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Exhibit (4)(b)
================================================================================
--------------------
Indenture
Dated as of May 17, 1999
---------------------
$225,000,000
9 1/4% Senior Notes due 2009
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SAFETY-KLEEN CORP.,
Issuer
and
THE BANK OF NOVA SCOTIA TRUST COMPANY OF NEW YORK,
Trustee
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SAFETY-KLEEN CORP.
Reconciliation and tie between Trust Indenture Act
of 1939 and Indenture, dated as of May 17, 1999
Trust Indenture
Act Section Indenture Section
ss. 310(a)(1) .......................................... 607
(a)(2) .......................................... 607
(b) .......................................... 608
ss. 312(c) .......................................... 701
ss. 314(a) .......................................... 703
(a)(4) .......................................... 1008(a)
(c)(1) .......................................... 102
(c)(2) .......................................... 102
(e) .......................................... 102
ss. 315(b) .......................................... 601
ss. 316(a)(last
sentence) .......................................... 101 ("Outstanding")
(a)(1)(A) .......................................... 502, 512
(a)(1)(B) .......................................... 513
(b) .......................................... 508
(c) .......................................... 105(d)
ss. 317(a)(1) .......................................... 503
(a)(2) .......................................... 504
(b) .......................................... 1003
ss. 318(a) .......................................... 111
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TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION ...........................2
SECTION 101. Definitions......................................................2
SECTION 102. Compliance Certificates and Opinions............................24
SECTION 103. Form of Documents Delivered to Trustee..........................25
SECTION 104. Acts of Holders.................................................26
SECTION 105. Notices, etc., to Trustee or Company............................27
SECTION 106. Notice to Holders; Waiver.......................................27
SECTION 107. Conflict of any Provision of Indenture with Trust
Indenture Act.................................................28
SECTION 108. Effect of Headings and Table of Contents........................28
SECTION 109. Successors and Assigns..........................................28
SECTION 110. Separability Clause.............................................28
SECTION 111. Benefits of Indenture...........................................28
SECTION 112. Governing Law...................................................29
SECTION 113. Legal Holidays..................................................29
ARTICLE II
SECURITY FORMS...............................29
SECTION 201. Forms Generally.................................................29
SECTION 202. Restrictive Legends.............................................31
ARTICLE III
THE SECURITIES...............................32
SECTION 301. Title and Terms.................................................32
SECTION 302. Denominations...................................................33
SECTION 303. Execution, Authentication, Delivery and Dating..................33
SECTION 304. Temporary Securities............................................35
SECTION 305. Registration, Registration of Transfer and Exchange.............35
SECTION 306. Book-Entry Provisions for Restricted Global Security............36
SECTION 307. Special Transfer Provisions.....................................38
SECTION 308. Mutilated, Destroyed, Lost and Stolen Securities................41
SECTION 309. Payment of Interest; Interest Rights Preserved..................42
SECTION 310. Persons Deemed Owners...........................................43
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Note: This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
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SECTION 311. Cancellation....................................................43
SECTION 312. Issuance of Additional Securities...............................44
SECTION 313. CUSIP and CINS Numbers..........................................44
SECTION 314. Computation of Interest.........................................44
ARTICLE IV
SATISFACTION AND DISCHARGE.........................44
SECTION 401. Satisfaction and Discharge of Indenture.........................44
SECTION 402. Application of Trust Money......................................45
ARTICLE V
REMEDIES..................................46
SECTION 501. Events of Default...............................................46
SECTION 502. Acceleration of Maturity; Rescission and Annulment..............47
SECTION 503. Collection of Indebtedness and Suits for Enforcement
by Trustee....................................................48
SECTION 504. Trustee May File Proofs of Claim................................49
SECTION 505. Trustee May Enforce Claims Without Possession of Securities.....50
SECTION 506. Application of Money Collected..................................50
SECTION 507. Limitation on Suits.............................................51
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium
and Interest..................................................51
SECTION 509. Restoration of Rights and Remedies..............................52
SECTION 510. Rights and Remedies Cumulative..................................52
SECTION 511. Delay or Omission Not Waiver....................................52
SECTION 512. Control by Holders..............................................52
SECTION 513. Waiver of Past Defaults.........................................53
SECTION 514. Waiver of Stay or Extension Laws................................53
SECTION 515. Undertaking for Costs...........................................53
SECTION 516. No Personal Liability of Directors, Officers, Employees and
Stockholders..................................................54
ARTICLE VI
THE TRUSTEE................................54
SECTION 601. Notice of Defaults..............................................54
SECTION 602. Certain Rights of Trustee.......................................54
SECTION 603. Trustee Not Responsible for Recitals or Issuance
of Securities.................................................56
SECTION 604. May Hold Securities.............................................56
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SECTION 605. Money Held in Trust.............................................56
SECTION 606. Compensation and Reimbursement..................................56
SECTION 607. Corporate Trustee Required; Eligibility.........................57
SECTION 608. Resignation and Removal; Appointment of Successor...............57
SECTION 609. Acceptance of Appointment by Successor..........................59
SECTION 610. Merger, Conversion, Consolidation or Succession to Business.....59
ARTICLE VII
HOLDERS' LISTS AND REPORTS BY TRUSTEE...................60
SECTION 701. Disclosure of Names and Addresses of Holders....................60
SECTION 702. Reports by Trustee..............................................60
ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE,
TRANSFER OR LEASE.............................60
SECTION 801. Company May Consolidate, etc., Only on Certain Terms............60
SECTION 802. Successor Substituted...........................................62
ARTICLE IX
SUPPLEMENTS AND AMENDMENTS TO INDENTURE..................62
SECTION 901. Without Consent of Holders......................................62
SECTION 902. With Consent of Holders.........................................63
SECTION 903. Execution of Supplemental Indentures............................64
SECTION 904. Effect of Supplemental Indentures...............................64
SECTION 905. Conformity with Trust Indenture Act.............................64
SECTION 906. Reference in Securities to Supplemental Indentures..............64
SECTION 907. Notice of Supplemental Indentures...............................65
ARTICLE X
COVENANTS.................................65
SECTION 1001. Payment of Principal, Premium, If Any, and Interest............65
SECTION 1002. Maintenance of Office or Agency................................65
SECTION 1003. Money for Security Payments to Be Held in Trust................66
SECTION 1004. Corporate Existence............................................67
SECTION 1005. Payment of Taxes and Other Claims..............................67
SECTION 1006. Maintenance of Properties......................................68
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SECTION 1007. Insurance......................................................68
SECTION 1008. Statement by Officers As to Default............................68
SECTION 1009. Provision of Reports and Financial Statements..................69
SECTION 1010. Limitation on Incurrence of Indebtedness and Issuance of
Disqualified Stock...........................................69
SECTION 1011. Limitation on Restricted Payments..............................70
SECTION 1012. Purchase of Securities upon a Change of Control................74
SECTION 1013. Limitation on Certain Asset Sales..............................75
SECTION 1014. Limitation on Transactions with Affiliates.....................77
SECTION 1015. Limitation on Dividends and Other Payment Restrictions Affecting
Restricted Subsidiaries......................................79
SECTION 1016. Limitation on Issuances and Sales of Capital Stock of Restricted
Subsidiaries.................................................80
SECTION 1017. Limitation on Liens............................................80
SECTION 1018. Unrestricted Subsidiaries......................................80
SECTION 1019. Limitation on Guarantees of Indebtedness by Restricted
Subsidiaries.................................................81
SECTION 1020. Limitation on Conduct of Business..............................82
SECTION 1021. Limitation on Incurrence of Contingent Obligations.............82
SECTION 1022. Payments for Consent...........................................82
SECTION 1023. Limitation on Liens Securing Indebtedness......................82
SECTION 1024. Limitation on Sale and Leaseback Transactions..................83
SECTION 1025. Waiver of Certain Covenants....................................83
SECTION 1026. Fall-Away of Certain Covenants.................................84
ARTICLE XI
REDEMPTION OF SECURITIES..........................84
SECTION 1101. Right of Redemption............................................84
SECTION 1102. Applicability of Article.......................................85
SECTION 1103. Election to Redeem; Notice to Trustee..........................85
SECTION 1104. Selection by Trustee of Securities to Be Redeemed..............85
SECTION 1105. Notice of Redemption...........................................86
SECTION 1106. Deposit of Redemption Price....................................87
SECTION 1107. Securities Payable on Redemption Date..........................87
SECTION 1108. Securities Redeemed in Part....................................87
ARTICLE XII
DEFEASANCE AND COVENANT DEFEASANCE.....................88
SECTION 1201. Company Option to Effect Defeasance or Covenant Defeasance.....88
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SECTION 1202. Defeasance and Discharge.......................................88
SECTION 1203. Covenant Defeasance............................................88
SECTION 1204. Conditions to Defeasance or Covenant Defeasance................89
SECTION 1205. Deposited Money and U.S. Government Obligations to Be Held in
Trust; Other Miscellaneous Provisions........................91
SECTION 1206. Reinstatement..................................................91
SCHEDULES
SCHEDULE I - Agreements Pursuant to Section 1015
EXHIBITS
Exhibit A - Form of Security
Exhibit B - Form of Certificate for Exchange or Registration of Transfer from
Restricted Global Security to Regulation S Global Security
Exhibit C - Form of Certificate for Exchange or Registration of Transfer from
Regulation S Global Security to Restricted Global Security
Exhibit D - Form of Certificate for Transfer of U.S. Physical Securities to
Regulation S Global Security or Restricted Global Security
Exhibit E - Form of Certificate for Transfer or Exchange after Two Years
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INDENTURE, dated as of May 17, 1999 between Safety-Kleen Corp. (formerly
known as Laidlaw Environmental Services, Inc.), a corporation duly organized and
existing under the laws of the State of Delaware (herein called the "Company"),
and The Bank of Nova Scotia Trust Company of New York, a trust company duly
organized and existing under the laws of New York, trustee (herein called the
"Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the creation of and issue of 9 1/4% Senior
Notes due 2009 (herein called the "Initial Securities"), and 9 1/4% Exchange
Senior Notes due 2009 (the "Exchange Securities" and, together with the Initial
Securities, the "Securities") to be issued in exchange for the Initial
Securities 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.
Upon the issuance of the Exchange Securities, if any, or the effectiveness
of the Exchange Offer Registration Statement (as defined herein) or, under
certain circumstances, the effectiveness of the Shelf Registration Statement (as
defined herein), this Indenture will be subject to the provisions of the Trust
Indenture Act of 1939, as amended, that are required to be part of this
Indenture and shall, to the extent applicable, be governed by such provisions.
The Company has also duly authorized the creation of up to $100,000,000
aggregate principal amount of additional Securities (including additional
Exchange Securities to be issued in exchange for such securities) to be issued
from time to time having identical terms and conditions to the Initial
Securities offered hereby.
All things necessary have been done 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, each in accordance with their respective terms.
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:
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ARTICLE I
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:
(a) the terms defined in this Article have the meanings assigned to
them in this Article, and include the plural as well as the singular;
(b) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein, and the terms "cash transaction" and
"self-liquidating paper", as used in TIA Section 311, shall have the
meanings assigned to them in the rules of the Commission adopted under the
Trust Indenture Act;
(c) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with GAAP; and
(d) 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.
"Acquired Indebtedness" means Indebtedness of a Person (a) existing at the
time such Person is merged with or into the Company or becomes a Restricted
Subsidiary or (b) assumed in connection with the acquisition of assets from such
Person; provided that any Indebtedness of such Person that is redeemed,
defeased, retired or otherwise repaid at the time of or immediately upon
consummation of the transaction by which such Person is merged with or into the
Company, becomes a Restricted Subsidiary or such assets are acquired from such
Person shall not be Acquired Indebtedness.
"Act", when used with respect to any Holder, has the meaning specified in
Section 104.
"Additional Securities" has the meaning set forth in Section 301.
"Adjusted Treasury Rate" means, with respect to any redemption date, the
rate per annum equal to the semi-annual equivalent yield to maturity of the
Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue
(expressed as a percentage of its principal amount) equal to the Comparable
Treasury Price for such redemption date.
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"Affiliate" means, with respect to any specified Person, (a) any other
Person directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person or (b) any other Person that
owns, directly or indirectly, 10% or more of such specified Person's Capital
Stock. For the purposes of this definition, "control", when used with respect to
any specified Person, means the power to direct the management and policies of
such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Agent Member" means any member of, or participant in, the Depositary.
"Applicable Procedures" means applicable procedures of the Depositary,
Euroclear System or Cedel Bank S.A., as the case may be.
"Asset Sale" means any sale, issuance, conveyance, transfer, lease or
other disposition (including, without limitation, by way of merger,
consolidation or sale and leaseback transaction) (collectively, a "transfer") by
the Company or a Restricted Subsidiary, directly or indirectly, in one
transaction or a series of related transactions, of (a) any Capital Stock of any
Restricted Subsidiary (other than directors' qualifying shares or shares
required by applicable law to be held by a Person other than the Company or a
Restricted Subsidiary), (b) all or substantially all of the properties and
assets of the Company and its Restricted Subsidiaries representing a division or
line of business or (c) any other properties or assets of the Company or any
Restricted Subsidiary, other than in the ordinary course of business. For the
purposes of this definition, the term "Asset Sale" shall not include any
transfer of properties or assets (i) that is governed by the provisions of
Article VIII, (ii) between or among the Company and its Restricted Subsidiaries
pursuant to transactions that do not violate any other provision of this
Indenture, (iii) to any Person to the extent it constitutes a Restricted Payment
that is permitted under Section 1011, (iv) consisting of inventory or wornout,
obsolete or permanently retired equipment and facilities, (v) the gross proceeds
of which (exclusive of indemnities) do not exceed $5.0 million in connection
with any transfer or (vi) that constitutes a Permitted Investment.
"Asset Sale Offer" has the meaning set forth in Section 1013.
"Asset Sale Purchase Date" has the meaning set forth in Section 1013.
"Attributable Debt" means, as to any particular lease under which any
Person is at the time liable, at any date as of which the amount thereof is to
be determined, the total net amount of rent required to be paid by such Person
under such lease during the remaining term thereof (excluding any subsequent
renewal or other extension options held by the lessee), discounted from the
respective due dates thereof to such date of determination at the rate of
interest per annum implicit in the terms of such lease, as determined in good
faith by the Company, compounded annually. The net amount of rent required to be
paid under any such
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lease for any such period shall be the amount of the rent payable by the lessee
with respect to such period, after excluding amounts required to be paid on
account of maintenance and repairs, reconstruction, insurance, taxes,
assessments, water rates and similar charges and contingent rents (such as those
based on sales). In the case of any lease which is terminable by the lessee upon
the payment of a penalty, such net amount shall also include the amount of such
penalty, but no rent shall be considered as required to be paid under such lease
subsequent to the first date upon which it may be so terminated.
"Banks" means the banks and other financial institutions that from time to
time are lenders under the Senior Credit Facility.
"Board of Directors" means the board of directors of the Company or any
duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the Company to have been duly adopted by the Board
of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and Friday
that is not a day on which banking institutions in New York are authorized or
obligated by law or executive order to close.
"Capital Lease Obligation" means, at the time any determination thereof is
to be made, the amount of the liability in respect of a capital lease that would
at such time be required to be capitalized on a balance sheet in accordance with
GAAP.
"Capital Stock" of any Person means any and all shares, partnership
interests, participations, rights in or other equivalents of, or interests in,
the equity of such Person, but excluding any debt securities convertible into
such equity.
"Cash Equivalents" means (a) any evidence of Indebtedness with a maturity
of one year or less issued or directly and fully guaranteed or insured by the
United States of America or any agency or instrumentality thereof (provided that
the full faith and credit of the United States of America is pledged in support
thereof); (b) certificates of deposit or acceptances or Eurodollar time deposits
with a maturity of one year or less of, and overnight bank deposits with, any
financial institution that is a member of the Federal Reserve System having
combined capital and surplus and undivided profits of not less than $500
million; (c) commercial paper with a maturity of one year or less issued by a
Person rated at least A-1 by S&P or at least P-1 by Moody's; (d) repurchase
obligations with a term of no more than 30 days for underlying securities of the
types described in clause (a) entered into with a bank meeting the
qualifications described in clause (b) above; (e) securities with maturities of
one year or less from the date of acquisition issued or fully guaranteed by any
state, commonwealth or territory of the United States, by any political
subdivision or taxing
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authority of any such state, commonwealth or territory or by any foreign
government, the securities of which state, commonwealth, territory, political
subdivision, taxing authority or foreign government (as the case may be) are
rated at least A by S&P or A by Moody's; (f) securities with maturities of one
year or less from the date of acquisition backed by standby letters of credit
issued by any financial institution satisfying the requirements of clause (b) of
this definition; and (g) funds which invest in any of the foregoing.
"CEDEL" means Cedel Bank, S.A., or any successor securities clearing
agency.
"Change of Control" means the occurrence of any of the following events:
(a) Any Person or "group" (as such term is used in Sections 13(d)
and 14(d) of the Exchange Act), other than one or more Permitted Holders,
is or becomes the "beneficial owner" (as defined in Rules 13d-3 and 13d-5
under the Exchange Act, except that a Person will be deemed to have
"beneficial ownership" of all securities that such Person has the right to
acquire, whether such right is exercisable immediately or only after the
passage of time), directly or indirectly, of more than 50% of the voting
power of all classes of Voting Stock of the Company;
(b) During any consecutive two-year period, individuals who at the
beginning of such period constituted the Board of Directors of the Company
(together with any new directors whose election to the Board of Directors,
or whose nomination for election by the stockholders of the Company, was
approved by a vote of 662/3% of the directors then still in office who
were either directors at the beginning of such period or whose election or
nomination for election was previously so approved) cease for any reason
to constitute a majority of the Board of Directors of the Company then in
office; or
(c) The Company is liquidated or dissolved or adopts a plan of
liquidation or dissolution, other than a transaction that complies with
the provisions of Article VIII.
"Change of Control Offer" has the meaning set forth in Section 1012.
"Change of Control Payment Date" has the meaning set forth in Section
1012.
"Closing Date" means the date on which the Initial Securities are
originally issued under this Indenture.
"Commission" means the 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 Indenture such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
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"Company" means the Person named as the "Company" in the first paragraph
of this Indenture, until a successor Person shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Company" shall mean
such successor Person.
"Comparable Treasury Issue" means the United States Treasury security
selected by an Independent Investment Banker as having a maturity comparable to
the remaining term of the Securities (as if the final maturity of the Securities
was May 15, 2004) to be redeemed that would be utilized, at the time of
selection and in accordance with customary financial practice, in pricing new
issues of corporate debt securities of comparable maturity to the remaining term
of such Securities.
"Comparable Treasury Price" means, with respect to any Redemption Date,
(i) the average of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) on the third
Business Day preceding such redemption date, as set forth in the daily
statistical release (or any successor release) published by the Federal Reserve
Bank of New York and designated "Composite 3:30 p.m. Quotations for Government
Securities" or (ii) if such release (or any successor release) is not published
or does not contain such prices on such Business Day, (A) the average of the
Reference Treasury Dealer Quotations for such redemption date, after excluding
the highest and lowest such Reference Treasury Dealer Quotations or (B) if the
Trustee obtains fewer than three such Reference Treasury Dealer Quotations, the
average of all such Quotations.
"Company IRBs" means the (i) Tooele County, Utah Pollution Control
Refunding Revenue Bonds 1997 Series A, par amount $45.7 million, which bear
interest at a rate equal to 7.55% per annum and mature on July 1, 2027 and (ii)
California Pollution Control Financing Authority 6.7% Pollution Control
Refunding Revenue Bonds 1997 Series A, par amount $19.5 million which bear
interest at a rate equal to 6.7% per annum and mature on July 1, 2007.
"Company Promissory Note" means the $60 million promissory note of the
Company issued to Westinghouse Electric Corporation on May 15, 1997, which is
due and payable on May 15, 2003.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman, its President, any Vice
President, its Treasurer or an Assistant Treasurer, and delivered to the
Trustee.
"Consolidated EBITDA" means, for any period, the sum of, without
duplication, Consolidated Net Income for such period, plus (or, in the case of
clause (d) below, plus or minus) the following items to the extent included in
computing Consolidated Net Income for such period (a) Fixed Charges for such
period, plus (b) the federal, state, local and foreign income tax expense of the
Company and its Restricted Subsidiaries for such period, plus (c) the
depreciation and amortization expense of the Company and its Restricted
Subsidiaries for such period, plus (d) any other non-cash charges for such
period and minus non-cash
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credits for such period, other than non-cash charges or credits resulting from
changes in prepaid assets or accrued liabilities in the ordinary course of
business; provided that income tax expense, depreciation and amortization
expense and non-cash charges and credits of a Restricted Subsidiary shall be
included in Consolidated EBITDA only to the extent (and in the same proportion)
that the net income of such Restricted Subsidiary was included in calculating
Consolidated Net Income for such period.
"Consolidated Net Income" means, for any period, the net income (or net
loss) of the Company and its Restricted Subsidiaries for such period as
determined on a consolidated basis in accordance with GAAP, adjusted to the
extent included in calculating such net income or loss by excluding (a) any net
after-tax extraordinary gains or losses (less all fees and expenses relating
thereto), (b) any net after-tax gains or losses (less all fees and expenses
relating thereto) attributable to Asset Sales, (c) the net income (but not the
net loss) of any Person (other than the Company or a Restricted Subsidiary), in
which the Company or any Restricted Subsidiary has an equity interest, except
that the aggregate amount of dividends or other distributions actually paid to
the Company or any Restricted Subsidiary in cash during such period will be
included in such Consolidated Net Income, (d) the net income (or loss) of any
Person acquired by the Company or any Restricted Subsidiary in a "pooling of
interests" transaction attributable to any period prior to the date of such
acquisition, and (e) for purposes of Section 1011 only, the net income (but not
the net loss) of any Restricted Subsidiary to the extent that the declaration or
payment of dividends or similar distributions by such Restricted Subsidiary of
such net income is at the date of determination restricted, directly or
indirectly, except that the aggregate amount of net income actually paid to the
Company or a Restricted Subsidiary thereof by loans, advances, intercompany
transfers, principal payments or otherwise will be included in such Consolidated
Net Income.
"Consolidated Net Tangible Assets" means, with respect to the Company, at
any date of determination, the aggregate amount of assets (less applicable
reserves and other properly deductible items) after deducting therefrom (a) all
current liabilities (excluding current maturities of long-term debt and Capital
Lease Obligations) and (b) all goodwill, trade names, trademarks, patents,
unamortized debt discount and expense and other like intangibles, all as set
forth on the most recent quarterly balance sheet of the Company and its
consolidated Restricted Subsidiaries and computed in accordance with GAAP.
"Consolidated Net Worth" means, at any date of determination, the
stockholders' equity of the Company and its Restricted Subsidiaries as set forth
on the most recently available quarterly or annual consolidated balance sheet of
the Company and its Restricted Subsidiaries, less any amounts attributable to
Disqualified Stock or any equity security convertible into or exchangeable for
Indebtedness, the cost of treasury stock and the principal amount of any
promissory notes receivable from the sale of the Capital Stock of the Company or
any of its Restricted Subsidiaries and less, to the extent included in
calculating such stockholders' equity of the Company and its Restricted
Subsidiaries, the stockholders' equity attributable to Unrestricted
Subsidiaries, each item to be determined in conformity with GAAP
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(excluding the effects of foreign currency adjustments under Financial
Accounting Standards Board Statement of Financial Accounting Standards No. 52).
"Contingent Obligations" means, at any date of determination, (a) all
obligations of the Company and its Restricted Subsidiaries (and any Unrestricted
Subsidiaries for which the Company provides credit support or other similar
arrangements) in respect of performance bonds and letters of credit in the
nature of performance bonds and similar obligations and (b) all guarantees of
the Company and its Restricted Subsidiaries (and any Unrestricted Subsidiaries
for which the Company provides credit support or other similar arrangements) or
the obligations referred to in clause (a).
"Corporate Trust Office" means the principal corporate trust office of the
Trustee, at which at any particular time its corporate trust business shall be
administered, which office at the date of execution of this Indenture is located
at One Liberty Plaza, 23rd Floor, New York, New York 10006.
"Currency Agreements" means, with respect to any Person, any spot or
forward foreign exchange agreements and currency swap, currency option or other
similar financial agreements or arrangements entered into by such Person or any
of its Restricted Subsidiaries in the ordinary course of business and designed
to protect against or manage exposure to fluctuations in foreign currency
exchange rates.
"Default" means any event that is, or after notice or passage of time or
both would be, an Event of Default.
"Defaulted Interest" has the meaning specified in Section 309.
"Depositary" means The Depository Trust Company, its nominees and
successors.
"Designated Assets" means the assets and properties acquired by the
Company in the acquisition of Safety-Kleen Systems relating to the European
operations of Safety-Kleen Systems referred to in footnote 4 to the audited
consolidated financial statements of Safety-Kleen Systems incorporated by
reference into Safety-Kleen Systems' Annual Report on Form 10-K for the year
ended January 3, 1998 (including, without limitation, the Company's equity
interest in Safety-Kleen Europe Limited).
"Disinterested Director" means, with respect to any transaction or series
of transactions in respect of which the Board of Directors is required to
deliver a resolution of the Board of Directors, to make a finding or otherwise
take action under the Indenture, a member of the Board of Directors who does not
have any material direct or indirect financial interest in or with respect to
such transaction or series of transactions.
