<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM T-3
FOR APPLICATIONS FOR QUALIFICATION OF INDENTURES UNDER THE
TRUST INDENTURE ACT OF 1939
PHILIP SERVICES CORP.
---------------------
(Name of applicant)
100 King Street West
Hamilton, Ontario
Canada L8N 4J6
----------------------------------------
(Address of principal executive offices)
SECURITIES TO BE ISSUED UNDER THE INDENTURE TO BE QUALIFIED
<TABLE>
<CAPTION>
TITLE OF CLASS AMOUNT
-------------- ------
<S> <C>
3% Convertible Subordinated Notes
due 2019 $18,000,000
</TABLE>
Approximate date of proposed public offering: On or promptly after the
Effective Date (as defined in the Amended and Restated Joint Plan of
Reorganization of Philip Services Corp., Philip Services (Delaware), Inc. and
certain of their subsidiaries, dated September 21, 1999).
Name and address of agent for service: Lawrence C. Paulson, Philip Services
Corp., 515 Lycaste, Detroit, MI 48214.
The applicant hereby amends this application for qualification on such date or
dates as may be necessary to delay its effectiveness until (i) the 20th day
after the filing of a further amendment which specifically states that it shall
supersede this application, or (ii) such date as the Commission, acting
pursuant to Section 307(c) of the Act, may determine upon the written request
of the applicant.
<PAGE> 2
GENERAL
1. GENERAL INFORMATION. FURNISH THE FOLLOWING AS TO THE APPLICANT:
(a) Form of organization: A corporation.
(b) State or other sovereign power under the laws of which organized:
Ontario, Canada
2. SECURITIES ACT EXEMPTION APPLICABLE. STATE BRIEFLY THE FACTS RELIED UPON BY
THE APPLICANT AS A BASIS FOR THE CLAIM THAT REGISTRATION OF THE INDENTURE
SECURITIES UNDER THE SECURITIES ACT OF 1933 IS NOT REQUIRED.
On June 25, 1999, the applicant, Philip Services Corp., an Ontario
corporation (the "Company" or the "Debtor"), together with its wholly owned
subsidiary, Philip Services (Delaware), Inc., a Delaware corporation ("PSI"),
and certain of their subsidiaries filed a voluntary application with the
Ontario Superior Court of Justice in Toronto, Canada, to reorganize under the
Companies Creditors Arrangement Act (Canada) (the "CCAA") and voluntary
petitions with the United States Bankruptcy Court for the District of Delaware
(the "Bankruptcy Court"), under Chapter 11 of the United States Bankruptcy
Code, 11 U.S.C. sections 101-1330, as amended (the "Bankruptcy Code"). On June
27, 1999, the Company obtained First Day Orders under Chapter 11 of the United
States Bankruptcy Code from the Bankruptcy Court. On September 17, 1999 the
Company filed an Amended and Restated Plan of Compromise and Arrangement under
the CCAA with the Ontario Superior Court of Justice in Toronto, Canada, and an
Amended Joint Plan of Reorganization and a Disclosure Statement under Chapter
11 with the Bankruptcy Court. On September 21, 1999 the Company filed a
further Amended and Restated Plan of Compromise and Arrangement (the "Amended
Canadian Plan") under the CCAA with the Ontario Superior Court of Justice in
Toronto, Canada, and an Amended Joint Plan of Reorganization (the "Amended U.S.
Plan", and together with the Amended Canadian Plan, the "Plan") and a
Disclosure Statement under Chapter 11 with the Bankruptcy Court. A confirmation
hearing to confirm the Amended U.S. Plan is scheduled for November 3, 1999 at
the Bankruptcy Court.
The Company proposes to issue, as part of the Amended U.S. Plan, pursuant
to section 1121(a) of the Bankruptcy Code, up to $18 million of its 3%
Convertible Subordinated Notes due 2019 (the "Notes"). The Notes will be issued
to discharge, in part, claims of certain existing creditors in the bankruptcy
proceedings described below.
The Notes are proposed to be issued in reliance upon the exemption from
registration under the Securities Act of 1933, as amended (the "Securities
Act"), set forth in section 1145(a)(1) of the Bankruptcy Code. Section 1145 of
the Bankruptcy Code exempts the offer or sale of securities under a plan of
reorganization from registration under the Securities Act and state law. Under
section 1145, the issuance of securities is exempt from registration if three
principal requirements are satisfied: (1) the securities are issued by a
debtor, its successor, or an affiliate participating in a joint plan with the
debtor (provided that such entity is not an underwriter as defined in section
1145(b) of the Bankruptcy Code) under a plan of reorganization; (2) the
recipients of the securities hold a claim against the debtor or such affiliate,
an interest in the debtor or such affiliate, or a claim for an administrative
expense against the debtor or such affiliate; and (3) the securities are issued
entirely in exchange for the recipients' claims against or interests in the
debtor or such affiliate, or "principally" in such exchange and "partly" for
cash or property.
The Company believes that the issuance of the Notes under the indenture to
be entered into by the Company and , as Trustee (the "Indenture")
to holders of prepetition claims under the Amended U.S. Plan will satisfy all
three conditions of section 1145 of the Bankruptcy Code because (a) the
issuances are expressly contemplated under the Amended U.S. Plan as part of the
reorganization; (b) the recipients are holders of "claims" against the Debtor or
an affiliate of the Debtor participating in the Amended U.S. Plan with the
Debtor; and (c) the recipients would obtain the Notes in exchange for their
claims.
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AFFILIATIONS
3. AFFILIATES. FURNISH A LIST OR DIAGRAM OF ALL AFFILIATES OF THE APPLICANT
AND INDICATE THE RESPECTIVE PERCENTAGES OF VOTING SECURITIES OR OTHER BASES OF
CONTROL.
AS OF SEPTEMBER 21, 1999:
(a) The Company owns directly or indirectly, as shown, the voting
securities of the entities set forth in Appendix A hereto. Unless otherwise
indicated, the percentage owned is 100%.
(b) According to a Statement on Schedule 13D, as amended (the "Schedule
13D"), High River Limited Partnership, a Delaware limited partnership ("High
River"), Riverdale LLC, a New York limited liability company, which is the
general partner of High River ("Riverdale"), and Carl C. Icahn, a citizen of
the United States of America, who is a member of Riverdale, beneficially own
18,445,200 common shares of the Company ("Common Shares"), representing
approximately 14.07% of the outstanding Common Shares. In addition, as of
September 21, 1999, High River owns $235.5 million principal amount, and
American Real Estate Holdings LP, controlled by Mr. Ichan ("AREH"), owns $76.6
million principal amount, of the outstanding debt of the Company and PSI under
the Credit Agreement, dated as of August 11, 1997, among the Company, as
borrower in Canada, PSI, as borrower in the United States, the lenders
thereunder ("Lenders"), Canadian Imperial Bank of Commerce ("CIBC"), as
administrative agent for the Lenders, Bankers Trust Company ("BTCo"), as
syndication agent, and CIBC and BTCo, as co-arrangers, as amended by amending
agreements dated as of October 31, 1997, February 19, 1998, June 24, 1998,
October 20, 1998, and December 4, 1998 (the "Credit Agreement").
(c) See Item 4. - "Management and Control - As of September 21, 1999" for
a list of Directors and Executive Officers of the Company, who, by virtue of
holding such positions, may be considered to "control" the Company, and are
therefore deemed to be "affiliates" of the Company.
AS OF EFFECTIVE DATE:
See Item 5. - "Principal Owners of Voting Securities - As of Effective
Date" for a description of Common Shares of the reorganized Company that will
be owned by High River and Carl C. Ichan as of the Effective Date. Except as
described in this paragraph and under Item 4. - "Management and Control - As of
Effective Date", it is not anticipated that the Company's affiliations will
change as of the Effective Date.
MANAGEMENT AND CONTROL
4. DIRECTORS AND EXECUTIVE OFFICERS. LIST THE NAMES AND COMPLETE MAILING
ADDRESSES OF ALL DIRECTORS AND EXECUTIVE OFFICERS OF THE APPLICANT AND ALL
PERSONS CHOSEN TO BECOME DIRECTORS OR EXECUTIVE OFFICERS. INDICATE ALL OFFICES
WITH THE APPLICANT HELD OR TO BE HELD BY EACH PERSON NAMED.
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AS OF SEPTEMBER 21, 1999:
<TABLE>
<CAPTION>
NAME ADDRESS OFFICE
- --------------------- ---------------------------------------- --------------------
<S> <C> <C>
Roy Cairns 80 King Street, 9th Floor, P.O. Box 760, Director
St. Catherines, Ontario L2R 6Y8
Harold First 13-55 Wilkens Court, Fairlawn, New Jersey Director
07410
Anthony G. Fernandes 100 King Street West, 22nd Floor, Hamilton, President and Chief
Ontario L8N 4J6 Executive Officer
Allen Fracassi 256 Lime Kiln Road, Ancaster, Ontario L9G Director
3B1
Peter Green R.R. No. 1, Campbellville, Ontario L0P 1B0 Director
William E. Haynes 2 Northpoint Drive, Suite 300, Houston, Director
Texas 77060
Robert L. Knauss Route 1, Box 318, Chappell Hill, Texas 77426 Chairman and Director
Felix Pardo 33 Washington Avenue, Cambridge, Director
Massachusetts 02140
Harland A. Riker 114 Brattle Street, Cambridge, Director
Massachusetts 02138
Derrick Rolfe Suite 806, One Toronto Street, Toronto, Director
Ontario M5C 2V6
Arnold S. Tenney 4000 Chesswood Drive, Downsview, Ontario Director
M3J 2B9
Herman Turkstra 15 Bold Street, Hamilton, Ontario L8P 1T8 Director
Ayman Gabarin 44 Davies Street, London, England W1Y 1LD President, Philip
Services (Europe)
Limited
William Humenuk 100 King Street West, 22nd Floor, Hamilton, Executive Vice
Ontario L8N 4J6 President and Chief
Administrative
Officer
Fred Cranston(1) 100 King Street West, 22nd Floor, Hamilton, Chief Operating
Ontario L8N 4J6 Officer, Metals
Services Group
Antonio Pingue 100 King Street West, 22nd Floor, Hamilton, Executive Vice
Ontario L8N 4J6 President, Corporate
and Regulatory
Affairs
Colin Soule 100 King Street West, 22nd Floor, Hamilton, Executive Vice
Ontario L8N 4J6 President, General
Counsel and
Corporate Secretary
</TABLE>
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<TABLE>
<CAPTION>
NAME ADDRESS OFFICE
- ---------------- ------------------------------ ------------------------
<S> <C> <C>
5151 San Felipe, Suite 1600, President, Industrial Services
Alec Thomas Houston, Texas 77056 Group
Phillip Widman 100 King Street West, 22nd Executive Vice President and
Floor, Hamilton, Ontario L8N Chief Financial Officer
4J6
</TABLE>
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(1) As of September 28, 1999.
AS OF EFFECTIVE DATE:
Subject to the requirements of section 1129(a)(5) of the Bankruptcy Code,
the Company intends to announce prior to the Confirmation Date the identities
of the individuals proposed to serve as directors of the Company. To the
extent possible, the identities of such individuals will be announced by
inclusion of a list of proposed directors in the Plan Supplement, which will be
filed with the Bankruptcy Court at least five (5) Business Days prior to the
commencement of the Confirmation Hearing. The new board of directors for the
Company will consist of nine (9) directors, who will be nominated by holders of
Lender claims under the Credit Agreement ("Lender Claims"). The nominees of
the holders of Lender Claims shall include two (2) members of the existing
board of directors of the Company and will include two (2) members nominated by
High River provided that High River and any holders of Lender Claims acting in
concert with it beneficially own at least twenty-five percent (25%) of the
Lender Claims. If one or both of the nominees from the existing board is a
nominee on that board of High River or persons acting in concert with it, that
person will be counted as a High River nominee on the slate for the new board
of directors.
The executive officers of the Company serving in such capacity prior to
the Effective Date are expected to remain in such capacity from and after the
Effective Date.
5. PRINCIPAL OWNERS OF VOTING SECURITIES. FURNISH THE FOLLOWING INFORMATION AS
TO EACH PERSON OWNING 10 PERCENT OR MORE OF THE VOTING SECURITIES OF THE
APPLICANT.
AS OF SEPTEMBER 21, 1999:
<TABLE>
<CAPTION>
NAME AND COMPLETE PERCENTAGE OF VOTING
MAILING ADDRESS TITLE OF CLASS OWNED AMOUNT OWNED(1) SECURITIES OWNED(1)
- ------------------- --------------------- ---------------- --------------------
<S> <C> <C> <C>
High River Limited
Partnership,
Riverdale LLC, and
Carl C. Ichan Common Shares 18,455,200 14.07%
</TABLE>
- ------------
(1) As reported in the Schedule 13D, as amended, of High River Limited
Partnership, Riverdale LLC, and Carl C. Ichan. The percentage owned is
based upon 131,144,013 issued and outstanding Common Shares of the Company
as reported in its Quarterly Report on Form 10-Q for the quarter ended
June 30, 1999.
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AS OF EFFECTIVE DATE:
On the Effective Date, the holders of outstanding Lender Claims will own
approximately 91% of the outstanding Common Shares of the reorganized Company,
assuming that holders of Class 7 unsecured claims vote to accept the Plan. In
anticipation thereof, the Company furnishes the following information as to
each person owning 10% or more of the voting securities of the reorganized
Company as of the Effective Date:
<TABLE>
<CAPTION>
NAME AND COMPLETE PERCENTAGE OF VOTING
MAILING ADDRESS TITLE OF CLASS OWNED AMOUNT OWNED(1) SECURITIES OWNED(1)
- ------------------ -------------------- --------------- --------------------
<S> <C> <C> <C>
High River Limited
Partnership,
and Riverdale LLC Common Shares 5,184,602 21.6%
Carl C. Ichan Common Shares 6,851,349(2) 28.6%
</TABLE>
(1) If the holders of Class 7 unsecured claims vote to reject the Plan, the
holders of outstanding Lender Claims will own all of the outstanding
Common Shares of the reorganized Company, and the number and percentage of
Common Shares of the reorganized Company owned by High River as of the
Effective Date will be 5,623,136 Common Shares, representing approximately
23.4% of the outstanding Common Shares.
(2) Includes the Common Shares of the reorganized Company owned by High River
and the 1,666,747 Common Shares that will be owned by AREH. If holders of
Class 7 unsecured claims vote to reject the Plan, the number and
percentage of Common Shares owned by AREH and beneficially owned by Mr.
Ichan will be 1,831,591 and 7,454,727, and 7.6% and 31.1%, respectively.
UNDERWRITERS
6. UNDERWRITERS. GIVE THE NAME AND COMPLETE MAILING ADDRESS OF (A) EACH PERSON
WHO, WITHIN THREE YEARS PRIOR TO THE DATE OF FILING THE APPLICATION, ACTED AS
AN UNDERWRITER OF ANY SECURITIES OF THE OBLIGOR WHICH WERE OUTSTANDING ON THE
DATE OF FILING THE APPLICATION, AND (B) EACH PROPOSED PRINCIPAL UNDERWRITER OF
THE SECURITIES PROPOSED TO BE OFFERED. AS TO EACH PERSON SPECIFIED IN (A),
GIVE THE TITLE OF EACH CLASS OF SECURITIES UNDERWRITTEN.
(a) Each of the following served as an underwriter for the Company's
issuance in November 1997 of 20,000,000 of its Common Shares.
<TABLE>
<CAPTION>
NAME ADDRESS
- ---------------------------------------- --------------------------------
<S> <C>
Salomon Brothers Inc. (now Salomon Smith 388 Greenwich Street, New York,
Barney Inc.) New York 10013-2396
Merrill Lynch, Pierce, Fenner & Smith World Financial Center North, 250
Incorporated Vesey Street, New York, New York
10281
BT Alex. Brown Incorporated 130 Liberty Street, New York, New
York 10006
</TABLE>
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<TABLE>
<CAPTION>
NAME ADDRESS
- ------------------------------------- ------------------------------------------
<S> <C>
CIBC Oppenheimer Corp. (now CIBC CIBC Oppenheimer Tower, One World
World Markets ) Financial Center, New York, New York
10281
Morgan Stanley & Co. Incorporated 1585 Broadway, New York, New York
10036-8293
Credit Suisse First Boston Corporation 11 Madison Avenue, 7th Floor, New York,
New York 10010
Donaldson, Lufkin & Jenrette 277 Park Avenue, New York, New York 10172
Securities Corporation
Lehman Brothers Inc. 200 Vesey Street, 3 World Financial
Center, New York New York, 10285-1900
Schroder & Co. Inc. Equitable Center, 787 Seventh Avenue, New
York, New York 10019-6016
Smith Barney Inc. (now Salomon Smith 388 Greenwich Street, New York, New York
Barney Inc.) 10013-2396
Furman Selz LLC (now ING Baring 230 Park Avenue, New York, New York 10169
Furman Selz LLC)
Arnhold and S. Bleichroeder, Inc. 1345 Avenue of the Americas, New York, New
York 10105-4300
Blackford Securities Corp. 1010 Franklin Avenue, Suite 303 Garden
City, New York 11530
First Albany Corporation 30 S. Pearl Street, Albany, New York 12207
Janney Montgomery Scott Inc. 1801 Market Street, Philadelphia,
Pennsylvania 19103-1675
McDonald & Company Securities, Inc. 800 Superior Avenue, Suite 2100,
(now McDonald Investments Inc.) Cleveland, Ohio 44114
Wm Smith Securities, Incorporated 1700 Lincoln Street, Suite 3650, Denver,
Colorado 80203
CIBC Wood Gundy Securities Inc. (now 161 Bay Street, P.O. Box 500, Toronto,
CIBC World Markets ) Ontario, Canada M5J 2S8
Midland Walwyn Capital Inc. (now 181 Bay Street, Suite 400, Toronto,
Merrill Lynch Canada Inc. Ontario, Canada M5J 2V8
</TABLE>
(b) Not applicable.
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<PAGE> 8
CAPITAL SECURITIES
7. CAPITALIZATION. (a) FURNISH THE FOLLOWING INFORMATION AS TO EACH AUTHORIZED
CLASS OF SECURITIES OF THE APPLICANT.
AS OF SEPTEMBER 21, 1999:
<TABLE>
<CAPTION>
TITLE OF CLASS AMOUNT AUTHORIZED AMOUNT OUTSTANDING
-------------- ----------------- ------------------
<S> <C> <C>
Common Shares, no par value unlimited 131,144,013 shares
</TABLE>
AS OF EFFECTIVE DATE:
<TABLE>
<CAPTION>
TITLE OF CLASS AMOUNT AUTHORIZED AMOUNT OUTSTANDING
-------------- ----------------- ------------------
<S> <C> <C>
Common Shares, no par value unlimited 24,000,000(1)
</TABLE>
- ------------
(1) Does not include shares of common stock of the reorganized Company that
are reserved for issuance upon the exercise of options issued and
outstanding on the Effective Date.
(b) GIVE A BRIEF OUTLINE OF THE VOTING RIGHTS OF EACH CLASS OF VOTING
SECURITIES REFERRED TO IN PARAGRAPH (a) ABOVE.
AS OF SEPTEMBER 21, 1999:
With respect to the voting rights of the common shares of the Company,
each holder of a common share is entitled to one vote on all matters on which
such shareholders are entitled to vote.
AS OF EFFECTIVE DATE:
With respect to the voting rights of the common shares of the Company,
each holder of a common share will be entitled to one vote on all matters on
which such shareholders are entitled to vote.
INDENTURE SECURITIES
8. ANALYSIS OF INDENTURE PROVISIONS. INSERT AT THIS POINT THE ANALYSIS OF
INDENTURE PROVISIONS REQUIRED UNDER SECTION 305(A)(2) OF THE ACT.
(a) Definition of Default: Events of Default under the Indenture include
the following:
(i) default in the payment of the principal of any Note at its
Maturity; or
(ii) default in the payment of any interest upon any Note when it
becomes due and payable, and continuance of such default for a period of
30 days; or
(iii) default in the payment of principal and interest on
Securities required to be purchased pursuant to an Offer to Purchase as
described under the covenant in the Indenture relating to change of
control when due and payable; or
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<PAGE> 9
(iv) default in the performance, or breach, of the covenant in the
Indenture relating to consolidations, mergers, and the conveyance,
transfer or lease of all or substantially all of the Company's assets; or
(v) default in the performance, or breach, of any covenant of the
Company in the Indenture (other than a covenant a default in whose
performance or whose breach is elsewhere specifically dealt with), and
continuance of such default or breach for a period of 60 days after there
has been given, by registered or certified mail, to the Company by the
Trustee or to the Company and the Trustee by the Holders of at least 25%
in principal amount of the outstanding Notes a written notice specifying
such default or breach and requiring it to be remedied and stating that
such notice is a "Notice of Default"; or
(vi) a default under the terms of the Company's 3% Convertible
Subordinated Notes Due 2019, which default results in the acceleration of
the payment of all or any portion of such indebtedness; or
(vii) a default under the terms of any instrument evidencing or
securing indebtedness for money borrowed by the Company or any
Significant Subsidiary having an outstanding principal amount of $50
million, which default results in the acceleration of the payment of all
or any portion of such indebtedness; or
(viii) a final judgment or final judgments for the payment of money
are entered against the Company or any Significant Subsidiary in an
aggregate amount of $35 million or more by a court or courts of competent
jurisdiction, which judgments remain undischarged or unbonded for a
period (during which execution shall not be effectively stayed) of 60
days after the right to appeal all such judgments has expired; or
(ix) the entry by a court having jurisdiction in the premises of
(A) a decree or order for relief in respect of the Company or any
Significant Subsidiary in an involuntary case or proceeding under any
applicable U.S. Federal or State, Canadian Federal or Provincial or other
applicable bankruptcy, insolvency, reorganization or other similar law or
(B) a decree or order adjudging the Company or any Significant Subsidiary
a bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjustment or composition of or in
respect of the Company or any Significant Subsidiary under any applicable
U.S. Federal or State, Canadian Federal or Provincial or other applicable
law, or appointing a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company or any Significant
Subsidiary or of any substantial part of the property of the Company or
any Significant Subsidiary, or ordering the winding up or liquidation of
the affairs of the Company or any Significant Subsidiary, and the
continuance of any such decree or order for relief or any such other
decree or order unstayed and in effect for a period of 90 consecutive
days; or
(x) the commencement by the Company or any Significant Subsidiary
of a voluntary case or proceeding under any applicable U.S. Federal or
State, Canadian Federal or Provincial or other applicable bankruptcy,
insolvency, reorganization or other similar law or of any other case or
proceeding to be adjudicated a bankrupt or insolvent, or the consent by
the Company or any Significant Subsidiary to the entry of a decree or
order for relief in respect of the Company or any Significant Subsidiary
in an involuntary case or proceeding under any applicable U.S. Federal or
State, Canadian Federal or Provincial or other applicable bankruptcy,
insolvency, reorganization or other similar law or to the commencement of
any bankruptcy or insolvency case or proceeding against the Company or
any Significant Subsidiary, or the filing by the Company or any
Significant Subsidiary of a petition or answer or consent seeking
reorganization or relief under any applicable U.S. Federal or State,
Canadian Federal or Provincial or other applicable law, or the consent by
the Company or any Significant Subsidiary to the filing of such petition
or to the appointment of or taking possession by a custodian, receiver,
liquidator, assignee, trustee, sequestrator or similar official of the
Company or any Significant Subsidiary or of any substantial part of the
property of the Company or any Significant Subsidiary, or the making by
the Company or any Significant Subsidiary of an assignment for the
benefit of creditors, or the admission by the Company or any Significant
Subsidiary in writing of its inability to pay its debts generally
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<PAGE> 10
as they become due, or the taking of corporate action by the Company or
any Significant Subsidiary in furtherance of any such action.
The Indenture provides that in the case of any default under the Indenture
of the character specified in clause (v) above, no notice shall be given to
holders of Notes until at least 30 days after the occurrence thereof.
(b) Authentication and Delivery; Application of Proceeds.
The Indenture provides that, the Company may deliver Notes executed by the
Company to the Trustee for authentication, together with a Company Order for
the authentication and delivery of such Notes; and the Trustee in accordance
with such Company Order shall authenticate and deliver such Notes as in this
Indenture provided and not otherwise.
The Notes will be issued in exchange for claims against the Company or its
affiliates as provided in the Plan, and accordingly, the issuance of the Notes
will not result in proceeds to the Company.
(c) Release and Substitution of Property Subject to the Lien of the
Indenture.
Not Applicable.
(d) Satisfaction and Discharge.
The Company may terminate its obligations under the Indenture when
(1) either
(A) Securities theretofore authenticated and delivered
have been delivered to the Trustee for cancellation; or
(B) all such Securities 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 deposited or caused to be deposited with the
Trustee as trust funds in trust for the purpose an
amount sufficient to pay and discharge the entire
indebtedness on such Securities not theretofore
delivered to the Trustee for cancellation, for
principal and interest 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
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(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 have been complied with.
In addition, the Company shall be discharged from its obligations with
respect to the Notes (except with respect to (A) the rights of the holders of
the Senior Notes to receive, from the trust fund described in Section 1204 of
the Indenture, payment of principal of, and interest on such Notes when such
payments are due, (B) the Company's obligations under Sections 304, 305, 306,
1002, and 1003 of the Indenture and (C) the rights, powers, trusts, duties and
immunities of the Trustee under the Indenture and (D) Article Twelve under the
Indenture) when the Company deposits with the Trustee, in trust, (i) money,
(ii) U.S. Government Obligations (as defined in the Indenture) which, through
the scheduled payment of principal and interest in respect thereof in
accordance with their terms, will provide money in an amount, or (C) a
combination thereof, sufficient to pay the principal of and interest, if any,
on the Senior Notes on the dates such payments are due in accordance with the
terms of the Notes. (Section 1204)
(e) Evidence of Compliance.
The Company shall deliver to the Trustee, within 120 days after the end of
each fiscal year of the Company, an Officers' Certificate, stating whether or
not to the best knowledge of the signers thereof the Company is in default in
the performance or observance of any of the terms, provisions and conditions of
Section 801 or Sections 1004 through 1009 of the Indenture and, if the Company
shall be in default, specifying all such defaults and the nature and status
thereof of which they may have knowledge.
The Company shall, as long as any of the Notes are outstanding, notify the
Trustee within 10 days of any event which is, or after notice or lapse of time
or both, would become, an Event of Default, setting forth the details of such
Event of Default and the action the Company proposes to take with respect
thereto.
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<PAGE> 12
9. OTHER OBLIGORS. GIVE THE NAME AND COMPLETE MAILING ADDRESS OF ANY PERSON,
OTHER THAN THE APPLICANT, WHO IS AN OBLIGOR UPON THE INDENTURE SECURITIES.
There are no other obligors with respect to the Notes.
CONTENTS OF APPLICATION FOR QUALIFICATION. This application for qualification
comprises:
a. Pages numbered 1 to 19, consecutively.
b. The statement of eligibility and qualification of the trustee under the
Indenture to be qualified.
c. The following exhibits in addition to those filed as a part of the
statement of eligibility and qualification of the Trustee.
Exhibit T3A Articles of Amalgamation of Lincoln Waste Management Inc.
(previous name of the Company), incorporated by reference
to Exhibit 3.1 to applicant's Annual Report on Form 10-K/A
Amendment No. 2 for the fiscal year ended December 31,
1997.
Exhibit T3B By-Laws of the Company, incorporated by reference to
Exhibit 3.5 to applicant's Annual Report on Form 10-K/A
Amendment No. 2 for the fiscal year ended December 31,
1997.
Exhibit T3C Form of Indenture.
Exhibit T3D1 Disclosure Statement with respect to the Amended Joint
Plan of Reorganization of Philip Services (Delaware),
Inc., et al, dated September 21, 1999, as filed with the
United States Bankruptcy Court for the District of
Delaware, incorporated by reference to Exhibit 99.1 to
applicant's Current Report on Form 8-K dated September 27,
1999.
Exhibit T3D2 Amended and Restated Joint Plan of Reorganization of
Philip Services Corp., Philip Services (Delaware), Inc.
and certain of their subsidiaries, dated September 21,
1999 (included as Appendix A to the Disclosure statement
in Exhibit T3E1 hereto).
Exhibit T3D3 Notice of approval of Disclosure Statement and hearing on
confirmation of Plan, dated September 22, 1999.
Exhibit T3D4 Form of Ballot distributed to holders of Class 7 claims
for voting on the Amended and Restated Joint Plan of
Reorganization.
Exhibit T3E Cross Reference Sheet showing the location in the
Indenture of the provisions inserted therein pursuant to
Section 310 through 318(a), inclusive, of the Trust
Indenture Act of 1939 (included in Exhibit T3C hereof).
