1
EXHIBIT 4.1
ALLWASTE, INC.
AND
TEXAS COMMERCE TRUST COMPANY OF NEW YORK
as Trustee
-----------------
INDENTURE
Dated as of June 1, 1989
-----------------
$30,000,000
7 1/4% Convertible Subordinated Debentures due 2014
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CROSS REFERENCE TABLE*
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of provisions of Trust Indenture Act of 1939 with Indenture dated as of June 1,
1989, between Allwaste, Inc., and Texas Commerce Bank National Association, as
Trustee:
Section of Act Section of Indenture
- -------------- --------------------
310(a) (1) and (2) ...................................... 8.09
310(a) (3) and (4) ...................................... Not Applicable
310(b) ................................................. 8.08, 8.10(b) and (d)
310(c) .................................................. Not Applicable
311(a) and (b) .......................................... 8.13
311(c) .................................................. Not Applicable
312(a) .................................................. 6.01 and 6.02(a)
312(b) and (c) .......................................... 6.02(b) and (c)
313(a) .................................................. 6.04(a)
313(b) (1) .............................................. Not Applicable
313(b) (2) .............................................. 6.04(b)
313(c) .................................................. 6.04(c)
313(d) .................................................. 6.04(d)
314(a) .................................................. 6.03
314(b) .................................................. Not Applicable
314(c) (1) and (2) ...................................... 16.07
314(c) (3) .............................................. Not Applicable
314(d) .................................................. Not Applicable
314(e) .................................................. 16.07
315(a), (c) and (d) ..................................... 8.01
315(b) .................................................. 7.07
315(e) .................................................. 7.08
315(f) .................................................. Not Applicable
316(a) (1) .............................................. 7.06
316(a) (2) .............................................. Omitted
316(a) last sentence .................................... 9.04
316(b) .................................................. 7.04
317(a) .................................................. 7.02
317(b) .................................................. 5.05(a)
318(a) .................................................. 16.09
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* This Cross Reference Table is not part of the Indenture.
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TABLE OF CONTENTS*
Page
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PARTIES................................................................... 1
RECITALS.................................................................. 1
ARTICLE ONE
DEFINITIONS
Section 1.01. Definitions................................................ 10
ARTICLE TWO
ISSUANCE, DESCRIPTION, EXECUTION, REGISTRATION OF
TRANSFER AND EXCHANGE OF DEBENTURES
Section 2.01. Designation, Amount, Authentication and Delivery
of Debentures........................................... 16
Section 2.02. Form of Debenture and Trustee's Certificate................ 17
Section 2.03. Date and Denominations of Debentures;
Payment of Interest..................................... 17
Section 2.04. Execution of Debentures.................................... 18
Section 2.05. Exchange and Registration of Transfer of Debentures........ 18
Section 2.06. Temporary Debentures....................................... 20
Section 2.07. Mutilated, Destroyed, Lost or Stolen Debentures............ 20
Section 2.08. Cancellation of Surrendered Debentures..................... 21
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*The Table of Contents, comprising pages i to ix inclusive,
is not part of the Indenture.
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ARTICLE THREE
SUBORDINATION OF DEBENTURES
Page
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Section 3.01. Agreement of Subordination................................... 22
Section 3.02. Payment Over of Proceeds Upon Dissolution, etc............... 22
Section 3.03. No Waiver of Subrogation Provision........................... 27
Section 3.04. Payments to Debentureholders................................. 27
Section 3.05. Authorization of Debentureholders to
Trustee to Effect Subordination............................ 27
Section 3.06. Knowledge of Trustee and Paying Agent........................ 28
Section 3.07. All Provisions of Indenture Qualified by
Article Three.............................................. 28
Section 3.08. Applicability of Article Three to Paying Agents.............. 28
ARTICLE FOUR
REDEMPTION OF DEBENTURES - SINKING FUND
Page
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Section 4.01. Redemption Prices - Sinking Fund and
Voluntary Redemptions...................................... 29
Section 4.02. Notice of Redemption; Selection of Debentures................ 29
Section 4.03. Payment of Debentures Called for Redemption.................. 30
Section 4.04. Sinking Fund................................................. 31
Section 4.05. Credits Against Sinking Fund................................. 31
Section 4.06. Certificates and Debentures to be
Delivered to the Trustee................................... 32
Section 4.07. Cash to be Delivered to the Trustee.......................... 33
Section 4.08. Application of Sinking Fund Payments......................... 33
Section 4.09. Manner of Redeeming Debentures............................... 34
Section 4.10. Sinking Fund Moneys to be held as Security During
Continuation of Default; Exceptions........................ 34
Section 4.11. Cancellation and Destruction of Redeemed Debentures.......... 35
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ARTICLE FOUR-A
REDEMPTION OF DEBENTURES; HOLDER'S OPTION
Page
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Section 4A.01. Right to Redemption ......................... 35
Section 4A.02. Applicability of Article .................... 36
Section 4A.03. Notice of Redemption Event .................. 36
Section 4A.04. Notice of Election .......................... 37
Section 4A.05. Deposit of Funds ............................ 37
Section 4A.06. Debentures Payable on Redemption Date ....... 37
Section 4A.07. Debentures Redeemed in Part ................. 38
ARTICLE FIVE
PARTICULAR COVENANTS OF THE COMPANY
Section 5.01. Payment of Principal, Premium and
Interest on Debentures ..................... 38
Section 5.02. Office for Notices and Payments, etc. ........ 38
Section 5.03. Prohibition of Extension of Claims
for Interest ............................... 39
Section 5.04. Appointment to Fill a Vacancy in the
Office of Trustee .......................... 39
Section 5.05. Provision as to Paying Agent ................. 39
Section 5.06. Company to Furnish Annual Compliance
Certificate ................................ 40
ARTICLE SIX
DEBENTUREHOLDERS' LISTS AND REPORTS
BY THE COMPANY AND THE TRUSTEE
Section 6.01. Debentureholders' List ....................... 41
Section 6.02. Preservation and Disclosure of List .......... 41
Section 6.03. Annual and Other Reports to be Filed
by the Company with the Trustee ............ 43
Section 6.04. Reports by the Trustee ....................... 43
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ARTICLE SEVEN
REMEDIES OF THE TRUSTEE AND
DEBENTUREHOLDERS IN EVENT OF DEFAULT
Page
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Section 7.01. Events of Default ........................... 45
Section 7.02. Payment of Debentures on Default;
Suit Therefor ............................. 48
Section 7.03. Application of Moneys Collected by
Trustee ................................... 49
Section 7.04. Limitation on Suits by Holders of
Debentures ................................ 51
Section 7.05. Remedies Cumulative and Continuing .......... 52
Section 7.06. Direction of Proceedings and Waiver of
Defaults by Majority of Debentureholders .. 52
Section 7.07. Notice of Defaults .......................... 52
Section 7.08. Undertaking to Pay Costs .................... 53
ARTICLE EIGHT
CONCERNING THE TRUSTEE
Section 8.01. Duties and Responsibilities of Trustee ...... 53
Section 8.02. Reliance on Documents, Opinions, etc. ....... 55
Section 8.03. No Responsibility for Recitals, etc. ........ 56
Section 8.04. Trustee, Paying Agent or Debenture
Registrar May Own Debentures .............. 56
Section 8.05. Moneys to be Held in Trust .................. 56
Section 8.06. Compensation and Expenses of Trustee ........ 57
Section 8.07. Officers' Certificate as Evidence ........... 58
Section 8.08. Conflicting Interest of Trustee ............. 58
Section 8.09. Eligibility of Trustee ...................... 64
Section 8.10. Resignation or Removal of Trustee ........... 64
Section 8.11. Acceptance by Successor Trustee ............. 66
Section 8.12. Succession by Merger, etc. .................. 66
Section 8.13. Limitations on Rights of Trustee as a
Creditor .................................. 67
Section 8.14. Authenticating Agent of the Trustee ......... 72
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ARTICLE NINE
CONCERNING THE DEBENTUREHOLDERS
Page
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Section 9.01. Action by Debentureholders ................... 73
Section 9.02. Proof of Execution by Debentureholders ....... 73
Section 9.03. Who May be Deemed Owners of
Debentureholders ........................... 74
Section 9.04. Company-Owned Debentures Disregarded ......... 74
Section 9.05. Instruments Executed by Debentureholders
Bind Future Holders ........................ 75
ARTICLE TEN
DEBENTUREHOLDERS' MEETINGS
Section 10.01. Purposes of Meetings ........................ 75
Section 10.02. Manner of Calling Meetings .................. 76
Section 10.03. Call of Meetings by Company or
Debentureholders ........................... 76
Section 10.04. Who May Attend and Vote at Meetings ......... 76
Section 10.05. Regulations May be Made by Trustee .......... 76
Section 10.06. Manner of Voting at Meetings and
