currency or currencies (including currency unit or units) in
which, and the other terms and conditions upon which, Securities of the
series shall be redeemed or purchased, in whole or in part, pursuant to
such obligation;
(8) if other than denominations of $1,000 and any integral multiple
thereof, if Registered Securities, and if other than denominations of
$5,000 and any integral multiple thereof, if Bearer Securities, the
denominations in which Securities of the series shall be issuable;
(9) if other than Dollars, the currency or currencies (including
currency unit or units) in which the principal of, premium, if any, and
interest, if any, on the Securities of the series shall be payable, or in
which the Securities of the series shall be denominated, and the particular
provisions applicable thereto in accordance with, in addition to, or in
lieu of the provisions of Section 3.12;
(10) if the payments of principal of, premium, if any, or interest, if
any, on the Securities of the series are to be made, at the election of the
Company or a Holder, in a currency or currencies (including currency unit
or units) other than that in which such Securities are denominated or
designated to be payable, the currency or currencies (including currency
unit or units) in which such payments are to be made, the terms and
conditions of such payments and the manner in which the exchange rate with
respect to such payments shall be determined, and the particular provisions
applicable thereto in lieu of the provisions of Section 3.12;
(11) if the amount of payments of principal of, premium, if any, and
interest, if any, on the Securities of the series shall be determined with
reference to an index, formula or other method (which index, formula or
method may be based, without limitation, on a currency or currencies
(including currency unit or units) other than that in which the Securities
of the series are denominated or designated to be payable), the index,
formula or other method by which such amounts shall be determined and any
special voting or defeasance provisions in connection therewith;
(12) if other than the principal amount thereof, the portion of the
principal amount of such Securities of the series which shall be payable
upon declaration of acceleration thereof pursuant to Section 5.2 or the
method by which such portion shall be determined;
(13) if other than as provided in Section 3.7, the Person to whom any
interest on any Registered Security of the series shall be payable and the
manner in which, or the Person to whom, any interest on any Bearer
Securities of the series shall be payable;
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(14) provisions, if any, granting special rights to the Holders of
Securities of the series upon the occurrence of such events as may be
specified;
(15) any deletions from, modifications of or additions to the Events
of Default set forth in Section 5.1 or covenants of the Company set forth
in Article 9 pertaining to the Securities of the series;
(16) under what circumstances, if any, and with what procedures and
documentation the Company will pay additional amounts on the Securities and
interest coupons, if any, of that series held by a Person who is not a U.S.
Person (including any modification of the definition of such term) in
respect of taxes, assessments or similar charges withheld or deducted and,
if so, whether the Company will have the option to redeem such Securities
rather than pay such additional amounts (and the terms of any such option);
(17) whether Securities of the series shall be issuable as Registered
Securities or Bearer Securities (with or without interest coupons), or
both, and any restrictions applicable to the offering, sale, transfer or
delivery of Bearer Securities and, if other than as provided in Section
3.5, the terms upon which Bearer securities of a series may be exchanged
for Registered Securities of the same series and vice versa;
(18) the date as of which any Bearer Securities of the series and any
temporary global Security representing Outstanding Securities of the series
shall be dated if other than the date of original issuance of the first
Security of the series to be issued;
(19) the forms of the Securities and interest coupons, if any, of the
series;
(20) the applicability, if any, to the Securities and interest
coupons, if any, of or within the series of Sections 4.4 and 4.5, or such
other means of defeasance or covenant defeasance as may be specified for
the Securities and interest coupons, if any, of such series, and whether,
for the purpose of such defeasance or covenant defeasance, the term
"Government Obligations" shall include obligations referred to in the
definition of such term which are not obligations of the United States or
an agency or instrumentality of the United States;
(21) if other than the Trustee, the identity of the Registrar and any
Paying Agent;
(22) if the Securities of the series shall be issued in whole or in
part in global form, (i) the Depositary for such global Securities, (ii)
whether beneficial owners of interests in any Securities of the series in
global form may exchange such interests for certificated Securities of such
series, to be registered in the names of or to be held by
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such beneficial owners or their nominees and to be of like tenor of any
authorized form and denomination, and (iii) if other than as provided in
Section 3.5, the circumstances under which any such exchange may occur;
(23) the designation of the Depositary;
(24) any restrictions on the registration, transfer or exchange of the
Securities;
(25) if the Securities of the series may be issued or delivered
(whether upon original issuance or upon exchange of a temporary Security of
such series or otherwise), or any installment of principal or interest is
payable, only upon receipt of certain certificates or other documents or
satisfaction of other conditions in addition to those specified in this
Indenture, the form and terms of such certificates, documents or
conditions;
(26) the terms and conditions of any right to convert or exchange
Securities of the series into or for Equity Securities of the Company or
other securities or property of the Company;
(27) the relative degree, if any, to which the Securities of the
series shall be senior to or be subordinated to other series of Securities
in right of payment, whether such other series of Securities are
Outstanding or not;
(28) whether the Securities are secured or unsecured, and if
unsecured, the Security and related terms in connection therewith; and
(29) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture) including any terms
which may be required by or advisable under United States laws or
regulations or advisable (as determined by the Company) in connection with
the marketing of Securities of the series.
(c) All Securities of any one series and interest coupons, if any,
appertaining thereto shall be substantially identical except as to denomination
and except as may otherwise be provided (i) by a Board Resolution, (ii) by
action taken pursuant to a Board Resolution and (subject to Section 3.3) set
forth, or determined in the manner provided, in the related Officers'
Certificate or (iii) in an indenture supplemental hereto. All Securities of any
one series need not be issued at the same time and, unless otherwise provided, a
series may be reopened, without the consent of the Holders, for issuances of
additional Securities of such series.
(d) If any of the terms of the Securities of any series are
established by action taken pursuant to a Board Resolution, a copy of such Board
Resolution shall be delivered to the Trustee at or prior to the delivery of the
Officers' Certificate setting forth, or providing the manner for determining,
the terms of the Securities of such series, and an appropriate record of
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any action taken pursuant thereto in connection with the issuance of any
Securities of such series shall be delivered to the Trustee prior to the
authentication and delivery thereof.
Section 3.2 Denominations. Unless otherwise provided as contemplated
by Section 3.1, any Registered Securities of a series denominated in Dollars
shall be issuable in denominations of U.S.$1,000 and any integral multiple
thereof and any Bearer Securities of a series denominated in Dollars shall be
issuable in the denomination of U.S.$5,000 and any integral multiple thereof.
Securities denominated in a Foreign Currency shall be issuable in such
denominations as are established with respect to such Securities in or pursuant
to this Indenture.
Section 3.3 Execution, Authentication, Delivery and Dating.
Securities shall be executed on behalf of the Company by the Chairman of the
Board, the President, the Chief Executive Officer, the Chief Operating Officer,
the Chief Financial Officer or any Vice President of the Company, and need not
be attested. The Company's seal shall be reproduced on the Securities. The
signatures of any of these officers on the Securities may be manual or
facsimile. The interest coupons, if any, of Bearer Securities shall bear the
facsimile signature of the Chairman of the Board, the President, the Chief
Executive Officer, the Chief Operating Officer, the Chief Financial Officer or
any Vice President of the Company, and need not be attested.
Securities and interest coupons bearing the manual or facsimile
signatures of individuals who were at any time Officers of the Company shall
bind the Company, notwithstanding that such individuals or any of them have
ceased to be Officers prior to the authentication and delivery of such
Securities or were not Officers at the date of such Securities.
At any time and from time to time, the Company may deliver Securities,
together with any interest coupons appertaining thereto, of any series executed
by the Company to the Trustee for authentication, together with a Company Order
for the authentication and delivery of such Securities, and the Trustee in
accordance with such Company Order shall authenticate and deliver such
Securities to or upon the order of the Company (as set forth in such Company
Order); provided, however, that, in the case of Securities of a series offered
in a Periodic Offering, the Trustee shall authenticate and deliver such
Securities from time to time in accordance with such other procedures
(including, without limitation, the receipt by the Trustee of oral or electronic
instructions from the Company or its duly authorized agents, promptly confirmed
in writing) acceptable to the Trustee as may be specified by or pursuant to a
Company Order delivered to the Trustee prior to the time of the first
authentication of Securities of such series.
If the form or terms of the Securities of a series have been
established by or pursuant to one or more Board Resolutions or one or more
indentures supplemental hereto as permitted by Sections 2.1 and 3.1, in
authenticating such Securities and accepting the additional responsibilities
under this Indenture in relation to such Securities, the Trustee shall be
entitled to
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receive, and (subject to section 315(a) through (d) of the Trust Indenture Act)
shall be fully protected in relying upon,
(i) an Opinion of Counsel stating:
(1) if the form or forms of such Securities and any interest coupons
have been established by or pursuant to a Board Resolution as permitted by
Section 2.1, that such forms have been established in conformity with the
provisions of this Indenture;
(2) if the terms of such Securities and any interest coupons have
been, or, in the case of Securities of a series offered in a Periodic
Offering, will be, established by or pursuant to a Board Resolution as
permitted by Section 3.1, that such terms have been, or, in the case of
Securities of a series offered in a Periodic Offering, will be, established
in conformity with the provisions of this Indenture, subject, in the case
of Securities offered in a Periodic Offering, to any conditions specified
in such Opinion of Counsel;
(3) if the form or terms of such Securities have been established in
an indenture supplemental hereto, that such supplemental indenture has been
duly authorized, executed and delivered by the Company and, when duly
authorized, executed and delivered by the Trustee, will constitute a legal,
valid and binding obligation enforceable against the Company in accordance
with its terms, subject to (i) bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and other similar laws of general applicability
relating to or affecting the enforcement of creditors' rights and to
general principles of equity (regardless of whether enforcement is sought
in a proceeding in equity or at law), and (ii) such other reasonable
exceptions as may be specified in such Opinion of Counsel; and
(4) that such Securities, together with any interest coupons
appertaining thereto, when issued by the Company and authenticated and
delivered by the Trustee 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 (i) bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and other similar laws of
general applicability relating to or affecting the enforcement of
creditors' rights and to general equity principles (regardless of whether
enforcement is sought in a proceeding in equity or at law) and except
further as enforcement thereof may be limited by (A) requirements that a
claim with respect to any Securities denominated other than in Dollars (or
a Foreign Currency or currency unit judgment in respect of such claim) be
converted into Dollars at a rate of exchange prevailing on a date
determined pursuant to applicable law or (B) governmental authority to
limit, delay or prohibit the making of payments in Foreign Currencies or
currency units or payments outside the United States, and (ii) such other
reasonable exceptions as may be specified in such Opinion of Counsel; and
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(ii) an Officers' Certificate stating that all conditions precedent
provided for in this Indenture relating to the issuance of such Securities
have been complied with and that, to the knowledge of the signers of such
certificate, no Event of Default with respect to such Securities shall have
occurred and be continuing.
Notwithstanding that such form or terms have been so established, the
Trustee shall have the right to decline to authenticate such Securities if, in
the opinion of the Trustee (after consultation with counsel), the issue of such
Securities pursuant to this Indenture will materially adversely affect the
Trustee's own rights, duties or immunities under this Indenture or otherwise or
if the Trustee determines (after consultation with counsel) that such
authentication may not lawfully be made.
Notwithstanding the provisions of Section 3.1 and of the two preceding
paragraphs, if all of the Securities of any series are not to be issued at one
time, it shall not be necessary to deliver the Officers' Certificate otherwise
required pursuant to Section 3.1 or the Company Order and Opinion of Counsel
otherwise required pursuant to the two preceding paragraphs in connection with
the authentication of each Security of such series if such documents, with
appropriate modifications to cover such future issuances, are delivered at or
prior to the authentication upon original issuance of the first Security of such
series to be issued.
With respect to Securities of a series offered in a Periodic Offering,
the Trustee may rely, as to the authorization by the Company of any of such
Securities, the form and terms thereof and the legality, validity, binding
effect and enforceability thereof, upon the Opinion of Counsel and the other
documents delivered pursuant to Sections 2.1 and 3.1 and this Section, as
applicable, in connection with the first authentication of Securities of such
series.
If the Company shall establish pursuant to Section 3.1 that the
Securities of a series are to be issued in whole or in part in global form, then
the Company shall execute and the Trustee shall, in accordance with this Section
and the Company Order with respect to such series, authenticate and deliver one
or more Securities in global form that (i) shall represent and shall be
denominated in an amount equal to the aggregate principal amount of the
Outstanding Securities of such series to be represented by such Security or
Securities in global form, (ii) shall be registered, if a Registered Security,
in the name of the Depositary for such Security or Securities in global form or
the nominee of such Depositary, (iii) shall be delivered by the Trustee to such
Depositary or pursuant to such Depositary's instruction and (iv) shall bear the
legend set forth in Section 2.4.
Each Depositary designated pursuant to Section 3.1 for a Registered
Security in global form must, at the time of its designation and at all times
while it serves as Depositary, be a clearing agency registered under the
Securities Exchange Act of 1934 and any other applicable statute or regulation.
If requested by the Company, the Trustee shall enter into an agreement with a
Depositary governing the respective duties and rights of such Depositary and the
Trustee with regard to Securities issued in global form.
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Each Registered Security shall be dated the date of its authentication
and each Bearer Security shall be dated as of the date specified pursuant to
Section 3.1.
No Security or interest coupon appertaining thereto shall be entitled
to any benefits under this Indenture or be valid or obligatory for any purpose
until authenticated by the manual signature of one of the authorized signatories
of the Trustee or an Authenticating Agent and no interest coupon shall be valid
until the Security to which it appertains has been so authenticated. Such
signature upon any Security shall be conclusive evidence, and the only evidence,
that such Security has been duly authenticated and delivered under this
Indenture and is entitled to the benefits of this Indenture. Except as permitted
by Section 3.6 or 3.7, the Trustee shall not authenticate and deliver any Bearer
Security unless all appurtenant interest coupons for interest then matured have
been detached and cancelled.
Notwithstanding the foregoing, if any Security shall have been
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 3.9 together with a written statement (which need not comply
with Section 1.2 hereof and need not be accompanied by an Officers' Certificate
or an Opinion of Counsel) stating that such Security 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 not be
entitled to the benefits of this Indenture.
Section 3.4 Temporary Securities. Pending the preparation of
definitive Securities of any series, the Company may execute and, upon Company
Order, the Trustee shall authenticate and deliver temporary Securities of such
series which are printed, lithographed, typewritten, mimeographed or otherwise
produced, in any authorized denomination, substantially of the tenor and form,
with or without interest coupons, of the definitive Securities in lieu of which
they are issued and with such appropriate insertions, omissions, substitutions
and other variations as the officers executing such Securities may determine, as
conclusively evidenced by their execution of such Securities and interest
coupons, if any. In the case of Securities of any series, such temporary
Securities may be in global form, representing all or a portion of the
Outstanding Securities of such series.
Except in the case of temporary Securities in global form, each of
which shall be exchanged in accordance with the provisions thereof, if temporary
Securities of any series are issued, the Company will cause definitive
Securities of such series to be prepared without unreasonable delay. After
preparation of definitive Securities of such series, 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 pursuant to Section 9.2 in a Place of Payment for such series,
without charge to the Holder. Upon surrender for cancellation of any one or more
temporary Securities of any series (accompanied by any unmatured interest
coupons appertaining thereto), the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a like principal
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amount of definitive Securities of the same series of authorized denominations
and of like tenor; provided, however, that no definitive Bearer Security shall
be delivered in exchange for a temporary Registered Security; and provided,
further, that no definitive Bearer Security shall be delivered in exchange for a
temporary Bearer Security unless such delivery shall occur only outside the
United States. 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 except as otherwise specified as
contemplated by Section 3.1.
Section 3.5 Registration, Transfer and Exchange. The Company shall
cause to be kept at the Corporate Trust Office of the Trustee or in any office
or agency to be maintained by the Company in accordance with Section 9.2 in a
Place of Payment a register (the "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. The Register shall be in written form or any other form
capable of being converted into written form within a reasonable time. The
Trustee is hereby initially appointed "Registrar" for the purpose of registering
Registered Securities and transfers of Registered Securities as herein provided.
Upon surrender for registration of transfer of any Registered Security
of any series at the office or agency maintained pursuant to Section 9.2 in a
Place of Payment for that 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 the same series, of any
authorized denominations and of a like aggregate principal amount and tenor and
containing identical terms and provisions.
Bearer Securities (except for any temporary global Bearer Securities)
or any interest coupons appertaining thereto (except for interest coupons
attached to any temporary global Bearer Security) shall be transferable by
delivery.
At the option of the Holder, Registered Securities of any series
(except a Registered Security in global form) may be exchanged for other
Registered Securities of the same series, of any authorized denominations, of a
like aggregate principal amount and tenor and containing identical terms and
provisions, upon surrender of the Registered Securities to be exchanged at such
office or agency. Whenever any Registered Securities are so surrendered for
exchange, the Company shall execute, and the Trustee shall authenticate and
deliver, the Registered Securities which the Holder making the exchange is
entitled to receive. Unless otherwise specified as contemplated by Section 3.1,
Bearer Securities may not be issued in exchange for Registered Securities.
Unless otherwise specified as contemplated by Section 3.1, at the
option of the Holder, Bearer Securities of such series may be exchanged for
Registered Securities (if the Securities of such series are issuable in
registered form) or Bearer Securities (if Bearer Securities of such series are
issuable in more than one denomination and such exchanges are permitted by
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such series) of the same series, of any authorized denominations, of like
aggregate principal amount and tenor and containing identical terms and
conditions, upon surrender of the Bearer Securities to be exchanged at any such
office or agency, with all unmatured interest coupons and all matured interest
coupons in default thereto appertaining. If the Holder of a Bearer Security is
unable to produce any such unmatured interest coupon or coupons or matured
interest coupon or coupons in default, such exchange may be effected if the
Bearer Securities are accompanied by payment in funds acceptable to the Company
and the Trustee in an amount equal to the face amount of such missing interest
coupon or coupons, or the surrender of such missing interest coupon or interest
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 interest coupon in respect of which such a
payment shall have been made, such Holder shall be entitled to receive the
amount of such payment; provided, however, that, except as otherwise provided in
Section 9.2, interest represented by interest coupons shall be payable only upon
presentation and surrender of those interest coupons at an office or agency
located outside the United States. Notwithstanding the foregoing, in case any
Bearer Security of any series is surrendered at any such office or agency in
exchange for a Registered Security of the same series 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 interest coupon relating to
such Interest Payment Date or proposed date of payment, as the case may be (or,
if such interest coupon is so surrendered with such Bearer Security, such
interest coupon shall be returned to the Person so surrendering the Bearer
Security), and interest or Defaulted Interest, as the case may be, will not be
payable on such Interest Payment Date or proposed date for payment, as the case
may be, in respect of the Registered Security issued in exchange for such Bearer
Security, but will be payable only to the Holder of such interest coupon, when
due in accordance with the provisions of this Indenture.
Notwithstanding anything herein to the contrary, the exchange of
Bearer Securities for Registered Securities shall be subject to applicable laws
and regulations in effect at the time of exchange. Neither the Company, the
Trustee nor the Registrar shall exchange any Bearer Securities for Registered
Securities if it has received an Opinion of Counsel that as a result of such
exchange 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 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 Registrar.
Notwithstanding any other provision of this Section, unless and until
it is exchanged in whole or in part for Securities in certificated form, a
Security in global form 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
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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.
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 3.3, 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 prior to the resignation of the Depositary and, in any event, within 90
days after the Company receives such notice or becomes aware of such
ineligibility, the Company's designation of the Depositary pursuant to Section
3.1(b)(23) shall no longer be effective with respect to the Securities of such
series and the Company shall execute, and the Trustee, upon receipt of a Company
Order for the authentication and delivery of certificated Securities of such
series of like tenor, shall authenticate and deliver, Securities of such series
of like tenor in certificated form, in authorized denominations and in an
aggregate principal amount equal to the principal amount of the Security or
Securities of such series of like tenor in global form in exchange for such
Security or Securities in global form.
The Company may at any time in its sole discretion determine that
Securities issued in global form shall no longer be represented by such a
Security or Securities in global form. In such event the Company shall execute,
and the Trustee, upon receipt of a Company Order for the authentication and
delivery of certificated Securities of such series of like tenor, shall
authenticate and deliver, Securities of such series of like tenor in
certificated form, in authorized denominations and in an aggregate principal
amount equal to the principal amount of the Security or Securities of such
series of like tenor in global form in exchange for such Security or Securities
in global form.
If specified by the Company pursuant to Section 3.1 with respect to a
series of Securities, the Depositary for such series may surrender a Security in
global form of such series in exchange in whole or in part for Securities of
such series in certificated form on such terms as are acceptable to the Company
and such Depositary. Thereupon, the Company shall execute, and the Trustee shall
authenticate and deliver, without service charge,
(i) to each Person specified by such Depositary a new certificated
Security or Securities of the same series of like tenor, 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
Security in global form; and
(ii) to such Depositary a new Security in global form of like tenor in
a denomination equal to the difference, if any, between the principal
amount of the surrendered Security in global form and the aggregate
principal amount of certificated Securities delivered to Holders thereof.
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Upon the exchange of a Security in global form for Securities in
certificated form, such Security in global form shall be cancelled by the
Trustee. Unless expressly provided with respect to the Securities of any series
that such Security may be exchanged for Bearer Securities, Securities in
certificated form issued in exchange for a Security in global form pursuant to
this Section shall be registered in such names and in such authorized
denominations as the Depositary for such Security in global form, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee in writing. The Trustee shall deliver such Securities to
the Persons in whose names such Securities are so registered.
Whenever any Securities are 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.
All Securities issued upon any registration of transfer or upon any
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 Registered Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company, the Registrar or
the Trustee) be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the Company, the Registrar and the Trustee duly
executed by the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
for any exchange of Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any registration or transfer or exchange of Securities, other
than exchanges pursuant to Section 3.4 or 11.7 not involving any transfer.
The Company shall not be required (i) to issue, register the transfer
of, or exchange any Securities for a period beginning at the opening of business
15 days before any selection for redemption of Securities of like tenor and of
the series of which such Security is a part and ending at the close of business
on the earliest date on which the relevant notice of redemption is deemed to
have been given to all Holders of Securities of like tenor and of such series to
be redeemed; (ii) to register the transfer of or exchange any Registered
Security so selected for redemption, in whole or in part, except the unredeemed
portion of any Security being redeemed in part; or (iii) to exchange any Bearer
Security so selected for redemption, except that such a Bearer Security may be
exchanged for a Registered Security of that series and like tenor; provided that
such Registered Security shall be simultaneously surrendered for redemption.
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The foregoing provisions relating to registration, transfer and
exchange may be modified, supplemented or superseded with respect to any series
of Securities by a Board Resolution or in one or more indentures supplemental
hereto.