12
<PAGE> 13
APPENDIX A
<TABLE>
<CAPTION>
COMPANY OWNERSHIP JURISDICTION
- ------- --------- ------------
<S> <C> <C>
Philip Services Corp. Ontario
1125443 Ontario Inc. 100% Ontario
2766906 Canada Inc. 100% Canada
2884216 Canada Inc.
formerly Sanivan (1993) Inc.) 100% Canada
721646 Alberta Ltd. 100% Alberta
Arc Dust Processing (Barbados) Limited 100% Barbados
Allwaste of Canada Ltd. 100% Ontario
Caligo Partnership 90% Ontario
Caligo Reclamation Ltd. 100% Ontario
Caligo Partnership 10% Ontario
Luntz Corporation 80% Delaware
Luntz Acquisition (Delaware) Corporation 100% Delaware
21st Century Environmental Management, Inc. 100% Delaware
21st Century Environmental Management, Inc. of Nevada 100% Nevada
21st Century Environmental Management, Inc. of Puerto Rico 100% Delaware
21st Century Environmental Management, Inc. of Rhode Island 100% Rhode Island
Chemical Pollution Control, Inc. of Florida 100% Florida
Chemical Pollution Control, Inc. of New York 100% New York
Northland Environmental, Inc. 100% Delaware
RESI Acquisition (Delaware) Corporation 100% Delaware
Chem-Freight, Inc. 100% Ohio
Republic Environmental Recycling (New Jersey), Inc. 100% New Jersey
Republic Environmental Systems (Pennsylvania), Inc. 100% Pennsylvania
Republic Environmental Systems (Technical Services Group), Inc. 100% New Jersey
Republic Environmental Systems (Transportation Group), Inc. 100% Pennsylvania
Philip Enterprises Inc./Les Entreprises Philip Inc. 100% Ontario
1195613 Ontario Limited 100% Ontario
1233793 Ontario Inc. 100% Ontario
2842-7979 Quebec Inc. 100% Quebec
800151 Ontario Inc. 100% Ontario
842578 Ontario Limited 100% Ontario
912613 Ontario Ltd. 100% Ontario
Cecatur Holdings 99% Ireland
Philip Services (Delaware) L.L.C. 100% Delaware
Fercyco & Partners 33%
Fercyco Incorporated 50% Ontario
Fercyco & Partners 33%
Fers et Meteaux Recycles Ltd. 50% Quebec
K-Scrap Resources Inc. 42% Ontario
Luntz Corporation 19% Delaware
Phencorp International Finance Inc. 100% Ireland
Phencorp International B.V. 100% Netherlands
Philip Services (Netherlands) B.V.
(formerly Philip Services (Netherlands) B.V.) 100% Netherlands
P.S.C. Philip Services Iberica, S.L. 100% Spain
P.S.P.E. Servicos Prestados As Empresas Unipessoal Limitada 100% Portugal
Philip Services (Deutschland) Gmbh 100%
</TABLE>
13
<PAGE> 14
<TABLE>
<CAPTION>
COMPANY OWNERSHIP JURISDICTION
- ------- --------- ------------
<S> <C> <C>
Philip Services (Europe) Limited 100% U.K.
Allied Metals Limited 100% U.K.
Arc Dust processing (UK) Limited 33% U.K.
B.M. Metals (Recycling) Ltd. 100% U.K.
Bath Reclamation (Avonmouth) Co. Limited 100% U.K.
Blackbushe Limited 100% U.K.
Blackbushe Metals (Western) Limited 100% U.K.
Elliott Metal Company Limited 100% U.K.
Southern Hauliers Limited 100% U.K.
T.C. Fraser Metals Limited 75% U.K.
Cardiff Facility Company Limited 50% U.K.
E. Pearse (Holdings) Limited 100% U.K.
E. Pearse & Co. Limited 100% U.K.
C. Phillip and Sons (Bristol) Limited 100% U.K.
Mayer Pearse Limited 100% U.K.
Widsite Limited 100% U.K.
Philip Cardiff Facility Company Limited 50% U.K.
Philip Metals (Europe) Limited 100% U.K.
Philip Services (Delaware), Inc. 100% Delaware
Philip Industrial Services (USA), Inc. 100% Texas
Cousins Waste Control Corporation
(formerly Cousins Waste Control Corporation) 100% Ohio
Nortru Inc. 100% Michigan
Allworth Inc. 100% Alabama
Chemical Reclamation Service, Inc. 100% Texas
Philip Reclamation Services, Houston, Inc.
(formerly Philip Reclamation Services, Houston, Inc.) 100% Texas
Southeast Environmental Services, Inc. 100% Texas
CyanoKEM, Inc. 100% Michigan
Nortru, Ltd. 100% Ontario
Philip MPS Industrial Services, L.L.C. 51% Delaware
Rho-Chem Corporation 100% California
Sessa, S.A. de C.V. 100% Mexico
ThermalKEM, Inc. 100% Delaware
Philip Environmental of Idaho Corporation
(formerly Philip Environmental of Idaho Corporation) 100% Delaware
Philip Environmental Washington Inc. 100% Washington
Burlington Environmental Inc. 100% Delaware
Burlington Environmental Inc.
(formerly Chemical Processors Inc.) 100% Washington
Resource Recovery Corporation 100% Washington
Termco Corporation 100% Washington
Gasoline Tank Service Company Inc. 100% Washington
Philip Environmental Services Corporation
(formerly Burlington Environmental Inc.) 100% Missouri
Solvent Recovery Corporation 100% Missouri
Philip Industrial Services Group, Inc.
(formerly Allwaste, Inc.) 100% Delaware
ALRC, Inc. 100% Delaware
APLC, Inc. 100% Delaware
Allwaste Asbestos Abatement Holdings, Inc.
(formerly Combined Waste Services, Inc.) 100% Delaware
</TABLE>
14
<PAGE> 15
<TABLE>
<CAPTION>
COMPANY OWNERSHIP JURISDICTION
- ------- --------- ------------
<S> <C> <C>
Allwaste Asbestos Abatement, Inc. 100% Delaware
Allwaste Asbestos Abatement of New England, Inc. 100% Massachusetts
Oneida Asbestos Removal, Inc. 100% New York
Oneida Asbestos Abatement, Inc. 100% Delaware
Allwaste Tank Cleaning, Inc.
(formerly Atlanta Truck Wash) 100% Georgia
Allwaste Railcar Cleaning, Inc. 100% Delaware
Allwaste Recovery Systems, Inc.
(formerly Allwaste Services of Georgia, Inc) 100% Georgia
Georgia Recovery Systems 7% Georgia
GRS/Lake Charles, Ltd. 50% Louisiana
Georgia Recovery Systems 92% Georgia
GRS/Lake Charles, Ltd. 50% Louisiana
Georgia Recovery Systems 92% Georgia
Philip Environmental Services, Inc.
(formerly Allwaste Environmental Services, Inc.) 100% Delaware
Ace/Allwaste Environmental Services of Indiana, Inc.
(formerly Ace Power Rodding Corporation) 100% Illinois
All Safety and Supply, Inc.
(formerly Wildwood Sporting Goods & Taxidermy, Inc.) 100% Texas
AllScaff, Inc.
(formerly Southern Scaffold, Inc.) 100% Tennessee
Allwaste Environmental Services/North Central, Inc.
(ILLINOIS CORP - FOR UNION PURPOSES ONLY) 100% Illinois
Allwaste Servicios Industriales de Control
Ecologico S.A. de C.V. 60% Mexico
Allwaste Tank Services S.A. de C.V. 60% Mexico
Allwaste Texquisition Inc.
(formerly Allwaste Texquisition, Inc.) 100% Texas
Caligo de Mexico, S.A. de C.V. 99% Mexico
Industrial Construction Services Co., Inc.
(formerly Coal Construction, Inc.) 100% Alabama
James & Luther Services, Inc. 100% Delaware
Allwaste Services of El Paso, Inc. 100% Delaware
Jesco Industrial Service, Inc. 100% Kentucky
Philip Automotive, Ltd.
(formerly Philip Automotive, Ltd.) 100% Pennsylvania
Deep Clean, Inc. 100% Michigan
Philip Services/Birmingham, Inc.
(formerly Philip Services/Birmingham, Inc.) 100% Alabama
Philip Services Hawaii, Ltd.
(formerly Allwaste of Hawaii, Ltd.) 100% Hawaii
Philip Industrial Services of Texas, Inc.
(formerly Allwaste Services of Port Arthur, Inc.) 100% Texas
Philip Services/Louisiana, Inc.
(formerly Allwaste Services of New Orleans) 100% Louisiana
Philip Mid-Atlantic, Inc.
(formerly Clean America, Inc.) 100% Maryland
Philip Services/Missouri, Inc.
(formerly Philip Services/Missouri, Inc.) 100% Delaware
Philip Services/Mobile, Inc.
(formerly Philip Services/Mobile, Inc.) 100% Alabama
Philip Services/North Atlantic, Inc.
(formerly Allwaste Environmental Services/
North Atlantic, Inc.) 100% Delaware
Philip Services/North Central, Inc..
(formerly Allwaste Environmental Services/
North Central, Inc.) 100% Iowa
</TABLE>
15
<PAGE> 16
<TABLE>
<CAPTION>
COMPANY OWNERSHIP JURISDICTION
- ------- --------- ------------
<S> <C> <C>
Philip Services/Ohio, Inc.
(formerly Allwaste Environmental Services of Ohio, Inc.) 100% Ohio
Philip Oil Recycling, Inc.
(formerly Oil Recycling, Inc.) 100% North Dakota
Philip Services/Oklahoma, Inc.
(formerly Allwaste Environmental Services of Oklahoma, Inc.) 100% Oklahoma
Philip Plant Services, Inc.
(formerly Allwaste Intermountain Plant Services, Inc.) 100% Delaware
Philip Scaffold Corporation
(formerly AllScaff, Inc.) 100% Colorado
Philip Services/Atlanta, Inc.
(formerly Philip Services/Atlanta, Inc.) 100% Georgia
Philip Services/Southwest, Inc.
(formerly Philip Services/Southwest, Inc.) 100% Arizona
Philip Services South Central, Inc..
(formerly Allwaste Environmental Services/South Central, Inc.) 100% Colorado
Philip West Industrial Services, Inc.
(formerly Industrial Hydro-Chem Services, Inc.) 100% California
Philip Transportation and Remediation, Inc.
(formerly Allwaste Transportation and Remediation, Inc.) 100% California
Philip/J.D. Meagher, Inc.
(formerly Philip/J.D. Meagher, Inc.) 100% Massachusetts
Philip/Whiting, Inc.
(formerly Philip/Whiting, Inc.) 100% Delaware
PSC Enterprises, Inc. 100% Delaware
Allies Staffing, Inc. 100% Delaware
Allies Staffing Ltd. 100% Ontario
Allquest Capital, Inc. 100% Delaware
Allquest Compression Services L.L.C. 50% Delaware
HydroServe Westlake, L.L.C. 50% Delaware
PSC Industriedienstleistungs Gmbh
(formerly PSC Industriedienstleistungs Gmbh) 100% Austria
Philip ST, Inc.
(formerly Serv-Tech, Inc.) 100% Texas
Philip Chemisolv Holdings, Inc.
(formerly Philip Chemisolv Holdings, Inc.) 100% Delaware
Chemisolv Limited 100% U.K.
Philip Chemi-Solv, Inc.
(formerly Philip Chemi-Solv, Inc.) 100% Texas
DM Acquisition Corporation 100% Nevada
Delta Maintenance, Inc. 100% Louisiana
Dotspec Ltd. 100% U.K.
Industrial Services Technologies, Inc. 100% Colorado
Advanced Environmental Systems, Inc.
(formerly Northwest Passage of North America, Inc.) 62% New York
Advanced Energy Corporation 100% Delaware
International Catalyst, Inc. 100% Nevada
IST Holding Corp. 100% Colorado
Chem-Fab, Inc. 100% Texas
Piping Holdings Corp. 100% Oklahoma
Piping Companies, Inc. 100% Oklahoma
Piping Mechanical Corp. 100% Colorado
Hydro-Engineering & Service, Inc. 100% Texas
Mac-Tech, Inc. 100% Texas
Serv-Tech de Mexico, S. de R.L. 95% Mexico
Serv-Tech Mexicana, s. de R.L. 95% Mexico
</TABLE>
16
<PAGE> 17
<TABLE>
<CAPTION>
COMPANY OWNERSHIP JURISDICTION
- ------- --------- ------------
<S> <C> <C>
Petrochem Field Services de Venezuela, S.A. 70% Venezuela
Philip Enterprise Service Corporation
(formerly Philip Enterprise Service Corporation) 100% North Carolina
Philip Mechanical Services of Louisiana, Inc.
(formerly Philip Mechanical Services of Louisiana, Inc.) 100% Louisiana
Philip Refractory and Corrosion Corporation
(formerly Hartney Industrial Services Corporation) 100% Nevada
Hartney Corporation 100% Nevada
Philip Corrision Services, Inc.
(formerly Philip Refractory Services, Inc.) 100% Nevada
Total Refractory Systems, Inc. 100% Nevada
United Industrial Materials, Inc. 100% Nevada
Philip Refractory Services, Inc.
(formerly Philip Refractory Services, Inc.) 100% Nevada
Philip ST Piping, Inc.
(formerly Philip ST Piping, Inc.) 100% Texas
Philip Technical Services, Inc.
(formerly Philip Technical Services, Inc.) 100% Texas
Philip/SECO Industries, Inc.
(formerly Philip/SECO Industries, Inc.) 100% Louisiana
TIPCO Acquisition Corp. 100% Texas
PRS Holding, Inc. 100% Texas
Philip Petro Recovery Systems, Inc.
(formerly Philip Petro Recovery Systems, Inc.) 100% Texas
Serv-Tech EPC, Inc. 100% Nevada
Petrochem Field Services de Venezuela, S.A. 30% Venezuela
Serv-Tech Construction and Maintenance, Inc.
(formerly Serv-Tech EPC-Houston, Inc.) 100% Texas
Serv-Tech Engineers, Inc. 100% Louisiana
F.C. Schaffer & Associates, Inc.
(formerly F.C. Schaffer & Associates, Inc.) 100% Louisiana
Serv-Tech Europe GMBH 100% Germany
Refinery Maintenance International Limited 100% U.K.
Serv-Tech International Sales, Inc. 100% Virgin Islands
Serv-Tech of New Mexico, Inc. 100% New Mexico
Serv-Tech Services, Inc. 100% Texas
Serv-Tech Sudamericana, S.A. 98% Venezuela
ServTech Canada, Inc. 100% Canada
ST Delta Canada 100% Ontario
Terminal Technologies, Inc. 100% Texas
RMF Global, Inc.
(formerly Philip Environmental Services Acquisition Corporation) 100% Ohio
RMF Industrial Contracting, Inc. 100% Michigan
RMF Environmental, Inc. 100% Ohio
Philip Industrial Services (Delaware), Inc. 100%
Philip Metals Recovery (Delaware), Inc. 100% Delaware
Philip Metals (USA), Inc. 100% Ohio
D & L, Inc.
(formerly D & L Holding, Inc.) 100% Pennsylvania
Intermetco US Inc. 100% Michigan
Butco Inc. 100% New York
Alltift Inc. 50% New York
Intermetco USA Ltd.
(formerly Advance Metals Recycling, Inc.) 100% New York
</TABLE>
17
<PAGE> 18
<TABLE>
<CAPTION>
COMPANY OWNERSHIP JURISDICTION
- ------- --------- ------------
<S> <C> <C>
Cappco Tubular Products USA, Inc.
(formerly Georgia Tubular Products Inc.) 100% Georgia
JW Ventures Inc. 50% Texas
Philip Metals Recovery (USA) Inc.
(formerly Waxman Resources (USA) Inc.) 100% Arizona
Philip Metals (New York), Inc.
(formerly Philip Metals (New York), Inc.) 100% New York
Philip Metals Inc.
(formerly Philip Metals (Ohio), Inc.) 100% Ohio
Philip Services (Pennsylvania), Inc. 100% Pennsylvania
R&R Trucking Inc. 50% Ontario
Sablix Inc. 100% Quebec
Societe D'Elimination Selenco, Inc. 100% Canada
Phencorp Reinsurance Company Inc. 100% Barbados
Philip Analytical Services Corporation
(formerly Barringer Laboratories Limited) 100% Ontario
Philip Chembrex Environmental (Mercosur) Inc. 100% Canada
Philip Environmental (Atlantic) Limited 100% Nova Scotia
Philip Environmental (Elmira) Inc.
(formerly 1008746 Ontario Inc.) 100% Ontario
Philip Environmental Services Limited
(formerly Delsan Environmental Group Inc.) 100% Ontario
Delsan Aim Environmental Services Inc. 50% Quebec
Delsan Cleveland Environmental Services Inc. 50% Canada
Delsan Demolition Limited
(formerly Delsan Contracting Limited) 100% Ontario
Tiger Wrecking Inc. 100% Ontario
York Thomas Delsan Decommissioning Inc. 33% Ontario
Philip Gore Landfill Inc. 100% Ontario
Philip Industries (Europe) Limited 100% U.K.
Philip Industrial Services (Europe) Limited 100% U.K.
Philip International Development Inc. 100% Barbados
Philip Servicos Industriais Do Brasil Ltda 99% Brazil
Recycomb S.A. 24% Argentina
Resicontrol S.A. 25% Brazil
Philip Investment Corp. 100% Ontario
Philip Plasma Metals Inc. 100% Ontario
PSC (Europe) Limited 100% U.K.
PSC/IML Acquisition Corp. 100% Ontario
Recyclage d'Aluminium Quebec Inc./Quebec Aluminium Recycling Inc. 100% Canada
SK Parent Corp. 33% Delaware
</TABLE>
18
<PAGE> 19
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the
applicant, Philip Services Corp., a corporation organized and existing under
the laws of the Province of Ontario, Canada, has duly caused this application
to be signed on its behalf by the undersigned, thereunto duly authorized, and
its seal to be hereunto affixed and attested, all in the City of Hamilton,
Canada, on the 29 day of September, 1999.
PHILIP SERVICES CORP.
<TABLE>
<S> <C> <C> <C>
[SEAL] BY: /s/ Phillip Widman
-----------------------------------
Name: Phillip Widman
Title: Executive Vice President
and Chief Financial
Officer
Attest:
/s/ Colin Soule
- -----------------------------------------
Name: Colin Soule
Title: Executive Vice President,
General Counsel and Corporate Secretary
</TABLE>
19
<PAGE> 1
Exhibit T3C
________________________________________________________________
PHILIP SERVICES CORP.
TO
[NAME OF TRUSTEE]
Trustee
--------------------
Indenture
Dated as of --, 1999
--------------------
$18,000,000
3% Convertible Subordinated Notes due --, 2019
________________________________________________________________
<PAGE> 2
PHILIP SERVICES CORP.
Reconciliation and tie between Trust Indenture Act
of 1939 and Indenture, dated as of --, 1999
<TABLE>
<CAPTION>
Trust Indenture Indenture
Act Section Section
----------- -------
<S> <C>
ss.310(a)(1) ............................................ 609
(a)(2) ............................................ 609
(a)(3) ............................................ Not Applicable
(a)(4) ............................................ Not Applicable
(b) ............................................ 608
............................................ 610
ss.311(a) ............................................ 613
(b) ............................................ 613
ss.312(a) ............................................ 701
............................................ 702
(b) ............................................ 702
(c) ............................................ 702
(b) ............................................ 703
(c) ............................................ 703
(d) ............................................ 703
ss.314(a) ............................................ 704
(a)(4) ............................................ 1020
(b) ............................................ Not Applicable
(c)(1) ............................................ 102
(c)(2) ............................................ 102
(c)(3) ............................................ Not Applicable
(d) ............................................ Not Applicable
(e) ............................................ 102
ss.315(a) ............................................ 601
(b) ............................................ 602
(c) ............................................ 601
(d) ............................................ 601
(d)(1) ............................................ 601
(e) ............................................ 514
</TABLE>
i
<PAGE> 3
<TABLE>
<CAPTION>
Trust Indenture Indenture
Act Section Section
----------- -------
<S> <C>
ss.316(a) ............................................ 101
(a)(l)(A) ............................................ 502
............................................ 512
(a)(l)(B) ............................................ 513
(a)(2) ............................................ Not Applicable
(b) ............................................ 508
ss.317(a)(1) ............................................ 503
(a)(2) ............................................ 504
(b) ............................................ 1003
ss.318(a) ............................................ 107
</TABLE>
__________________
Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
ii
<PAGE> 4
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
RECITALS OF THE COMPANY......................................................................1
ARTICLE 1
Definitions and Other Provisions
of General Application
SECTION 101. Definitions..................................................................1
Act........................................................................................2
Affiliate..................................................................................2
Asset Disposition..........................................................................2
Authenticating Agent.......................................................................2
Authority..................................................................................3
Bank.......................................................................................3
beneficial owner...........................................................................3
Board of Directors.........................................................................3
Board Resolution...........................................................................3
Business Day...............................................................................3
Capital Stock..............................................................................3
Change of Control..........................................................................3
Closing Price Per Share....................................................................3
Commission.................................................................................3
Common Shares..............................................................................4
Common Stock...............................................................................4
Company....................................................................................4
Company Request............................................................................4
Company Order..............................................................................4
Consolidated Net Income....................................................................4
Constituent Person.........................................................................4
Conversion Agent...........................................................................4
Conversion Date............................................................................4
Conversion Price...........................................................................4
Corporate Trust Office.....................................................................4
corporation................................................................................5
Credit Agreement...........................................................................5
Defaulted Interest.........................................................................5
Definitive Security........................................................................5
Dollars....................................................................................5
$..........................................................................................5
Event of Default...........................................................................5
Exchange Act...............................................................................5
</TABLE>
________________
Note: This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
iii
<PAGE> 5
<TABLE>
<CAPTION>
Page
----
<S> <C>
Exit Facility............................................................................5
Expiration Date..........................................................................5
Expiration Time..........................................................................5
generally accepted accounting principles.................................................5
Global Security..........................................................................5
Holder...................................................................................5
Indenture................................................................................5
Interest Payment Date....................................................................5
Maturity.................................................................................6
Nasdaq...................................................................................6
Notice of Default........................................................................6
Non-electing Share.......................................................................6
NYSE.....................................................................................6
Offer....................................................................................6
Offer Expiration Date....................................................................6
Offer to Purchase........................................................................6
Officers' Certificate....................................................................6
Opinion of Counsel.......................................................................6
Outstanding..............................................................................6
Paying Agent.............................................................................7
Permitted Holder.........................................................................7
Person...................................................................................7
Predecessor Security.....................................................................7
Purchase Price...........................................................................7
Purchased Shares.........................................................................7
Redeemable Stock.........................................................................7
Redemption Date..........................................................................8
Redemption Price.........................................................................8
Reference Date...........................................................................8
Regular Record Date......................................................................8
Responsible Officer......................................................................8
Securities...............................................................................8
Securities Act...........................................................................8
Security.................................................................................8
Security Register........................................................................8
Security Registrar.......................................................................8
Senior Indebtedness......................................................................8
Senior Subordinated Notes................................................................8
Significant Subsidiary...................................................................8
Special Record Date......................................................................9
Stated Maturity..........................................................................9
Subsidiary...............................................................................9
Successor Security.......................................................................9
Trading Days.............................................................................9
Trust Indenture Act......................................................................9
</TABLE>
________________
Note: This table of contents shall not, for any purpose, be deemed to be part of
the Indenture.
iv
<PAGE> 6
<TABLE>
<CAPTION>
Page
----
<S> <C>
Trustee .................................................................................9
U.S. Depositary..........................................................................10
United States............................................................................10
Vice President...........................................................................10
Voting Stock.............................................................................10
Wholly Owned Subsidiary..................................................................10
SECTION 102. Compliance Certificates and Opinions.......................................10
SECTION 103. Form of Documents Delivered to Trustee.....................................11
SECTION 104. Acts of Holders; Record Date...............................................11
SECTION 105. Notices. Etc., to Trustee and Company......................................13
SECTION 106. Notice to Holders: Waiver..................................................13
SECTION 107. Conflict with Trust Indenture Act..........................................14
SECTION 108. Effect of Headings and Table of Contents...................................14
SECTION 109. Successors and Assigns.....................................................14
SECTION 110. Separability Clause........................................................14
SECTION 111. Benefits of Indenture......................................................14
SECTION 112. Governing Law..............................................................14
SECTION 113. Legal Holidays.............................................................14
SECTION 114. Consent to Service; Jurisdiction...........................................15
SECTION 115. No Recourse Against Others.................................................15
SECTION 116. Multiple Originals.........................................................15
ARTICLE 2
Security Forms
SECTION 201. Forms Generally............................................................16
SECTION 202. Form of Face of Security...................................................16
SECTION 203. Form of Reverse of Security................................................20
SECTION 204. Form of Trustee's Certificate of Authentication. ..........................23
SECTION 205. Form of Conversion Notice. ................................................23
ARTICLE 3
The Securities
SECTION 301. Title and Terms............................................................24
SECTION 302. Denominations..............................................................24
SECTION 303. Execution, Authentication, Delivery and Dating.............................24
SECTION 304. Temporary Securities.......................................................25
SECTION 305. Registration, Registration of Transfer and Exchange........................26
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities...........................28
SECTION 307. Payment of Interest; Interest Rights Preserved.............................28
SECTION 308. Persons Deemed Owners......................................................29
SECTION 309. Cancellation...............................................................30
SECTION 310. Computation of Interest....................................................30
SECTION 311. Interest Act (Canada)......................................................30
</TABLE>
________________
Note: This table of contents shall not, for any purpose, be deemed to be part of
the Indenture.
v
<PAGE> 7
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE 4
Satisfaction and Discharge
SECTION 401. Satisfaction and Discharge of Indenture.....................................30
SECTION 402. Application of Trust Money..................................................31
ARTICLE 5
Remedies
SECTION 501. Events of Default...........................................................32
SECTION 502. Acceleration of Maturity; Rescission and Annulment..........................33
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee.............34
SECTION 504. Trustee May File Proofs of Claim............................................35
SECTION 505. Trustee May Enforce Claims Without Possession of Securities.................35
SECTION 506. Application of Money Collected..............................................36
SECTION 507. Limitation on Suits.........................................................36
SECTION 508. Unconditional Right of Holders to Receive Principal and Interest............37
SECTION 509. Restoration of Rights and Remedies..........................................37
SECTION 510. Rights and Remedies Cumulative..............................................37
SECTION 511. Delay or Omission Not Waiver................................................37
SECTION 512. Control by Holders..........................................................37
SECTION 513. Waiver of Past Defaults.....................................................38
SECTION 514. Undertaking for Costs.......................................................38
SECTION 515. Waiver of Stay or Extension Laws............................................38
ARTICLE 6
The Trustee
SECTION 601. Certain Duties and Responsibilities.........................................38
SECTION 602. Notice of Defaults..........................................................39
SECTION 603. Certain Rights of Trustee...................................................39
SECTION 604. Not Responsible for Recitals or Issuance of Securities......................40
SECTION 605. May Hold Securities.........................................................40
SECTION 606. Money Held in Trust.........................................................40
SECTION 607. Compensation and Reimbursement..............................................40
SECTION 608. Disqualification: Conflicting Interests.....................................41
SECTION 609. Corporate Trustee Required; Eligibility.....................................41
SECTION 610. Resignation and Removal; Appointment of Successor...........................41
SECTION 611. Acceptance of Appointment by Successor......................................42
SECTION 612. Merger, Conversion, Consolidation or Succession to Business.................42
SECTION 613. Preferential Collection of Claims Against Company...........................43
SECTION 614. Appointment of Authenticating Agent.........................................43
</TABLE>
________________
Note: This table of contents shall not, for any purpose, be deemed to be part of
the Indenture.
vi
<PAGE> 8
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE 7
Holders' Lists and Reports by Trustee and Company
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders..................45
SECTION 702. Preservation of Information; Communications to Holders.....................45
SECTION 703. Reports by Trustee.........................................................46
SECTION 704. Reports by Company.........................................................46
ARTICLE 8
Consolidation, Merger, Conveyance, Transfer or Lease
SECTION 801. Company May Consolidate, Etc. Only on Certain Terms........................46
SECTION 802. Successor Substituted......................................................47
ARTICLE 9
Supplemental Indentures
SECTION 901. Supplemental Indentures Without Consent of Holders.........................47
SECTION 902. Supplemental Indentures with Consent of Holders............................48
SECTION 903. Execution of Supplemental Indentures.......................................49
SECTION 904. Effect of Supplemental Indentures..........................................49
SECTION 905. Conformity with Trust Indenture Act........................................49
SECTION 906. Reference in Securities to Supplemental Indentures.........................49
ARTICLE 10
Covenants
SECTION 1001. Payment of Principal and Interest.........................................49
SECTION 1002. Maintenance of Office or Agency...........................................49
SECTION 1003. Money for Security Payments to be Held in Trust...........................50
SECTION 1004. Existence.................................................................51
SECTION 1005. Maintenance of Properties.................................................51
SECTION 1006. Payment of Taxes and Other Claims.........................................51
SECTION 1007. Registration and Listing..................................................52
SECTION 1008. Limitation on Restricted Payments.........................................52
SECTION 1009. Limitation on Dividend and Other Payment Restrictions
Affecting Subsidiaries...............................................53
SECTION 1010. Limitation on Distributions of Assets to Shareholders.....................54
SECTION 1011. Statement By Officers as to Default; Compliance Certificates..............54
SECTION 1012. Waiver of Certain Covenants...............................................54
SECTION 1013. Indemnification of Judgment Currency......................................55
SECTION 1014. Available Information.....................................................55
SECTION 1015. Acquisition of Securities.................................................55
</TABLE>
________________
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ARTICLE 11
Redemption of Securities
SECTION 1101. Right of Redemption.......................................................56
SECTION 1102. Applicability of Article..................................................56
SECTION 1103. Notices to Trustee........................................................56
SECTION 1104. Selection by Trustee of Securities to Be Redeemed.........................56
SECTION 1105. Notice of Redemption......................................................57
SECTION 1106. Deposit of Redemption Price...............................................57
SECTION 1107. Securities Payable on Redemption Date.....................................58
SECTION 1108. Securities Redeemed in Part...............................................58
ARTICLE 12
Conversion of Securities
SECTION 1201. Conversion Privilege and Conversion Price.................................58
SECTION 1202. Exercise of Conversion Privilege..........................................59
SECTION 1203. Fractions of Shares.......................................................60
SECTION 1204. Adjustment of Conversion Price............................................60
SECTION 1205. Notice of Adjustments of Conversion Price.................................63
SECTION 1206. Notice of Certain Corporate Action........................................63
SECTION 1207. Company to Reserve Common Shares..........................................64
SECTION 1208. Taxes on Conversions......................................................64
SECTION 1209. Covenant as to Common Shares..............................................65
SECTION 1210. Cancellation of Converted Securities......................................65
SECTION 1211. Provision in Case of Amalgamation, Consolidation, Merger
or Sale of Assets...................................................65
SECTION 1212. Responsibility of Trustee.................................................66
ARTICLE 13
Subordination of Securities
SECTION 1301. Securities Subordinated to Senior Indebtedness............................66
SECTION 1302. No Payments in Certain Circumstances;
Payment Over of Proceeds Upon Dissolution, Etc......................67
SECTION 1303. Notice to Trustee of Specified Events;
Reliance on Certificate of Liquidating Agent........................68
SECTION 1304. Trustee to Effectuate Subordination.......................................69
SECTION 1305. Trustee Not Charged with Knowledge of Prohibition.........................69
SECTION 1306. Trustee Not Fiduciary for Holders of Senior Indebtedness..................69
SECTION 1307. Rights of Trustee as Holder of Senior Indebtedness;
Preservation of Trustee's Rights....................................70
SECTION 1308. Article Applicable to Paying Agents.......................................70
SECTION 1309. Certain Conversions Deemed Payment........................................70
</TABLE>
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ARTICLE 14
Change of Control
SECTION 1401. Change of Control.........................................................71
SECTION 1402. Certain Definitions.......................................................71
TESTIMONIUM
SIGNATURES AND SEALS
ANNEXES
Annex A-1 Form of Conversion Notice A-1-1
</TABLE>
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the Indenture.