Record to be Kept ......................... 77
Section 10.07. No Delay of Rights by Meeting ............... 78
ARTICLE ELEVEN
SUPPLEMENTAL INDENTURE
Section 11.01. Supplemental Indentures Without Consent
of Debentureholders ....................... 78
Section 11.02. Supplemental Indentures With Consent
of Debentureholders ....................... 79
Section 11.03. Effect of Supplemental Indentures ........... 81
Section 11.04. Debentures May Bear Notation of Changes
by Supplemental Indentures ................ 81
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ARTICLE TWELVE
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
Page
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Section 12.01. Consolidations and Mergers of Company and
Conveyances Permitted ..................... 81
Section 12.02. Successor Corporation Substituted ........... 82
Section 12.03. Opinion of Counsel .......................... 83
ARTICLE THIRTEEN
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS
Section 13.01. Satisfaction and Discharge of Indenture ..... 83
Section 13.02. Application by Trustee of Funds
Deposited for Payment of Debentures ....... 84
Section 13.03. Repayment of Moneys Held by
Paying Agent .............................. 85
Section 13.04. Repayment of Moneys Held by Trustee ......... 85
ARTICLE FOURTEEN
CONVERSION OF DEBENTURES
Section 14.01. Conversion Right and Conversion Price ....... 85
Section 14.02. Issuance of Common Stock on Conversion ...... 86
Section 14.03. Interest and Dividends; Fractions
and Shares ................................ 87
Section 14.04. Adjustments of Conversion Price ............. 88
Section 14.05. Certain Notices and Calculations ............ 91
Section 14.06. Effect of Consolidation, Merger, etc. ....... 92
Section 14.07. Reserves .................................... 93
Section 14.08. Certain Covenants ........................... 94
Section 14.09. Taxes Upon Conversion ....................... 94
Section 14.10. Certain Notices ............................. 94
Section 14.11. Determination of Facts ...................... 95
Section 14.12. Common Stock Defined ........................ 96
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ARTICLE FIFTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
Page
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Section 15.01. Indenture and Debentures Solely Corporate
Obligations ............................ 96
ARTICLE SIXTEEN
MISCELLANEOUS PROVISIONS
Section 16.01. Successors and Assigns of Company Bound
by Indenture ........................... 97
Section 16.02. Acts of Board, Committee or Officer of
Successor Corporation Valid ............ 97
Section 16.03. Indenture for Sole Benefit of Parties
and Debentureholders ................... 97
Section 16.04. Service of Certain Required Notices or
Demands ................................ 97
Section 16.05. Notice of Debentureholders................ 97
Section 16.06. New York Contract ........................ 98
Section 16.07. Evidence of Compliance with Conditions
Precedent .............................. 98
Section 16.08. Legal Holidays ........................... 100
Section 16.09. Trust Indenture Act to Control ........... 100
Section 16.10. Severability ............................. 100
Section 16.11. Execution in Counterparts ................ 100
Section 16.12. Computation of Interest .................. 100
Section 16.13. Table of Contents, Headings, etc. ........ 100
TESTIMONIUM .............................................. 101
SIGNATURES ............................................... 101
ACKNOWLEDGMENTS .......................................... 102
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INDENTURE, dated as of June 1, 1989, between ALLWASTE, INC., a Delaware
corporation (hereinafter sometimes referred to as the "Company") and Texas
Commerce Trust Company of New York, a trust company organized under the laws
of the State of New York, as trustee (hereinafter sometimes referred to as the
"Trustee").
WHEREAS, the Company has duly authorized the issuance of its 7&1/4%
Convertible Subordinated Debentures due 2014 (hereinafter referred to as
the "Debentures"), for an aggregate principal amount not to exceed Thirty
Million Dollars ($30,000,000), to be issued as registered Debentures
without coupons; and
WHEREAS, the Debentures, the Trustee's and Authenticating Agent's
certificate of authentication and, without limiting the Company's ability to
accept another form, the conversion notice to be borne by the Debentures
are to be substantially in the following forms, respectively:
[FORM OF FACE OF DEBENTURE]
No. . . . . $
ALLWASTE, INC.
7 1/4% Convertible Subordinated Debenture due 2014
Allwaste, Inc., a Delaware corporation (herein called the "Company"), for
value received, hereby promises to pay to __________________ or registered
assigns, the principal sum of _________ Dollars, on June 1, 2014, in such coin
or currency of the United States of America as at the time of payment shall be
legal tender for the payment of public and pri-rate debts, and to pay-interest,
semi-annually on June 1 and December 1 of each year, commencing December 1,
1989, on said principal sum, in like coin or currency, at the rate per annum
specified in the title of this Debenture, to the registered holder hereof as of
the close of business on the May 15 or November 15, as the case may be,
preceding the date on which an interest payment is due, except as otherwise
provided in the Indenture hereinafter referred to, all at the office or agency
of the Company maintained for that purpose in the City of Houston, Texas or, at
the option of the registered holder, at the office or agency of the Company
maintained for that purpose in the Borough of Manhattan, The City of New York,
from the June 1 or December 1, as the case may be, next preceding the date of
this Debenture to which interest has been paid (unless the date hereof is a June
1 or December 1 to which interest has been paid, in which case from the date of
this Debenture or unless the date hereof is prior to the payment of any interest
on the Debentures, in which case from the date of original issuance of this
Debenture by the Company, or unless the date hereof is between the May 15 or
November 15, as the case may be, and the
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following June 1 or December 1, in which case from such June 1 or December 1,
except that, if the Company shall default in payment of the interest due on
such June 1 or December 1, then from the next preceding June 1 or December 1
to which interest has been paid or, if no interest has been paid on the
Debentures, from the date of original issuance of this Debenture by the
Company as aforesaid), until payment of said principal sum has been made or
duly provided for; provided, however, that 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 in the Debenture register. Interest
shall be calculated on the basis of a 360-day year of twelve 30-day months.
Reference is made to the further provisions of this Debenture set forth on
the reverse hereof. Such further provisions shall for all purposes have the same
effect as though fully set forth at this place.
This Debenture shall not be valid or become obligatory for any purpose
until the certificate of authentication hereon shall have been signed by or on
behalf of the Trustee under the Indenture referred to on the reverse hereof.
IN WITNESS WHEREOF, the Company has caused this instrument to be executed
manually or in facsimile by its duly authorized officers and has caused a
facsimile of its corporate seal to be imprinted hereon.
Dated: ALLWASTE, INC.
[SEAL] By:
---------------------------------
Chairman of the Board
ATTEST:
- -----------------------
Secretary
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[FORM OF TRUSTEE'S OR AUTHENTICATING AGENT'S
CERTIFICATE OF AUTHENTICATION]
This is one of the Debentures referred to in the within-mentioned Indenture.
- ----------------------------- TEXAS COMMERCE TRUST COMPANY OF NEW YORK
as Authenticating Agent as Trustee
of the Trustee
By: By:
------------------------- --------------------------------------
Authorized Signatory Authorized Signatory
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(FORM OF REVERSE OF DEBENTURE]
ALLWASTE, INC.
7 1/4% CONVERTIBLE SUBORDINATED DEBENTURE DUE 2014
This Debenture is one of a duly authorized issue of Debentures of
the Company, designated as its "7 1/4% Convertible Subordinated Debentures
due 2014" (herein referred to as the "Debentures"), limited in aggregate
principal amount as provided in the within-mentioned Indenture, all
issued or to be issued under and pursuant to an indenture dated as of
June 1, 1989 (the "Indenture"), duly executed and delivered by the
Company and Texas Commerce Trust Company of New York, as Trustee (the
"Trustee"), to which Indenture and all indentures supplemental thereto
reference is hereby made for a description of the rights, limitations of
rights, obligations, duties and immunities thereunder of the Trustee, the
Company and the holders of the Debentures. All terms used in this Debenture
which are defined in the Indenture shall have the meanings assigned to them in
the Indenture.
The indebtedness evidenced by this Debenture is, to the extent and in the
manner provided in the Indenture, expressly subordinated and subject in right
of payment to the prior payment in full of all Senior Indebtedness of the
Company. As provided in the Indenture, each holder of this Debenture, by his
acceptance hereof, irrevocably covenants and agrees to and shall be bound by
all the provisions of the Indenture relating to such subordination and
authorizes the Trustee to take such action in his behalf as may be necessary or
appropriate to effectuate, as between the holders of the Debentures and the
holders of Senior Indebtedness, the subordination of the indebtedness
evidenced by this Debenture as provided in the Indenture and irrevocably
appoints the Trustee his attorney-in-fact for any and all such purposes.
If an Event of Default, as defined in the Indenture, shall have occurred and
be continuing, the principal hereof and the interest accrued thereon may be
declared, and upon such declaration shall become, due and payable, in the
manner, with the effect and subject to the conditions provided in the
Indenture.