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"Disqualified Stock" means any class or series of Capital Stock that,
either by its terms, or by the terms of any security into which it is
convertible or exchangeable or by contract or otherwise (a) is, or upon the
happening of an event or passage of time would be, required to be redeemed prior
to one year after the final Stated Maturity of the Securities, (b) is redeemable
at the option of the holder thereof at any time prior to one year after such
final Stated Maturity or (c) at the option of the holder thereof, is convertible
into or exchangeable for debt securities at any time prior to one year after
such final Stated Maturity; provided that any Capital Stock that would not
constitute Disqualified Stock but for provisions therein giving holders thereof
the right to cause the issuer thereof to repurchase or redeem such Capital Stock
upon the occurrence of an "asset sale" or "change of control" occurring prior to
the Stated Maturity of the Securities will not constitute Disqualified Stock if
the "asset sale" or "change of control" provisions applicable to such Capital
Stock are no more favorable to the holders of such Capital Stock than the
provisions contained in Sections 1012 and 1013 and such Capital Stock
specifically provides that the issuer will not repurchase or redeem any of such
stock pursuant to such provision prior to the Company's repurchase of such of
the Securities as are required to be repurchased pursuant to Sections 1012 and
1013.
"Domestic Subsidiary" means any Subsidiary whose jurisdiction of
incorporation, organization or formation is the United States, any state thereof
or the District of Columbia.
"Escrow Agreement" means the escrow agreement dated May 17, 1999, among
the Company, the Trustee and The Bank of Nova Scotia Trust Company of New York,
as escrow agent.
"Euroclear" means the Euroclear Clearance System, or any successor
securities clearing agency.
"Event of Default" has the meaning specified in Section 501.
"Excess Proceeds" has the meaning set forth in Section 1013.
"Exchange Act" means the Securities and Exchange Act of 1934, as amended
from time to time, and the rules and regulations thereunder.
"Exchange Offer" means any exchange offer that may be effected pursuant to
the Registration Rights Agreement.
"Exchange Offer Registration Statement" means the Exchange Offer
Registration Statement as defined in the Registration Rights Agreement.
"Exchange Securities" has the meaning stated in the first recital of this
Indenture and refers to any Exchange Securities containing terms substantially
identical to the Initial Securities (except that such Exchange Securities shall
not contain terms with respect to the
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interest rate step-up provisions in Section 309 of the Initial Securities and
transfer restrictions in Section 307 of the Initial Securities) that are issued
and exchanged for the Initial Securities pursuant to the Registration Rights
Agreement and this Indenture.
"Fair market value" means, with respect to any asset, the price which
could be negotiated in an arm's-length free market transaction, for cash,
between an informed and willing seller and an informed and willing buyer,
neither of which is under pressure or compulsion to complete the transaction.
"Fall-away Event" shall have the meaning specified in Section 1026.
"Federal Bankruptcy Code" means the Bankruptcy Act of Title 11 of the
United States Code, as amended from time to time.
"Fixed Charges" means, for any period, without duplication, the sum of (a)
the amount that, in conformity with GAAP, would be set forth opposite the
caption "interest expense" (or any like caption) on a consolidated statement of
operations of the Company and its Restricted Subsidiaries for such period,
including, without limitation, (i) amortization of debt discount, (ii) the net
payments (if any) pursuant to Interest Rate Agreements (including amortization
of discounts), (iii) the interest portion of any deferred payment obligation,
(iv) amortization of debt issuance costs and (v) the interest component of
Capital Lease Obligations, plus (b) cash dividends paid on Preferred Stock and
Disqualified Stock by the Company and any Restricted Subsidiary (to any Person
other than the Company and its Restricted Subsidiaries), plus (c) all interest
on any Indebtedness of any Person guaranteed by the Company or any of its
Restricted Subsidiaries; provided, however, that Fixed Charges shall not include
(i) any gain or loss from extinguishment of debt, including the write-off of
debt issuance costs and (ii) the fixed charges of a Restricted Subsidiary to the
extent (and in the same proportion) that the net income of such Subsidiary was
excluded in calculating Consolidated Net Income pursuant to clause (e) of the
definition thereof for such period.
"Fixed Charge Coverage Ratio" means, for any period, the ratio of (a)
Consolidated EBITDA for such period to (b) Fixed Charges for such period.
"Foreign Subsidiary" means any Subsidiary other than a Domestic
Subsidiary.
"Funding Conditions" means the occurrence of the following events:
(1) the stockholders of the Company shall have approved the issuance
of shares of the Company's common stock in connection with the repurchase
of the PIK Debenture in accordance with the rules of The New York Stock
Exchange; and
(2) the conditions set forth in Article IV of the PIK Purchase
Agreement shall have been satisfied or waived.
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"Generally Accepted Accounting Principles" or "GAAP" means generally
accepted accounting principles in the United States, consistently applied, that
are in effect on the date of Indenture.
"Global Security" shall have the meaning specified in Section 201.
"guarantee" means, as applied to any obligation, (a) a guarantee (other
than by endorsement of negotiable instruments for collection in the ordinary
course of business), direct or indirect, in any manner, of all or any part of
such obligation and (b) an agreement, direct or indirect, contingent or
otherwise, the practical effect of which is to assure in any way the payment or
performance (or payment of damages in the event of non-performance) of all or
any part of such obligation, including, without limitation, the payment of
amounts drawn down under letters of credit.
"Hedging Obligations" means the obligations of any Person under (a)
Interest Rate Agreements and (b) Currency Agreements.
"Holder" means the Person in whose name a Security is, at the time of
determination, registered on the Security Register.
"Indebtedness" means (without duplication), with respect to any Person,
whether recourse is to all or a portion of the assets of such Person and whether
or not contingent, (a) every obligation of such Person for money borrowed, (b)
every obligation of such Person evidenced by bonds, debentures, notes or other
similar instruments, (c) every reimbursement obligation of such Person with
respect to letters of credit, bankers' acceptances or similar facilities issued
for the account of such Person (other than obligations in respect to performance
bonds and letters of credit in the nature of performance bonds), (d) every
obligation of such Person issued or assumed as the deferred purchase price of
property or services, (e) every Capitalized Lease Obligation of such Person, (f)
all Disqualified Stock of such Person valued at its maximum fixed repurchase
price (including, without duplication, accrued and unpaid dividends), (g) all
obligations of such Person under or in respect of Hedging Obligations and (h)
every obligation of the type referred to in clauses (a) through (g) of another
Person and all dividends of another Person the payment of which, in either case,
such Person has guaranteed. For purposes of this definition, the "maximum fixed
repurchase price" of any Disqualified Stock that does not have a fixed
repurchase price shall be calculated in accordance with the terms of such
Disqualified Stock as if such Disqualified Stock were repurchased on any date on
which Indebtedness is required to be determined pursuant to the Indenture, and
if such price is based upon, or measured by, the fair market value of such
Disqualified Stock, such fair market value shall be determined in good faith by
the board of directors of the issuer of such Disqualified Stock. Notwithstanding
the foregoing, trade accounts payable and accrued liabilities arising in the
ordinary course of business and any
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liability for federal, state or local taxes or other taxes owed by such Person
shall not be considered Indebtedness for purposes of this definition.
"Indenture" means this instrument as originally executed and 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.
"Indenture Obligations" means the obligations of the Company and any other
obligor hereunder or under the Securities to pay principal of and premium, if
any, and interest on the Securities when due and payable at Maturity, and all
other amounts due or to become due under or in connection with this Indenture,
the Securities and the performance of all other obligations to the Trustee
(including all amounts due to the Trustee under Section 606 hereof) and the
Holders under this Indenture and the Securities, according to the terms hereof
and thereof.
"Independent Investment Banker" means TD Securities (USA) Inc. or, if such
firm is unwilling or unable to select the Comparable Treasury Issue, another
independent banking institution of national standing selected by the Company.
"Initial Securities" has the meaning stated in the first recital of this
Indenture.
"Interest Payment Date" means the Stated Maturity of an installment of
interest on the Securities.
"Interest Rate Agreements" means any interest rate protection agreements
and other types of interest rate hedging agreements (including, without
limitation, interest rate swaps, caps, floors, collars and similar agreements)
and other related agreements designed to protect against or manage exposure to
fluctuations in interest rates and either (a) entered into in the ordinary
course of business or (b) relating to the Indebtedness permitted under the
Indenture.
"Investment" in any Person means (a) any direct or indirect advance, loan
or other extension of credit or capital contribution (by means of any transfer
of cash or other property to others or any payment for property or services for
the account or use of others) to, or any purchase, acquisition or ownership of,
Capital Stock, Indebtedness or other securities issued by such Person, the
acquisition (by purchase or otherwise) of all or substantially all of the
business or assets of such Person, or the making of any investment of cash or
other property in such Person, (b) the designation of any Restricted Subsidiary
as an Unrestricted Subsidiary, (c) the transfer of any assets or properties from
the Company or a Restricted Subsidiary to an Unrestricted Subsidiary, other than
the transfer of assets or properties made in the ordinary course of business and
(d) the fair market value of the Capital Stock (or any other Investment), held
by the Company or any of its Restricted Subsidiaries, of (or in) any Person that
has ceased to be a Restricted Subsidiary. Investments exclude extensions of
trade credit on commercially reasonable terms in accordance with normal trade
practices.
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"Investment Grade" means a rating of the Securities by both S&P and
Moody's, each such rating being in one of such agency's four highest generic
rating categories that signifies investment grade (i.e. BBB- (or the equivalent)
or higher by S&P and Baa3 (or the equivalent) or higher by Moody's); provided,
in each case, such ratings are publicly available; provided further that in the
event Moody's or S&P is no longer in existence, for purposes of determining
whether the Securities are rated "Investment Grade," such organization may be
replaced by a nationally recognized statistical rating organization (as defined
in Rule 436 under the Securities Act) designated by the Company, notice of which
designation shall be given to the Trustee.
"Laidlaw" means Laidlaw Inc., a corporation organized under the laws of
Canada.
"Lien" means any mortgage, pledge, security interest, encumbrance, lien or
charge of any kind (including any conditional sale or other title retention
agreement or lease in the nature thereof).
"Mandatory Redemption Date" means October 15, 1999, in the event the
Funding Conditions are not satisfied by September 30, 1999.
"Maturity", when used with respect to any Security, means the date on
which the principal of such Security or an installment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, notice of redemption or otherwise.
"Moody's" means Moody's Investors Service, Inc. and its successors.
"NationsBank Facility" means either (a) the working capital facility made
available pursuant to the letter agreement dated March 31, 1998 between
NationsBank of Texas, N.A., as lender, and Safety-Kleen Services, Inc., as
borrower or (b) any other agreement or agreements between the Company or any
Restricted Subsidiary and a financial institution or institutions providing for
the making of loans or advances on a revolving basis and/or the issuance of
letters of credit and/or the creation of bankers' acceptances to fund the
Company's general corporate requirements.
"Net Cash Proceeds" means, with respect to any Asset Sale, the proceeds
thereof in the form of cash or Cash Equivalents, including payments in respect
of deferred payment obligations, but only as and when received, in the form of,
or stock or other assets when disposed of for, cash or Cash Equivalents (except
to the extent that such obligations are financed or sold with recourse to the
Company or any Restricted Subsidiary), net of (a) brokerage commissions and
other fees and expenses (including fees and expenses of legal counsel,
accountants and investment banks) related to such Asset Sale, (b) provisions for
all taxes payable or required to be accrued in accordance with GAAP as a result
of such Asset Sale, (c) payments made to retire Indebtedness where payment of
such Indebtedness is secured
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by a Lien on the assets that are the subject of such Asset Sale, (d) amounts
required to be paid to any Person (other than the Company or any Restricted
Subsidiary) owning a beneficial interest in the assets that are subject to the
Asset Sale, (e) appropriate amounts to be provided by the Company or any
Restricted Subsidiary, as the case may be, as a reserve required in accordance
with GAAP against any liabilities associated with such Asset Sale and retained
by the seller after such Asset Sale, including pension and other post-employment
benefit liabilities, liabilities related to environmental matters and
liabilities under any indemnification obligations associated with such Asset
Sale and (f) all distributions and other payments made to minority interest
holders in Restricted Subsidiaries or joint ventures as a result of such Asset
Sale.
"Offering" means the offering of 9 1/4% Senior Notes Due 2009 by the
Company.
"Officers' Certificate" means a certificate signed by the Chairman, 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, including an employee of the Company, and who shall be
reasonably 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:
(a) Securities theretofore canceled by the Trustee or delivered to
the Trustee for cancellation;
(b) Securities, or portions thereof, for whose payment, redemption
or purchase 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;
(c) Securities, except to the extent provided in Sections 1202 and
1203, with respect to which the Company has effected defeasance and/or
covenant defeasance as provided in Article XII; and
(d) Securities which have been paid pursuant to Section 308 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
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been presented to the Trustee proof satisfactory to it that such
Securities are held by a bona fide purchaser in whose hands the Securities
are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of Outstanding Securities have given any request, demand,
authorization, direction, consent, notice or waiver hereunder, and for the
purpose of making the calculations required by TIA Section 313, Securities owned
by the Company or any other obligor upon the Securities or any Affiliate of the
Company or such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in making such calculation or in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Securities which the
Trustee knows to be so owned shall be so disregarded. Securities so owned which
have been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee's right so to act
with respect to such Securities and that the pledgee is not the Company or any
other obligor upon the Securities or any Affiliate of the Company or such other
obligor.
"Pari Passu Indebtedness" means any Indebtedness of the Company, whether
outstanding at the date of this Indenture or incurred thereafter, that ranks
pari passu in right of payment with the Securities.
"Partnership" means The ArmaKleen Company, a Delaware partnership formed
pursuant to the Partnership Agreement.
"Partnership Agreement" means the partnership agreement dated January 1,
1999 between Safety-Kleen Services and Church Dwight Co., Inc., as amended or
replaced from time to time.
"Paying Agent" means The Bank of Nova Scotia Trust Company of New York and
any successor (including the Company acting as Paying Agent) authorized by the
Company to pay the principal of and premium, if any, or interest on any
Securities on behalf of the Company.
"Permitted Holder" means Laidlaw, any successor thereto, and any of their
Affiliates.
"Permitted Indebtedness" means:
(i) Indebtedness of the Company or any Restricted Subsidiary under
the Senior Credit Facility in an aggregate principal amount at any one
time outstanding not to exceed $1,717,000,000 less (x) any amounts applied
to the permanent reduction of any term loans under the Senior Credit
Facility and (y) any amounts applied to the permanent reduction of the
Senior Credit Facility pursuant to Section 1013;
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(ii) Indebtedness of the Company or any Restricted Subsidiary
outstanding on the Closing Date, other than Indebtedness described under
clause (i) above;
(iii) Indebtedness owed by the Company to any Wholly-Owned
Restricted Subsidiary or owed by any Restricted Subsidiary to the Company
or a Wholly-Owned Restricted Subsidiary (provided that such Indebtedness
is held by the Company or such Wholly-Owned Restricted Subsidiary);
provided, however, that if the Company is the obligor on such
Indebtedness, such Indebtedness is unsecured and subordinated in all
respects to the Company's obligations under the Notes and provided,
further, however, that if any such Wholly-Owned Restricted Subsidiary
ceases to be (for any reason) a Wholly-Owned Restricted Subsidiary, then
this clause (iii) shall no longer be applicable to Indebtedness owed by
the Company or any Restricted Subsidiary to such Restricted Subsidiary
that was formerly a Wholly-Owned Restricted Subsidiary;
(iv) Indebtedness represented by the Securities (other than the
Additional Securities);
(v) Indebtedness of the Company or any Restricted Subsidiary in
respect of Hedging Obligations incurred in the ordinary course of
business;
(vi) Capital Lease Obligations of the Company or any Restricted
Subsidiary, provided that the aggregate amount of Indebtedness under this
clause (vi) does not exceed $15,000,000 at any one time outstanding;
(vii) Indebtedness of the Company or any Restricted Subsidiary under
purchase money mortgages or secured by purchase money security interests
so long as (x) such Indebtedness is not secured by any property or assets
of the Company or any Restricted Subsidiary other than the property and
assets so acquired and (y) such Indebtedness is created within 90 days of
the acquisition of the related property; provided that the aggregate
amount of Indebtedness under this clause (vii) does not exceed $15,000,000
at any one time outstanding;
(viii) guarantees by the Company or any Restricted Subsidiary of
Indebtedness that was permitted to be incurred by the provisions of
Section 1010;
(ix) Indebtedness of the Company or any Restricted Subsidiary, not
otherwise permitted by the first paragraph under Section 1010 and any
other clause of this definition, in an aggregate principal amount not to
exceed an amount equal to 5% of the total assets of the Company and its
Restricted Subsidiaries (on a consolidated basis determined in accordance
with GAAP);
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(x) Indebtedness of one or more Foreign Subsidiaries under one or
more credit facilities in an aggregate principal amount at any one time
outstanding not to exceed $50,000,000;
(xi) Indebtedness of the Company or any Restricted Subsidiary under
the NationsBank Facility in an aggregate principal amount at any one time
outstanding not to exceed $25,000,000; and
(xii) any renewals, extensions, substitutions, refinancings or
replacements (each, for purposes of this clause, a "refinancing") of any
outstanding Indebtedness incurred pursuant to clause (ii) and (iv) above,
including any successive refinancings thereof, so long as (A) any such new
Indebtedness is in a principal amount that does not exceed the principal
amount so refinanced, plus the amount of any premium required to be paid
in connection with such refinancing pursuant to the terms of the
Indebtedness refinanced or the amount of any premium reasonably determined
by the Company as necessary to accomplish such refinancing, plus the
amount of the expenses of the Company reasonably estimated to be incurred
in connection with such refinancing, (B) in the case of any refinancing of
Subordinated Indebtedness of the Company, such new Indebtedness is
subordinated to the Notes at least to the same extent as the Indebtedness
being refinanced and (C) such refinancing Indebtedness has a Weighted
Average Life equal to or greater than the Weighted Average Life of the
Indebtedness being refinanced and has a final Stated Maturity no earlier
than the final Stated Maturity of the Indebtedness being refinanced.
"Permitted Investments" means any of the following:
(a) Investments in Cash Equivalents.
(b) Investments by the Company or any Restricted Subsidiary in
another Person, if as a result of such Investment such other Person (i)
becomes a Restricted Subsidiary or (ii) is merged or consolidated with or
into, or transfers or conveys all or substantially all of its assets to,
the Company or a Restricted Subsidiary.
(c) Investments by the Company or any of the Restricted Subsidiaries
in any one of the other of them.
(d) Investments existing on the Closing Date.
(e) Investments made as a result of the receipt of non-cash
consideration in an Asset Sale permitted under Section 1013.
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(f) Investments consisting of loans and advances to officers and
employees of the Company or any of its Restricted Subsidiaries for
reasonable travel, relocation and business expenses in the ordinary course
of business.
(g) Investments the payment for which consists exclusively of
Capital Stock (exclusive of Disqualified Stock) of the Company.
(h) Other Investments that do not exceed in the aggregate at any one
time outstanding the greater of (i) $50,000,000 or (ii) an amount equal to
1% of the total assets of the Company and its Restricted Subsidiaries (on
a consolidated basis determined in accordance with GAAP).
"Permitted Liens" means (a) Liens in existence on any date on which the
Securities achieve an Investment Grade rating; (b) any Lien on any properties or
assets of the Company or any Restricted Subsidiary acquired (including by way of
merger or consolidation) by the Company or any Restricted Subsidiary after the
date on which the Securities achieve an Investment Grade rating, which Lien is
created, incurred or assumed contemporaneously with such acquisition, or within
270 days thereafter, to secure or provide for the payment or financing of any
part of the purchase price thereof, or any Lien upon any properties or assets of
the Company or any Restricted Subsidiary acquired after the date of this
Indenture existing at the time of such acquisition (whether or not assumed by
the Company or any Restricted Subsidiary), provided that every such Lien
referred to in this clause (b) shall attach only to the properties or assets of
the Company or any Restricted Subsidiary so acquired; (c) any Lien on any
properties or assets of the Company or any Restricted Subsidiary in favor of the
Company or any Restricted Subsidiary; (d) any Lien on properties or assets of
the Company or any Restricted Subsidiary incurred in connection with the
issuance of tax-exempt governmental obligations (including, without limitation,
industrial revenue bonds and similar financings); (e) any Lien granted by any
Restricted Subsidiary on its properties or assets to the extent such Lien is not
prohibited by any agreement to which such Restricted Subsidiary is subject as of
the date of the Indenture; (f) any Lien securing Indebtedness under the Senior
Credit Facility, the NationsBank Facility, the C$35,000,000 credit facility made
available pursuant to the letter agreement, dated as of April 3, 1998, between
Safety-Kleen Services (Canada) Ltd., as borrower and Toronto-Dominion Bank, as
lender, as such agreement may be amended, modified or supplemented from time to
time, and Hedging Obligations entered into in connection with the Senior Credit
Facility; and (g) any renewal or substitution for any Lien permitted by any of
the preceding clauses (a) through (f), including any Lien securing reborrowing
of amounts previously secured within 270 days of the repayment thereof, provided
that no such renewal or substitution shall extend to any properties or assets of
the Company or any Restricted Subsidiary other than the properties or assets of
the Company or any Restricted Subsidiary covered by the Lien being renewed or
substituted.
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"Person" means any individual, corporation, limited or general
partnership, limited liability company, joint venture, association, joint-stock
company, trust, unincorporated organization or government or any agency or
political subdivision thereof.
"PIK Debenture" means the Company's $350 million 5% subordinated
convertible pay-in-kind debenture, which is due and payable on May 15, 2009.
"PIK Purchase Agreement" means the Securities Purchase Agreement dated as
of April 19, 1999 among the Company, Laidlaw and Laidlaw International Finance
Corporation.
"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 308 in exchange for a mutilated
security or in lieu of a lost, destroyed or stolen Security shall be deemed to
evidence the same debt as the mutilated, lost, destroyed or stolen Security.
"Preferred Stock" means, with respect to any Person, any and all shares,
interests, partnership interests, participations, or other equivalents (however
designated) of such Person's preferred or preference stock, whether now
outstanding or issued after the Closing Date, and including, without limitation,
all classes and series of preferred or preference stock of such Person.
"Private Placement Legend" has the meaning specified in Section 202.
"Public Equity Offering" means an offer and sale of common stock (which is
Qualified Stock) of the Company or Safety-Kleen Services pursuant to a
registration statement that has been declared effective by the Commission
pursuant to the Securities Act (other than a registration statement on Form S-8
or otherwise relating to equity securities issuable under any employee benefit
plan of the Company or Safety-Kleen Services).
"Purchase Agreement" means the Purchase Agreement, dated as of May 10,
1999, between the Company and the Initial Purchasers named therein.
"Qualified Equity Interest" means any Qualified Stock and all warrants,
options or other rights to acquire Qualified Stock (but excluding any debt
security that is convertible into or exchangeable for Capital Stock).
"Qualified Stock" of any Person means any and all Capital Stock of such
Person, other than Disqualified Stock.
"QIB" means a "Qualified Institutional Buyer" under Rule 144A.
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"Redemption Date", when used with respect to any Security to be redeemed,
in whole or in part, 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 Treasury Dealer" means TD Securities (USA) Inc., NationsBanc
Montgomery Securities LLC and Raymond James & Associates, Inc. and their
respective successors; provided, however, that if any of the foregoing shall
cease to be a primary U.S. Government securities dealer in New York City (a
"Primary Treasury Dealer"), the Company shall substitute another Primary
Treasury Dealer.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any redemption date, the average of the bid and
asked prices for the Comparable Treasury Issue (expressed in each case as a
percentage of its principal amount) quoted in writing to the Trustee by such
Reference Treasury Dealer at 5:00 p.m. on the third Business Day preceding such
redemption date.
"Registrar" means The Bank of Nova Scotia Trust Company of New York and
any successor authorized by the Company to act as Registrar.
"Registration Rights Agreement" means the Registration Rights Agreement
between the Company and the Initial Purchasers named therein, dated as of May
17, 1999 relating to the Securities or any similar registration rights agreement
relating to the Additional Notes.
"Registration Statement" means any Registration Statement as defined in
the Registration Rights Agreement.
"Regular Record Date" for the interest payable on any Interest Payment
Date means the May 1 or November 1 (whether or not a Business Day), as the case
may be, next preceding such Interest Payment Date.
"Regulation S" means Regulation S under the Securities Act.
"Regulation S Global Security" has the meaning specified in Section 201.
"Restricted Global Security" has the meaning specified in Section 201.
"Restricted Payment" means any of the following:
(a) the declaration or payment of any dividend on, or the making of
any distribution to holders of, any shares of the Capital Stock of the
Company or any Restricted Subsidiary other than (i) dividends or
distributions payable solely in
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Qualified Equity Interests or (ii) dividends or distributions by a
Restricted Subsidiary payable to the Company or another Restricted
Subsidiary or (iii) pro rata dividends or distributions on common stock of
a Restricted Subsidiary held by minority stockholders, provided that such
dividends do not in the aggregate exceed the minority stockholders' pro
rata share of such Restricted Subsidiary's net income from the first day
of the Company's fiscal quarter during which the Closing Date occurs;
(b) the purchase, redemption or other acquisition or retirement for
value, directly or indirectly of any shares of Capital Stock (or any
options, warrants or other rights to acquire shares of Capital Stock) of
(i) the Company or any Unrestricted Subsidiary or (ii) any Restricted
Subsidiary held by any Affiliate of the Company (other than, in either
case, any such Capital Stock owned by the Company or any of its Restricted
Subsidiaries);
(c) the making of any principal payment on, or the repurchase,
redemption, defeasance or other acquisition or retirement for value, prior
to any scheduled principal payment, sinking fund payment or maturity, of
any Subordinated Indebtedness; or
(d) the making of any Investment (other than a Permitted Investment)
in any Person.