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INDENTURE, dated as of --, 1999 between Philip Services Corp., a
corporation duly organized and existing under the laws of the Province of
[ONTARIO], Canada (herein called the "Company"), having its principal office at
100 King Street West, Hamilton, Ontario, Canada L8N 4T6 and --, a trust company
duly organized and existing under the laws of the State of --, as Trustee
(herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the creation of an issue of its 3%
Convertible Subordinated Notes due --, 2019 of substantially the tenor and
amount hereinafter set forth, and to provide therefor the Company has duly
authorized the execution and delivery of this Indenture.
All things necessary to make the Securities, when executed by the Company
and authenticated and delivered hereunder and duly issued by the Company, the
valid obligations of the Company, and to make this Indenture a valid agreement
of the Company, in accordance with their and its terms, have been done.
Upon the effectiveness of an effective registration statement under the
Securities Act, this Indenture will be subject to, and shall be governed by,
applicable provisions of the Trust Indenture Act.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities
by the Holders thereof, it is mutually covenanted and agreed, for the equal and
proportionate benefit of all Holders of the Securities, as follows:
ARTICLE 1
Definitions and Other Provisions
of General Application
SECTION 101. Definitions.
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 in the United States (whether or not such is
indicated herein), and, except as otherwise herein expressly provided,
the term "generally accepted accounting principles" with respect to
any
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computation required or permitted hereunder shall mean such accounting
principles as are generally accepted in the United States as
consistently applied by the Company at the date of such computation;
(4) unless the context otherwise requires, any reference to an
"Article" or a "Section", or to an "Annex" or a "Schedule", refers to
an Article or Section of, or to an Annex or a Schedule attached to,
this Indenture, as the case may be;
(5) unless the context otherwise requires, any reference to a
statute, rule or regulation refers to the same (including any
successor statute, rule or regulation thereto) as it may be amended
from time to time;
(6) unless otherwise specifically set forth herein, all
calculations or determinations of a Person shall be performed or made
on a consolidated basis in accordance with generally accepted
accounting principles; and
(7) 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.
Certain terms, used principally in Article Six, are defined in
that Article.
"Act", when used with respect to any Holder, has the meaning
specified in Section 104.
"Affiliate" of any Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such Person. For the purposes of this definition, "control"
when used with respect to any 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.
"Asset Disposition" means any transfer, conveyance, sale, lease or other
disposition by the Company or any of its Subsidiaries (including a consolidation
or merger or other sale of any such Subsidiary with, into or to another Person
in a transaction in which such Subsidiary ceases to be a Subsidiary, but
excluding a disposition by a Subsidiary of the Company to the Company or a
Wholly Owned Subsidiary of the Company or by the Company to a Wholly Owned
Subsidiary of the Company) of (i) shares of Capital Stock (other than directors'
qualifying shares) or other ownership interests of a Subsidiary of the Company,
(ii) substantially all of the assets of the Company or any of its Subsidiaries
representing a division or line of business or (iii) other assets or rights of
the Company or any of its Subsidiaries outside of the ordinary course of
business, provided in each of the foregoing instances that the aggregate
consideration for such transfer, conveyance, sale, lease or other disposition is
equal to $10 million or more.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 614 to act on behalf of the Trustee to authenticate
Securities.
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<PAGE> 13
"Authority" means any federal, provincial, municipal, or local
government or quasi-governmental agency or authority.
"Bank" means a "bank" as defined in section 3(a)(6) of the Exchange
Act as well as any other financial institution, foreign or otherwise, a
substantial portion of the business of which consists of receiving deposits
or exercising a fiduciary power similar to those permitted to national
banks under the authority of the Comptroller of the Currency pursuant to
the first section of Public Law 87-722.
"beneficial owner" has the meaning specified in Section 1402(1).
"Board of Directors" means either the board of directors of the
Company or any duly authorized committee of that board authorized to act
for it in respect hereof.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly
adopted by the Board of Directors and to be in full force and effect on the
date of such certification, and delivered to the Trustee.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in The City of New
York, New York or The City of Toronto, Ontario are authorized or obligated
by law or executive order to close.
"Capital Stock" of any Person means any and all shares, interests,
participations or other equivalents (however designated) of corporate stock
or other equity participations, including partnership interests, whether
general or limited, of such Person.
"Change of Control" has the meaning specified in Section 1402(2).
"Closing Price Per Share" means, with respect to a class of Common
Stock of the Company, for any day, the reported last sales price regular
way per share of such class or, in case no such reported sale takes place
on such day, the average of the reported closing bid and asked prices
regular way, in either case (i) on the NYSE or, if such class of Common
Stock is not quoted, listed or admitted to trading on the NYSE, on the
principal (as determined by the Company's Board of Directors) United States
or Canadian national securities exchange or Nasdaq on which such class of
Common Stock is quoted, listed or admitted to trading or (ii) if not quoted
on the NYSE or listed or admitted to trading on any United States or
Canadian national securities exchange or Nasdaq, the average of the closing
bid and asked prices in the over-the-counter market as furnished by any New
York Stock Exchange member firm selected from time to time by the Company
for that purpose or (iii) if not so available in either manner set forth in
(i) or (ii), as otherwise determined in good faith by the Board of
Directors.
"Commission" means the United States Securities and Exchange
Commission, as from time to time constituted, created under the Exchange
Act, or, if at any time after the execution of this instrument such
Commission is not existing and performing the duties now assigned to it
under the Trust Indenture Act, then the body performing such duties at such
time.
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<PAGE> 14
"Common Shares" means the Common Shares, with no par value, of the
Company authorized at the date of this instrument as originally executed.
Subject to the provisions of Section 1211, shares issuable upon conversion
of Securities shall include only Common Shares or shares of any class or
classes of Common Stock resulting from any reclassification thereof;
provided, however, that if at any time as a result of such reclassification
there shall be more than one such resulting class, the shares so issuable
upon conversion of Securities shall include shares of all such classes, and
the number of shares of each such class then so issuable shall be in the
same proportion which the total number of shares of such class resulting
from such reclassification bears to the total number of shares of such
classes resulting from such reclassification[; AND PROVIDED FURTHER,
HOWEVER, THAT SUCH SHARES ISSUABLE UPON CONVERSION OF SECURITIES SHALL BE
"PRESCRIBED SECURITIES" AS DEFINED IN REGULATION 6208 TO THE INCOME TAX ACT
(CANADA), OR, IF THE REQUIREMENT OF SUCH REGULATION IS CHANGED, SUCH OTHER
SHARES AS MAY, AT THE DATE OF THEIR ISSUANCE, BE ISSUED WITHOUT SUBJECTING
THE SECURITIES TO CANADIAN WITHHOLDING TAX].
"Common Stock" means the Common Shares, together with any other class
of capital stock of the Company which has no preference in respect of
dividends or of amounts payable in the event of any voluntary or
involuntary liquidation, dissolution or winding up of the Company and which
is not subject to redemption by the Company.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become
such pursuant to the applicable provisions of this Indenture and thereafter
"Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, its
President or a Vice President, and by its Vice President, Finance, its
Treasurer, an Assistant Treasurer, its Secretary or an Assistant Secretary,
and delivered to the Trustee.
"Consolidated Net Income" for any period means the consolidated net
income (or loss) of the Company and its Subsidiaries for such period
determined on a consolidated basis in accordance with generally accepted
accounting principles; provided that there shall be excluded therefrom (a)
gains or losses on Asset Dispositions by the Company or its Subsidiaries,
(b) all extraordinary gains and extraordinary losses, and (c) the tax
effect of any of the items described in clauses (a) and (b) above.
"Constituent Person" has the meaning specified in Section 1211.
"Conversion Agent" means any Person authorized by the Company to
convert Securities in accordance with Article Thirteen. The Company has
initially appointed the Trustee as its Conversion Agent in the Borough of
Manhattan, The City of New York.
"Conversion Date" has the meaning specified in Section 1202.
"Conversion Price" has the meaning specified in Section 1201.
"Corporate Trust Office" means the office of the Trustee in The City
of New York, New York at which at any particular time its corporate trust
business may be administered.
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<PAGE> 15
"corporation" means a corporation, association, company, joint-stock
company, limited liability company, partnership or business trust.
"Credit Agreement" means the Amended and Restated Credit Agreement
among the Company, PSI, -- as Administration Agent and the various persons
from time to time parties to such agreement as lenders, initially dated as
of August 11, 1997 and amended and restated as of --, 1999, as the same may
be amended, renewed, extended, refinanced, replaced or refunded from time
to time.
"Defaulted Interest" has the meaning specified in Section 307.
"Definitive Security" means any Security other than a Global Security.
"Dollars" and "$" means such coins or currency of the United States of
America which is legal tender for payment of public and private debts.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" refers to the Securities Exchange Act of 1934 as it may
be amended and any successor act thereto.
"Exit Facility" means the senior secured credit facility among the
Company, PSI and the various persons from time to time parties to such
agreement as lenders, in the amount of $-- million, initially dated as of
--, 1999, as the same may be amended, renewed, refinanced, replaced or
refunded from time to time.
"Expiration Date" has the meaning specified in Section 104.
"Expiration Time" has the meaning specified in Section 1204(6).
"generally accepted accounting principles" means, as at any date of
determination, generally accepted accounting principles in the United
States (unless otherwise indicated) and which are applicable as of the date
of determination.
"Global Security" means a Security that is registered in the Security
Register in the name of the U.S. Depositary.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions
hereof including, for all purposes of this instrument and any such
supplemental indenture, the Annexes attached to this instrument.
"Interest Payment Date" means the Stated Maturity of an instalment of
interest on the Securities.
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<PAGE> 16
"Maturity", when used with respect to any Security, means the date on
which the principal of such Security becomes due and payable as therein or
herein provided, whether at the Stated Maturity or by declaration of
acceleration, call for redemption or otherwise.
"Nasdaq" means the Nasdaq National Market and The Nasdaq SmallCap
Market.
"Notice of Default" means a written notice of the kind specified in
Section 501(5).
"Non-electing Share" has the meaning specified in Section 1211.
"NYSE" means the New York Stock Exchange.
"Offer" has the meaning specified in Section 1402(3).
"Offer Expiration Date" has the meaning specified in Section 1402(4).
"Offer to Purchase" has the meaning specified in Section 1402(5).
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, the President or a Vice President, and by the Treasurer, an
Assistant Treasurer, the Secretary or an Assistant Secretary, of the
Company, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company, and who shall be acceptable to the Trustee.
"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 cancelled by the Trustee or delivered
to the Trustee for cancellation;
(ii) Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee or
any Paying Agent (other than the Company) in trust or set aside and
segregated in trust by the Company (if the Company shall act as its
own Paying Agent) for the Holders of such Securities; provided that,
if such Securities are to be redeemed, notice of such redemption has
been duly given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made; and
(iii) Securities which have been paid pursuant to Section 306 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 are present or have given
any request, demand, authorization, direction,
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<PAGE> 17
notice, consent or waiver hereunder, 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 relying upon any
such determination as to the presence of a quorum or any such request, demand,
authorization, direction, notice, consent or waiver or other action, 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.
"Paying Agent" means any Person authorized by the Company to pay the
principal of or interest on any Securities on behalf of the Company.
"Permitted Holder" means any Person that beneficially owns more than 10% of
the outstanding Common Shares as of the [DATE OF THIS INDENTURE].
"Person" means any individual, corporation, partnership, joint venture,
trust, unincorporated organization or government or any agency or political
subdivision thereof. For purposes of Article 14, "Person" has the meaning
specified in Section 1402(6).
"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 306 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.
"Purchase Price" has the meaning specified in Section 1402(7).
"Purchased Shares" has the meaning specified in Section 1204(6).
"Redeemable Stock" of any Person means any Capital Stock of 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 indebtedness
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;
a "Redemption Change of Control" shall be deemed to have occurred (unless
the Company is discharged from its obligations with respect to the Securities in
accordance with Article 4) at the time, after the original issuance of the
Securities, of: (i) an event or series of events by which any Person or other
entity or Group of Persons shall, as a result of (A) a tender or exchange offer,
open market purchases or privately negotiated purchases, or (B) a merger,
consolidation, amalgamation or otherwise, have become the beneficial owner of
more than 50% of the aggregate voting power of all classes of Voting Stock of
the Company; or (ii) the Company is amalgamated or consolidated with or merged
into another corporation with the effect that immediately after such transaction
the shareholders of the Company immediately prior to such
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<PAGE> 18
transaction beneficially own less than a majority of the voting power of all
classes of Voting Stock of the Person surviving such transaction;
"Redemption Date", when used with respect to any Security to be redeemed,
means the date fixed for such redemption by or pursuant to this Indenture.
"Redemption Price", when used with respect to any Security to be redeemed,
means the price at which it is to be redeemed pursuant to this Indenture.
"Reference Date" has the meaning specified in Section 1204(4).
"Regular Record Date" for the interest payable on any Interest Payment Date
means the -- or -- (whether or not a Business Day), as the case may be, next
preceding such Interest Payment Date.
"Responsible Officer", when used with respect to the Trustee, means the
chairman or any vice-chairman of the board of directors, the chairman or any
vice-chairman of the executive committee of the board of directors, the chairman
of the trust committee, the president, any vice president, the secretary, any
assistant secretary, the treasurer, any assistant treasurer, the cashier, any
assistant cashier, any trust officer or assistant trust officer, the controller
or any assistant controller or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his knowledge of
and familiarity with the particular subject.
"Securities" or "Security" means securities designated in the first
paragraph of the RECITALS OF THE COMPANY.
"Securities Act" means the U.S. Securities Act of 1933 and (unless the
context otherwise requires) includes the rules and regulations of the Commission
promulgated thereunder.
"Security" means any security issued in substantially the form set forth in
sections 202, 203 and 204 and registered in the Security Register.
"Security Register" and "Security Registrar" have the respective meanings
specified in Section 305.
"Senior Indebtedness" has the meaning specified in Section 1301.
"Senior Subordinated Notes" means the 6% Senior Subordinated Notes due --,
2009 of the Company.
"Significant Subsidiary" means, at any date of determination, (a) any
Subsidiary of the Company that, together with any of its Subsidiaries (i) for
the most recent fiscal year of the Company accounted for more than 15% of the
consolidated revenues of the Company and its Subsidiaries or (ii) as of the end
of such fiscal year, owned more than 15% of the consolidated assets of the
Company and its Subsidiaries, all as set forth on the consolidated financial
statements
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<PAGE> 19
of the Company and its Subsidiaries for such year prepared in accordance with
generally accepted accounting principles.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any Security or any
installment of interest thereon, means the date specified in such Security as
the fixed date on which the principal of such Security or such installment of
interest is due and payable.
"Subsidiary" of any Person means (i) a corporation more than 50% of the
combined voting power of the outstanding Voting Stock of which is owned,
directly or indirectly, by such Person or by one or more other Subsidiaries of
such Person or by such Person and one or more Subsidiaries thereof, (ii) any
other Person (other than a corporation) in which such Person, or one or more
other Subsidiaries of such Person or such Person and one or more other
Subsidiaries thereof, directly or indirectly, has at least a majority ownership
and power to direct the policies, management and affairs thereof or (iii) any
other Person not described in clauses (i) and (ii) above in which such Person,
or one more other Subsidiaries of such Person or such Person and one or more
other Subsidiaries thereof, directly or indirectly, has a 50% ownership and the
power, pursuant to a written contract or agreement, to direct the policies and
management or the financial and other affairs thereof.
"Successor Security" of any particular Security means every Security issued
after, and 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 306 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.
"Trading Days" of a class of Common Stock means (i) if such class of Common
Stock is quoted on Nasdaq or on any United States national securities exchange,
days on which Nasdaq or such national securities exchange is open for business;
(ii) if such class of Common Stock is quoted on a system of automated
dissemination of quotations of securities prices, days on which trades may be
effected through such system; or (iii) if such class of Common Stock is not
listed or admitted for trading on the Nasdaq or other United States national
securities exchange or quoted on any system of automated dissemination of
quotation of securities prices, days on which such class of Common Stock is
traded regular way in the over-the-counter market and for which a closing bid
and a closing asked price for such class of Common Stock are available.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force at
the date as of which this instrument was executed, except as provided in Section
905; provided, however, that in the event 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 Person named as the "Trustee" in the first paragraph of
this instrument until a successor Trustee shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Trustee" shall mean
such successor Trustee.
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<PAGE> 20
"U.S. Depositary" means The Depositary Trust Company until a successor U.S.
Depositary shall have become such pursuant to the applicable provisions of this
Indenture, and thereafter "U.S. Depositary" shall mean such successor U.S.
Depositary.
"United States" means 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.
"Vice President", when used with respect to the Company or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "vice president".
"Voting Stock" of any Person means Capital Stock of such Person which
ordinarily has voting power for the election of directors (or persons performing
similar functions) of such Person, whether at all times or only so long as no
senior class of securities has such voting power by reason of any contingency.
"Wholly Owned Subsidiary" of any Person means a Subsidiary of such Person
all of the outstanding Capital Stock or other ownership interests of which
(other than directors' qualifying shares) shall at the time be owned by such
Person or by one or more Wholly Owned Subsidiaries of such Person or by such
Person and one or more Wholly Owned Subsidiaries of such Person;
SECTION 102. 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. Each such certificate or opinion shall be given in the form of an
Officers' Certificate, if to be given by an officer 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 requirement set forth in
this Indenture.
Every certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture shall include
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition 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 has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition
has been complied with (which, in the case of an Opinion of Counsel may be
limited to reliance on an Officers' Certificate as to matters of fact); 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 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or opinion of counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. Acts of Holders; Record Date.
Any request, demand, authorization, direction, notice, consent, waiver or
other action provided by this Indenture to be given or taken by Holders may be
embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Holders in person or by agent duly appointed in writing;
and, except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments are delivered to the Trustee and,
where it is hereby expressly required, to the Company. Such instrument or
instruments (and the action embodied therein and evidenced thereby) are herein
sometimes referred to as the "Act" of the Holders signing such instrument or
instruments. Proof of execution of any such instrument or of a writing
appointing any such agent shall be sufficient for any purpose of this Indenture
and (subject to Section 601) conclusive in favor of the Trustee and the Company,
if made in the manner provided in this Section.
The fact and date of the execution by any Person of any such instrument or
writing may be proved by the affidavit of a witness of such execution or by a
certificate of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof. Where such execution is by
a signer acting in a capacity other than his individual capacity, such
certificate or affidavit shall also constitute sufficient proof of his
authority. The fact and date of the execution of any such instrument or writing,
or the authority of the Person executing the same, may also be proved in any
other manner which the Trustee deems sufficient.
The ownership of Securities shall be proved by the Security Register.
11
<PAGE> 22
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 the Holder of every Security 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 action is made upon such
Security.
The Company may set any day as a record date for the purpose of determining
the Holders of Outstanding Securities entitled to give, make or take any
request, demand, authorization, direction, notice, consent, waiver or other
action provided or permitted by this Indenture to be given, made or taken by
Holders of Securities, provided that the Company may not set a record date for,
and the provisions of this paragraph shall not apply with respect to, the giving
or making of any notice, declaration, request or direction referred to in the
next paragraph. If not set by the Company prior to the first solicitation of a
Holder made by any Person in respect of any such matter referred to in the
foregoing sentence, the record date for any such matter shall be the 30th day
(or, if later, the date of the most recent list of Holders required to be
provided pursuant to Section 701) prior to such first solicitation. If any
record date is set pursuant to this paragraph, the Holders of Outstanding
Securities on such record date, and no other Holders, shall be entitled to take
the relevant action, whether or not such Holders remain Holders after such
record date; provided that no such action shall be effective hereunder unless
taken on or prior to the applicable Expiration Date by Holders of the requisite
principal amount of Outstanding Securities on such record date. Nothing in this
paragraph shall be construed to prevent the Company from setting a new record
date for any action for which a record date has previously been set pursuant to
this paragraph (whereupon the record date previously set shall automatically and
with no action by any Person be cancelled and of no effect), and nothing in this
paragraph shall be construed to render ineffective any action taken by Holders
of the requisite principal amount of Outstanding Securities on the date such
action is taken. Promptly after any record date is set pursuant to this
paragraph, the Company, at its own expense, shall cause notice of such record
date, the proposed action by Holders and the applicable Expiration Date to be
given to the Trustee in writing and to each Holder of Securities in the manner
set forth in Section 106.
The Trustee may set any day as a record date for the purpose of determining
the Holders of Outstanding Securities entitled to join in the giving or making
of (i) any Notice of Default, (ii) any declaration of acceleration referred to
in Section 502, (iii) any request to institute proceedings referred to in
Section 507(2) or (iv) any direction referred to in Section 512. If any record
date is set pursuant to this paragraph, the Holders of Outstanding Securities on
such record date, and no other Holders, shall be entitled to join in such
notice, declaration, request or direction, whether or not such Holders remain
Holders after such record date; provided that no such action shall be effective
hereunder unless taken on or prior to the applicable Expiration Date by Holders
of the requisite principal amount of Outstanding Securities on such record date.
Nothing in this paragraph shall be construed to prevent the Trustee from setting
a new record date for any action for which a record date has previously been set
pursuant to this paragraph (whereupon the record date previously set shall
automatically and with no action by any Person be cancelled and of no effect),
and nothing in this paragraph shall be construed to render ineffective any
action taken by Holders of the requisite principal amount of Outstanding
Securities on the date such action is taken. Promptly after any record date is
set pursuant to this paragraph, the Trustee, at the Company's expense, shall
cause notice of such record date, the proposed action by Holders and the
applicable Expiration Date to be given to the Company in writing and to each
Holder of Securities in the manner set forth in Section 106.
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<PAGE> 23
With respect to any record date set pursuant to this Section, the party
hereto which sets such record dates may designate any day as the "Expiration
Date" and from time to time may change the Expiration Date to any earlier or
later day; provided that no such change shall be effective unless notice of the
proposed new Expiration Date is given to the other party hereto in writing, and
to each Holder of Securities in the manner set forth in Section 106, on or prior
to the existing Expiration Date. If an Expiration Date is not designated with
respect to any record date set pursuant to this Section, the party hereto which
set such record date shall be deemed to have initially designated the 180th day
after such record date as the Expiration Date with respect thereto, subject to
its right to change the Expiration Date as provided in this paragraph.
Notwithstanding the foregoing, no Expiration Date shall be later than the 180th
day after the applicable record date.
Without limiting the foregoing, a Holder entitled hereunder to take any
action hereunder with regard to any particular Security may do so with regard to
all or any part of the principal amount of such Security or by one or more duly
appointed agents each of which may do so pursuant to such appointment with
regard to all or any part of such principal amount.
SECTION 105. 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 or to it at [NAME AND
ADDRESS OF TRUSTEE] Attention: --, 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, to the Company
addressed to it at the address of its 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.
SECTION 106. Notice to Holders: Waiver.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at his address as it appears in the Security Register, not later
than the latest date (if any), and not earlier than the earliest date (if any),
prescribed for the giving of such notice. In any case where notice to Holders is
given by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder shall affect the sufficiency of such
notice with respect to other Holders. Where this Indenture provides for notice
in any manner, such notice may be waived in writing by the Person entitled to
receive such notice, either before or after the event, and such waiver shall be
the equivalent of such notice. Waivers of notice by Holders shall be filed with
the Trustee, but such filing shall not be a condition precedent to the validity
of any action taken in reliance upon such waiver.
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<PAGE> 24
In case by reason of the suspension of regular mail service or by reason of
any other cause it shall be impracticable to give such notice by mail, then such
notification as shall be made with the approval of the Trustee shall constitute
a sufficient notification for every purpose hereunder.
SECTION 107. Conflict with Trust Indenture Act.
Until such time as this Indenture shall be qualified under the Trust
Indenture Act, this Indenture, the Company and the Trustee shall be deemed for
all purposes hereof to be subject to and governed by the Trust Indenture Act to
the same extent as would be the case if this Indenture were so qualified on the
date hereof. If any provision hereof limits, qualifies or conflicts with a
provision of the Trust Indenture Act that is required under such Act to be a
part of and govern this Indenture, the latter provision shall control. If any
provision of this Indenture modifies or excludes any provision of the Trust
Indenture Act that may be so modified or excluded, the latter provision shall be
deemed to apply to this Indenture as so modified or to be excluded, as the case
may be.
SECTION 108. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
SECTION 109. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall bind
its successors and assigns, whether so expressed or not.
SECTION 110. Separability Clause.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 111. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied, shall
give to any Person, other than the parties hereto and their successors hereunder
and the Holders of Securities, any benefit or any legal or equitable right,
remedy or claim under this Indenture. The provisions of Article Fourteen are
intended to be for the benefit of, and shall be enforceable directly by, the
holders of Senior Indebtedness.
SECTION 112. Governing Law.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date, Purchase Date
or Stated Maturity of any Security or the last day on which a Holder of a
Security has a right to convert his Security shall not be a Business Day, then
(notwithstanding any other provision of this Indenture or of the
14
<PAGE> 25
Securities) payment of interest or principal or conversion of such security need
not be made on such date, but may be made on the next succeeding Business Day
with the same force and effect as if made on the Interest Payment Date,
Redemption Date, or Purchase Date, or at the Stated Maturity, provided, that no
interest shall accrue for the period from and after such Interest Payment Date,
Redemption Date, or Purchase Date, or Stated Maturity or last day for
conversion, as the case may be.
SECTION 114. Consent to Service; Jurisdiction.