The Indenture contains provisions permitting the Company and the
Trustee, with the consent of the holders of not less than 66-2/3% in
aggregate principal amount of the Debentures at the time outstanding,
evidenced as in the Indenture provided, to execute supplemental
indentures adding any provisions to or changing in any manner or
eliminating any of the provisions of the Indenture or of any supplemental
indenture or modifying in any manner the rights of the holders of the
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Debentures; provided, however, that no such supplemental indenture shall (i)
extend the fixed maturity of any Debenture, or reduce the principal amount
thereof or any premium thereon, or reduce the rate or extend the time of payment
of interest thereon, or make the principal amount thereof or premium, if any, or
interest thereon payable in any coin or currency other than that hereinbefore
provided, or adversely affect the right to convert any Debentures as provided in
the Indenture or modify the subordination provisions in a manner adverse to the
Debentureholder without the consent of the holder of each Debenture so affected,
or (ii) reduce the aforesaid percentage of Debentures, the consent of the
holders of which is required for any such supplemental indenture, without the
consent of the holders of all Debentures then outstanding. It is also provided
in the Indenture that the holders of not less than a majority in aggregate
principal amount of the Debentures at the time outstanding may on behalf of the
holders of all the Debentures waive any past default under the Indenture and its
consequences, except a default in the payment of interest on or any premium on,
or the principal of, any of the Debentures. Any such consent or waiver by the
holder of this Debenture (unless revoked as provided in the Indenture) shall be
conclusive and binding upon such holder and upon all future holders and owners
of this Debenture and of any Debentures issued in exchange or substitution
therefor, whether or not any notation of such consent or waiver is made upon
this Debenture or such other Debentures.
No reference herein to the Indenture and no provision of this Debenture or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and premium, if any, and
interest on this Debenture at the place, at the respective times, at the rate
and in the coin or currency herein prescribed.
The Debentures are issuable in registered form without coupons in
denominations of $1,000 and any integral multiple of $1,000.
Subject to the provisions of the Indenture, the holder hereof has the right
at his option, at any time on or prior to the close of business on June 1, 2014,
(except, that in case this Debenture or a portion hereof shall be called for
redemption prior to such date, such right shall terminate as to this Debenture
or such portion hereof at the close of business on the fifth day prior to such
redemption date, unless the Company shall default in the payment due upon such
redemption) to convert the principal hereof or any portion hereof which is
$1,000 or an integral multiple of $1,000 into that number of fully paid and
nonassessable shares of Common Stock of the Company, obtained by dividing the
principal amount of this Debenture or portion hereof surrendered for conversion
by the conversion price of $23-7/8 per share, subject to such adjustment, if
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any, of the conversion price and the securities issuable upon conversion, as
may be required by the provisions of the Indenture, upon surrender of this
Debenture to the Company at its office or agency maintained for that purpose in
the City of Houston, Texas or, at the option of the registered holder, at the
office or agency of the Company maintained for that purpose in the Borough of
Manhattan, The City of New York, New York (or such other locations as the
Company shall determine), accompanied by written notice to the Company that
the holder hereof elects to convert this Debenture, or a specified portion
hereof, and by instruments of transfer, in form satisfactory to the Trustee,
duly executed by the registered holder or by his duly authorized attorney, all
in accordance with the provisions of the Indenture. Subject to the right of
the person in whose name this Debenture is registered on the record
date (established as provided in the Indenture) next preceding an interest
payment date to receive the interest payable with respect hereto on such
interest payment date, no adjustments in respect of interest or dividends
will be made upon any conversion. No fractional shares will be issued upon
any conversion, but in lieu thereof the Company shall pay therefor in cash as
provided in the Indenture.
If a Debenture is converted during any period beginning at the opening of
business on an interest payment date and ending at the close of business on the
next succeeding regular record date, no payment of accrued interest will be
made. If any Debenture is surrendered for conversion between a record date
for the payment of interest and the next succeeding interest payment date,
such Debenture must be accompanied by funds equal to the interest payable on
such succeeding interest payment date on the principal amount so converted;
provided, however, that if on or before June 1, 1991, the Company shall have
given notice of redemption of the Debentures in accordance with the Indenture,
the holders of record of the Debentures on May 15, 1991 will be entitled to
be paid the interest thereon on June 1, 1991, whether or not the Debentures
shall have been converted prior to June 1, 1991, without any requirement that
such converted Debentures be accompanied by funds in the amount of the interest
payable on June 1, 1991.
The Debentures may be redeemed at the option of the Company as a whole, or
from time to time in part, on any date on or after June 1, 1991 and prior to
maturity, upon mailing a notice of such redemption not less than 30 nor more
than 60 days prior to the date fixed for redemption to the holders
of Debentures to be redeemed at their registered addresses, all as provided in
the Indenture, at the following optional redemption prices (expressed in
percentages of principal amount), together with accrued interest to the date
fixed for redemption:
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If redeemed during the twelve-month period beginning June 1,
Year Percentage Year Percentage
1991 . . . . 105.800% 1995 . . . . 102.900%
1992 . . . . 105.075% 1996 . . . . 102.175%
1993 . . . . 104.350% 1997 . . . . 101.450%
1994 . . . . 103.625% 1998 . . . . 100.725%
and thereafter at 100% of the principal amount thereof, together with accrued
interest to the date fixed for redemption.
The Debentures are also subject to redemption in part, through the
operation of the mandatory sinking fund provided for in the Indenture, on June
1, 1999 and on each June 1 thereafter to and including June 1, 2013, on notice
as set forth above and at 100% of the Principal amount thereof (the sinking fund
redemption price), together with accrued interest to the date fixed for
redemption. Debentures acquired (by conversion or otherwise) or redeemed by
the Company otherwise than through the operation of the mandatory sinking
fund may be credited against subsequent mandatory sinking fund requirements.
In the event of redemption or conversion of this Debenture in part only, a
new Debenture or Debentures for the unredeemed or unconverted portion hereof
will be issued in the name of the holder hereof upon the cancellation hereof.
Upon due presentment for registration of transfer of this Debenture at the
designated office or agency of the Company maintained for that purpose in the
City of Houston, Texas or, at the option of the registered holder, at the
office or agency of the Company maintained for that purpose in the Borough of
Manhattan, The City of New York, a new Debenture or Debentures of authorized
denominations for an equal aggregate principal amount will be issued to the
transferee in exchange herefor, subject to the limitations provided in the
Indenture, without charge except for any tax or other governmental charge
imposed in connection therewith, and the Debentures may in like manner be
exchanged for one or more new Debentures of other authorized denominations but
of the same aggregate principal amount.
The Company, the Trustee, the Authenticating Agent of the Trustee (as
defined in the Indenture), any paying agent and any Debenture Registrar (as
defined in the Indenture) may deem and treat the registered holder at the times
provided for in the Indenture as the absolute owner of this Debenture (whether
or not this Debenture shall be overdue and notwithstanding any notation of
ownership or other writing hereon made by
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anyone other than the Company or any Debenture Registrar), for the purpose of
receiving payment hereof or on account hereof and for all other purposes, and
neither the Company nor the Trustee nor any Authenticating Agent of
the Trustee nor any paying agent nor any Debenture Registrar shall be affected
by any notice to the contrary. All payments made to or upon the order of such
registered holder shall, to the extent of the sum or sums so paid, satisfy
and discharge the liability for moneys payable on this Debenture.
No recourse shall be had for the payment of the principal of or premium,
if any, or the interest on this Debenture, or for any claim based hereon, or
otherwise in respect hereof, or based on or in respect of the Indenture or any
indenture supplemental thereto, against any incorporator, stockholder,
officer or director, as such, past, present or future, of the Company or the
Trustee or of any successor, either directly or through the Company or the
Trustee or any successor, whether by virtue of any constitution, statute or
rule of law or by the enforcement of any assessment or penalty or otherwise,
all such liability being, by the acceptance hereof and as part of the
consideration for the issuance hereof, expressly waived and released.
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[FORM OF CONVERSION NOTICE]
To Allwaste, Inc.
The undersigned registered holder of this Debenture hereby irrevocably
exercises the option to convert this Debenture, or portion hereof (which is
$1,000 or an integral multiple thereof) below designated, into shares of Common
Stock of Allwaste, Inc. in accordance with the terms of the Indenture
referred to in this Debenture, and directs that the shares issuable and
deliverable upon such conversion, together with any check in payment for
fractional shares, be issued and delivered to the registered holder hereof
unless a different name has been indicated below. Unless otherwise
directed, a new Debenture representing any unconverted principal amount hereof
shall be delivered to the registered holder hereof. If shares are to be issued
in the name of a person other than the undersigned, this Debenture must be duly
endorsed by, or accompanied by instruments of transfer in form
satisfactory to the Trustee duly executed by, the undersigned, and the
undersigned will pay all transfer taxes payable with respect thereto.