"Restricted Period" has the meaning set forth in Section 306.
"Restricted Subsidiary" means any Subsidiary other than an Unrestricted
Subsidiary.
"Rule 144A" means Rule 144A under the Securities Act.
"Safety-Kleen Services" means Safety-Kleen Services, Inc., a Delaware
corporation.
"Safety-Kleen Services Fixed Charge Coverage Ratio" means the Fixed Charge
Coverage Ratio of Safety-Kleen Services and its Restricted Subsidiaries as
defined in, and calculated in accordance with, the Safety-Kleen Services
Indenture.
"Safety-Kleen Services Indenture" means the indenture dated May 29, 1998
among Safety-Kleen Services, the Company, as guarantor, the Subsidiary
Guarantors named therein and The Bank of Nova Scotia Trust Company of New York,
as Trustee, as in effect on the date of the Indenture.
"Safety-Kleen Systems" means Safety-Kleen Systems, Inc., formerly known as
Safety- Kleen Corp., a Delaware corporation.
"Sale and Lease-Back Transaction" means any arrangement with any Person
providing for the leasing by the Company or any Restricted Subsidiary of any
properties or assets of the
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Company and/or such Restricted Subsidiary (except for temporary leases for a
term, including any renewal thereof, of not more than three years and except for
leases between the Company and any Restricted Subsidiary, between any Restricted
Subsidiary and the Company or between Restricted Subsidiaries), which properties
or assets have been or are to be sold or transferred by the Company or such
Restricted Subsidiary to such Person with the intention of taking back a lease
of such properties or assets.
"Sales Agreement" means the sales agreement dated January 26, 1999 between
Safety-Kleen Services and the Partnership, as amended or replaced from time to
time.
"Securities" has the meaning stated in the first recital of this Indenture
and more particularly means any Securities authenticated and delivered under
this Indenture. For all purposes of this Indenture, the term "Securities" shall
include any Exchange Securities to be issued and exchanged for any Initial
Securities in accordance with the Exchange Offer as provided for in the
Registration Rights Agreement and this Indenture. From and after the issuance of
any Additional Securities pursuant to Section 312 (but, not for purposes of
determining whether such issuance is permitted hereunder), "Securities" shall
include such Additional Securities for purposes of this Indenture, and all
Initial Securities, Exchange Securities and Additional Securities shall vote
together as one series of Securities under this Indenture.
"Securities Act" means the Securities Act of 1933, as amended from time to
time, and the rules and regulations thereunder.
"Security Register" has the meaning set forth in Section 305.
"Senior Credit Facility" means the credit agreement dated as of April 3,
1998 among Safety-Kleen Services, Inc., Safety-Kleen Services (Canada) Ltd., the
Banks and Toronto Dominion Bank, as agent, as such agreement may be amended,
renewed, extended, substituted, replaced, restated, refinanced, restructured,
supplemented or otherwise modified from time to time (including, without
limitation, any successive amendments, renewals, extensions, substitutions,
replacements, restatements, refinancings, restructuring, supplements or other
modifications of the foregoing); provided that with respect to any agreements
providing for the refinancing of Indebtedness under the Senior Credit Facility,
such agreements shall be the Senior Credit Facility for the purposes of this
definition only if a notice to that effect is delivered by the Company to the
Trustee.
"Shelf Registration Statement" means the Shelf Registration Statement as
defined in the Registration Rights Agreement.
"Significant Subsidiary" means any Restricted Subsidiary of the Company
that would be a "Significant Subsidiary" of the Company within the meaning of
Rule 1-02 under
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Regulation S-K promulgated by the Commission as such Rule is in effect on the
date of the Indenture.
"S&P" means Standard & Poor's Ratings Services, a division of The McGraw
Hill Companies, and its successors.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 309.
"Stated Maturity" means, when used with respect to any Security or any
installment of interest thereon, 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 and, when used with respect to any other
Indebtedness, means the date specified in the instrument governing such
Indebtedness as the fixed date on which the principal of such Indebtedness or
any installment of interest thereon is due and payable, and will not, in either
case, include any contingent obligations to repay, redeem or repurchase any such
interest or principal prior to the date originally scheduled for the payment
thereof.
"Stock Purchase Agreement" means the Stock Purchase Agreement dated as of
February 6, 1997 among Rollins Environmental Services, Inc., Laidlaw and Laidlaw
Transportation, Inc.
"Subordinated Indebtedness" means Indebtedness of the Company that is
subordinated in right of payment to the Securities.
"Subsidiary" means, with respect to any Person, any other Person a
majority of the equity ownership or Voting Stock of which is at the time owned,
directly or indirectly, by such Person and/or one or more Subsidiaries of such
Person.
"Surviving Entity" has the meaning set forth in Section 801.
"Suspended Covenants" has the meaning set forth in Section 1026.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939, as
amended, as in force at the date as of which this Indenture was executed, except
as provided in Section 905.
"Trustee" means the Person named as the "Trustee" in the first paragraph
of this Indenture 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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"Unrestricted Subsidiary" means (a) any Subsidiary that is designated by
the Board of Directors as an Unrestricted Subsidiary in accordance with Section
1018 and (b) any Subsidiary of an Unrestricted Subsidiary.
"U.S. Government Obligations" has the meaning set forth in Section 1204.
"U.S. Physical Securities" has the meaning set forth in Section 201.
"Voting Stock" means any class or classes of Capital Stock pursuant to
which the holders thereof have the general voting power under ordinary
circumstances to elect at least a majority of the board of directors, managers
or trustees of any Person (irrespective of whether or not, at the time, stock of
any other class or classes has, or might have, voting power by reason of the
happening of any contingency).
"Weighted Average Life" means, as of the date of determination with
respect to any Indebtedness or Disqualified Stock, the quotient obtained by
dividing (a) the sum of the products of (i) the number of years from the date of
determination to the date or dates of each successive scheduled principal or
liquidation value payment of such Indebtedness or Disqualified Stock,
respectively, multiplied by (ii) the amount of each such principal or
liquidation value payment by (b) the sum of all such principal or liquidation
value payments.
"Wholly-Owned Foreign Restricted Subsidiary" means any Foreign Subsidiary
that is a Restricted Subsidiary, all of the outstanding Capital Stock (other
than directors' qualifying shares of such Foreign Subsidiary required to be
owned by foreign nationals pursuant to applicable law) of which is owned,
directly or indirectly, by the Company.
"Wholly-Owned Restricted Subsidiary" means any Restricted Subsidiary, all
of the outstanding Capital Stock (other than directors' qualifying shares or
shares of Foreign Restricted Subsidiaries required to be owned by foreign
nationals pursuant to applicable law) of which is owned, directly or indirectly,
by the Company.
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 an Officers' Certificate stating that all conditions precedent, if any,
provided for in this Indenture (including any covenant compliance with which
constitutes a condition precedent) relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been complied with, except
that in the case of any such application or request as to which the furnishing
of such documents is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate or
opinion need be furnished.
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Every certificate or opinion with respect to compliance with a condition
or covenant provided for in this Indenture (other than pursuant to Section
1008(a)) shall include:
(a) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(b) 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;
(c) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(d) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
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.
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SECTION 104. Acts of Holders.
(a) Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Indenture to be given or taken by Holders may
be embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Holders in Person or by agents 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 conclusive in favor of the Trustee and the Company, if made in the manner
provided in this Section.
(b) 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 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 that the Trustee deems sufficient.
(c) The ownership of Securities shall be proved by the Security Register.
(d) If the Company shall solicit from the Holders of Securities any
request, demand, authorization, direction, notice, consent, waiver or other Act,
the Company may, at its option, by or pursuant to a Board Resolution, fix in
advance a record date for the determination of Holders entitled to give such
request, demand, authorization, direction, notice, consent, waiver or other Act,
but the Company shall have no obligation to do so. Notwithstanding TIA Section
316(c), such record date shall be the record date specified in or pursuant to
such Board Resolution, which shall be a date not earlier than the date 30 days
prior to the first solicitation of Holders generally in connection therewith and
not later than the date such solicitation is completed. If such a record date is
fixed, such request, demand, authorization, direction, notice, consent, waiver
or other Act may be given before or after such record date, but only the Holders
of record at the close of business on such record date shall be deemed to be
Holders for the purposes of determining whether Holders of the requisite
proportion of Outstanding Securities have authorized or agreed or consented to
such request, demand, authorization, direction, notice, consent, waiver or other
Act, and for that purpose the Outstanding Securities shall be computed as of
such record date; provided that no such authorization, agreement or consent by
the Holders on such record date shall be deemed effective unless it shall become
effective pursuant to the provisions of this Indenture not later than eleven
months after the record date.
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(e) Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the Holder of any Security shall bind every future Holder of the
same Security and 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.
(f) For all purposes of this Indenture, all Initial Securities and
Exchange Securities shall vote together as one series of Securities under this
Indenture.
SECTION 105. Notices, etc., to Trustee or 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,
(a) the Trustee by any Holder or the Company shall be sufficient for
every purpose hereunder if made, given, furnished or filed in writing or
mailed, first-class postage prepaid, to or with the Trustee at its
Corporate Trust Office, Attention: Corporate Finance Department, or sent
by facsimile to the Trustee at (212) 225-5436 (with receipt confirmed by
telephone at (212) 225-5422); or
(b) the Company by the Trustee or 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 1301 Gervais Street, Columbia, South Carolina 29201, Attention:
Henry Taylor, Esq., or sent by facsimile to the Company at (803) 933-4340
(with receipt confirmed by telephone at (803) 933-4219), or at any other
address or facsimile number previously furnished in writing to the Trustee
by the Company.
SECTION 106. Notice to Holders; Waiver.
Where this Indenture provides for notice of any event to Holders by the
Company or the Trustee, 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, and not
earlier than the earliest date, 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. Any notice
mailed to a Holder in the manner herein prescribed shall be conclusively deemed
to have been received by such Holder, whether or not such Holder actually
receives such notice. 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
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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.
In case by reason of the suspension of or irregularities in regular mail
service or by reason of any other cause, it shall be impracticable to mail
notice of any event to Holders when such notice is required to be given pursuant
to any provision of this Indenture, then any manner of giving such notice as
shall be satisfactory to the Trustee shall be deemed to be a sufficient giving
of such notice for every purpose hereunder.
SECTION 107. Conflict of any Provision of Indenture with Trust Indenture
Act.
If and to the extent that any provision of this Indenture limits,
qualifies or conflicts with the duties imposed by Sections 310 to 318,
inclusive, of the Trust Indenture Act, or conflicts with any provision (an
"incorporated provision") required by or deemed to be included in this Indenture
by operation of such Trust Indenture Act sections, such imposed duties or
incorporated provision shall control.
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, any Paying Agent, any
Securities Registrar and their successors hereunder, and the Holders, any
benefit or any legal or equitable right, remedy or claim under this Indenture.
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SECTION 112. Governing Law.
This Indenture and the Securities shall be governed by and construed in
accordance with the law of the State of New York. Upon the issuance of the
Exchange Securities, if any, or the effectiveness of the Exchange Offer
Registration Statement or, under certain circumstances, the effectiveness of the
Shelf Registration Statement, this Indenture shall be subject to the provisions
of the Trust Indenture Act that are required to be part of this Indenture and
shall, to the extent applicable, be governed by such provisions.
SECTION 113. Legal Holidays.
In any case where any Interest Payment Date, Mandatory Redemption Date,
Redemption Date, date established for payment of Defaulted Interest pursuant to
Section 309, Stated Maturity or Maturity, Change of Control Payment Date or
Asset Sale Purchase Date with respect to any Security or other day on which
principal, premium or interest in respect or the Securities is due, shall not be
a Business Day, then (notwithstanding any other provision of this Indenture or
of the Securities) payment of principal (or premium, if any) or interest 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, date established for payment of Defaulted Interest pursuant to
Section 309, Stated Maturity or Maturity, Change of Control Purchase Date or
Asset Sale Purchase Date; provided that no interest shall accrue for the period
from and after such Interest Payment Date or other such day, Redemption Date,
date established for payment of Defaulted Interest pursuant to Section 309,
Stated Maturity or Maturity, Change in Control Payment Date or Asset Sale
Purchase Date, as the case may be, to the next succeeding Business Day.
ARTICLE II
SECURITY FORMS
SECTION 201. Forms Generally.
The Securities and the Trustee's certificate of authentication shall be in
substantially the form annexed hereto as Exhibit A, 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. Any portion of the text of
any Security may be set forth on the reverse thereof, with an appropriate
reference thereto on the face of the Security.
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The definitive Securities shall be printed, lithographed or engraved on
steel-engraved borders or may be produced in any other manner, all as determined
by the officers of the Company executing such Securities, as evidenced by their
execution of such Securities.
The terms and provisions contained in the form of the Securities annexed
hereto as Exhibit A shall constitute, and are hereby expressly made, a part of
this Indenture. To the extent applicable, the Company and the Trustee, by their
execution and delivery of this Indenture, expressly agree to such terms and
provisions and to be bound thereby.
Initial Securities offered and sold in reliance on Rule 144A shall be
issued initially in the form of one or more permanent global Securities without
interest coupons substantially in the form set forth in Exhibit A (collectively,
the "Restricted Global Security") deposited with, or on behalf of, the
Depositary or with the Trustee, as custodian for the Depositary, duly executed
by the Company and authenticated by the Trustee as hereinafter provided. The
aggregate principal amount of the Restricted Global Security may from time to
time be increased or decreased by adjustments made on the records of the
Trustee, as custodian for the Depositary or its nominee, as hereinafter
provided.
Initial Securities offered and sold in reliance on Regulation S shall be
issued initially in the form of one or more global Securities in fully
registered form without interest coupons substantially in the form set forth in
Exhibit A (collectively, the "Regulation S Global Security" and, together with
the Restricted Global Security, the "Global Securities" or each individually, a
"Global Security"). The Regulation S Global Securities will be registered in the
name of a nominee of DTC and deposited with the Trustee on behalf of the
Purchasers, for the accounts of Euroclear and CEDEL. The aggregate principal
amount of the Regulation S Global Security may from time to time be increased or
decreased by adjustments made on the records of the Depositary or its nominee,
or of the Trustee, as custodian for the Depositary or its nominee, as
hereinafter provided. Until and including the 40th day after the date of this
Indenture, beneficial interests in the Regulation S Global Security may be held
only through Euroclear or CEDEL, unless delivery is made through the Restricted
Global Security in accordance with the certification requirements provided in
this Indenture.
If DTC is at any time unwilling or unable to continue as a depositary, or
if, in the case of the Regulation S Global Security held for an account of
Euroclear or CEDEL, Euroclear or CEDEL, as the case may be, is closed for
business for 14 continuous days or announces an intention to cease or
permanently ceases business, the Company will issue certificates for the
Securities in definitive, fully registered, non-global form without interest
coupons in exchange for the Regulation S Global Security or Restricted Global
Security, as the case may be. In all cases, certificates for Securities
delivered in exchange for any Global Security or beneficial interests therein
will be registered in the names, and issued in any approved denominations,
requested by DTC.
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In the case of certificates for Securities in non-global form issued in
exchange for the Regulation S Global Security or Restricted Global Security,
such certificates will bear the first legend appearing under Section 202 of this
Indenture (unless the Company determines otherwise in accordance with applicable
law). The holder of a Security in non-global form may transfer such Security,
subject to compliance with the provisions of such legend, by surrendering it at
the office or agency maintained by the Company for such purpose in the Borough
of Manhattan, The City of New York, which initially will be the office of the
Trustee.
Initial Securities offered and sold other than as global securities shall
be issued in the form of permanent certificated Securities in registered form in
substantially the form set forth in Exhibit A (the "U.S. Physical Securities").
SECTION 202. Restrictive Legends.
Unless and until (i) an Initial Security is sold under an effective
Registration Statement or (ii) an Initial Security is exchanged for an Exchange
Security in connection with an effective Registration Statement, in each case
pursuant to the Registration Rights Agreement, each certificate representing a
Security shall contain a legend substantially to the following effect (the
"Private Placement Legend") on the face thereof:
THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933 (THE "SECURITIES ACT") AND MAY NOT BE REOFFERED,
RESOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A) (1) TO A PERSON WHOM
THE TRANSFEROR REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER
WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (2) IN AN OFFSHORE TRANSACTION
MEETING THE REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE
SECURITIES ACT, (3) TO AN INSTITUTION THAT IS AN ACCREDITED INVESTOR
WITHIN THE MEANING OF RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D
UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT, (4) PURSUANT TO AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF
AVAILABLE) OR (5) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER
THE SECURITIES ACT, AND (B) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES
LAWS OF THE STATES AND OTHER JURISDICTIONS OF THE UNITED STATES.
Each Global Security, whether or not an Initial Security, shall also bear
the following legend on the face thereof:
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UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC") TO THE
COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC
OR SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC, (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE,
BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR
SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY
SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET
FORTH IN SECTIONS 306 AND 307 OF THE INDENTURE.
ARTICLE III
THE SECURITIES
SECTION 301. Title and Terms.
The initial aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is limited to $225,000,000,
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, 307, 308, 906, 1012, 1013 or 1108, pursuant to an Exchange Offer or
pursuant to Section 312. The Company may also issue up to $100,000,000 aggregate
principal amount of additional Securities having identical terms and conditions
to the Initial Securities, subject to compliance with the covenants contained
herein (the "Additional Securities").
The Initial Securities shall be known and designated as the "9 1/4% Senior
Notes due 2009" and the Exchange Securities shall be known and designated as the
"9 1/4% Exchange Senior Notes due 2009." Their Stated Maturity shall be May 15,
2009, and they shall bear interest at the rate of 9 1/4% per annum from May 17,
1999, or from the most recent Interest Payment Date to which interest has been
paid or duly provided for, payable semiannually in
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arrears on May 15 and November 15 in each year, commencing November 15, 1999,
until the principal thereof is paid or duly provided for, to the Person in whose
name the Security (or any predecessor Security) is registered at the close of
business on the May 1 or November 1 next preceding such Interest Payment Date.
The principal of and premium, if any, and interest on the Securities shall
be payable, and the Securities shall be exchangeable and transferable, at the
office or agency of the Company in The City of New York maintained for such
purposes, (which initially shall be the office of the Trustee located at One
Liberty Plaza, 23rd Floor, New York, New York 10006) or, at the option of the
Company, interest may be paid by check mailed to the address of the Person
entitled thereto as such address shall appear on the Security Register;
provided, however, that all payments with respect to the U.S. Global Securities,
as well as Physical Securities the Holders of which have given wire transfer
instructions to the Trustee (or other Paying Agent) by the Regular Record Date
for such payment, will be required to be made by wire transfer of immediately
available funds to the accounts specified by the Holders thereof.
Initial Securities that remain outstanding after the consummation of the
Exchange Offer and Exchange Securities issued in connection with the Exchange
Offer will be treated as a single class of securities under this Indenture.
The Securities shall be redeemable as provided in Article XI.
SECTION 302. Denominations.
The Securities shall be issuable only in registered form without coupons
and only in denominations of $1,000 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,
its President or a Vice President. The signature of any of these officers on the
Securities may be manual or facsimile signatures of the present or any future
such authorized officer and may be imprinted or otherwise reproduced on the
Securities.
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.
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 directing the Trustee to authenticate the
Securities and certifying that all conditions
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precedent to the issuance of Securities contained herein have been fully
complied with, and the Trustee in accordance with such Company Order shall
authenticate and deliver such Securities. On Company Order, the Trustee shall
authenticate for original issue Exchange Securities in an aggregate principal
amount not to exceed $225,000,000 plus the aggregate principal amount of any
Additional Securities issued; provided that such Exchange Securities shall be
issuable only upon the valid surrender for cancellation of Securities of a like
aggregate principal amount in accordance with an Exchange Offer pursuant to the
Registration Rights Agreement and a Company Order for the authentication of such
securities certifying that all conditions precedent to the issuance have been
complied with (including the effectiveness of a registration statement related
thereto). In each case, the Trustee shall be entitled to receive an Officers'
Certificate and an Opinion of Counsel of the Company that it may reasonably
request in connection with such authentication of Securities. Such order shall
specify the amount of Securities to be authenticated and the date on which the
original issue of Initial Securities or Exchange Securities is to be
authenticated.
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 in Exhibit
A duly executed by the Trustee by manual signature of an authorized officer, and
such certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered hereunder
and is entitled to the benefits of this Indenture.
In case the Company, pursuant to Article VIII, shall be consolidated or
merged with or into any other Person or shall convey, transfer, lease or
otherwise dispose of its properties and assets substantially as an entirety to
any Person, and the successor Person resulting from such consolidation, or
surviving such merger, or into which the Company shall have been merged, or the
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 VIII, any of the Securities authenticated
or delivered prior to such 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 Request of
the successor Person, shall authenticate and deliver Securities as specified in
such request for the purpose of such exchange. If 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 the Holders but without
expense to them, shall provide for the exchange of all Securities at the time
Outstanding for Securities authenticated and delivered in such new name.
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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 conclusively 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 the office
or agency of the Company designated for such purpose 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 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.
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
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 of Securities. The Security Register shall be in
written form or any other form capable of being converted into written form
within a reasonable time. At all reasonable times, the Security Register shall
be open to inspection by the Trustee. The Trustee is hereby initially appointed
as "Registrar" for the purpose of registering Securities and transfers of
Securities as herein provided.
Upon surrender for registration of transfer of any Security at the office
or agency of the Company designated pursuant to Section 1002, 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 denomination or denominations of a like aggregate principal amount.
At the option of the Holder, Securities may be exchanged for other
Securities of any authorized denomination 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 (including an
exchange of Initial Securities for Exchange Securities), the Company shall
execute, and the Trustee shall authenticate and deliver, the Securities which
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the Holder making the exchange is entitled to receive; provided that no exchange
of Initial Securities for Exchange Securities shall occur until an Exchange
Offer Registration Statement, Shelf Registration Statement or other registration
statement with respect to such Exchange Security shall have been declared
effective by the Commission and that the Initial Securities to be exchanged for
the Exchange Securities shall be canceled by the Trustee.
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 Registrar) be duly
endorsed, or be accompanied by a written instrument of transfer, in form
satisfactory to the Company and the 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 or redemption 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, 1012, 1013 or 1108 not involving
any transfer.
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 15 Business
Days before the selection of Securities to be redeemed under Section 1104 and
ending at the close of business on the day of such mailing of the relevant
notice of redemption, 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.
Notwithstanding anything to the contrary contained herein, the Trustee
shall have no duty whatsoever to monitor Federal or State securities laws other
than to collect the certificates required herein.
SECTION 306. Book-Entry Provisions for Restricted Global Security.
(a) The Global Security initially shall (i) be registered in the name of
Cede & Co., as nominee of the Depositary, (ii) be deposited with, or on behalf
of, the Depositary or with the Trustee, as custodian for such Depositary, and
(iii) bear legends as set forth in Section 202.
Beneficial interests in any Restricted Global Security may be transferred
to Persons who take delivery thereof in the form of a beneficial interest in the
same Restricted Global Security in accordance with the transfer restrictions set
forth in the legends as set forth in
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Section 202; provided, however, that prior to the expiration of the Restricted
Period, beneficial interests in the Regulation S Global Security may only be
held through Euroclear or CEDEL or indirectly through organizations which are
participants in such systems. After the expiration of the Restricted Period (but
not earlier), investors in the Regulation S Global Security may also hold such
interests through organizations other than Euroclear or CEDEL that are
participants in the Depositary's system. All interests in a Global Security,
including those held through Euroclear or CEDEL, may be subject to the
procedures and requirements of the Depositary. Those interests held through
Euroclear and CEDEL will be subject to the procedures and requirements of such
system. As used herein, the term "Restricted Period" means the period of 40
consecutive days beginning on and including the first day after the later of (i)
the day that TD Securities (USA) Inc. (or, with respect to any Additional
Securities, the applicable lead initial purchaser or underwriter) advises the
Company and the Trustee of the day on which the Initial Securities or Additional
Securities, as the case may be, are first offered to persons other than
distributors (as defined in Regulation S) and (ii) the original issue date of
the Initial Securities or Additional Securities, as the case may be.
(b) Transfers of any Global Security shall be limited to transfers of such
Global Security in whole, but not in part, to the Depositary, its successors or
their respective nominees. Interests of beneficial owners in any Global Security
may be transferred in accordance with the rules and procedures of the Depositary
and the provisions of Section 307.
Unless (i) the Depositary notifies the Company that it is unwilling or
unable to continue as depositary for a Global Security or ceases to be a
"Clearing Agency" registered under the Exchange Act or announces an intention
permanently to cease business or does in fact do so and a successor Depositary
is not appointed by the Company within 90 days of such notice, (ii) an Event of
Default has occurred and is continuing with respect to a Global Security or
(iii) in the case of a Global Security held for the account of Euroclear or
CEDEL, Euroclear or CEDEL, as the case may be, is closed for business for 14
continuous Business Days or announces an intention to cease or permanently
ceases business, owners of beneficial interests in a Global Security shall not
be entitled to have any portions of such Global Security registered in their
names, shall not receive or be entitled to receive physical delivery of
Securities in definitive form and shall not be considered the owners or holders
of the Global Security.