The Company and the Trustee agree that any legal suit, action or proceeding
arising out of or relating to this Indenture, and the Company agrees that any
legal suit, action or proceeding arising out of or relating to the Securities,
may be instituted in any federal or state court in the Borough of Manhattan, The
City of New York, waives any objection which it may now or hereafter have to the
laying of the venue of any such legal suit, action or proceeding, waives any
immunity from jurisdiction or to service of process in respect of any such suit,
action or proceeding, and irrevocably submits to the jurisdiction of any such
court in any such suit, action or proceeding. The Company further submits to the
jurisdiction of the courts of its own corporate domicile in any legal suit,
action or proceeding arising out of or relating to this Indenture or the
Securities. The Company hereby designates and appoints [CT CORPORATION SYSTEM,
1633 BROADWAY, NEW YORK, NEW YORK 10019] as its authorized agent upon which
process may be served in any legal suit, action or proceeding arising out of or
relating to this Indenture or the Securities which may be instituted in any
federal or state court in the Borough of Manhattan, The City of New York, New
York, and agrees that service of process upon such agent, and written notice of
said service to the Company by the Person serving the same, shall be deemed in
every respect effective service of process upon the Company in any such suit,
action or proceeding and further designates its domicile, the domicile of
[CT CORPORATION SYSTEM] specified above and any domicile may have in the future
as its domicile to receive any notice hereunder (including service of process).
If for any reason [CT CORPORATION SYSTEM] (or any successor agent for this
purpose) shall cease to act as agent for service of process as provided above,
the Company will promptly appoint a successor agent for this purpose reasonably
acceptable to the Trustee. The Company agrees to take any and all actions as may
be necessary to maintain such designation and appointment of such agent in full
force and effect.
SECTION 115. No Recourse Against Others.
A director, officer, employee or shareholder, as such, of the Company shall
not have any liability for any obligations of the Company under the Securities
or this Indenture or for any claim based on, in respect of or by reason of such
obligations or their creation. By accepting a Security, each Holder shall waive
and release all such liability. Such waiver and release shall be part of the
consideration for the issue of the Securities.
SECTION 116. Multiple Originals.
The parties may sign any number of copies of this Indenture. Each signed
copy shall be an original, but all of them together represent the same
agreement. One signed copy is enough to prove this Indenture.
15
<PAGE> 26
ARTICLE 2
Security Forms
SECTION 201. Forms Generally.
The Securities and the Trustee's certificates of authentication shall be in
substantially the forms set forth in this Article, 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 securities exchange or as may,
consistently herewith, be determined by the officers executing such Securities,
as evidenced by their execution of the Securities.
The conversion notice shall be in substantially the form set forth in the
Annex to the Indenture.
The definitive Securities shall be printed, lithographed or engraved or
produced by any combination of these methods on steel engraved borders or may be
produced in any other manner, provided that such manner is permitted by the
rules of any securities exchange on which the Securities may be listed, all as
determined by the officers executing such Securities, as evidenced by their
execution of such Securities.
Securities shall be issued in the form of one or more Global Securities in
definitive, fully registered form without interest coupons, substantially in the
form of Security set forth in Sections 202 and 203, with such applicable legends
as are provided for in Section 202, except as otherwise permitted herein, and
shall be registered in the name of the U.S. Depositary or its nominee and
deposited with the Trustee, at its Corporate Trust Office, as custodian for the
U.S. Depositary, duly executed by the Company and authenticated by the Trustee
as hereinafter provided, for credit by the U.S. Depositary to the respective
accounts of beneficial owners of the Securities represented thereby (or such
other accounts as they may direct). Such Global Securities, together with their
Successor Securities which are Global Securities are collectively herein called
the "Global Security."
SECTION 202. Form of Face of Security.
[INCLUDE IF SECURITY IS A GLOBAL SECURITY - THIS SECURITY IS A GLOBAL
SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS
REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY MAY
NOT BE EXCHANGED IN WHOLE OR IN PART FOR A SECURITY REGISTERED AND NO TRANSFER
OF THIS SECURITY IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY
PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE.]
[INCLUDE IF SECURITY IS A GLOBAL SECURITY AND THE DEPOSITORY TRUST COMPANY
IS THE U.S. DEPOSITARY - UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, 55 WATER STREET, NEW
16
<PAGE> 27
YORK, NEW YORK 10004, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF CEDE & CO., AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS
IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF CEDE & CO., ANY TRANSFER, PLEDGE
OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
BECAUSE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
17
<PAGE> 28
PHILIP SERVICES CORP.
3% Convertible Subordinated Notes due --, 2019
CUSIP No. --
No.________________ $________________
Philip Services Corp., a corporation duly organized and existing under the
laws of the Province of [ONTARIO], Canada (herein called the "Company", which
term includes any successor Person under the Indenture hereinafter referred to),
for value received, hereby promises to pay to __________, or registered assigns,
the principal sum of __________ Dollars [IF THE SECURITY IS A GLOBAL SECURITY,
THEN INSERT - , OR SUCH OTHER PRINCIPAL AMOUNT (WHICH, WHEN TAKEN TOGETHER WITH
THE PRINCIPAL AMOUNTS OF ALL OTHER OUTSTANDING SECURITIES, SHALL NOT EXCEED $--
IN THE AGGREGATE AT ANY TIME) AS MAY BE SET FORTH IN THE RECORDS OF THE TRUSTEE
HEREINAFTER REFERRED TO IN ACCORDANCE WITH THE INDENTURE,] on --, 2019, and to
pay interest thereon from --, 2002 or from the most recent Interest Payment Date
to which interest has been paid or duly provided for, semi-annually on -- and --
in each year, commencing --, 2003, at the rate of 3% per annum, until the
principal hereof is paid or made available for payment.
The interest so payable, and punctually paid or duly provided for, on any
Interest Payment Date will, as provided in such Indenture, be paid to the Person
in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest, which shall be the -- or -- (whether or not a Business Day), as the
case may be, next preceding such Interest Payment Date. Any such interest not so
punctually paid or duly provided for will forthwith cease to be payable to the
Holder on such Regular Record Date and may either be paid to the Person in whose
name this Security (or one or more Predecessor Securities) is registered at the
close of business on a Special Record Date for the payment of such Defaulted
Interest to be fixed by the Trustee, notice whereof shall be given to Holders of
Securities not less than 10 days prior to such Special Record Date, or be paid
at any time in any other lawful manner not inconsistent with the requirements of
any securities exchange on which the Securities may be listed, and upon such
notice as may be required by such exchange, all as more fully provided in said
Indenture. Interest on this Security shall be computed on the basis set forth in
the Indenture.
Payment of the principal of and interest on this Security will be made at
the office or agency of the Company maintained for that purpose in the Borough
of Manhattan, The City of New York, in such coin or currency of the United
States of America as at the time of payment is legal tender for payment of
public and private debts; provided, however, that at the option of the Company
payment of interest may be made by check mailed to the address of the Person
entitled thereto as such address shall appear in the Security Register.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
18
<PAGE> 29
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated:
PHILIP SERVICES CORP.
[CORPORATE SEAL]
By:____________________________________
Name:
Title:
Attest:
_________________________________
Name:
Title:
19
<PAGE> 30
SECTION 203. Form of Reverse of Security.
This Security is one of a duly authorized issue of Securities of the
Company designated as its 3% Convertible Subordinated Notes due --, 2019 (herein
called the "Securities"), limited in aggregate principal amount to $--, issued
and to be issued under an Indenture, dated as of --, 1999 (herein called the
"Indenture"), between the Company and [NAME OF TRUSTEE], as Trustee (herein
called the "Trustee", which term includes any successor trustee under the
Indenture), to which Indenture and all indentures supplemental thereto reference
is hereby made for a statement of the respective rights, limitations of rights,
duties and immunities thereunder of the Company, the Trustee and the Holders of
the Securities and of the terms upon which the Securities are, and are to be,
authenticated and delivered.
Upon the occurrence of a Redemption Change of Control, the Securities are
subject to redemption upon not less than 30 nor more than 60 days' notice by
mail, as a whole or in part, at the election of the Company, at a Redemption
Price equal to 100% of the principal amount then outstanding, together in the
case of any such redemption with accrued interest to but excluding the
Redemption Date, but interest installments whose Stated Maturity is on or prior
to such Redemption Date will be payable to the Holders of such Securities, or
one or more Predecessor Securities, of record at the close of business on the
relevant Regular Record Dates referred to on the face hereof, all as provided in
the Indenture.
Subject to and upon compliance with the provisions of the Indenture, the
Holder of this Security is entitled, at its option, at any time, or in case this
Security or a portion hereof is called for redemption or the Holder hereof has
tendered this Security or a portion thereof to an Offer to Purchase, then in
respect of this Security until and including, but (unless the Company defaults
in making the payment due upon redemption or purchase, as the case may be) not
after, the close of business on the Redemption Date or the Purchase Date, as the
case may be, to convert this Security (or any portion of the principal amount
hereof that is an integral multiple of $1.00), into fully paid and nonassessable
Common Shares of the Company at an initial Conversion Price of $30.00 for each
Common Share (or at the current adjusted Conversion Price if an adjustment has
been made as provided in the Indenture) by surrender of this Security, duly
endorsed or assigned to the Company or in blank and, in case such surrender
shall be made during the period from the close of business of any Regular Record
Date next preceding any Interest Payment Date to the opening of business on such
Interest Payment Date ("Interest Period") (except Securities called for
redemption on a Redemption Date or to be purchased on a Purchase Date during, in
each case, such Interest Period), also accompanied by payment in same day or
other funds acceptable to the Company of an amount equal to the interest payable
on such Interest Payment Date on the principal amount of this Security then
being converted, and also the conversion notice hereon duly executed, to the
Company at the Corporate Trust Office of the Trustee, or at such other office or
agency of the Company, subject to any laws or regulations applicable thereto and
subject to the right of the Company to terminate the appointment of any
Conversion Agent as may be designated by it for such purpose in the Borough of
Manhattan, The City of New York, or at such other offices or agencies as the
Company may designate (each a Conversion Agent). Subject to the aforesaid
requirement for payment and, in the case of a conversion after the Regular
Record Date next preceding any Interest Payment Date and on or before such
Interest Payment Date, to the right of the Holder of this Security (or any
Predecessor Security) of record at such Regular Record Date to receive an
installment of interest, no cash payment or adjustment is to be made on
conversion, if the date of conversion is not an Interest Payment Date, for
interest accrued hereon from the Interest Payment Date next preceding the date
of conversion, or for dividends on the Common Shares issued on conversion
hereof. The Company shall thereafter deliver to the Holder the fixed number of
shares of Common Shares (together with any cash adjustment, as provided in the
Indenture) into which
20
<PAGE> 31
this Security is convertible and such delivery will be deemed to satisfy the
Company's obligation to pay the principal amount of this Security. No fractions
of shares or scrip representing fractions of shares will be issued on
conversion, but instead of any fractional interest (calculated to the nearest
1/100th of a share) the Company shall pay a cash adjustment as provided in the
Indenture. The Conversion Price is subject to adjustment as provided in the
Indenture. In addition, the Indenture provides that in case of certain
amalgamations, consolidations or mergers to which the Company is a party or the
transfer of all or substantially all of the property and assets of the Company,
the Indenture shall be amended, without the consent of any holders of
Securities, so that this Security, if then Outstanding, will be convertible
thereafter, during the period this Security shall be convertible as specified
above, only into the kind and amount of securities, cash and other property
receivable upon such amalgamation, consolidation, merger or transfer by a holder
of the number of Common Shares of the Company into which this Security could
have been converted immediately prior to such amalgamation, consolidation,
merger or transfer [SUBJECT, HOWEVER, TO ANY REQUIREMENTS NECESSARY TO ENSURE
THAT THE SECURITIES WILL BE AND WILL REMAIN EXEMPT FROM CANADIAN WITHHOLDING TAX
INCLUDING, WITHOUT LIMITATION, THE REQUIREMENT IN EFFECT ON THE DATE HEREOF THAT
A HOLDER OF SECURITIES SHALL NOT BE ENTITLED TO RECEIVE SHARES, OTHER SECURITIES
OR PROPERTY, OTHER THAN SHARES THAT ARE "PRESCRIBED SECURITIES" AS DEFINED IN
REGULATION 6208 TO THE INCOME TAX ACT (CANADA) IN THE EVENT THAT ANY SUCH
AMALGAMATION, CONSOLIDATION, MERGER OR TRANSFER OCCURS ON OR PRIOR TO FIVE YEARS
AFTER THE DATE OF ORIGINAL ISSUE OF THE SECURITIES (ASSUMING SUCH HOLDER OF
COMMON SHARES IS NOT A CONSTITUENT PERSON, FAILED TO EXERCISE ANY RIGHTS OF
ELECTION AND RECEIVED PER SHARE THE KIND AND AMOUNT RECEIVED PER SHARE BY A
PLURALITY OF NON-ELECTING SHARES AND FURTHER ASSUMING, IF SUCH AMALGAMATION,
CONSOLIDATION, MERGER OR TRANSFER OCCURS PRIOR TO THE LATER OF 60 DAYS FOLLOWING
THE LATEST OF (I) -- AND (II) THE LATEST DATE OF ORIGINAL ISSUE OF ANY SECURITY,
THAT THE SECURITY WAS CONVERTIBLE AT THE TIME OF SUCH OCCURRENCE AT THE
CONVERSION PRICE SPECIFIED ABOVE AS ADJUSTED FROM THE ISSUE DATE OF SUCH
SECURITY TO SUCH TIME AS PROVIDED IN THE INDENTURE)]. No adjustment in the
Conversion Price will be made until such adjustment would require an increase or
decrease of at least one percent of such price, provided that any adjustment
that would otherwise be made will be carried forward and taken into account in
the computation of any subsequent adjustment.
The Indenture provides that, subject to certain conditions, if a Change of
Control occurs, the Company shall be required to make an Offer to Purchase for
all of the Securities at the following prices (expressed as percentages of the
principal amount) if the Purchase Date is during the 12-month period beginning
- -- of each of the years indicated below:
<TABLE>
<CAPTION>
Purchase
Year Price
---- --------
<S> <C>
1999 64.45915%
2000 68.32670%
2001 72.42630%
2002 76.77187%
2003 81.37819%
2004 86.26088%
2005 88.84870%
2006 91.51417%
2007 94.25959%
2008 97.08738%
</TABLE>
21
<PAGE> 32
and thereafter at a price equal to 100% of the principal amount, in each case
plus accrued interest to the Purchase Date (provided, however, that installments
of interest whose Stated Maturity is on or prior to the Purchase 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 Record
Dates).
In the event of redemption, purchase or conversion of this Security in part
only, a new Security or Securities for the unredeemed, unpurchased or
unconverted portion hereof will be issued in the name of the Holder hereof upon
the cancellation hereof.
The indebtedness evidenced by this Security is, to the extent and in the
manner provided in the Indenture, subordinate and subject in right of payment to
the prior payment in full of all Senior Indebtedness of the Company, and this
Security is issued subject to such provisions of the Indenture with respect
thereto. Each Holder of this Security, by accepting the same, (a) agrees to and
shall be bound by such provisions, (b) authorizes and directs the Trustee on his
behalf to take such action as may be necessary or appropriate to effectuate the
subordination so provided and (c) appoints the Trustee his attorney-in-fact for
any and all such purposes.
If an Event of Default shall occur and be continuing, the principal of all
the Securities may be declared due and payable in the manner and with the effect
provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities under the Indenture at
any time by the Company and the Trustee with the consent of the Holders of a
majority in aggregate principal amount of the Securities at the time
Outstanding. The Indenture also contains provisions permitting the Holders of
specified percentages in aggregate principal amount of the Securities at the
time Outstanding, on behalf of the Holders of all the Securities, to waive
compliance by the Company with certain provisions of the Indenture and certain
past defaults under the Indenture and their consequences. Any such consent or
waiver by the Holder of this Security shall be conclusive and binding upon such
Holder and upon all future Holders of this Security and of any Security issued
upon the registration of transfer hereof or in exchange herefor or in lieu
hereof, whether or not notation of such consent or waiver is made upon this
Security.
No reference herein to the Indenture and no provision of this Security or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and interest on this
Security at the times, place and rate, and in the coin or currency, herein
prescribed or to convert this Security as provided in the Indenture.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Security is registrable in the Security Register,
upon surrender of this Security for registration of transfer at the office or
agency of the Company in the Borough of Manhattan, The City of New York, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed by, the
Holder hereof or his attorney duly authorized in writing, and thereupon one or
more new Securities, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
The Securities are issuable only in registered form without coupons in
denominations of $1.00 and any integral multiple thereof. As provided in the
Indenture and subject to certain limitations
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therein set forth, Securities are exchangeable for a like aggregate principal
amount of Securities of a different authorized denomination, as requested by the
Holder surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this 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 this Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
Interest on this Security shall be computed on the basis of a 360-day year
of twelve 30-day months. The yearly rate of interest that is equivalent to the
rate payable under the Securities is the rate payable multiplied by the actual
number of days in the year and divided by 360 and is disclosed herein solely for
purpose of providing the disclosure required by the Interest Act (Canada).
All terms used in this Security which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
The Indenture and this Security shall be governed by and construed in
accordance with the laws of the State of New York.
SECTION 204. Form of Trustee's Certificate of Authentication.
This is one of the Securities referred to in the within-mentioned Indenture.
[NAME OF TRUSTEE]
in its capacity as Trustee
By: ______________________________
Authorized Officer
SECTION 205. Form of Conversion Notice.
The form of conversion notice is attached as Annex A-1 hereto.
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ARTICLE 3
The Securities
SECTION 301. Title and Terms.
The aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is limited to $--, except for Securities
authenticated and delivered upon registration of transfer of, or in exchange
for, or in lieu of, other Securities pursuant to Section 304, 305, 306, 906,
1108, 1202 or 1401.
The Securities shall be known and designated as the "3% Convertible Notes
due --, 2019" of the Company. Their Stated Maturity shall be --, 2019 and they
shall bear interest at the rate of 3% per annum, from --, 2002 or from the most
recent Interest Payment Date to which interest has been paid or duly provided
for, as the case may be, payable semi-annually on -- and --, commencing --,
2003, until the principal thereof is paid or made available for payment.
The principal of and interest on the Securities shall be payable at the
office or agency of the Company in the City of New York, New York maintained for
such purpose or at any other office or agency maintained by the Company for such
purpose; provided, however, that at the option of the Company payment of
interest may be made by check mailed to the address of the Person entitled
thereto as such address shall appear in the Security Register.
The Securities shall be redeemable as provided in Article Eleven.
The Securities shall be convertible as provided in Article Twelve.
The Securities shall be subordinated in right of payment to Senior
Indebtedness of the Company as provide in Article Thirteen.
SECTION 302. Denominations.
The Securities shall be issuable only in registered form without coupons
and only in denominations of $1.00 and any integral multiple thereof.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its Chairman
of the Board, its President or one of its Vice Presidents, under a facsimile of
its corporate seal reproduced thereon attested by its Secretary. The signature
of any of these officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals who
were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
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At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities 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 as in this Indenture
provided and not otherwise.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such Security
has been duly authenticated and delivered hereunder.
In case the Company, pursuant to Article Eight, shall be amalgamated,
consolidated or merged with or into any other Person or shall convey, transfer,
lease or otherwise dispose of substantially all of its properties and assets to
any Person, and the successor Person resulting from such amalgamation,
consolidation, or surviving such merger, or into which the Company shall have
been merged, or the successor Person which shall have received a conveyance,
transfer, lease or other disposition as aforesaid, shall have executed an
indenture supplemental hereto with the Trustee pursuant to Article Eight, any of
the Securities authenticated or delivered prior to such amalgamation,
consolidation, merger, conveyance, transfer, lease or other disposition may,
from time to time, at the request of the successor Person, be exchanged for
other Securities executed in the name of the successor Person with such changes
in phraseology and form as may be appropriate, but otherwise in substance of
like tenor as the Securities surrendered for such exchange and of like principal
amount; and the Trustee upon Company Order of the successor Person, shall
authenticate and deliver replacement Securities as specified in such request for
the purpose of such exchange. If replacement Securities shall at any time be
authenticated and delivered in any new name of a successor Person pursuant to
this Section in exchange or substitution for or upon registration of transfer of
any Securities, such successor Person, at the option of any Holder but without
expense to such Holder, shall provide for the exchange of all Securities at the
time outstanding held by such Holder for Securities authenticated and delivered
in such new name.
SECTION 304. Temporary Securities.
Pending the preparation of definitive Securities, the Company may execute,
and upon Company Order the Trustee shall authenticate and deliver, temporary
Securities which are printed, lithographed, typewritten, mimeographed or
otherwise produced, in any authorized denomination, substantially of the tenor
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 evidenced by their
execution of such Securities.
If temporary Securities are issued, the Company will cause definitive
Securities to be prepared without unreasonable delay. After the preparation of
definitive Securities, the temporary Securities shall be exchangeable for
definitive Securities upon surrender of the temporary Securities at any office
or agency of the Company designated pursuant to Section 1002, without charge to
the Holder. Upon surrender for cancellation of any one or more temporary
Securities the Company shall execute and the Trustee shall authenticate and
deliver in exchange therefor a like principal amount of definitive Securities
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of authorized denominations. Until so exchanged the temporary Securities shall
in all respects be entitled to the same benefits under this Indenture as
definitive Securities.
SECTION 305. Registration, Registration of Transfer and Exchange.
(a) Registration, Registration of Transfer and Exchange Generally. The
Company shall cause to be kept at the Corporate Trust Office of the Trustee a
register (the register maintained in such office and in any other office or
agency designated pursuant to Section 1002 being herein sometimes collectively
referred to as the "Security Register") in which, subject to such reasonable
regulations as it may prescribe, the Company shall provide for the registration
of Securities and of transfers and exchanges of Securities. The Trustee is
hereby appointed "Security Registrar" for the purpose of registering Securities
and transfers and exchanges of Securities as herein provided. Such Security
Register shall distinguish between Original Securities and Exchange Securities.
Upon surrender for registration of transfer of any Security at an office or
agency of the Company designated pursuant to Section 1002 for such purpose, the
Company shall execute, and the Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Securities of
any authorized denominations and of a like aggregate principal amount bearing
such restrictive legends as may be required by this Indenture.
At the option of the Holder, and subject to the other provisions of this
Section 305, Securities may be exchanged for other Securities of any authorized
denominations and of a like aggregate principal amount, upon surrender of the
Securities to be exchanged at such office or agency. Whenever any Securities are
so surrendered for exchange, and subject to the other provisions of this Section
305, 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 exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or for
exchange shall (if so required by the Company or the Security Registrar) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
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 of transfer or exchange of Securities, other than
exchanges pursuant to Section 304, 906, 1108, 1202 or 1401.
The Company shall not be required (i) to issue, register the transfer of or
exchange any Security during a period beginning at the opening of business 15
days before the day of the mailing of a notice of redemption of Securities
selected for redemption under Section 1104 and ending at the close of business
on the day of such mailing, or (ii) to register the transfer of or exchange any
Security so selected for redemption in whole or in part, except the unredeemed
portion of any Security being redeemed in part.
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The provisions of clauses (1), (2), (3), (4) and (5) below shall apply only
to Global Securities:
(1) Each Global Security authenticated under this Indenture shall be
registered in the name of the U.S. Depositary or a nominee thereof and
delivered to the U.S. Depositary or a nominee thereof or custodian
therefor, and each such Global Security shall constitute a single Security
for all purposes of this Indenture.
(2) Notwithstanding any other provision in this Indenture or the
Securities, no Global Security may be exchanged in whole or in part for
Securities registered, and no transfer of a Global Security in whole or in
part may be registered, in the name of any Person other than the U.S.
Depositary or a nominee thereof unless (A) the U.S. Depositary (i) has
notified the Company that it is unwilling or unable to continue as U.S.
Depositary for such Global Security or (ii) has ceased to be a clearing
agency registered under the Exchange Act, and in either case the Company
thereupon fails to appoint a successor depositary within 120 days of such
notice, (B) the Company, at its option, executes and delivers to the
Trustee a Company Order that such Global Security shall be exchanged in
whole for Securities that are not Global Securities, or (C) there shall
have occurred and be continuing an Event of Default with respect to such
Global Security.
(3) Securities issued in exchange for a Global Security or any portion
thereof pursuant to clause (2) above shall be issued in definitive, fully
registered form, without interest coupons, shall have an aggregate
principal amount equal to that of such Global Security or portion thereof
to be so exchanged, shall be registered in such names and be in such
authorized denominations as the U.S. Depositary shall designate and shall
bear any legends required hereunder. Any Global Security to be exchanged in
whole shall be surrendered by the U.S. Depositary to the Trustee, as
Security Registrar. With regard to any Global Security to be exchanged in
part, either such Global Security shall be so surrendered for exchange or,
if the Trustee is acting as custodian for the U.S. Depositary or its
nominee with respect to such Global Security, the principal amount thereof
shall be reduced, by an amount equal to the portion thereof to be so
exchanged, by means of an appropriate adjustment made on the records of the
Trustee. Upon any such surrender or adjustment, the Trustee shall
authenticate and deliver the Security issuable on such exchange to or upon
the order of the U.S. Depositary or an authorized representative thereof.
(4) In the event of the occurrence of any of the events specified in
clause (2) above, the Company will promptly make available to the Trustee a
reasonable supply of certificated Securities in definitive, fully
registered form, without interest coupons.
(5) Neither any members of, or participants in, the U.S. Depositary
("Agent Members") nor any other Persons on whose behalf Agent Members may
act shall have any rights under this Indenture with respect to any Global
Security, or under any Global Security, and the U.S. Depositary or such
nominee, as the case may be, may be treated by the Company, the Trustee and
any agent of the Company or the Trustee as the absolute owner and Holder of
such Global Security for all purposes whatsoever. Notwithstanding the
foregoing, nothing herein shall prevent the Company, the Trustee or any
agent of the Company or the Trustee from giving effect to any written
certification, proxy or other authorization furnished by the U.S.
Depositary or such nominee, as the case may be, or impair, as between the
U.S. Depositary, its Agent Members and
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any other person on whose behalf an Agent Member may act, the operation of
customary practices of such Persons governing the exercise of the rights of
a Holder of any Security.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the Company shall
execute and the Trustee shall authenticate and deliver in exchange therefor a
new Security of like tenor and principal amount and bearing a number not
contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i) evidence to
their satisfaction of the mutilation, destruction, loss or theft of any Security
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 has been acquired by a bona fide
purchaser, the Company shall execute and upon its request the Trustee shall
authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security, a new Security of like tenor and principal amount and bearing a number
not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has become
or is about to become due and payable, the Company in its discretion may, but
subject to any conversion rights, instead of issuing a new Security, pay such
Security.
Upon the issuance of any new Security under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith.
Every new Security issued pursuant to this Section in lieu of any
mutilated, destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Security 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 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.
SECTION 307. Payment of Interest; Interest Rights Preserved.
Interest on any 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.
Any interest on any Security which is payable, but is not punctually paid
or duly provided for, on any Interest Payment Date (herein called "Defaulted
Interest") shall forthwith cease to be payable to the Holder on the relevant
Regular Record Date by virtue of having been such Holder, and such Defaulted
Interest may be paid by the Company, at its election in each case, as provided
in clause (1) or (2) below:
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(1) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names the 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 Security and
the date of the proposed payment, and at the same time the Company shall
deposit with the Trustee an amount of money equal to the aggregate amount
proposed to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to the date
of the proposed payment, such money when deposited to be held in trust for
the benefit of the Persons entitled to such Defaulted Interest as in this
clause provided. Thereupon the Trustee shall fix a Special Record Date for
the payment of such Defaulted Interest which shall be not more than 15 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 at his address as it appears in the Security Register, not
less than 10 days prior to such Special Record Date. Notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor
having been so mailed, such Defaulted Interest shall be paid to the Persons
in whose names the 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) The Company may make payment of any Defaulted Interest in any
other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities may be listed, and upon such
notice as may be required by such exchange, if, after notice given by the
Company to the Trustee of the proposed payment pursuant to this clause,
such manner of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
In the case of any Security which is converted after any Regular Record
Date and on or prior to the next succeeding Interest Payment Date (other than
any Security whose Maturity is 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, and such interest
(whether or not punctually paid or duly provided for) shall be paid to the
Person in whose name such Security (or 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, interest whose Stated Maturity is after the
date of conversion of such Security shall not be payable.
SECTION 308. Persons Deemed Owners.
Prior to due presentment of a 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 Security is registered as the owner of such Security
for the purpose of receiving payment of principal of and
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(subject to Section 307) interest on such Security and for all other purposes
whatsoever, whether or not such Security be overdue, and neither the Company,
the Trustee nor any agent of the Company or the Trustee shall be affected by
notice to the contrary.
SECTION 309. Cancellation.
All Securities surrendered for payment, redemption, purchase, registration
of transfer or exchange or conversion shall, if surrendered to any Person other
than the Trustee, be delivered to the Trustee and shall be promptly cancelled by
it. The Company shall deliver to the Trustee for cancellation any Securities
previously authenticated and delivered hereunder which the Company may have
acquired in any manner whatsoever, and all Securities so delivered shall be
promptly cancelled by the Trustee. No Securities shall be authenticated in lieu
of or in exchange for any Securities cancelled as provided in this Section,
except as expressly permitted by this Indenture. All cancelled Securities held
by the Trustee shall be disposed of by the Trustee in accordance with its
customary procedures and certification of their disposal delivered to the
Company unless by Company Order the Company shall direct that cancelled
Securities be returned to it.