_____________________________
Dated: ________________________ Signature of Debentureholder
If different from that of Principal amount to be con-
Debentureholder, print name, verted (if less than all):
address (including zip code)
and social security or other $
taxpayer identification
number of person in whose
name the Common Stock will
be issued:
________________________________
________________________________ ___________________________
Social Security or Other
Taxpayer Identification
________________________________ Number of Debentureholder
; and
WHEREAS, all acts and things necessary to constitute these presents
a valid indenture and agreement according to its terms have been done and
performed, and the execution of this Indenture has been duly authorized;
and, upon a determination by the Board of Directors of the Company to
issue such Debentures in exchange for the Preferred Stock of the Company,
all acts and things necessary to make the Debentures, when executed by
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the Company and authenticated and delivered by or on behalf of the Trustee, as
in this Indenture provided, and issued, the valid, binding and legal
obligations of the Company, will have been done and performed, and the issue of
the Debentures will have in all respects been duly authorized;
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That in order to declare the terms and conditions upon which the Debentures
are authenticated and are to be executed, issued and delivered, and in
consideration of the premises, of the purchase and acceptance of the Debentures
by the holders thereof and of the sum of one dollar duly paid to it by the
Trustee at the execution of these presents, the receipt whereof is hereby
acknowledged, the Company covenants and agrees with the Trustee, for the equal
proportionate benefit of the re-spective holders from time to time of the
Debentures, as follows:
ARTICLE ONE
Definitions
Section 1.01. Definitions. The terms defined in this Section 1.01
(except as herein otherwise expressly provided or unless the context otherwise
requires) for all purposes of this Indenture and of any indenture supplemental
hereto shall have the respective meanings specified in this Section 1.01.
All other terms used in this Indenture which are defined in the Trust Indenture
Act of 1939 or which are by reference therein defined in the Securities Act of
1933, as amended, shall (except as herein otherwise expressly provided or
unless the context otherwise requires) have the meanings assigned to such terms
In said Trust Indenture Act and in said Securities Act as in force at the date
of this Indenture as originally executed.
Authenticating Agent:
The term "Authenticating.Agent" shall mean any agent of the Trustee which
shall at the time be appointed and acting pursuant to Section 8.14.
Authorized Newspaper:
The term "authorized newspaper" shall mean a newspaper printed in
the English language and customarily published at least once a day for at
least 5 days in each calendar week, whether or not published on
Saturdays, Sundays or legal holidays, and of general circulation in the
Borough of Manhattan, The City of New York. Whenever under the pro-
visions of this Indenture two or more publications of a notice or other
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communication are required or permitted, such publications may be in the same
or different newspapers.
Bankruptcy Code:
The term "Bankruptcy Code" shall mean the United States Bankruptcy Code,
11 United States Code Subsection 101 et seq., or any successor statute thereto.
Board of Directors:
The term "Board of Directors", when used with reference to the
Company, shall mean the Board of Directors of the Company, or any
committee of such Board authorized to exercise the powers and authority
of such Board with respect to the action purportedly taken by such
committee.
Business Day:
The term "business day" shall mean any day except a Saturday, a Sunday or a
day on which banking institutions in the City of New York or the City of
Houston, Texas are authorized or required by law to close.
Capitalized Lease Obligation:
The term "Capitalized Lease Obligation" shall mean any obligation of the
Company or any Subsidiary, as lessee or guarantor, to pay rent under a lease of
real or personal property, which obligation, in the judgment of the
independent public accountants employed by the Company, is required to be
capitalized on the balance sheet of the lessee or guarantor in accordance with
generally accepted accounting principles.
Certificate of a Firm of Independent Public Accountants:
The term "Certificate of a Firm of Independent Public Accountants" shall
mean a certificate signed by a nationally recognized firm of independent
public accountants who may be the accountants regularly employed by the
Company. Each such certificate shall include the statements provided for in
Section 16.07 if and to the extent required, by the provisions thereof.
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Common Stock:
The term "Common Stock", except as provided in Section 14.12, shall mean
any stock of any class of the Company which has no preference in respect of
dividends or of amounts payable in the event of any voluntary or involuntary
liquidation, dissolution or winding up of the Company and which is not subject
to redemption by the Company.
Company:
The term "Company" shall mean ALLWASTE, INC., a Delaware
corporation, and, subject to the provisions of Article Twelve, shall also
include its successors and assigns.
Corporate trust office:
The term "corporate trust office" of the Trustee shall mean the
principal office of the Trustee at which at any particular time its
corporate trust business shall be administered, which office at the date
hereof is located at 80 Broad Street, 4th Floor, New York, New York
10004, Attention: Corporate Trust Department, and for purposes of this
Indenture, shall also include the office of the Trustee's agent, Texas
Commerce Bank National Association, located at 600 Travis, Houston, Texas
77002, Attention: Corporate Trust Department; or at such other address
as the Trustee may designate from time to time by notice to the
Debentureholders and the Company, or the principal corporate trust office of
any successor Trustee.
Debenture or Debentures; Outstanding:
The term "Debenture" or "Debentures" shall mean any Debenture or
Debentures, as the case may be, authenticated and delivered under this
Indenture.
The term "outstanding", when used with reference to Debentures,
shall mean, subject to the provisions of Section 9.04, as of any
particular time, all Debentures authenticated and delivered by or on
behalf of the Trustee under this Indenture, except
(a) Debentures theretofore cancelled by the Debenture Registrar or
delivered to the Debenture Registrar for cancellation;
(b) Debentures, or portions thereof, for the payment or redemption of
which moneys in the necessary amount shall have been deposited in trust with
the Trustee or with any paying agent (other than the Company) or shall have been
set aside and segregated in trust by the
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Company (if the Company shall act as its own paying agent); provided
that, if such Debentures are to be redeemed prior to the maturity thereof,
notice of such redemption shall have been given as in Article Four
provided, or provision satisfactory to the Trustee shall have been made
for giving such notice; and
(c) Debentures in lieu of or in substitution for which other Debentures
shall have been authenticated and delivered pursuant to the terms of
Section 2.07.
Debentureholder:
The term "Debentureholder", "holder of Debentures", or other similar
terms, shall mean any person in whose name at the time a Debenture shall
be registered in the Debenture Register kept for that purpose in
accordance with the terms hereof.
Debenture Register; Debenture Registrar:
The terms "Debenture Register" and "Debenture Registrar" shall have the
respective meanings specified in Section 2.05.
Event of Default; default:
The term "Event of Default" shall have the meaning specified in Section
7.01, continued for the period of time, if any, and after the giving of
notice, if any, therein designated.
Unless the context otherwise requires, the term "default" shall mean any
event specified in Section 7.01 not including any period of grace, if any,
therein provided for and irrespective of the giving of notice, if any, therein
designated.
Indenture:
The term "Indenture" shall mean this instrument as originally executed,
or, if amended or supplemented as herein provided, as so amended or
supplemented.
Junior Indebtedness:
The term "Junior Indebtedness" shall mean indebtedness of the Company
heretofore or hereafter created which, by the terms of the instrument by which
such indebtedness is created or evidenced, ranks junior and subordinate in
right of payment to the Debentures.
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Officers' Certificate:
The term "Officers' Certificate" shall mean a certificate signed by the
Chairman of the Board, the President or any Vice President and the Treasurer,
any Assistant Treasurer or the Secretary or any Assistant Secretary of the
Company. Each such certificate shall include the statements provided for in
Section 16.07, if and to the extent required by the provisions of such Section.
Opinion of Counsel:
The term "Opinion of Counsel" shall mean an opinion in writing signed
by legal counsel who may be counsel to or an employee of the Company, or may be
other counsel satisfactory to the Trustee. Each such opinion shall include the
statements provided for in Section 16.07, if and to the extent required by the
provisions of such Section.
Pari Passu Debt:
"Pari Passu Debt" shall mean any indebtedness of the Company heretofore
or hereafter created which, by the terms of the instrument by which such
indebtedness is created or evidenced, ranks pari passu in right of payment with
the Debentures and is entitled to like rights of subrogation.
Responsible Officer:
The term "responsible officer", when used with respect to the Trustee,
shall mean the chairman or vice chairman of the board of directors, the
chairman of the executive committee of the board of directors, the chairman
of the trust committee, the president, any vice president, any second or
assistant vice president, the cashier, any assistant cashier, the secretary, any
assistant secretary, the treasurer, any assistant treasurer, any senior trust
officer or trust officer, or any other officer or assistant officer of the
Trustee customarily performing functions similar to those performed by the
persons who at the time shall be such officers, respectively, or to whom any
corporate trust matter is referred because of his knowledge of and familiarity
with the particular subject.