(c) Securities issued in exchange for a Global Security or any portion
thereof pursuant to the last sentence of subsection (b) of this Section 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 Depositary shall designate and shall bear
any legends required hereunder. Any Global Security to be exchanged in whole
shall be surrendered by the Depositary to the Trustee, as 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 Depositary or its nominee with
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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 make available for
delivery the Security issuable on such exchange to or upon the order of the
Depositary or an authorized representative thereof. In the event of the
occurrence of any of the events specified in the last sentence of subsection (b)
of this Section 306, the Company will promptly make available to the Trustee a
reasonable supply of certificated Securities in definitive form.
(d) Except as otherwise set forth in this Indenture or a Global Security,
owners of beneficial interests in the Securities evidenced by a Global Security
will not be entitled to any rights under this Indenture with respect to such
Global Security, and the Depositary or its nominee may be treated by the
Company, the Trustee and any agent of the Company or the Trustee as the owner
and Holder of such Global Security for all purposes whatsoever. Notwithstanding
the foregoing, nothing herein shall prevent the Company, the Trustee or any such
agent from giving effect to any written certification, proxy or other
authorization furnished by the Depositary or its nominee or impair, as between
the Depositary or its nominee and such owners of beneficial interests, the
operation of customary practices governing the exercise of the rights of the
Depositary or its nominee as Holder of any Security.
SECTION 307. Special Transfer Provisions.
Unless and until (i) an Initial Security is sold under an effective
Registration Statement, or (ii) an Initial Security is exchanged for an Exchange
Security in connection with an effective Registration Statement the following
provisions shall apply:
(a) Restricted Global Security to Regulation S Global Security. If, at any
time, an owner of a beneficial interest in a Restricted Global Security
deposited with the Depositary (or the Trustee as custodian for the Depositary)
wishes to transfer its interest in such Restricted Global Security to a Person
who is required or permitted to take delivery thereof in the form of an interest
in a Regulation S Global Security, such owner shall, subject to the Applicable
Procedures, exchange or cause the exchange of such interest for an equivalent
beneficial interest in a Regulation S Global Security as provided in this
Section 307(a). Upon receipt by the Trustee of (1) instructions given in
accordance with the Applicable Procedures from an Agent Member directing the
Trustee to credit or cause to be credited a beneficial interest in the
Regulation S Global Security in an amount equal to the beneficial interest in
the applicable Restricted Global
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Security to be exchanged, (2) a written order given in accordance with the
Applicable Procedures containing information regarding the participant account
of the Depositary and the Euroclear or CEDEL account (if applicable) to be
credited with such increase, and (3) a certificate substantially in the form of
Exhibit B hereto given by the owner of such beneficial interest, the Trustee, as
Registrar, shall instruct the Depositary to reduce or cause to be reduced the
aggregate principal amount of the applicable Restricted Global Security and to
increase or cause to be increased the aggregate principal amount of the
applicable Regulation S Global Security by the principal amount of the
beneficial interest in the Restricted Global Security to be exchanged, to credit
or cause to be credited to the account of the Person specified in such
instructions a beneficial interest in the Regulation S Global Security equal to
the reduction in the aggregate principal amount of the applicable Restricted
Global Security, and to debit, or cause to be debited, from the account of the
Person making such exchange or transfer the beneficial interest in the
Restricted Global Security that is being exchanged or transferred.
(b) Regulation S Global Security to Restricted Global Security. If, at any
time, an owner of a beneficial interest in a Regulation S Global Security
deposited with the Depositary or with the Trustee as custodian for the
Depositary wishes to transfer its interest in such Regulation S Global Security
to a Person who is required or permitted to take delivery thereof in the form of
an interest in a Restricted Global Security, such owner shall, subject to the
Applicable Procedures, exchange or cause the exchange of such interest for an
equivalent beneficial interest in a Restricted Global Security, as provided in
this Section 307(b). Upon receipt by the Trustee of (1) instructions given in
accordance with the Applicable Procedures from an Agent Member, directing the
Trustee, as Registrar, to credit or cause to be credited a beneficial interest
in the Restricted Global Security equal to the beneficial interest in the
Regulation S Global Security to be exchanged, (2) a written order given in
accordance with the Applicable Procedures containing information regarding the
participant account of the Depositary to be credited with such increase and (3)
if such transfer is requested prior to the expiration of the Restricted Period,
a certificate in the form of Exhibit C attached hereto given by the owner of
such beneficial interest, the Trustee, as Registrar, shall instruct the
Depositary to reduce or cause to be reduced the aggregate principal amount of
such Regulation S Global Security and to increase or cause to be increased the
aggregate principal amount of the applicable Restricted Global Security by the
principal amount of the beneficial interest in the Regulation S Global Security
to be exchanged, and the Trustee, as Registrar,
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shall instruct the Depositary, concurrently with such reduction, to credit or
cause to be credited to the account of the Person specified in such instructions
a beneficial interest in the applicable Restricted Global Security equal to the
reduction in the aggregate principal amount of such Regulation S Global Security
and to debit or cause to be debited from the account of the Person making such
transfer the beneficial interest in the Regulation S Global Security that is
being transferred. After the expiration of the Restricted Period, the
certificate described in clause (3) above shall no longer be required to effect
transfers pursuant to this Section 307(b).
(c) Transfers of U.S. Physical Securities for Restricted Global Security
or Regulation S Global Security. If the holder of a U.S. Physical Security
wishes at any time to transfer such holder's U.S. Physical Security to a Person
who wishes to take delivery thereof in the form of a beneficial interest in the
Regulation S Global Security or the Restricted Global Security, such transfer
may be effected, subject to the Applicable Procedures, only in accordance with
the provisions of this Section 307(c). Upon receipt by the Trustee of (1)
instructions given in accordance with the Applicable Procedures from an Agent
Member directing the Trustee to credit or cause to be credited a beneficial
interest in the Regulation S Global Security or Restricted Global Security, as
the case may be, in a principal amount equal to that of the U.S. Physical
Securities to be so transferred, (2) a written order given in accordance with
the Applicable Procedures containing information regarding the participant
account of the Depositary (and the Euroclear or CEDEL account, as applicable) to
be credited with such beneficial interest and (3) a certificate in substantially
the form set forth in Exhibit D, given by the holder of such U.S. Physical
Security, the Trustee, as Security Registrar, shall instruct the Depositary to
increase the principal amount of the Regulation S Global Security or the
Restricted Global Security, as the case may be, by the principal amount of the
U.S. Physical Security to be so transferred, and to cancel or cause to be
canceled such U.S. Physical Security.
(d) Restricted Global Security or U.S. Physical Security to Regulation S
Global Security After Two Years. If the holder of a beneficial interest in a
Restricted Global Security or U.S. Physical Security wishes at any time after
the second anniversary of the date of original issuance of the Securities to (A)
transfer such interest to a Person who wishes to take delivery thereof in the
form of a beneficial interest in the Regulation S Global Security or (B) to
exchange such interest for a beneficial interest in a Regulation S Global
Security, such transfer or exchange may be effected, subject to the Applicable
Procedures, only in accordance with this Section 307(d). Upon receipt by the
Trustee of (1) in the case of a transfer or exchange of an interest in the
Restricted Global Security or a U.S. Physical Security, instructions given in
accordance with the Applicable Procedures from an Agent Member directing the
Trustee to credit or cause to be credited to a beneficial interest in the
Regulation S Global Security in an amount equal to that the beneficial interest
in the Restricted Global Security to be so transferred or exchanged, (2) a
written order given in accordance with the Applicable Procedures containing
information regarding the participant account of the Depositary (and, if
applicable, the Euroclear or CEDEL account, as the case may be) to be credited
with such beneficial interest and (3) a certificate substantially in the
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form of Exhibit E hereto given by the holder of such beneficial interest, the
Trustee, as Registrar, shall (i) in the case of a transfer or exchange of an
interest in the Restricted Global Security, instruct the Depositary to reduce
the principal amount of the Restricted Global Security, and to increase the
principal amount of the Regulation S Global Security, by the principal amount of
the beneficial interest in the Restricted Global Security to be so transferred
or exchanged, and to credit or cause to be credited to the account of the Person
specified in such instructions a beneficial interest in the Regulation S Global
Security having a principal amount equal to the amount by which the principal
amount of the Restricted Global Security was reduced upon such transfer or
exchange or (ii) in the case of a transfer or exchange of a U.S. Physical
Security, cancel such U.S. Physical Security and increase the principal amount
of the Regulation S Global Security accordingly.
(e) General. By its acceptance of any Security bearing the Private
Placement Legend, each Holder of such a Security acknowledges the restrictions
on transfer of such Security set forth in this Indenture and in the Private
Placement Legend and agrees that it will transfer such Security only as provided
in this Indenture.
The Registrar shall retain as required by law copies of all letters,
notices and other written communications received pursuant to Section 306 or
this Section 307. The Company shall have the right to inspect and make copies of
all such letters, notices or other written communications at any reasonable time
upon the giving of reasonable written notice to the Registrar.
SECTION 308. Mutilated, Destroyed, Lost and Stolen Securities.
If (i) any mutilated Security is surrendered to the Trustee or the
Registrar, or (ii) the Company and the Trustee receive evidence to their
satisfaction of the destruction, loss or theft of any Security, and there is
delivered to the Company and the Trustee such security or indemnity as may be
required by them to save each of them harmless, then, in the absence of notice
to the Company or the Trustee that such Security has been acquired by a bona
fide purchaser, the Company shall execute and upon Company Order the Trustee
shall authenticate and deliver, in exchange for any such mutilated Security or
in lieu of any such destroyed, lost or stolen Security, a new Security of like
tenor and principal amount, 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,
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.
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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 mutilated,
destroyed, lost or stolen Security shall be at any time enforceable by anyone,
and shall be entitled to all 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 309. 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 such Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest at the office or
agency of the Company in The City of New York maintained for such purposes
(which initially shall be the office of the Trustee located at One Liberty
Plaza, 23rd Floor, New York, New York 10006) pursuant to Section 1002 or, at the
option of the Company, interest may be paid by check mailed to the address of
the Person entitled thereto pursuant to 310 as such address appears in the
Security Register; provided that all payments with respect to Global Securities
and Physical Securities the Holders of which have given wire transfer
instructions to the Trustee (or other Paying Agent) by the Regular Record Date
shall be required to be made by wire transfer of immediately available funds to
the accounts specified by the holders thereof.
Any interest on any Security which is payable, but is not punctually paid
or duly provided for, on any Interest Payment Date shall forthwith cease to be
payable to the Holder on the Regular Record Date by virtue of having been such
Holder, and such defaulted interest and (to the extent lawful) interest on such
defaulted interest at the rate borne by the Securities (such defaulted interest
and interest thereon herein collectively called "Defaulted Interest") may be
paid by the Company, at its election in each case, as provided in clause (a) or
(b) below:
(a) 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 given in the manner provided for in Section 106, 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
given, such Defaulted Interest shall be
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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 (b).
(b) 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.
If the Company shall be required to pay any additional interest pursuant
to the terms of the Registration Rights Agreement, it shall deliver an Officers'
Certificate to the Trustee setting forth the new interest rate and the period
for which such rate is applicable.
SECTION 310. Persons Deemed Owners.
Prior to the 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 premium, if
any, and (subject to Sections 305 and 309) interest on such Security and for all
other purposes whatsoever, whether or not such Security be overdue, and none of
the Company, the Trustee or any agent of the Company or the Trustee shall be
affected by notice to the contrary.
SECTION 311. Cancellation.
All Securities surrendered for payment, redemption, registration of
transfer or exchange shall, if surrendered to any Person other than the Trustee,
be delivered to the Trustee and shall be promptly cancelled by it. The Company
may at any time deliver to the Trustee for cancellation any Securities
previously authenticated and delivered hereunder which the Company may have
acquired in any manner whatsoever, and may deliver to the Trustee (or to any
other Person for delivery to the Trustee) for cancellation any Securities
previously authenticated hereunder which the Company has not issued and sold,
and all Securities so delivered shall be promptly cancelled by the Trustee. If
the Company shall so acquire any of the Securities, however, such acquisition
shall not operate as a redemption or satisfaction of the indebtedness
represented by such Securities unless and until the same are surrendered to the
Trustee for cancellation. No Securities shall be authenticated in lieu of or in
exchange for
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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 312. Issuance of Additional Securities. The Company may, subject
to Article X of this Indenture, issue up to $100,000,000 aggregate principal
amount of Additional Securities. Any Additional Securities (and Exchange
Securities, if any, issued in exchange therefor) will be part of the same issue
as the Securities offered hereby and will vote on all matters with the
Securities offered hereby.
SECTION 313. CUSIP and CINS Numbers. The Company in issuing the Securities
may use "CUSIP" and "CINS" numbers (if then generally in use) and, if so, the
Trustee shall use "CUSIP" and "CINS" numbers in notices of redemption as a
convenience to Holders; provided that any such notice may state that no
representation is made as to the correctness of such numbers either as printed
on the Securities or as contained in any notice of a redemption and that
reliance may be placed only on the other identification numbers printed on the
Securities, and any such redemption shall not be affected by any defect in or
omission of such numbers.
SECTION 314. Computation of Interest.
Interest on the Securities shall be computed on the basis of a 360-day
year consisting of twelve 30-day months.
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further effect
(except as to surviving rights of registration of transfer or exchange of the
Securities, as expressly provided for herein or pursuant hereto) and the
Trustee, at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture when
(a) either
(i) all the Securities theretofore authenticated and delivered
(other than mutilated, destroyed, lost or stolen Securities that
have been replaced or paid as provided in Section 308 and Securities
that have been subject to
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defeasance under Article XII) have been delivered to the Trustee for
cancellation; or
(ii) all Securities not theretofore delivered to the Trustee
for cancellation
(A) have become due and payable,
(B) will become due and payable at Stated Maturity within one
year, or
(C) are to be called for redemption within one year under
arrangements reasonably 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 (A), (B) or (C) above, has irrevocably deposited
or caused to be deposited with the Trustee funds in trust for the purpose in an
amount sufficient to pay and discharge the entire Indebtedness on such
Securities not theretofore delivered to the Trustee for cancellation, for
principal (and premium, if any, on) and interest on the Securities to the date
of such deposit (in the case of Securities that have become due and payable) or
to the Stated Maturity or Redemption Date, as the case may be;
(b) the Company has paid or caused to be paid all sums payable
hereunder by the Company; and
(c) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge
of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 606 and, if money shall
have been deposited with the Trustee pursuant to subclause (ii) of clause (a) 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 premium, if
any) and interest for whose payment such money has been deposited with the
Trustee; but such money need not be segregated from other funds except to the
extent required by law.
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ARTICLE V
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
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):
(a) default in the payment of any interest on any Security when it
becomes due and payable, and continuance of such default for a period of
30 days;
(b) default in the payment of the principal of or premium, if any,
on any Security when due;
(c) failure to perform or comply with the provisions described in
Article VIII or to make or consummate a Change of Control Offer or an
Asset Sale Offer in accordance with the provision of Section 1012 and
Section 1013, respectively;
(d) default in the performance, or breach, of any covenant or
agreement of the Company contained in this Indenture (other than as
contemplated by clauses (a), (b) and (c) above) and continuance of such
default or breach for a period of 60 days after written notice has been
given (x) to the Company by the Trustee or (y) to the Company and the
Trustee by the Holders of at least 25% in aggregate principal amount of
the Securities then Outstanding;
(e) the occurrence of an event of default under any mortgage, bond,
indenture, loan agreement or other document evidencing Indebtedness of the
Company or any Restricted Subsidiary, which Indebtedness has an aggregate
outstanding principal amount of $25,000,000 or more, and such default (i)
results in the acceleration of such Indebtedness prior to its Stated
Maturity or (ii) constitutes a failure to make any payment of principal
with respect to any such Indebtedness when due and payable after
expiration of any applicable grace period;
(f) failure by the Company or any of its Restricted Subsidiaries to
pay one or more final judgments the uninsured portion of which exceeds in
the aggregate $25,000,000, which judgment or judgments are not paid,
discharged or stayed for a period of 60 days;
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(g) entry of a decree or order by a court having jurisdiction in the
premises adjudging the Company or any Significant Subsidiary a bankrupt or
insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjustments or composition of or in respect
of the Company or any Significant Subsidiary under the Federal Bankruptcy
Code or any other applicable federal or state law, or appointing a
receiver, liquidator, assignee, trustee, sequestrator (or other similar
official) of the Company or any Significant Subsidiary or of any
substantial part of its property, or ordering the winding up or
liquidation of its affairs, and the continuance of any such decree or
order unstayed and in effect for a period of 90 consecutive days; or
(h) the institution by the Company or any Significant Subsidiary of
proceedings to be adjudicated a bankrupt or insolvent, or the consent by
it to the institution of bankruptcy or insolvency proceedings against it,
or the filing by it of a petition or answer or consent seeking
reorganization or relief under the Federal Bankruptcy Code or any other
applicable federal or state law, or the consent by it to the filing of any
such petition or to the appointment of a receiver, liquidator, assignee,
trustee, sequestrator (or other similar official) of the Company or any
Significant Subsidiary or of any substantial part of its property, or the
making by it of an assignment for the benefit of creditors, or the
admission by it in writing of its inability to pay its debts generally as
they become due.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default (other than as specified in Section 501(g) or (h)
occurs and is continuing, the Trustee or the Holders of not less than 25% in
aggregate principal amount of the Securities then Outstanding may, and the
Trustee at the request of such Holders shall, declare the principal of and
premium, if any, and accrued and unpaid interest on, all of the Outstanding
Securities immediately due and payable and, upon any such declaration, all such
amounts will become due and payable immediately. If an Event of Default
specified in Section 501(g) or (h) above occurs and is continuing, then the
principal and premium, if any, and accrued and unpaid interest on all of the
Securities Outstanding will ipso facto become and be immediately due and payable
without any declaration or other act on the part of the Trustee or any Holder of
Securities. The Company shall deliver to the Trustee, within 10 days after the
occurrence thereof, notice of any default or acceleration referred to the
Section 501(e).
At any time after a declaration of acceleration, but before a judgment or
decree for payment of the money due has been obtained by the Trustee, the
Holders of a majority in aggregate principal amount of the Outstanding
Securities, by written notice to the Company and the Trustee, may rescind such
declaration and its consequences if
(i) the Company has paid or deposited with the Trustee a sum
sufficient to pay,
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(A) all overdue interest on all Securities,
(B) all unpaid principal of and premium, if any, on any
Outstanding Securities that has become due otherwise than by such
declaration of acceleration and interest thereon at the rate borne
by the Securities,
(C) to the extent that payment of such interest is lawful,
interest on overdue interest and overdue principal at the rate borne
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
(ii) all Events of Default, other than the non-payment of amounts of
principal of or premium, if any, on or interest on the Securities that
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.
Notwithstanding the preceding paragraph, in the event of a declaration of
acceleration in respect of the Securities because an Event of Default specified
in Section 501(e) shall have occurred and be continuing, such declaration of
acceleration shall be automatically annulled if the Indebtedness that is the
subject of such Event of Default has been discharged or the holders thereof have
rescinded their declaration of acceleration in respect of such Indebtedness, and
written notice of such discharge or rescission, as the case may be, shall have
been given to the Trustee by the Company and countersigned by the holders of
such Indebtedness or a trustee, fiduciary or agent for such holders, within 30
days after such declaration of acceleration in respect of the Securities, and no
other Event of Default has occurred during such 30-day period which has not been
cured or waived during such period.
SECTION 503. Collection of Indebtedness and Suits for Enforcement by
Trustee.
The Company covenants that if
(a) default is made in the payment of any installment of interest on
any Security when such interest becomes due and payable and such default
continues for a period of 30 days, or
(b) default is made in the payment of the principal of or premium,
if any, on any Security at the Maturity thereof,
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the Company will, upon demand of the Trustee, pay to the Trustee for the benefit
of the Holders of such Securities, the whole amount then due and payable on such
Securities for principal (and premium, if any) and interest, and interest on any
overdue principal (and premium, if any) and, to the extent that payment of such
interest shall be legally enforceable, upon any overdue installment of interest,
at the rate borne 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 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 the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Company for the payment of overdue principal, premium, if any, or interest)
shall be entitled and empowered, by intervention in such proceeding or
otherwise,
(a) to file and prove a claim for the whole amount of principal (and
premium, if any) and interest owing and unpaid in respect of the
Securities and to file such other papers or documents as may be necessary
or advisable in order to have the claims of the Trustee (including any
claim for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel) and of the Holders
allowed in such judicial proceeding, and
(b) to collect and receive any moneys or other securities or
property payable or deliverable upon the conversion or exchange of such
securities or upon any such claims and to distribute the same;
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and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
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 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 606.
Nothing herein contained 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 and
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.
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 premium, if
any 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
606;
SECOND: To the payment of the amounts then due and unpaid for
principal of and premium, if any, 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
premium, if any) and interest, respectively; and
THIRD: The balance, if any, to the Company.
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SECTION 507. Limitation on Suits.
No Holder of any Securities 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
(a) such Holder has previously given written notice to the Trustee
of a continuing Event of Default;
(b) 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;
(c) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities (including fees and
expenses of its agents and counsel) to be incurred in compliance with such
request;
(d) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(e) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a
majority or more 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.
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium
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, as provided herein (including, if applicable, Article XII) and in such
Security of the principal of and premium, if any, and (subject to Section 309)
interest on such Security on the respective Stated Maturities expressed in such
Security (or, in the case of redemption, on the Redemption Date) and to
institute suit for the enforcement of any such payment, and such rights shall
not be impaired without the consent of such Holder.
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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
308, 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 not less than 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
(a) such direction shall not be in conflict with any rule of law or
with this Indenture,
(b) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction, and
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(c) the Trustee need not take any action which might involve it in
personal liability or be unjustly prejudicial to the Holders not
consenting.
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 of the Securities,
waive any past defaults hereunder, except a default
(a) in the payment of the principal of or premium, if any or
interest on any Security, or
(b) in respect of a covenant or provision hereof which under Article
IX cannot be modified or amended without the consent of the Holder of each
Security Outstanding.
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 Event of Default or impair any right consequent thereon.
SECTION 514. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that it
will not at any time insist upon, or plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay or extension law wherever enacted,
now or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
SECTION 515. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security by
his acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for any action taken,
suffered or omitted by it as Trustee, the filing by any party litigant in such
suit of an undertaking to pay the costs of such suit, and that such court may in
its discretion assess reasonable costs, including reasonable attorney's fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Holder, or group of Holders, holding in
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the aggregate more than 10% in principal amount of the Outstanding Securities,
or to any suit instituted by any Holder for the enforcement of the payment of
the principal (or premium, if any ) or interest on any Security on or after the
respective Stated Maturities expressed in such Security (or, in the case of
redemption, on or after the Redemption Date).
SECTION 516. No Personal Liability of Directors, Officers, Employees and
Stockholders.
No officer, employee, incorporator or stockholder of the Company, as such,
shall have the liability for any obligations of the Company under the Securities
or this Indenture, as applicable, for any claim based on, in respect of, or by
reason of, such obligations or their creation. Each holder by accepting a
Security waives and releases all such liability. The waiver and release are part
of the consideration for issuance of the Securities.
ARTICLE VI
THE TRUSTEE
SECTION 601. Notice of Defaults.
If a Default or an Event of Default occurs and is continuing and is known
to the Trustee, the Trustee shall mail to each Holder of the Securities in the
manner and to the extent provided in TIA Section 313(c) notice of the Default or
Event of Default within 90 days after the occurrence thereof; provided, however,
that, except in the case of a Default or an Event of Default in the payment of
principal of and premium, if any, on or interest on any Securities, the Trustee
may withhold the notice to the Holders of the Securities if a committee of its
trust officers in good faith determines that withholding such notice is in the
interests of the Holders of the Securities.
SECTION 602. Certain Rights of Trustee.
Subject to the provisions of TIA Sections 315(a) through 315(d):
(a) the Trustee may conclusively rely and shall be protected in
acting or refraining from acting, pursuant to the terms of this Indenture
or otherwise, 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 Person or Persons;
(b) any request or direction of the Company mentioned herein shall
be sufficiently evidenced by a Company Request or Company Order with
sufficient detail
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as may be requested by the Trustee 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 or an Opinion of
Counsel;
(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 (including fees and expenses
of its agents and counsel) 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,
and may conclusively rely upon, the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note, other evidence
of indebtedness or other paper or document, but the Trustee, in its
discretion, may make such further inquiry or investigation into such facts
or matters as it may see fit, and, if the Trustee shall determine to make
such further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company, personally or by agent or
attorney;
(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;
(h) the Trustee shall not be liable for any action taken, suffered
or omitted by it in good faith and believed by it to be authorized or
within the discretion or rights or powers conferred upon it by this
Indenture; and
(i) except during the continuance of an Event of Default, the
Trustee need perform only those duties as are specifically set forth in
this Indenture.
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The Trustee shall not be required to expend or risk its own funds or
otherwise incur any financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers if it shall have
reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it.
SECTION 603. Trustee Not Responsible for Recitals or Issuance of
Securities.