SECTION 310. Computation of Interest.
Interest on the Securities shall be computed on the basis of a 360-day year
of twelve 30-day months.
SECTION 311. Interest Act (Canada).
For purposes of the Interest Act (Canada) any interest rate determined
hereunder on the basis of a 360-day year expressed as an annual rate, shall be
equivalent to the said rate multiplied by the actual number of days in the
calendar year in which it is determined and divided by 360.
ARTICLE 4
Satisfaction and Discharge
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall cease to be of further effect (except as to any
surviving rights of conversion, or registration of transfer or exchange of
Securities herein expressly provided for), and the Trustee, upon a Company Order
and at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture (including, but not
limited to, Article Twelve hereof), when
(1) either
(A) all Securities theretofore authenticated and delivered
(other than (i) Securities which have been destroyed, lost
or stolen and which have been replaced or paid as provided
in Section 306 and (ii) Securities for whose payment money
has theretofore been deposited in trust or segregated and
held in trust by the Company
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and thereafter repaid to the Company or discharged from such
trust, as provided in Section 1003) have been delivered to
the Trustee for cancellation; or
(B) all such Securities not theretofore delivered to the
Trustee for cancellation
(i) have become due and payable (whether on the Purchase
Date, upon an election by a Holder to convert its Securities or
otherwise), 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
deposited or caused to be deposited with the Trustee as trust
funds in trust for the purpose an amount sufficient to pay and
discharge the entire indebtedness on such Securities not
theretofore delivered to the Trustee for cancellation, for
principal and interest to the date of such deposit (in the case
of Securities which have become due and payable) or to the
Purchase Date, 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 have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture pursuant to
this Article Four, the obligations of the Company to the Trustee under Section
607 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 402 and the last paragraph of Section 1003 shall survive.
SECTION 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003, all money
deposited with the Trustee pursuant to Section 401 shall be held in trust and
applied by it, in accordance with the provisions of the Securities 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 and interest for
whose payment such money has been deposited with the Trustee.
All moneys deposited with the Trustee pursuant to Section 401 (and held by
it or any Paying Agent) for the payment of Securities subsequently converted
shall be returned to the Company upon Company Request.
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All moneys held pursuant to this Section shall not be subject to the claims
of the holders of Senior Indebtedness under Article Fourteen.
ARTICLE 5
Remedies
SECTION 501. Events of Default.
"Event of Default", wherever used herein, means any one of the following
events (whatever the reason for such Event of Default and whether it shall be
occasioned by the provisions of Article Fourteen or 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) default in the payment of the principal of (or premium, if any,
on) any Security at its Maturity; or
(2) default in the payment of any interest upon any Security when it
becomes due and payable, and continuance of such default for a period of 30
days; or
(3) default in the payment of principal and interest on Securities
required to be purchased pursuant to an Offer to Purchase as described
under Section 1401 when due and payable; or
(4) default in the performance, or breach, of Section 801; or
(5) default in the performance, or breach, of any covenant of the
Company in this Indenture (other than a covenant a default in whose
performance or whose breach is elsewhere in this Section specifically dealt
with), and continuance of such default or breach for a period of 60 days
after there has been given, by registered or certified mail, to the Company
by the Trustee or to the Company and the Trustee by the Holders of at least
25% in principal amount of the Outstanding Securities a written notice
specifying such default or breach and requiring it to be remedied and
stating that such notice is a "Notice of Default" hereunder; or
(6) a default under the terms of the Senior Subordinated Notes, which
default results in the acceleration of the payment of all or any portion of
such indebtedness; or
(7) a default under the terms of any instrument evidencing or securing
indebtedness for money borrowed by the Company or any Significant
Subsidiary having an outstanding principal amount of $50 million, which
default results in the acceleration of the payment of all or any portion of
such indebtedness; or
(8) a final judgment or final judgments for the payment of money are
entered against the Company or any Significant Subsidiary in an aggregate
amount of $35 million or more by a court or courts of competent
jurisdiction, which judgments remain undischarged or unbonded for a
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period (during which execution shall not be effectively stayed) of 60 days
after the right to appeal all such judgments has expired; or
(9) the entry by a court having jurisdiction in the premises of (A) a
decree or order for relief in respect of the Company or any Significant
Subsidiary in an involuntary case or proceeding under any applicable U.S.
Federal or State, Canadian Federal or Provincial or other applicable
bankruptcy, insolvency, reorganization or other similar law or (B) a decree
or order adjudging the Company or any Significant Subsidiary a bankrupt or
insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjustment or composition of or in respect of
the Company or any Significant Subsidiary under any applicable U.S. Federal
or State, Canadian Federal or Provincial or other applicable law, or
appointing a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company or any Significant
Subsidiary or of any substantial part of the property of the Company or any
Significant Subsidiary, or ordering the winding up or liquidation of the
affairs of the Company or any Significant Subsidiary, and the continuance
of any such decree or order for relief or any such other decree or order
unstayed and in effect for a period of 90 consecutive days; or
(10) the commencement by the Company or any Significant Subsidiary of
a voluntary case or proceeding under any applicable U.S. Federal or State,
Canadian Federal or Provincial or other applicable bankruptcy, insolvency,
reorganization or other similar law or of any other case or proceeding to
be adjudicated a bankrupt or insolvent, or the consent by the Company or
any Significant Subsidiary to the entry of a decree or order for relief in
respect of the Company or any Significant Subsidiary in an involuntary case
or proceeding under any applicable U.S. Federal or State, Canadian Federal
or Provincial or other applicable bankruptcy, insolvency, reorganization or
other similar law or to the commencement of any bankruptcy or insolvency
case or proceeding against the Company or any Significant Subsidiary, or
the filing by the Company of a petition or answer or consent seeking
reorganization or relief under any applicable U.S. Federal or State,
Canadian Federal or Provincial or other applicable law, or the consent by
the Company or any Significant Subsidiary to the filing of such petition or
to the appointment of or taking possession by a custodian, receiver,
liquidator, assignee, trustee, sequestrator or similar official of the
Company or any Significant Subsidiary or of any substantial part of the
property of the Company or any Significant Subsidiary, or the making by the
Company or any Significant Subsidiary of an assignment for the benefit of
creditors, or the admission by the Company or any Significant Subsidiary in
writing of its inability to pay its debts generally as they become due, or
the taking of corporate action by the Company or any Significant Subsidiary
in furtherance of any such action.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default (other than an Event of Default specified in Section
501(9) or (10)) occurs and is continuing, then and in every such case the
Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Securities may declare the principal of all the Securities to be due
and payable immediately, by a notice in writing to the Company (and to the
Trustee if given by Holders), and upon any such declaration such principal and
any accrued interest shall become immediately due and payable; provided,
however, that so long as the Credit Agreement shall be in full force and effect,
if an Event of Default shall have occurred and be continuing (other than an
Event of Default specified in Section 501(9) or (10)), the Securities shall not
become due and payable until the earlier to occur of (x) five
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Business Days following delivery of written notice of such acceleration of the
Securities to the agent under the Credit Agreement and (y) the acceleration
(ipso facto or otherwise) of any indebtedness under the Credit Agreement.
If an Event of Default specified in Section 501(9) or (10) occurs, the
principal of and any accrued interest on the Securities then Outstanding shall
ipso facto become immediately due and payable without any declaration or other
Act on the part of the Trustee or any Holder.
At any time after such a declaration of acceleration has been made and
before a judgment or decree for payment of the money due has been obtained by
the Trustee as hereinafter in this Article provided, the Holders of a majority
in principal amount of the Outstanding Securities, by written notice to the
Company and the Trustee, may rescind and annul such declaration and its
consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) All overdue interest on all Outstanding Securities,
(B) the principal of any Outstanding Securities which have become
due otherwise than by such declaration of acceleration and, to the
extent that payment of such interest is lawful, interest thereon at
the rate provided by the Outstanding Securities,
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate provided by the Securities,
and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel;
and
(2) all Events of Default, other than the non-payment of the principal
of Securities which have become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 503. 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
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 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, the whole amount then due and payable on such
Securities for principal and interest, and, to the extent that
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payment of such interest shall be legally enforceable, interest on any overdue
principal and on any overdue interest, at the rate provided by the Securities,
and, in addition thereto, such further amount as shall be sufficient to cover
the costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel.
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, 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.
If an Event of Default occurs and is continuing, the Trustee may in its
discretion proceed to protect and enforce its rights and the rights of the
Holders by such appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
SECTION 504. 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 607.
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 any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
SECTION 505. 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, and any
such proceeding instituted by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgment shall, after provision
for the payment of the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, be for the ratable benefit of
the Holders of the Securities in respect of which such judgment has been
recovered.
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SECTION 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal or interest,
upon presentation of the Securities and the notation thereon of the payment if
only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section
607; and
SECOND: To the payment of the amounts then due and unpaid for
principal of and interest on the Securities in respect of which or for the
benefit of which such money has been collected, ratably, without preference
or priority of any kind, according to the amounts due and payable on such
Securities for principal and interest, respectively.
SECTION 507. Limitation on Suits.
No Holder of any Security 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) such Holder has previously given written notice to the Trustee of
a continuing Event of Default;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default in its own name
as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given
to the Trustee during such 60-day period by the Holders of a majority in
principal amount of the Outstanding Securities;
it being understood and intended that 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 Holders,
or to obtain or to seek to obtain priority or preference over any other Holders
or to enforce any right under this Indenture, except in the manner herein
provided and for the equal and ratable benefit of all the Holders.
Notwithstanding anything contained herein to the contrary, at any time when
the Company is prohibited from making any payment of principal of, premium (if
any) on, or interest on the Securities as described in Article 13, neither the
Trustee nor the Holders may (A) accelerate the maturity of the principal of, or
premium, if any, or accrued interest on the Securities, (B) commence any action
or proceeding (including the right to set off) to collect payment of the
principal of or premium, if any or accrued interest on the Securities, or (C)
commence an involuntary case or proceeding in bankruptcy against the Company or
seek the appointment of a receiver, custodian or trustee with respect to the
assets of the Company; provided that the restrictions set forth in the foregoing
clauses (A), (B), and (C) shall not apply upon the commencing of any bankruptcy,
dissolution, winding up, liquidation or reorganization of the Company by any
Persons other than the Trustee or the Holders.
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SECTION 508. Unconditional Right of Holders to Receive Principal and Interest.
Notwithstanding any other provision in this Indenture, the Holder of any
Security shall have the right, which is absolute and unconditional, to receive
payment of the principal of and (subject to Section 307) interest on such
Security on the respective Stated Maturities expressed in such Security (or, in
the case of redemption or purchase, on the Redemption Date or Purchase Date, as
the case may be) and to institute suit for the enforcement of any such payment,
and such rights shall not be impaired without the consent of such Holder.
SECTION 509. 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 510. 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
306, no right or remedy herein conferred upon or reserved to the Trustee or to
the Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Security to
exercise any right or remedy accruing upon any Event of Default shall impair any
such right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article or by law to
the Trustee or to the Holders may be exercised from time to time, and as often
as may be deemed expedient, by the Trustee or by the Holders, as the case may
be.
SECTION 512. Control by Holders.
The Holders of a majority in principal amount of the Outstanding Securities
shall have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee or exercising any trust or
power conferred on the Trustee, provided that
(1) such direction shall not be in conflict with any rule of law or
with this Indenture, and
(2) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction.
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SECTION 513. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Securities may on behalf of the Holders of all the Securities waive
any past default hereunder and its consequences, except a default
(1) in the payment of the principal of or interest on any Security
(including any Security which is required to have been purchased pursuant
to an Offer to Purchase which has been made by the Company), or
(2) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of
each Outstanding Security 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 514. 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, 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 or the Trustee.
SECTION 515. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that it
will not at any time insist upon, or plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay or extension law wherever enacted,
now or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage or 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 601. 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
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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 602. Notice of Defaults.
The Trustee shall give the Holders notice of any default hereunder 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 501(6), 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.
SECTION 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(a) 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;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors may be sufficiently evidenced by a
Board Resolution;
(c) 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;
(d) 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;
(e) 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;
(f) 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
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investigation, it shall be entitled to examine the books, records and
premises of the Company, personally or by agent or attorney; and
(g) 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.
SECTION 604. 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 the Trustee assumes no responsibility for their correctness. The Trustee
makes no representations as to the validity or sufficiency of this Indenture, of
the Securities or the Common Stock issuable upon the conversion of the
Securities. The Trustee shall not be accountable for the use or application by
the Company of Securities or the proceeds thereof.
SECTION 605. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Conversion
Agent, any Security Registrar or any other agent of the Company, in its
individual or any other capacity, may become the owner or pledgee of Securities
and, subject to Sections 608 and 613, may otherwise deal with the Company with
the same rights it would have if it were not Trustee, Authenticating Agent,
Paying Agent, any Conversion Agent, Security Registrar or such other agent.
SECTION 606. 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 607. 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
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the acceptance or administration of this trust, including the costs and
expenses of defending itself against any claim or liability in connection
with the exercise or performance of any of its powers or duties hereunder.
SECTION 608. Disqualification: 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 609. 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. Any
successor Trustee shall have 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 said 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 610. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee under Section 611.
(b) The Trustee may resign at any time by giving written notice thereof to
the Company. If an instrument of acceptance by a successor Trustee shall not
have been delivered to the 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.
(c) The Trustee may be removed at any time by Act of the Holders of a
majority in principal amount of the Outstanding Securities, delivered to the
Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608 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 609 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
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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, (i) the Company by a Board Resolution may remove the
Trustee, or (ii) subject to Section 514, 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 and the appointment of a successor Trustee.
(e) 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, the Company,
by a Board Resolution, shall promptly appoint a successor Trustee. If, within
one year after such resignation, removal or incapability, or the occurrence of
such vacancy, a successor Trustee shall be appointed by Act of the Holders of a
majority in principal amount of the Outstanding Securities delivered to the
Company and the retiring Trustee, the successor Trustee so appointed shall,
forthwith upon its acceptance of such appointment, become the successor Trustee
and supersede the successor Trustee appointed by the Company. If no successor
Trustee shall have been so appointed by the Company or the Holders and accepted
appointment in the manner hereinafter provided, 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 appointment of a successor Trustee.
(f) The Company shall give notice of each resignation and each removal of
the Trustee and each appointment of a successor Trustee to all Holders in the
manner provided in Section 106. Each notice shall include the name of the
successor Trustee and the address of its Corporate Trust Office.
SECTION 611. Acceptance of Appointment by Successor.
Every successor Trustee appointed hereunder 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 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. 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.
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 612. 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
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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 613. 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 614. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents which shall be
authorized to act on behalf of the Trustee to authenticate Securities issued
upon original issue and upon exchange, registration of transfer, partial
conversion, partial purchase or partial redemption or pursuant to Section 306,
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 to 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 otherwise be 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 mail written notice of
such appointment by first-class mail, postage prepaid, to all Holders as their
names and addresses appear in the
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Security Register. 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 607.
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If an appointment is made pursuant to this Section, the Securities 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 described in the within-mentioned Indenture.
[NAME OF TRUSTEE]
As Trustee
By___________________________________
As Authenticating Agent
By___________________________________
Authorized Officer
ARTICLE 7
Holders' Lists and Reports by Trustee and Company
SECTION 701. 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 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 received by the Trustee in its
capacity as Security Registrar.
SECTION 702. 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 contained in the most recent
list furnished to the Trustee as provided in Section 701 and the names and
addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished.
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(b) The rights of Holders to communicate with other Holders with respect to
their rights under this Indenture or under the Securities and the corresponding
rights and duties of the Trustee, shall be provided by the Trust Indenture Act.
(c) Every Holder of Securities, 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 any
disclosure of information as to the names and addresses of Holders made pursuant
to Section 312 of the Trust Indenture Act.
SECTION 703. Reports by Trustee.
(a) The Trustee shall transmit to Holders 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) A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Trustee with each stock exchange upon which the
Securities are listed, with the Commission and with the Company. The Company
will notify the Trustee when the Securities are listed on any stock exchange.
SECTION 704. Reports by Company.
The Company shall file with the Trustee and the Commission, and transmit to
Holders, such information, documents and other reports, and such summaries
thereof, as may be required pursuant to the Trust Indenture Act at the times and
in the manner provided pursuant to such Act; provided that any such information,
documents or reports required to be filed with the Commission pursuant to
Section 13 or 15(d) of the Securities Exchange Act of 1934 shall be filed with
the Trustee within 15 days after the same is so required to be filed with the
Commission.
ARTICLE 8
Consolidation, Merger, Conveyance, Transfer or Lease
SECTION 801. Company May Consolidate, Etc. Only on Certain Terms.
The Company may not, in a single transaction or a series of related
transactions, (i) amalgamate, consolidate or merge with or into any other Person
or permit any other Person to amalgamate, consolidate or merge with or into the
Company or (ii) directly or indirectly, transfer, sell, lease or otherwise
dispose of all or substantially all of its assets, unless:
(1) in a transaction in which the Company does not survive or in which
the Company sells, leases or otherwise disposes of all or substantially all
of its assets, the successor entity to the Company (for purposes of this
Article Eight, a "Successor Company") shall be a corporation, shall be
organized and validly existing under the laws of the United States of
America, any State thereof, the District of Columbia, Canada or any
Province or Territory thereof and shall expressly assume by an indenture
supplemental hereto executed and delivered to the Trustee, in form
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satisfactory to the Trustee, the due and punctual payment of the principal
of and interest on all the Securities and the performance of every covenant
of this Indenture on the part of the Company to be performed or observed;
(2) immediately before and after giving effect to such transaction, no
Event of Default, and no event which, after notice or lapse of time, or
both, would become an Event of Default, shall have occurred and be
continuing;
(3) the Company, or if applicable, the Successor Company has delivered
to the Trustee an Officers' Certificate and an Opinion of Counsel, each
stating that such amalgamation, consolidation, merger, conveyance,
transfer, lease or acquisition and, if a supplemental indenture is required
in connection with such transaction, such supplemental indenture, complies
with this Article and that all conditions precedent herein provided for
relating to such transaction have been complied with.
SECTION 802. Successor Substituted.
Upon any consolidation of the Company with, or merger of the Company into,
any other Person or any transfer, conveyance, sale, lease or other disposition
of all or substantially all of the properties and assets of the Company as an
entirety in accordance with Section 801, the Successor Company shall succeed to,
and be substituted for, and may exercise every right and power of, the Company
under this Indenture with the same effect as if such successor Person had been
named as the Company herein, 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 9
Supplemental Indentures
SECTION 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by a Board
Resolution, and the Trustee, at any time and from time to time, may enter into
one or more indentures supplemental hereto, in form satisfactory to the Trustee,
for any of the following purposes:
(1) to evidence the succession of another Person to the Company and
the assumption by any such successor of the covenants of the Company herein
and in the Securities; or
(2) to add to the covenants of the Company for the benefit of the
Holders, or to surrender any right or power herein conferred upon the
Company; or
(3) to comply with any requirements of the Commission in order to
maintain the qualification of this Indenture under the Trust Indenture Act;
or
(4) to make provision with respect to the conversion rights of Holders
of Securities pursuant to Section 1211; or
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(5) to cure any ambiguity, to correct or supplement any provision
herein which may be inconsistent with any other provision herein, or to
make any other provisions with respect to matters or questions arising
under this Indenture which shall not be inconsistent with the provisions of
this Indenture, provided such action pursuant to this clause (4) shall not
adversely affect the interests of the Holders in any material respect.
SECTION 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in principal
amount of the Outstanding Securities, by Act of said Holders delivered to the
Company and the Trustee, the Company, when authorized by a Board Resolution, and
the Trustee may enter into an indenture or indentures supplemental hereto for
the purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of this Indenture or of modifying in any manner the rights
of the Holders under this Indenture; provided, however, that no such
supplemental indenture shall, without the consent of the Holder of each
Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any instalment
of interest on, any Security, or reduce the principal amount thereof or the
rate of interest thereon, or change the place of payment where, or the coin
or currency in which, any Security 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 or
any purchase, on or after the Redemption Date or Purchase Date, as the case
may be), or except as permitted by Section 1211, adversely affect the right
to convert any Security as provided in Article Twelve, or modify the
provisions of this Indenture with respect to the subordination of the
Securities in a manner adverse to the Holders of Securities, or
(2) reduce the percentage in principal amount of the Outstanding
Securities, 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
(3) modify any of the provisions of this Section, Section 513 or
Section 1011, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Outstanding Security affected
thereby, or
(4) following the mailing of an Offer with respect to an Offer to
Purchase pursuant to Section 1401, modify the provisions of this Indenture
with respect to such Offer to Purchase in a manner adverse to such Holder.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
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SECTION 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 601) shall be fully protected in relying upon, 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 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article, this
Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby. No such supplemental indenture shall directly or
indirectly modify the provisions of Article Thirteen in any manner which might
terminate or impair the rights of the Senior Debt pursuant to such subordination
provisions.
SECTION 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act.
SECTION 906. Reference in Securities to Supplemental Indentures.
Securities authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Securities so modified as to conform, in the opinion of the Trustee and the
Company, to any such supplemental indenture may be prepared and executed by the
Company and authenticated and delivered by the Trustee in exchange for
Outstanding Securities.
ARTICLE 10
Covenants
SECTION 1001. Payment of Principal and Interest.
The Company will duly and punctually pay the principal of and interest on
the Securities in accordance with the terms of the Securities and this
Indenture.
SECTION 1002. Maintenance of Office or Agency.
The Company will maintain in the Borough of Manhattan, The City of New
York, an office or agency where Securities may be presented or surrendered for
payment, where Securities may be surrendered for registration of transfer or
exchange, where Securities may be surrendered for conversion and where notices
and demands to or upon the Company in respect of the Securities and this
Indenture may
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be served. The Company will give prompt written notice to the Trustee of the
location, and any change in the location, of 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.
The Company may also from time to time designate one or more other offices
or agencies (in or outside the Borough of Manhattan, The City of New York) where
the Securities 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 the Borough of Manhattan, The City
of New York, 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.
SECTION 1003. Money for Security Payments to be Held in Trust.
If the Company shall at any time act as its own Paying Agent, it will, on
or before each due date of the principal of or interest on any of the
Securities, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal or interest so becoming due until
such sums shall be paid to such Persons or otherwise disposed of as herein
provided and will promptly notify the Trustee of its action or failure so to
act.
Whenever the Company shall have one or more Paying Agents, it will, prior
to each due date of the principal of or interest on any Securities, deposit with
a Paying Agent a sum sufficient to pay the principal or interest so becoming
due, such sum to be held in trust for the benefit of the Persons entitled to
such principal or interest, and (unless such Paying Agent is the Trustee) the
Company will promptly notify the Trustee of its action or failure so to act.
The Company will cause each Paying Agent other than the Trustee 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 or
interest on Securities 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) in the making of any payment of
principal or interest; 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
same trusts as those upon which such sums were held by the Company or such
Paying
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Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying
Agent shall be released from all further liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then held by
the Company, in trust for the payment of the principal of or interest on any
Security and remaining unclaimed for two years after such principal 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 shall thereafter, as an unsecured general creditor, look
only to the Company for payment thereof, and all liability of the Trustee or
such Paying Agent with respect to such trust money, and all liability of the
Company as trustee thereof, shall thereupon cease; provided, however, that the
Trustee or such Paying Agent, before being required to make any such repayment,
may at the expense of the Company cause to be published once, in a newspaper
published in the English language, customarily published on each Business Day
and of general circulation in The City of New York, 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 1004. Existence.
Subject to Article Eight, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its existence,
rights (charter and statutory) and franchises; provided, however, that the
Company shall not be required to preserve any such right or franchise if the
Board of Directors in good faith shall determine that the preservation thereof
is no longer desirable in the conduct of the business of the Company and that
the loss thereof is not disadvantageous in any material respect to the Holders.
SECTION 1005. Maintenance of Properties.
The Company will cause all properties used or useful in the conduct of its
business or the business of any Subsidiary of the Company to be maintained and
kept in good condition, repair and working order and supplied with all necessary
equipment and will cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in the judgment of
the Company may be necessary so that the business carried on in connection
therewith may be properly and advantageously conducted at all times; provided,
however, that nothing in this Section shall prevent the Company from
discontinuing the operation or maintenance of any of such properties if such
discontinuance is, as determined by the Board of Directors in good faith,
desirable in the conduct of its business or the business of any Subsidiary and
not disadvantageous in any material respect to the Holders.
SECTION 1006. Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or discharged, before
the same shall become delinquent, (1) all taxes, assessments and governmental
charges levied or imposed upon the Company or any of its Subsidiaries or upon
the income, profits or property of the Company or any of its Subsidiaries, and
(2) all lawful claims for labor, materials and supplies which, if unpaid, might
by law become a lien upon the property of the Company or any of its
Subsidiaries; provided, however, that the Company shall not be required to pay
or discharge or cause to be paid or discharged any such tax,
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assessment, charge or claim whose amount, applicability or validity is being
contested in good faith by appropriate proceedings.
SECTION 1007. Registration and Listing.
(1) Prior to the time the Securities become convertible, the Company will
effect all registrations with, and obtain all approvals by, all governmental
authorities that may be necessary under any United States Federal or state law
(including the Securities Act, the Exchange Act and state securities and Blue
Sky laws) before the Common Shares issuable upon conversion of Securities may be
lawfully issued and delivered, and thereafter publicly traded (if permissible
under the Securities Act), and qualified or listed as contemplated by clause (2)
(it being understood that for purposes of this Section 1007, the Company shall
not be required to register the Securities or the Common Shares under the
Securities Act); and (2) prior to the time the Securities become convertible,
the Company will cause the Common Shares required to be issued and delivered
upon conversion of Securities, prior to such issuance or delivery, to be quoted
on Nasdaq or, if the Common Shares are not then listed on Nasdaq, cause to be
listed the Common Shares on the United States national securities exchange, if
any, on which Common Shares are listed or quoted at the time of such delivery.
Upon such registration, approval, quotation or listing, if any, as provided in
(1) and (2) above, the Company will deliver to the Trustee and the Conversion
Agent an Officers' Certificate notifying them of such compliance with Section
1007.
SECTION 1008. Limitation on Restricted Payments
The Company (i) may not, and may not permit any Subsidiary of the Company
to, directly or indirectly, declare or pay any dividend or make any distribution
(including any payment in connection with any merger, amalgamation or
consolidation derived from assets of the Company or any Subsidiary) in respect
of its Capital Stock or to the holders thereof, excluding (a) any dividends or
distributions by the Company payable solely in shares of its Common Stock (other
than Redeemable Stock) or in options, warrants or other rights to acquire its
Common Stock (other than Redeemable Stock), and (b) in the case of a Subsidiary,
dividends or distributions payable (1) to the Company or a Subsidiary and (2) to
minority shareholders of such Subsidiary, provided that at least a pro rata
amount is paid to the Company and/or a Subsidiary, as the case may be, and (ii)
may not, and may not permit any Subsidiary to, directly or indirectly, purchase,
redeem, or otherwise acquire or retire for value (a) any Capital Stock of the
Company or (b) any options, warrants or other rights to acquire shares of
Capital Stock of the Company or any securities convertible or exchangeable into
shares of Capital Stock of the Company (each of clauses (i) and (ii) being a
"Restricted Payment") if: (1) an Event of Default, or an event that with the
passing of time or the giving of notice, or both, would constitute an Event of
Default, shall have occurred and be continuing or would result from such
Restricted Payment, or (2) upon giving effect to such Restricted Payment, the
aggregate of all Restricted Payments from the date of original issuance of the
Securities exceeds the sum of (a) 75% of cumulative Consolidated Net Income (or,
in the case Consolidated Net Income shall be negative, less 100% of such
deficit) of the Company from the date of original issuance of the Securities
through the last day of the last full fiscal quarter ending immediately
preceding such Restricted Payment for which quarterly or annual financial
statements are available (taken as a single accounting period); plus (b) 100% of
the aggregate net cash proceeds received by the Company after the date of
original issuance of the Securities, from contributions of capital or the
issuance and sale (other than to a Subsidiary) of Capital Stock (other than
Redeemable Stock) of the Company, options, warrants or other rights to acquire
Capital Stock (other than Redeemable Stock) of the Company and indebtedness of
the Company that has been converted into or exchanged for Capital Stock (other
than Redeemable Stock and other than by or
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from a Subsidiary) of the Company after the date of original issuance of the
Securities. Prior to the making of any Restricted Payment, the Company shall
deliver to the Trustee an Officers' Certificate setting forth the computations
by which the determinations required by clause (2) above were made and stating
that no Event of Default, or event that with the passing of time or the giving
of notice, or both, would constitute an Event of Default, has occurred and is
continuing or will result from such Restricted Payment.