Section 3.6 Replacement Securities. If a mutilated Security or a
Security with a mutilated interest coupon appertaining to it is surrendered to
the Trustee, together with, in proper cases, such security or indemnity as may
be required by the Company or the Trustee to save each of them harmless, the
Company shall execute and the Trustee shall authenticate and deliver a
replacement Registered Security, if such surrendered Security was a Registered
Security, or a replacement Bearer Security with interest coupons corresponding
to the interest coupons appertaining to the surrendered Security, if such
surrendered Security was a Bearer Security, of the same series and date of
maturity.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any Security
or Security with a destroyed, lost or stolen interest coupon and (ii) such
security or indemnity as may be required by them to save each of them and any
agent of either of them harmless, then, in the absence of notice to the Company
or the Trustee that such Security or interest coupon has been acquired by a bona
fide purchaser, the Company shall execute and the Trustee shall authenticate and
deliver in lieu of any such destroyed, lost or stolen Security or in exchange
for the Security to which a destroyed, lost or stolen interest coupon appertains
(with all appurtenant interest coupons not destroyed, lost or stolen), a
replacement Registered Security, if such Holder's claim appertains to a
Registered Security, or a replacement Bearer Security with interest coupons
corresponding to the interest coupons appertaining to the destroyed, lost or
stolen Bearer Security or the Bearer Security to which such lost, destroyed or
stolen interest coupon appertains, if such Holder's claim appertains to a Bearer
Security, of the same series and principal amount, containing identical terms
and provisions and bearing a number not contemporaneously outstanding with
interest coupons corresponding to the interest coupons, if any, appertaining to
the destroyed, lost or stolen Security.
In case any such mutilated, destroyed, lost or stolen Security or
interest coupon has become or is about to become due and payable, the Company in
its discretion may, instead of issuing a new Security or interest coupon, pay
such Security or interest coupon; provided, however, that payment of principal
of and any premium or interest on Bearer Securities shall, except as otherwise
provided in Section 9.2, be payable only at an office or agency located outside
the United States and, unless otherwise specified as contemplated by Section
3.1, any interest on Bearer Securities shall be payable only upon presentation
and surrender of the interest 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, its agents and
counsel) connected therewith.
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Every new Security of any series with its interest coupons, if any,
issued pursuant to this Section in lieu of any destroyed, lost or stolen
Security, or in exchange for a Security to which a destroyed, lost or stolen
interest coupon appertains, shall constitute an original additional contractual
obligation of the Company, whether or not the destroyed, lost or stolen Security
and its interest coupon, if any, or the destroyed, lost or stolen interest
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 that series and their interest 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 interest
coupons.
Section 3.7 Payment of Interest; Interest Rights Preserved. (a)
Unless otherwise provided as contemplated by Section 3.1, interest, if any, on
any Registered Security which is payable, and is punctually paid or duly
provided for, on any Interest Payment Date shall be paid to the Person in whose
name that Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest at the office or
agency maintained for such purpose pursuant to Section 9.2; provided, however,
that at the option of the Company, interest on any series of Registered
Securities that bear interest may be paid (i) by check mailed to the address of
the Person entitled thereto as it shall appear on the Register of Holders of
Securities of such series or (ii) at the expense of the Company, by wire
transfer to an account maintained by the Person entitled thereto as specified in
the Register of Holders of Securities of such series.
Unless otherwise provided as contemplated by Section 3.1, (i)
interest, if any, on Bearer Securities shall be paid only against presentation
and surrender of the interest coupons for such interest installments as are
evidenced thereby as they mature and (ii) original issue discount, if any, on
Bearer Securities shall be paid only against presentation and surrender of such
Securities; in either case at the office of a Paying Agent located outside the
United States, unless the Company shall have otherwise instructed the Trustee in
writing, provided that any such instruction for payment in the United States
does not cause any Bearer Security to be treated as a "registration-required
obligation" under United States laws and regulations. The interest, if any, on
any temporary Bearer Security shall be paid, as to any installment of interest
evidenced by an interest coupon attached thereto only upon presentation and
surrender of such interest coupon and, as to other installments of interest,
only upon presentation of such Security for notation thereon of the payment of
such interest. If at the time a payment of principal of or interest, if any, on
a Bearer Security or interest coupon shall become due, the payment of the full
amount so payable at the office or offices of all the Paying Agents outside the
United States is illegal or effectively precluded because of the imposition of
exchange controls or other similar restrictions on the payment of such amount in
Dollars, then the Company may instruct the Trustee in writing to make such
payments at a Paying Agent located in the United States, provided that provision
for such payment in the United States would not cause such Bearer
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Security to be treated as a "registration-required obligation" under United
States laws and regulations.
(b) Unless otherwise provided as contemplated by Section 3.1, any
interest on Securities of any series which is payable, but is not punctually
paid or duly provided for, on any Interest Payment Date in the case of
Registered Securities and upon presentation and surrender of the applicable
interest coupon in accordance with the second paragraph of Section 3.7(a) in the
case of Bearer Securities (herein called "Defaulted Interest"), shall forthwith
cease to be payable to the Holders on the relevant Regular Record Date by virtue
of their having been such Holders, and such Defaulted Interest may be paid by
the Company, at its election in each case, as provided in clause (1) or (2)
below:
(1) In the case of Registered Securities, the Company may elect to
make payment of such Defaulted Interest to the Persons in whose names 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 such Registered Security and
the date of the proposed payment, and 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 (1) provided.
Thereupon the Trustee shall fix a Special Record Date for the payment of
such Defaulted Interest which shall be not more than 15 days and not less
than 10 days prior to the date of the proposed payment and not less than 10
days after the receipt by the Trustee of the notice of the proposed
payment. The Trustee shall promptly notify the Company of such Special
Record Date and, in the name and at the expense of the Company, shall cause
notice of the proposed payment of such Defaulted Interest and the Special
Record Date therefor to be mailed, first-class postage prepaid, to each
Holder of such Registered Securities at his or her address as it appears in
the 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 so mailed, such Defaulted Interest shall
be paid to the Persons in whose names such Registered Securities (or their
respective Predecessor Securities) are registered at the close of business
on such Special Record Date and shall no longer be payable pursuant to the
following clause (2).
(2) (x) In the case of Registered Securities, the Company may make
payment of such Defaulted Interest to the Persons in whose names such
Registered Securities (or their respective Predecessor Securities) are
registered at the close of business on a specified date in any other lawful
manner not inconsistent with the requirements of any securities exchange on
which such Registered Securities may be listed, and upon such notice as may
be required by such exchange, if, after notice given by the Company to the
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Trustee of the proposed payment pursuant to this clause (2)(x), such manner
of payment shall be deemed practicable by the Trustee; or (y) unless
otherwise provided as contemplated by Section 3.1, in the case of Bearer
Securities, the Company may make payment of Defaulted Interest on such
Bearer Securities in any lawful manner not inconsistent with the
requirements of any securities exchange on which such Bearer Securities may
be listed, and upon such notice as may be required by such exchange, if,
after notice given by the Company to the Trustee of the proposed payment
pursuant to this clause (2)(y), such manner of payment shall be deemed
practicable by the Trustee.
(c) Subject to the foregoing provisions of this Section and Section
3.5, 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.
(d) Subject to the provisions of Section 14.2, in the case of any
Registered Security which is converted or exchanged after any Regular Record
Date and on or prior to the next succeeding Interest Payment Date (other than
any Security the principal of (or premium, if any, on) which shall become due
and payable, whether at a Stated Maturity or by declaration of acceleration,
call for redemption, or otherwise, prior to such Interest Payment Date),
interest whose Stated Maturity is on such Interest Payment Date shall be payable
on such Interest Payment Date notwithstanding such conversion or exchange and
such interest (whether or not punctually paid or duly provided for) shall be
paid to the Person in whose name that Registered Security (or any one or more
Predecessor Securities) is registered at the close of business on such Regular
Record Date. Except as otherwise expressly provided in the immediately preceding
sentence, in the case of any Security which is converted or exchanged, interest
whose Stated Maturity is after the date of conversion or exchange of such
Security shall not be payable.
Section 3.8 Persons Deemed Owners. Unless otherwise provided as
contemplated by Section 3.1, prior to due presentment of any Registered Security
for registration of transfer, the Company, the Trustee and any agent of the
Company or the Trustee may treat the Person in whose name such Registered
Security is registered as the owner of such Registered Security for the purpose
of receiving payment of principal of, premium, if any, and (subject to Section
3.7) interest on such Registered Security and for all other purposes whatsoever,
whether or not such Registered 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.
Unless otherwise provided as contemplated by Section 3.1, 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 interest coupon as the absolute owner
of such Bearer Security or interest coupon for the purpose of receiving payment
thereof or on account thereof and for all other purposes whatsoever, whether or
not such Bearer Security or interest 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.
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None of the Company, the Trustee or any agent of the Company or the
Trustee shall have any responsibility or liability for any aspect of the records
relating to or payments made on account of beneficial ownership interests of a
Security in global form, or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests. No holder of any
beneficial interest in any Security in global form, held on its behalf by or
through a Depositary, shall have any rights under this Indenture with respect to
such Security in global form, and such Depositary may be treated by the Company,
the Trustee and any agent of the Company or the Trustee as the owner of such
Security in global form for all purposes whatsoever. With respect to any
Security in global form, nothing herein shall prevent the Company or the
Trustee, or any agent of the Company or the Trustee, from giving effect to any
written certification, proxy or other authorization furnished by any Depositary
(or its nominee), as a Holder, with respect to such Security in global form or
impair, as between such Depositary and owners of beneficial interests in such
Security in global form, the operation of customary practices governing the
exercise of the rights of such Depositary (or its nominee) as Holder of such
Security in global form.
Section 3.9 Cancellation. All Securities and interest coupons
appertaining thereto, if any, surrendered for payment, redemption, conversion,
registration of transfer or exchange or for credit against any sinking fund
payment shall, if surrendered to any Person other than the Trustee, be delivered
to the Trustee and shall be promptly cancelled by it. The Company may at any
time deliver to the Trustee for cancellation any Securities, together with
interest coupons appertaining thereto, if any, previously authenticated and
delivered hereunder which the Company may have acquired in any manner
whatsoever, and may deliver to the Trustee (or to any other Person for delivery
to the Trustee) for cancellation any Securities, together with interest coupons
appertaining thereto, if any, previously authenticated hereunder which the
Company has not issued and sold, and all Securities and interest coupons 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 3.9, except as expressly permitted by this Indenture. All
cancelled Securities and interest coupons held by the Trustee shall be disposed
of in accordance with its customary procedures, and the Trustee shall thereafter
deliver to the Company a certificate with respect to such disposition.
Section 3.10 Computation of Interest. Except as otherwise specified
as contemplated by Section 3.1, interest on the Securities of each series shall
be computed on the basis of a 360-day year of twelve 30-day months.
Section 3.11 CUSIP Numbers. The Company in issuing the Securities may
use "CUSIP" numbers (if then generally in use and in addition to the other
identification numbers printed on the Securities), and, in such case, the
Trustee shall use "CUSIP" numbers in notices of redemption as a convenience to
Holders; provided that any such notice may state that no representation is made
as to the correctness of such numbers either as printed on the Securities or as
contained in any notice of a redemption and that reliance may be placed only on
the other
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identification numbers printed on the Securities, and any such redemption shall
not be affected by any defect in or omission of such numbers.
Section 3.12 Currency and Manner of Payment in Respect of Securities.
Unless otherwise specified with respect to any Securities pursuant to Section
3.1, payment of the principal of, premium, if any, and interest, if any, on any
Security of such series will be made in the currency or currencies or currency
unit or units in which such Security is payable. The provisions of this Section
3.12 may be modified or superseded pursuant to Section 3.1 with respect to any
Securities.
ARTICLE 4
SATISFACTION, DISCHARGE AND DEFEASANCE
Section 4.1 Termination of Company's Obligations Under the Indenture.
(a) This Indenture shall upon a Company Request cease to be of further effect
with respect to Securities of or within any series and any interest coupons
appertaining thereto (except as to (i) rights of registration, transfer or
exchange of such Securities, (ii) rights of replacement of such Securities which
may have been lost, stolen or mutilated as herein expressly provided for, (iii)
rights of holders of Securities to receive payments of principal thereof and
interest thereon, upon the Stated Maturity thereof (but not upon acceleration),
and rights of the Holders to receive mandatory sinking fund payments, if any,
(iv) rights of holders of Securities to convert or exchange Securities, (v)
rights, obligations, duties and immunities of the Trustee hereunder, (vi) any
rights of the Holders of Securities of such series as beneficiaries hereof with
respect to the property so deposited with the Trustee payable to all or any of
them, and (vii) the obligations of the Company under Section 9.2) and the
Trustee, upon payment of all amounts due it under Section 6.7, at the expense of
the Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture with respect to such Securities and any interest
coupons appertaining thereto when,
(1) either (A) all such Securities previously authenticated and
delivered and all interest coupons appertaining thereto (other than (i)
such interest coupons appertaining to Bearer Securities surrendered in
exchange for Registered Securities and maturing after such exchange,
surrender of which is not required or has been waived as provided in
Section 3.5, (ii) such Securities and interest coupons which have been
destroyed, lost or stolen and which have been replaced or paid as provided
in Section 3.6, (iii) such interest coupons appertaining to Bearer
Securities called for redemption and maturing after the relevant Redemption
Date, surrender of which has been waived as provided in Section 11.6 and
(iv) such Securities and interest coupons for whose payment money in the
currency or currencies or currency unit or units in which such Securities
are payable 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 9.3) have been delivered to the
Trustee for cancellation; or (B) all
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Securities of such series and, in the case of (i) or (ii) below, any
interest coupons appertaining thereto not theretofore delivered to the
Trustee for cancellation:
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity within one
year, or
(iii) 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
(iv) the Company, in the case of (i), (ii) or (iii) above, has
irrevocably deposited or caused to be deposited with the Trustee as trust
funds in trust for the purpose an amount in the currency or currencies or
currency unit or units in which the Securities of such series are payable,
sufficient to pay and discharge the entire indebtedness on such Securities
and such interest coupons not theretofore delivered to the Trustee for
cancellation, for principal, premium, if any, and interest, with respect
thereto, to the date of such deposit (in the case of Securities which have
become due and payable) or to the Stated Maturity or Redemption Date, as
the case may be;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge of
this Indenture as to such series have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligation of the Company to the Trustee and any predecessor Trustee under
Section 6.7, the obligations of the Company to any Authenticating Agent under
Section 6.14 and, if money shall have been deposited with the Trustee pursuant
to subclause (B) of clause (1) of this Section, the obligations of the Trustee
under Section 4.2, Section 9.2, the last paragraph of Section 9.3 and Section
10.2 shall survive.
Section 4.2 Application of Trust Funds. Subject to the provisions of
the last paragraph of Section 9.3, all money deposited with the Trustee pursuant
to Section 4.1 shall be held in trust and applied by it, in accordance with the
provisions of the Securities, the interest coupons appertaining thereto, 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 any interest for whose payment such money has been deposited with or
received by the Trustee, but
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such money need not be segregated from other funds except as otherwise provided
herein and except to the extent required by law.
Section 4.3 Applicability of Defeasance Provisions; Company's Option
to Effect Defeasance or Covenant Defeasance. Except as otherwise specified as
contemplated by Section 3.1 for the Securities of any series, the provisions of
Sections 4.3 through 4.9 inclusive, with such modifications thereto as may be
specified pursuant to Section 3.1 with respect to any series of Securities,
shall be applicable to the Securities and any interest coupons appertaining
thereto.
Section 4.4 Defeasance and Discharge. On and after the date on which
the conditions set forth in Section 4.6 are satisfied with respect to the
Securities of or within any series, the Company shall be deemed to have paid and
been discharged from its obligations with respect to such Securities and any
interest coupons appertaining thereto (hereinafter "defeasance"). For this
purpose, such defeasance means that the Company shall be deemed to have paid and
discharged the entire indebtedness represented by such Securities and any
interest coupons appertaining thereto which shall thereafter be deemed to be
"Outstanding" only for the purposes of Section 4.7 and the other Sections of
this Indenture referred to in clause (ii) of this Section, and to have satisfied
all its other obligations under such Securities and any interest coupons
appertaining thereto and this Indenture insofar as such Securities and any
interest coupons appertaining thereto are concerned (and the Trustee, upon
payment of all amounts due it under Section 6.7, at the expense of the Company,
shall on a Company Order execute proper instruments acknowledging the same),
except the following which shall survive until otherwise terminated or
discharged hereunder: (i) the rights of Holders of such Securities and any
interest coupons appertaining thereto to receive, solely from the trust funds
described in Section 4.6(a) and as more fully set forth in such Section,
payments in respect of the principal of, premium, if any, and interest, if any,
on such Securities or any interest coupons appertaining thereto when such
payments are due; (ii) the Company's obligations with respect to such Securities
under Sections 3.5, 3.6, 9.2 and 9.3 and with respect to the payment of
additional amounts, if any, payable with respect to such Securities as specified
pursuant to Section 3.1(b)(16); (iii) the Company's obligations with respect to
a conversion or exchange of such Securities; (iv) the rights, powers, trusts,
duties and immunities of the Trustee hereunder and (v) this Article 4. Subject
to compliance with this Article 4, the Company may defease the Securities of any
series and any interest coupons appertaining thereto under this Section 4.4
notwithstanding a prior covenant defeasance (as defined herein) under Section
4.5 with respect to such Securities and any interest coupons appertaining
thereto. Following a defeasance, payment of such Securities may not be
accelerated because of an Event of Default.
Section 4.5 Covenant Defeasance. On and after the date on which the
conditions set forth in Section 4.6 (other than Section 4.6(c)) are satisfied
with respect to the Securities of or within any series, (i) the Company shall be
released from its obligations under Sections 7.1 and 9.4 and, if specified
pursuant to Section 3.1, its obligations under any other covenant, with respect
to such Securities and any interest coupons appertaining thereto and (ii) the
occurrence of any event specified in Sections 5.1(3) or 5.1(7) (with respect to
any of the
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obligations described in clause (i) above) or 5.1(4) shall be deemed not to be
or result in a Default or Event of Default (hereinafter, "covenant defeasance"),
and such Securities and any interest coupons appertaining thereto shall
thereafter be deemed to be not "Outstanding" for the purposes of any request,
demand, authorization, direction, notice, waiver, consent or declaration or Act
of Holders (and the consequences of any thereof) in connection with Section 7.1,
or 9.4, such other covenant specified pursuant to Section 3.1, or Section
5.1(4), but shall continue to be deemed "Outstanding" for all other purposes
hereunder. For this purpose, such covenant defeasance means that, with respect
to such Securities and any interest coupons appertaining thereto, the Company
may omit to comply with and shall have no liability in respect of any term,
condition or limitation set forth in any such Section or such other covenant,
whether directly or indirectly, by reason of any reference elsewhere herein to
any such Section or such other covenant or by reason of reference in any such
Section or such other covenant to any other provision herein or in any other
document and such omission to comply shall not constitute a Default or an Event
of Default under Section 5.1(3), 5.1(4) or 5.1(7) or otherwise, as the case may
be, but, except as specified above, the remainder of this Indenture and such
Securities and any interest coupons appertaining thereto shall be unaffected
thereby.
Section 4.6 Conditions to Defeasance or Covenant Defeasance. The
following shall be the conditions to application of Section 4.4 or Section 4.5
to any Securities of or within a series and any interest coupons appertaining
thereto:
(a) The Company shall have deposited or caused to be deposited
irrevocably with the Trustee (or another trustee satisfying the
requirements of Section 6.9 who shall agree to comply with, and shall be
entitled to the benefits of, the provisions of Sections 4.3 through 4.9
inclusive and the last paragraph of Section 9.3 applicable to the Trustee,
for purposes of such Sections also a "Trustee") as trust funds in trust for
the purpose of making the payments referred to in clauses (x) and (y) of
this Section 4.6(a), specifically pledged as security for, and dedicated
solely to, the benefit of the Holders of such Securities and any interest
coupons appertaining thereto, with written instructions to the Trustee as
to the application thereof, (A) money in an amount (in such currency,
currencies or currency unit or units in which such Securities and any
interest coupons appertaining thereto are then specified as payable at
Maturity), or (B) if Securities of such series are not subject to repayment
at the option of Holders, Government Obligations which through the payment
of interest and principal in respect thereof in accordance with their terms
will provide, not later than one day before the due date of any payment
referred to in clause (x) or (y) of this Section 4.6(a), money in an amount
or (C) a combination thereof in an amount, sufficient, in the opinion of a
nationally recognized firm of independent certified public accountants or a
nationally recognized investment banking firm expressed in a written
certification thereof delivered to the Trustee, to pay and discharge, and
which shall be applied by the Trustee to pay and discharge, (x) the
principal of, premium, if any, and interest, if any, on such Securities and
any interest coupons appertaining thereto on the Maturity of such principal
or installment of principal or interest and (y) any mandatory sinking fund
payments
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applicable to such Securities on the day on which such payments are due and
payable in accordance with the terms of this Indenture and such Securities
and any interest coupons appertaining thereto. Before such a deposit the
Company may make arrangements satisfactory to the Trustee for the
redemption of Securities at a future date or dates in accordance with
Article 11 which shall be given effect in applying the foregoing.
(b) No Default or Event of Default with respect to the Securities of
that series shall have occurred or be continuing on the date of such a
deposit or shall occur as a result of such a deposit or, insofar as
Sections 5.1(5) and (6) are concerned, shall occur at anytime during the
period ending on the 91st day after the date of such deposit (it being
understood that this condition shall not be deemed satisfied until the
expiration of such period).
(c) In the case of an election under Section 4.4, the Company shall
have delivered to the Trustee an Officers' Certificate and an Opinion of
Counsel to the effect that (i) the Company has received from, or there has
been published by, the Internal Revenue Service a ruling, or (ii) since the
date of execution of this Indenture, there has been a change in the
applicable U.S. Federal income tax law, in either case to the effect that,
and based thereon such opinion shall confirm that, the Holders of such
Securities and any interest coupons appertaining thereto will not recognize
income, gain or loss for U.S. Federal income tax purposes as a result of
such defeasance and will be subject to U.S. Federal income tax on the same
amount and in the same manner and at the same times, as would have been the
case if such deposit, defeasance and discharge had not occurred.
(d) In the case of an election under Section 4.5, the Company shall
have delivered to the Trustee an Officers' Certificate and an Opinion of
Counsel to the effect that the Holders of such Securities and any interest
coupons appertaining thereto will not recognize income, gain or loss for
U.S. Federal income tax purposes as a result of such covenant defeasance
and will be subject to U.S. Federal income tax on the same amount and in
the same manner and at the same times, as would have been the case if such
deposit and covenant defeasance had not occurred.
(e) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent to the defeasance under Section 4.4 or the covenant defeasance
under Section 4.5 (as the case may be) have been complied with.
(f) Such defeasance or covenant defeasance shall be effected in
compliance with any additional or substitute terms, conditions or
limitations which may be imposed on the Company in connection therewith as
contemplated by Section 3.1.
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(g) At the time of such deposit: (A) no Default in the payment of
principal of (or premium, if any) or interest on any Senior Debt shall have
occurred and be continuing or (B) no other Event of Default with respect to
any Senior Debt shall have occurred and be continuing and shall have
resulted in such Senior Debt becoming or being declared due and payable
prior to the date on which it would otherwise have become due and payable,
or, in the case of either clause (A) or clause (B) above, each such Default
or Event of Default shall have been cured or waived or shall have ceased to
exist.
Section 4.7 Deposited Money and Government Obligations to Be Held in
Trust. Subject to the provisions of the last paragraph of Section 9.3, all money
and Government Obligations (or other property as may be provided pursuant to
Section 3.1) (including the proceeds thereof) deposited with the Trustee
pursuant to Section 4.6 in respect of any Securities of any series and any
interest coupons appertaining thereto shall be held in trust and applied by the
Trustee, in accordance with the provisions of such Securities and any interest
coupons appertaining thereto and this Indenture, to the payment, either directly
or through any Paying Agent (including the Company acting as its own Paying
Agent) as the Trustee may determine, to the Holders of such Securities and any
interest coupons appertaining thereto of all sums due and to become due thereon
in respect of principal, premium, if any, and interest, if any, but such money
need not be segregated from other funds except as provided herein and except to
the extent required by law.