The recitals contained herein and in the Securities, except for 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 or the Securities. The Trustee shall not be accountable for the use or
application by the Company of Securities or the proceeds thereof.
SECTION 604. May Hold Securities.
The Trustee, any Paying Agent, any Registrar or any other agent of the
Company or of the Trustee, in its individual or any other capacity, may become
the owner or pledgee of Securities and, subject to TIA Sections 310(b) and 311,
may otherwise deal with the Company with the same rights it would have if it
were not Trustee, Paying Agent, Registrar or such other agent.
SECTION 605. 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 606. Compensation and Reimbursement.
The Company agrees:
(a) to pay to the Trustee (in its capacity as Trustee, Paying Agent
and Registrar) 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);
(b) 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
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(c) to indemnify the Trustee for, and to hold it harmless against,
any loss, liability or expense incurred without negligence or bad faith on
its part, arising out of or in connection with the acceptance or
administration of this trust, including the costs and expenses of
enforcing this Indenture against the Company (including this Section 606)
and of defending itself against any claim (whether asserted by any Holder
or the Company) or liability in connection with the exercise or
performance of any of its powers or duties hereunder.
The obligations of the Company under this Section to compensate the
Trustee, to pay or reimburse the Trustee for expenses, disbursements and
advances and to indemnify and hold harmless the Trustee shall constitute
additional indebtedness hereunder and shall survive the satisfaction and
discharge of this Indenture and any termination under any bankruptcy law. As
security for the performance of such obligations of the Company, the Trustee
shall have a claim prior to the Securities upon all property and funds held or
collected by the Trustee as such, except funds held in trust for the payment of
principal of and premium, if any, or interest on particular Securities.
When the Trustee incurs expenses or renders services in connection with an
Event of Default specified in Section 501(g) or (h) , the expenses (including
the reasonable charges and expenses of its counsel) of and the compensation for
such services are intended to constitute expenses of administration under any
applicable bankruptcy, insolvency or other similar law.
The provisions of this Section shall survive the termination of this
Indenture.
SECTION 607. Corporate Trustee Required; Eligibility.
There shall be at all times a Trustee hereunder which shall be eligible to
act as Trustee under TIA Section 310(a)(1). The Trustee together with its parent
on a consolidated basis shall have a combined capital and surplus of at least
$50,000,000 and each successor Trustee shall have a combined capital and surplus
of at least $50,000,000. If such corporation publishes reports of condition at
least annually, pursuant to law or to the requirements of Federal, State,
territorial or District of Columbia supervising or examining authority, then for
the purposes of this Section, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. 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 608. 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 in accordance with the
applicable requirements of Section 609.
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(b) The Trustee may resign at any time by giving written notice thereof to
the Company. If the instrument of acceptance by a successor Trustee required by
Section 609 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 not
less than 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 the provisions of TIA
Section 310(b) 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, except when the Trustee's duty to resign is stayed in accordance
with the provisions of TIA Section 310(b), or
(2) the Trustee shall cease to be eligible under Section 607 and
shall fail to resign 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
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company, by a Board Resolution, may remove the
Trustee, or (ii) subject to TIA Section 315(e), 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 subject to TIA Section 315(e),
any Holder
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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 the Holders of
Securities in the manner provided for in Section 106. Each notice shall include
the name of the successor Trustee and the address of its Corporate Trust Office.
SECTION 609. 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 subject to the retiring Trustee's rights as provided under the
last sentence of Section 606. 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 610. 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 of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities. In
case at that time any of the Securities shall not have been authenticated, any
successor Trustee may authenticate such Securities either in the name of any
predecessor hereunder or in the name of the successor Trustee. In all such cases
such certificates shall have the full force and effect which this Indenture
provides that the certificate of authentication
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of the Trustee shall have; provided, however, that the right to adopt the
certificate of authentication of any predecessor Trustee or to authenticate
Securities in the name of any predecessor Trustee shall apply only to its
successor or successors by merger, conversion or consolidation.
ARTICLE VII
HOLDERS' LISTS AND REPORTS BY TRUSTEE
SECTION 701. Disclosure of Names and Addresses of Holders.
Every Holder of Securities, by receiving and holding the same, agrees with
the Company and the Trustee that none of the Company or the Trustee or any agent
of either of them shall be held accountable by reason of the disclosure of any
such information as to the names and addresses of the Holders in accordance with
TIA Section 312, regardless of the source from which such information was
derived, and that the Trustee shall not be held accountable by reason of mailing
any material pursuant to a request made under TIA Section 312(b).
SECTION 702. Reports by Trustee.
Within 60 days after May 15 of each year commencing with the first May 15
after the first issuance of Securities, the Trustee shall transmit to the
Holders, in the manner and to the extent provided in TIA Section 313(c), a brief
report dated as of such May 15 if required by TIA Section 313(a).
ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE,
TRANSFER OR LEASE
SECTION 801. Company May Consolidate, etc., Only on Certain Terms.
The Company shall not consolidate or merge with or into any other Person
(whether or not the Company is the surviving Person), or directly or indirectly
sell, assign, convey, transfer, lease or otherwise dispose of all or
substantially all of its properties or assets (determined on a consolidated
basis for the Company and its Subsidiaries taken as a whole) to any Person or
Persons, in one transaction or a series of related transactions, unless each of
the following conditions is satisfied:
(a) either (i) the Company is the surviving corporation or (ii) the
Person (if other than the Company) formed by such consolidation or into
which the Company is
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merged or the Person that acquires by sale, assignment, conveyance,
transfer, lease or other disposition of all or substantially all of the
properties and assets of the Company and its Restricted Subsidiaries on a
consolidated basis (the "Surviving Entity") (A) is a corporation,
partnership, limited liability company or trust duly organized and validly
existing under the laws of the United States, any state thereof or the
District of Columbia and (B) expressly assumes, by a supplemental
indenture in form reasonably satisfactory to the Trustee, all the
obligations of the Company under this Indenture and the Securities;
(b) immediately after giving effect to such transaction or series of
transactions on a pro forma basis, no Default or Event of Default has
occurred and is continuing;
(c) immediately after giving effect to such transaction or series of
transactions on a pro forma basis, the Consolidated Net Worth of the
Company (or of the Surviving Entity if the Company is not the continuing
obligor under this Indenture) is equal to or greater than the Consolidated
Net Worth of the Company immediately prior to such transaction or series
of transactions;
(d) immediately after giving effect to such transaction or series of
transactions on a pro forma basis (on the assumption that the transaction
or series of transactions occurred at the beginning of the most recently
ended four full fiscal quarter period for which internal financial
statements are available), the Company (or the Surviving Entity if the
Company is not the continuing obligor under this Indenture) could incur at
least $1.00 of additional Indebtedness (other than Permitted Indebtedness)
pursuant to the first paragraph of Section 1010; and
(e) the Company delivers, or causes to be delivered, to the Trustee,
in form and substance reasonably satisfactory to the Trustee, an Officers'
Certificate and an Opinion of Counsel, each stating that such transaction
complies with the requirements of this Indenture.
In the event of a merger of a Wholly-Owned Restricted Subsidiary into the
Company, the Company need not comply with subparagraphs (c) and (d) above. In
the event of a merger of the Company into Safety-Kleen Services, the Company
need not comply with subparagraph (d) above.
For purposes of the foregoing, the transfer (by lease, assignment, sale or
otherwise, in a single transaction or series of related transactions) of all or
substantially all of the properties or assets of one or more Restricted
Subsidiaries that constitutes all or substantially all of the properties and
assets of the Company on a consolidated basis, shall be deemed to be the
transfer of all or substantially all of the properties and assets of the
Company.
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SECTION 802. Successor Substituted.
In the event of any transaction or series of related transactions
described in and complying with the conditions listed in Section 801 in which
the Company is not the continuing obligor under this Indenture, the Surviving
Entity 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
Surviving Entity had been named as the Company herein, and thereafter the
Company shall, except in the case of a lease, be discharged of all its
obligations and covenants under this Indenture and the Securities.
ARTICLE IX
SUPPLEMENTS AND AMENDMENTS TO INDENTURE
SECTION 901. 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, for any of the following
purposes:
(a) to evidence the succession of another Person to the Company and
the assumption by any such successor of the covenants of the Company
contained herein and in the Securities; or
(b) 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
(c) to add any additional Events of Default; or
(d) to provide for uncertificated Securities in addition to or in
place of the certificated Securities; or
(e) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee pursuant to the requirements of Section
609; or
(f) to secure or guarantee the Securities; or
(g) to cure any ambiguity, to correct or supplement any provision in
this Indenture which may be defective or inconsistent with any other
provision herein, or to make any other provision in this Indenture, or to
make any other provisions with
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respect to matters or questions arising under this Indenture, provided
that such action shall not adversely affect the interests of the Holders;
or
(h) to qualify, or maintain the qualification of, this Indenture
under the Trust Indenture Act.
Upon the request of the Company accompanied by a Board Resolution
authorizing the execution of any such amended or supplemental Indenture or
Security, and upon receipt by the Trustee of the documents described in Section
903 hereof, the Trustee shall join with the Company in the execution of any
amended or supplemental Indenture authorized or permitted by the terms of this
Indenture and to make any further appropriate agreements and stipulations that
may be therein contained, but the Trustee shall not be obligated to enter into
such amended or supplemental Indenture that affects its own rights, duties or
immunities under this Indenture or otherwise.
SECTION 902. With Consent of Holders.
With the consent of the Holders of not less than a majority in aggregate
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 one or more indentures supplemental
hereto for the purpose of modifying in any manner this Indenture; provided,
however, that no such indenture supplemental may, without the consent of the
Holder of each Outstanding Security affected thereby:
(a) change the Stated Maturity of the principal of, or any
installment of interest on, any Security, or reduce the principal amount
thereof or the rate of interest thereon or any premium payable upon the
redemption thereof, or change the place of payment where, or the coin or
currency in which any Security or any premium or the interest thereon is
payable, or impair the right to institute suit for the enforcement of any
such payment after the Stated Maturity thereof (or, in the case of
redemption, on or after the Redemption Date); or
(b) reduce the percentage in aggregate principal amount of the
Outstanding Securities required to consent to any amendment of, or waiver
of compliance with, any provision of or defaults under this Indenture; or
(c) waive a Default or Event of Default in the payment of principal
of, or premium, if any, or interest on the Securities (except a rescission
of acceleration of Securities by the Holders of at least a majority in
aggregate principal amount of the then Outstanding Securities (including
Additional Securities issued under this Indenture, if any)); or
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(d) amend, change or modify the obligation of the Company to make
and consummate a Change of Control Offer or Asset Sale Offer in accordance
with the provisions of Section 1012 on Section 1013, respectively;
(e) modify any mandatory redemption provisions of the Securities; or
(f) amend, change or modify any of the provisions in this Section
902.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
SECTION 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 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 and that such supplemental indenture constitutes the legal, valid and
binding obligation of the Company subject to the customary exceptions. The
Trustee may, but shall not be obligated to, enter into any such supplemental
indenture which affects the Trustees 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.
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 as then in effect.
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
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by the Company and authenticated and delivered by the Trustee in exchange for
Outstanding Securities.
SECTION 907. Notice of Supplemental Indentures.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of Section 902, the Company
shall give notice thereof to the Holders of each Outstanding Security affected,
in the manner provided for in Section 106, setting forth in general terms the
substance of such supplemental indenture.
ARTICLE X
COVENANTS
SECTION 1001. Payment of Principal, Premium, If Any, and Interest.
The Company covenants and agrees for the benefit of the Holders that it
will duly and punctually pay the principal of and premium, if any and interest
on the Securities in accordance with the terms of the Securities and this
Indenture. Principal and interest shall be considered paid on the date due if on
such date the Trustee or the Paying Agent holds in accordance with this
Indenture money sufficient to pay all principal and interest then due and the
Trustee or the Paying Agent, as the case may be, is not prohibited from paying
such money to the Securityholders on that date pursuant to the terms of this
Indenture.
The Company shall pay interest on overdue principal at the rate
specified therefor in the Securities, and it shall pay interest on overdue
installments of interest at the same rate to the extent lawful.
SECTION 1002. Maintenance of Office or Agency.
The Company will maintain in 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 and where notices
and demands to or upon the Company in respect of the Securities and this
Indenture may be served. The Corporate Trust Office located at One Liberty
Plaza, 23rd Floor, New York, New York 10006 of the Trustee shall be such office
or agency of the Company, unless the Company shall designate and maintain some
other office or agency for one or more of such purposes. The Company will give
prompt written notice to the Trustee of any change in the location of any such
office or agency. If at any time the Company shall fail to maintain any such
required office or agency or shall fail to furnish the Trustee with the address
thereof, such presentations, surrenders, notices and demands may be made or
served at the Corporate Trust Office of the Trustee and
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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 of 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 any such designation; 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 City of New York for such purposes. The Company will
give prompt written notice to the Trustee of any such designation or rescission
and 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 premium, if any, 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 of or premium, if
any, or interest so becoming due until such sums shall be paid to such Persons
or otherwise disposed of as herein provided and will promptly notify the Trustee
of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for the
Securities, it will, on or before each due date of the principal of or premium,
if any, or interest on any Securities, deposit with a Paying Agent a sum
sufficient to pay the principal (and premium, if any) or interest so becoming
due, such sum to be held in trust for the benefit of the Persons entitled to
such principal, premium or interest, and (unless such Paying Agent is the
Trustee) the Company will promptly notify the Trustee of such action or any
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:
(a) hold all sums held by it for the payment of the principal of and
premium, if any, 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;
(b) 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 (and premium, if any) or interest; and
(c) 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.
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The Company may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or by Company
Order direct any Paying Agent to pay, to the Trustee all sums held in trust by
the Company or such Paying Agent, such sums to be held by the Trustee upon the
same trusts as those upon which such sums were held by the Company or such
Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such
Paying Agent shall be released from all further liability with respect to such
sums.
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 premium, if any, or
interest on any Security and remaining unclaimed for two years after such
principal (and premium, if any) or interest has become due and payable shall be
paid to the Company on Company Request, or (if then held by the Company) shall
be discharged from such trust; and the Holder of such Security 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 Borough of
Manhattan, 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. Corporate Existence.
Subject to Article VIII, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect the corporate
existence and corporate power of the Company and each Subsidiary; provided,
however, that the Company shall not be required to preserve any such corporate
existence and corporate power if the Board of Directors shall determine that the
preservation thereof is no longer desirable in the conduct of the business of
the Company and its Restricted Subsidiaries taken as a whole and that the loss
thereof is not materially adverse to the Holders.
SECTION 1005. 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, (a) all taxes, assessments and
governmental charges levied or imposed upon the Company or any Subsidiary or
upon the income, profits or property of the Company or any Subsidiary and (b)
lawful claims for labor, materials and supplies, which, if unpaid, might by law
become a lien upon the property of the Company or any Subsidiary; provided,
however, that the Company shall not be required to pay or discharge or cause to
be paid or discharged any such tax, assessment, charge or claim (i) whose
amount, applicability
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or validity is being contested in good faith by appropriate proceedings or (ii)
where the failure to pay is not materially adverse to the Holders.
SECTION 1006. Maintenance of Properties.
The Company will cause all properties owned by the Company or any
Subsidiary or used or held for use in the conduct of its business or the
business of any Subsidiary 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 maintenance of any of such properties
if such discontinuance is, in the judgment of the Company, desirable in the
conduct of its business or the business of any Subsidiary and is not materially
adverse to the Holders.
SECTION 1007. Insurance.
The Company will at all times keep all of its and its Restricted
Subsidiaries' material properties which are of an insurable nature insured with
insurers, believed by the Company to be responsible, against loss or damage to
the extent that property of similar character is usually so insured by
corporations similarly situated and owning like properties.
SECTION 1008. Statement by Officers As to Default.
(a) The Company will deliver to the Trustee, within 120 days after the end
of each fiscal year, a brief certificate from the principal executive officer,
principal financial officer or principal accounting officer as to his or her
knowledge of compliance by the Company and the Restricted Subsidiaries with all
conditions and covenants under this Indenture. For purposes of this Section
1008(a), such compliance shall be determined without regard to any period of
grace or requirement of notice under this Indenture.
(b) When any Default has occurred and is continuing under this Indenture,
or if the trustee for or the holder of any other evidence of Indebtedness of the
Company or any Restricted Subsidiary gives any notice or takes any other action
with respect to a claimed default, the Company shall deliver to the Trustee by
registered or certified mail or by telegram, telex or facsimile transmission an
officers certificate specifying such event, notice or other action within five
Business Days of its occurrence.
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SECTION 1009. Provision of Reports and Financial Statements.
The Company shall be required to file on a timely basis with the
Commission, to the extent such filings are accepted by the Commission and
whether or not the Company has a class of securities registered under the
Exchange Act, the annual reports, quarterly reports and other documents that the
Company would be required to file if it were subject to Section 13 or 15(d) of
the Exchange Act. The Company shall also be required (x) to supply to the
Trustee and each Holder, or supply to the Trustee for forwarding to each such
Holder, without cost to such Holder, copies of such reports and documents within
15 days after the date on which the Company files such reports and documents
with the Commission or the date on which the Company would be required to file
such reports and documents if the Company were so required and (y) if filing
such reports and documents with the Commission is not accepted by the Commission
or is prohibited under the Exchange Act, to supply at the Company's cost copies
of such reports and documents to any prospective Holder of Securities promptly
upon written request. In addition, the Company shall furnish, for so long as any
Securities remain outstanding, to the Holders and to securities analysts and
prospective investors, upon their request, the information required to be
delivered pursuant to Rule 144A(d)(4) under the Securities Act.
SECTION 1010. Limitation on Incurrence of Indebtedness and Issuance of
Disqualified Stock.
The Company shall not, and shall not permit any Restricted Subsidiary to,
create, issue, assume, guarantee or in any manner become directly or indirectly
liable for the payment of, or otherwise incur (collectively, "incur"), any
Indebtedness (including Acquired Indebtedness), other than Permitted
Indebtedness, or issue any Disqualified Stock, except that the Company or a
Restricted Subsidiary may incur Indebtedness or issue Disqualified Stock if, at
the time of such incurrence or issuance, the Fixed Charge Coverage Ratio of the
Company and its Restricted Subsidiaries for the four full fiscal quarters (taken
as one accounting period) immediately preceding the incurrence of such
Indebtedness or the issuance of such Disqualified Stock for which internal
financial statements are available would have been equal to at least 2.0 to 1.0.
For so long as the Safety-Kleen Services Indenture is in effect, the
Company will not permit Safety Kleen Services or any Restricted Subsidiary of
Safety Kleen Services to incur any Indebtedness (including Acquired
Indebtedness), other than Permitted Indebtedness, or issue any Disqualified
Stock, except that Safety-Kleen Services or any such Restricted Subsidiary may
incur Indebtedness or issue Disqualified Stock if, at the time of such
incurrence or issuance, the Safety-Kleen Services Fixed Charge Coverage Ratio
for the four full fiscal quarters (taken as one accounting period) immediately
preceding the incurrence of such Indebtedness or the issuance of such
Disqualified Stock for which internal financial statements are available would
have been equal to at least 2.0 to 1.0 if such incurrence is on or prior to May
29, 2000 and 2.25 to 1.0 if thereafter.
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In making the foregoing calculations for any four-quarter period which
includes the Closing Date, pro forma effect shall be given to the Offering and
the application of the net proceeds therefrom, as if such transactions had
occurred at the beginning of such four-quarter period. In addition (but without
duplication), in making the foregoing calculation, pro forma effect will be
given to: (i) the incurrence of such Indebtedness and (if applicable) the
application of the net proceeds therefrom, including to refinance other
Indebtedness, as if such Indebtedness was incurred and the application of such
proceeds occurred at the beginning of such four-quarter period, (ii) the
incurrence, repayment or retirement of any other Indebtedness by the Company or
its Restricted Subsidiaries, or Safety-Kleen Services or its Restricted
Subsidiaries, as the case may be, since the first day of such four-quarter
period as if such Indebtedness was incurred, repaid or retired at the beginning
of such four-quarter period, or (iii) the acquisition (whether by purchase,
merger or otherwise) or disposition (whether by sale, merger or otherwise) of
any other company, entity or business acquired or disposed of by the Company or
any Restricted Subsidiary, as the case may be, since the first day of such
four-quarter period, as if such acquisition or disposition occurred at the
beginning of such four-quarter period. In making a computation under the
foregoing clause (i) or (ii), (A) interest on Indebtedness bearing a floating
interest rate shall be computed as if the rate in effect on the date of
computation had been the applicable rate for the entire period (taking into
account any Hedging Obligations applicable to such Indebtedness if such Hedging
Obligations have a remaining term at the date of determination in excess of 12
months), (B) if such Indebtedness bears, at the option of the Company or
Safety-Kleen Services, as the case may be, a fixed or floating rate of interest,
interest thereon will be computed by applying, at the option of the Company,
either the fixed or floating rate and (C) the amount of any Indebtedness under a
revolving credit facility will be computed based on the average daily balance of
such Indebtedness during such four-quarter period.
SECTION 1011. Limitation on Restricted Payments. (a) The Company shall
not, and shall not permit any Restricted Subsidiary to, directly or indirectly,
make any Restricted Payment unless at the time of, and immediately after giving
effect to, the proposed Restricted Payment: (i) no Default or Event of Default
has occurred and is continuing, (ii) the Company could incur at least $1.00 of
additional Indebtedness (other than Permitted Indebtedness) pursuant to the
first paragraph of Section 1010 and (iii) the aggregate amount of all Restricted
Payments declared or made after the Closing Date does not exceed the sum of:
(A) 50% of the Consolidated Net Income of the Company accrued on a
cumulative basis during the period (taken as one accounting period)
beginning on the first day of the Company's fiscal quarter during which
the Closing Date occurs and ending on the last day of the Company's most
recently ended fiscal quarter for which internal financial statements are
available at the time of such proposed Restricted Payment (or, if such
aggregate cumulative Consolidated Net Income is a loss, minus 100% of such
amount), plus
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(B) the aggregate net cash proceeds received by the Company after
the Closing Date from the issuance or sale (other than to a Subsidiary)
of, or as a capital contribution in respect of, Qualified Equity Interests
of the Company, plus
(C) the aggregate net proceeds, including the fair market value of
property other than cash (as determined by the Board of Directors, whose
good faith determination will be conclusive), received by the Company
after the Closing Date from the issuance or sale (other than to a
Subsidiary) of debt securities or Disqualified Stock that have been
converted into or exchanged for Qualified Stock of the Company, plus the
aggregate net cash proceeds received by the Company at the time of such
conversion or exchange, plus
(D) the amount by which Indebtedness of the Company is reduced on
the Company's balance sheet upon the conversion or exchange (other than by
a Subsidiary of the Company) subsequent to the Closing Date of any
Indebtedness of the Company for Capital Stock (other than Disqualified
Stock) of the Company (less the amount of any cash, or the fair value of
any other property, distributed by the Company upon such conversion or
exchange); plus
(E) the amount of any dividends, distributions, loans, advances,
intercompany transfers or principal payments actually paid by Safety-Kleen
Services or any of its Restricted Subsidiaries to the Company to the
extent such amount was excluded from the calculation of the amount set
forth in subparagraph (A) of this paragraph; provided, that the amount of
such dividend, distribution, loan, advance, intercompany transfer or
principal payment shall not be so included pursuant to this subparagraph
(E) to the extent such amount is used by the Company to pay principal or
interest on the Securities, the Company IRBs, the Company Promissory Note,
the PIK Debenture (other than in connection with its repurchase pursuant
to clause (b)(ix) below) or any other Indebtedness of the Company; plus
(F) $30,000,000.
(b) Notwithstanding paragraph (a) above, the Company and its Restricted
Subsidiaries may take any of the following actions, so long as, with respect to
clauses (ii), (v), (vi) and (vii), no Default or Event of Default has occurred
and is continuing or would occur:
(i) the payment of any dividend within 60 days after the date of
declaration thereof, if at the declaration date such payment would not
have been prohibited by the foregoing provision;
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(ii) the repurchase, redemption or other acquisition or retirement
for value of any shares of Capital Stock of the Company, in exchange for,
or out of the net cash proceeds of a substantially concurrent issuance and
sale (other than to a Subsidiary), of Qualified Equity Interests of the
Company;
(iii) the purchase, redemption, defeasance or other acquisition or
retirement for value of any Subordinated Indebtedness in exchange for, or
out of the net cash proceeds of a substantially concurrent issuance and
sale (other than to a Subsidiary), of Qualified Equity Interests of the
Company;
(iv) the purchase, redemption, defeasance or other acquisition or
retirement for value of Subordinated Indebtedness in exchange for, or out
of the net cash proceeds of a substantially concurrent issuance or sale
(other than to a Subsidiary) of, Subordinated Indebtedness, so long as the
Company or a Restricted Subsidiary would be permitted to refinance such
original Subordinated Indebtedness with such new Subordinated Indebtedness
pursuant to clause (xii) of the definition of Permitted Indebtedness;
(v) the repurchase of any Subordinated Indebtedness at a purchase
price not greater than 101% of the principal amount of such Subordinated
Indebtedness in the event of a "change of control" in accordance with
provisions similar to the provisions of Section 1013; provided that, prior
to or simultaneously with such repurchase, the Company has made the Change
of Control Offer as provided in such covenant with respect to the
Securities and has repurchased all Securities validly tendered for payment
in connection with such Change of Control Offer;
(vi) the purchase, redemption, defeasance or other acquisition or
retirement for value of, the 9 1/4% Senior Subordinated Notes due 2008 of
Safety-Kleen Services;
(vii) the purchase, redemption, defeasance or other acquisition or
retirement for value of Subordinated Indebtedness owed by the Company to
any Wholly-Owned Foreign Restricted Subsidiary;
(viii) Safety-Kleen Services and its Restricted Subsidiaries may
make any Investment permitted pursuant to Section 1011 of the Safety-Kleen
Services Indenture, as in effect on the date of this Indenture; and
(ix) the repurchase of the PIK Debenture pursuant to the PIK
Purchase Agreement; provided that the cash portion of the purchase price
does not exceed $200 million plus an amount equal to accrued and unpaid
interest.