Notwithstanding the foregoing, so long as no Event of Default, or event
that with the passing of time or the giving of notice, or both, would constitute
an Event of Default, shall have occurred and be continuing or would result
therefrom, (i) the Company and any Subsidiary of the Company may pay any
dividend on Capital Stock of any class within 60 days after the declaration
thereof if, on the date when the dividend was declared, the Company or such
Subsidiary could have paid such dividend in accordance with the foregoing
provisions; (ii) the Company may purchase, redeem, acquire or retire any shares
of Capital Stock of the Company solely in exchange for or out of the net
proceeds of the substantially concurrent sale (other than from or to a
Subsidiary or from or to an employee stock ownership plan financed by loans from
the Company or a Subsidiary of the Company) of shares of Capital Stock (other
than Redeemable Stock) of the Company. Any payment made pursuant to clause (i)
or (ii) of this paragraph shall be a Restricted Payment for purposes of
calculating aggregate Restricted Payments pursuant to the preceding paragraph.
SECTION 1009. Limitation on Dividend and Other Payment Restrictions
Affecting Subsidiaries
The Company may not, and may not permit any Subsidiary to, directly or
indirectly, create or otherwise cause or suffer to exist or become effective any
encumbrance or restriction on the ability of any Subsidiary of the Company to
pay dividends (in cash or otherwise) or make any other distributions in respect
of its Capital Stock owned by the Company or any other Subsidiary of the
Company. Notwithstanding the foregoing, the Company may, and may permit any
Subsidiary to, suffer to exist any such encumbrance or restriction:
(1) pursuant to any agreement in effect on the date of original
issuance of the Securities;
(2) pursuant to an agreement relating to any indebtedness Incurred by
a Person (other than a Subsidiary of the Company existing on the date of
original issuance of the Securities or any Subsidiary carrying on any of
the businesses of any such Subsidiary) prior to the date on which such
Person became a Subsidiary of the Company and outstanding on such date and
not Incurred in anticipation of becoming a Subsidiary, which encumbrance or
restriction is not applicable to any Person, or the properties or assets of
any Person, other than the Person so acquired;
(3) pursuant to an agreement effecting a renewal, extension, refunding
or refinancing of indebtedness Incurred pursuant to an agreement referred
to in clause (a) above, provided, however, that the provisions contained in
such renewal, extension, refunding or refinancing agreement relating to
such encumbrance or restriction are no more restrictive, taken as a whole,
than the provisions contained in the agreement the subject thereof, as
determined in good faith by the Board of Directors and evidenced by a
resolution of the Board of Directors filed with the Trustee;
(4) with respect to a Subsidiary of the Company imposed pursuant to an
agreement which has been entered into for the sale or disposition of all or
substantially all of the Capital Stock or
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assets of such Subsidiary, provided that consummation of such transaction
would not result in an Event of Default or an event that, with the passing
of time or the giving of notice or both, would constitute an Event of
Default, that such restriction terminates if such transaction is closed or
abandoned and that the closing or abandonment of such transaction occurs
within one year of the date such agreement was entered into;
(5) if such encumbrance or restriction is the result of applicable
corporate law or regulation relating to the payment of dividends or
distributions.
SECTION 1010. Limitation on Distributions of Assets to Shareholders.
The Company may not, and may not permit any Subsidiary to, directly or
indirectly, distribute, as a dividend or otherwise, any Capital Stock of a
Subsidiary to shareholders of the Company, unless such Subsidiary shall have
fully and unconditionally guaranteed the payment of principal and interest on
the Notes.
SECTION 1011. Statement By Officers as to Default; Compliance Certificates.
(a) The Company will deliver to the Trustee, within 120 days after the end
of each fiscal year, and within 60 days after the end of each fiscal quarter
(other than the fourth fiscal quarter), of the Company ending after the date
hereof an Officers' Certificate, stating whether or not to the best knowledge of
the signers thereof the Company is in default in the performance and observance
of any of the terms, provisions and conditions of Section 801 or Sections 1004
to 1009, inclusive, and if the Company shall be in default, specifying all such
defaults and the nature and status thereof of which they may have knowledge.
(b) The Company shall deliver to the Trustee, as soon as possible and in
any event within 10 days after the Company becomes aware or should reasonably
become aware of the occurrence of an Event of Default or an event which, with
notice or the lapse of time or both, would constitute an Event of Default, an
Officers' Certificate setting forth the details of such Event of Default or
default, and the action which the Company proposes to take with respect thereto.
(c) The Company shall deliver to the Trustee within 90 days after the end
of each fiscal year a written statement by the Company's independent public
accountants stating (A) that their audit examination has included a review of
the terms of this Indenture and the Securities as they relate to accounting
matters, and (B) whether, in connection with their audit examination, any event
which, with notice or the lapse of time or both, would constitute an Event of
Default has come to their attention and, if such a default has come to their
attention, specifying the nature and period of the existence thereof.
SECTION 1012. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any covenant
or condition set forth in Section 801 and Sections 1004 to 1009 inclusive, if
before the time for such compliance the Holders of at least a majority in
principal amount of the Outstanding Securities shall, by Act of such Holders,
either waive such compliance in such instance or generally waive compliance with
such covenant or condition, but no such waiver shall extend to or affect such
covenant or condition except to the extent so expressly waived, and, until such
waiver shall become effective, the obligations of the
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Company and the duties of the Trustee in respect of any such covenant or
condition shall remain in full force and effect.
SECTION 1013. Indemnification of Judgment Currency.
The Company shall indemnify the Trustee and any Holder against any loss
incurred by the Trustee or such Holder, as the case may be, as a result of any
judgment or order being given or made for any amount due under this Indenture or
such Security and being expressed and paid in a currency (the "Judgment
Currency") other than Dollars, and as a result of any variation between (i) the
rate of exchange at which the Dollar amount is converted into the Judgment
Currency for the purpose of such judgment or order and (ii) the spot rate of
exchange in The City of New York at which the Trustee or such Holder, as the
case may be, on the date of payment of such judgment or order is able to
purchase Dollars with the amount of the Judgment Currency actually received by
the Trustee or such Holder. The foregoing indemnity shall constitute a separate
and independent obligation of the Company and shall continue in full force and
effect notwithstanding any such judgment or order as aforesaid. The term "spot
rate of exchange" shall include any premiums and costs of exchange payable in
connection with the purchase of, or conversion into, United States dollars as
quoted by The Bank of Nova Scotia at its central foreign exchange desk in its
head office in Toronto at 12:00 noon (Toronto time).
SECTION 1014. Available Information.
Whether or not the Company is required to be subject to Section 13(a) or
15(d) of the Exchange Act, or any successor provision thereto, the Company shall
file with the Commission the annual reports, quarterly reports and other
documents which the Company would have been required to file with the Commission
pursuant to such Section 13(a) or 15(d) or any successor provision thereto if
the Company were so required, such documents to be filed with the Commission on
or prior to the respective dates (the "Required Filing Dates") by which the
Company would have been required so to file such documents if the Company were
so required. The Company shall also in any event (a) within 15 days of each
Required Filing Date (i) transmit by mail to all Holders, as their names and
addresses appear in the Security Register, without cost to such Holders, and
(ii) furnish to the Trustee, copies of the annual reports, quarterly reports and
other documents which the Company files with the Commission pursuant to such
Section 13(a) or 15(d) or any successor provision thereto or would have been
required to file with the Commission pursuant to such Section 13(a) or 15(d) or
any successor provisions thereto if the Company were required to be subject to
such Sections and (b) if filing such documents by the Company with the
Commission is not permitted under the Exchange Act, promptly upon written
request supply copies of such documents to any prospective Holder.
SECTION 1015. Acquisition of Securities.
The Company shall not, and shall cause its Affiliates not to, resell or
otherwise dispose of any Securities acquired by them, in the open market or
otherwise, and shall, and shall cause its Affiliates to, surrender all such
Securities acquired to the Trustee for cancellation.
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ARTICLE 11
Redemption of Securities
SECTION 1101. Right of Redemption.
The Securities may be redeemed at the election of the Company, as a whole
in part, upon the occurrence of a Redemption Change of Control in amounts of
$1.00 or any integral multiples of $1.00 at the Redemption Price specified in
the form of Security hereinbefore set forth together with accrued interest to
the Redemption Date. The election of the Company to redeem any Securities
pursuant to Section 1101 shall be evidenced by a Board Resolution.
SECTION 1102. Applicability of Article.
Redemption of Securities at the election of the Company, as permitted by
any provision of this Indenture, shall be made in accordance with such provision
and this Article.
SECTION 1103. Notices to Trustee.
If the Company elects to redeem Securities pursuant to Section 1101, it
shall notify the Trustee of the Redemption Date and the principal amount of
Securities to be redeemed. The Company shall give each notice to the Trustee
provided for in this Section 1103 at least five days prior to the date on which
notice is to be given (or such shorter period as the Trustee may permit), as set
forth in section 1105. Any such notice may be canceled at any time prior to
notice of such redemption being mailed to any Holder and shall thereby be void
and of no effect. In case of any redemption at the election of the Company of
less than all the Securities, the notification to the Trustee shall specify the
principal amount of Securities to be redeemed.
SECTION 1104. Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities are to be redeemed, the particular
Securities to be redeemed shall be selected not more than 60 days prior to the
Redemption Date by the Trustee, from the Outstanding Securities not previously
called for redemption, by such method as the Trustee shall deem fair and
appropriate and which may provide for the selection for redemption of portions
(equal to $1.00 or any integral multiple thereof) of the principal amount of
Securities of a denomination larger than $1.00.
The Trustee shall promptly notify the Company and each Security Registrar
in writing of the Securities selected for redemption and, in the case of any
Securities selected for partial redemption, the principal amount thereof to be
redeemed.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Securities shall relate, in the
case of any Securities redeemed or to be redeemed only in part, to the portion
of the principal amount of such Securities which has been or is to be redeemed.
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SECTION 1105. Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage prepaid,
mailed not less than 30 nor more than 60 days prior to the Redemption Date, to
each Holder of Securities to be redeemed, at his address appearing in the
Security Register.
All notices of redemption shall set forth:
(1) the Redemption Date,
(2) the Redemption Price,
(3) a brief statement setting forth the Company's right to effect such
redemption and the Company's basis therefor,
(4) if less than all the Outstanding Securities are to be redeemed,
the identification (and, in the case of partial redemption, the principal
amounts) of the particular Securities to be redeemed,
(5) that on the Redemption Date the Redemption Price will become due
and payable upon each such Security to be redeemed and that interest
thereon will cease to accrue on and after said date,
(6) the Conversion Price, the date on which the right to convert the
Securities to be redeemed will terminate and the place or places where such
Securities may be surrendered for conversion, and
(7) the place or places where such Securities are to be surrendered
for payment of the Redemption Price.
Notice of redemption of Securities to be redeemed at the
election of the Company 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 1106. Deposit of Redemption Price.
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 1003) an amount of money
sufficient to pay the Redemption Price of, and (except if the Redemption Date
shall be an Interest Payment Date) accrued interest on, all the Securities which
are to be redeemed on that date other than any Securities called for redemption
on that date which have been converted prior to the date of such deposit.
If any Security called for redemption is converted, any money deposited
with the Trustee or with a Paying Agent or so segregated and held in trust for
the redemption of such Security shall (subject to any right of the Holder of
such Security or any Predecessor Security to receive interest as provided in
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the last paragraph of Section 307) be paid to the Company on Company Request or,
if then held by the Company, shall be discharged from such trust.
SECTION 1107. 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. Upon surrender of any
such Security 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 whose
Stated Maturity is on or prior to the Redemption Date shall be payable to the
Holders of such Securities, or one or more Predecessor Securities, registered as
such at the close of business on the relevant Record Dates according to their
terms and the provisions of Section 307.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal shall, until paid, bear interest from the
Redemption Date at the rate provided by the Security and such Security shall
remain convertible into Common Stock until the principal of such Security (or
portion thereof, as the case may be) shall have been paid or duly provided for.
SECTION 1108. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be surrendered at
an office or agency of the Company designated for that purpose pursuant to
Section 1002 (with, if the Company or the Trustee so requires, 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 attorney duly authorized
in writing), and the Company shall execute, and the Trustee shall authenticate
and deliver to the Holder of such Security without service charge, a new
Security or Securities, of any authorized denomination as requested by such
Holder, in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so surrendered.
ARTICLE 12
Conversion of Securities
SECTION 1201. Conversion Privilege and Conversion Price.
Subject to and upon compliance with the provisions of this Article, at the
option of the Holder thereof, any Security may be converted into fully paid and
nonassessable Common Shares (calculated as to each conversion to the nearest
1/100th of a share) at the Conversion Price, determined as hereinafter provided,
in effect at the time of conversion. Such conversion right may be exercised at
any time, subject, in the case of the conversion of any Global Security, to any
applicable book-entry procedures of the U.S. Depositary therefor. In case a
Security or portion thereof is called for redemption or is delivered for
purchase, such conversion right in respect of the Security or portion so called
or delivered shall expire at the close of business on the Redemption Date or the
Purchase Date, as the case may be, unless the Company defaults in making the
payment due upon redemption or purchase, as the case may be.
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The price at which Common Shares shall be delivered upon conversion (herein
called the "Conversion Price") shall be initially $30.00 per Common Share. The
Conversion Price shall be adjusted in certain instances as provided in this
Article Twelve.
SECTION 1202. Exercise of Conversion Privilege.
In order to exercise the conversion privilege, the Holder of any Security
to be converted shall (A)(i) surrender such Security, duly endorsed or assigned
to the Company or in blank [(IN THE CASE OF ANY DEFINITIVE SECURITY)] or (ii)
provide appropriate conversion instructions required by the U.S. Depositary then
in effect (in the case of any Global Security), at any office or agency of the
Company maintained for that purpose pursuant to Section 1002, and (B) deliver to
such office or agency a duly signed and completed conversion notice
substantially in the form set forth in Annex A-1, as appropriate, stating that
the Holder elects to convert such Security or, if less than the entire principal
amount thereof is to be converted, the portion thereof to be converted. Each
Security surrendered for conversion (in whole or in part) during the period from
the close of business on any Regular Record Date to the opening of business on
the next succeeding Interest Payment Date (except Securities called for
redemption on a Redemption Date or to be purchased on a Purchase Date during, in
each case, such period) shall be accompanied by payment in same day funds or
other 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 (or part
thereof, as the case may be) being surrendered for conversion. The interest so
payable on such Interest Payment Date in respect of such Security (or portion
thereof, as the case may be) surrendered for conversion shall be paid to the
Holder of such Security as of such Regular Record Date. Interest payable in
respect of any Security surrendered for conversion on an Interest Payment Date
shall be paid to the Holder of such Security as of the next preceding Regular
Record Date, notwithstanding the exercise of the right of conversion. Except as
provided in this paragraph and subject to the last paragraph of Section 307, no
cash payment or adjustment shall be made upon any conversion on account of, if
the date of conversion is not an Interest Payment Date, any interest accrued
from the Interest Payment Date next preceding the conversion date, in respect of
any Security (or part thereof, as the case may be) surrendered for conversion,
or on account of any dividends on the Common Shares issued upon conversion. The
Company's delivery to the Holder of the number of Common Shares (and cash in
lieu of fractions thereof, as provided in this Indenture) into which a Security
is convertible will be deemed to satisfy the Company's obligation to pay the
principal amount of the Security.
Securities shall be deemed to have been converted immediately prior to the
close of business on the day of surrender of such Securities for conversion (the
"Conversion Date") in accordance with the foregoing provisions, and at such time
the rights of the holders of such Securities as holders shall cease, and the
Person or Persons entitled to receive the Common Shares issuable upon conversion
shall be treated for all purposes as the record holder or holders of such Common
Shares at such time. As promptly as practicable on or after the Conversion Date,
the Company shall issue and deliver to the Trustee, for delivery to the Holder,
a certificate or certificates for the number of full shares of Common Shares
issuable upon conversion, together with payment in lieu of any fraction of a
share, as provided in Section 1203.
In the case of any Security which is converted in part only, upon such
conversion the Company shall execute and the Trustee shall authenticate and
deliver to the Holder thereof, at the expense of the Company, a new Security or
Securities of authorized denominations in an aggregate principal amount equal to
the unconverted portion of the principal amount of such Security. A Security may
be converted in part, but only if the principal amount of such Security to be
converted is any integral multiple of $1.00.
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SECTION 1203. Fractions of Shares.
No fractional Common Share shall be issued upon conversion of any
Securities. If more than one Security shall be surrendered for conversion at one
time by the same Holder, the number of full shares which shall be issuable upon
conversion thereof shall be computed on the basis of the aggregate principal
amount of the Securities (or specified portions thereof) so surrendered. Instead
of any fractional Common Share which would otherwise be issuable upon conversion
of any Securities (or specified portions thereof), the Company shall calculate
and pay a cash adjustment in respect of such fraction (calculated to the nearest
1/100th of a share) in an amount equal to the same fraction of the current
market price per Common Share (calculated in accordance with Section 1204(8)
below) at the close of business on the day of conversion.
SECTION 1204. Adjustment of Conversion Price.
The Conversion Price shall be subject to adjustments from time to time as
follows:
(1) In case the Company shall pay or make a dividend or other distribution
on any class of capital stock of the Company payable in Common Stock, the
Conversion Price in effect at the opening of business on the day following the
date fixed for the determination of stockholders entitled to receive such
dividend or other distribution shall be reduced by multiplying such Conversion
Price by a fraction of which the numerator shall be the number of shares of
Common Stock outstanding at the close of business on the date fixed for such
determination and the denominator shall be the sum of such number of shares and
the total number of shares constituting such dividend or other distribution,
such reduction to become effective immediately after the opening of business on
the day following the date fixed for such determination. For the purposes of
this paragraph (1), the number of shares of Common Stock at any time outstanding
shall not include shares held in the treasury of the Company but shall include
shares issuable in respect of scrip certificates issued in lieu of fractions of
shares of Common Stock. The Company will not pay any dividend or make any
distribution on shares of Common Stock held in the treasury of the Company.
(2) In case the Company shall issue rights, options or warrants to all
holders of any class of Common Stock entitling them to subscribe for or purchase
shares of any class of Common Stock at a price per share less than the current
market price per share (determined as provided in paragraph (8) of this Section)
of such class of Common Stock on the date fixed for the determination of
shareholders entitled to receive such rights, options or warrants, the
Conversion Price in effect at the opening of business on the day following the
date fixed for such determination shall be reduced by multiplying such
Conversion Price by a fraction of which the numerator shall be the number of
shares of Common Stock outstanding at the close of business on the date fixed
for such determination plus the number of shares of Common Stock which the
aggregate of the offering price of the total number of shares of Common Stock so
offered for subscription or purchase would purchase at such current market price
and the denominator shall be the number of shares of Common Stock outstanding at
the close of business on the date fixed for such determination plus the number
of shares of Common Stock so offered for subscription or purchase, such
reduction to become effective immediately after the opening of business on the
day following the date fixed for such determination. For the purposes of this
paragraph (2), the number of shares of Common Stock at any time outstanding
shall not include shares held in the treasury of the Company but shall include
shares issuable in respect of scrip certificates issued in lieu of fractions of
shares of Common Stock. The Company will not issue any rights, options or
warrants in respect of shares of Common Stock held in the treasury of the
Company.
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(3) In case outstanding shares of any class of Common Stock shall be
subdivided into a greater number of shares of such class of Common Stock, and,
conversely, in case outstanding shares of any class of Common Stock shall each
be combined into a smaller number of shares of such class of Common Stock, the
Conversion Price in effect at the opening of business on the day following the
day upon which such subdivision or combination becomes effective shall be
adjusted by the Company so that the same shall equal the price determined by
multiplying the Conversion Price in effect immediately prior to the
effectiveness of the Conversion Price adjustment contemplated by this
subparagraph (3) by a fraction of which the numerator shall be the number of
shares of Common Stock outstanding immediately prior to such subdivision or
combination and the denominator shall be the number of shares of Common Stock
outstanding immediately after giving effect to such subdivision or combination,
such adjustment to become effective immediately after the opening of business on
the day following the day upon which such subdivision or combination becomes
effective.
(4) In case the Company shall, by dividend or otherwise, distribute to all
holders of its Common Stock evidences of its indebtedness, shares of any class
of capital stock, or other property (including securities, but excluding (i) any
rights, options or warrants referred to in paragraph (2) of this Section, (ii)
any dividend or distribution paid exclusively in cash, (iii) any dividend or
distribution referred to in paragraph (1) of this Section and (iv) any merger or
consolidation to which Section 1211 applies), the Conversion Price shall be
adjusted so that the same shall equal the price determined by multiplying the
Conversion Price in effect immediately prior to the close of business on the
date fixed for the determination of stockholders entitled to receive such
distribution by a fraction of which (i) the numerator shall be the current
market price per share (determined as provided in paragraph (8) of this Section)
of the Common Stock on the third Trading Day prior to the date fixed for such
determination (the "Reference Date") less the then fair market value (as
determined by the Board of Directors, whose determination shall be conclusive
and described in a Board Resolution) on the Reference Date of the portion of the
assets, shares or evidences of indebtedness so distributed applicable to one
share of Common Stock and the denominator shall be the current market price per
share of Common Stock on the Reference Date, such adjustment to become effective
immediately prior to the opening of business on the day following the Reference
Date.
(5) In case the Company shall, by dividend or otherwise, distribute to all
holders of any class of its Common Stock cash (excluding any cash that is
distributed upon a merger or consolidation to which Section 1211 applies or as
part of a distribution referred to in paragraph (4) of this Section) in an
aggregate amount that, combined together with (I) the aggregate amount of any
other cash distributions to all holders of any class of its Common Stock made
exclusively in cash within the 12 months preceding the date of payment of such
distribution and in respect of which no adjustment pursuant to this paragraph
(5) has been made and (II) the aggregate of any cash plus the fair market value
(as determined by the Board of Directors, whose determination shall be
conclusive and described in a Board Resolution) of consideration payable in
respect of any tender offer by the Company or any of its subsidiaries for all or
any portion of any class of Common Stock concluded within the 12 months
preceding the date of payment of such distribution and in respect of which no
adjustment pursuant to paragraph (6) of this Section has been made, exceeds
30.0% of the product of the current market price per share of Common Stock on
the date for the determination of holders of Common Stock entitled to receive
such distribution times the number of shares of all classes of Common Stock
outstanding on such date, then, and in each such case, immediately after the
close of business on such date for determination, the Conversion Price shall be
adjusted so that the same shall equal the price determined by multiplying the
Conversion Price in effect immediately prior to the close of business on the
date fixed for determination of the stockholders entitled to receive such
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distribution by a fraction (i) the numerator of which shall be equal to the
current market price per share (determined as provided in paragraph (8) of this
Section) of the Common Stock on the date fixed for such determination less an
amount equal to the quotient of (x) the excess of such combined amount in (I)
and (II) above over such 30.0% and (y) the number of shares of all classes of
Common Stock outstanding on such date for determination and (ii) the denominator
of which shall be equal to the current market price per share (determined as
provided in paragraph (8) of this Section) of the Common Stock on such date for
determination.
(6) In case a tender or exchange offer (other than an odd-lot offer) made
by the Company or any Subsidiary for all or any portion of any class of Common
Stock shall expire and such tender or exchange offer shall involve the payment
by the Company or such Subsidiary of consideration per share of such class of
Common Stock having a fair market value (as determined by the Board of
Directors, whose determination shall be conclusive and described in a Board
Resolution) at the last time (the "Expiration Time") tenders or exchanges may be
made pursuant to such tender or exchange offer (as it shall have been amended)
that exceeds 120% of the current market price per share (determined as provided
in paragraph (8) of this Section) of such class of Common Stock as of the
Trading Day next succeeding the Expiration Time, the Conversion Price shall be
reduced so that the same shall equal the price determined by multiplying the
Conversion Price in effect immediately prior to the effectiveness of the
Conversion Price reduction contemplated by this subparagraph (6) by a fraction
of which the numerator shall be the sum of the product of the number of shares
of each class of Common Stock outstanding (including any tendered or exchanged
shares) at the Expiration Time multiplied by the respective current market price
per share (determined as provided in paragraph (8) of this Section) of each such
class of Common Stock on the Trading Day next succeeding the Expiration Time and
the denominator shall be the sum of (x) the fair market value (determined as
aforesaid) of the aggregate consideration payable to stockholders based on the
acceptance (up to any maximum specified in the terms of the tender or exchange
offer) of all shares validly tendered or exchanged and not withdrawn as of the
Expiration Time (the shares deemed so accepted, up to any such maximum, being
referred to as the "Purchased Shares") and (y) the sum of the products of the
number of shares of each class of Common Stock outstanding (less any Purchased
Shares) at the Expiration Time and the respective current market price per share
(determined as provided in paragraph (8) of this Section) of each such class of
Common Stock on the Trading Day next succeeding the Expiration Time, such
reduction to become effective immediately prior to the opening of business on
the day following the Expiration Time.
(7) The reclassification of any class of Common Stock into securities
including other than Common Stock (other than any reclassification upon a
consolidation or merger to which Section 1211 applies) shall be deemed to
involve (a) a distribution of such securities other than Common Stock to all
holders of Common Stock (and the effective date of such reclassification shall
be deemed to be "the date fixed for the determination of stockholders entitled
to receive such distribution" and "the date fixed for such determination" within
the meaning of paragraph (4) of this Section), and (b) a subdivision or
combination, as the case may be, of the number of shares of such class of Common
Stock outstanding immediately prior to such reclassification into the number of
shares of Common Stock outstanding immediately thereafter (and the effective
date of such reclassification shall be deemed to be "the day upon which such
subdivision becomes effective" or "the day upon which such combination becomes
effective", as the case may be, and "the day upon which such subdivision or
combination becomes effective" within the meaning of paragraph (3) of this
Section).
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(8) For the purpose of any computation under paragraphs (2), (4), (5) or
(6) of this Section 1204, the current market price per share of a class of
Common Stock on any date shall be calculated by the Company and be deemed to be
the average of the daily Closing Prices Per Share of such class for the five
consecutive Trading Days selected by the Company commencing not more than 10
Trading Days before, and ending not later than, the earlier of the day in
question and the day before the "ex" date with respect to the issuance or
distribution requiring such computation. For purposes of this paragraph, the
term "ex date", when used with respect to any issuance or distribution, means
the first date on which such class of Common Stock trades regular way in the
applicable securities market or on the applicable securities exchange without
the right to receive such issuance or distribution.
(9) No adjustment in the Conversion Price shall be required unless such
adjustment (plus any adjustments not previously made by reason of this paragraph
(9)) would require an increase or decrease of at least one percent in such
price; provided, however, that any adjustments which by reason of this paragraph
(9) are not required to be made shall be carried forward and taken into account
in any subsequent adjustment. All calculations under this Article shall be made
to the nearest cent or to the nearest one-hundredth of a share, as the case may
be.
(10) The Company may make such reductions in the Conversion Price, for the
remaining term of the Securities or any shorter term, in addition to those
required by paragraphs (1), (2), (3), (4), (5) and (6) of this Section 1204, as
it considers to be advisable in order to avoid or diminish any income tax to any
holders of Common Shares resulting from any dividend or distribution of stock or
issuance of rights or warrants to purchase or subscribe for stock or from any
event treated as such for income tax purposes.
SECTION 1205. Notice of Adjustments of Conversion Price.
Whenever the Conversion Price is adjusted as herein provided:
(1) the Company shall compute the adjusted Conversion Price in
accordance with Section 1204 and shall prepare a certificate signed by the
Treasurer of the Company setting forth the adjusted Conversion Price and
showing in reasonable detail the facts upon which such adjustment is based,
and such certificate shall promptly be filed with the Trustee and with each
Conversion Agent; and
(2) a notice stating that the Conversion Price has been adjusted and
setting forth the adjusted Conversion Price shall forthwith be required,
and as soon as practicable after it is required, such notice shall be
provided by the Company to all holders in accordance with Section 106.
Neither the Trustee nor any Conversion Agent shall be under any duty or
responsibility with respect to any such certificate or the information and
calculations contained therein, except to exhibit the same to any Holder of
Securities desiring inspection thereof at its office during normal business
hours.
SECTION 1206. Notice of Certain Corporate Action.