Section 4.8 Repayment to Company. The Trustee (and any Paying Agent)
shall promptly pay to the Company upon Company Request any excess money or
securities held by them at any time.
The provisions of the last paragraph of Section 9.3 shall apply to any
money or securities held by the Trustee or any Paying Agent under this Article 4
that remain unclaimed for two years after the Maturity of any series of
Securities for which money or securities have been deposited pursuant to Section
4.6(a).
Section 4.9 Indemnity for Government Obligations. The Company shall
pay, and shall indemnify the Trustee against, any tax, fee or other charge
imposed on or assessed against Government Obligations deposited pursuant to this
Article or the principal and interest and any other amount received on such
Government Obligations.
Section 4.10 Reinstatement. If the Trustee (or Paying Agent) is
unable to apply any money or Government Obligations in accordance with Section
4.6 by reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, then the
Company's obligations under this Indenture and the Securities shall be revived
and reinstated, with present and prospective effect, as though no deposit had
occurred pursuant to Section 4.6, until such time as the Trustee (or Paying
Agent) is permitted to apply all such money or Government Obligations in
accordance with Section 4.6; provided, however, that
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if the Company makes any payment to the Trustee (or Paying Agent) of principal,
premium, if any, or interest on any Security following the reinstatement of its
obligations, the Trustee (or Paying Agent) shall promptly pay any such amount to
the Holders of the Securities and the Company shall be subrogated to the rights
of the Holders of such Securities to receive such payment from the money and
Government Obligations held by the Trustee (or Paying Agent).
ARTICLE 5
DEFAULTS AND REMEDIES
Section 5.1 Events of Default. An "Event of Default" occurs with
respect to the Securities of any series if (whatever the reason for such Event
of Default and whether it shall be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(1) the Company defaults in the payment of interest on any Security of
that series or any interest coupon appertaining thereto or any additional
amount payable with respect to any Security of that series as specified
pursuant to Section 3.1(b)(16) when the same becomes due and payable and
such default continues for a period of 30 days;
(2) the Company defaults in the payment of any installment of the
principal of or any premium on any Security of that series when the same
becomes due and payable at its Maturity;
(3) the Company fails to comply with any of its agreements or
covenants in, or any of the provisions of, this Indenture with respect to
any Security of that series (other than an agreement, covenant or provision
for which non-compliance is elsewhere in this Section specifically dealt
with), and such non- compliance continues for a period of 90 days after
there has been given, by registered or certified mail, return receipt
requested, 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
Outstanding Securities of the 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;
(4) the Company defaults under any mortgage, indenture or instrument
under which there may be issued, or by which there may be secured or
evidenced, any Debt (including this Indenture) having an aggregate
principal amount outstanding of at least $25,000,000, whether such Debt now
exists or shall hereafter be created, and, as a result of such default,
such Debt shall become due and payable, whether by acceleration or
otherwise, and such acceleration shall not be rescinded, annulled or cured
within a period of 30 days after there has been given, by registered or
certified mail, return receipt requested, to the Company by the Trustee or
to the Company and the Trustee by the
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Holders of at least 25% in aggregate principal amount of the Outstanding
Securities of that series a written notice specifying such default and
requiring it to be remedied and stating that such notice is a "Notice of
Default" hereunder (it being understood however, that the Trustee shall not
be deemed to have knowledge of such default under such agreement or
instrument unless a Responsible Officer of the Trustee shall have received
written notice thereof from the Company, from any Holder, from the holder
of any such Debt or from the trustee under any such agreement or other
instrument); provided, however, that if such default under such mortgage,
indenture or instrument is remedied or cured by the Company or waived by
the holders of such Debt, then the Event of Default hereunder by reason
thereof shall be deemed likewise to have been thereupon remedied, cured or
waived without further action upon the part of either the Trustee or any of
such Holders;
(5) the Company pursuant to or within the meaning of any Bankruptcy
Law (A) commences a voluntary case, (B) consents to the entry of an order
for relief against it in an involuntary case, (C) consents to the
appointment of a Custodian of it or for all or substantially all of its
property, (D) makes a general assignment for the benefit of its creditors
or (E) admits in writing its inability generally to pay its debts as they
become due;
(6) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that (A) is for relief against the Company in an
involuntary case, (B) appoints a Custodian of the Company or for all or
substantially all of its property, or (C) orders the liquidation of the
Company, and such order or decree remains unstayed and in effect for 90
days; or
(7) there occurs any other Event of Default provided as contemplated
by Section 3.1 with respect to Securities of that series.
The term "Bankruptcy Law" means Title 11, United States Bankruptcy
Code of 1978, as amended, or any similar United States federal or state law
relating to bankruptcy, insolvency, receivership, reorganization or relief of
debtors or any amendment to, successor to or change in any such law. The term
"Custodian" means any receiver, trustee, assignee, liquidator, custodian,
sequestrator or similar official under any Bankruptcy Law.
Section 5.2 Acceleration; Rescission and Annulment. If an Event of
Default with respect to the Securities of any series at the time Outstanding
(other than an Event of Default specified in clause (5) or (6) of Section 5.1)
occurs and is continuing, the Trustee or the Holders of at least 25% in
aggregate principal amount of all of the Outstanding Securities of that series,
by written notice received by the Company (and, if given by the Holders,
received by the Trustee), may declare the principal (or, if the Securities of
that series are Original Issue Discount Securities or Indexed Securities, such
portion of the principal amount as may be specified in the terms of that series)
of and accrued interest, if any, on all the Securities of that series to be due
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and payable and upon any such declaration such principal (or, in the case of
Original Issue Discount Securities or Indexed Securities, such specified amount)
and interest, if any, shall be immediately due and payable, provided that the
payment of principal and interest on such Securities shall remain subordinated
to the extent provided in Article 15. If an Event of Default specified in clause
(5) or (6) of Section 5.1 with respect to the Securities of any series at the
time Outstanding occurs and is continuing, then the principal (or, if the
Securities of that series are Original Issue Discount Securities or Indexed
Securities, such portion of the principal amount as may be specified in the
terms of that series) of and accrued interest, if any, on all the Securities of
that series shall ipso facto be immediately due and payable without any
declaration or act on the part of the Trustee or any Holder of such Securities,
provided that the payment of principal and interest on such Securities shall
remain subordinated to the extent provided in Article 15.
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 aggregate principal amount of the
Outstanding Securities of that series, by written notice to the Trustee, may
rescind and annul such declaration and its consequences if all existing Defaults
and Events of Default with respect to Securities of that series, other than the
non-payment 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 5.7. No such rescission shall affect any subsequent default
or impair any right consequent thereon.
Section 5.3 Collection of Indebtedness and Suits for Enforcement by
Trustee. The Company covenants that if
(1) default is made in the payment of any interest on any Security or
interest coupon, if any, when such interest becomes due and payable and
such default continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or premium, if
any, on) any Security at the Maturity thereof, the Company will, upon
demand of the Trustee, pay to it, for the benefit of the Holders of such
Securities or interest coupons, if any, the whole amount then due and
payable on such Securities for principal, premium, if any, and interest
and, to the extent that payment of such interest shall be legally
enforceable, interest on any overdue principal, premium, if any, and on any
overdue interest, at the rate or rates prescribed therefor in such
Securities or interest coupons, if any, and, in addition thereto, such
further amount as shall be sufficient to cover the costs and expenses of
collection, including all amounts due the Trustee, its agents and counsel
under Section 6.7.
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
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final decree, and may enforce the same against the Company or any other obligor
upon the 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 the Securities, wherever situated.
If an Event of Default with respect to Securities of any series 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 secure any other proper remedy, subject, however, to
Section 5.8.
Section 5.4 Trustee May File Proofs of Claim. In case of any
judicial proceeding relative to the Company (or any other obligor upon the
Securities), its property or its creditors, the Trustee shall be entitled and
empowered, by intervention in such proceeding or otherwise, to take any and all
actions authorized under the Trust Indenture Act in order to have claims of the
Holders and the Trustee allowed in any such proceeding. In particular, the
Trustee shall be authorized to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same; and any
custodian, receiver, assignee, trustee, liquidator, sequestrator or 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 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 6.7.
No provision of this Indenture 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 interest coupon any plan of reorganization, arrangement,
adjustment or composition affecting the Securities or the rights of any Holder
of a Security or interest coupon thereof or to authorize the Trustee to vote in
respect of the claim of any Holder of a Security or interest coupon in any such
proceeding; provided, however, that the Trustee may, on behalf of the Holders,
vote for the election of a trustee in bankruptcy or similar official and be a
member of a creditors' or other similar committee.
Section 5.5 Trustee May Enforce Claims Without Possession of
Securities. All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without the possession
of any of the Securities or the production thereof in any proceeding relating
thereto.
Section 5.6 Delay or Omission Not Waiver. No delay or omission by
the Trustee or any Holder of any Securities to exercise any right or remedy
accruing upon an Event
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of Default shall impair any such right or remedy or constitute a waiver of or
acquiescence in any such Event of Default.
Section 5.7 Waiver of Past Defaults. The Holders of not less than a
majority in aggregate principal amount of Outstanding Securities of any series
by written notice to the Trustee may waive on behalf of the Holders of all
Securities of such series and any interest coupons appertaining thereto a past
Default or Event of Default with respect to that series and its consequences
except (i) a Default or Event of Default in the payment of the principal of,
premium, if any, or interest on any Security of such series or any interest
coupon appertaining thereto or (ii) in respect of a covenant or provision hereof
which pursuant to Article 8 cannot be amended or modified 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 this
Indenture but no such waiver shall extend to any subsequent or other default or
impair any right consequent thereon.
Section 5.8 Control by Majority. The Holders of not less than a
majority in aggregate principal amount of the Outstanding Securities of each
series affected (with each such series voting as a class) 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 it with
respect to Securities of that series; provided, however, that (i) the Trustee
may refuse to follow any direction that conflicts with any governmental rule or
law or this Indenture, (ii) the Trustee may refuse to follow any direction that
is unduly prejudicial to the rights of the Holders of Securities of such series
not consenting, or that would in the good faith judgment of the Trustee have a
substantial likelihood of involving the Trustee in personal liability without
adequate indemnity having been offered therefor and (iii) subject to Section
6.1, the Trustee may take any other action deemed proper by the Trustee which is
not inconsistent with such direction.
Section 5.9 Limitation on Suits by Holders. No Holder of any
Security of any series or any interest coupons appertaining thereto shall have
any right to institute any proceeding, judicial or otherwise, with respect to
this Indenture, or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless:
(1) the Holder has previously given written notice to the Trustee of a
continuing Event of Default with respect to the Securities of that series;
(2) the Holders of at least 25% in aggregate principal amount of the
Outstanding Securities of that series have made a written request to the
Trustee to institute proceedings in respect of such Event of Default in its
own name as Trustee hereunder;
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(3) such Holder or Holders have offered to the Trustee indemnity
satisfactory to the Trustee against any loss, liability or expense to be,
or which may be, incurred by the Trustee in pursuing the remedy;
(4) the Trustee for 60 days after its receipt of such notice, request
and the offer of indemnity has failed to institute any such proceedings;
and
(5) during such 60-day period, the Holders of a majority in aggregate
principal amount of the Outstanding Securities of that series have not
given to the Trustee a direction inconsistent with such written request.
No one or more Holders shall have any right in any manner whatever by
virtue of, or by availing of, any provision of this Indenture to affect, disturb
or prejudice the rights of any other of such Holders, or to obtain or to seek to
obtain priority or preference over any other of 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 of such Holders.
Section 5.10 Rights of Holders to Receive Payment. Notwithstanding
any other provision of this Indenture, but subject to Section 9.2, the right of
any Holder of a Security or interest coupon to receive payment of principal of,
premium, if any, and, subject to Sections 3.5 and 3.7, interest on the Security,
on or after the respective due dates expressed in the Security (or, in case of
redemption, on the Redemption Dates), the right of any Holder of an interest
coupon to receive payment of interest due as provided in such interest coupon,
or to bring suit for the enforcement of any such payment on or after such
respective dates, and the right, if any, to convert or exchange such Security in
accordance with Article 14, shall not be impaired or affected without the
consent of such Holder.
Section 5.11 Application of Money Collected. If the Trustee collects
any money pursuant to this Article, it shall pay out the money 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 and interest coupons, if any, and
the notation thereon of the payment if only partially paid and upon surrender
thereof if fully paid:
First: to the Trustee for amounts due under Section 6.7;
Second: to Holders of Securities and interest coupons in respect of
which or for the benefit of which such money has been collected for amounts due
and unpaid on such Securities for principal of, premium, if any, and interest,
ratably, without preference or priority of any kind, according to the amounts
due and payable on such Securities for principal, premium, if any, and interest,
respectively; and
Third: the balance, if any, to the Company.
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The Holders of each series of Securities denominated in ECU, any other
currency unit or a Foreign Currency and any matured interest coupons relating
thereto shall be entitled to receive a ratable portion of the amount determined
by the Foreign Currency 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 Market Exchange Rate as of the date of declaration of
acceleration of Maturity of the Securities.
The Trustee may fix a record date and payment date for any payment to
Holders pursuant to this Section 5.11. At least 15 days before such record date,
the Trustee shall mail to each Holder and the Company a notice that states the
record date, the payment date and the amount to be paid.
Section 5.12 Restoration of Rights and Remedies. If the Trustee or
any Holder has instituted any proceeding to enforce any right or remedy under
this Indenture and such proceeding has been discontinued or abandoned for any
reason, or has been determined adversely to the Trustee or to such Holder, then
and in every such case, subject to any determination in such proceeding, the
Company, the Trustee and the Holders shall be restored severally and
respectively to their former positions hereunder and thereafter all rights and
remedies of the Trustee and the Holders shall continue as though no such
proceeding had been instituted.
Section 5.13 Rights and Remedies Cumulative. Except as otherwise
provided with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Securities in the last paragraph of Section 3.6, no right or
remedy herein conferred upon or reserved to the Trustee or 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 5.14 Undertaking for Costs. In any suit for the enforcement
of any right or remedy under this Indenture, or in any suit against the Trustee
for any action taken, suffered or omitted by it as Trustee, a court may require
any party litigant in such suit to file an undertaking to pay the costs of such
suit, and may assess costs against any such party litigant, in the manner and to
the extent provided in the Trust Indenture Act; provided, however, that neither
this Section nor the Trust Indenture Act shall be deemed to authorize any court
to require such an undertaking or to make such an assessment in any suit
instituted by the Company.
Section 5.15 Waiver of Stay, Extension or Usury 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 or any usury or other law
wherever enacted, now or at any time hereafter in force, which would prohibit or
forgive the Company from paying all or any portion of the principal, of,
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and premium, if any, or interest on the Securities contemplated herein or in the
Securities or 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 6
THE TRUSTEE
Section 6.1 Certain Duties and Responsibilities. The duties and
responsibilities of the Trustee shall be as provided by the Trust Indenture Act.
Notwithstanding the foregoing, 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. 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 6.2 Notice of Defaults. If a default occurs hereunder with
respect to Securities of any series, the Trustee shall give the Holders of
Securities of such series notice of such default as and to the extent provided
by the Trust Indenture Act; provided, however, that in the case of any default
of the character specified in Section 5.1(3) with respect to Securities of such
series, no such notice to Holders shall be given until at least 30 days after
the occurrence thereof. For the purpose of this Section, the term "default"
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 6.3 Certain Rights of Trustee. Subject to the provisions of
Section 6.1:
(1) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or presented
by the proper party or parties;
(2) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order, and any
resolution of the Board of Directors shall be sufficiently evidenced by a
Board Resolution;
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(3) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad
faith on its part, rely upon an Officers' Certificate;
(4) the Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(5) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by 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;
(6) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further inquiry
or investigation into such facts or matters as it may see fit, and, if the
Trustee shall determine to make such further inquiry or investigation, it
shall be entitled to examine the books, records and premises of the
Company, personally or by agent or attorney;
(7) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder; and
(8) except with respect to Section 9.1, the Trustee shall have no duty
to inquire as to the performance by the Company of the covenants set forth
in Article 9 beyond its good faith review of any certificates or other
notices received by it from the Company.
Section 6.4 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 any responsibility
for their correctness. The Trustee makes no representations as to the validity
or sufficiency of this Indenture or of the Securities. Neither the Trustee nor
any Authenticating Agent shall be accountable for the use or application by the
Company of Securities or the proceeds thereof.
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Section 6.5 May Hold Securities. The Trustee, any Authenticating
Agent, any Paying Agent, any Security Registrar or any other agent of the
Company or the Trustee, in its individual or any other capacity, may become the
owner or pledgee of Securities and, subject to Sections 6.8 and 6.13, may
otherwise deal with the Company and any other obligor upon the Securities with
the same rights it would have if it were not Trustee, Authenticating Agent,
Paying Agent, Security Registrar or such other agent.
Section 6.6 Money Held in Trust. Money held by the Trustee in trust
hereunder need not be segregated from other funds except to the extent required
by law. The Trustee shall be under no liability for interest on any money
received by it hereunder except as otherwise agreed with the Company.
Section 6.7 Compensation and Reimbursement. The Company agrees
(1) to pay to the Trustee from time to time reasonable compensation
for all services rendered by it hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee
of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision
of this Indenture (including the reasonable compensation and the expenses
and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad
faith; and
(3) to indemnify the Trustee 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 the trust or trusts hereunder, 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.
The obligations of the Company under this Section 6.7 to compensate
the Trustee, to pay or reimburse the Trustee for its expenses, disbursements and
advances and to indemnify the Trustee shall survive the satisfaction and
discharge of this Indenture.
Section 6.8 Conflicting Interests. If the Trustee has or shall
acquire a conflicting interest within the meaning of the Trust Indenture Act,
the Trustee shall either eliminate such 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.
Section 6.9 Corporate Trustee Required; Eligibility. There shall at
all times be a Trustee hereunder which shall be a Person that is eligible
pursuant to the Trust Indenture Act to act as such, and has a combined capital
and surplus of at least $50,000,000. If such Person publishes reports of
condition at least annually, pursuant to law or to the requirements of its
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such Person shall be deemed to be its combined
capital and surplus as set forth in
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its most recent report of condition so published. If at any time the Trustee
shall cease to be eligible in accordance with the provisions of this Section, it
shall resign immediately in the manner and with the effect hereinafter specified
in this Article.
Section 6.10 Resignation and Removal; Appointment of Successor. No
resignation or removal of the Trustee and no appointment of a successor Trustee
pursuant to this Article shall become effective until the acceptance of
appointment by the successor Trustee in accordance with the applicable
requirements of Section 6.11.
The Trustee may resign at any time with respect to the Securities of
one or more series by giving written notice thereof to the Company. If the
instrument of acceptance by a successor Trustee required by Section 6.11 shall
not have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series.
The Trustee may be removed at any time with respect to the Securities
of any series 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.
If at any time:
(1) the Trustee shall fail to comply with Section 6.8 after written
request therefor by the Company or by any Holder who has been a bona fide
Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 6.9 and shall
fail to resign after written request therefor by the Company or by any such
Holder, or
(3) the Trustee shall become incapable of acting or shall be adjudged
a bankrupt or insolvent or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take charge or control of
the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (A) the Company by a Board Resolution may remove the
Trustee with respect to all Securities, or (B) subject to Section 5.14, any
Holder who has been a bona fide Holder of a Security for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees.
If the Trustee shall resign, be removed or become incapable of acting,
or if a vacancy shall occur in the office of Trustee for any cause, with respect
to the Securities of one or more series, the Company, by a Board Resolution,
shall promptly appoint a successor Trustee or
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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 6.11. If, within one
year after such resignation, removal or incapability, or the occurrence of such
vacancy, a successor Trustee with respect to the Securities of any series shall
be appointed by 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, the successor Trustee so appointed shall, forthwith upon its acceptance
of such appointment in accordance with the applicable requirements of Section
6.11, become the successor Trustee with respect to the Securities of such series
and to that extent supersede the successor Trustee appointed by the Company. If
no successor Trustee with respect to the Securities of any series shall have
been so appointed by the Company or the Holders and accepted appointment in the
manner required by Section 6.11, 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 the Securities of such
series. 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 to all Holders
of Securities of such series in the manner provided in Section 1.6. Each notice
shall include the name of the successor Trustee with respect to the Securities
of such series and the address of its Corporate Trust Office.
Section 6.11 Acceptance of Appointment by Successor. In case of the
appointment hereunder of a successor Trustee with respect to all 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 and such successor Trustee, without any further act, deed
or conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee; but, on the request of the Company or the
successor Trustee, such retiring Trustee shall, upon payment of its charges,
execute and deliver an instrument transferring to such successor Trustee all the
rights, powers and trusts of the retiring Trustee and shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder.
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 (1) 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, (2)
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
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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
(3) 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.
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 the
first or second preceding paragraph, as the case may be.
No successor Trustee shall accept its appointment unless at the time
of such acceptance such successor Trustee shall be qualified and eligible under
this Article.
Section 6.12 Merger, Conversion, Consolidation or Succession to
Business. Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such Securities.
Section 6.13 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
the Trust Indenture Act regarding the collection of claims against the Company
(or any such other obligor).
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Section 6.14 Appointment of Authenticating Agent. The Trustee may
appoint an Authenticating Agent or Agents with respect to one or more series of
Securities which shall be authorized to act on behalf of the Trustee to
authenticate Securities of such series issued upon original issue and upon
exchange, registration of transfer or partial redemption thereof or pursuant to
Section 3.6, 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. Wherever reference is made in this
Indenture to the authentication and delivery of Securities by the Trustee or the
Trustee's certificate of authentication, such reference shall be deemed to
include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. 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 $50,000,000 and
subject to supervision or examination by Federal or State authority. 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
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 a 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 and shall give notice of such
appointment in the manner provided in Section 1.6 to all Holders of Securities
of the series with respect to which such Authenticating Agent will serve. 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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The Trustee agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section, and the
Trustee shall be entitled to be reimbursed for such payments, subject to the
provisions of Section 6.7.
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 alternative
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 Officer
ARTICLE 7
CONSOLIDATION, MERGER OR SALE OF ASSETS BY THE COMPANY
Section 7.1 Consolidation, Merger or Sale of Assets Permitted. The
Company shall not consolidate with or merge into, or sell, transfer, lease or
otherwise dispose of its properties and assets as, or substantially as, an
entirety to, any Person unless:
(1) (A) the Company will be the surviving entity or (B) the Person
formed by or surviving any such consolidation or merger (if other than the
Company), or to which such sale, transfer, lease or other disposition shall
have been made, is an entity organized and existing under the laws of the
United States, any State thereof or the District of Columbia;
(2) the Person formed by or surviving any such consolidation or merger
(if other than the Company), or to which such sale, transfer, lease or
other disposition shall have been made, expressly assumes by supplemental
indenture all the obligations of the Company under the Securities and this
Indenture, and the Securities and this Indenture will remain in full force
and effect as so supplemented;
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(3) immediately after giving effect to such consolidation, merger,
sale, transfer, lease or other disposition, no Default or Event of Default
exists; and
(4) with respect to any series of Securities, the Company satisfies
such other conditions, if any, established pursuant to and in accordance
with Section 3.1.
The Company shall deliver to the Trustee prior to the proposed
consolidation, merger, sale, transfer, lease or other disposition an Officers'
Certificate to the foregoing effect and an Opinion of Counsel stating that the
proposed consolidation, merger, sale, transfer, lease or other disposition and
such supplemental indenture comply with this Indenture and that all conditions
precedent to the consummation of such transaction under this Section 7.1 have
been met.