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The payments described in clauses (ii), (iii) and (v) of this paragraph shall be
Restricted Payments that shall be permitted to be taken in accordance with this
paragraph (b) but shall reduce the amount that would otherwise be available for
Restricted Payments under clause (iii) of paragraph (a) of this Section 1011 and
the payments described in clauses (i), (iv), (vi), (vii), (viii) and (ix) of
this paragraph (b) shall be Restricted Payments that shall be permitted to be
taken in accordance with this paragraph (b) and shall not reduce the amount that
would otherwise be available for Restricted Payments under clause (iii) of
paragraph (a) of this Section 1011.
(c) For the purpose of making any calculations under this Indenture (i) if
a Restricted Subsidiary is designated an Unrestricted Subsidiary, the Company
shall be deemed to have made an Investment in an amount equal to the greater of
fair market value or net book value of the net assets of such Restricted
Subsidiary at the time of such designation as determined by the Board of
Directors of the Company, whose good faith determination will be conclusive,
(ii) any property transferred to or from an Unrestricted Subsidiary will be
valued at fair market value at the time of such transfer, as determined by the
Board of Directors of the Company, whose good faith determination will be
conclusive and (iii) subject to the foregoing, the amount of any Restricted
Payment, if other than cash, will be determined by the Board of Directors of the
Company, whose good faith determination will be conclusive.
If the aggregate amount of all Restricted Payments calculated under
paragraph (a) of this Section 1011 includes an Investment in an Unrestricted
Subsidiary or other Person that thereafter becomes a Restricted Subsidiary, the
aggregate amount of all Restricted Payments calculated under the first paragraph
of this Section 1011 shall be reduced by the lesser of (x) the net asset value
of such Subsidiary at the time it becomes a Restricted Subsidiary and (y) the
initial amount of such Investment.
If an Investment resulted in the making of a Restricted Payment, the
aggregate amount of all Restricted Payments calculated under this Section 1011
shall be reduced by the amount of any net reduction in such Investment
(resulting from the payment of interest or dividends, loan repayment, transfer
of assets or otherwise), to the extent such net reduction is not included in the
Company's Consolidated Net Income; provided that the total amount by which the
aggregate amount of all Restricted Payments may be reduced shall not exceed the
lesser of (x) the cash proceeds received by the Company and its Restricted
Subsidiaries in connection with such net reduction and (y) the initial amount of
such Investment.
In computing the Consolidated Net Income of the Company for purposes of
clause (iii)(A) of paragraph (a) of this Section 1011, (i) the Company may use
audited financial statements for the portions of the relevant period for which
audited financial statements are available on the date of determination and
unaudited financial statements and other current financial data based on the
books and records of the Company for the remaining portion of such period and
(ii) the Company will be permitted to rely in good faith on the financial
statements and other financial data derived from the books and records of the
Company that
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are available on the date of determination. If the Company makes a Restricted
Payment that, at the time of the making of such Restricted Payment, would in the
good faith determination of the Company be permitted under the requirements of
this Indenture, such Restricted Payment shall be deemed to have been made in
compliance with this Indenture notwithstanding any subsequent adjustments made
in good faith to the Company's financial statements affecting Consolidated Net
Income of the Company for any period.
SECTION 1012. Purchase of Securities upon a Change of Control.
If a Change of Control occurs at any time, then each Holder shall have the
right to require that the Company purchase such Holder's Securities, in whole or
in part, at a purchase price in cash equal to 101% of the principal amount of
such Securities, if any, plus accrued and unpaid interest, if any, to the date
of purchase, pursuant to the offer described below (the "Change of Control
Offer") and the other procedures set forth in this Indenture.
Within 30 days following any Change of Control, the Company shall notify
the Trustee thereof and give written notice of such Change of Control to each
holder of Securities by first-class mail, postage prepaid, at its address
appearing in the Security Register, stating, among other things, (i) the
purchase price and the purchase date, which will be a Business Day no earlier
than 30 days nor later than 60 days from the date such notice is mailed or such
later date as is necessary to comply with requirements under the Exchange Act
(the "Change of Control Payment Date"); (ii) that any Security or Additional
Security not tendered will continue to accrue interest; (iii) that, unless the
Company defaults in the payment of the purchase price, any Securities or
Additional Securities accepted for payment pursuant to the Change of Control
Offer will cease to accrue interest after the Change of Control Payment Date;
(iv) that Holders electing to have any Securities and Additional Securities
purchased pursuant to a Change of Control Offer shall be required to surrender
the Securities, with the form entitled "Option of Holder to Elect Purchase" on
the reverse of the Securities completed, to the Paying Agent at the address
specified in the notice prior to the close of business on the third Business Day
preceding the Change of Control Payment Date; (v) that Holders shall be entitled
to withdraw their election if the Paying Agent receives, not later than the
close of business on the second Business Day preceding the Change of Control
Payment Date, a telegram, telex, facsimile transmission or letter setting forth
the name of the Holder, the principal amount of Securities delivered for
purchase, and a statement that such Holder is withdrawing his election to have
such Securities purchased; (vi) that Holders whose Securities are being
purchased only in part shall be issued new Securities equal in principal amount
to the unpurchased portion of the Securities surrendered, which unpurchased
portion must be equal to $1,000 in principal amount or an integral multiple
thereof; and (vii) the instructions that the Holders of Securities must follow
in order to tender their Securities.
The Company shall comply with any applicable tender offer rules including
Rule 14e- 1 under the Exchange Act, and any other applicable securities laws and
regulations in connection with a Change of Control Offer.
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SECTION 1013. Limitation on Certain Asset Sales.
(a) The Company shall not, and shall not permit any Restricted Subsidiary
to, engage in any Asset Sale unless (i) the consideration received by the
Company or such Restricted Subsidiary for such Asset Sale is not less than the
fair market value of the assets sold (as determined by the Board of Directors of
the Company, whose good faith determination will be conclusive, and evidenced by
a resolution of the Board of Directors) and (ii) the consideration received by
the Company or the relevant Restricted Subsidiary in respect of such Asset Sale
consists of at least 75% cash or Cash Equivalents; provided that the amount of
(x) any liabilities (as shown on the most recent balance sheet of the Company or
such Restricted Subsidiary) of the Company or any of its Restricted Subsidiaries
(other than liabilities that are by their terms subordinated to the Securities
or any guarantee thereof) that are assumed by the transferee of any such assets
pursuant to a customary novation agreement that releases the Company or such
Restricted Subsidiary from further liability and (y) any securities, notes or
other obligations received by the Company or any such Restricted Subsidiary from
such transferee that are promptly converted by the Company or such Restricted
Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash
Equivalents received), shall be deemed to be cash or Cash Equivalents, as the
case may be, for purposes of this provision.
(b) If the Company or any Restricted Subsidiary engages in an Asset Sale,
the Company may, at its option, within 360 days after such Asset Sale, (i) apply
all or a portion of the Net Cash Proceeds to the permanent reduction of amounts
outstanding under the Senior Credit Facility or repay Indebtedness of any
Restricted Subsidiary, or (ii) invest (or enter into a legally binding agreement
to invest) all or a portion of such Net Cash Proceeds in properties and assets
to replace the properties and assets that were the subject of the Asset Sale or
in properties and assets that will be used in businesses of the Company or its
Restricted Subsidiaries, as the case may be, as such businesses are conducted
prior to such Asset Sale or in businesses reasonably related or ancillary
thereto (in any such case as determined by the Board of Directors in good
faith). If any such legally binding agreement to invest such Net Cash Proceeds
is terminated, the Company may, within 90 days of such termination or within 360
days of such Asset Sale, whichever is later, invest such Net Cash Proceeds as
provided in clause (i) or (ii) above (without regard to the parenthetical
contained in such clause (ii)) above. Notwithstanding the foregoing, if the
Company or any Restricted Subsidiary engages in an Asset Sale of Designated
Assets (x) the Company may, at its option, within 360 days after such Asset Sale
of Designated Assets, (1) apply all or a portion of the Net Cash Proceeds to
reduce the amounts outstanding under the Senior Credit Facility or repay other
Indebtedness of any Restricted Subsidiary or (2) invest (or enter into a legally
binding agreement to invest) all or a portion of such Net Cash Proceeds as set
forth in clause (ii) above and (y) the Company or the relevant Restricted
Subsidiary shall not be required to receive, as set forth in clause (ii) of
paragraph (a) of this Section 1013, 75% of the consideration in respect of such
Asset Sale
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of Designated Assets in the form of cash or Cash Equivalents. The amount of such
Net Cash Proceeds not so used as set forth above in this paragraph (b)
constitutes "Excess Proceeds."
(c) When the aggregate amount of Excess Proceeds exceeds $15,000,000, the
Company shall, within 30 days thereafter, make an offer to purchase (an "Asset
Sale Offer") from all Holders of Securities on a pro rata basis, in accordance
with the procedures set forth in paragraph (d) below, the maximum principal
amount (expressed as a multiple of $1,000) of Securities that may be purchased
with the Excess Proceeds. The offer price as to each Security will be payable in
cash in an amount equal to 100% of the principal amount of such Security plus in
each case accrued and unpaid interest, if any, to the date of repurchase. To the
extent that the aggregate principal amount of Securities tendered pursuant to an
Asset Sale Offer is less than the Excess Proceeds, the Company may use the
portion of the Excess Proceeds not required to be used to repurchase the
Securities for general corporate purposes. If the aggregate principal amount of
Securities validly tendered and not withdrawn by holders thereof exceeds the
Excess Proceeds, the Securities to be purchased will be selected on a pro rata
basis (based upon the principal amount of Securities). Upon completion of such
Asset Sale Offer, the amount of Excess Proceeds will be reset to zero.
(d) Within the time period described in paragraph (c) above for making an
Asset Sale Offer, the Company shall mail a notice to each Holder in the manner
provided in Section 106 stating: (1) that the Asset Sale Offer is being made
pursuant to the provisions of Section 1013 of this Indenture and that all
Securities and Additional Securities, if any, duly and timely tendered shall be
accepted for payment (except, as provided above, if the aggregate principal
amount as the case may be, of the Securities and Additional Securities exceeds
the amount of Excess Proceeds); (2) the purchase price and the purchase date
which will be a Business Day no earlier than 30 days nor later than 60 days from
the date such notice is mailed (the "Asset Sale Purchase Date"); (3) that any
Security not tendered will continue to accrue interest; (4) that, unless the
Company defaults in the payment of the purchase price, any Securities accepted
for payment pursuant to the Asset Sale Offer will cease to accrue interest after
the Asset Sale Purchase Date; (5) that Holders electing to have any Securities
purchased pursuant to an Asset Sale Offer shall be required to surrender the
Securities, with the form entitled "Option of Holder to Elect Purchase" on the
reverse of the Securities completed, to the Paying Agent at the address
specified in the notice prior to the close of business on the third Business Day
preceding the Asset Sale Purchase Date; (6) that Holders shall be entitled to
withdraw their election if the Paying Agent receives, not later than the close
of business on the second Business Day preceding the Asset Sale Purchase Date, a
telegram, telex, facsimile transmission or letter setting forth the name of the
Holder, the principal amount of Securities delivered for purchase, and a
statement that such Holder is withdrawing his election to have such Securities
purchased; (7) that Holders whose Securities are being purchased only in part
shall be issued new Securities equal in principal amount of the unpurchased
portion of the Securities surrendered, which unpurchased portion must be equal
to $1,000 in principal amount or an integral multiple thereof; and (8) the
instructions that the Holders of Securities must follow in order to tender their
Securities.
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SECTION 1014. Limitation on Transactions with Affiliates.
The Company shall not, and shall not permit any Restricted Subsidiary to,
directly or indirectly, enter into or suffer to exist any transaction or series
of transactions with, or for the benefit of, any Affiliate of the Company or any
of its Restricted Subsidiaries unless (a) such transaction or series of
transactions is on terms that are no less favorable to the Company or such
Restricted Subsidiary, as the case may be, than those that could have been
obtained in an arm's length transaction with third parties who are not
Affiliates and (b) either (i) with respect to any transaction or series of
related transactions involving aggregate payments in excess of $5,000,000, but
less than $10,000,000, the Company delivers a resolution of the Board of
Directors of the Company set forth in an Officers' Certificate to the Trustee
certifying that such transaction or series of related transactions comply with
clause (a) above and that such transaction or transactions have been approved by
the Board of Directors (including a majority of the Disinterested Directors) of
the Company or (ii) with respect to a transaction or series of related
transactions involving aggregate payments equal to or greater than $10,000,000,
the Company delivers to the Trustee (x) an Officers' Certificate certifying that
such transaction or series of related transactions have been approved by the
Board of Directors (including a majority of the Disinterested Directors) of the
Company and (y) a written opinion from a nationally recognized accounting or
investment banking firm to the effect that such transaction or series of related
transactions are fair to the Company or such Restricted Subsidiary from a
financial point of view.
The foregoing covenant shall not restrict any of the following:
(A) transactions among the Company and/or its Restricted
Subsidiaries;
(B) the Company from paying reasonable and customary regular
compensation or fees to, or entering into customary expense reimbursement,
indemnification or similar arrangements with, directors of the Company or
any Restricted Subsidiary who are not employees of the Company or any
Restricted Subsidiary;
(C) transactions permitted by the provisions of Section 1011;
(D) transactions among the Company, Safety-Kleen Services and
Laidlaw pursuant to the Stock Purchase Agreement;
(E) transactions among the Company, Laidlaw and/or Laidlaw
International Finance Corporation pursuant to the PIK Purchase Agreement;
(F) any payments made by the Company or a Restricted Subsidiary to
Laidlaw or transactions entered into among the Company, any Restricted
Subsidiary
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and/or Laidlaw pursuant to customary financial and management service
arrangements (including, without limitation, general liability and
workers' compensation insurance, income tax management and treasury
services); provided, however, that each such payment or transaction is (1)
in the ordinary course of business consistent with past practice prior to
the date of the Indenture and (2) upon fair and reasonable terms no less
favorable to the Company or such Restricted Subsidiary, as the case may
be, than could have been obtained in a comparable arm's length transaction
with a Person that is not an Affiliate of the Company or such Restricted
Subsidiary;
(G) Investments by the Company and its Restricted Subsidiaries in
Safety-Kleen Europe Limited; provided, however, that each such Investment
is (1) being made substantially concurrently with Investments by other
Persons (other than management or former management of Safety-Kleen Europe
Limited) owning equity interests in Safety-Kleen Europe Limited at the
date of such Investment; (2) made on substantially the same terms and
conditions as such Investments being made concurrently by other Persons
(other than management or former management of Safety-Kleen Europe
Limited) owning equity interests in Safety-Kleen Europe Limited at such
date; and (3) upon fair and reasonable terms no less favorable to the
Company or such Restricted Subsidiaries, as the case may be, than could
have been obtained in a comparable arm's length transaction with a person
that is not an Affiliate of the Company or such Restricted Subsidiaries;
and
(H) transactions among the Company and its Restricted Subsidiaries
and (1) Church Dwight Co., Inc. pursuant to the Partnership Agreement, and
(2) the Partnership pursuant to the Sales Agreement; provided, however,
that (a) each such transaction is in the ordinary course of business; (b)
each such transaction is upon fair and reasonable terms no less favorable
to the Company or such Restricted Subsidiaries, as the case may be, than
could have been obtained in a comparable arm's length transaction with a
Person that is not an Affiliate of the Company or such Restricted
Subsidiary; and (c) if any transaction or series of related transactions
involving aggregate payments in excess of $5,000,000 is entered into
pursuant to the Partnership Agreement and/or the Sales Agreement and such
agreement has been amended or replaced since the date of the Indenture,
the Company shall deliver to the Trustee a resolution of the Board of
Directors of the Company set forth in an Officers' Certificate certifying
that such transaction or series of related transactions comply with
subparagraph (a) of the first paragraph in this Section 1014 and that such
transaction or series of related transactions have been approved by the
Board of Directors (including a majority of the Disinterested Directors)
of the Company.
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SECTION 1015. Limitation on Dividends and Other Payment Restrictions
Affecting Restricted Subsidiaries.
The Company shall not, and shall not permit any Restricted Subsidiary to,
directly or indirectly, create or otherwise cause or suffer to exist or become
effective any encumbrance or restriction of any kind on the ability of any
Restricted Subsidiary to (a) pay dividends, in cash or otherwise, or make any
other distributions on or in respect of its Capital Stock, (b) pay any
Indebtedness owed to the Company or any other Restricted Subsidiary, (c) make
loans or advances to the Company or any other Restricted Subsidiary, or (d)
transfer any of its properties or assets to the Company or any other Restricted
Subsidiary, except for such encumbrances or restrictions existing under or by
reason of any of the following:
(i) this Indenture, the Senior Credit Facility, as in effect on the
date of this Indenture, and any other agreement in effect on the Closing
Date to the extent listed on Schedule I hereto;
(ii) applicable law;
(iii) customary non-assignment provisions of any lease governing a
leasehold interest of the Company or any Restricted Subsidiary;
(iv) any agreement or other instrument of a Person acquired by the
Company or any Restricted Subsidiary in existence at the time of such
acquisition (but not created in contemplation thereof), which encumbrance
or restriction is not applicable to any Person, or the properties or
assets of any Person, other than the Person, or the property or assets of
the Person, so acquired;
(v) any encumbrance or restriction contained in contracts for sales
of assets, including the Capital Stock of any Restricted Subsidiary
permitted by Section 1013 with respect to assets to be sold pursuant to
such contract;
(vi) any encumbrance or restriction existing under any agreement
that extends, renews, refinances or replaces the agreements containing the
encumbrances or restrictions in the foregoing clauses (i) and (iv);
provided that the terms and conditions of any such encumbrances or
restrictions are not materially less favorable to the Holders of
Securities than those under or pursuant to the agreement so extended,
renewed, refinanced or replaced; and
(vii) any encumbrance or restriction under any agreement relating to
Indebtedness permitted to be incurred under Section 1010; provided, that
the terms and conditions of any such encumbrances or restrictions are not
materially less favorable to the Holders of the Notes than those in the
agreements referred to in clause (i) of this
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Section 1015 (including the Safety-Kleen Services Indenture as in effect
on May 29, 1998).
SECTION 1016. Limitation on Issuances and Sales of Capital Stock of
Restricted Subsidiaries.
The Company shall not, and shall not permit any Restricted Subsidiary,
directly or indirectly, to issue, convey, sell, assign, transfer, lease or
otherwise dispose of any shares of Capital Stock of a Restricted Subsidiary
(including options, warrants or other rights to purchase shares of such Capital
Stock) except (a) to the Company or a Wholly-Owned Restricted Subsidiary, (b) in
a transaction or series of related transactions consisting of a sale, provided
that immediately after giving effect to such issuance or sale neither the
Company nor any of its Subsidiaries owns any shares of Capital Stock of such
Restricted Subsidiary (including options, warrants or other rights to purchase
shares of such Capital Stock) and such sale complies with the provisions of
Section 1013, (c) in a transaction or series of related transactions consisting
of a sale (or an issuance for value) provided that immediately after giving
effect to such sale, such Restricted Subsidiary is no longer a Subsidiary of the
Company and such sale complies with Sections 1011 and 1013 or (d) that Safety
Kleen Services may issue or sell shares of its Preferred Stock provided that,
immediately after giving effect to such issuance or sale, Safety Kleen Services
could incur at least $1.00 of additional Indebtedness (other than Permitted
Indebtedness) pursuant to the second paragraph of Section 1010.
SECTION 1017. Limitation on Liens.
The Company shall not create, incur, affirm or suffer to exist any Lien of
any kind (other than Permitted Liens and Liens arising under the Escrow
Agreement) securing any Indebtedness upon any property or assets (including any
intercompany notes) of the Company now owned or acquired after the Closing Date,
or any income or profits therefrom, unless the Securities are directly secured
equally and ratably with (or prior to in the case of Subordinated Indebtedness)
the obligation or liability secured by such Lien, and except for any Lien
securing Acquired Indebtedness created prior to the incurrence of such
Indebtedness by the Company, provided that any such Lien only extends to the
assets that were subject to such Lien securing such Acquired Indebtedness prior
to the related acquisition by the Company.
SECTION 1018. Unrestricted Subsidiaries.
(a) The Board of Directors of the Company may designate any Subsidiary
(including any newly acquired or newly formed Subsidiary) to be an Unrestricted
Subsidiary so long as (i) neither the Company nor any Restricted Subsidiary is
directly or indirectly liable for any Indebtedness of such Subsidiary, (ii) no
default with respect to any Indebtedness of such Subsidiary would permit (upon
notice, lapse of time or otherwise) any holder of any other Indebtedness of the
Company or any Restricted Subsidiary to declare a default on such other
Indebtedness or cause the payment thereof to be accelerated or payable prior to
its Stated
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Maturity, (iii) any Investment in such Subsidiary made as a result of
designating such Subsidiary an Unrestricted Subsidiary will not violate the
provisions of Section 1011, (iv) neither the Company nor any Restricted
Subsidiary has a contract, agreement, arrangement, understanding or obligation
of any kind, whether written or oral, with such Subsidiary other than those that
might be obtained at the time from Persons who are not Affiliates of the Company
and (v) neither the Company nor any Restricted Subsidiary has any obligation to
subscribe for additional shares of Capital Stock or other equity interest
in such Subsidiary, or to maintain or preserve such Subsidiary's financial
condition or to cause such Subsidiary to achieve certain levels of operating
results.
(b) The Board of Directors of the Company may designate any Unrestricted
Subsidiary as a Restricted Subsidiary; provided, that (i) no Default or Event of
Default has occurred and is continuing following such designation and (ii) the
Company could incur at least $1.00 of additional Indebtedness (other than
Permitted Indebtedness) pursuant to the first paragraph of Section 1010
(treating any Indebtedness of such Unrestricted Subsidiary as the incurrence of
Indebtedness by a Restricted Subsidiary).
SECTION 1019. Limitation on Guarantees of Indebtedness by Restricted
Subsidiaries.
The Company shall not permit any Restricted Subsidiary, directly or
indirectly, to guarantee, assume or in any other manner become liable for the
payment of any Indebtedness of the Company (except for such Indebtedness of the
Company consisting of a guarantee of Indebtedness of a Restricted Subsidiary),
unless (a) such Restricted Subsidiary simultaneously executes and delivers a
supplemental indenture providing for a guarantee of payment of the Securities by
such Restricted Subsidiary; and (b) with respect to any guarantee of
Subordinated Indebtedness by a Restricted Subsidiary, any such guarantee is
subordinated to such Restricted Subsidiary's guarantee with respect to the
Securities at least to the same extent as such Subordinated Indebtedness is
subordinated to the Securities, provided that the foregoing provision shall not
be applicable to any guarantee by any Restricted Subsidiary that existed at the
time such Person became a Restricted Subsidiary and was not incurred in
connection with, or in contemplation of, such Person becoming a Restricted
Subsidiary.
Any guarantee by a Restricted Subsidiary of the Securities pursuant to the
preceding paragraph may provide by its terms that it shall be automatically and
unconditionally released and discharged upon: (a) any sale, exchange or transfer
to any Person of all of the Company's and the Restricted Subsidiaries' Capital
Stock in, or all or substantially all the assets of, such Restricted Subsidiary
(which sale, exchange or transfer is not prohibited by this Indenture); (b) the
release or discharge of the guarantee that resulted in the creation of such
guarantee of the Securities, except a discharge or release by or as a result of
payment under such guarantee; or (c) the designation of such Restricted
Subsidiary as an Unrestricted Subsidiary in accordance with the terms of this
Indenture.
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SECTION 1020. Limitation on Conduct of Business.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, conduct any business other than the business the Company and
its Restricted Subsidiaries were conducting on the Closing Date or businesses
reasonably related or ancillary thereto, except to such extent as would not be
material to the Company and its Restricted Subsidiaries taken as a whole.
SECTION 1021. Limitation on Incurrence of Contingent Obligations.
The Company shall not, and shall not permit any Restricted Subsidiary to,
create, issue, assume, guarantee or in any manner become directly or indirectly
liable for the payment of, or otherwise incur, any Contingent Obligations if, at
the time of such incurrence, all Contingent Obligations outstanding at the date
of such incurrence in the aggregate equal or exceed an amount equal to 17% of
the total assets of the Company and its Restricted Subsidiaries (on a
consolidated basis determined in accordance with GAAP).
SECTION 1022. Payments for Consent.
Neither the Company nor any of its Restricted Subsidiaries shall, directly
or indirectly, pay or cause to be paid any consideration, whether by way of
interest, fee or otherwise, to any Holder for or as an inducement to any
consent, waiver or amendment of any of the terms or provisions of this Indenture
or the Securities unless such consideration is offered to be paid or is paid to
all Holders that consent, waive or agree to amend in the time frame set forth in
the solicitation documents relating to such consent, waiver or agreement.