In case:
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(a) the Company shall declare a dividend (or any other distribution)
on any class of its Common Stock payable (i) otherwise than exclusively in
cash or (ii) exclusively in cash in an amount that would require any
adjustment pursuant to Section 1204; or
(b) the Company shall authorize the granting to all holders of any
class of its Common Stock of rights, options or warrants to subscribe for
or purchase any shares of Capital Stock of any class or of any other
rights; or
(c) of any reclassification of any class of Common Stock of the
Company (other than a subdivision or combination of its outstanding shares
of Common Stock), or of any consolidation or merger to which the Company is
a party and for which approval of any stockholders of the Company is
required, or of the sale or transfer 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; or
(e) the Company or any Subsidiary shall commence a tender offer for
all or a portion of any class of the Company's outstanding shares of Common
Stock that would require an adjustment of the Conversion Price pursuant to
paragraph (6) of Section 1204 (or shall amend any such tender offer);
then the Company shall cause to be filed at each office or agency maintained for
the purpose of conversion of Securities pursuant to Section 1002, and shall
cause to be provided to all holders in accordance with Section 106, at least 20
days (or 10 days in any case specified in clause (a) or (b) above) prior to the
applicable record, expiration or effective date hereinafter specified, a notice
stating (x) 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 Common Stock of record to be
entitled to such dividend, distribution, rights, options or warrants are to be
determined, (y) the date on which the right to make tenders under such tender
offer expires or (z) the date on which such reclassification, consolidation,
merger, share exchange, conveyance, transfer, sale, lease, dissolution,
liquidation or winding up is expected to become effective, and the date as of
which it is expected that holders of Common Stock of record shall be entitled to
exchange their shares of Common Stock for securities, cash or other property
deliverable upon such reclassification, consolidation, merger, share exchange,
conveyance, transfer, sale, lease, dissolution, liquidation or winding up. If at
the time the Trustee shall not be the conversion agent, a copy of such notice
and any notice referred to in the following paragraph shall also forthwith be
filed by the Company with the Trustee.
SECTION 1207. Company to Reserve Common Shares.
The Company shall at all times reserve and keep available, free from
preemptive rights, out of its authorized but unissued Common Shares, for the
purpose of effecting the conversion of Securities, the full number of Common
Shares then issuable upon the conversion of all Outstanding Securities.
SECTION 1208. Taxes on Conversions.
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The Company will pay any and all taxes and duties that may be payable in
respect of the issue or delivery of shares of Common Shares on conversion of
Securities pursuant hereto. The Company shall not, however, be required to pay
any tax or duty which may be payable in respect of any transfer involved in the
issue and delivery of shares of Common Shares in a name other than that of the
Holder of the Security or Securities to be converted, 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 duty, or has established to
the satisfaction of the Company that such tax or duty has been paid.
SECTION 1209. Covenant as to Common Shares.
The Company agrees that all Common Shares which may be delivered upon
conversion of Securities, upon such delivery, will have been duly authorized and
validly issued and will be fully paid and nonassessable and free of any liens,
charges or adverse claims.
SECTION 1210. Cancellation of Converted Securities.
All Securities delivered for conversion shall be delivered to the Trustee
or its agent to be canceled by or at the direction of the Trustee, which shall
dispose of the same as provided in Section 308.
SECTION 1211. Provision in Case of Amalgamation, Consolidation, Merger or
Sale of Assets.
In case of any amalgamation or consolidation of the Company with, or merger
of the Company into, any other Person, any merger of another Person into the
Company (other than a merger which does not result in any reclassification,
conversion, exchange or cancellation of outstanding Common Shares of the
Company) or any sale or transfer of all or substantially all of the assets of
the Company, the Person formed by such amalgamation or consolidation or
resulting from such merger or which acquires such assets, as the case may be,
shall execute and deliver to the Trustee a supplemental indenture providing that
the Holder of each Security then Outstanding shall have the right thereafter,
during the period such Security shall be convertible as specified in Section
1201, to convert such Security only into the kind and amount of securities, cash
and other property receivable upon such amalgamation, consolidation, merger,
sale or transfer by a holder of the number of shares of Common Shares of the
Company into which such Security might have been converted immediately prior to
such amalgamation, consolidation, merger, sale or transfer, [SUBJECT TO ANY
REQUIREMENTS NECESSARY TO ENSURE THAT THE SECURITIES WILL NOT BE SUBJECT TO
CANADIAN WITHHOLDING TAX AS A RESULT OF SUCH EVENT,] and assuming such holder of
Common Shares of the Company (i) is not a Person with which the Company
consolidated or amalgamated or into which the Company merged or which merged
into the Company or to which such sale or transfer was made, as the case may be
("Constituent Person"), or an Affiliate of a Constituent Person and (ii) failed
to exercise his rights of election, if any, as to the kind or amount of
securities, cash and other property receivable upon such consolidation,
amalgamation, merger, sale or transfer (provided that if the kind or amount of
securities, cash and other property receivable upon such consolidation,
amalgamation, merger, sale or transfer is not the same for each Common Share of
the Company held immediately prior to such consolidation, amalgamation, merger,
sale or transfer by Persons other than a Constituent Person or an Affiliate
thereof and in respect of which such rights of election shall not have been
exercised ("Non-electing Share"), then for the purpose of this Section 1211 the
kind and amount of securities, cash and other property receivable upon such
amalgamation, consolidation, merger, sale or transfer by the holders of each
Non-electing Share shall be deemed to be the kind and amount so receivable per
share by a plurality of the Non-electing Shares) [SUBJECT, HOWEVER, TO ANY
REQUIREMENTS NECESSARY TO ENSURE THAT
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THE SECURITIES WILL BE AND WILL REMAIN EXEMPT FROM CANADIAN WITHHOLDING TAX
INCLUDING, WITHOUT LIMITATION, THE REQUIREMENT IN EFFECT ON THE DATE HEREOF THAT
A HOLDER OF SECURITIES SHALL NOT BE ENTITLED TO RECEIVE SHARES, OTHER SECURITIES
OR PROPERTY, OTHER THAN SHARES THAT ARE "PRESCRIBED SECURITIES" AS DEFINED IN
REGULATION 6208 TO THE INCOME TAX ACT (CANADA), IN THE EVENT THAT ANY SUCH
AMALGAMATION, CONSOLIDATION, MERGER OR TRANSFER OCCURS ON OR PRIOR TO FIVE YEARS
AFTER THE DATE OF ORIGINAL ISSUE OF THE SECURITIES]. Such supplemental indenture
shall provide for adjustments which, for events subsequent to the effective date
of such supplemental indenture, shall be as nearly equivalent as may be
practicable to the adjustments provided for in this Article. The above
provisions of this Section 1211 shall similarly apply to successive
consolidations, mergers, sales or transfers. Notice of the execution of such a
supplemental indenture shall be given by the Company to the Holder of each
Security as provided in Section 106 promptly upon such execution.
SECTION 1212. Responsibility of Trustee.
Neither the Trustee nor any authenticating agent nor any Conversion Agent
shall at any time be under any duty or responsibility to any Holder of
Securities to determine whether any facts exist which may require any adjustment
of the Conversion Price, or with respect to the nature or extent of any such
adjustment when made, or with respect to the method employed, or herein or in
any supplemental indenture provided to be employed, in making the same. Neither
the Trustee nor any authenticating agent nor any Conversion Agent shall be
accountable with respect to the validity or value (or the kind or amount) of any
Common Shares, or of any securities or property, which may at any time be issued
or delivered upon the conversion of any Securities; and neither the Trustee nor
any authenticating agent nor any Conversion Agent makes any representation with
respect thereto. Neither the Trustee nor any authenticating agent nor any
Conversion Agent shall be responsible for any failure of the Company to issue,
transfer or deliver any Common Shares or stock certificates or other securities
or property or cash upon the surrender of any Securities for the purpose of
conversion or to comply with any of the covenants of the Company contained in
this Article.
ARTICLE 13
Subordination of Securities
SECTION 1301. Securities Subordinated to Senior Indebtedness.
All Securities issued under this Indenture shall be issued subject to the
following provisions and each Holder of any Security whether upon original issue
or upon transfer or assignment thereof accepts and agrees to be bound by such
provisions.
All Securities issued hereunder shall, to the extent and in the manner
hereinafter set forth, be subordinated and subject in right of payment to the
prior payment in full of all Senior Indebtedness. "Senior Indebtedness" means
(i) the principal, premium, if any, and interest in respect of indebtedness of
the Company for money borrowed, or evidenced by securities, debentures, bonds or
other similar instruments issued by the Company, or pursuant to any obligation
of the Company for the reimbursement on any letter of credit, bankers
acceptance, security purchase facility or similar credit transaction pursuant to
a credit facility with or agented by, a Bank, including pursuant to the Exit
Facility and the Credit Agreement, (ii) any amendments, renewals, extensions,
refinancings, replacements or refundings of any obligations of the type referred
to in clause (i) above (regardless of whether such amendment, renewal,
extension, refinancing, replacement or refunding is pursuant to a credit
facility with or agented by a Bank), (iii) all obligations of the type referred
to in clauses (i) and (ii) above of other persons
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<PAGE> 77
for the payment of which the Company is responsible or liable as obligor,
guarantor or otherwise, and (iv) all obligations of the type referred to in
clauses (i) through (iii) above of other persons secured by any lien on any
property or asset of the Company (whether or not such obligation is assumed by
the Company), except for any such indebtedness or other obligation that is by
its terms subordinated to or pari passu with the Securities.
SECTION 1302. No Payments in Certain Circumstances;
Payment Over of Proceeds Upon Dissolution, Etc.
No payment on account of principal of, premium, if any, or interest on, or
redemption or purchase of, the Securities shall be made if, at the time of such
payment or immediately after giving effect thereto: (i) there shall exist a
default in the payment of principal of, premium, if any, sinking funds or
interest (including a default under any purchase or redemption obligations) with
respect to any Senior Indebtedness, or (ii) there shall have occurred an event
of default (other than a default in the payment of principal, premium, if any,
sinking funds or interest) with respect to any Senior Indebtedness, as defined
therein or in the instrument under which the same is outstanding, permitting the
holders thereof to accelerate the maturity thereof and written notice of such
occurrence shall have been given to the Company and to the Trustee under this
Indenture by the holder or holders of such Senior Indebtedness and such event of
default shall not have been cured or waived or shall not have ceased to exist.
Notwithstanding the foregoing, the Company may make, and the Trustee may receive
and shall apply, any payment in respect of the Securities (for principal,
premium, if any, or interest or purchase) if such payment was made prior to the
occurrence of any of the contingencies specified in clauses (i) and (ii) above.
Upon (i) any acceleration of the principal amount due on the Securities or
(ii) any payment or distribution of assets of the Company of any kind or
character, whether in cash, property or securities, to creditors upon any
dissolution or winding up or total or partial liquidation or reorganization of
the Company, whether voluntary or involuntary or in bankruptcy, insolvency,
receivership or other proceedings, all principal of, premium, if any, sinking
fund and interest due or to become due upon all Senior Indebtedness shall first
be paid in full, or payment thereof provided for in money or money's worth in
accordance with its terms, before any payment is made on account of the
principal of, or interest on, or purchase of, the indebtedness evidenced by the
Securities, and upon any such dissolution or winding up or liquidation or
reorganization any payment or distribution of assets of the Company of any kind
or character, whether in cash, property or securities, to which the holders of
the Securities or the Trustee under this Indenture would be entitled, except for
the provisions hereof, shall be paid by the Company or by any receiver, trustee
in bankruptcy, liquidating trustee, agent or other Person making such payment or
distribution, or by the holders of the Securities or by the Trustee under this
Indenture if received by them or it, as the case may be, directly to the holders
of Senior Indebtedness (pro rata to each such holder on the basis of the
respective amounts of Senior Indebtedness held by such holder) or their
representatives, to the extent necessary to pay all Senior Indebtedness in full,
in money or money's worth, after giving effect to any concurrent payment or
distribution to or for the holders of Senior Indebtedness, before any payment or
distribution is made to the holders of the Securities or to the Trustee under
this Indenture.
If any default or event described in the first paragraph of this Section
1302 shall have occurred, any payment or distribution of assets of the Company
of any kind or character, whether in cash, property or securities, received by
the Trustee or the holders of the Securities before all Senior Indebtedness is
paid in full or provision made for such payment, in accordance with its terms
shall be held in trust for the benefit of, and shall be paid over or delivered
to, the holders of such Senior Indebtedness or their
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<PAGE> 78
representative or representatives, or to the trustee or trustees under any
indenture pursuant to which any instruments evidencing any of such Senior
Indebtedness have been issued, as their respective interests may appear, for
application to the payment of all Senior Indebtedness remaining unpaid to the
extent necessary to pay all such Senior Indebtedness in full in accordance with
its terms, after giving effect to any concurrent payment or distribution to or
for the holders of such Senior Indebtedness.
Subject to the payment in full of all Senior Indebtedness, the holders of
the Securities (together with the holders of any other indebtedness of the
Company which is subordinated in right of payment to the payment in full of all
Senior Indebtedness, which is not subordinated in right of payment to the
Securities and which by its terms grants such right of subrogation to the
holders thereof) shall be subrogated to the rights of the holders of Senior
Indebtedness to receive payments or distributions of assets of the Company made
on the Senior Indebtedness until the principal of, premium, if any, and interest
on, or purchase of, the Securities shall be paid in full; and, for the purposes
of such subrogation, no payments or distributions to the holders of Senior
Indebtedness 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 payment over pursuant to the provisions of this Article to the
holders of Senior Indebtedness by the holders of the Securities or the Trustee,
shall, as between the Company, its creditors other than the holders of Senior
Indebtedness, and the holders of Securities, be deemed to be a payment by the
Company to the holders of or on account of Senior Indebtedness, it being
understood that the provisions of this Article are and are intended solely for
the purpose of defining the relative rights of the holders of the Securities, on
the one hand, and the holders of Senior Indebtedness, on the other hand.
SECTION 1303. Notice to Trustee of Specified Events;
Reliance on Certificate of Liquidating Agent.
The Company shall give prompt written notice to the Trustee of any
insolvency or bankruptcy proceeding in respect of the Company, of any
proceedings for voluntary liquidation, dissolution or other winding up of the
Company (whether or not involving insolvency or bankruptcy), of the declaration
of any Security as due and payable before its expressed maturity, and of any
event which pursuant to Section 1302 would prevent payment by the Company on
account of the principal, or interest on, or purchase of, the Securities. The
Trustee, subject to the provisions of Section 601, shall be entitled to assume
that no such event has occurred unless the Company, or a holder of Senior
Indebtedness, or any trustee therefor, has given such notice.
Upon any distribution of assets of the Company or payment by or on behalf
of the Company referred to in this Article, the Trustee and the holders of the
Securities shall be entitled to rely upon any order or decree of a court of
competent jurisdiction in which any proceedings of the nature referred to in
Section 1302 are pending, and the Trustee, subject to the provisions of Section
601, and the holders of the Securities shall be entitled to rely upon a
certificate of the liquidating trustee or agent or other Person making any
distribution to the Trustee or to the holders of the Securities for the purpose
of ascertaining the Persons entitled to participate in such distribution, the
holders of the Senior Indebtedness and other indebtedness of the Company, the
amount thereof or payable thereon, the amount or amounts paid or distributed
thereon and all other facts pertinent thereto or to this Article. In the event
that the Trustee determines, in good faith, that further evidence is required
with respect to the right of any Person as a holder of Senior Indebtedness 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
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<PAGE> 79
amount of Senior Indebtedness held by such Person, as to the extent to which
such Person is entitled to participate in such payment or distribution, and as
to 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.
The Trustee shall be entitled to rely on the delivery to it of a written
notice by a Person representing itself to be a holder of Senior Indebtedness (or
a trustee on behalf of such holder) to establish that such notice has been given
by a holder of Senior Indebtedness or a trustee on behalf of any such holder or
holders. In the event that the Trustee determines in good faith that further
evidence is required with respect to the right of any Person as a holder of
Senior Indebtedness to participate in any payment or distribution pursuant to
this Article Thirteen, the Trustee may request such Person to furnish evidence
to the reasonable satisfaction of the Trustee as to the amount of Senior
Indebtedness 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 Thirteen 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 1304. Trustee to Effectuate Subordination.
The Holder of each Security by its acceptance thereof authorizes and
directs the Trustee on its behalf to take such action as may be necessary or
appropriate to acknowledge or effectuate the subordination as provided in this
Article and appoints the Trustee as attorney-in-fact for any and all such
purposes.
SECTION 1305. Trustee Not Charged with Knowledge of Prohibition.
Notwithstanding the provisions of this Article or any other provision of
this Indenture, but subject to the provisions of Section 601 as between the
holders of Securities and the Trustee, neither the Trustee nor any Paying Agent
shall be charged with knowledge of any facts which would prohibit the making of
any payment of moneys to or by the Trustee or any such Paying Agent, unless and
until the Trustee or such Paying Agent shall have received written notice
thereof at its Corporate Trust Office from the Company or any holder of Senior
Indebtedness or the trustee or representative of any holder of such Senior
Indebtedness on his behalf; and, prior to the receipt of any such written
notice, the Trustee and any such Paying Agent shall be entitled to assume that
no such facts exist. If the Trustee or Paying Agent, as the case may be, shall
not have received, at least three Business Days prior to the date upon which by
the terms hereof any such moneys may become payable for any purpose (including,
without limitation, the payment of the principal of, premium, if any, or the
interest on any Security) with respect to such moneys, the notice provided for
in this Section, then, anything herein contained to the contrary
notwithstanding, the Trustee and such Paying Agent, as the case may be, shall
have full power and authority to receive such moneys and to apply the same to
the purpose for which they were received and shall not be affected by any notice
to the contrary which may be received by it within three Business Days prior to
such date.
SECTION 1306. Trustee Not Fiduciary for Holders of Senior Indebtedness.
The Trustee shall not be deemed to owe any fiduciary duty to the holders of
Senior Indebtedness and shall not be liable to any such holders if it shall in
good faith mistakenly pay over or distribute to
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<PAGE> 80
holders of Securities or to the Company or to any other Person cash, property or
securities to which any holders of Senior Indebtedness shall be entitled by
virtue of this Article or otherwise.
With respect to the holders of Senior Indebtedness, the Trustee undertakes
to perform or to observe only such of its covenants or obligations as are
specifically set forth in this Article and no implied covenants or obligations
with respect to holders of Senior Indebtedness shall be read into this Indenture
against the Trustee.
SECTION 1307. Rights of Trustee as Holder of Senior Indebtedness;
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 Indebtedness which may at
any time be held by it, to the same extent as any other holder of Senior
Indebtedness, 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 607.
SECTION 1308. 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
Sections 1305, 1306 and 1307 shall not apply to the Company or any Affiliate of
the Company if it or such Affiliate acts as Paying Agent.
SECTION 1309. Certain Conversions Deemed Payment.
For the purposes of this Article only, (1) the issuance and delivery of
junior securities upon conversion of Securities in accordance with Article
Twelve shall not be deemed to constitute a payment or distribution on account of
the principal of or premium or interest on Securities or on account of the
purchase or other acquisition of Securities, and (2) the payment, issuance or
delivery of cash, property or securities (other than junior securities) upon
conversion of a Security shall be deemed to constitute payment on account of the
principal of such Security. For the purposes of this Section, the term "junior
securities" means Common Shares and any other cash, property or securities into
which the Securities are convertible pursuant to Article Twelve. Nothing
contained in this Article or elsewhere in this Indenture or in the Securities is
intended to or shall impair, as among the Company, its creditors other than
holders of Senior Indebtedness and the holders of the Securities, the right,
which is absolute and unconditional, of the Holder of any Security to convert
such Security in accordance with Article Twelve.
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ARTICLE 14
Change of Control
SECTION 1401. Change of Control.
(a) Within 30 days of the occurrence of a Change of Control, the Company
will be required to mail an Offer with respect to an Offer to Purchase all
Outstanding Securities at the Purchase Price thereof plus accrued interest to
the Purchase Date (provided, however, that installments of interest whose Stated
Maturity is on or prior to the Purchase 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 Record Dates according to their terms and
the provisions of Section 307). Each Holder shall be entitled to tender all or
any portion of the Securities owned by such Holder pursuant to the Offer to
Purchase, subject to the requirement that any portion of a Security tendered
must be tendered in an integral multiple of $1.00 principal amount.
(b) The Company and the Trustee shall perform their respective obligations
specified in the Offer for an Offer to Purchase. Prior to the Purchase Date, the
Company shall (i) accept for payment Securities or portions thereof tendered
pursuant to the Offer, (ii) deposit with the Paying Agent (or, if the Company is
acting as its own Paying Agent, segregate and hold in trust as provided in
Section 1003) money sufficient to pay the purchase price of all Securities or
portions thereof so accepted and (iii) deliver or cause to be delivered to the
Trustee all Securities so accepted together with an Officers' Certificate
stating the Securities or portions thereof accepted for payment by the Company.
The Paying Agent shall promptly mail or deliver to Holders of Securities so
accepted payment in an amount equal to the purchase price, and the Trustee shall
promptly authenticate and mail or deliver to such Holders a new Security or
Securities equal in principal amount to any unpurchased portion of the Security
surrendered as requested by the Holder. Any Security not accepted for payment
shall be promptly mailed or delivered by the Company to the Holder thereof. The
Company shall publicly announce the results of the Offer on or as soon as
practicable after the Purchase Date.
(c) Any Offer to Purchase shall be governed by and effected in accordance
with the Offer for such Offer to Purchase.
SECTION 1402. Certain Definitions.
For purposes of this Article 14,
(1) "beneficial owner" shall be determined in accordance with Rule 13d-3,
as in effect on the date of the original execution of this Indenture,
promulgated by the Commission pursuant to the Exchange Act;
(2) a "Change of Control" shall be deemed to have occurred (unless the
Company is discharged from its obligations with respect to the Securities in
accordance with Article 4) at the time, after the original issuance of the
Securities, of: (i) an event or series of events by which any Person or other
entity or Group of Persons (other than a Permitted Holder) (such Person or group
of Persons, an "Acquiror") shall, as a result of (A) a tender or exchange offer,
open market purchases or privately negotiated purchases, or (B) a merger,
consolidation, amalgamation or otherwise, have become the
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<PAGE> 82
beneficial owner of more than 50% of the aggregate voting power of all classes
of Voting Stock of the Company; or (ii) the Company is amalgamated or
consolidated with or merged into another corporation with the effect that
immediately after such transaction the shareholders of the Company immediately
prior to such transaction beneficially own less than a majority of the voting
power of all classes of Voting Stock of the Person surviving such transaction,
and the Acquiror beneficially owns more than a majority of the voting power of
all classes of Voting Stock of the Person surviving such transaction; provided,
however, that a Change of Control shall not be deemed to have occurred if either
(x) the Closing Price Per Share on any five Trading Days within the period of 10
consecutive Trading Days ending immediately after the later of the date of the
Change of Control or the date of the public announcement of the Change of
Control (in the case of a Change of Control under Clause (i)(A) above) or ending
immediately prior to the date of the Change of Control (in the case of a Change
of Control under Clauses (i)(B) or (ii) above) shall equal or exceed 105% of the
Conversion Price in effect on such date or (y) all the consideration (excluding
cash payments for fractional shares) to be paid for the Common Shares in a
transaction or transactions constituting the Change of Control as described in
Clauses (i)(B) or (ii) above consists of shares of common stock of a Person,
which common stock is traded on a United States national securities exchange or
quoted on Nasdaq and as a result of such transaction or transactions the
Securities become convertible solely into such common stock;
(3) "Offer" has the meaning specified in the definition of Offer to
Purchase.
(4) "Offer Expiration Date" has the meaning specified in the definition of
Offer to Purchase.
(5) "Offer to Purchase" means a written offer (the "Offer") sent by the
Company by first class mail, postage prepaid, to each Holder at its address
appearing in the Securities Register on the date of the Offer. Unless otherwise
required by applicable law, the Offer shall specify an expiration date (the
"Offer Expiration Date") of the Offer to Purchase which shall be, subject to any
contrary requirements of applicable law, not less than 30 days or more than 60
days after the date of such Offer and a settlement date (the "Purchase Date")
for purchase of Securities within five Business Days after the Offer Expiration
Date. The Company shall notify the Trustee at least 15 Business Days (or such
shorter period as is acceptable to the Trustee) prior to the mailing of the
Offer of the Company's obligation to make an Offer to Purchase, and the Offer
shall be mailed by the Company or, at the Company's request, by the Trustee in
the name and at the expense of the Company. The Offer shall contain information
concerning the business of the Company and its Restricted Subsidiaries which the
Company in good faith believes will enable such Holders to make an informed
decision with respect to the Offer to Purchase. The Offer shall contain all
instructions and materials necessary to enable such Holders to tender Securities
pursuant to the Offer to Purchase. The Offer shall also state:
(A) the Offer Expiration Date and the Purchase Date;
(B) the Purchase Price;
(C) that the Holder may tender all or any portion of the Securities
registered in the name of such Holder and that any portion of a Security
tendered must be tendered in an integral multiple of $1.00 principal
amount;
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<PAGE> 83
(D) the place or places where Securities are to be surrendered for
tender pursuant to the Offer to Purchase;
(E) that interest on any Security not tendered or tendered but not
purchased by the Company pursuant to the Offer to Purchase will continue to
accrue;
(F) that on the Purchase Date the Purchase Price will become due and
payable upon each Security being accepted for payment pursuant to the Offer
to Purchase and that interest thereon shall cease to accrue on and after
the Purchase Date;
(G) the Conversion Price then in effect, the date on which the right
to convert the principal amount of the Securities to be purchased will
terminate and the place or places where such Securities may be surrendered
for conversion;
(H) that each Holder electing to tender a Security pursuant to the
Offer to Purchase will be required to surrender such Security at the place
or places specified in the Offer prior to the close of business on the
Offer Expiration Date (such Security being, if the Company or the Trustee
so requires, duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Company and the Trustee duly executed
by, the Holder thereof or his attorney duly authorized in writing);
(I) that Holders will be entitled to withdraw all or any portion of
Securities tendered if the Company (or the Paying Agent) receives, not
later than the close of business on the Expiration Date, a telegram, telex,
facsimile transmission or letter setting forth the name of the Holder, the
principal amount of the Security the Holder tendered, the certificate
number of the Security the Holder tendered and a statement that such Holder
is withdrawing all or a portion of its tender;
(J) that if Securities in an aggregate principal amount less than or
equal to the Purchase Amount are duly tendered and not withdrawn pursuant
to the Offer to Purchase, the Company shall purchase all such Securities;
and
(K) that in the case of any Holder whose Security is purchased only in
part, the Company shall execute, and the Trustee shall authenticate and
deliver to the Holder of such Security without service charge, a new
Security or Securities, of any authorized denomination as requested by such
Holder, in an aggregate principal amount equal to and in exchange for the
unpurchased portion of the Security so tendered.
(6) "Person" or "Group of Persons" shall include any syndicate or group
which would be deemed to be a "person" under Section 13(d)(3) of the Exchange
Act, as in effect on the date of the original execution of this Indenture.
(7) "Purchase Price" means the following prices (expressed as percentages
of the principal amount) if the Purchase Date is during the 12-month period
beginning -- of each of the years indicated below:
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<PAGE> 84
<TABLE>
<CAPTION>
Purchase
Year Price
---- --------
<S> <C>
1999 64.45915%
2000 68.32670%
2001 72.42630%
2002 76.77187%
2003 81.37819%
2004 86.26088%
2005 88.84870%
2006 91.51417%
2007 94.25959%
2008 97.08738%
</TABLE>
and thereafter at a price equal to 100% of the principal amount.
-----------------------------------------------------
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
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<PAGE> 85
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.
PHILIP SERVICES CORP.
By:_______________________________
Name:
Title:
[NAME OF TRUSTEE]
By:_______________________________
Name:
Title:
75
<PAGE> 86
ANNEX A-1
FORM OF CONVERSION NOTICE
- --------------------------
as Conversion Agent
[Address]
Re: Philips Services Corp.
3% Convertible Subordinated Notes
Due --, 2019 (the "Securities")
Reference is hereby made to the Indenture, dated as of --, 1999 (the
"Indenture"), between Philip Services Corp., as Issuer, and --, as Trustee.
Capitalized terms used but not defined herein shall have the meanings given to
them in the Indenture.
This letter relates to the Securities specified below, which are registered
in the name of the undersigned (the "Holder"). The Holder hereby irrevocably
exercises its right to convert such Securities, or the portion thereof, if any,
specified below, into Common Shares and, as specified below, directs that such
Shares, together with any check in payment for a fractional share and any
Security representing any unconverted principal amount, be issued and delivered
[in book-entry form through the facilities of the Depositary, for credit to the
account(s) of the Person(s)] [in certificated form to the Registered Owner(s)]
indicated below. The Holder understands that, subject to certain limited
exceptions specified in the Indenture, owners of beneficial interests in a
Global Security must hold any Security representing any unconverted principal
amount in book-entry form.
The Holder acknowledges and agrees that no Common Shares will be delivered
upon conversion of such Securities until any amount payable by the Holder on
account of interest is paid, any certificates evidencing specified Securities
not held in book-
A-1-1
<PAGE> 87
entry form are duly endorsed or assigned to the Company or in blank and
surrendered and any taxes or other charges or documents required in connection
with a transfer on conversion, and any other required items, are delivered to
the Conversion Agent.