Upon any consolidation of the Company with, or merger of the Company
into, any other Person or any sale, transfer, lease or other disposition of
properties and assets of the Company as, or substantially as, an entirety in
accordance with this Section 7.1, the successor Person formed by such
consolidation or into which the Company is merged or to which such sale,
transfer, lease or other disposition is made shall succeed to and be substituted
for, and may exercise every right and power of, the Company hereunder and under
the Securities and any interest coupons appertaining thereto with the same
effect as if such successor Person had been named hereunder and thereunder and
thereafter, except in the case of a lease, the predecessor Person shall be
relieved of all obligations and covenants under this Indenture and the
Securities.
ARTICLE 8
SUPPLEMENTAL INDENTURES
Section 8.1 Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company and the Trustee, at any time and
from time to time, may enter into indentures supplemental hereto, in form
reasonably satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company and
the assumption by any such successor of the covenants and obligations of
the Company herein and in the Securities and any interest coupons
appertaining thereto; or
(2) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities (and if such covenants are to be
for the benefit of less than all series of Securities, 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
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(3) to add any additional Events of Default with respect to all or
any series of Securities; or
(4) to add to or change any of the provisions of this Indenture to
such extent as shall be necessary to facilitate the issuance or
administration of Bearer Securities (including, without limitation, to
provide that Bearer Securities may be registrable as to principal only) or
to facilitate the issuance or administration of Securities in global form;
or
(5) to change or eliminate any of the provisions of this Indenture in
respect of one or more series of Securities, provided that any such change
or elimination shall become effective only when there is no Security
Outstanding of any series created prior to the execution of such
supplemental indenture which is entitled to the benefit of such provision;
or
(6) to secure the Securities; or
(7) to establish the form or terms of Securities of any series as
permitted by Sections 2.1 and 3.1; or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or
more series 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 the
requirements of Section 6.11, or
(9) if allowed without penalty under applicable laws and regulations,
to permit payment in the United States (including any of the States thereof
and the District of Columbia), its territories, its possessions and other
areas subject to its jurisdiction of principal, premium, if any, or
interest, if any, on Bearer Securities or interest coupons, if any; or
(10) to correct or supplement any provision herein which may be
defective or inconsistent with any other provision herein or to make any
other provisions with respect to matters or questions arising under this
Indenture, provided such action shall not adversely affect in any material
respect the interests of the Holders of Securities of any series; or
(11) to make provision not adverse to the Holders of Outstanding
Securities of any series with respect to any conversion or exchange rights
of Holders pursuant to the requirements of Article 14, including providing
for the conversion or exchange of the Securities into any Equity Securities
or property of the Company; or
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(12) to cure any ambiguity, correct any mistake or comply with any
mandatory provision of law; or
(13) to modify the provisions in Article 15 of this Indenture with
respect to the subordination of Outstanding Securities of any series in a
manner not adverse to the Holders thereof; or
(14) to modify, eliminate or add to the provisions of this Indenture
to such extent as shall be necessary to effect the qualification of this
Indenture under the Trust Indenture Act or under any similar federal
statute subsequently enacted, and to add to this Indenture such other
provisions as may be expressly required under the Trust Indenture Act.
Section 8.2 Supplemental Indentures With Consent of Holders. With
the consent of the Holders of not less than a majority of the aggregate
principal amount of the Outstanding Securities of all series adversely affected
by such supplemental indenture (voting as one class), by Act of said Holders
delivered to the Company, the Company and the Trustee may enter into an
indenture or indentures supplemental hereto to add any provisions to or to
change in any manner or eliminate any provisions of this Indenture or of any
other indenture supplemental hereto or to modify in any manner the rights of the
Holders of such Securities; provided, however, that without the consent of the
Holder of each Outstanding Security affected thereby, an amendment under this
Section may not:
(1) change the Stated Maturity of the principal of, or premium, if
any, on, or any installment of principal of or premium, if any, or interest
on, any Security, or reduce the principal amount thereof or the rate of
interest thereon or any premium payable upon the redemption thereof, or
change the manner in which the amount of any principal thereof or premium,
if any, or interest thereon is determined or reduce the amount of the
principal of any Original Issue Discount Security or Indexed Security that
would be due and payable upon a declaration of acceleration of the Maturity
thereof pursuant to Section 5.2, or change the currency or currency unit in
which any Securities or any premium or the interest thereon is payable, 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, on
or after the Redemption Date);
(2) 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 compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences) provided for in this
Indenture, or reduce the requirements of Section 13.4 for quorum or voting;
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(3) change any obligation of the Company to maintain an office or
agency in the places and for the purposes specified in Section 9.2;
(4) make any change that adversely affects any right to convert or
exchange any Security to which the provisions of Article 14 are applicable
or, except as provided in this Indenture, decrease the conversion or
exchange rate or increase the conversion or exchange price of any such
Security;
(5) modify the provisions in Article 15 of this Indenture with respect
to the subordination of Outstanding Securities of any series in a manner
adverse to the Holders thereof; or
(6) make any change in this Section 8.2 except to increase any
percentage or to provide that certain other provisions of this Indenture
cannot be modified or waived with the consent of the Holders of each
Outstanding Security affected thereby.
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 is not necessary under this Section 8.2 for the Holders to consent
to the particular form of any proposed supplemental indenture, but it is
sufficient if they consent to the substance thereof.
Section 8.3 Compliance with Trust Indenture Act. Every amendment to
this Indenture or the Securities of one or more series shall be set forth in a
supplemental indenture that complies with the Trust Indenture Act as then in
effect.
Section 8.4 Execution of Supplemental Indentures. In executing, or
accepting the additional trusts created by, any supplemental indenture permitted
by this Article or the modification thereby of the trusts created by this
Indenture, the Trustee shall be entitled to receive, and (subject to Section
6.1) shall be fully protected in relying upon, an Officers' Certificate and an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
Section 8.5 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;
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and every Holder of Securities theretofore or thereafter authenticated and
delivered hereunder and of any interest coupon appertaining thereto shall be
bound thereby.
Section 8.6 Reference in Securities to Supplemental Indentures.
Securities, including any interest coupons, of any series 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 including any
interest coupons of any series so modified as to conform, in the opinion of 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 including any interest coupons of such series.
Section 8.7 Notice of Supplemental Indentures. Promptly after the
execution by the Company and the Trustee of any supplemental indenture pursuant
to the provisions of Section 8.2, the Company shall give notice thereof to the
Holders of each Outstanding Security affected, in the manner provided for in
Section 1.6, setting forth in general terms the substance of such supplemental
indenture. Any failure of the Company to give such notice, or any defect
therein, shall not, however, in any way impair or affect the validity of any
such supplemental indenture.
ARTICLE 9
COVENANTS
Section 9.1 Payment of Principal, Premium, if any, and Interest. The
Company covenants and agrees for the benefit of the Holders of each series of
Securities that it will duly and punctually pay the principal of, premium, if
any, and interest, together with additional amounts, if any, on the Securities
of that series in accordance with the terms of the Securities of such series,
any interest coupons appertaining thereto and this Indenture; provided, however,
that amounts properly withheld under the Internal Revenue Code of 1986, as
amended, by any Person from a payment to any Holder of Securities, after having
requested such Holder to provide applicable information that would allow such
Person to make such payment without withholding, shall be considered as having
been paid by the Company to such Holder for purposes of this Indenture. An
installment of principal, premium, if any, or interest shall be considered paid
on the date it is due if there shall have been sent to the Trustee or Paying
Agent by wire transfer, or if the Trustee or Paying Agent otherwise holds, on
that date money designated for and sufficient to pay the installment.
Section 9.2 Maintenance of Office or Agency. Unless otherwise
specified as contemplated by Section 3.1, if Securities of a series are issued
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
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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. Unless otherwise specified as
contemplated by Section 3.1, if Securities of a series are issuable as Bearer
Securities, the Company will maintain, (i) subject to any laws or regulations
applicable thereto, an office or agency in a Place of Payment for that series
which is located outside the United States where Securities of that series and
related interest coupons may be presented and surrendered for payment; 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, 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, 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 (ii)
subject to any laws or regulations applicable thereto, an office or agency in a
Place of Payment for that series which is located outside the United States,
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 or shall fail to furnish the Trustee with the
address thereof, such presentations, surrenders, notices and demands may be made
or served at the Corporate Trust Office of the Trustee, and the Company hereby
appoints the Trustee as its agent to receive all such presentations, surrenders,
notices and demands.
Unless otherwise specified as contemplated by Section 3.1, 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, by check mailed to any
address in the United States, by transfer to an account located in the United
States or upon presentation or surrender in the United States of a Bearer
Security or interest coupon for payment, even if the payment would be credited
to an account located outside the United States; provided, however, that, if the
Securities of a series are denominated and payable in Dollars, payment of
principal of and any premium or interest on any such Bearer Security shall be
made at the office of the Company's Paying Agent if (but only if) payment in
Dollars of the full amount of such principal, premium or interest, as the case
may be, at all offices or agencies 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 other similar restrictions.
Unless otherwise specified as contemplated by Section 3.1, the Company
may also from time to time designate one or more other offices or agencies where
the Securities (including any interest coupons, if any) of one or more series
may be presented or surrendered for any or all such purposes and may from time
to time rescind such designations; provided, however, that no such designation
or rescission shall in any manner relieve the Company of its obligation to
maintain an office or agency in each Place of Payment for Securities (including
any interest coupons, if any) of any series for such purposes. The Company will
give prompt written
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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 otherwise specified as contemplated by Section 3.1, the Trustee
shall initially serve as Paying Agent for any Securities denominated and payable
in Dollars.
Section 9.3 Money for Securities Payments to Be Held in Trust;
Unclaimed Money. If the Company shall at any time act as its own Paying Agent
with respect to any series of Securities and any interest coupons appertaining
thereto, it will, on or before each due date of the principal of, premium, if
any, or interest on any of the Securities of that series, segregate and hold in
trust for the benefit of the Persons entitled thereto a sum sufficient to pay
the principal, premium, if any, or interest so becoming due until such sums
shall be paid to such Persons or otherwise disposed of as herein provided and
will promptly notify the Trustee in writing of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities and any interest coupons appertaining thereto, it will,
prior to each due date of the principal of or any premium or interest on any
Securities of that series, deposit with a Paying Agent a sum sufficient to pay
such amount, such sum to be held as provided by the Trust Indenture Act, 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 for any series of Securities
other than the Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal of,
premium, if any, or interest on Securities of that series in trust for the
benefit of the Persons entitled thereto until such sums shall be paid to
such Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or any
other obligor upon the Securities of that series) in the making of any
payment of principal, premium, if any, or interest on the Securities of
that series; and
(3) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent,
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such sums to be held by the Trustee upon the terms set forth in this Indenture;
and, upon such payment by any Paying Agent to the Trustee, such Paying Agent
shall be released from all further liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of any principal of or premium or
interest on any Security of any series and remaining unclaimed for two years
after such principal, premium, if any, or interest has become due and payable
shall be paid to the Company on Company Request, or (if then held by the
Company) shall be discharged from such trust; and the Holder of such Security
and interest coupon, if any, 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 in the name and at the expense of the Company cause to be published once, in
an Authorized Newspaper in each Place of Payment with respect to such series, or
cause to be mailed to such Holder, 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 9.4 Corporate Existence. Subject to Article 7, the Company
will at all times do or cause to be done all things necessary to preserve and
keep in full force and effect its corporate existence and its rights and
franchises; provided that nothing in this Section 9.4 shall prevent the
abandonment or termination of any right or franchise of the Company if it shall
be determined that such abandonment or termination is desirable in the conduct
of the business of the Company.
Section 9.5 Annual Review Certificate. The Company covenants and
agrees to deliver to the Trustee, within 120 days after the end of each fiscal
year of the Company, a certificate from the principal executive officer,
principal financial officer or principal accounting officer of the Company
stating that a review of the activities of the Company during such year and of
performance under this Indenture has been made under his or her supervision and
to the best of his or her knowledge, based on such review, the Company has
fulfilled all of its obligations under this Indenture throughout such year, or,
if there has been a default in the fulfillment of any such obligation,
specifying each such default known to him or her and the nature and status
thereof. For purposes of this Section 9.5, such compliance shall be determined
without regard to any period of grace or requirement of notice provided under
this Indenture.
Section 9.6 Waiver of Certain Covenants. Except as otherwise
specified as contemplated by Section 3.1 for Securities of such series, the
Company may, with respect to the Securities of any series, omit in any
particular instance to comply with any term, provision or condition set forth in
any covenant provided pursuant to Section 3.1(15), 8.1(2) or 8.1(7) for the
benefit of the Holders of such series if before the time for such compliance the
Holders of at least a majority in principal amount of the Outstanding Securities
of such series shall, by act of
Section 9.7 Appointment of Foreign Currency Agent. If any series of
Securities is denominated or payable in any Foreign Currency, the Company shall
appoint at the time of original issuance of any Securities of such series, a
Foreign Currency Agent (which may be the Trustee), to determine the Market
Exchange Rates with respect to any Securities of such series and to provide the
Exchange Rate Certificates and any other services required under this Indenture
in connection with any Securities of such series denominated or payable in a
Foreign Currency. In the absence of an appointment by the Company of a Foreign
Currency Agent, the Company shall serve in such capacity. The Company shall
give prompt written notice to the Trustee of any change of Foreign Currency
Agent,
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such Holders in accordance with Section 1.4, either waive such compliance in
such instance or generally waive compliance with such term, provision or
condition, but no such waiver shall extend to or affect such term, provision or
condition except to the extent so expressly waived, and, until such waiver shall
become effective, the obligations of the Company and the duties of the Trustee
in respect of any such term, provision or condition shall remain in full force
and effect.
ARTICLE 10
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 10.1 Company to Furnish Trustee Names and Addresses of
Holders. The Company will furnish or cause to be furnished to the Trustee:
(a) semi-annually, not more than 15 days after each Regular Record
Date, a list, in such form as the Trustee may reasonably require, of the
names and addresses of the Holders of Registered Securities of each series
as of such Regular Record Date; and
(b) at such other times as the Trustee may request in writing, within
30 days after the 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 furnished;
excluding from any such list names and addresses possessed by the Trustee in its
capacity as Registrar.
Section 10.2 Preservation of Information, Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders of Registered Securities
contained in the most recent list furnished to the Trustee as provided in
Section 10.1 and the names and addresses of Holders of Registered Securities
received by the Trustee in its capacity as Registrar. The Trustee may destroy
any list furnished to it as provided in Section 10.1 upon receipt of a new list
so furnished.
(b) The rights of Holders of Securities to communicate with other
Holders with respect to their rights under this Indenture or under the
Securities, and the corresponding rights and privileges of the Trustee,
shall be as provided in the Trust Indenture Act.
(c) Every Holder of Securities and interest coupons appertaining
thereto, by receiving and holding the same, agrees with the Company and the
Trustee that neither the Company nor the Trustee nor any agent of either of
them shall be held accountable by reason of the disclosure of information
as to the names and addresses of the Holders of Securities made pursuant to
the Trust Indenture Act.
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Section 10.3 Reports by Trustee. (a) The Trustee shall transmit to
Holders of Securities such reports concerning the Trustee and its actions under
this Indenture as may be required pursuant to the Trust Indenture Act, at the
times and in the manner provided pursuant thereto.
(b) Reports so required to be transmitted at stated intervals of not
more than 12 months in each calendar year shall be prepared as of May 15,
commencing with the first May 15 after the first issuance of Securities
under this Indenture.
(c) A copy of each such report shall, at the time of such transmission
to Holders of Securities, be filed by the Trustee with each stock exchange
upon which the Securities of any series may then be listed and also with
the Commission. The Company will notify the Trustee whenever the
Securities of any series are listed on any stock exchange.
Section 10.4 Reports by the Company. (a) The Company shall 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 Securities Exchange Act of 1934, as amended; or, if the
Company is not required to file information, documents or reports pursuant to
either of such sections, then to 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 Securities Exchange
Act of 1934, as amended, 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.
(b) The Company shall file with the Trustee and the Commission, in
accordance with the 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
provided for in this Indenture, as may be required from time to time by
such rules and regulations.
(c) The Company shall transmit by mail to all Holders of Securities,
within 30 days after the filing thereof with the Trustee, in the manner and
to the extent provided in Section 313(c) of the Trust Indenture Act, such
summaries of any information, documents and reports required to be filed by
the Company pursuant to Sections 10.4(a) and (b), as may be required by
rules and regulations prescribed from time to time by the Commission.
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ARTICLE 11
REDEMPTION
Section 11.1 Applicability of Article. Securities (including interest
coupons, if any) 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 3.1 for Securities of any series) in
accordance with this Article.
Section 11.2 Election to Redeem; Notice to Trustee. The election of
the Company to redeem any Securities, including interest coupons, if any, that,
at the time of such election, may be redeemed at the option of the Company,
shall be evidenced by or pursuant to a Board Resolution. In the case of any such
redemption at the election of the Company of less than all the Securities or
interest coupons, if any, of any series, the Company shall, at least 45 days
prior to the Redemption Date fixed by the Company (unless a shorter notice shall
be satisfactory to the Trustee), notify the Trustee of such Redemption Date, of
the principal amount of Securities of such series to be redeemed and, if
applicable, of the tenor of the Securities 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 11.3 Selection of Securities to Be Redeemed. Unless otherwise
specified as contemplated by Section 3.1, if less than all the Securities
(including interest coupons, if any) of a series with the same terms are to be
redeemed, the Trustee, not more than 45 days prior to the Redemption Date, shall
select the Securities of the series to be redeemed in such manner as the Trustee
shall deem fair and appropriate. The Trustee shall make the selection from
Securities of the series that are Outstanding and that have not previously been
called for redemption and may provide for the selection for redemption of
portions (equal to the minimum authorized denomination for Securities, including
interest coupons, if any, of that series or any integral multiple thereof) of
the principal amount of Securities, including interest coupons, if any, of such
series of a denomination larger than the minimum authorized denomination for
Securities of that series. The Trustee shall promptly notify the Company in
writing of the Securities selected by the Trustee for redemption and, in the
case of any Securities selected for partial redemption, the principal amount
thereof to be redeemed. If the Company shall so direct, Securities registered in
the name of the Company, any Affiliate or any Subsidiary thereof shall not be
included in the Securities selected for redemption.
For purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Securities (including interest
coupons, if any) shall relate, in the case of any Securities (including interest
coupons, if any) redeemed or to be
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redeemed only in part, to the portion of the principal amount of such Securities
(including interest coupons, if any) which has been or is to be redeemed.
Section 11.4 Notice of Redemption. Unless otherwise specified as
contemplated by Section 3.1, notice of redemption shall be given in the manner
provided in Section 1.6 not less than 30 days nor more than 60 days prior to the
Redemption Date to the Holders of the Securities to be redeemed.
All notices of redemption shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) if less than all the Outstanding Securities of a series are to be
redeemed, the identification (and, in the case of partial redemption, the
principal amounts) of the particular Security or Securities to be redeemed;
(4) the Place or Places of Payment where such Securities, together in
the case of Bearer Securities with all interest coupons appertaining
thereto, if any, maturing after the Redemption Date, are to be surrendered
for payment of the Redemption Price;
(5) that Securities of the series called for redemption and all
unmatured interest coupons, if any, appertaining thereto must be
surrendered to the Paying Agent to collect the Redemption Price;
(6) that, on the Redemption Date, the Redemption Price will become
due and payable upon each such Security, or the portion thereof, to be
redeemed and, if applicable, that interest thereon will cease to accrue on
and after said date;
(7) that the redemption is from a sinking fund, if such is the case;
(8) that, unless otherwise specified in such notice, Bearer
Securities of any series, if any, surrendered for redemption must be
accompanied by all interest coupons maturing subsequent to the Redemption
Date or the amount of any such missing interest coupon or interest coupons
will be deducted from the Redemption Price, unless security or indemnity
satisfactory to the Company, the Trustee and any Paying Agent is furnished;
(9) the CUSIP number, if any, of the Securities;
(10) if applicable, the conversion or exchange price, the date on
which the right to convert or exchange the Securities (or portions thereof
to be redeemed) will terminate
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and the place or places where such Securities may be surrendered for
conversion or exchange; and
(11) the procedures that a Holder must follow to surrender the
Securities so to be redeemed.
Notice of redemption of Securities to be redeemed shall be given by
the Company or, at the Company's request, by the Trustee in the name and at the
expense of the Company.
Section 11.5 Deposit of Redemption Price. On or prior to any
Redemption Date, the Company shall deposit 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 9.3) an amount of money in the currency or
currencies (including currency unit or units) in which the Securities of such
series are payable (except as otherwise specified pursuant to Section 3.1 for
the Securities of such series) sufficient to pay on the Redemption Date the
Redemption Price of, and (unless the Redemption Date shall be an Interest
Payment Date) interest accrued to the Redemption Date on, all Securities or
portions thereof which are to be redeemed on that date.
Unless any Security by its terms prohibits any redemption obligation
from being satisfied by delivering and crediting Securities (including
Securities redeemed otherwise than through a sinking fund), the Company may
deliver such Securities to the Trustee for crediting of an amount equal to the
then applicable Redemption Price for such Securities against such payment
obligation in accordance with the terms of such Securities and this Indenture.
Section 11.6 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 and accrued interest) such
Securities shall cease to bear interest and the interest coupons for any such
interest appertaining to any Bearer Security so to be redeemed, except to the
extent provided below, shall be void. Except as provided in the next succeeding
paragraph, upon surrender of any such Security, including interest coupons, if
any, for redemption in accordance with said notice, such Security shall be paid
by the Company at the Redemption Price, together with accrued interest to the
Redemption Date; 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 its
possessions (except as otherwise provided in Section 9.2) and, unless otherwise
specified as contemplated by Section 3.1, only upon presentation and surrender
of interest coupons for such interest; and provided, further, that, unless
otherwise specified as contemplated by Section 3.1, installments of interest on
Registered Securities that are due and payable on Interest Payment Dates that
are 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 at the
close of business on the relevant Regular Record Dates according to their terms
and the provisions of Section 3.7.
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If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant interest coupons maturing after the Redemption
Date, such Bearer Security may be paid after deducting from the Redemption Price
an amount equal to the face amount of all such missing interest coupons, or the
surrender of such missing interest coupon or interest 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 interest 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 interest coupons shall be payable only at an office or
agency located outside of the United States (except as otherwise provided
pursuant to Section 9.2) and, unless otherwise specified as contemplated by
Section 3.1, only upon presentation and surrender of those interest coupons.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Security.
Section 11.7 Securities Redeemed in Part. Upon surrender of a
Security that is redeemed in part at any Place of Payment therefor (with, if the
Company or the Trustee so required, due endorsement by, or a written instrument
of transfer in form satisfactory to the Company and the Trustee duly executed
by, the Holder thereof or his or her attorney duly authorized in writing), the
Company shall execute and the Trustee shall authenticate and deliver to the
Holder of that Security, without service charge, a new Security or Securities of
the same series, having the same form, terms and Stated Maturity, in any
authorized denomination equal in aggregate principal amount to the unredeemed
portion of the principal amount of the Security surrendered.