Securities and Exchange Commission:
The term "Securities and Exchange Commission" shall mean the
Securities and Exchange Commission, as from time to time constituted, created
under the Securities and Exchange Act of 1934, or, if at any time after the
execution of this Indenture, the Securities and Exchange
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Commission is not existing and performing the duties now assigned to it under
the Trust Indenture Act of 1939, then the body performing such duties on such
date.
Senior Indebtedness:
The term "Senior Indebtedness" shall mean the following, whether
outstanding on the date hereof or hereafter created, incurred, assumed or
guaranteed, (a) the principal of, premium if any, and interest on (i)
indebtedness (other than the Debentures) of the Company for money borrowed
(including any indebtedness representing the deferred and unpaid balance of the
purchase price of any property, if such indebtedness is payable by its terms
over a period of more than 12 months); (ii) indebtedness of the Company
evidenced by bonds, notes, debentures or similar obligations sold by the
Company for money (other than the Debentures), (iii) Capitalized Lease
Obligations, (iv) indebtedness or obligations incurred, assumed or guaranteed by
the Company in connection with the acquisition or improvement of any property
or asset or the acquisition by it or a Subsidiary of any business, (v)
indebtedness of others of the kinds described in any of the preceding clauses
(i), (ii), (iii), and (iv), assumed or guaranteed by the Company or in effect
guaranteed by the Company through an agreement to purchase or otherwise, (vi)
obligations which would be classified as liabilities on the balance sheet of the
Company in accordance with generally accepted accounting principles,
evidencing the purchase price for the acquisition of assets of any kind,
tangible or intangible, by the Company, except in the ordinary course of
business; unless, in each case referred to in clauses (i), (ii), (iii), (iv),
(v) and (vi) above, by the terms of the instrument creating or evidencing the
indebtedness or obligation it is expressly provided that such indebtedness is
Pari Passu Debt or Junior Indebtedness under this Indenture, (b) any other
indebtedness, liability or obligation, contingent or otherwise other than that
arising pursuant to the Debentures, of the Company (any such indebtedness,
liability or obligation being hereinafter in this definition referred to as an
"Obligation"), and any guaranty, endorsement or other contingent
obligation in respect of any Obligation of another, which is created, assumed or
incurred by the Company after the date of this Indenture and which, when
created, assumed or incurred, is specifically designated by the Company as
Senior Indebtedness for the purposes hereof in the instrument creating or
evidencing such Obligation or in the instrument creating or evidencing the
Company's liability with respect to the Obligation of another, and (c) any
increases, refundings, renewals, rearrangements or extensions of and
amendments, modifications and supplements to any indebtedness, liability or
obligation described in clause (a) or (b) above.
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Subsidiary:
The term "Subsidiary" shall mean any corporation of which the Company,
or the Company and one or more Subsidiaries, or any one or more Subsidiaries,
directly or indirectly own voting securities entitling the holders thereof to
elect a majority of the directors, either at all times or so long as there is
no default or contingency which permits the holders of any other class or
classes of securities to vote for the election of one or more directors.
Trustee:
The term "Trustee" shall mean Texas Commerce Bank National
Association, acting in its trust capacity, and, subject to the provisions of
Article Eight, shall also include its successors and assigns as Trustee
hereunder.
Trust Indenture Act of 1939:
The term "Trust Indenture Act of 1939" shall mean the Trust Indenture Act of
1939 as in force at the date of this Indenture as originally executed, except
as otherwise expressly provided.
U.S. Government Obligations:
The term "U.S. Government Obligations" means direct obligations of the
United States for the payment of which the full faith and credit of the United
States is pledged.
ARTICLE TWO
Issuance, Description, Execution, Registration
of Transfer and Exchange of Debentures
Section 2.01. Designation, Amount, Authentication and Delivery of
Debentures. The Debentures shall be designated as "7 1/4% Convertible
Subordinated Debentures due 2014". Debentures in the aggregate principal amount
not to exceed Thirty Million Dollars ($3O,OOO,OOO), upon the execution of this
Indenture, or from time to time thereafter, may be executed by the Company and
delivered to the Trustee for authentication, and the Trustee shall thereupon,
or from time to time thereafter, authenticate and deliver said Debentures to
and upon the written order of the Company, signed by its Chairman of the Board,
its President or a Vice President and by its Treasurer, Assistant Treasurer,
Secretary or an Assistant Secretary, without any further action by the Company.
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Section 2.02. Form of Debentures and Trustee's Certificate. The
Debentures and the Trustee's certificate of authentication shall be
substantially of the tenor and purport as in this Indenture above recited,
and may have such letters, numbers or other marks of identification
or designation and such legends or endorsements printed, lithographed or
engraved thereon as the officers executing the same may approve (execution
thereof to be conclusive evidence of such approval) and as are not inconsistent
with the provisions of this Indenture, or as may be required, as determined by
the Company, to comply with any law or with any rule or regulation made
pursuant thereto or with any rule or regulation of any national securities
exchange on which the Debentures may be listed, or to conform to usage. The
definitive Debentures shall be printed, lithographed or engraved or produced by
any combination of these methods or may be produced in any other manner
permitted by the rules of any national securities exchange on which the
Debentures may be listed, all as determined by the officers executing such
Debentures, as conclusively evidenced by their execution of such Debentures.
Section 2.03. Date and Denominations of Debentures: Pavment of Interest.
The Debentures shall be issuable as registered Debentures without coupons in
denominations provided for in the form of Debenture hereinbefore set forth. Each
Debenture shall be dated the date of its authentication, shall bear interest
from the applicable date, and shall be payable on the dates, and computed in
the manner, specified in the form of Debenture hereinbefore set forth.
The person in whose name a Debenture is registered at the close of business
on any record date (as hereinafter defined) with respect to any interest payment
date shall be entitled to receive the interest payable on such interest payment
date (subject to the provisions of Article Four or Article Four-A in the case of
any Debenture or Debentures, or portion thereof, redeemed on a date subsequent
to the record date and on or prior to such interest payment date), except if and
to the extent the Company shall default in the payment of the interest due and
payable on such interest payment date, in which case such defaulted interest
shall be paid to the persons in whose names outstanding Debentures are
registered at the closing of business on a subsequent special record date
established by notice given by mail by or on behalf of the Company to the
holders of Debentures not less than 15 days preceding such special record date,
which special record date shall be not more than 30 days nor less than 10 days
prior to the date of payment of such defaulted interest. The term "record
date" as used with respect to any regular interest payment date shall mean the
fifteenth day of the calendar month next preceding such interest payment date.
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Both principal of and premium, if any, and interest on the Debentures
shall be payable at the office or agency of the Company designated for that
purpose in the City of Houston, Texas or, at the option of the registered
holder, at the office or agency of the Company maintained for that purpose in
the Borough of Manhattan, The City of New York; provided, however, that interest
may be payable at the option of the Company by check mailed to the address of
the person entitled thereto as such address shall appear on the Debenture
Register.
Section 2.04. Execution of Debentures. The Debentures shall be executed
manually or by facsimile signatures in the name and on behalf of the Company by
its Chairman of the Board, its President or any of its Vice President under its
corporate seal (which may be printed, engraved or otherwise reproduced thereon,
by facsimile or otherwise) attested by the manual or facsimile signature of its
Secretary or an Assistant Secretary.
Only such Debentures as shall bear thereon a certificate of authentication
substantially in the form hereinabove recited, manually executed by the Trustee
or the Authenticating Agent of the Trustee, shall be entitled to the benefits of
this Indenture or be valid or obligatory for any purpose. Such certificate by
the Trustee or the Authenticating Agent of the Trustee upon any Debenture
executed by the Company shall be conclusive evidence that the Debenture so
authenticated has been duly authenticated and delivered hereunder.
If any officer of the Company who shall have (manually or by facsimile)
executed or attested any of the Debentures shall cease to be such officer before
the Debentures so signed shall have been authenticated and delivered by or on
behalf of the Trustee, or disposed of by the Company, such Debentures
nevertheless may be authenticated and delivered or disposed of as though the
person who executed such Debentures had not ceased to be such officer of the
Company; and any Debenture may be executed on behalf of the Company by such
persons as, at the actual date of the execution of such Debenture, shall be the
proper officers of the Company, although at the date of the execution of this
Indenture any such person was not such officer.
Section 2.05. Exchange and Registration of Transfer of Debentures.
The Debentures may be exchanged for a like aggregate principal amount of
Debentures of other authorized denominations. Debentures to be exchanged
shall be surrendered at the office or agency to be maintained by the
Company in accordance with the provisions of Section 5.02, and the
Company shall execute and the Trustee or the Authenticating Agent of the
Trustee shall authenticate and the Debenture Registrar shall register and
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deliver in exchange therefor the Debenture or Debentures which the
Debentureholder making the exchange shall be entitled to receive.