Conversion of the specified Securities is subject to the requirements
established by the Company and the Trustee pursuant to the Indenture, as well as
to the procedures of the U.S. Depository if such Securities are held or to be
held in book-entry form, all as in effect from time to time. The specified
Securities will be deemed to have been converted immediately prior to the close
of business on the first day on which this conversion notice and all other
required items have been delivered to the Conversion Agent as provided above
and, upon such conversion, shall cease to accrue interest or be Out standing.
A-1-2
<PAGE> 88
Please provide the information requested below, as applicable.
1. PLEASE SPECIFY THE SECURITIES HELD AND THE PORTION
THEREOF TO BE CONVERTED;
Principal amount held: U.S.$______________________________________________
CUSIP number(s):___________________________________________________________
Depositary account where held
(if applicable):__________________________________________________
Principal amount being converted (if less than all):
U.S. $____________________________________________________________
All Securities to be converted will be converted into Common Shares and
(together with any unconverted Securities) will be delivered as specified
in Item 2 below.
2. Please specify the type, number and form of securities to be delivered
on conversion and the name(s) of the account holder(s) or registered
owner(s), by checking the appropriate boxes and providing the
information requested:
<TABLE>
<S> <C> <C>
[ ] Book Entry
Number of Common Shares: __________________________________
Depositary Account: __________________________________
[ ] Certificates
Number of Common Shares: __________________________________
Registered Owner: __________________________________
[ ] Unconverted Book Entry
Principal Amount: U.S.$ _________________________________1
Depositary Account: __________________________________
[ ] Unconverted Certificates
(only in certain instances
defined in the Indenture)
Principal Amount: U.S.$ _________________________________*
Registered Owner: __________________________________
</TABLE>
Please sign and date this notice in the space provided below.
___________________
1 Aggregate principal amount of each certificate must equal U.S. $1.00 or any
integral multiple thereof.
A-1-3
<PAGE> 89
DATE:
____________________________________
Name of Holder
____________________________________
Signature(s) of Holder
Title(s):
(If the Holder is a corporation, partnership or
fiduciary, the title of the Person signing on
behalf of the Holder must be stated.)
Signature(s) must be guaranteed by a commercial bank or trust company or a
member firm of a U.S. national securities exchange or a member of the National
Association of Securities Dealers, Inc. if Common Shares or unconverted
Securities are to be delivered other than to and in the name of the registered
owner.
_____________________________________
Signature Guarantee
A-1-4
<PAGE> 1
Exhibit T3D3
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
- - - - - - - - - - - - - - - - - - - - - - - - - - - -x
:
In re : Chapter 11
:
PHILIP SERVICES (DELAWARE), INC.., et al., : Case No. 99-02385 (MFW)
:
Debtors. : Jointly Administered
:
- - - - - - - - - - - - - - - - - - - - - - - - - - - -x
NOTICE OF (1) APPROVAL OF DISCLOSURE STATEMENT;
(2) HEARING ON CONFIRMATION OF PLAN;
(3) DEADLINE AND PROCEDURES FOR FILING OBJECTIONS TO CONFIRMATION OF PLAN;
(4) TREATMENT OF CERTAIN UNLIQUIDATED, CONTINGENT OR DISPUTED CLAIMS
FOR VOTING AND DISTRIBUTION PURPOSES;
(5) RECORD DATE; AND (6) VOTING DEADLINE FOR RECEIPT OF BALLOTS
TO ALL CREDITORS AND PRESENT AND FORMER EQUITY SECURITY HOLDERS OF PHILIP
SERVICES (DELAWARE), INC., PHILIP SERVICES CORP., THEIR SUBSIDIARIES AND
AFFILIATES, AND OTHER PARTIES IN INTEREST (See list set forth below for complete
list of Affiliate Debtors):
PLEASE TAKE NOTICE that Philip Services (Delaware), Inc. ("PSI"),
Philip Services Corp. ("PSC") and certain of their affiliates (the "Affiliate
Debtors") which are also debtors and debtors-in-possession in the above-
captioned cases (collectively, the "Debtors") are soliciting acceptances of the
First Amended Joint Plan of Reorganization of Philip Services (Delaware), Inc.,
et al. (as may be amended or modified, the "Plan"), from holders of certain
impaired claims who are (or may be) entitled to receive distributions under the
Plan.
PLEASE TAKE FURTHER NOTICE that the Plan consists of several plans
jointly filed by the various Debtors and terms of each individual Plan will be
binding on all holders of claims against, and all present and former holders of
equity security interests in, the respective Debtor should the individual Plan
be confirmed by the United States Bankruptcy Court for the District of Delaware
(the "Bankruptcy Court").
PLEASE TAKE FURTHER NOTICE that the Bankruptcy Court has signed an
order, dated September 21, 1999 (the "Solicitation Procedures Order"), approving
the Disclosure Statement with Respect to First Amended Joint Plan of
Reorganization of Philip Services (Delaware), Inc., et al. (the "Disclosure
Statement") and providing, among other things, that:
1. Confirmation Hearing Date. The hearing to consider confirmation of
the Plan (the "Confirmation Hearing"), shall commence on November 3, 1999 at
9:30 a.m. (prevailing Eastern time) or as soon thereafter as counsel can be
heard, before the Honorable Mary F. Walrath, United States Bankruptcy Judge, in
the United States Bankruptcy Court, Marine Midland Plaza, 824 Market Street, 6th
Floor, Wilmington, Delaware 19801. The Confirmation Hearing may be continued
from time to time by announcing such continuance in open court and the Plan may
be further modified, if necessary, pursuant to 11 U.S.C. ss. 1127 prior to,
during, or as a result of the Confirmation Hearing, without further notice to
parties in interest.
2. Voting Deadline. To be counted, ballots to accept or reject the Plan
must be RECEIVED by 5:00 p.m. (prevailing Eastern time) on October 25, 1999 (the
"Voting Deadline") by the Voting Agent, Logan & Company, Inc., at the following
address:
By Mail, Messenger or Overnight Courier:
Logan & Company, Inc.
546 Valley Road
Upper Montclair, New Jersey 07043
Attn: Philip Services Corp.
Ballots may NOT be cast by facsimile transmission. BALLOTS THAT ARE NOT RECEIVED
BY THE VOTING DEAD LINE WILL NOT BE COUNTED.
3. Objections to Confirmation. October 25, 1999 at 5:00 p.m.
(prevailing Eastern time) is fixed as the last date for filing and serving
objections to confirmation of the Plan (the "Objection Deadline"). To be
considered, objections, if any, to confirmation of the Plan must (a) be in
writing, (b) comply with the Federal Rules of Bankruptcy Procedure and the Local
Bankruptcy Rules, (c) set forth the name of the objector, and the nature and
amount of any claim or interest asserted by the objector against the Debtor, its
estate or its property, (d) state with particularity the legal and factual bases
for the objection, and (e) be filed with the Bankruptcy Court together with
proof of service, and served by personal service, overnight delivery, or first
class mail, so as to be RECEIVED no later than the Objection Deadline by: (a)
counsel for the Debtors, Skadden, Arps, Slate, Meagher & Flom (Illinois), 333
West Wacker Drive, Chicago, Illinois 60606 (Attn: David S. Kurtz, Esq., Jeffrey
W. Linstrom, Esq., J. Gregory St. Clair, Esq.), Skadden, Arps, Slate, Meagher &
Flom LLP, One Rodney Square, P.O. Box 636, Wilmington, Delaware 19899-0636
(Attn: Gregg M. Galardi, Esq.) and Stikeman, Elliot, Commerce Court West, Suite
5300, Toronto, Ontario M5L 1B9 Canada (Attn: Sean F. Dunphy, Esq.), (b) the
Office of the United States Trustee, 601 Walnut Street, Curtis Center,
<PAGE> 2
Suite 950-W, Philadelphia, Pennsylvania 19106 (Attn: Daniel K. Astin, Esq.),
(c) counsel for the Creditors' Committee, Blank, Rome, Comisky McCauley LLP, One
Logan Square, Philadelphia, Pennsylvania 19103-6998 (Attn: Raymond L. Shapiro,
Esq.) and Blank, Rome, Comisky McCauley LLP, 1201 Market Street, Suite 2100,
Wilmington, Delaware 19801 (Attn: Bonnie Glantz Fatell, Esq.), and (d) counsel
for the Pre-Petition Agents and the Pre-Petition Lenders, White & Case, LLP,
1155 Avenue of the Americas, New York, New York 10036 (Attn: Howard S. Beltzer,
Esq.) and Blake Cassels & Graydon, Box 25, Commerce Court West, Toronto, Ontario
M5L 1A9 Canada (Attn: Susan M. Grundy, Esq.). OBJECTIONS NOT TIMELY FILED AND
SERVED IN THE MANNER SET FORTH ABOVE SHALL NOT BE CONSIDERED AND SHALL BE DEEMED
OVERRULED.
4. Treatment of Certain Claims. Any holder of a claim that was served
with a proof of claim setting their claim amount at zero or in an unknown amount
or as disputed, contingent or unliquidated, and did not timely, pursuant to
either the Bankruptcy Code or any order of the Bankruptcy Court, file a proof of
claim with the Bankruptcy Court or the Claims and Noticing Agent controverting
such classification of their claim, SHALL NOT BE TREATED AS A CREDITOR WITH
RESPECT TO SUCH CLAIM FOR PURPOSES OF (I) RECEIVING DISTRIBUTIONS UNDER THE
PLAN, OR (II) VOTING ON THE PLAN.
Please note that pursuant to the Plan, as of the Effective Date
each of the Debtors will be deemed to have assumed each executory contract and
unexpired lease to which it is a party, unless such contract or lease (i) was
previously assumed or rejected by one of the Debtors, (ii) previously expired or
terminated pursuant to its own terms, or (iii) as otherwise set forth in the
schedule to be provided in the Plan Supplement as being an executory contract or
unexpired lease to reject, provided however, that the Debtors reserve their
right, at any time prior to the Confirmation Date, to amend the schedule to be
provided in the Plan Supplement to delete an unexpired lease or executory
contract therefrom or add any unexpired lease or executory contract thereto. In
addition, the Plan calls for certain Restructuring Transactions by which certain
Debtors may be dissolved or merged into other Debtors. In such an event, certain
executory contracts and unexpired leases may be assigned from one Debtor to
another.
All creditors who are parties to executory contracts and unexpired
leases which are assumed according to the above procedures will be afforded an
opportunity assert claims for cure, if any, no later than 30 days after the
Confirmation Date.
5. Record Date. August 18, 1999, shall be the record date for
determining (a) the creditors and equity security holders entitled to receive
solicitation packages, and (b) the creditors entitled to vote to accept or
reject the Plan.
6. Information and Documents. Any party in interest wishing to obtain
information about the solicitation procedures or copies of the Disclosure
Statement, the Plan, or any exhibits thereto may request such information or
copies by writing to the Voting Agent, Logan & Company, Inc., 546 Valley Road,
Upper Montclair, New Jersey 07043, Attn: Philip Services Corp. or by telephoning
the Voting Agent at (201) 798-1031. All copies shall be provided solely at the
expense of the party requesting the documents unless otherwise specifically
required by Fed. R. Bankr. P. 3017(d). All documents that are filed with the
Bankruptcy Court may be reviewed during regular business hours (8:30 a.m. to
4:00 p.m. prevailing Eastern time, weekdays, except legal holidays) at the
United States Bankruptcy Court for the District of Delaware, Marine Midland
Plaza, 824 Market Street, Wilmington, Delaware 19801.
Dated: September 22, 1999
SKADDEN, ARPS, SLATE, MEAGHER SKADDEN, ARPS, SLATE, MEAGHER
& FLOM (ILLINOIS) & FLOM LLP
David S. Kurtz Gregg M. Galardi (No. 2991)
Jeffrey W. Linstrom One Rodney Square
J. Gregory St. Clair P.O. Box 636
333 West Wacker Drive Wilmington, DE 19899-0636
Chicago, IL 60606
Attorneys for the Debtors and Debtors-in-Possession
2
<PAGE> 3
INDEX OF DEBTORS
<TABLE>
<CAPTION>
DEBTOR CASE NO.
- ------ --------
<S> <C>
RESI Acquisition (Delaware) 99-02170
Corporation
Philip Services (Delaware), Inc. 99-02385
21st Century Environmental 99-02386
Management, Inc. of Rhode
Island
21st Century Environmental 99-02387
Management, Inc.
21st Century Environmental 99-02388
Management, Inc. of Nevada
21st Century Environmental 99-02389
Management, Inc. of Puerto
Rico
Ace/Allwaste Environmental Services 99-02390
of Indiana, Inc.
Advanced Energy Corporation 99-02391
Advanced Environmental Systems, Inc. 99-02392
All Safety and Supply, Inc. 99-02393
Allies Staffing, Inc. 99-02394
Allquest Capital, Inc. 99-02395
AllScaff, Inc. 99-02396
Allwaste Asbestos Abatement Holdings, 99-02397
Inc.
Allwaste Asbestos Abatement, Inc. 99-02398
Allwaste Asbestos Abatement of New 99-02399
England, Inc.
Allwaste Environmental Services/North 99-02400
Central, Inc.
Allwaste Railcar Cleaning, Inc. 99-02401
Allwaste Recovery Systems, Inc. 99-02402
Allwaste Services of El Paso, Inc. 99-02403
Allwaste Tank Cleaning, Inc. 99-02404
Allwaste Texquisition Inc. 99-02405
Allworth Inc. 99-02406
ALRC, Inc. 99-02407
APLC, Inc. 99-02408
BEC/Philip, Inc. 99-02409
Burlington Environmental Inc. (a 99-02410
Delaware Corporation)
Burlington Environmental Inc. (a 99-02411
Washington Corporation)
Butco Inc. 99-02412
Cappco Tubular Products USA, Inc. 99-02413
Chem-Fab, Inc. 99-02414
Chem-Freight, Inc. 99-02415
Chemical Pollution Control, Inc. of 99-02416
Florida
Chemical Pollution Control, Inc. of 99-02417
New York
Chemical Reclamation Services, Inc. 99-02418
Cousins Waste Control Corporation 99-02419
CyanoKEM, Inc. 99-02420
Deep Clean, Inc. 99-02421
DM Acquisition Corporation 99-02422
Gasoline Tank Service Company Inc. 99-02423
Georgia Recovery Systems 99-02424
GRS/Lake Charles, Ltd. 99-02425
Hartney Corporation 99-02426
Hydro-Engineering & Service, Inc. 99-02427
Industrial Construction Services Co., 99-02428
Inc.
Industrial Services Technologies, Inc. 99-02429
Intermetco US Inc. 99-02430
Intermetco USA Ltd. 99-02431
IST Holding Corp. 99-02432
James & Luther Services, Inc. 99-02433
Jesco Industrial Service, Inc. 99-02434
Luntz Acquisition (Delaware) 99-02435
Corporation
Luntz Corporation 99-02436
Mac-Tech, Inc. 99-02437
Northland Environmental Inc. 99-02438
Nortru, Inc. 99-02439
Oneida Asbestos Abatement, Inc. 99-02440
Oneida Asbestos Removal, Inc. 99-02441
Philip Automotive, Ltd. 99-02442
Philip Chemi-Solv, Inc. 99-02443
Philip Chemisolv Holdings, Inc. 99-02444
Philip Corrosion Services, Inc. 99-02445
Philip Enterprise Service Corporation 99-02446
Philip Environmental of Idaho 99-02447
Corporation
Philip Environmental Services, Inc. 99-02448
Philip Environmental Services 99-02449
Corporation
Philip Environmental Washington Inc. 99-02450
Philip Industrial Services 99-02451
(Delaware), Inc.
Philip Industrial Services (USA), Inc. 99-02452
Philip Industrial Services Group, Inc. 99-02453
Philip Industrial Services of Texas, 99-02454
Inc.
Philip/J.D. Meagher, Inc. 99-02455
Philip Mechanical Services of 99-02456
Louisiana, Inc.
Philip Metals, Inc. 99-02457
Philip Metals (New York) Inc. 99-02458
Philip Metals (USA), Inc. 99-02459
Philip Metals Recovery (Delaware) Inc. 99-02460
Philip Metals Recovery (USA) Inc. 99-02461
Philip Mid-Atlantic, Inc. 99-02462
Philip Oil Recycling, Inc. 99-02463
Philip Petro Recovery Systems, Inc. 99-02464
Philip Plant Services, Inc. 99-02465
Philip Reclamation Services, Houston, 99-02466
Inc.
Philip Refractory and Corrosion 99-02467
Corporation
Philip Refractory Services, Inc. 99-02468
Philip Scaffold Corporation 99-02469
Philip/SECO Industries, Inc. 99-02470
Philip Services/Atlanta, Inc. 99-02471
Philip Services Corp. 99-02472
Philip Services Hawaii, Ltd. 99-02473
Philip Services/Louisiana, Inc. 99-02474
Philip Services/Missouri, Inc. 99-02475
Philip Services/Mobile, Inc. 99-02476
Philip Services/North Atlantic, Inc. 99-02477
Philip Services/North Central, Inc. 99-02478
Philip Services/Ohio, Inc. 99-02479
Philip Services/Oklahoma, Inc. 99-02480
Philip Services (Pennsylvania), Inc. 99-02481
Philip Services/South Central, Inc. 99-02482
Philip Services/Southwest, Inc. 99-02483
Philip ST, Inc. 99-02484
Philip ST Piping, Inc. 99-02485
Philip Technical Services, Inc. 99-02486
Philip Transportation and 99-02487
Remediation, Inc.
Philip West Industrial Services, Inc. 99-02488
Philip/Whiting, Inc. 99-02489
Piping Companies, Inc. 99-02490
Piping Holdings Corp. 99-02491
Piping Mechanical Corp. 99-02492
PRS Holding, Inc. 99-02493
PSC Enterprises, Inc. 99-02494
Republic Environmental Recycling (New 99-02495
Jersey), Inc.
Republic Environmental Systems 99-02496
(Pennsylvania), Inc.
Republic Environmental Systems 99-02497
(Technical Services Group)
Inc.
Republic Environmental Systems 99-02498
(Transportation Group), Inc.
Resource Recovery Corporation 99-02499
Rho-Chem Corporation 99-02500
RMF Environmental, Inc. 99-02501
RMF Global, Inc. 99-02502
RMF Industrial Contracting, Inc. 99-02503
Serv-Tech Construction and 99-02504
Maintenance, Inc.
Serv-Tech Engineers, Inc. 99-02505
Serv-Tech EPC, Inc. 99-02506
Serv-Tech International Sales, Inc. 99-02507
Serv-Tech of New Mexico, Inc. 99-02508
Serv-Tech Services, Inc. 99-02509
Solvent Recovery Corporation 99-02510
Southeast Environmental Services Co., 99-02511
Inc.
Termco Corporation 99-02512
Terminal Technologies, Inc. 99-02513
ThermalKEM, Inc. 99-02514
TIPCO Acquisition Corp. 99-02515
Total Refractory Systems, Inc. 99-02516
United Drain Oil Service, Inc. 99-02517
United Industrial Materials, Inc. 99-02518
</TABLE>
<PAGE> 1
Exhibit T3D4
MUST BE RECEIVED BY 5:00 P.M. (PREVAILING EASTERN TIME) ON OCTOBER 25, 1999
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR ADVICE,
OR TO MAKE ANY REPRESENTATION, OTHER THAN WHAT IS INCLUDED IN THE MATERIALS
MAILED WITH THIS BALLOT
UNITED STATES BANKRUPTCY COURT
DISTRICT OF DELAWARE
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- -X
IN RE : CHAPTER 11
:
PHILIP SERVICES (DELAWARE), INC., ET AL., : CASE NO. 99-02385 (MFW)
:
DEBTORS. : (JOINTLY ADMINISTERED)
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -X
BALLOT FOR CLASS 7 - IMPAIRED UNSECURED CLAIMS
------------------------------------------------
<TABLE>
<CAPTION>
ACCEPTS REJECTS AMOUNT
CLASS THE PLAN THE PLAN OF CLAIM:
- ----- -------- -------- ---------
<S> <C> <C> <C>
Class 7 o o $ _______
</TABLE>
QUALIFYING CLASS 7 CREDITOR ELECTION
As described in more detail in the Disclosure Statement at
Section II.D and in the instructions included with this Ballot, pursuant to the
Plan, Qualified Class 7 Creditors are entitled to make the Qualifying Class 7
Creditor Election. THOUGH NO DETERMINATION HAS YET BEEN MADE AS TO THE ALLOWANCE
OR QUALIFICATION OF YOUR CLAIM, IN ORDER TO BE ELIGIBLE FOR THE ELECTION YOU
MUST INDICATE YOUR CHOICE ON THIS BALLOT AT THIS TIME. Please indicate below
which form of payment you elect under the Qualifying Class 7 Creditor Election
should you be determined to be a Qualifying Class 7 Creditor:
UNSECURED UNSECURED
PIK NOTES CONVERTIBLE NOTES
--------- -----------------
CHOOSE ONLY ONE: o o
SIGNED: ______________________________________
NAME OF CLAIMANT (Print): ____________________
TITLE: (Please sign exactly as name or names
appear hereon. Full title of one signing in
representative capacity should be clearly
designated after signature. Names of all
joint holders should be written
even if signed by one.)
DATED: ___________________________
TAX I.D. or Social Security Number ___________
ANY BALLOT WHICH IS PROPERLY EXECUTED BUT DOES NOT INDICATE AN ACCEPTANCE OR
REJECTION OF THE PLAN SHALL BE COUNTED AS AN ACCEPTANCE
PLEASE READ AND FOLLOW THE INSTRUCTIONS ON THE REVERSE SIDE OF THIS BALLOT
CAREFULLY. PLEASE COMPLETE, SIGN, AND DATE THIS BALLOT AND RETURN IT BY MAIL OR
OVERNIGHT COURIER SO THAT IT IS RECEIVED BY THE VOTING
AGENT AT THE ADDRESS SET FORTH ON THE REVERSE SIDE BY 5:00
P.M. (PREVAILING EASTERN TIME) ON OCTOBER 25, 1999.
1
<PAGE> 2
On September 21, 1999, the United States Bankruptcy Court for the
District of Delaware (the "Bankruptcy Court") (i) approved the Disclosure
Statement (the "Disclosure Statement") with Respect to the First Amended Joint
Plan of Reorganization (the "Plan") of Philip Services Corp. ("PSC"), Philip
Services (Delaware), Inc. ("PSI") and certain of their affiliates (the
"Affiliate Debtors"), debtors and debtors-in-possession in the above-captioned
cases (collectively, the "Debtors"), and (ii) authorized the Debtors to solicit
votes with regard to the approval or rejection of the Plan. Capitalized terms in
these instructions which are not defined have the meanings set forth in the
Plan.
INSTRUCTIONS FOR COMPLETING THE BALLOT
THIS BALLOT DOES NOT CONSTITUTE AND SHALL NOT BE DEEMED TO CONSTITUTE
(A) A PROOF OF CLAIM OR (B) AN ADMISSION BY THE DEBTORS OF THE NATURE, VALIDITY,
OR AMOUNT OF ANY CLAIM. THIS BALLOT IS NOT A LETTER OF TRANSMITTAL AND MAY NOT
BE USED FOR ANY OTHER PURPOSE THAN TO CAST VOTES TO ACCEPT OR REJECT THE PLAN.
DO NOT ENCLOSE NOTES OR SECURITIES WITH YOUR COMPLETED BALLOT.
1. This Ballot is submitted to you to solicit your vote to accept or
reject the Plan. Please indicate your vote by marking an "x" in the appropriate
box on the face of the Ballot.
2. In the event that Class 7 votes to accept the Plan, Qualifying Class
7 Creditors may elect to forgo their Pro Rata distribution of New Unsecured PIK
Notes for New Unsecured Convertible Notes (See Article III.C.2(d) of the Plan,
entitled "Other Provisions Applicable to Class 7") subject to certain terms and
limitations set forth in the Plan. Qualifying Class 7 Creditors consist of
holders of Impaired Unsecured Claims that, as of the Voting Deadline, are
Allowed Impaired Unsecured Claims in a liquidated amount, excluding by agreement
CIBC and its affiliates. Qualifying Class 7 Creditors electing New Unsecured
Convertible Notes shall receive, in exchange for every $1.00 in face amount of
New Unsecured PIK Notes that such Qualifying Class 7 Creditor would have
received under the Plan, $1.50 in fact amount of New Unsecured Convertible
Notes. PLEASE INDICATE YOUR ELECTION BY MARKING AN "X" IN THE APPROPRIATE BOX ON
THE FACE OF THE BALLOT. HOLDERS OF OLD DEBENTURES (AS DEFINED IN THE PLAN) THAT
(A) DO NOT MAKE AN AFFIRMATIVE ELECTION OR SELECT BOTH PAYMENT OPTIONS OR (B) DO
NOT VOTE, WILL BE DEEMED TO HAVE ELECTED TO RECEIVE THE NEW CONVERTIBLE NOTES.
ALL OTHER QUALIFYING CLASS 7 CREDITORS WHO (A) FAIL TO MAKE AN AFFIRMATIVE
ELECTION OR THAT SELECT PAYMENT BY BOTH OPTIONS OR (B) DO NOT VOTE, WILL DE
DEEMED TO HAVE ELECTED PAYMENT BY NEW UNSECURED PIK NOTES.
3. Please indicate the amount of your Claim in the appropriate space on
the face of the Ballot. The amount of your Claim as set forth by you on this
Ballot does not necessarily constitute an Allowed Claim under the Plan. The
amount of your Claim may be subject to further reconciliation and an objection
may be interposed.
4. After providing all remaining information requested on the face of
the Ballot, please sign, date and return this Ballot by mail or overnight
courier to the voting agent, Logan & Company, Inc. (the "Voting Agent"), at the
following addresses:
Logan & Company, Inc.
546 Valley Road
Upper Montclair, New Jersey 07043
Attn: Philip Services Corp.
BALLOTS MUST BE RECEIVED BY 5:00 P.M. (PREVAILING EASTERN TIME) ON
OCTOBER 25, 1999 (THE "VOTING DEADLINE"). IF A BALLOT IS RECEIVED AFTER THE
VOTING DEADLINE, IT WILL NOT BE COUNTED. AN ENVELOPE ADDRESSED TO THE VOTING
AGENT IS ENCLOSED FOR YOUR CONVENIENCE.
5. The Plan can be confirmed by the Bankruptcy Court and thereby made
binding if it is accepted by the holders of at least 2/3 in amount and more than
1/2 in number of Impaired Claims. The votes of the Claims actually voted in your
Class will bind those who do not vote. In the event that the requisite
acceptances are not obtained, the Bankruptcy Court may nevertheless confirm the
Plan if at least one Impaired Class of Claims has accepted the Plan and the
Bankruptcy Court finds that the Plan accords fair and equitable treatment to,
and does not discriminate unfairly against, the Class(es) rejecting it.
6. You must vote all of your Claims within a single Class to either
accept or reject the Plan. A Ballot that partially rejects and partially accepts
the Plan will not be counted. A Ballot that fails to indicate acceptance or
rejection of the Plan will be counted as an acceptance.
7. YOUR SIGNATURE IS REQUIRED IN ORDER FOR YOUR VOTE TO BE COUNTED. YOU
ARE ALSO REQUIRED TO PROVIDE YOUR SOCIAL SECURITY NUMBER OR TAX I.D. NUMBER
PRIOR TO RECEIVING ANY DISTRIBUTION. IF THE CLAIM(S) VOTED WITH THIS BALLOT ARE
HELD BY A PARTNERSHIP, THE BALLOT SHOULD BE EXECUTED IN THE NAME OF THE
PARTNERSHIP BY A GENERAL PARTNER. IF THE CLAIM IS HELD BY A CORPORATION, THE
BALLOT MUST BE EXECUTED BY AN OFFICER.
IF YOU ARE SIGNING IN A REPRESENTATIVE CAPACITY, ALSO INDICATE YOUR TITLE AFTER
YOUR SIGNATURE.
8. This Ballot has been prepared to reflect the Class in which you are
eligible to vote. If you have Claims in more than one Class you may receive more
than one Ballot. IF YOU RECEIVE MORE THAN ONE BALLOT, YOU SHOULD ASSUME THAT
EACH BALLOT IS FOR A CLAIM IN A SEPARATE CLASS AND SHOULD COMPLETE AND RETURN
ALL OF THEM.
9. The Ballot does not constitute, and shall not be deemed, a proof of
Claim or Equity Interest or an assertion of a Claim or Equity Interest.
PLEASE RETURN YOUR BALLOT PROMPTLY
THE VOTING AGENT WILL NOT ACCEPT BALLOTS BY FACSIMILE TRANSMISSION.
IF YOU RECEIVED A DAMAGED BALLOT OR LOSE YOUR BALLOT, OR IF YOU
HAVE ANY QUESTIONS CONCERNING THE DISCLOSURE
STATEMENT, THE PLAN, THIS BALLOT OR THE VOTING
PROCEDURES, PLEASE CALL THE VOTING AGENT AT (201) 798-1031.
2