ARTICLE 12
SINKING FUNDS
Section 12.1 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 3.1 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
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reduction as provided in Section 12.2. 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 12.2 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 Bearer Securities of
such series, with all unmatured interest coupons appertaining thereto and (ii)
may apply as a credit Securities of a series which have been (x) 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, (y) converted or exchanged pursuant to Article 14
or (z) previously delivered to the Trustee and cancelled without reissuance
pursuant to Section 3.9, 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 12.3 Redemption of Securities for Sinking Fund. Not less than
45 days prior to each sinking fund payment date for any series of Securities,
the Company will deliver to the Trustee an Officers' Certificate specifying the
amount of the next ensuing sinking fund payment for that series pursuant to the
terms of that series, 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 12.2 and
stating the basis for such credit and that such Securities have not been
previously so credited, and will also deliver to the Trustee any Securities to
be so delivered. Not less than 30 days before each such sinking fund payment
date the Trustee shall select the Securities to be redeemed upon such sinking
fund payment date in the manner specified in Section 11.3 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 11.4. Such notice having been duly
given, the redemption of such Securities shall be made upon the terms and in the
manner stated in Sections 11.6 and 11.7.
ARTICLE 13
MEETINGS OF HOLDERS OF BEARER SECURITIES
Section 13.1 Purposes for Which Meetings May Be Called. A meeting of
Holders of Securities of any series issuable as Bearer Securities 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, election, waiver
or other action provided by this Indenture to be made, given or taken by Holders
of Securities of such series.
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Section 13.2 Call, Notice and Place of Meetings. (a) The Trustee may
at any time call a meeting of Holders of Securities of any series issuable as
Bearer Securities for any purpose specified in Section 13.1, to be held at such
time and at such place in The City of New York or in such other place as may be
acceptable to the Company. Notice of every meeting of Holders of Securities,
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 1.6, not less than 21 nor more than 180 days prior to the
date fixed for the meeting.
(b) In case at any time the Company, pursuant to a Board Resolution,
or the Holders of at least 33 1/3% in principal amount of the Outstanding
Securities of any series shall have requested the Trustee to call a meeting of
the Holders of Securities of such series for any purpose specified in Section
13.1, 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 specified, as the case may be, may determine the time and the place
in The City of New York or such other place as may be acceptable to the Company
for such meeting and may call such meeting for such purposes by giving notice
thereof as provided in paragraph (a) of this Section.
Section 13.3 Persons Entitled to Vote at Meetings. To be entitled to
vote at any meeting of Holders of Securities of any series issuable as Bearer
Securities, a Person shall be (a) a Holder of one or more Outstanding Securities
of such series, or (b) 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 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 13.4 Quorum; Action. The Persons entitled to vote a majority
in principal amount of the Outstanding Securities of the applicable 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 any other case the
meeting may be adjourned for a period of not less than 10 days as determined by
the chairman 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 not less than 10 days as determined by the
chairman of the meeting prior to the adjournment of such adjourned meeting.
Notice of the reconvening of any such adjourned meeting shall be given as
provided in Section 13.2(a), 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.
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At the reconvening of any meeting adjourned for a lack of a quorum
pursuant to the preceding paragraph, the Persons entitled to vote 25% in
principal amount of the Outstanding Securities of the applicable series at the
time shall constitute a quorum for the taking of any action set forth in the
notice of the original meeting. Notice of the reconvening of a meeting adjourned
for lack of a quorum shall state expressly the percentage of the principal
amount of the Outstanding Securities of such series which shall constitute a
quorum.
At a meeting or an adjourned meeting duly reconvened and at which a
quorum is present as aforesaid, any resolution and all matters (except as
limited by the proviso to Section 8.2) shall be effectively passed and decided
if passed or decided by the Persons entitled to vote not less than the lesser of
(i) a majority in principal amount of Outstanding Securities of the applicable
series and (ii) 66 2/3% in principal amount of Outstanding Securities of such
series represented and voting at such meeting; provided, however, that any
resolution with respect to any request, demand, authorization, direction,
notice, consent, election, 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
lesser of (i) the Holders of such specified percentage in principal amount of
the Outstanding Securities of such series and (ii) a majority in principal
amount of Outstanding Securities of such series represented and voting at such
meeting or adjourned meeting.
Any resolution passed or decisions taken at any meeting of Holders of
Securities of any series issuable as Bearer Securities duly held in accordance
with this Section shall be binding on all the Holders of Securities of such
series and interest coupons, whether or not present or represented at the
meeting.
In the event that any meeting shall be adjourned for lack of a quorum
or that, at any meeting at which a quorum is present, any proposed resolution or
decision shall not be passed or taken because the Holders of the percentage of
Outstanding Securities of any series issuable as Bearer Securities needed to
approve such resolution or decision did not vote in favor of such resolution or
decision, the principal amount of Outstanding Securities of such series
represented at such meeting and voting in favor of such resolution or decision
may be counted for purposes of calculating whether the consent of the Holders of
the percentage of Outstanding Securities of such series needed in order to make,
give or take any request, demand, authorization, direction, notice, consent,
election, waiver or other action has been obtained, and such vote shall
constitute the consent thereto of such Holders.
Section 13.5 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 any series issuable as Bearer Securities 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
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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 of a
series issuable as Bearer Securities shall be proved in the manner specified in
Section 1.4 and the appointment of any proxy shall be provided in the manner
specified in Section 1.4 or by having the signature of the Person executing the
proxy witnessed or guaranteed by any trust company, bank or banker authorized by
Section 1.4 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 1.4 or
other proof.
(b) The Trustee shall, by an instrument in writing, appoint a
temporary chairman (which may be a Responsible Officer of the Trustee) of the
meeting, unless the meeting shall have been called by the Company or by Holders
of Securities of a series as provided in Section 13.2(b), in which case the
Company or the Holders of Securities of such series calling the meeting, as the
case may be, shall in like manner appoint a temporary chairman. A permanent
chairman 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 or proxy shall be
entitled to one vote for each U.S. $5,000 principal amount of Securities held or
represented by him or her; 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 chairman of the meeting to be not Outstanding. The chairman of
the meeting shall have no right to vote, except as a Holder of a Security or
proxy.
(d) Any meeting of Holders of Securities of a series issuable as
Bearer Securities duly called pursuant to Section 13.2 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 13.6 Counting Votes and Recording Action of Meetings. The
vote upon any resolution submitted to any meeting of Holders of Securities of
any series issuable as Bearer Securities 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 held or represented by them. The permanent
chairman of the meeting shall appoint an inspector 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 its verified written report of all votes
cast at the meeting. A record of the proceedings of each meeting of Holders of
Securities shall be prepared by the applicable secretary of the meeting and
there shall be attached to said record the original report of the inspector of
votes on
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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 13.2 and, if
applicable, Section 13.4. At least two copies of such record shall be signed and
verified by the affidavits of the permanent chairman and secretary of the
meeting and one copy thereof shall be delivered to the Company and the other 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 14
CONVERSION OR EXCHANGE OF SECURITIES
Section 14.1 Applicability of Article. (a) The provisions of this
Article 14 shall be applicable to the Securities of any series which are
convertible or exchangeable into Equity Securities of the Company, and to the
issuance of such Equity Securities upon the conversion or exchange of such
Securities, except as otherwise specified as contemplated by Section 3.1 for the
Securities of such series.
(b) For purposes of this Article 14, the term "Equity Securities"
shall mean all or any of the following, authorized from time to time: (i) the
Company's Common Stock, $.01 par value (the "Common Stock"), (ii) the Company's
Preferred Stock, $.01 par value (the "Preferred Stock"), and (iii) any other
equity securities of the Company.
Section 14.2 Exercise of Conversion or Exchange Privilege. (a) In
order to exercise a conversion or exchange privilege, the Holder of a Security
of a series with such privilege shall surrender such Security, together, in the
case of any Bearer Security, with all unmatured interest coupons and any matured
interest coupons in default appertaining thereto, to the Company at the office
or agency maintained for that purpose pursuant to Section 9.2, accompanied by
written notice to the Company that the Holder elects to convert or exchange such
Security or a specified portion thereof. Such notice shall also state, if
different from the name and address of such Holder, the name or names (with
address) in which the certificate or certificates for Equity Securities which
shall be issuable on such conversion or exchange shall be issued. Registered
Securities surrendered for conversion or exchange shall (if so required by the
Company or the Trustee) be duly endorsed by or accompanied by instruments of
transfer in forms satisfactory to the Company and the Trustee duly executed by
the registered Holder or its attorney duly authorized in writing.
(b) Registered Securities so surrendered for conversion or exchange
during the period from the close of business on any Regular Record Date to the
opening of business on the corresponding Interest Payment Date (excluding
Securities or portions thereof called for redemption during such period) shall
also be accompanied by payment in funds acceptable to the Company of an amount
equal to the interest payable on such Interest Payment Date on the principal
amount of such Security then being converted or exchanged, and such interest
shall be
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payable to such registered Holder on such Interest Payment Date notwithstanding
the conversion or exchange of such Security, subject to the provisions of
Section 3.7 relating to the payment of Defaulted Interest by the Company.
(c) As promptly as practicable after the receipt of such notice and of
any payment required pursuant to a Board Resolution and, subject to Section 3.3,
set forth, or determined in the manner provided, in an Officers' Certificate, or
established in one or more indentures supplemental hereto setting forth the
terms of such series of Security, and the surrender of such Security in
accordance with such reasonable regulations as the Company may prescribe, the
Company shall issue and shall deliver, at the office or agency at which such
Security is surrendered, to such Holder or on its written order, a certificate
or certificates for the number of Equity Securities issuable upon the conversion
or exchange of such Security (or specified portion thereof), in accordance with
the provisions of such Board Resolution, Officers' Certificate or supplemental
indenture, and cash as provided therein in respect of any fractional share of
such Equity Security otherwise issuable upon such conversion or exchange.
(d) Such conversion or exchange shall be deemed to have been effected
immediately prior to the close of business on the date on which such notice and
such payment, if required, shall have been received in proper order for
conversion or exchange by the Company and such Security shall have been
surrendered as aforesaid and at such time the rights of the Holder of such
Security as such Security Holder shall cease and the person or persons in whose
name or names any certificate or certificates for Equity Securities of the
Company shall be issuable upon such conversion or exchange shall be deemed to
have become the Holder or Holders of record of the Equity Securities represented
thereby. Except as set forth above and subject to paragraph (d) of Section 3.7,
no payment or adjustment shall be made upon any conversion or exchange on
account of any interest accrued on the Securities surrendered for conversion or
exchange, or on account of any dividends on the Equity Securities of the Company
issued upon such conversion or exchange if the record date for the payment of
such dividends occurs prior to or on the date on which such conversion or
exchange shall be deemed to have been effected.
In the case of any Security which is converted or exchanged in part
only, upon such conversion or exchange the Company shall execute and the Trustee
shall authenticate and deliver to or on the order of the Holder thereof, at the
expense of the Company, a new Security or Securities of the same series, of
authorized denominations, in aggregate principal amount equal to the unconverted
or unexchanged portion of such Security.
Section 14.3 No Fractional Equity Securities. No fractional Equity
Security of the Company shall be issued upon conversions or exchanges of
Securities of any series. If more than one Security shall be surrendered for
conversion or exchange at one time by the same Holder, the number of full shares
of the Equity Security which shall be issuable upon conversion or exchange shall
be computed on the basis of the aggregate principal amount of the Securities (or
specified portions thereof to the extent permitted hereby) so surrendered. If,
except for the
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provisions of this Section 14.3, any Holder of a Security or Securities would be
entitled to a fractional share of any Equity Security of the Company upon the
conversion or exchange of such Security or Securities, or specified portions
thereof, the Company shall pay to such Holder an amount in cash equal to the
current market value of such fractional share computed, (i) if such Equity
Security is listed or admitted to unlisted trading privileges on a national
securities exchange, on the basis of the last reported sale price regular way on
the principal exchange where such Equity Security is listed or admitted, on the
last trading day prior to the date of conversion or exchange upon which such a
sale shall have been effected, (ii) if such Equity Security is not at the time
so listed or admitted on a national securities exchange but is quoted on the
National Market System of the National Association of Securities Dealers, Inc.
("NASDAQ"), on the basis of the average of the bid and asked prices of such
Equity Security on NASDAQ on the last trading day prior to the date of
conversion or exchange, (iii) if such Equity Security is not at the time so
listed or admitted to unlisted trading privileges on a national securities
exchange or quoted on NASDAQ, on the basis of the average of the bid and asked
prices of such Equity Security in the over-the- counter market, on the last
trading day prior to the date of conversion or exchange, as reported by the
National Quotation Bureau Incorporated or similar organization if the National
Quotation Bureau Incorporated is no longer reporting such information, or (iv)
in accordance with the terms of the supplemental indenture or Board Resolutions
setting the terms of the Securities of such series. For purposes of this
Section, "trading day" shall mean each Monday, Tuesday, Wednesday, Thursday and
Friday other than any day on which the applicable Equity Security is not traded
or quoted on a national securities exchange, or if the applicable Equity
Security is not traded or quoted on a national securities exchange, on NASDAQ or
the principal exchange or market on which the applicable Equity Security is
traded or quoted.
Section 14.4 Adjustment of Conversion or Exchange Price; Consolidation
or Merger. The conversion or exchange price of Securities of any series that is
convertible or exchangeable into an Equity Security of the Company shall be
adjusted for any stock dividends, stock splits, reclassification, combinations
or similar transactions, and the securities, assets or other property into or
for which such Securities may be converted or exchanged as a result of any
consolidation, merger, combination or similar transaction shall be determined,
in accordance with the terms of the supplemental indenture or Board Resolutions
setting the terms of the Securities of such series.
Whenever the conversion or exchange price is adjusted, the Company
shall compute the adjusted conversion or exchange price in accordance with the
terms of the applicable Board Resolution or supplemental indenture and shall
prepare an Officers' Certificate setting forth the adjusted conversion or
exchange price and showing in reasonable detail the facts upon which such
adjustment is based. Whenever the securities, assets or other property into or
for which Securities of any series may be converted or exchanged are changed as
a result of any consolidation, merger or similar transaction, the Company shall
determine the nature and amount of such securities, assets or other property in
accordance with the terms of the applicable Board Resolution or supplemental
indenture and shall prepare an Officer's Certificate describing such
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securities, assets or other property and stating the amount of such securities,
assets or other property into or for which such Securities have become
convertible or exchangeable. Such certificates shall forthwith be filed at each
office or agency maintained for the purpose of conversion or exchange of
Securities pursuant to Section 9.2 and, if different, with the Trustee. The
Company shall forthwith cause a notice setting forth the adjusted conversion or
exchange price or describing such securities, assets or other property, as
applicable, to be mailed, first class postage prepaid, to each Holder of
Registered Securities of such series at its address appearing on the Register
and to any conversion or exchange agent other than the Trustee.
Section 14.5 Notice of Certain Corporate Actions. If any series of
Securities which are directly or indirectly convertible or exchangeable for any
Equity Securities are Outstanding, in case:
(a) the Company shall declare a dividend (or any other distribution)
on any class of such Equity Securities payable otherwise than in cash out
of its retained earnings (other than a dividend for which approval of any
stockholder of the Company is required); or
(b) the Company shall authorize the granting to the holders of any
class of such Equity Securities of rights, options or warrants to subscribe
for or purchase any shares of capital stock of any class or of any other
rights (other than any such grant for which approval of any stockholder of
the Company is required); or
(c) of any reclassification of any class of such Equity Securities
(other than a subdivision or combination of its outstanding Equity
Securities, or of any consolidation, merger or share exchange to which the
Company is a party and for which approval of any stockholder of the Company
is required), or of the sale of all or substantially all of the assets of
the Company; or
(d) of the voluntary or involuntary dissolution, liquidation or
winding up of the Company;
then the Company shall cause to be filed with the Trustee, and shall cause to be
mailed to all Holders at their addresses as they shall appear in the Register,
at least 15 days (or 10 days in any case specified in clause (a) or (b) above)
prior to the applicable record date hereinafter specified, a notice stating (i)
the date on which a record is to be taken for the purpose of such dividend,
distribution, rights, options or warrants, or, if a record is not to be taken,
the date as of which the Holders of such Equity Securities of record to be
entitled to such dividend, distribution, rights, options or warrants are to be
determined, or (ii) the date on which such reclassification, consolidation,
merger, share exchange, sale, dissolution, liquidation or winding up is expected
to become effective, and the date as of which it is expected that holders of
such Equity Securities of record shall be entitled to exchange such Equity
Securities for securities, cash or other property deliverable upon such
reclassification, consolidation, merger, share exchange, sale,
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dissolution, liquidation or winding up. If at any time the Trustee shall not be
the conversion or exchange agent, a copy of such notice shall also forthwith be
filed by the Company with the Trustee.
Section 14.6 Reservation of Equity Securities. The Company shall at
all times reserve and keep available, free from preemptive rights, out of its
authorized but unissued Equity Securities, for the purpose of effecting the
conversion or exchange of Securities, the full number of Equity Securities of
the Company then issuable upon the conversion or exchange of all Outstanding
Securities of any series that has conversion or exchange rights.
Section 14.7 Payment of Certain Taxes Upon Conversion or Exchange.
The Company will pay any and all taxes that may be payable in respect of the
issue or delivery of its Equity Securities on conversion or exchange of
Securities pursuant hereto. The Company shall not, however, be required to pay
any tax which may be payable in respect of any transfer involved in the issue
and delivery of its Equity Securities in a name other than that of the Holder of
the Security or Securities to be converted or exchanged, and no such issue or
delivery shall be made unless and until the Person requesting such issue has
paid to the Company the amount of any such tax, or has established, to the
satisfaction of the Company, that such tax has been paid.
Section 14.8 Duties of Trustee Regarding Conversion or Exchange.
Neither the Trustee nor any conversion or exchange agent shall at any time be
under any duty or responsibility to any Holder of Securities of any series that
is convertible or exchangeable into Equity Securities of the Company to
determine whether any facts exist which may require any adjustment of the
conversion or exchange price, or with respect to the nature or extent of any
such adjustment when made, or with respect to the method employed, whether
herein or in any supplemental indenture, any resolutions of the Board of
Directors or written instrument executed by one or more officers of the Company
provided to be employed in making the same. Neither the Trustee nor any
conversion or exchange agent shall be accountable with respect to the validity
or value (or the kind or amount) of any Equity Securities of the Company, or of
any securities or property, which may at any time be issued or delivered upon
the conversion or exchange of any Securities and neither the Trustee nor any
conversion or exchange agent makes any representation with respect thereto.
Subject to the provisions of Section 6.1, neither the Trustee nor any conversion
or exchange agent shall be responsible for any failure of the Company to issue,
transfer or deliver any of its Equity Securities or stock certificates or other
securities or property upon the surrender of any Security for the purpose of
conversion or exchange or to comply with any of the covenants of the Company
contained in this Article 14 or in the applicable supplemental indenture,
resolutions of the Board of Directors or written instrument executed by one or
more duly authorized officers of the Company.
Section 14.9 Repayment of Certain Funds Upon Conversion or Exchange.
Any funds which at any time have been deposited by the Company or on its behalf
with the Trustee or any Paying Agent for the purpose of paying the principal of,
and premium, if any, and interest, if any, on any of the Securities (including
funds deposited for any sinking fund referred
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to in Article 12 hereof) and which shall not be required for such purposes
because of the conversion or exchange of such Securities as provided in this
Article 14 shall after such conversion or exchange be repaid to the Company by
the Trustee upon the Company's written request by Company Request.
ARTICLE 15
SUBORDINATION OF SECURITIES
Section 15.1 Securities Subordinate to Senior Debt. The Company
covenants and agrees, and each Holder of a Security, by his acceptance thereof,
likewise covenants and agrees, that, to the extent and in the manner hereinafter
set forth in this Article (subject to the provisions of Article 4), the payment
of the principal of (and premium, if any) and interest on the Securities and any
other obligations in respect of the Securities (including any obligation to
repurchase Securities) are hereby expressly made subordinate and subject in
right of payment to the prior payment in full of all Senior Debt of the Company.
Section 15.2 Payment Over of Proceeds Upon Dissolution, Etc. In the
event of (a) any insolvency or bankruptcy case or proceeding, or any
receivership, liquidation, reorganization or other similar case or proceeding in
connection therewith, relative to the Company or to its creditors, as such, or
to its assets, or (b) any liquidation, dissolution or other winding up of the
Company, whether voluntary or involuntary and whether or not involving
insolvency or bankruptcy, or (c) any assignment for the benefit of creditors or
any other marshaling of assets and liabilities of the Company, then and in any
such event specified in (a), (b) or (c) above (each such event, if any, herein
sometimes referred to as a "Company Proceeding") the holders of all Senior Debt
of the Company shall first be entitled to receive payment in full of all amounts
due or to become due on or in respect of all such Senior Debt, or provision
shall be made for such payment in cash or cash equivalents or otherwise in a
manner satisfactory to the holders of such Senior Debt, before the Holders of
the Securities are entitled to receive any payment or distribution of any kind
or character from the Company, whether in cash, property or securities
(including any payment or distribution which may be payable or deliverable by
reason of the payment of any other Debt of the Company subordinated to the
payment of the Securities on account of principal of (or premium, if any) or
interest on or other obligations in respect of the Securities or on account of
any purchase or other acquisition of Securities by the Company or any Subsidiary
of the Company (all such payments, distributions, purchases and acquisitions
herein referred to, individually and collectively, as a "Company Securities
Payment"), and to that end the holders of Senior Debt of the Company shall be
entitled to receive, for application to the payment thereof, any Company
Securities Payment which may be payable or deliverable in respect of the
Securities in any such Company Proceeding.
In the event that, notwithstanding the foregoing provisions of this
Section, the Trustee or the Holder of any Security shall have received any
Securities Payment before all
81
<PAGE>
Senior Debt the Company is paid in full or payment thereof provided for in cash
or cash equivalents or otherwise in a manner satisfactory to the holders of such
Senior Debt, then and in such event such Securities Payment shall be paid over
or delivered forthwith to the holders of Senior Debt for application to the
payment of such Senior Debt remaining unpaid, to the extent necessary to pay
such Senior Debt in full, after giving effect to any concurrent payment or
distribution to or for the holders of such Senior Debt.
The consolidation of the Company with, or the merger of the Company
into, another Person or the liquidation or dissolution of the Company following
the conveyance or transfer of all or substantially all of its properties and
assets as an entirety to another Person upon the terms and conditions set forth
in Article 7 shall not be deemed a Proceeding for the purposes of this Section
if the Person formed by such consolidation or into which the Company is merged
or the Person which acquires by conveyance or transfer such properties and
assets as an entirety, as the case may be, shall, as a part of such
consolidation, merger, conveyance or transfer, comply with the conditions set
forth in Article 7.
Section 15.3 No Payment When Senior Debt in Default. In the event
that any Senior Payment Default (as defined below) shall have occurred and be
continuing, then no Company Securities Payment shall be made unless and until
such Senior Payment Default shall have been cured or waived or shall have ceased
to exist or all amounts then due and payable in respect of Senior Debt of the
Company shall have been paid in full, or provision shall have been made for such
payment in cash or otherwise in a manner satisfactory to the holders of such
Senior Debt. "Senior Payment Default" means (i) any default in the payment of
principal of (or premium, if any) or interest on any Senior Debt of the Company
and (ii) any event of default with respect to Senior Debt of the Company which
has resulted in such Senior Debt becoming or being declared due and payable
prior to the date on which it would otherwise have become due and payable.