The Company shall keep or cause to be maintained at said office or agency
a register (herein sometimes referred to as the "Debenture Register") in which,
subject to such reasonable regulations as it may prescribe, the Company shall
register Debentures and shall register the transfer of Debentures as in this
Article Two provided. Such register shall be in written form or in any other
form capable of being converted into written form within a reasonable time. For
the purposes of registration, exchange or registration of transfer of the
Debentures, until otherwise designated by the Company, the Trustee shall
initially be designated as Debenture Registrar. Upon surrender for
registration of transfer of any Debenture at said office or agency, the Company
shall execute and the Trustee or the Authenticating Agent of the Trustee shall
authenticate and the Debenture Registrar shall register and deliver in the name
of the transferee or transferees a new Debenture or Debentures for an equal
aggregate principal amount. At all reasonable times, the Debenture Register
shall be open for inspection by the Trustee. No transfer of any Debenture shall
be valid unless made at said office or agency. The Trustee may at all times
conclusively rely on any certificates, reports or other information
delivered to it by the Debenture Registrar (if other than the Trustee) relating
to the principal amount of Debentures outstanding at any time and the registered
holders thereof.
All Debentures presented or surrendered for registration of transfer,
exchange, conversion, redemption or payment shall be accompanied by a
written instrument or instruments of transfer, in form satisfactory to the
Trustee or the Authenticating Agent of the Trustee duly executed by the
registered holder or his attorney duly authorized in writing.
No service charge shall be made for any exchange or registration of
transfer of Debentures, or issue of new Debentures in case of partial
redemption or conversion, but the Company or the Trustee may require payment
of a sum sufficient to cover any tax or other governmental charge that may be
imposed in relation thereto.
The Company shall not be required to register the transfer of or exchange
(i) any Debentures during a period of 15 days next preceding any selection of
Debentures to be redeemed, or (ii) any Debentures so selected, called or being
called for redemption in whole or in part, except the unredeemed portions of
Debentures to be redeemed in part.
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Section 2.06. Temporary Debentures. Pending the preparation of
definitive Debentures, the Company may execute and, upon written order of the
Company, the Trustee shall authenticate and deliver temporary Debentures
(printed, lithographed, typewritten or otherwise produced). Temporary Debentures
shall be of any authorized denomination, and substantially in the form of the
definitive Debentures, but with such omissions, insertions and variations as may
be appropriate for temporary Debentures, all as may be determined by the
officers of the Company, as conclusively evidenced by their execution of such
Debentures. Temporary Debentures may contain such reference to any provisions of
this Indenture as may be appropriate. Every temporary Debenture shall be
executed by the Company and authenticated by the Trustee upon the same
conditions and in substantially the same manner, and with the same effect, as
the definitive Debentures. The Company shall execute and deliver to the Trustee
definitive Debentures as soon as practicable, and thereupon any or all temporary
Debentures may be surrendered in exchange therefor at the office or agency to be
maintained by the Company for such purposes in the City of Houston, Texas or, at
the option of the registered holder, at the office or agency of the Company
maintained for that purpose in the Borough of Manhattan, The City of New York,
and the Trustee or the Authenticating Agent of the Trustee shall authenticate
and the Debenture Registrar shall register and deliver in exchange for such
temporary Debentures an equal aggregate principal amount of definitive
Debentures. Such exchange shall be made by the Company at its own expense and
without any charge therefor except that the Company or the Trustee may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in relation thereto. Until so exchanged, the temporary
Debentures shall be entitled to the same benefits under this Indenture as
definitive Debentures authenticated and delivered hereunder.
Section 2.07. Mutilated, Destroyed. Lost or Stolen Debentures. In case
any temporary or definitive Debenture shall become mutilated or be destroyed,
lost or stolen, the Company in its discretion may execute, and upon its request
the Trustee or Authenticating Agent shall authenticate and the Debenture
Registrar shall register and deliver, a new Debenture, in exchange and
substitution for the mutilated Debenture or in lieu of and in substitution for
the Debenture destroyed, lost or stolen. In every case the applicant for a
substituted Debenture shall furnish to the Trustee, such security or indemnity
as may be required by it to save each of the Company and the Trustee harmless,
and, in every case of destruction, loss or theft the applicant shall also
furnish to the Trustee evidence to its satisfaction of the destruction, loss or
theft of such Debenture and of the ownership thereof. The Trustee or
Authenticating Agent shall authenticate any such substituted Debenture and the
Debenture Registrar shall register and deliver the same. Upon the issuance of
any substituted Debenture, the Company or the Trustee may
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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 connected therewith. In case any Debenture which has matured or is
about to mature or has been called for redemption shall be mutilated or be
destroyed, lost or stolen, the Company may, instead of issuing a substitute
Debenture, pay or authorize the payment of the same (without surrender thereof
except in the case of a mutilated Debenture) if the applicant for such payment
shall furnish the Trustee with such security or indemnity as may be required by
it, to save each of the Company and the Trustee harmless, and, in the case of
destruction, loss or theft, evidence to the satisfaction of the Trustee of the
destruction, loss or theft of such Debenture and of the ownership thereof. If,
after delivery of such substituted Debenture or payment of a destroyed, lost or
stolen Debenture, a bona fide purchaser of the original Debenture in lieu of
which such substituted Debenture was issued presents for payment such original
Debenture, the Company and the Trustee shall be entitled to recover such
substituted Debenture (or such payment) from the person to whom it was delivered
or any person taking such substituted Debenture from such person, except a bona
fide purchaser, and shall be entitled to recover upon the security or indemnity
provided therefor to the extent of any loss, damage, cost or expense incurred
by the Company or the Trustee in connection therewith.
Every substituted Debenture issued pursuant to the provisions of this
Section 2.07 upon evidence that any Debenture is destroyed, lost or stolen
shall constitute an additional contractual obligation of the Company, whether
or not the destroyed, lost or stolen Debenture shall be found at any time, and
shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Debentures duly issued hereunder. All
Debentures shall be held and owned upon the express condition that the
foregoing provisions are exclusive with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Debentures, and shall preclude (to the
extent permitted by Law) any and all other rights or remedies with respect to
the replacement or payment of negotiable instruments or other securities
without their surrender.
Section 2.08. Cancellation of Surrendered Debentures. All Debentures
surrendered for payment, redemption, conversion, registration of transfer or
exchange, or delivered in satisfaction in whole or in part of any sinking fund
obligation, shall, if surrendered to the Company, the Trustee or any paying
agent, be delivered to the Debenture Registrar and promptly cancelled by it, or,
if surrendered to the Debenture Registrar, shall be promptly cancelled by it,
and no Debentures shall be issued in lieu thereof except as expressly permitted
by any of the provisions of this Indenture. The Debenture Registrar shall
safekeep such cancelled
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Debentures in accordance with its normal retention policies and
thereafter, on request of the Company, the Debenture Registrar shall deliver
to the Company cancelled Debentures held by the Debenture Registrar;
provided, however, that the Debenture Registrar may at any time destroy any
cancelled Debentures and deliver to the Company and to the Trustee a certificate
of such destruction. If the Company shall acquire any of the Debentures,
however, such acquisition shall not operate as a redemption or satisfaction of
the indebtedness represented by such Debentures for the purposes of this
Indenture unless and until the same are delivered or surrendered to the
Debenture Registrar for cancellation.
ARTICLE THREE
Subordination of Debentures
Section 3.01. Agreement of Subordination. The Company irrevocably
covenants and agrees, and each holder of Debentures, by his acceptance
thereof, likewise irrevocably covenants and agrees, that the payment of the
principal of (including any sinking fund payment) and premium, if any, and
interest on each and all of the Debentures is hereby expressly subordinated, to
the extent and in the manner hereinafter set forth, to the prior payment and/or
cancellation (as shall be appropriate) in full of all Senior Indebtedness. The
provisions of this Article Three are made for the benefit of the holders of
Senior Indebtedness, and such holders shall, at any time, be entitled to
enforce such provisions against the Company or any Debentureholders. No holder
of any Senior Indebtedness shall be deemed to owe any fiduciary duty or any
other obligation to the Trustee or any holder of any of the Debentures now or at
any time hereafter.
Section 3.02. Pavment Over of Proceeds Upon Dissolution. etc.