SECTION 1023. Limitation on Liens Securing Indebtedness.
After the occurrence of a Fall-away Event, the Company shall not, and
shall not permit any Restricted Subsidiary to, create, incur or assume any Lien
(other than any Permitted Lien) on any properties or assets of the Company or
any Restricted Subsidiary to secure the payment of Indebtedness of the Company
or any Subsidiary if immediately after the creation, incurrence or assumption of
such Lien, the aggregate outstanding principal amount of all Indebtedness of the
Company and the Subsidiaries that is secured by Liens (other than Permitted
Liens) on any properties or assets of the Company and any Restricted
Subsidiaries (other than (x) Indebtedness that is so secured equally and ratably
with (or on a basis subordinated to) the Securities and (y) the Securities) plus
the aggregate amount of all Attributable Debt of the Company and the Restricted
Subsidiaries with respect to all Sale and Leaseback Transactions outstanding at
such time (other than Sale and Leaseback Transactions permitted by the second
paragraph under Section 1024) would exceed 10% of the Consolidated Net Tangible
Assets unless the Company secures the outstanding Securities equally and ratably
with (or prior to) all Indebtedness secured by such Lien, so long as such
Indebtedness shall be so secured.
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SECTION 1024. Limitation on Sale and Leaseback Transactions.
After the occurrence of a Fall-away Event, the Company shall not, and
shall not permit any Restricted Subsidiary to, enter into any Sale and Leaseback
Transaction involving any properties or assets of the Company or any Restricted
Subsidiary, as the case may be, unless, after giving effect to such Sale and
Leaseback Transaction, the aggregate amount of all Attributable Debt of the
Company and the Restricted Subsidiaries with respect to all Sale and Leaseback
Transactions outstanding at such time (other than Sale and Leaseback
Transactions permitted by the next paragraph), plus the aggregate principal
amount of all Indebtedness of the Company and the Subsidiaries that is secured
by Liens (other than Permitted Liens) on properties or assets of the Company or
any Restricted Subsidiary, as the case may be, (other than (x) Indebtedness that
is so secured equally and ratably with (or on a basis subordinated to) the
Securities and (y) the Securities) would not exceed 10% of Consolidated Net
Tangible Assets.
The restriction in the foregoing paragraph shall not apply to any Sale and
Leaseback Transaction if (a) the lease is for a period of not in excess of three
years, including renewal of rights, (b) the lease secures or relates to
industrial revenue or similar financing, (c) the transaction is solely between
the Company and a Restricted Subsidiary or between or among Restricted
Subsidiaries or (d) the Company or such Restricted Subsidiary, within 270 days
after the sale is completed, applies an amount equal to or greater of (i) the
Net Cash Proceeds of the sale of the properties or assets of the Company or any
Restricted Subsidiary, as the case may be, which are the subject of the Sale and
Leaseback Transaction or (ii) the fair market value of the properties or assets
of the Company or any Restricted Subsidiary, as the case may be, which are the
subject of the Sale and Leaseback Transaction (as determined in good faith by
the Board of Directors of the Company) either to (A) the retirement (or open
market purchase) of Notes, other long-term Indebtedness of the Company ranking
on a parity with the Notes or long-term Indebtedness of a Restricted Subsidiary
or (B) the purchase by the Company or any Restricted Subsidiary of other
properties and assets that will be used in the business of the Company or its
Restricted Subsidiaries (or businesses reasonably related or ancillary thereto)
having a value at least equal to the value of the properties or assets of the
Company or the Restricted Subsidiary, as the case may be, which are the subject
of the Sale and Leaseback Transaction.
SECTION 1025. Waiver of Certain Covenants.
The Company or any Restricted Subsidiary may omit in any particular
instance to comply with any term, provision or condition set forth in Sections
1006 through 1024, inclusive, if before or after the time for such compliance
the Holders of at least a majority in principal amount of the Outstanding
Securities, by Act of such Holders, waive such compliance in such instance with
such term, provision or condition, but no such waiver shall extend to or affect
such term, provision or condition except to the extent so expressly waived, and,
until such waiver shall become effective, the obligations of the Company and the
duties of
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the Trustee in respect of any such term, provision or condition shall remain in
full force and effect.
SECTION 1026. Fall-Away of Certain Covenants.
In the event that the Securities achieve an Investment Grade rating, and
only during the period when the Securities are rated Investment Grade, and
provided no Default or Event of Default shall have occurred and be continuing,
upon the request of the Company, the covenants described under Sections 801(c)
and (d) and 1009 to 1022 (the "Suspended Covenants") will no longer be
applicable to the Company and, if applicable, its Restricted Subsidiaries;
provided that the Company delivers to the Trustee (i) an Officers' Certificate
certifying that the Fall-away Event shall have occurred and (ii) a letter from
Moody's and S&P, dated not more than three days prior to the date of such
Officers' Certificate, verifying the Investment Grade rating of the Securities
(the occurrence of the events (including the delivery to the Trustee of the
documents referred to in clauses (i) and (ii)) are referred to herein as a
"Fall-away Event"). In the event that the Company and the Restricted
Subsidiaries are not subject to the Suspended Covenants for any period of time
as a result of the preceding sentence and, subsequently, either or both of
Moodys or S&P withdraws its ratings or downgrades the ratings assigned to the
Securities below Investment Grade or a Default or Event of Default occurs and is
continuing, then the Company and the Restricted Subsidiaries will thereafter be
subject to the Suspended Covenants and compliance with the Suspended Covenants
with respect to Restricted Payments made after the time of such withdrawal,
downgrade, Default or Event of Default will be calculated in accordance with the
terms of Section 1011 as though Section 1011 had been in effect during the
entire period from the date of issuance of the Securities.
ARTICLE XI
REDEMPTION OF SECURITIES
SECTION 1101. Right of Redemption.
(a) The Securities may be redeemed at the option of the Company, as a
whole or from time to time in part, at any time prior to May 15, 2004, subject
to the conditions and at the Redemption Price specified in the form of Security
attached hereto as Exhibit A, together with accrued and unpaid interest, if any,
to the Redemption Date.
(b) The Securities may be redeemed at the option of the Company, as a
whole or from time to time in part, at any time on or after May 15, 2004,
subject to the conditions and at the Redemption Prices specified in the form of
Security attached hereto as Exhibit A, together with accrued and unpaid
interest, if any, to the Redemption Date.
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(c) In addition, at any time or from time to time prior to May 15, 2002,
the Company may redeem, on one or more occasions, up to 35% of the sum of (i)
the initial aggregate principal amount of the Securities and (ii) the initial
aggregate principal amount of any Additional Securities with the net proceeds of
one or more Public Equity Offerings at a redemption price equal to 109.25% of
the principal amount thereof, plus accrued and unpaid interest, if any, to the
Redemption Date (subject to the right of Holders of record on the relevant
Regular Record Date to receive interest due on the relevant Interest Payment
Date); provided that, immediately after giving effect to any such redemption, at
least $146,250,000 aggregate principal amount of the Securities (including any
Additional Securities) remains outstanding; provided further that such
redemptions occur within 90 days of the date of closing of the related Public
Equity Offering.
(d) Notwithstanding the foregoing, in the event that the Funding
Conditions are not satisfied on or prior to September 30, 1999, on the Mandatory
Redemption Date, the Company shall redeem all of the Securities at a redemption
price in cash equal to 101% of the principal amount of the Securities plus
accrued and unpaid interest, if any, to the Mandatory Redemption Date.
SECTION 1102. Applicability of Article.
Redemption of Securities at the election of the Company or otherwise, as
permitted or required by any provision of this Indenture, shall be made in
accordance with such provision and this Article.
SECTION 1103. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities pursuant to Section
1101(a), (b) or (c) shall be evidenced by a Board Resolution. In case of any
redemption at the election of the Company pursuant to Section 1101(a), (b) or
(c), the Company shall, at least 60 days prior to the Redemption Date fixed by
the Company (unless a shorter notice shall be satisfactory to the Trustee),
notify the Trustee of such Redemption Date and of the principal amount of
Securities to be redeemed and shall deliver to the Trustee such documentation
and records as shall enable the Trustee to select the Securities to be redeemed
pursuant to Section 1104. In the case of a mandatory redemption pursuant to
Section 1101(d), the Company shall give the Trustee notice of such mandatory
redemption by no later than the Business Day immediately following September 30,
1999.
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 lot or such method as the Trustee shall deem fair and
appropriate and which may provide for the selection
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for redemption of portions of the principal of Securities; provided, however,
that no such partial redemption shall reduce the portion of the principal amount
of a Security not redeemed to less than $1,000.
The Trustee shall promptly notify the Company 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 redemption of Securities shall relate, in the case of
any Security redeemed or to be redeemed only in part, to the portion of the
principal amount of such Security which has been or is to be redeemed.
SECTION 1105. Notice of Redemption.
Notice of redemption pursuant to Section 1101(a), (b) or (c) shall be
given in the manner provided for in Section 106 not less than 30 nor more than
60 days prior to the Redemption Date, to each Holder of Securities to be
redeemed. Notice of redemption pursuant to Section 1101(d) shall be given in the
manner provided for in Section 106 not less than 10 days prior to the Mandatory
Redemption Date to each Holder of Securities.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price and the amount of accrued interest to the
Redemption Date payable as provided in Section 1107, if any,
(3) if less than all Outstanding Securities are to be redeemed, the
identification (and, in the case of a partial redemption, the principal
amounts) of the particular Securities to be redeemed,
(4) in case any Security is to be redeemed in part only, the notice
which relates to such Security shall state that on and after the
Redemption Date, upon surrender of such Security, the holder will receive,
without charge, a new Security or Securities of authorized denominations
for the principal amount thereof remaining unredeemed,
(5) that on the Redemption Date the Redemption Price (and accrued
interest, if any, to the Redemption Date payable as provided in Section
1107) will become due and payable upon each such Security, or the portion
thereof, to be redeemed, and that interest thereon will cease to accrue on
and after said date,
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(6) the place or places where such Securities are to be surrendered
for payment of the Redemption Price and accrued interest, if any, and
(7) the CUSIP or CINS number, as the case may be.
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.
On or prior to 10:00 a.m. (New York City time) on 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 accrued interest on, all the Securities which are to be redeemed
on that date.
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 (together with accrued interest, if any, to
the Redemption Date), 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, if any, 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 309.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal (and premium, if any) shall, until paid,
bear interest from the Redemption Date at the rate borne by the Securities.
SECTION 1108. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be surrendered at
the office or agency of the Company maintained for such 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 such Holder's 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
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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 XII
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1201. Company Option to Effect Defeasance or Covenant Defeasance.
The Company may, at its option by Board Resolution at any time, with
respect to the Securities, elect to have either Section 1202 or Section 1203 be
applied to all Outstanding Securities upon compliance with the conditions set
forth below in this Article XII.
SECTION 1202. Defeasance and Discharge.
Upon the Company's exercise under Section 1201 of the option applicable to
this Section 1202, the Company shall be deemed to have been discharged from its
obligations with respect to all Outstanding Securities on the date the
conditions set forth in Section 1204 are satisfied (hereinafter, "defeasance").
For this purpose, such defeasance means that the Company shall be deemed to have
paid and discharged the entire indebtedness represented by the Outstanding
Securities, which shall thereafter be deemed to be "Outstanding" only for the
purposes of Section 1205 and the other Sections of this Indenture referred to in
(A) and (B) below, and to have satisfied all its other obligations under such
Securities and this Indenture insofar as such Securities are concerned (and the
Trustee, at the expense of the Company, shall execute proper instruments
acknowledging the same), except for the following which shall survive until
otherwise terminated or discharged hereunder: (A) the rights of Holders of
Outstanding Securities to receive payments in respect of the principal of and
premium, if any, on and interest on such Securities when such payments are due,
(B) the Company's obligations with respect to such Securities under Sections
304, 305, 308, 1002 and 1003, and with respect to the Trustee under Section 606,
(C) the rights, powers, trusts, duties and immunities of the Trustee hereunder
and (D) this Article XII. Subject to compliance with this Article XII, the
Company may exercise its option under this Section 1202 notwithstanding the
prior exercise of its option under Section 1203 with respect to the Securities.
SECTION 1203. Covenant Defeasance.
Upon the Company's exercise under Section 1201 of the option applicable to
this Section 1203, each of the Company and the Restricted Subsidiaries shall be
released from its obligations under Sections 801(c) and 801(d), the covenants
contained in Sections 1004 through 1026 (other than Section 1008) with respect
to the Outstanding Securities on and after the date the conditions set forth
below are satisfied (hereinafter, "covenant defeasance"), and the Events of
Default under Sections 501(c), 501(d) and 501(e) and the Securities shall
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thereafter be deemed not to be "Outstanding" for the purposes of any direction,
waiver, consent or declaration or Act of Holders (and the consequences of any
thereof) in connection with such covenants, but shall continue to be deemed
"Outstanding" for all other purposes hereunder. For this purpose, such covenant
defeasance means that, with respect to the Outstanding Securities, the Company
and any Restricted Subsidiary may omit to comply with and shall have no
liability in respect of any term, condition or limitation set forth in any such
covenant, whether directly or indirectly, by reason of any reference elsewhere
herein to any such covenant or by reason of any reference in any such covenant
to any other provision herein or in any other document and such omission to
comply shall not constitute a Default or an Event of Default under Sections
501(c), 501(d), 501(e) and 501(f) but, except as specified above, the remainder
of this Indenture and such Securities shall be unaffected thereby.
SECTION 1204. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to application of either Section
1202 or Section 1203 to the Outstanding Securities:
(1) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements
of Section 607 who shall agree to comply with the provisions of this
Article XII applicable to it) as trust funds in trust, specifically
pledged as security for, and dedicated solely to, the benefit of the
Holders of such Securities, (A) money in an amount, or (B) U.S. Government
Obligations (as defined herein) that through the scheduled payment of
principal and interest thereon will provide money in an amount, or (C) a
combination thereof, sufficient, in the opinion of a nationally recognized
firm of independent public accountants, to pay and discharge the principal
of and premium, if any, on and interest on the Outstanding Securities on
the Stated Maturity (or upon Redemption Date, if applicable) of such
principal (and premium, if any) or installment of interest; provided that
the Trustee shall have been irrevocably instructed to apply such money or
the proceeds of such U.S. Government Obligations to said payments with
respect to the Securities. Before such a deposit, the Company may give to
the Trustee, in accordance with Section 1103 hereof, a notice of its
election to redeem all of the Outstanding Securities at a future date in
accordance with Article XI hereof, which notice shall be irrevocable. Such
irrevocable redemption notice, if given, shall be given effect in applying
the foregoing. For this purpose, "U.S. Government Obligations" means
securities that are (x) direct obligations of the United States of America
for the timely payment of which its full faith and credit is pledged or
(y) obligations of a Person controlled or supervised by and acting as an
agency or instrumentality of the United States of America the timely
payment of which is unconditionally guaranteed as a full faith and credit
obligation by the United States of America, which, in either case, are not
callable or redeemable at the option of the issuer thereof, and shall also
include a depository receipt issued by a bank (as defined in Section
3(a)(2) of the Securities Act), as custodian with respect to any such U.S.
Government Obligation or a specific
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payment of principal of or interest on any such U.S. Government Obligation
held by such custodian for the account of the holder of such depository
receipt, provided that (except as required by law) such custodian is not
authorized to make any deduction from the amount payable to the holder of
such depository receipt from any amount received by the custodian in
respect of the U.S. Government Obligation or the specific payment of
principal of or interest on the U.S. Government Obligation evidenced by
such depository receipt.
(2) No Default or Event of Default with respect to the Securities
shall have occurred and be continuing on the date of such deposit or,
insofar as paragraph (g) or (h) of Section 501 hereof are concerned, at
any time during the period ending on the 91st day after the date of such
deposit (it being understood that this condition shall not be deemed
satisfied until the expiration of such period).
(3) Such defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a default under, this Indenture or
any other material agreement or instrument to which the Company is a party
or by which it is bound.
(4) In the case of an election under Section 1202, the Company shall
have delivered to the Trustee an Opinion of Counsel stating that (x) the
Company has received from, or there has been published by, the Internal
Revenue Service a ruling, or (y) since the Closing Date, there has been a
change in the applicable federal income tax law, in either case to the
effect that, and based thereon such opinion shall confirm that, the
Holders of the Outstanding Securities will not recognize income, gain or
loss for federal income tax purposes as a result of such defeasance and
will be subject to federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if such
defeasance had not occurred.
(5) In the case of an election under Section 1203, the Company shall
have delivered to the Trustee an Opinion of Counsel to the effect that the
Holders of the Securities Outstanding will not recognize income, gain or
loss for federal income tax purposes as a result of such covenant
defeasance and will be subject to federal income tax on the same amounts,
in the same manner and at the same times as would have been the case if
such covenant defeasance had not occurred.
(6) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to either the defeasance under Section
1202 or the covenant defeasance under Section 1203, as the case may be,
have been complied with.
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SECTION 1205. Deposited Money and U.S. Government Obligations to Be Held
in Trust; Other Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section 1003, all money
and U.S. Government Obligations (including the proceeds thereof) deposited with
the Trustee (or other qualifying trustee, collectively for purposes of this
Section 1205, the "Trustee") pursuant to Section 1204 in respect of the
Outstanding Securities shall be held in trust and applied by the Trustee, in
accordance with the provisions of such 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 Holders of
such Securities of all sums due and to become due thereon in respect of
principal (and premium, if any) and interest, but such money need not be
segregated from other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the U.S. Governmental Obligations
deposited pursuant to Section 1204 or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is for
the account of the Holders of the Outstanding Securities.
Anything in this Article XII to the contrary notwithstanding, the Trustee
shall deliver or pay to the Company from time to time upon Company Request any
money or U.S. Government Obligations held by it as provided in Section 1204
which, in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the
Trustee, are in excess of the amount thereof which would then be required to be
deposited to effect an equivalent defeasance or covenant defeasance, as
applicable, in accordance with this Article.
SECTION 1206. Reinstatement.
If the Trustee or any Paying Agent is unable to apply any money in
accordance with Section 1205 by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, then the Company obligations under this Indenture and the
Securities shall be revived and reinstated as though no deposit had occurred
pursuant to Section 1202 or 1203, as the case may be, until such time as the
Trustee or Paying Agent is permitted to apply all such money in accordance with
Section 1205; provided, however, that if the Company makes any payment of
principal of or premium, if any, or interest on any Security following the
reinstatement of its obligations, the Company shall be subrogated to the rights
of the Holders of such Securities to receive such payment from the money held by
the Trustee or Paying Agent.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed as of the day and year first above written.
SAFETY-KLEEN CORP.
By /s/ Paul R. Humphreys
---------------------------------------
Name: Paul R. Humphreys
Title: Senior Vice President of Finance
and Chief Financial Officer
THE BANK OF NOVA SCOTIA TRUST
COMPANY OF NEW YORK COMPANY
By /s/ George E. Timmes
---------------------------------------
Name: George E. Timmes
Title: Vice President
100
Schedule 1015 to Indenture
The Phoenix Project Joint Venture (this is an oral agreement);
ArmaKleen Partnership Agreement;
3E Company Environmental, Ecological and Engineering Shareholder's Agreement and
any amendments;
OSCO Treatment Systems of Mississippi, Inc. Shareholder Agreement and any
amendments; and
USPCI of Mississippi Shareholder Agreement and any amendments.
101
Exhibit A
[FACE OF SECURITY]
SAFETY-KLEEN CORP.
9 1/4% [Exchange]** Senior Note due 2009
CUSIP ______________
No. _______ $_________________
SAFETY-KLEEN CORP., a Delaware corporation (the "Company", which term
includes any successor under the Indenture hereinafter referred to), for value
received, promises to pay to ___________, or its registered assigns, the
principal sum of ____________________________________ ($___________), on May 15,
2009.
[Initial Interest Rate: 9 1/4% per annum.]*
[Interest Rate: 9 1/4% per annum.]**
Interest Payment Dates: May 15 and November 15 of each year
commencing November 15, 1999.
Regular Record Dates: May 1 and November 1 of each year.
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.
IN WITNESS WHEREOF, the Company has caused this Security to be signed
manually or by facsimile by its duly authorized officer.
Date:___________________ SAFETY-KLEEN CORP.
By: __________________________
Title:
102
(Form of Trustee's Certificate of Authentication)
This is one of the 9 1/4% [Exchange]** Senior Notes due 2009 described in the
within-mentioned Indenture.
THE BANK OF NOVA SCOTIA TRUST
COMPANY OF NEW YORK, as Trustee
By: _____________________________
Authorized Signatory
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[REVERSE SIDE OF SECURITY]
SAFETY-KLEEN CORP.
9 1/4% Senior Note due 2009
1. Principal and Interest.
The Company will pay the principal of this Security set forth on the face
of this Security (or such other amount that may from time to time be indicated
on the records of DTC or its nominee or on the records of the Trustee as
custodian for DTC or its nominee as the result of increases or decreases by
adjustments made on the records of DTC or its nominee or on the records of the
Trustee, as custodian for DTC, in accordance with the rules and procedures of
DTC; provided, however, such amounts may not exceed $325,000,000) on May 15,
2009.
The Company promises to pay interest on the principal amount of this
Security on each Interest Payment Date, as set forth below, at the rate of [9
1/4% per annum (subject to adjustment as provided below)]* [9 1/4% per annum,
except that interest accrued on this Security pursuant to the penultimate
paragraph of this Section 1 for periods prior to the applicable Exchange Date
(as such term is defined in the Registration Rights Agreement referred to below)
will accrue at the rate or rates borne by the Securities from time to time
during such periods].**
Interest will be payable semiannually (to the holders of record of the
Securities (or any predecessor Securities) at the close of business on the May 1
or November 1 immediately preceding the Interest Payment Date) on each Interest
Payment Date, commencing November 15, 1999.
[The Holder of this Security is entitled to the benefits of the
Registration Rights Agreement, dated _______________, among the Company and the
Initial Purchasers named therein (the "Registration Rights Agreement"). In the
event that either (a) the Exchange Offer Registration Statement (as such term is
defined in the Registration Rights Agreement) is not filed with the Securities
and Exchange Commission on or prior to the 60th calendar day following the date
of original issue of the Securities, (b) the Exchange Offer Registration
Statement is not declared effective on or prior to the 150th calendar day
following the date of original issue of the Securities, (c) the Exchange Offer
(as such term is defined in the
- --------
* Include only for Initial Securities.
** Include only for Exchange Securities.
A-3
104
Registration Rights Agreement) is not consummated or a Shelf Registration
Statement (as such term is defined in the Registration Rights Agreement) is not
declared effective on or prior to the 180th calendar day following the date of
original issue of the Securities, or (d) any registration statement required by
the Registration Rights Agreement is filed and declared effective but shall
thereafter cease to be effective (except as specifically provided in the
Registration Rights Agreement) without being succeeded immediately by an
additional registration statement filed and declared effective, the interest
rate borne by this Security shall be increased by 0.25% per annum for the first
90 days following the 60-day period referred to in clause (a) above, following
the 150-day period referred to in clause (b) above or following the 180-day
period referred to in clause (c) above or following the date on which the
relevant registration statement ceases to be effective in the case of clause (d)
above. Such interest will be increased by an additional 0.25% per annum for each
subsequent 90-day period in the case of clause (a), clause (b), clause (c) or
clause (d) above until such registration default has been cured; provided,
however, that in no event will the interest rate borne by the Securities be
increased by more than 1.50% per annum. Upon the filing of the Exchange Offer
Registration Statement, the effectiveness of the Exchange Offer Registration
Statement, the consummation of the Exchange Offer, the effectiveness of a Shelf
Registration Statement, or the effectiveness of a succeeding registration
statement, as the case may be, the interest rate borne by this Security from the
date of such filing, consummation or effectiveness, as the case may be, will be
reduced to the original interest rate set forth above; provided, however, that,
if after such reduction in interest rate, a different event specified in clause
(a), (b), (c) or (d) above occurs, the interest rate may again be increased
pursuant to the foregoing provisions.]*
Interest on this Security will accrue from the most recent date to which
interest has been paid [on this Security or the Security surrendered in exchange
herefor]** or, if no interest has been paid, from May 17, 1999; provided that,
if there is no existing default in the payment of interest and if this Security
is authenticated between a Regular Record Date referred to on the face hereof
and the next succeeding Interest Payment Date, interest shall accrue from such
Interest Payment Date. Interest will be computed on the basis of a 360-day year
of twelve 30-day months.
The Company shall pay interest on overdue principal and premium, if any,
and interest on overdue installments of interest, to the extent lawful, at a
rate per annum equal to the rate of interest applicable to the Securities.
- --------
* Include only for Initial Securities.
** Include only for Exchange Securities
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2. Method of Payment.
The Company will pay interest (except defaulted interest) on the principal
amount of the Securities on each May 15 and November 15 to the persons who are
Holders (as reflected in the Security Register at the close of business on the
May 1 and November 1 immediately preceding the Interest Payment Date), in each
case, even if the Security is canceled on registration of transfer or
registration of exchange after such record date; provided that, with respect to
the payment of principal, the Company will make payment to the Holder that
surrenders this Security to any Paying Agent on or after May 15, 2009.