In the event that any Senior Nonmonetary Default (as defined below)
shall have occurred and be continuing, then, upon the receipt by the Company and
the Trustee of written notice of such Senior Nonmonetary Default from any holder
of Senior Debt of the Company with a principal amount in excess of $50,000,000,
no Company Securities Payment shall be made during the period (the "Payment
Blockage Period") commencing on the date of such receipt of such written notice
and ending on the earlier of (i) the date on which such Senior Nonmonetary
Default shall have been cured or waived or shall have ceased to exist and any
acceleration of Senior Debt of the Company shall have been rescinded or annulled
or the Senior Debt of the Company to which such Senior Nonmonetary Default
relates shall have been discharged or (ii) the 179th day after the date of such
receipt of such written notice. No more than one Payment Blockage Period may be
commenced with respect to the Securities during any consecutive 360-day period.
For all purposes of this paragraph, no Senior Nonmonetary Default that existed
or was continuing on the date of commencement of any Payment Blockage Period
shall be, or be made, the basis for the commencement of a subsequent Payment
Blockage Period whether or not within a period of 360 consecutive days by
holders of Senior Debt of the
82
<PAGE>
Company or their representatives unless such Senior Non-Monetary Default shall
have been cured for a period of not less than 90 consecutive days. "Senior
Nonmonetary Default" means the occurrence or existence and continuance of any
event of default, or of any event which, after notice or lapse of time (or
both), would become an event of default, under the terms of any instrument
pursuant to which any Senior Debt of the Company is outstanding, permitting
(after notice or lapse of time or both) one or more holders of such Senior Debt
(or a trustee or agent on behalf of the holders thereof) to declare such Senior
Debt due and payable prior to the date on which it would otherwise become due
and payable, other than a Senior Payment Default.
In the event that, notwithstanding the foregoing, the Company shall
make any Company Securities Payment to the Trustee or any Holder prohibited by
the foregoing provisions of this Section, then and in such event such Company
Securities Payment shall be paid over and delivered forthwith to the holders of
the Senior Debt of the Company.
The provisions of this Section shall not apply to any Company
Securities Payment with respect to which Section 15.2 would be applicable.
Section 15.4 Certain Payments Permitted. Nothing contained in this
Article or elsewhere in this Indenture or in any of the Securities shall prevent
the Company, at any time except during the pendency of any Proceeding referred
to in Section 15.2 or under the conditions described in Section 15.3, from
making Company Securities Payments.
Section 15.5 Subrogation to Rights of Holders of Senior Debt. Subject
to the payment in full in cash of all amounts due or to become due on or in
respect of Senior Debt of the Company or the provision for such payment in cash
or cash equivalents or otherwise in a manner satisfactory to the holders of such
Senior Debt, the Holders of the Securities shall be subrogated to the rights of
the holders of such Senior Debt to receive payments and distributions of cash,
property and securities applicable to such Senior Debt until the principal of
(and premium, if any) and interest on the Securities shall be paid in full. For
purposes of such subrogation, no payments or distributions to the holders of the
Senior Debt of the Company of any cash, property or securities to which the
Holders of the Securities or the Trustee would be entitled except for the
provisions of this Article, and no payments over pursuant to the provisions of
this Article to the holders of Senior Debt of the Company by Holders of the
Securities or the Trustee, shall, as among the Company, its creditors other than
holders of Senior Debt and the Holders of the Securities, be deemed to be a
payment or distribution by the Company to or on account of the Senior Debt of
the Company.
Section 15.6 Provisions Solely to Define Relative Rights. The
provisions of this Article are and are intended solely for the purpose of
defining the relative rights of the Holders on the one hand and the holders of
Senior Debt on the other hand. Nothing contained in this Article or elsewhere in
this Indenture or in the Securities is intended to or shall (a) impair, as among
the Company, its creditors other than holders of Senior Debt and the Holders of
the Securities the obligation of the Company which is absolute and unconditional
(and which,
83
<PAGE>
subject to the rights under this Article of the holders of Senior Debt, is
intended to rank equally with all other general obligations of the Company), to
pay to the Holders of the Securities the principal of (and premium, if any) and
interest on the Securities as and when the same shall become due and payable in
accordance with their terms; or (b) affect the relative rights against the
Company of the Holders of the Securities and creditors of the Company other than
the holders of Senior Debt; or (c) 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
of the holders of Senior Debt to receive cash, property and securities otherwise
payable or deliverable to the Trustee or such Holder.
Section 15.7 Trustee to Effectuate Subordination. Each Holder of a
Security by his acceptance thereof authorizes and directs the Trustee on his
behalf to take such action as may be necessary or appropriate to effectuate the
subordination provided in this Article and appoints the Trustee his attorney-in-
fact for any and all such purposes.
Section 15.8 No Waiver of Subordination Provisions. No right of any
present or future holder of any Senior Debt to enforce subordination as herein
provided shall at any time in any way be prejudiced or impaired by any act or
failure to act on the part of the Company or by any act or failure to act, in
good faith, by any such holder, or by any noncompliance by the Company with the
terms, provisions and covenants of this Indenture, regardless of any knowledge
thereof any such holder may have or be otherwise charged with.
Without in any way limiting the generality of the foregoing paragraph,
the holders of Senior Debt may, at any time and from time to time, without the
consent of or notice to the Trustee or the Holders of the Securities, without
incurring responsibility to the Holders of the Securities and without impairing
or releasing the subordination provided in this Article or the obligations
hereunder of the Holders of the Securities to the holders of Senior Debt, do any
one or more of the following: (i) change the manner, place or terms of payment
or extend the time of payment of, or renew or alter or increase, Senior Debt, or
otherwise amend or supplement in any manner Senior Debt or any instrument
evidencing the same or any agreement under which Senior Debt is outstanding;
(ii) sell, exchange, release or otherwise deal with any property pledged,
mortgaged or otherwise securing Senior Debt; (iii) release any Person liable in
any manner for the collection of Senior Debt; and (iv) exercise or refrain from
exercising any rights against the Company and any other Person.
Section 15.9 Notice to Trustee. The Company shall give prompt written
notice to the Trustee of any fact known to the Company which would prohibit the
making of any payment to or by the Trustee in respect of the Securities.
Notwithstanding the provisions of this Article or any other provision of this
Indenture, the Trustee shall not be charged with knowledge of the existence of
any facts which would prohibit the making of any payment to or by the Trustee in
respect of the Securities, unless and until the Trustee shall have received
written notice thereof from the Company or a holder of Senior Debt or from any
trustee therefor; and, prior to the receipt of any such written notice, the
Trustee, subject to the provisions of Section
84
<PAGE>
6.1, shall be entitled in all respects to assume that no such facts exist,
provided that nothing in this Section 15.9 shall impair the subordination
provisions of this Article Fourteen.
Subject to the provisions of Section 6.1, the Trustee shall be
entitled to rely on the delivery to it of a written notice by a Person
representing himself to be a holder of Senior Debt (or a trustee, representative
or agent therefor) to establish that such notice has been given by a holder of
Senior Debt (or a trustee, representative or agent therefor). 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 Debt to participate in
any payment or distribution pursuant to this Article, the Trustee may request
such Person to furnish evidence to the reasonable satisfaction of the Trustee as
to the amount of Senior Debt held by such Person, the extent to which such
Person is entitled to participate in such payment or distribution and any other
facts pertinent to the rights of such Person under this Article, 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.
Section 15.10 Reliance on Judicial Order or Certificate of Liquidating
Agent. Upon any payment or distribution of assets or securities of the Company
referred to in this Article, the Trustee, subject to the provisions of Section
6.1, and the Holders of the Securities shall be entitled to rely upon any order
or decree entered by any court of competent jurisdiction in which such
Proceeding is pending, or a certificate of the trustee in bankruptcy, receiver,
liquidating trustee, custodian, assignee for the benefit of creditors, agent or
other Person making such payment or distribution, delivered to the Trustee or to
the Holders of Securities, for the purpose of ascertaining the Persons entitled
to participate in such payment or distribution, the holders of the Senior Debt
and other indebtedness of the Company, the amount thereof or payable thereon,
the amount or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article.
Section 15.11 Trustee Not Fiduciary for Holders of Senior Debt. The
Trustee shall not be deemed to owe any fiduciary duty to the holders of Senior
Debt and shall not be liable to any such holders if it shall in good faith
mistakenly pay over or distribute to Holders of Securities or to the Company or
to any other Person cash, property or securities to which any holders of Senior
Debt shall be entitled by virtue of this Article or otherwise.
Section 15.12 Rights of Trustee as Holder of Senior Debt; Preservation
of Trustee's Rights. The Trustee in its individual capacity shall be entitled
to all the rights set forth in this Article with respect to any Senior Debt
which may at any time be held by it, to the same extent as any other holder of
Senior Debt, and nothing in this Indenture shall deprive the Trustee of any of
its rights as such holder.
Nothing in this Article shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 6.7.
85
<PAGE>
Section 15.13 Article Applicable to Paying Agents. In case at any time
any Paying Agent other than the Trustee shall have been appointed by the Company
and be then acting hereunder, the term "Trustee" as used in this Article shall
in such case (unless the context otherwise requires) be construed as extending
to and including such Paying Agent within its meaning as fully for all intents
and purposes as if such Paying Agent were named in this Article in addition to
or in place of the Trustee; provided, however, that Section 15.12 shall not
apply to the Company or any Affiliate of the Company if it or such Affiliate
acts as Paying Agent.
Section 15.14 Defeasance of this Article 15. The subordination of the
Securities provided by this Article 15 is expressly made subject to the
provisions for defeasance or covenant defeasance in Article 4 and, anything
herein to the contrary notwithstanding, upon the effectiveness of any such
defeasance or covenant defeasance, the Securities then Outstanding relating
thereto shall thereupon cease to be subordinated pursuant to this Article 15.
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.
EASTERN ENVIRONMENTAL SERVICES, INC.
By:
----------------------------------
Name:
Title:
[Seal]
Attest:
- ---------------------
Name:
Title:
SUMMIT BANK
----------------------------------
By:
----------------------------------
Name:
Title:
Seal
Attest:
- --------------------------
Name:
Title:
86
<PAGE>
STATE OF _______________ )
) ss.:
COUNTY OF ______________ )
On the ___ day of ____________, 199_, before me personally came
_________________, to me known, who, being by me duly sworn, did depose and say
that he is [Title] of Eastern Environmental Services, Inc. one of the
corporations described in and which executed the foregoing instrument; that he
knows the 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
STATE OF _______________ )
) ss.:
COUNTY OF ______________ )
On the ___ day of ____________ 199_, before me personally came
__________________, to me known, who, being by me duly sworn, did depose and say
that [s]he is a [Title] of Summit Bank, one of the corporations described in
and which executed the foregoing instrument; that she knows the 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 [s]he signed [her] [his] name thereto by like authority.
,
-----------------------
Notary Public
<PAGE>
Reconciliation and tie between Subordinated Indenture, dated as of ,
1998 (the "Indenture") and the Trust Indenture Act of 1939, as amended.
<TABLE>
<CAPTION>
TRUST INDENTURE ACT OF 1939 SECTION INDENTURE SECTION
<S> <C>
310(a)(1)............................................................... 6.9
310(a)(2)............................................................... 6.9
310(a)(3)............................................................... TIA
310(a)(4)............................................................... N/A
310(a)(5)............................................................... TIA
310(b)....................................................... 6.8; 6.10; TIA
311(a).................................................................. TIA
311(b).................................................................. TIA
312(a)..................................................................10.1
312(b).................................................................. TIA
312(c).................................................................. TIA
313(a)............................................................ 10.3; TIA
313(b).................................................................. TIA
313(c).................................................................. TIA
313(d).................................................................. TIA
314(a)....................................................... 10.4; 9.7; TIA
314(b).................................................................. N/A
314(c)(1)............................................................... 1.2
314(c)(2)............................................................... 1.2
314(c)(3)............................................................... N/A
314(d).................................................................. N/A
314(e).................................................................. TIA
314(f).................................................................. TIA
315(a).................................................................. 6.1
315(b).................................................................. 6.2
315(c).................................................................. 6.1
315(d)(1)............................................................... TIA
315(d)(2)............................................................... TIA
315(d)(3)............................................................... TIA
315(e).................................................................. TIA
316(a)(last sentence)................................................... 1.1
316(a)(1)(A)....................................................... 5.2; 5.8
316(a)(1)(B)............................................................ 5.7
316(b)............................................................ 5.9;.5.10
316(c).................................................................. TIA
317(a)(1)............................................................... 5.3
317(a)(2)............................................................... 5.4
317(b).................................................................. 9.3
318(a)................................................................. 1.11
318(b).................................................................. TIA
318(c)............................................................ 1.11; TIA
</TABLE>
This reconciliation and tie section does not constitute a part of the
Indenture.
<PAGE>
Exhibit 5
---------
[DB&R Letterhead]
May 1, 1998
Eastern Environmental Services, Inc.
1000 Crawford Place, Suite 400
Mt. Laurel, New Jersey 08054
Re: Eastern Environmental Services, Inc.
Securities and Exchange Commission
Registration Statement on Form S-3 (Registration No. 333-49613)
---------------------------------------------------------------
Ladies and Gentlemen:
We have acted as counsel to Eastern Environmental Services, Inc., a
Delaware corporation (the "Company"), in connection with the preparation and
filing with the Securities and Exchange Commission of a Registration Statement
on Form S-3 (Registration No. 333-49613), as amended (the "Registration
Statement"), under the Securities Act of 1933, as amended (the "Securities
Act"), with respect to the contemplated issuance by the Company from time to
time of up to U.S. $400,000,000 aggregate public offering price or the
equivalent thereof in one or more foreign currencies, currency units or
composite currencies of (i) shares of the Company's Common Stock, par value $.01
per share (the "Common Stock"), (ii) shares of the Company's Preferred Stock,
par value $.01 per share (the "Preferred Stock"), (iii) senior debt securities
of the Company (the "Senior Debt Securities"), to be issued pursuant to an
indenture (the "Senior Indenture") to be entered into between the Company and
Summit Bank, as trustee (the "Senior Trustee"), (iv) subordinated debt
securities of the Company (the "Subordinated Debt Securities" and, together with
the Senior Debt Securities, the "Debt Securities") to be issued pursuant to an
indenture (the "Subordinated Indenture" and, together with the Senior Indenture,
the "Indentures") to be entered into between the Company and Summit Bank, as
trustee (the "Subordinated Trustee"), and (v) warrants to purchase Common Stock,
Preferred Stock or Debt Securities as shall be designated by the Company at the
time of the offering (the "Warrants"). Capitalized terms used herein have the
meanings set forth in the Registration Statement, unless otherwise defined
herein.
In this connection, we have examined the originals or copies, certified or
otherwise identified to our satisfaction, of the Certificate of Incorporation
and the By-laws of the Company as amended through the effective date of the
Registration Statement, resolutions of the Company's Board of Directors, and
such other documents and corporate records relating to the Company and the
issuance and sale of the Common Stock, the Preferred Stock, the Debt Securities,
and the Warrants as we have deemed appropriate. We express no opinion concerning
the laws of any jurisdiction other than the laws of the Commonwealth of
Pennsylvania and the General Corporation Law of the State of Delaware. For
purposes of the opinions set forth herein, we have assumed with your permission
that the Indentures, the Debt Securities, the Warrant Agreement and the
Warrants, are governed by the laws of the Commonwealth of Pennsylvania.
<PAGE>
In all cases, we have assumed the legal capacity of each natural person
signing any of the documents and corporate records examined by us, the
genuineness of signatures, the authenticity of documents submitted to us as
originals, the conformity to authentic original documents of documents submitted
to us as copies and the accuracy and completeness of all corporate records and
other information made available to us by the Company.
On the basis of the foregoing, we are of the opinion that:
1. The shares of Common Stock, when the terms of the issuance and
sale thereof have been duly approved by the Board of Directors of the Company in
conformity with the Company's Certificate of Incorporation, as amended (the
"Certificate of Incorporation"), and when issued and delivered against payment
therefor for an amount in excess of the par value thereof, and if issued upon
the exercise or conversion of any Warrants or Debt Securities, issued and
delivered as contemplated by the terms thereof and of the Warrant Agreement or
the applicable Indenture, respectively, relating thereto, will be validly
issued, fully paid and non-assessable by the Company.
2. Upon the fixing of the designations, relative rights, preferences
and limitations of any series of Preferred Stock by the Board of Directors of
the Company and proper and valid filing with the Office of the Secretary of
State of the State of Delaware, Division of Corporations, of a Certificate of
Designations setting forth the powers, designations, preferences and relative,
participating, optional and other rights, if any, or the qualifications,
limitations or restrictions thereof, if any, with respect to such series of
Preferred Stock, all in accordance with Section 151 of the General Corporation
Law of the State of Delaware and in conformity with the Certificate of
Incorporation and upon the approval by the Board of Directors of the Company 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 relating thereto proposed to be sold by the Company,
and when such shares of Preferred Stock are issued and delivered against payment
therefor for an amount in excess of the par value thereof, and, if issued upon
the exercise or conversion of any Warrants or Debt Securities, issued and
delivered as contemplated by the terms thereof and of the Warrant Agreement or
the applicable Indenture, respectively, relating thereto, such shares will be
validly issued, fully paid and non-assessable by the Company.
3. Assuming the Senior Indenture is duly executed and delivered by
the Company and duly authorized, executed and delivered by the Senior Trustee,
when the terms of the Senior Debt Securities and their issue and sale have been
duly established in conformity with the Senior Indenture so as not to violate
any applicable law or agreement or instrument then binding on the Company, the
Senior Debt Securities have been duly executed and authenticated in accordance
with the terms of the Senior Indenture and issued and sold as contemplated in
the Registration Statement, and, if issued upon the exercise or conversion of
any Warrants, issued and delivered as contemplated by the terms thereof and of
the Warrant Agreement relating thereto, the Senior Debt Securities will
constitute valid and binding obligations of the Company, subject to (i)
bankruptcy, insolvency, reorganization, fraudulent transfer, moratorium or other
laws now or hereafter in effect affecting creditors' rights generally and (ii)
general principals of equity (including, without limitation, standards of
materiality, good faith, fair dealing and reasonableness), whether considered in
a proceeding in equity or at law.
<PAGE>
4. Assuming the Subordinated Indenture is duly executed and delivered
by the Company and duly authorized, executed and delivered by the Subordinated
Trustee, when the terms of the Subordinated Debt Securities and their issue and
sale have been duly established in conformity with the Subordinated Indenture so
as not to violate any applicable law or agreement or instrument then binding on
the Company, the Subordinated Debt Securities have been duly executed and
authenticated in accordance with the terms of the Subordinated Indenture and
issued and sold as contemplated in the Registration Statement, and, if issued
upon the exercise or conversion of any Warrants, issued and delivered as
contemplated by the terms thereof and of the Warrant Agreement relating thereto,
the Subordinated Debt Securities will constitute valid and binding obligations
of the Company, subject to (i) bankruptcy, insolvency, reorganization,
fraudulent transfer, moratorium or other laws now or hereafter in effect
affecting creditors' rights generally and (ii) 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.
5. When the issuance, execution and delivery by the Company of any of
the Warrants shall have been duly authorized by all necessary corporate action
of the Company, the Warrant Agreement relating thereto shall have been executed
and delivered by the respective parties thereto and such Warrants shall have
been duly executed and delivered by the Company, countersigned by the Warrant
Agent relating thereto and sold as contemplated by the Registration Statement
and the Warrant Agreement relating thereto, assuming that the terms of such
Warrants are in compliance with then applicable law, such Warrants will be
validly issued and will be enforceable against the Company in accordance with
their terms, subject to (i) bankruptcy, insolvency, reorganization, fraudulent
transfer, moratorium or other laws now or hereafter in effect affecting
creditors' rights generally and (ii) 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 hereby consent to the reference to our firm under the captions "Validity
of Securities" in the Prospectus and "Validity of Securities" in any Prospectus
Supplement and to the filing of this opinion as an exhibit to the Registration
Statement. In giving this consent, we do not admit that we come within the
categories of persons whose consent is required under Section 7 of the
Securities Act.
Very truly yours,
DRINKER BIDDLE & REATH LLP
<PAGE>
Exhibit 12
----------
STATEMENT REGARDING COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES (1)
(In thousands except ratio)
<TABLE>
<CAPTION>
(2)
6 months 12 months 12 months 12 months 12 months 12 months
12/31/97 6/30/97 6/30/96 6/30/95 6/30/94 6/30/93
--------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
EARNINGS
Pre-tax income $ 9,987 $ 6,556 $(2,736) $ 3,000 $ 2,732 $ (2,187)
Fixed charges 1,865 3,827 1,484 1,288 870 357
Interest capitalized (136) (178) (84) (48) (139) -
--------------------------------------------------------------------------------
Earnings $11,716 $10,205 $(1,336) $ 4,240 $ 3,463 $ (1,830)
--------------------------------------------------------------------------------
FIXED CHARGES
Interest on indebtedness $ 1,581 $ 3,443 $ 1,278 $ 1,104 $ 603 $ 229
Interest capitalized 136 178 84 48 139 -
Interest portion of rental
expense 148 206 122 136 128 128
--------------------------------------------------------------------------------
Total fixed charges $ 1,865 $ 3,827 $ 1,484 $ 1,288 $ 870 $ 357
--------------------------------------------------------------------------------
Ratio of earnings to fixed
charges 6.3 2.7 - 3.3 4.0 -
</TABLE>
- ------------------------------------------
(1) The consolidated ratio of earnings to fixed charges was derived from the
Company's supplemental consolidated financial statements included in the
Company's Current Report on Form 8-K dated April 29, 1998.
(2) Subsequent to June 30, 1996, the Company acquired Super Kwik, Inc. and its
affiliates ("Super Kwik"), Donno Company, Inc. and its affiliates
("Donno"), and subsequent to June 30, 1997, the Company acquired Hamm's
Sanitation, Inc. and H.S.S. Inc. ("Hamm's"), Bluegrass Containment, Inc.,
the Stamato Companies, and the Ecology Companies in separate transactions.
Each of these business combinations was accounted for as a pooling of
interests and, accordingly, the Company's consolidated financial statements
were restated for periods prior to the acquisition to include the results
of operations, financial position, and cash flows of those companies. The
consolidated ratio of earnings to fixed charges for the year ended June 30,
1993 has not been restated to include these acquisitions.
For purposes of computing the ratio of earnings to fixed charges,
"earnings" consists of earnings before income taxes and fixed charges. "Fixed
charges" consist of interest on all indebtedness and that portion of rental
expense under operating leases that management believes to be representative of
interest. Earnings in 1996 and 1993 were insufficient to cover fixed charges by
$148,000 and $1.5 million, respectively. Because the Company has no outstanding
Preferred Stock, the ratio of earnings to the sum of fixed charges and preferred
stock dividends is the same as the ratio of earnings to fixed charges.
<PAGE>
Exhibit 23.8
------------
Consent of Independent Auditors
We consent to the reference of our firm under the caption "Experts" in
Amendment No. 1 to the Registration Statement (Form S-3 No. 333-49613) and
related Prospectus of Eastern Environmental Services, Inc., for the registration
of up to $400,000,000 of Securities and to the incorporation by reference
therein of our report dated February 23, 1998, with respect to the consolidated
financial statements of Eastern Environmental Services, Inc., for the year ended
June 30, 1997 included in its Current Report on Form 8-K dated February 27, 1998
and our report dated April 29, 1998 with respect to the supplemental
consolidated financial statements of Eastern Environmental Services, Inc.
included in its Current Report on Form 8-K dated April 29, 1998, filed with the
Securities and Exchange Commission.