(a) In the event of (x) any insolvency, bankruptcy, receivership,
liquidation, reorganization, readjustment, composition or other similar
proceeding relative to the Company or its creditors or its property, (y) any
proceeding for voluntary liquidation, dissolution or other winding up of the
Company whether or not involving insolvency or bankruptcy proceedings, and (z)
any assignment for the benefit of creditors or any marshalling of the assets of
the Company, then and in any such event,
(i) all Senior Indebtedness (including interest accruing on such Senior
Indebtedness after the date of filing a petition or other action commencing any
such proceeding) shall first be paid in full, or have provision made for payment
and/or cancellation (as shall be appropriate) in full to the reasonable
satisfaction of the holder of any
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Senior Indebtedness, before the holders of the Debentures are entitled to
receive any payment on account of the principal of (including any sinking fund
payment) or premium, if any, or interest on the indebtedness evidenced by
the Debentures, and
(ii) any payment or distribution of assets of the Company of any kind or
character, whether in cash, property or securities (other than securities of
the Company or any other corporation provided for by a plan of reorganization
or readjustment, provided the rights of the holders of Senior Indebtedness are
not altered by such reorganization or readjustment, the payment of which is
subordinate, at least to the extent provided in this Article Three with respect
to the Debentures, to the payment of all Senior Indebtedness at the time
outstanding and to the payment of all securities issued in exchange therefor to
the holders of Senior Indebtedness at the time outstanding), to which the
holders of the Debentures would be entitled except for the provisions of this
Article Three, shall be paid by the liquidating trustee or agent or other
person making such payment or distribution, whether a trustee in bankruptcy, a
receiver or liquidating trustee or other trustee or agent, directly to the
holders of Senior Indebtedness or their representative or representatives or to
the trustee or trustees under any indenture under which any instruments
evidencing any of such Senior Indebtedness may have been issued, ratably
according to the aggregate amounts remaining unpaid on account of the
principal of and premium, if any, and interest on, the Senior Indebtedness held
or represented by each, to the extent necessary to make payment and/or to cancel
(as may be appropriate) in full of all Senior Indebtedness remaining unpaid
and/or outstanding (as the case may be), after giving effect to any concurrent
payment or distribution, or provision therefor, to the holders of such Senior
Indebtedness.
(b) No payments on account of principal of (including any sinking fund
payment) or premium, if any, or interest on the Debentures shall be made unless
full payment of amounts then due for principal of (including any sinking fund
payment), premium, if any, and interest on all Senior Indebtedness has been made
and/or cancelled (as may be appropriate) or otherwise duly provided for to the
reasonable satisfaction of each holder of any Senior Indebtedness.
(c) In the event and during the continuation of any default or event of
default in respect of any Senior Indebtedness or under any agreement under
which any Senior Indebtedness was issued continuing beyond the period of grace,
if any, specified in such agreement, then, unless and until such default shall
have been cured or waived or shall have ceased to exist, no payment shall be
made by the Company and, except as provided in Section 3.06, no application of
funds shall be made by the
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Trustee with respect to the principal of (or premium, if any) or interest on the
Debentures or as a sinking fund for the Debentures except that the Company's
obligation to make sinking fund payments may be reduced in accordance with the
provisions of Section 4.05.
(d) In the event that, notwithstanding the foregoing, any payment or
distribution of assets of the Company of any kind or character, whether in cash,
property or securities (other than securities of the Company or any other
corporation provided for by a plan of reorganization or readjustment, provided
that the rights of the holders of Senior Indebtedness are not altered by such
reorganization or readjustment, the payment of which is subordinate, at least
to the extent provided in this Article Three with respect to the Debentures, to
the payment of all Senior Indebtedness at the time outstanding and to the
payment of all securities issued in exchange therefor to the holders of Senior
Indebtedness at the time outstanding), shall be received by the Trustee or the
holders of the Debentures during the continuance of any event specified in
Sections 3.02(a), 3.02(b) or 3.02(c) prohibiting such payment and before all
Senior Indebtedness is paid in full and/or cancelled (as may be appropriate),
or provision made for its payment to the reasonable satisfaction of each
holder of any Senior Indebtedness, such payment or distribution (subject to
Sections 3.04 and 3.06) shall be immediately paid by the Trustee or such
holders, as the case may be, over to the holders of Senior Indebtedness
(or their representative or representatives or to the trustee or trustees
under any indenture under which any instruments evidencing any of such Senior
Indebtedness may have been issued), upon their written request received
by the Trustee, remaining unpaid or unprovided for as provided in the
foregoing subparagraph (ii) of paragraph (a) of this Section 3.02, for
application to the payment of such Senior Indebtedness until all such Senior
Indebtedness shall have been paid in full, after giving effect to any concurrent
payment or distribution, or provision therefor, to the holders of such Senior
Indebtedness.
(e) Subject to the payment in full and/or cancellation (as may be
appropriate) of all Senior Indebtedness and the irrevocable and complete
termination of all commitments and obligations to issue or fund any Senior
Indebtedness (and not before such time), the holders of the Debentures shall be
subrogated equally and ratably with the holders of all Pari Passu Debt to all
rights of the holders of Senior Indebtedness to receive payments or
distributions of cash, property or securities of the Company applicable to the
Senior Indebtedness until the principal of (including any sinking fund payment)
and premium, if any, and interest on the Debentures shall be paid in full; and,
for purposes of such subrogation, no payments or distributions to the holders
of Senior Indebtedness of cash, property or securities distributable or paid
over
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to the holders of Senior Indebtedness under the provisions hereof to which the
holders of Debentures or Pari Passu Debt, or any trustee of Pari Passu Debt,
would be entitled except for the provisions of this. Article Three shall, as
between the Company, its creditors other than the holders of Senior
Indebtedness, and the holders of the Debentures or of Pari Passu Debt, be
deemed to be a payment by the Company to or on account of the Senior
Indebtedness, it being understood that the provisions of this Article
Three are and are intended solely for the purpose of defining the relative
rights of the holders of the Debentures, the holders of Pari Passu Debt and
the holders of the Senior Indebtedness.
(f) Nothing contained in this Article Three or elsewhere in this
Indenture or in the Debentures is intended to or shall impair, as
between the Company, its creditors other than the holders of Senior
Indebtedness (and the persons and entities committed or obligated to
issue or fund any Senior Indebtedness), and the holders of the
Debentures, the obligation of the Company, which is absolute and
unconditional, to pay to the holders of the Debentures the principal of
(including any sinking fund payment) and premium, if any, and interest on the
Debentures, as and when the same shall become due and payable in accordance
with their terms, or is intended to or shall affect the relative rights of
the holders of the Debentures and other creditors of the Company other than
the holders of the Senior Indebtedness (and the persons and entities committed
or obligated to issue or fund any Senior Indebtedness), nor shall anything
herein or in the Debentures prevent the Trustee or the holder of any
Debenture from exercising all remedies otherwise permitted by applicable law
upon the happening of any Event of Default under this Indenture, subject to the
rights, if any, under this Article Three of the holders of Senior Indebtedness
(and the persons and entities committed or obligated to issue or fund any
Senior Indebtedness) in respect of cash, property or securities of the Company
received upon the exercise of any such remedy.
(g) The Company shall give prompt written notice to the Trustee of any
insolvency, bankruptcy, liquidation, reorganization, readjustment,
composition, dissolution, assignment, marshalling of assets or similar
proceedings of the Company within the meaning of this Section 3.02. Upon any
payment or distribution of assets of the Company referred to in this Article
Three, the Trustee (subject as between the Trustee and the holders of the
Debentures to the provisions of Sections 8.01 and 8.02) and the holders of the
Debentures shall be entitled to rely upon any order or decree made by any court
of competent jurisdiction in which such dissolution, winding up, liquidation or
reorganization proceedings are pending or a certificate of the liquidating
trustee or agent or other person making any distribution to the Trustee or to
the holders of the
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Debentures for the purpose of ascertaining the persons entitled to par-
ticipate in such distribution, the holders of the Senior Indebtedness and
other indebtedness of the Company, the amount thereof or payable thereon;
the amount or amounts paid or distributed thereon and all other facts
pertinent thereto or to this Article Three. If the Trustee determines,
in its sole discretion, that further evidence is required with respect to
the right of any person as a holder of Senior Indebtedness to participate
in any payment or distribution pursuant to this Section 3.02, the Trustee
may request such person to furnish evidence to the reasonable satisfac-
tion of the Trustee as to the amount of Senior Indebtedness held by such
person, as to the extent to which such person is entitled to participate
in such payment or distribution, and as to other facts pertinent to the
rights of such person under this Section 3.02, and if such evidence is
not furnished, the Trustee may defer any payment to such person pending
judicial determination as to the right of -person to receive such
payment. The Trustee shall be entitled to rely on the delivery to it of
a written notice by a person representing himself, herself or itself, to
be a holder of Senior Indebtedness (or a trustee on behalf of such
holder) to establish that notice pursuant to Section 3.06 has been given
by a holder of Senior Indebtedness or a trustee on behalf of any such
holder. With respect to the holders of Senior Indebtedness; the Trustee
undertakes to perform or to observe only such of its covenants and
obligations as are set forth in this Article Three, and no implied
covenants or obligations with respect to the holders of Senior Indebtedness
shall be read into this Indenture against the Trustee. The Trustee shall not be
deemed to owe any fiduciary duty to the holders of Senior Indebtedness and in
the absence of receipt of written request as provided for herein shall not be
Liable to any such holder if it shall pay over and distribute to the holders
of the Debentures or to the Company or to any other person, money or assets
to which any holder of Senior Indebtedness shall be entitled pursuant to this
Article Three or otherwise.