The Company will pay principal, premium, if any, and interest in money of
the United States that at the time of payment is legal tender for payment of
public and private debts. [Payment of the principal of and premium, if any, and
interest on the Securities will be made at the office or agency of the Company
maintained for that purpose in The City of New York (which shall be the
Corporate Finance Department of the Trustee, unless the Company shall designate
and maintain some other office or agency for such purpose), or at such other
office or agency of the Company as may be maintained for such purpose, in lawful
money of the United States of America, or payment of interest may be made at the
option of the Company by check mailed to the address of the Person entitled
thereto as such address shall appear on the Security Register; provided,
however, that all payments to Holders who have given wire transfer instructions
to the Company will be made by wire transfer of immediately available funds to
the accounts specified by such Holder.]* [All payments will be made by wire
transfer of immediately available funds to the accounts specified by the
Holder.]** If a payment date is a date other than a Business Day at a place of
payment, payment may be made at that place on the next succeeding day that is a
Business Day and no interest shall accrue for the intervening period.
3. Paying Agent and Registrar.
Initially, the Trustee will act as Paying Agent and Registrar. The Company
may change any Paying Agent or Registrar upon written notice thereto. The
Company, any Subsidiary or any Affiliate of any of them may act as Paying Agent,
Registrar or co-registrar.
4. Indenture; Limitations.
The Company issued the Securities under an Indenture dated as of May 17,
1999 (the "Indenture"), between the Company and The Bank of Nova Scotia Trust
Company of New York, as trustee (the "Trustee"). Capitalized terms herein are
used as defined in the Indenture unless otherwise indicated. The terms of the
Securities include those stated in the Indenture
- --------
* Include for Physical Securities only.
** Include for Restricted Global Security only.
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and those made part of the Indenture by reference to the Trust Indenture Act.
The Securities are subject to all such terms, and Holders are referred to the
Indenture and the Trust Indenture Act for a statement of all such terms. To the
extent permitted by applicable law, in the event of any inconsistency between
the terms of this Security and the terms of the Indenture, the terms of the
Indenture shall control.
The Securities are general unsecured obligations of the Company.
5. Redemption.
(a) Make-Whole Redemption. The Securities may be redeemed at the option of
the Company in whole or in part, at any time and from time to time, prior to May
15, 2004, at a Redemption Price equal to the greater of (i) 100% of the
principal amount of such Securities or (ii) the sum of the present values of
104.625% of the principal amount of such Securities and the scheduled payments
of interest thereon through and including May 15, 2004 discounted to such
Redemption Date on a semi-annual basis (assuming a 360-day year consisting of
twelve 30-day months) at the Adjusted Treasury Rate plus 50 basis points,
together with accrued and unpaid interest, if any, to the Redemption Date
(subject to the right of Holders of record on the relevant Regular Record Date
to receive interest due on an Interest Payment Date that is on or prior to the
Redemption Date).
(b) Optional Redemption. The Securities may be redeemed at the option of
the Company, in whole or in part, at any time and from time to time on or after
May 15, 2004, at the following Redemption Prices (expressed in percentages of
principal amount), plus accrued and unpaid interest, if any, to the Redemption
Date (subject to the right of Holders of record on the relevant Regular Record
Date to receive interest due on an Interest Payment Date that is on or prior to
the Redemption Date), if redeemed during the 12-month period beginning May 15,
of each of the years set forth below:
Redemption
Year Price
---- -----
2004................................... 104.625%
2005................................... 103.083%
2006................................... 101.542%
2007 and thereafter ................... 100.000%
In addition, at any time or from time to time prior to May 15, 2002, the
Company may redeem up to 35% of the sum of (i) the initial aggregate principal
amount of the Securities and (ii) the initial aggregate principal amount of any
Additional Securities with the net proceeds of one or more Public Equity
Offerings at a redemption price equal to 109.25% of the principal amount
thereof, plus accrued and unpaid interest, if any, to the Redemption Date
(subject to the right of Holders of record on the relevant Regular Record Date
to receive interest due on the relevant Interest Payment Date); provided, that,
immediately after giving effect to such
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redemption, at least $146,250,000 aggregate principal amount of the Securities
(including any Additional Securities) remains outstanding; provided, further,
that such redemptions occur within 90 days of the date of closing of the related
Public Equity Offering.
(c) Mandatory Redemption. Notwithstanding the foregoing, in the event that
the Funding Conditions are not satisfied on or prior to September 30, 1999, on
the Mandatory Redemption Date the Company shall redeem all of the Securities at
a redemption price in cash equal to 101% of the principal amount of the
Securities plus accrued and unpaid interest, if any, to the Mandatory Redemption
Date.
The "Mandatory Redemption Date" means October 15, 1999, in the event the
Funding Conditions are not satisfied on or prior to September 30, 1999.
The "Funding Conditions" means the occurrence of the following events:
(1) the stockholders of the Company shall have approved the issuance
of shares of the Company's common stock in connection with the repurchase
of the PIK Debenture in accordance with the rules of The New York Stock
Exchange; and
(2) the conditions set forth in Article IV of the Securities
Purchase Agreement.
Notice of a redemption pursuant to paragraphs 5(a) or 5(b) will be mailed
at least 30 days but not more than 60 days before the Redemption Date to each
Holder of Securities to be redeemed at such Holder's last address as it appears
in the Security Register. Notice of a mandatory redemption pursuant to paragraph
5(c) will be mailed promptly after the occurrence of the event triggering such
redemption but in no event less than ten days prior to the Mandatory Redemption
Date to each Holder of Securities to be redeemed at such Holders last address as
it appears in the Security Register.* Securities in original denominations
larger than $1,000 may be redeemed in part in integral multiples of $1,000. On
and after the Redemption Date, interest ceases to accrue on Securities or
portions of Securities called for redemption, unless the Company defaults in the
payment of the Redemption Price.
6. Repurchase upon a Change in Control and Asset Sales.
(a) Upon the occurrence of a Change of Control, the Company is obligated
to make an offer to purchase all outstanding Securities at a redemption price of
101% of the principal amount thereof, plus accrued and unpaid interest, if any,
to the date of purchase and (b) upon Asset Sales, the Company may be obligated
to make offers to purchase Securities with a portion of the Net Cash Proceeds of
such Asset Sales at a redemption price of 100% of the principal amount thereof
plus accrued and unpaid interest, if any, to the date of purchase.
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7. Denominations; Transfer; Exchange.
The Securities are in registered form without coupons, in denominations of
$1,000 and multiples of $1,000 in excess thereof. A Holder may register the
transfer or exchange of Securities in accordance with the Indenture. The
Registrar may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents and to pay any taxes and fees required by
law or permitted by the Indenture. The Registrar need not register the transfer
or exchange of any Securities selected for redemption (except the unredeemed
portion of any Security being redeemed in part). Also, it need not register the
transfer or exchange of any Securities for a period of 15 days before a
selection of Securities to be redeemed is made.
8. Persons Deemed Owners.
A Holder may be treated as the owner of a Security for all purposes.
9. Unclaimed Money.
If money for the payment of principal, premium, if any, or interest
remains unclaimed for two years, the Trustee and the Paying Agent will pay the
money back to the Company at its request. After that, Holders entitled to the
money must look to the Company for payment, unless an abandoned property law
designates another Person, and all liability of the Trustee and such Paying
Agent with respect to such money shall cease.
10. Discharge Prior to Redemption or Maturity.
If the Company irrevocably deposits, or causes to be deposited, with the
Trustee money or U.S. Government Obligations sufficient to pay the then
outstanding principal of and premium, if any, and accrued interest on the
Securities to redemption or maturity, the Company will be discharged from the
Indenture and the Securities, except in certain circumstances for certain
sections thereof.
11. Amendment; Supplement; Waiver.
Subject to certain exceptions, the Indenture or the Securities may be
amended or supplemented with the consent of the Holders of at least a majority
in aggregate principal amount of the Securities then Outstanding, and any
existing default or compliance with any provision may be waived with the consent
of the Holders of a majority in aggregate principal amount of the Securities
then Outstanding. Without notice to or the consent of any Holder, the parties
thereto may amend or supplement the Indenture or the Securities to, among other
things, cure any ambiguity, defect or inconsistency and make any change that
does not adversely affect the rights of any Holder.
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12. Restrictive Covenants.
The Indenture contains certain covenants, including, without limitation,
covenants with respect to the following matters: (i) Indebtedness; (ii)
Restricted Payments; (iii) certain Asset Sales; (iv) transactions with
Affiliates; (v) dividends and other payment restrictions affecting Restricted
Subsidiaries; (vi) issuances and sale of Capital Stock of Restricted
Subsidiaries; (vii) designation of Unrestricted Subsidiaries; (viii) Liens; (ix)
merger and certain transfers of assets; and (x) Contingent Obligations. Within
120 days after the end of each fiscal year, the Company must report to the
Trustee on compliance with such limitations.
13. Fall-away Event.
In the event the Securities receive an Investment Grade rating, and only
during the period when the Securities are rated Investment Grade, and provided
no Event of Default or Default shall have occurred and be continuing, upon the
request of the Company, the covenants described in the immediately preceding
paragraph generally will no longer be applicable to the Company and, if
applicable, its Restricted Subsidiaries. Upon the Securities receiving an
Investment Grade rating, covenants relating to (i) Liens securing Indebtedness
and (ii) Sale and Leaseback Transactions will apply to the Company, and if
applicable, the Restricted Subsidiaries.
14. Successor Persons.
When a successor person or other entity assumes all the obligations of its
predecessor under the Securities and the Indenture, the predecessor person will
be released from those obligations.
15. Remedies for Events of Default.
If an Event of Default, as defined in the Indenture, occurs and is
continuing, the Trustee or the Holders of not less than 25% in principal amount
of the Securities then Outstanding may declare all the Securities to be
immediately due and payable. If a bankruptcy or insolvency default with respect
to the Company or any of its Significant Subsidiaries occurs and is continuing,
the Securities automatically become immediately due and payable. Holders may not
enforce the Indenture or the Securities except as provided in the Indenture. The
Trustee may require indemnity satisfactory to it before it enforces the
Indenture or the Securities. Subject to certain limitations, Holders of at least
a majority in principal amount of the Securities then Outstanding may direct the
Trustee in its exercise of any trust or power.
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16. Trustee Dealings with Company.
The Trustee under the Indenture, in its individual or any other capacity,
may become the owner or pledgee of Securities and may make loans to, accept
deposits from, perform services for, and otherwise deal with, the Company and
its Affiliates as if it were not the Trustee.
17. Authentication.
This Security shall not be valid until the Trustee signs the certificate
of authentication on the other side of this Security.
18. Abbreviations.
Customary abbreviations may be used in the name of a Holder or an
assignee, such as: TEN COM (= tenants in common), TEN EMPLOYMENT (= tenants by
the entireties), JT TEN (= joint tenants with right of survivorship and not as
tenants in common), CUST (= Custodian) and U/G/M/A (= Uniform Gifts to Minors
Act).
The Company will furnish to any Holder upon written request and without
charge a copy of the Indenture. Requests may be made to SAFETY-KLEEN CORP., 1301
Gervais Street, Suite 300, Columbia, South Carolina 29201, Attention: Henry H.
Taylor, Esq.
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[FORM OF TRANSFER NOTICE]
FOR VALUE RECEIVED the undersigned registered holder hereby sell(s),
assign(s) and transfer(s) unto
Insert Taxpayer Identification No.
(Please print or typewrite name and address including zip code of assignee)
the within Security and all rights thereunder, hereby irrevocably constituting
and appointing
attorney to transfer such Security on the books of the Company with full power
of substitution in the premises.
[THE FOLLOWING PROVISION TO BE INCLUDED
ON ALL CERTIFICATES EXCEPT
PERMANENT OFFSHORE PHYSICAL CERTIFICATES]
In connection with any transfer of this Security occurring prior to the
date which is the earlier of the date of an effective Registration Statement or
May 17, 2001 the undersigned confirms that without utilizing any general
solicitation or general advertising that:
[Check One]
[ ] (a) this Security is being transferred in compliance with the exemption
from registration under the Securities Act of 1933, as amended, provided
by Rule 144A thereunder.
or
[ ] (b) this Security is being transferred other than in accordance with (a)
above and documents are being furnished which comply with the conditions
of transfer set forth in this Security and the Indenture.
If none of the foregoing boxes is checked, the Trustee or other Registrar shall
not be obligated to register this Security in the name of any Person other than
the Holder hereof unless and until the conditions to any such transfer of
registration set forth herein and in Section 307 of the Indenture shall have
been satisfied.
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112
Date: ____________________ _____________________________
NOTICE: The signature to this
assignment must correspond
with the name as written upon
the face of the
within-mentioned instrument
in every particular, without
alteration or any change
whatsoever.
Signature Guarantee:
TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this
Security for its own account or an account with respect to which it exercises
sole investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act of
1933, as amended, and is aware that the sale to it is being made in reliance on
Rule 144A and acknowledges that it has received such information regarding the
Company as the undersigned has requested pursuant to Rule 144A or has determined
not to request such information and that it is aware that the transferor is
relying upon the undersigned's foregoing representations in order to claim the
exemption from registration provided by Rule 144A.
Dated: ___________________ ______________________________
NOTICE: To be executed by an executive
officer, general partner,
trustee or similar
representative.
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OPTION OF HOLDER TO ELECT PURCHASE
If you wish to have this Security purchased by the Company pursuant to
Section 1012 or Section 1013 of the Indenture, check the Box: [ ].
If you wish to have a portion of this Security purchased by the Company
pursuant to Section 1012 or Section 1013 of the Indenture, state the amount (in
original principal amount) below:
$_____________________.
Date:
Your Signature: ___________________________________________________________
(Sign exactly as your name appears on the other side of
this Security)
Signature Guarantee:_________________________________________________________
(Signature must be guaranteed by a member of the New York
Stock Exchange or a commercial bank or trust company)
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114
EXHIBIT B
FORM OF CERTIFICATE FOR EXCHANGE OR REGISTRATION OF
TRANSFER FROM RESTRICTED GLOBAL SECURITY TO
REGULATION S GLOBAL SECURITY
The Bank of Nova Scotia
Trust Company of New York
One Liberty Plaza, 23rd Floor
New York, New York 10006
Re: 9 1/4% Senior Notes due 2009 of Safety-Kleen Corp.
Reference is hereby made to the Indenture, dated as of May 17, 1999 (the
"Indenture"), between Safety-Kleen Corp., as issuer (the "Company") and The Bank
of Nova Scotia, Trust Company of New York, as trustee. Capitalized terms used
but not defined herein shall have the meanings given to them in the Indenture.
This letter relates to $_________ principal amount of Securities which are
evidenced by the Restricted Global Security (CUSIP No._________) and held with
the Depositary in the name of Cede & Co. (the "Transferor"). The Transferor has
requested a transfer of such beneficial interest in the Securities to a Person
who will take delivery thereof in the form of an equal principal amount of
Securities evidenced by the Regulation S Global Security (CUSIP No. ________).
In connection with such request and in respect of such Securities, the
Transferor hereby certifies that such transfer has been effected in compliance
with the transfer restrictions applicable to the Global Securities and pursuant
to and in accordance with Rule 903, Rule 904 or Rule 144 under the United States
Securities Act of 1933, as amended (the "Securities Act"), and accordingly the
Transferor hereby further certifies that:
(A) if the transfer has been effected pursuant to Rule 903 or Rule 904:
(1) the offer of the Securities was not made to a person in the
United States;
(2) either:
(a) at the time the buy order was originated, the transferee
was outside the United States or the Transferor and any person
acting on its behalf reasonably believed and believes that the
transferee was outside the United States; or
(b) the transaction was executed in, on or through the
facilities of a designated offshore securities market and neither
the Transferor nor any person
115
acting on its behalf knows that the transaction was prearranged with
a buyer in the United States;
(3) no directed selling efforts have been made in contravention of
the requirements of Rule 903(b) or Rule 904(b) of Regulation S, as
applicable;
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act;
(5) if the transfer is being requested prior to June 26, 1999, upon
completion of the transaction, the beneficial interest being transferred
as described above is to be held with the Depositary through Euroclear or
Cedel Bank or both (Common Code ____________); and
(B) If the transfer has been effected pursuant to Rule 144, the Securities
have been transferred in a transaction permitted by Rule 144 under the
Securities Act.
Upon giving effect to this request to exchange a beneficial interest in
such Restricted Global Security for a beneficial interest in a Regulation S
Global Security, the resulting beneficial interest shall be subject to the
restrictions on transfer applicable to Regulation S Global Security pursuant to
the Indenture and the Securities.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company. Terms used in this certificate and not
otherwise defined in the Indenture have the meanings set forth in Regulation S
under the Securities Act.
[Insert Name of Transferor]
By:_____________________________________
Name:
Title:
Dated: ____________, ____ Signature Guarantee
______________________________________
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EXHIBIT C
FORM OF CERTIFICATE FOR EXCHANGE OR REGISTRATION OF
TRANSFER FROM REGULATION S GLOBAL SECURITY TO
RESTRICTED GLOBAL SECURITY
The Bank of Nova Scotia
Trust Company of New York
One Liberty Plaza, 23rd Floor
New York, New York 10006
Re: 9 1/4% Senior Notes due 2009 of Safety-Kleen Corp.
Reference is hereby made to the Indenture, dated as of May 17, 1999 (the
"Indenture"), between Safety-Kleen Corp., as issuer (the "Company") and The Bank
of Nova Scotia, Trust Company of New York, as trustee. Capitalized terms used
but not defined herein shall have the meanings given to them in the Indenture.
This letter relates to $____________ principal amount of the Securities
which are evidenced by the Regulation S Global Security (CUSIP No. _________)
and held with the Depositary in the name of Cede & Co. (the "Transferor"). The
Transferor has requested a transfer of such beneficial interest in the
Securities to a Person who will take delivery thereof in the form of an equal
principal amount of Securities evidenced by the Restricted Global Security
(CUSIP No. __________), to be held with the Depositary.
In connection with such request and in respect of such Securities, the
Transferor hereby certifies that such transfer is being effected pursuant to and
in accordance with Rule 144A under the United States Securities Act of 1933, as
amended (the "Securities Act"), and, accordingly, the Transferor hereby further
certifies that the Securities are being transferred to a Person that the
Transferor reasonably believes is purchasing the Securities for its own account,
or for one or more accounts with respect to which such Person exercises sole
investment discretion, and such Person and each such account is a "qualified
institutional buyer" within the meaning of Rule 144A in a transaction meeting
the requirements of Rule 144A and such Securities are being transferred in
compliance with any applicable blue sky securities laws of any state of the
United States.
Upon giving effect to this request to exchange a beneficial interest in
Regulation S Global Securities for a beneficial interest in the Restricted
Global Security, the resulting beneficial interest shall be subject to the
restrictions on transfer applicable to the U.S. Global Securities pursuant to
the Indenture and the Securities Act.
117
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company. Terms used in this certificate and not
otherwise defined in the Indenture have the meanings set forth in Regulation S
under the Securities Act.
[Insert Name of Transferor]
By:_____________________________________
Name:
Title:
Dated: ____________, ____ Signature Guarantee
______________________________________
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EXHIBIT D
FORM OF CERTIFICATE FOR TRANSFER OF U.S. PHYSICAL SECURITIES TO REGULATION S
GLOBAL SECURITY OR RESTRICTED GLOBAL SECURITY
The Bank of Nova Scotia
Trust Company of New York
One Liberty Plaza, 23rd Floor
New York, New York 10006
Re: 9 1/4% Senior Subordinated Notes due 2009 of Safety-Kleen Corp.
Reference is hereby made to the Indenture, dated as of May 17, 1999 (the
"Indenture"), between Safety-Kleen Corp., as issuer (the "Company") and The Bank
of Nova Scotia, Trust Company of New York, as trustee. Capitalized terms used
but not defined herein shall have the meanings given to them in the Indenture.
This letter relates to $___________ principal amount of Securities which
are evidenced by a definitive Physical Security (Certificate No. __________,
CUSIP No. __________, in the name of _________________) (the "Transferor"). The
Transferor has requested a transfer of such interest in the Securities to a
Person that will take delivery thereof in the form of an equal principal amount
of Securities evidenced by the [Restricted Global Security CUSIP No.
____________] [Regulation S Global Security (CUSIP No. ____________)].
In connection with such request and in respect of such Securities, the
Transferor does hereby certify that: [if such request is made for transfer to
the Regulation S Global Security: such transfer has been effected pursuant to
and in accordance with Rule 903, Rule 904 or Rule 144 under the United States
Securities Act of 1933, as amended (the "Securities Act") and accordingly the
Transferor does hereby further certify that:
(1) if the transfer has been effected pursuant to Rule 903 or Rule
904:
(A) the offer of the Securities was not made to a person in
the United States;
(B) either:
(i) at the time the buy order was originated, the
transferee was outside the United States or the Transferor and
any person acting on its behalf reasonably believed that the
transferee was outside the United States, or
119
(ii) the transaction was executed in, on or through the
facilities of a designated offshore securities market and
neither the Transferor nor any person acting on its behalf
knows that the transaction was prearranged with a buyer in the
United States;
(C) no directed selling efforts have been made in
contravention of the requirements of Rule 903(b) or 904(b) of
Regulation S, as applicable; [and]
(D) the transaction is not part of a plan or scheme to evade
the registration requirements of the Securities Act; [and
(E) if the transfer is being requested prior to June 26, 1999:
Upon completion of the transaction, the beneficial interest being
transferred as described above is to be held with the Depositary
through Euroclear or Cedel Bank or both (Common Code __________);]
or
(2) if the transfer has been effected pursuant to Rule 144, the
Securities have been transferred in a transaction permitted by Rule 144.]
(3) if such request is made for transfer to the Restricted Global
Security: Such transfer is being effected pursuant to and in accordance
with Rule 144A under the Securities Act, and, accordingly, the Transferor
hereby further certifies that the Securities are being transferred to a
person that the Transferor reasonably believes is purchasing the
Securities for its own account, or for one or more accounts with respect
to which such person exercises sole investment discretion, and such person
and each such account is a "qualified institutional buyer" within the
meaning of Rule 144A in a transaction meeting the requirements of Rule
144A.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company. Terms used in this certificate and not
otherwise defined in the Indenture have the meanings set forth in Regulation S
under the Securities Act.
D-2
120
Upon completion of the transaction, the beneficial interest being
transferred as described above is to be held with the Depositary through
Euroclear or Cedel Bank or both (Common Code_____).
[Insert Name of Transferor]
By:_____________________________________
Name:
Title:
Dated: ____________, ____ Signature Guarantee
______________________________________
D-3
121
EXHIBIT E
FORM OF CERTIFICATE FOR TRANSFER OR EXCHANGE AFTER TWO YEARS
The Bank of Nova Scotia
Trust Company of New York
One Liberty Plaza, 23rd Floor
New York, New York 10006
Re: 9 1/4% Senior Notes due 2009 of Safety-Kleen Corp.
Reference is hereby made to the Indenture, dated as of May 17, 1999 (the
"Indenture"), between Safety-Kleen Corp., as issuer (the "Company") and The Bank
of Nova Scotia, Trust Company of New York, as trustee. Capitalized terms used
but not defined herein shall have the meanings given to them in the Indenture.
[For transfers: This letter relates to $__________ principal amount of
Securities which are evidenced by a [Restricted Global Security (CUSIP No.
_________) and held with the Depositary in the name of Cede & Co.] [a U.S.
Physical Security (CUSIP No. ________________) registered in the name of
_________________] [and held for the benefit of _________________] (the
"Beneficial Owner"). The Beneficial Owner has requested that its beneficial
interest in such Securities be transferred to a Person that will take delivery
thereof in the form of an equal principal amount of Securities evidenced by the
Regulation S Global Security (CUSIP No. _________).
In connection with such request and in respect of such Securities, the
Beneficial Owner does hereby certify that upon such transfer, (a) a period of at
least two years will have elapsed since May __, 1998, (b) the Beneficial Owner
during the three months preceding the date of such transfer was not an
"affiliate" of the Company (as defined in Rule 144 under the Securities Act),
and it was not acting on behalf of such an affiliate and (c) such Person to whom
such transfer is being made is not an "affiliate" of the Company.]
[For exchanges: This letter relates to $__________ principal amount of
Securities that are evidenced by a [Restricted Global Security (CUSIP No.
__________) and held with the Depositary in the name of [_________] [and held
for the benefit of ]____________] (the "Beneficial Owner"). The Beneficial Owner
has requested that its beneficial interest in such Securities be exchanged for a
beneficial interest in an equal principal amount of Securities evidenced by the
Regulation S Global Security (CUSIP No. __________).
In connection with such request and in respect of such Securities, the
Beneficial Owner does hereby certify that [it is located and acquired such
securities outside the United States (if the Restricted Period has ended) and
that such transfer is being made in accordance with Rule
122
903 or 904 of Regulation S promulgated under the U.S. Securities Act of 1933][,
upon such exchange, (a) it will be the beneficial owner of such Securities, (b)
a period of at least two years will have elapsed since May 17, 1999 and (c) the
Beneficial Owner will not be, and during the three months preceding the date of
such exchange will not have been, an "affiliate" of the Company (as defined in
Rule 144 under the Securities Act), and it is not acting on behalf of such an
affiliate.]
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company.
Dated: [Insert Name of Beneficial Owner]
By: __________________________
Name:
Title:
E-2