Philadelphia, Pennsylvania /s/ Ernst & Young LLP
April 30, 1998
<PAGE>
Exhibit 23.9
------------
Independent Auditors' Consent
We consent to the incorporation by reference in this Amendment No. 1 to
Registration Statement No. 333-49613 of Eastern Environmental Services, Inc., on
Form S-3 of our report dated April 29, 1998, with respect to the consolidated
financial statements of Atlantic Waste Disposal, Inc. and subsidiaries as of and
for the years ended June 30, 1997 and 1996 appearing in Eastern Environmental
Services, Inc.'s Current Report on Form 8-K dated on or about April 29, 1998
and to the reference to us under the heading "Experts" in the Prospectus, which
is part of such Registration Statement.
/s/ Deloitte & Touche LLP
Richmond, Virginia
April 30, 1998
<PAGE>
Exhibit 23.10
-------------
Consent of Independent Auditors
We consent to the reference of our firm under the caption "Experts" and to
the incorporation by reference in Amendment No. 1 to the Registration Statement
(Form S-3 No. 333-49613) and related Prospectus of Eastern Environmental
Services, Inc., of our report dated March 18, 1998, with respect to the
financial statements of Bluegrass Containment, Inc. included in Eastern
Environmental Services, Inc.'s Current Report on Form 8-K dated March 9, 1998
(as amended on Form 8-K/A dated April 8, 1998), filed with the Securities and
Exchange Commission.
Louisville, Kentucky /s/ Strothman & Company P.S.C.
April 28, 1998
<PAGE>
Exhibit 23.11
-------------
Consent of Independent Auditors
We consent to the reference of our firm under the caption "Experts" and to
the incorporation by reference in Amendment No. 1 to the Registration Statement
(Form S-3 No. 333-49613) and related Prospectus of Eastern Environmental
Services, Inc., of our report dated March 28, 1998, with respect to the
financial statements of The Stamato Companies included in Eastern Environmental
Services, Inc.'s Current Report on Form 8-K dated March 31, 1998 (as amended on
Form 8-K/A dated April 24, 1998), filed with the Securities and Exchange
Commission.
Mountain Lakes, New Jersey /s/ Mills and DeFilippis LLP
Certified Public Accountants
April 28, 1998
<PAGE>
Exhibit 25.1
------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
[X]CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2)
SUMMIT BANK
(NAME OF TRUSTEE)
22-0834947
(I.R.S. EMPLOYER IDENTIFICATION NO.)
210 MAIN STREET
HACKENSACK, NJ 07601
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES)
EASTERN ENVIRONMENTAL SERVICES, INC.
(NAME OF OBLIGOR)
DELAWARE
(STATE OF INCORPORATION)
(I.R.S. EMPLOYER IDENTIFICATION NO.)
1000 CRAWFORD PLACE
SUITE 101
MT. LAUREL, NJ 08054
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES)
(TITLE OF INDENTURE SECURITIES)
% SENIOR DEBT SECURITIES DUE
--- -----------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
1. GENERAL INFORMATION
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervisory authority to which
it is subject:
<TABLE>
<CAPTION>
NAME ADDRESS
---- -------
<S> <C>
Federal Reserve Bank (2nd District)......................... New York, NY
Federal Deposit Insurance Corporation....................... Washington, DC
New Jersey Department of Banking............................ Trenton, NJ
</TABLE>
(b) Whether it is authorized to exercise corporate trust powers.
Yes
2. AFFILIATIONS WITH OBLIGOR
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None (See Note on page 5)
3. VOTING SECURITIES OF THE TRUSTEE
Furnish the following information as to each class of voting securities of
the trustee: As of 3/31/98
<TABLE>
<CAPTION>
COL. A COL. B
------ ------
TITLE OF CLASS AMOUNT OUTSTANDING
-------------- ------------------
<S> <C>
Summit Bank, Common Stock............................... 34,021,623 shares
Summit Bank, Preferred Stock............................ 120,000 shares
</TABLE>
4. TRUSTEESHIPS UNDER OTHER INDENTURES
If the trustee is a trustee under another indenture under which any other
securities, or certificates of interest or participation in any other
securities, of the obligor are outstanding, furnish the following information:
Not applicable--see answer to item 13
5. INTERLOCKING DIRECTORATES AND SIMILAR RELATIONSHIPS WITH THE OBLIGOR OR
UNDERWRITERS
If the trustee or any of the directors or executive officers of the trustee
is a director, officer, partner, employee, appointee, or representative of the
obligor or of any underwriter for the obligor, identify each such person
having any such connection and state the nature of each such connection.
Not applicable--see answer to item 13
6. VOTING SECURITIES OF THE TRUSTEE OWNED BY THE OBLIGOR OR ITS OFFICIALS
Furnish the following information as to the voting securities of the trustee
owned beneficially by the obligor and each director, partner, and executive
officer of the obligor:
Not applicable--see answer to item 13
7. VOTING SECURITIES OF THE TRUSTEE OWNED BY UNDERWRITERS OR THEIR OFFICIALS
Furnish the following information as to the voting securities of the trustee
owned beneficially by each underwriter for the obligor and each director,
partner, and executive officer of each such underwriter:
Not applicable--see answer to item 13
2
<PAGE>
8. SECURITIES OF THE OBLIGOR OWNED OR HELD BY THE TRUSTEE
Furnish the following information as to securities of the obligor owned
beneficially or held as collateral security for obligations in default by the
trustee:
Not applicable--see answer to item 13
9. SECURITIES OF UNDERWRITERS OWNED OR HELD BY THE TRUSTEE
If the trustee owns beneficially or holding as collateral security for
obligations in default any securities of an underwriter for the obligor,
furnish the following information as to each class of securities of such
underwriter any of which are owned or held by the trustee:
Not applicable--see answer to item 13
10. OWNERSHIP OR HOLDINGS BY THE TRUSTEE OF VOTING SECURITIES OF CERTAIN
AFFILIATES OR SECURITY HOLDERS OF THE OBLIGOR
If the trustee owns beneficially or holds as collateral security for
obligations in default voting securities of a person who, to the knowledge of
the trustee (1) owns 10 percent or more of the voting stock of the obligor or
(2) is an affiliate, other than a subsidiary, of the obligor, furnish the
following information as to the voting securities of such person:
Not applicable--see answer to item 13
11. OWNERSHIP OR HOLDINGS BY THE TRUSTEE OF ANY SECURITIES OF A PERSON OWNING
50 PERCENT OR MORE OF THE VOTING SECURITIES OF THE OBLIGOR
If the trustee owns beneficially or holds as collateral security for
obligations in default any securities of a person who, to the knowledge of the
trustee, owns 50 percent or more of the voting securities of the obligor,
furnish the following information as to each class of securities of such
person any of which are 80 owned or held by the trustee:
Not applicable--see answer to item 13
12. INDEBTEDNESS OF THE OBLIGOR TO THE TRUSTEE
Except as noted in the instructions, if the obligor is indebted to the
trustee, furnish the following information:
Not applicable--see answer to item 13
13. DEFAULTS BY THE OBLIGOR
(a) State whether there is or has been a default with respect to the
securities under this indenture. Explain the nature of any such default.
None
(b) If the trustee is a trustee under another indenture under which any
other securities, or certificates of interest or participation in any other
securities, of the obligor are outstanding, or is trustee for more than one
outstanding series of securities under the indenture, state whether there has
been a default under any such indenture or series, identify the indenture or
series affected, and explain the nature of any such default.
None
3
<PAGE>
14. AFFILIATIONS WITH THE UNDERWRITERS
If any underwriter is an affiliate of the trustee, describe each such
affiliation.
Not applicable--see answer to item 13
15. FOREIGN TRUSTEE
Identify the order or rule pursuant to which the trustee is authorized to
act as sole trustee under indentures qualified or to be qualified under the
Act.
Not applicable
16. LIST OF EXHIBITS
List below all exhibits filed as part of this statement of eligibility.
<TABLE>
<C> <C> <S>
[X] 1. *Copy of Articles of Association of the Trustee as now in effect.
[_] 2. No certificate of authority of the Trustee to commence business is
furnished since this authority is contained in the Articles of
Association of the Trustee.
[_] 3. No copy of the authorization of the trustee to exercise corporate
trust powers is furnished since this authorization is contained in the
Articles of Association of the Trustee.
[X] 4. *Copy of the existing By-Laws of the Trustee as now in effect.
[_] 5. Not Applicable.
[X] 6. The consent of the Trustee required by Section 321(b) of the Act.
[X] 7. A copy of the latest report of Condition of the Trustee published
pursuant to law or the requirements of its supervising or examining
authority.
[_] 8. Not Applicable.
[_] 9. Not Applicable.
</TABLE>
- --------
* Exhibits thus designated have heretofore been filed with the Securities and
Exchange Commission, have not been amended since filing and are incorporated
herein by reference (see Exhibits TIA(i) and TIA(ii) File No. 285667)
4
<PAGE>
NOTE
The Trustee disclaims responsibility for the accuracy or completeness of
information contained in this Statement of Eligibility and Qualification not
known to the trustee and not obtained by it through reasonable investigation
and as to which information it has obtained from the obligor and has had to
rely or will obtain from the principal underwriters and will have to rely.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the
trustee, Summit Bank, a corporation organized and existing under the laws of
the State of New Jersey, has duly caused this Statement of Eligibility and
Qualification to be signed on its behalf by the undersigned, thereunto duly
authorized, all in the City of Hackensack and State of New Jersey on the 30th
day of April, 1998.
SUMMIT BANK
/s/ Andrea Harris
By: _________________________________
Andrea Harris
Asst. Vice President
5
<PAGE>
CONSENT OF TRUSTEE
Summit Bank, as trustee (the "Trustee") under an indenture to be entered
into between itself and Eastern Environment, Inc., hereby consents, pursuant
to Section 321(b) of the Trust Indenture Act of 1939, as amended, to the
furnishing by Federal, State, Territorial or District Authorities to the
Securities and Exchange Commission of all reports, records or other
information relating thereto.
SUMMIT BANK
/s/ Andrea Harris
By: _________________________________
Andrea Harris
Asst. Vice President
Dated: April 30, 1998
6
<PAGE>
Exhibit 7
---------
Board of Governors of the Federal Reserve System
OMB Number: 7100-0036
Federal Deposit Insurance Corporation
OMB Number: 3064-0052
Office of the Comptroller of the Currency
OMB Number: 1557-0081
Expires March 31, 2000
Federal Financial Institutions Examination Council
- --------------------------------------------------------------------------------
[ART APPEARS HERE] Please refer to page i, [1]
Table of Contents, for
the required disclosure
of estimated burden.
- -------------------------------------------------------------------------------
Consolidated Reports of Condition and Income for
A Bank With Domestic and Foreign Offices -- FFIEC 031
(951231)
-----------
Report at the close of business December 31, 1997 (RCRI 9999)
This report is required by law: 12 U.S.C. (S)324 (State member banks);
12 U.S.C. (S)1817 (State nonmember banks); and 12 U.S.C. (S)161 (National
banks).
This report form is to be filed by banks with branches and consolidated
subsidiaries in U.S. territories and possessions, Edge or Agreement
subsidiaries, foreign branches, consolidated foreign subsidiaries, or
International Banking Facililties.
- -------------------------------------------------------------------------------
NOTE: The Reports of Condition and Income must be signed by an authorized
officer and the Report of Condition must be attested to by not less than two
directors (trustees) for State nonmember banks and three directors for State
member and National banks.
I, William J. Healy, Asst. Treasurer
-----------------------------------------------------------------------------
Name and Title of Officer Authorized to Sign Report
of the named bank do hereby declare that these Reports of Condition and Income
(including the supporting schedules) have been prepared in conformance with the
instructions issued by the appropriate Federal regulatory authority and are true
to the best of my knowledge and belief.
/s/ William J. Healy Asst. Treasurer
- -------------------------------------------------------------------------------
Signature of Officer Authorized to Sign Report
January 26, 1998
- -------------------------------------------------------------------------------
Date of Signature
The Reports of Condition and Income are to be prepared in accordance with
Federal regulatory authority instructions. NOTE: These instructions may in some
cases differ from generally accepted accounting principles.
We, the undersigned directors (trustees), attest to the correctness of this
Report of Condition (including the supporting schedules) and declare that it has
been examined by us and to the best of our knowledge and belief has been
prepared in conformance with the instructions issued by the appropriate Federal
regulatory authority and is true and correct.
[SIGNATURE APPEARS HERE]
- -------------------------------------------------------------------------------
Director (Trustee)
[SIGNATURE APPEARS HERE]
- -------------------------------------------------------------------------------
Director (Trustee)
[SIGNATURE APPEARS HERE]
- --------------------------------------------------------------------------------
Director (Trustee)
- -------------------------------------------------------------------------------
For Banks Submitting Hard Copy Report Forms:
State Member Banks: Return the original and one copy to the appropriate
Federal Reserve District Bank.
State Nonmember Banks: Return the original only in the special return address
envelope provided. If express mail is used in lieu of the special return address
envelope, return the original only to the FDIC, c/o Quality Data Systems, 2127
Espey Court, Suite 204, Crofton, MD 21114.
National Banks: Return the original only in the special return address envelope
provided. If express mail is used in lieu of the special return address
envelope, return the original only to the FDIC, c/o Quality Data Systems, 2127
Espey Court, Suite 204, Crofton, MD 21114.
- -------------------------------------------------------------------------------
FDIC Certificate Number |0|0|5|5|0|
-----------
(RCRI 9060)
Banks should affix the address label in this space.
Summit Bank
- -------------------------------------------------------------------------------
Legal Title of Bank (TEXT 9010)
Princeton
- -------------------------------------------------------------------------------
City (TEXT 9130)
NJ 08543
- -------------------------------------------------------------------------------
State Abbrev. (TEXT 9200) ZIP Code (TEXT 9220)
Board of Governors of the Federal Reserve System, Federal Deposit Insurance
Corporation, Office of the Comptroller of the Currency
<PAGE>
Summit Bank
301 Carnegie Center
Princeton, NJ 08543 Vendor ID: D Cert: 00550
Transit Number: 21202162 Transmitted to EDS as 0071716 on 01/30/96 at
09:16:03 CST
Consolidated Report of Income
For the period January 1, 1997 - December 31, 1997
All Report of Income schedules are to be reported on a calendar year-to-date
basis in thousands of dollars.
Schedule RI - Income Statement
1480 --
<TABLE>
<CAPTION>
Dollar Amounts in Thousands
- --------------------------------------------------------------------------------
<S> <C> <C>
1. Interest income
a. Interest and fee income on loans:
(1) In domestic offices:
(a) Loans secured by real estate----------------RIAD -------
4011 653,775 1.a.1.a
(b) Loans to depository institutions------------RIAD -------
(c) Loans to finance agricultural production 4019 4,276 1.a.1.b
and other loans to farmers------------------RIAD -------
4024 22 1.a.1.c
(d) Commercial and industrial loans-------------RIAD -------
4012 340,201 1.a.1.d
(e) Acceptances of other banks------------------RIAD -------
(f) Loans to individuals for household, 4026 0 1.a.1.e
family, and other personal expenditures: -------
(1) Credit cards and related plans----------RIAD -------
4054 13,621 1.a.1.f.1
(2) Other-----------------------------------RIAD -------
(g) Loans to foreign governments and official 4055 60,083 1.a.1.f.2
institutions--------------------------------RIAD -------
(h) Obligations (other than securities and 4056 0 1.a.1.g
leases) of states and political -------
subdivisions in the U.S.:
(1) Taxable obligations---------------------RIAD -------
4503 99 1.a.1.h.1
(2) Tax-exempt obligations------------------RIAD -------
4504 7,599 1.a.1.h.2
(i) All other loans in domestic offices---------RIAD -------
4058 12,012 1.a.1.i
(2) In foreign offices, Edge and Agreement -------
subsidiaries, and IBFs--------------------------RIAD -------
b. Income from lease financing receivables: 4059 0 1.a.2
(1) Taxable leases----------------------------------RIAD -------
4505 36,976 1.b.1
(2) Tax-exempt leases-------------------------------RIAD -------
c. Interest income on balances due from depository 4307 0 1.b.2
institutions: (1) -------
(1) In domestic offices-----------------------------RIAD -------
(2) In foreign offices, Edge and Agreement 4105 557 1.c.1
subsidiaries, and IBFs--------------------------RIAD -------
d. Interest and dividend income on securities: 4106 0 1.c.2
(1) U.S. Treasury securities and U.S. Government -------
agency and corporation obligations--------------RIAD -------
(2) Securities issued by states and political 4027 287,674 1.d.1
subdivisions in the U.S.: -------
(a) Taxable securities--------------------------RIAD -------
4506 0 1.d.2.a
(b) Tax-exempt securities-----------------------RIAD -------
4507 11,434 1.d.2.b
(3) Other domestic debt securities------------------RIAD -------
3657 72,826 1.d.3
(4) Foreign debt securities-------------------------RIAD -------
(5) Equity securities (including investments in 3658 1,390 1.d.4
mutual funds)-----------------------------------RIAD -------
3659 6,988 1.d.5
e. Interest income from trading assets-----------------RIAD -------
4069 746 1.e
-------
</TABLE>
- -----------
(1) Includes interest income on time certificates of deposits not held for
trading.
<PAGE>
<TABLE>
<CAPTION> -----
4
-----
Schedule RI-Continued Dollar Amounts in Thousands
- ---------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
1. Interest income (continued) Year-to-date
f. Interest income on federal funds sold and securities
purchased under agreements to resell in domestic
offices of the bank and of its Edge and Agreement
subsidiaries and in IBFs ----------
---------------------------------------- RIAD 7,892 1.f
4020 ----------
g. Total interest income (sum of items 1.a through 1.f) ----------
------------ RIAD 1,518,166 1.g
4107 ----------
2. Interest expense:
a. Interest on deposits:
(1) Interest on deposits in domestic offices:
(a) Transaction accounts (NOW accounts, ATS accounts, and
telephone and preauthorized transfer accounts) ----------
-------------- RIAD 34,791 2.a.1.a
4508 ----------
(b) Nontransaction accounts:
(1) Money market deposit accounts (MMDAs) ----------
--------------------- RIAD 114,440 2.a.1.b.1
4509 ----------
(2) Other savings deposits ----------
------------------------------------ RIAD 43,429 2.a.1.b.2
4111 ----------
(3) Time certificates of deposit of $100,000 or more ----------
---------- RIAD 61,242 2.a.1.b.3
4174 ----------
(4) All other time deposits ----------
----------------------------------- RIAD 212,039 2.a.1.b.4
4512 ----------
(2) Interest on deposits in foreign offices, Edge and agreement
subsidiaries, and IBFs ----------
---------------------------------------- RIAD 0 2.a.2
4172 ----------
b. Expense of federal funds purchased and securities sold under
agreements to repurchase in domestic offices of the bank and of
its Edge and Agreement subsidiaries, and in IBFs ----------
---------------- RIAD 107,871 2.b
4180 ----------
c. Interest on demand notes issued to the U.S. Treasury, trading
liabilities, and on other borrowed money ----------
------------------------ RIAD 39,158 2.c
4185 ----------
d. Not applicable
e. Interest on subordinated notes and debentures ----------
------------------- RIAD 11,303 2.e
4200 ----------
f. Total interest expense (sum of items 2.a through 2.e) ----------
----------- RIAD 624,273 2.f
4073 ----------
3. Net interest income (item 1.g minus 2.f) --------
---------------------------------------- RIAD 893,893 3.
4074 --------
4. Provisions:
a. Provision for loan and lease losses --------
------------------------------------------- RIAD 49,904 4.a
4230 --------
b. Provision for allocated transfer risk --------
----------------------------------------- RIAD 0 4.b
4243 --------
5. Noninterest income:
a. Income from fiduciary activities ----------
-------------------------------- RIAD 43,689 5.a
4070 ----------
b. Service charges on deposit accounts in domestic offices ----------
--------- RIAD 97,340 5.b
4080 ----------
c. Trading revenue ----------
------------------------------------------------- RIAD 405 5.c
4075 ----------
d.-e. Not applicable
f. Other noninterest income:
(1) Other fee income ----------
---------------------------------------------- RIAD 47,072 5.f.1
5407 ----------
(2) All other noninterest income* ----------
--------------------------------- RIAD 42,089 5.f.2
5408 ----------
g. Total noninterest income (sum of items 5.a through 5.f) --------
----------------------- RIAD 230,695 5.g
4079 --------
6.a. Realized gains (losses) on held-to-maturity securities --------
------------------------ RIAD 5 6.a
3521 --------
b. Realized gains (losses) on available-for-sale securities --------
---------------------- RIAD 528 6.b
3196 --------
7. Noninterest expense:
a. Salaries and employee benefits ----------
---------------------------------- RIAD 245,988 7.a
4135 ----------
b. Expenses of premises and fixed assets (net of rental
income)
(excluding salaries and employee benefits and mortgage
interest) ----------
------------------------------------------------------- RIAD 83,724 7.b
4217 ----------
c. Other noninterest expense* ----------
-------------------------------------- RIAD 320,660 7.c
4092 ----------
d. Total noninterest expense (sum of items 7.a through 7.c) --------
---------------------- RIAD 650,262 7.d
4093 --------
8. Income (loss) before income taxes and extraordinary items and other
adjustments (item 3 plus or minus items 4.a, 4.b, 5.g, 6.a, 6.b, and 7.d) --------
------- RIAD 424,853 8.
4301 --------
9. Applicable income taxes (on item 8) --------
--------------------------------------------- RIAD 149,030 9.
4302 --------
10. Income (loss) before extraordinary items and other adjustments (item 8
minus 9) --------
------------------------------------------------------------------------ RIAD 275,823 10.
4300 --------
</TABLE>
- -------
<PAGE>
<TABLE>
<CAPTION>
-----
5
-----
Schedule RI-Continued Dollar Amounts in Thousands
- ---------------------------------------------------------------------------------------------------------------
Year-to-date
<S> <C> <C> <C> <C>
11. Extraordinary items and other adjustments, net of income taxes
(item 11.a minus 11.b) -------
------------------------------------------------------- RIAD 0 11.
4320 -------
12. Net income (loss) (sum of items 10 and 11) -------
----------------------------------- RIAD 276,823 12.
4340 -------
Memoranda
<CAPTION>
1481
Dollar Amounts in Thousands
- --------------------------------------------------------------------------------------------------------------
Year-to-date
<S> <C> <C> <C>
1. Interest expense incurred to carry tax-exempt securities, loans, and leases
acquired after August 7, 1986, that is not deductible for federal income tax
purposes --------
------------------------------------------------------------------------ RIAD 0 M.1
4513 --------
2. Income from the sale and servicing of mutual funds and annuities in domestic
offices (included in Schedule RI, item 8) --------
--------------------------------------- RIAD 28,911 M.2
8431 --------
3. Not applicable.
4. Not applicable.
5. Number of full-time equivalent employees on payroll at end of current period Number
(round to nearest whole-number) --------
------------------------------------------------- RIAD 5,238 M.5
4150 --------
6. Not applicable
7. If the reporting bank has restated its balance sheet as a result of applying
push down accounting this calendar year, report the date of the bank's MM DD YY
acquisition --------
--------------------------------------------------------------------- RIAD 00000000 M.7
9106 --------
8. Trading revenue (from cash instruments and off-balance sheet derivative
instruments) (included in Schedule RI, items 5.c and 5.e):
a. Interest rate exposures --------
------------------------------------------------------- RIAD (2,017) M.8.a
8757 --------
b. Foreign exchange exposures --------
---------------------------------------------------- RIAD 2,422 M.8.b
8758 --------
c. Equity security and index exposures --------
------------------------------------------- RIAD 0 M.8.c
8759 --------
d. Commodity and other exposures --------
------------------------------------------------- RIAD 0 M.8.d
8760 --------
9. Impact on income of off-balance sheet derivatives held for purposes other than
trading:
a. Net increase (decrease) to interest income --------
------------------------------------ RIAD (815) M.9.a
8761 --------
b. Net (increase) decrease to interest expense --------
----------------------------------- RIAD (947) M.9.b
8762 --------
c. Other (noninterest) allocations --------
----------------------------------------------- RIAD 31 M.9.c
8763 --------
10. Credit losses on off-balance sheet derivatives --------
---------------------------------- RIAD 0 M.10
4251 --------
11. Does the reporting bank have a Subchapter S election in effect for federal
income tax purposes? Yes [_] No [_] M.11
12. Deferred portion of total applicable income taxes --------
included in Schedule R1, items 9 and 11 RIAD 0 M.12
----------------------------------------- 1772 --------
</TABLE>
- -------
<PAGE>
Exhibit 25.2
------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
[X]CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2)
SUMMIT BANK
(NAME OF TRUSTEE)
22-0834947
(I.R.S. EMPLOYER IDENTIFICATION NO.)
210 MAIN STREET
HACKENSACK, NJ 07601
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES)
EASTERN ENVIRONMENTAL SERVICES, INC.
(NAME OF OBLIGOR)
DELAWARE
(STATE OF INCORPORATION)
(I.R.S. EMPLOYER IDENTIFICATION NO.)
1000 CRAWFORD PLACE
SUITE 101
MT. LAUREL, NJ 08054
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES)
(TITLE OF INDENTURE SECURITIES)
% SUBORDINATED DEBT SECURITIES DUE
--- -----------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
1. GENERAL INFORMATION
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervisory authority to which
it is subject:
<TABLE>
<CAPTION>
NAME ADDRESS
---- -------
<S> <C>
Federal Reserve Bank (2nd District)......................... New York, NY
Federal Deposit Insurance Corporation....................... Washington, DC
New Jersey Department of Banking............................ Trenton, NJ
</TABLE>
(b) Whether it is authorized to exercise corporate trust powers.
Yes
2. AFFILIATIONS WITH OBLIGOR
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None (See Note on page 5)
3. VOTING SECURITIES OF THE TRUSTEE
Furnish the following information as to each class of voting securities of
the trustee: As of 3/31/98
<TABLE>
<CAPTION>
COL. A COL. B
------ ------
TITLE OF CLASS AMOUNT OUTSTANDING
-------------- ------------------
<S> <C>
Summit Bank, Common Stock............................... 34,021,623 shares
Summit Bank, Preferred Stock............................ 120,000 shares
</TABLE>
4. TRUSTEESHIPS UNDER OTHER INDENTURES
If the trustee is a trustee under another indenture under which any other
securities, or certificates of interest or participation in any other
securities, of the obligor are outstanding, furnish the following information:
Not applicable--see answer to item 13
5. INTERLOCKING DIRECTORATES AND SIMILAR RELATIONSHIPS WITH THE OBLIGOR OR
UNDERWRITERS
If the trustee or any of the directors or executive officers of the trustee
is a director, officer, partner, employee, appointee, or representative of the
obligor or of any underwriter for the obligor, identify each such person
having any such connection and state the nature of each such connection.
Not applicable--see answer to item 13
6. VOTING SECURITIES OF THE TRUSTEE OWNED BY THE OBLIGOR OR ITS OFFICIALS
Furnish the following information as to the voting securities of the trustee
owned beneficially by the obligor and each director, partner, and executive
officer of the obligor:
Not applicable--see answer to item 13
7. VOTING SECURITIES OF THE TRUSTEE OWNED BY UNDERWRITERS OR THEIR OFFICIALS
Furnish the following information as to the voting securities of the trustee
owned beneficially by each underwriter for the obligor and each director,
partner, and executive officer of each such underwriter:
Not applicable--see answer to item 13
2
<PAGE>
8. SECURITIES OF THE OBLIGOR OWNED OR HELD BY THE TRUSTEE
Furnish the following information as to securities of the obligor owned
beneficially or held as collateral security for obligations in default by the
trustee:
Not applicable--see answer to item 13
9. SECURITIES OF UNDERWRITERS OWNED OR HELD BY THE TRUSTEE
If the trustee owns beneficially or holding as collateral security for
obligations in default any securities of an underwriter for the obligor,
furnish the following information as to each class of securities of such
underwriter any of which are owned or held by the trustee:
Not applicable--see answer to item 13
10. OWNERSHIP OR HOLDINGS BY THE TRUSTEE OF VOTING SECURITIES OF CERTAIN
AFFILIATES OR SECURITY HOLDERS OF THE OBLIGOR
If the trustee owns beneficially or holds as collateral security for
obligations in default voting securities of a person who, to the knowledge of
the trustee (1) owns 10 percent or more of the voting stock of the obligor or
(2) is an affiliate, other than a subsidiary, of the obligor, furnish the
following information as to the voting securities of such person:
Not applicable--see answer to item 13
11. OWNERSHIP OR HOLDINGS BY THE TRUSTEE OF ANY SECURITIES OF A PERSON OWNING
50 PERCENT OR MORE OF THE VOTING SECURITIES OF THE OBLIGOR
If the trustee owns beneficially or holds as collateral security for
obligations in default any securities of a person who, to the knowledge of the
trustee, owns 50 percent or more of the voting securities of the obligor,
furnish the following information as to each class of securities of such
person any of which are 80 owned or held by the trustee:
Not applicable--see answer to item 13
12. INDEBTEDNESS OF THE OBLIGOR TO THE TRUSTEE
Except as noted in the instructions, if the obligor is indebted to the
trustee, furnish the following information:
Not applicable--see answer to item 13
13. DEFAULTS BY THE OBLIGOR
(a) State whether there is or has been a default with respect to the
securities under this indenture. Explain the nature of any such default.
None
(b) If the trustee is a trustee under another indenture under which any
other securities, or certificates of interest or participation in any other
securities, of the obligor are outstanding, or is trustee for more than one
outstanding series of securities under the indenture, state whether there has
been a default under any such indenture or series, identify the indenture or
series affected, and explain the nature of any such default.
None
3
<PAGE>
14. AFFILIATIONS WITH THE UNDERWRITERS
If any underwriter is an affiliate of the trustee, describe each such
affiliation.
Not applicable--see answer to item 13
15. FOREIGN TRUSTEE
Identify the order or rule pursuant to which the trustee is authorized to
act as sole trustee under indentures qualified or to be qualified under the
Act.
Not applicable
16. LIST OF EXHIBITS
List below all exhibits filed as part of this statement of eligibility.
<TABLE>
<C> <C> <S>
[X] 1. *Copy of Articles of Association of the Trustee as now in effect.
[_] 2. No certificate of authority of the Trustee to commence business is
furnished since this authority is contained in the Articles of
Association of the Trustee.
[_] 3. No copy of the authorization of the trustee to exercise corporate
trust powers is furnished since this authorization is contained in the
Articles of Association of the Trustee.
[X] 4. *Copy of the existing By-Laws of the Trustee as now in effect.
[_] 5. Not Applicable.
[X] 6. The consent of the Trustee required by Section 321(b) of the Act.
[X] 7. A copy of the latest report of Condition of the Trustee published
pursuant to law or the requirements of its supervising or examining
authority.
[_] 8. Not Applicable.
[_] 9. Not Applicable.
</TABLE>
- --------
* Exhibits thus designated have heretofore been filed with the Securities and
Exchange Commission, have not been amended since filing and are incorporated
herein by reference (see Exhibits TIA(i) and TIA(ii) File No. 285667)
4
<PAGE>
NOTE
The Trustee disclaims responsibility for the accuracy or completeness of
information contained in this Statement of Eligibility and Qualification not
known to the trustee and not obtained by it through reasonable investigation
and as to which information it has obtained from the obligor and has had to
rely or will obtain from the principal underwriters and will have to rely.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the
trustee, Summit Bank, a corporation organized and existing under the laws of
the State of New Jersey, has duly caused this Statement of Eligibility and
Qualification to be signed on its behalf by the undersigned, thereunto duly
authorized, all in the City of Hackensack and State of New Jersey on the 30th
day of April, 1998.
SUMMIT BANK
/s/ Andrea Harris
By: _________________________________
Andrea Harris
Asst. Vice President
5
<PAGE>
CONSENT OF TRUSTEE
Summit Bank, as trustee (the "Trustee") under an indenture to be entered
into between itself and Eastern Environment, Inc., hereby consents, pursuant
to Section 321(b) of the Trust Indenture Act of 1939, as amended, to the
furnishing by Federal, State, Territorial or District Authorities to the
Securities and Exchange Commission of all reports, records or other
information relating thereto.
SUMMIT BANK
/s/ Andrea Harris
By: _________________________________
Andrea Harris
Asst. Vice President
Dated: April 30, 1998
6
<PAGE>
Exhibit 7
---------
Board of Governors of the Federal Reserve System
OMB Number: 7100-0036
Federal Deposit Insurance Corporation
OMB Number: 3064-0052
Office of the Comptroller of the Currency
OMB Number: 1557-0081
Expires March 31, 2000
Federal Financial Institutions Examination Council
- --------------------------------------------------------------------------------
[ART APPEARS HERE] Please refer to page i, [1]
Table of Contents, for
the required disclosure
of estimated burden.
- -------------------------------------------------------------------------------
Consolidated Reports of Condition and Income for
A Bank With Domestic and Foreign Offices -- FFIEC 031
(951231)
-----------
Report at the close of business December 31, 1997 (RCRI 9999)
This report is required by law: 12 U.S.C. (S)324 (State member banks);
12 U.S.C. (S)1817 (State nonmember banks); and 12 U.S.C. (S)161 (National
banks).
This report form is to be filed by banks with branches and consolidated
subsidiaries in U.S. territories and possessions, Edge or Agreement
subsidiaries, foreign branches, consolidated foreign subsidiaries, or
International Banking Facililties.
- -------------------------------------------------------------------------------
NOTE: The Reports of Condition and Income must be signed by an authorized
officer and the Report of Condition must be attested to by not less than two
directors (trustees) for State nonmember banks and three directors for State
member and National banks.
I, William J. Healy, Asst. Treasurer
-----------------------------------------------------------------------------
Name and Title of Officer Authorized to Sign Report
of the named bank do hereby declare that these Reports of Condition and Income
(including the supporting schedules) have been prepared in conformance with the
instructions issued by the appropriate Federal regulatory authority and are true
to the best of my knowledge and belief.
/s/ William J. Healy Asst. Treasurer
- -------------------------------------------------------------------------------
Signature of Officer Authorized to Sign Report
January 26, 1998
- -------------------------------------------------------------------------------
Date of Signature
The Reports of Condition and Income are to be prepared in accordance with
Federal regulatory authority instructions. NOTE: These instructions may in some
cases differ from generally accepted accounting principles.
We, the undersigned directors (trustees), attest to the correctness of this
Report of Condition (including the supporting schedules) and declare that it has
been examined by us and to the best of our knowledge and belief has been
prepared in conformance with the instructions issued by the appropriate Federal
regulatory authority and is true and correct.
[SIGNATURE APPEARS HERE]
- -------------------------------------------------------------------------------
Director (Trustee)
[SIGNATURE APPEARS HERE]
- -------------------------------------------------------------------------------
Director (Trustee)
[SIGNATURE APPEARS HERE]
- --------------------------------------------------------------------------------
Director (Trustee)
- -------------------------------------------------------------------------------
For Banks Submitting Hard Copy Report Forms:
State Member Banks: Return the original and one copy to the appropriate
Federal Reserve District Bank.
State Nonmember Banks: Return the original only in the special return address
envelope provided. If express mail is used in lieu of the special return address
envelope, return the original only to the FDIC, c/o Quality Data Systems, 2127
Espey Court, Suite 204, Crofton, MD 21114.
National Banks: Return the original only in the special return address envelope
provided. If express mail is used in lieu of the special return address
envelope, return the original only to the FDIC, c/o Quality Data Systems, 2127
Espey Court, Suite 204, Crofton, MD 21114.
- -------------------------------------------------------------------------------
FDIC Certificate Number |0|0|5|5|0|
-----------
(RCRI 9060)
Banks should affix the address label in this space.
Summit Bank
- -------------------------------------------------------------------------------
Legal Title of Bank (TEXT 9010)
Princeton
- -------------------------------------------------------------------------------
City (TEXT 9130)
NJ 08543
- -------------------------------------------------------------------------------
State Abbrev. (TEXT 9200) ZIP Code (TEXT 9220)
Board of Governors of the Federal Reserve System, Federal Deposit Insurance
Corporation, Office of the Comptroller of the Currency
<PAGE>
Summit Bank
301 Carnegie Center
Princeton, NJ 08543 Vendor ID: D Cert: 00550
Transit Number: 21202162 Transmitted to EDS as 0071716 on 01/30/96 at
09:16:03 CST
Consolidated Report of Income
For the period January 1, 1997 - December 31, 1997
All Report of Income schedules are to be reported on a calendar year-to-date
basis in thousands of dollars.
Schedule RI - Income Statement
1480 --
<TABLE>
<CAPTION>
Dollar Amounts in Thousands
- --------------------------------------------------------------------------------
<S> <C> <C>
1. Interest income
a. Interest and fee income on loans:
(1) In domestic offices:
(a) Loans secured by real estate----------------RIAD -------
4011 653,775 1.a.1.a
(b) Loans to depository institutions------------RIAD -------
(c) Loans to finance agricultural production 4019 4,276 1.a.1.b
and other loans to farmers------------------RIAD -------
4024 22 1.a.1.c
(d) Commercial and industrial loans-------------RIAD -------
4012 340,201 1.a.1.d
(e) Acceptances of other banks------------------RIAD -------
(f) Loans to individuals for household, 4026 0 1.a.1.e
family, and other personal expenditures: -------
(1) Credit cards and related plans----------RIAD -------
4054 13,621 1.a.1.f.1
(2) Other-----------------------------------RIAD -------
(g) Loans to foreign governments and official 4055 60,083 1.a.1.f.2
institutions--------------------------------RIAD -------
(h) Obligations (other than securities and 4056 0 1.a.1.g
leases) of states and political -------
subdivisions in the U.S.:
(1) Taxable obligations---------------------RIAD -------
4503 99 1.a.1.h.1
(2) Tax-exempt obligations------------------RIAD -------
4504 7,599 1.a.1.h.2
(i) All other loans in domestic offices---------RIAD -------
4058 12,012 1.a.1.i
(2) In foreign offices, Edge and Agreement -------
subsidiaries, and IBFs--------------------------RIAD -------
b. Income from lease financing receivables: 4059 0 1.a.2
(1) Taxable leases----------------------------------RIAD -------
4505 36,976 1.b.1
(2) Tax-exempt leases-------------------------------RIAD -------
c. Interest income on balances due from depository 4307 0 1.b.2
institutions: (1) -------
(1) In domestic offices-----------------------------RIAD -------
(2) In foreign offices, Edge and Agreement 4105 557 1.c.1
subsidiaries, and IBFs--------------------------RIAD -------
d. Interest and dividend income on securities: 4106 0 1.c.2
(1) U.S. Treasury securities and U.S. Government -------
agency and corporation obligations--------------RIAD -------
(2) Securities issued by states and political 4027 287,674 1.d.1
subdivisions in the U.S.: -------
(a) Taxable securities--------------------------RIAD -------
4506 0 1.d.2.a
(b) Tax-exempt securities-----------------------RIAD -------
4507 11,434 1.d.2.b
(3) Other domestic debt securities------------------RIAD -------
3657 72,826 1.d.3
(4) Foreign debt securities-------------------------RIAD -------
(5) Equity securities (including investments in 3658 1,390 1.d.4
mutual funds)-----------------------------------RIAD -------
3659 6,988 1.d.5
e. Interest income from trading assets-----------------RIAD -------
4069 746 1.e
-------
</TABLE>
- -----------
(1) Includes interest income on time certificates of deposits not held for
trading.
<PAGE>
<TABLE>
<CAPTION> -----
4
-----
Schedule RI-Continued Dollar Amounts in Thousands
- ---------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
1. Interest income (continued) Year-to-date
f. Interest income on federal funds sold and securities
purchased under agreements to resell in domestic
offices of the bank and of its Edge and Agreement
subsidiaries and in IBFs ----------
---------------------------------------- RIAD 7,892 1.f
4020 ----------
g. Total interest income (sum of items 1.a through 1.f) ----------
------------ RIAD 1,518,166 1.g
4107 ----------
2. Interest expense:
a. Interest on deposits:
(1) Interest on deposits in domestic offices:
(a) Transaction accounts (NOW accounts, ATS accounts, and
telephone and preauthorized transfer accounts) ----------
-------------- RIAD 34,791 2.a.1.a
4508 ----------
(b) Nontransaction accounts:
(1) Money market deposit accounts (MMDAs) ----------
--------------------- RIAD 114,440 2.a.1.b.1
4509 ----------
(2) Other savings deposits ----------
------------------------------------ RIAD 43,429 2.a.1.b.2
4111 ----------
(3) Time certificates of deposit of $100,000 or more ----------
---------- RIAD 61,242 2.a.1.b.3
4174 ----------
(4) All other time deposits ----------
----------------------------------- RIAD 212,039 2.a.1.b.4
4512 ----------
(2) Interest on deposits in foreign offices, Edge and agreement
subsidiaries, and IBFs ----------
---------------------------------------- RIAD 0 2.a.2
4172 ----------
b. Expense of federal funds purchased and securities sold under
agreements to repurchase in domestic offices of the bank and of
its Edge and Agreement subsidiaries, and in IBFs ----------
---------------- RIAD 107,871 2.b
4180 ----------
c. Interest on demand notes issued to the U.S. Treasury, trading
liabilities, and on other borrowed money ----------
------------------------ RIAD 39,158 2.c
4185 ----------
d. Not applicable
e. Interest on subordinated notes and debentures ----------
------------------- RIAD 11,303 2.e
4200 ----------
f. Total interest expense (sum of items 2.a through 2.e) ----------
----------- RIAD 624,273 2.f
4073 ----------
3. Net interest income (item 1.g minus 2.f) --------
---------------------------------------- RIAD 893,893 3.
4074 --------
4. Provisions:
a. Provision for loan and lease losses --------
------------------------------------------- RIAD 49,904 4.a
4230 --------
b. Provision for allocated transfer risk --------
----------------------------------------- RIAD 0 4.b
4243 --------
5. Noninterest income:
a. Income from fiduciary activities ----------
-------------------------------- RIAD 43,689 5.a
4070 ----------
b. Service charges on deposit accounts in domestic offices ----------
--------- RIAD 97,340 5.b
4080 ----------
c. Trading revenue ----------
------------------------------------------------- RIAD 405 5.c
4075 ----------
d.-e. Not applicable
f. Other noninterest income:
(1) Other fee income ----------
---------------------------------------------- RIAD 47,072 5.f.1
5407 ----------
(2) All other noninterest income* ----------
--------------------------------- RIAD 42,089 5.f.2
5408 ----------
g. Total noninterest income (sum of items 5.a through 5.f) --------
----------------------- RIAD 230,695 5.g
4079 --------
6.a. Realized gains (losses) on held-to-maturity securities --------
------------------------ RIAD 5 6.a
3521 --------
b. Realized gains (losses) on available-for-sale securities --------
---------------------- RIAD 528 6.b
3196 --------
7. Noninterest expense:
a. Salaries and employee benefits ----------
---------------------------------- RIAD 245,988 7.a
4135 ----------
b. Expenses of premises and fixed assets (net of rental
income)
(excluding salaries and employee benefits and mortgage
interest) ----------
------------------------------------------------------- RIAD 83,724 7.b
4217 ----------
c. Other noninterest expense* ----------
-------------------------------------- RIAD 320,660 7.c
4092 ----------
d. Total noninterest expense (sum of items 7.a through 7.c) --------
---------------------- RIAD 650,262 7.d
4093 --------
8. Income (loss) before income taxes and extraordinary items and other
adjustments (item 3 plus or minus items 4.a, 4.b, 5.g, 6.a, 6.b, and 7.d) --------
------- RIAD 424,853 8.
4301 --------
9. Applicable income taxes (on item 8) --------
--------------------------------------------- RIAD 149,030 9.
4302 --------
10. Income (loss) before extraordinary items and other adjustments (item 8
minus 9) --------
------------------------------------------------------------------------ RIAD 275,823 10.
4300 --------
</TABLE>
- -------
<PAGE>
<TABLE>
<CAPTION>
-----
5
-----
Schedule RI-Continued Dollar Amounts in Thousands
- ---------------------------------------------------------------------------------------------------------------
Year-to-date
<S> <C> <C> <C> <C>
11. Extraordinary items and other adjustments, net of income taxes
(item 11.a minus 11.b) -------
------------------------------------------------------- RIAD 0 11.
4320 -------
12. Net income (loss) (sum of items 10 and 11) -------
----------------------------------- RIAD 276,823 12.
4340 -------
Memoranda
<CAPTION>
1481
Dollar Amounts in Thousands
- --------------------------------------------------------------------------------------------------------------
Year-to-date
<S> <C> <C> <C>
1. Interest expense incurred to carry tax-exempt securities, loans, and leases
acquired after August 7, 1986, that is not deductible for federal income tax
purposes --------
------------------------------------------------------------------------ RIAD 0 M.1
4513 --------
2. Income from the sale and servicing of mutual funds and annuities in domestic
offices (included in Schedule RI, item 8) --------
--------------------------------------- RIAD 28,911 M.2
8431 --------
3. Not applicable.
4. Not applicable.
5. Number of full-time equivalent employees on payroll at end of current period Number
(round to nearest whole-number) --------
------------------------------------------------- RIAD 5,238 M.5
4150 --------
6. Not applicable
7. If the reporting bank has restated its balance sheet as a result of applying
push down accounting this calendar year, report the date of the bank's MM DD YY
acquisition --------
--------------------------------------------------------------------- RIAD 00000000 M.7
9106 --------
8. Trading revenue (from cash instruments and off-balance sheet derivative
instruments) (included in Schedule RI, items 5.c and 5.e):
a. Interest rate exposures --------
------------------------------------------------------- RIAD (2,017) M.8.a
8757 --------
b. Foreign exchange exposures --------
---------------------------------------------------- RIAD 2,422 M.8.b
8758 --------
c. Equity security and index exposures --------
------------------------------------------- RIAD 0 M.8.c
8759 --------
d. Commodity and other exposures --------
------------------------------------------------- RIAD 0 M.8.d
8760 --------
9. Impact on income of off-balance sheet derivatives held for purposes other than
trading:
a. Net increase (decrease) to interest income --------
------------------------------------ RIAD (815) M.9.a
8761 --------
b. Net (increase) decrease to interest expense --------
----------------------------------- RIAD (947) M.9.b
8762 --------
c. Other (noninterest) allocations --------
----------------------------------------------- RIAD 31 M.9.c
8763 --------
10. Credit losses on off-balance sheet derivatives --------
---------------------------------- RIAD 0 M.10
4251 --------
11. Does the reporting bank have a Subchapter S election in effect for federal
income tax purposes? Yes [_] No [_] M.11
12. Deferred portion of total applicable income taxes --------
included in Schedule R1, items 9 and 11 RIAD 0 M.12
----------------------------------------- 1772 --------
</TABLE>
- -------