(h) Without notice to or the consent of the holders of the Debentures or
the Trustee, the holders of the Senior Indebtedness or the persons or entities
committed or obligated to issue or fund any Senior Indebtedness may at any time
and from time to time, without impairing or releasing the subordination herein
made, change the manner, place or terms of payment, or change or extend the
time of payment of or renew or alter the Senior Indebtedness or the commitment
or obligation to issue or fund any Senior Indebtedness, or amend or supplement
in any manner any instrument evidencing the Senior Indebtedness or the
commitment or obligation to issue or fund any Senior Indebtedness, any
agreement pursuant to which the Senior Indebtedness was issued or incurred or
any instrument securing or relating to the Senior Indebtedness or the
commitment or obligation to issue or fund any Senior Indebtedness;
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release any person liable in any manner for the payment or collection of the
Senior Indebtedness; exercise or refrain from exercising any rights in respect
of the Senior Indebtedness against the Company or any other person; apply any
money or other property paid by any person or released in any manner to the
Senior Indebtedness; accept or release any security for the Senior
Indebtedness; sell, exchange, release or otherwise deal with any property
pledged, mortgaged or otherwise securing Senior Indebtedness; or exercise or
refrain from exercising any rights against the Company or any other person; all
without thereby impairing in any respect the rights of such holders of Senior
Indebtedness as provided in this Article Three.
(i) The Trustee, any Authenticating Agent, any paying or conversion agent,
or any Debenture Registrar may be holders of Senior Indebtedness and shall be
entitled to all the rights set forth in this Article Three in respect of any
Senior Indebtedness at any time held by it, to the same extent as any holder
of Senior Indebtedness, and nothing in this Indenture shall deprive the
Trustee, any Authenticating Agent, any paying agent, any Debenture Registrar
or any conversion agent of any of its rights as such holder. Nothing in this
Article Three shall apply to claims of or payments to the Trustee under or
pursuant to Section 8.06.
Section 3.03. No Waiver of Subordination Provision. No right of any
present or future holder of any Senior Indebtedness of the Company to enforce
subordination, as herein provided, shall at any time in any way be prejudiced
or impaired by any act or failure to act on the part of the Company or by any
act or failure to act, in good faith, by any such holder, or by any
noncompliance by the Company with the terms, provisions and covenants of this
Indenture, regardless of any knowledge thereof any such holder may have or be
otherwise charged with.
Section 3.04. Payments to Debentureholders. Nothing contained in this
Article Three or elsewhere in this Indenture, or in any of the Debentures,
shall, however, (a) affect the obligation of the Company to make, or prevent
the Company from making, at any time, except as provided in Section 3.02,
payments of principal of (including any sinking fund payment) or premium, if
any, or interest on the Debentures or (b) prevent the application by the
Trustee of any moneys deposited with it hereunder by the Company to the
payment of or on account of the principal of (including any sinking fund
payment) or premium, if any, or interest on the Debentures if the Trustee did
not have written notice of any event prohibiting the payment of such principal
or interest on or prior to the third business day preceding the date such
payment is due.
Section 3.05. Authorization of Debentureholders to Trustee to Effect
Subordination. Each holder of Debentures by his acceptance
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thereof irrevocably authorizes and directs the Trustee in his behalf to take
such action as may be necessary or appropriate to effectuate the subordination
provided in this Article Three and appoints the Trustee his attorney-in-fact
for such purpose.
Section 3.06. Knowledge of Trustee and Paying Agent.
Notwithstanding the provisions of this Article Three or any other provisions of
this Indenture, the Trustee shall not be charged with notice or knowledge of
the existence of any Senior Indebtedness, or of any default or event of default
with respect to any Senior Indebtedness, or the existence of any facts which
would prohibit the making of any payment of moneys to or by the Trustee, or the
taking of any other actions by the Trustee, unless and until the Trustee shall
have received written notice at the corporate trust office thereof from the
Company or a holder (established to be such a holder to the reasonable
satisfaction of the Trustee), or a trustee or similar representative of any
class, of Senior Indebtedness; and, prior to the receipt of any such written
notice, the Trustee shall be entitled to assume that no such default or event of
default has occurred and that no such facts exist; provided, however, that,
unless on the third business day prior to the date upon which by the terms
hereof any such moneys may become payable for any purpose or any other action
should be taken (including, without limitation, the payment of either the
principal of (including any sinking fund payment) or the premium, if any, or
interest on any Debenture) the Trustee shall have received the written notice
provided for in this Section 3.06, then, anything herein contained to the
contrary notwithstanding, the Trustee shall have full power and authority to
receive such moneys and apply the same to the purpose for which they were
received, and shall not be affected by any notice to the contrary which may be
received by it on or after such date.
Section 3.07. All Provisions of Indenture Qualified by Article Three.
Notwithstanding anything herein contained to the contrary, all the provisions
of this Indenture shall, except as otherwise provided herein, be subject to
the provisions of this Article Three, so far as the same may be applicable
thereto.
Section 3.08. Applicability of Article Three to Paying Agents. In case at
any time any paying agent other than the Trustee shall have been appointed by
the Company and be then acting hereunder, the term "Trustee" as used in this
Article Three shall in such case (unless the context shall otherwise require)
be construed as extending to and including such paying agent within its meaning
as fully for all intents and purposes as if such paying agent were named in
this Article Three in place of the Trustee.
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ARTICLE FOUR
Redemption of Debentures -
Sinking Fund
Section 4.01. Redemption Prices - Sinking Fund and Voluntary Redemptions.
(a) The Debentures shall be redeemed in part on June 1, 1999, and on each June 1
thereafter to and including June 1, 2013, through the operation of the sinking
fund provided for in Section 4.04, at 100% of the principal amount thereof (the
"sinking fund redemption price"), together with accrued interest to the date
fixed for redemption.
(b) Subject to the provisions of Article Three hereof, the Company may, at
its option, otherwise than through the operation of the sinking fund provided
for in Section 4.04, redeem all or from time to time any part of the Debentures
on any date on or after June 1, 1991 and prior to maturity, upon notice as,set
forth in Section 4.02 and at the optional redemption prices set forth in the
form of Debenture hereinabove recited, together with accrued interest to the
date fixed for redemption.
Section 4.02. Notice of Redemption: Selection of Debentures. If the
Company shall desire to exercise the right to redeem all or any part of the
Debentures pursuant to Section 4.01(b), it shall fix a date for redemption and
shall mail a notice of such redemption at least 30 and not more than 60 days
prior to the date fixed for redemption to the holders of Debentures so to be
redeemed as a whole or in part at their last address as the same appears on the
Debenture Register and to the Trustee. Such mailing shall be by first class
mail. The notice if mailed in the manner herein provided shall be conclusively
presumed to have been duly given, whether or not the holder receives such
notice. In any case, failure to give such notice by mail or any defect in the
notice to the holder of any Debenture designated for redemption in whole or in
part shall not affect the validity of the proceedings for the redemption of any
other Debenture.
Each such notice of redemption shall be given in the name of the Company
and shall specify the date fixed for redemption, the redemption price at which
Debentures are to be redeemed, the place of payment, that payment will be made
upon presentation and surrender of such Debentures, that interest accrued to the
date fixed for redemption will be paid as specified in said notice, that on and
after said date interest thereon or on the portions thereof to be redeemed will
cease to accrue and that the right to convert any Debenture or portion thereof
into Common Stock will terminate at the close of business on the fifth day prior
to the date fixed for redemption. If any Debenture is to be redeemed in part
only, the notice of redemption shall state the portion of the principal amount
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thereof to be redeemed and shall state that on and after the date fixed for
redemption, upon surrender of such Debenture, a new Debenture or Debentures
in aggregate principal amount equal to the unredeemed portion thereof will be
issued without charge to the holder. No Debenture of the denomination of
$1,000 shall be redeemed in part and Debentures may be redeemed in part only in
multiples of $1,000.
If less than all the Debentures are to be redeemed, the Company will
notify the Trustee and the Debenture Registrar not less than 60 days (or such
lesser number of days as the Trustee and the Debenture Registrar shall
approve) prior to the date fixed for redemption as to the aggregate principal
amount of Debentures to be redeemed, and thereupon the Trustee shall select,
on pro rata basis or by lot, the Debentures or portions thereof to be redeemed,
and shall as promptly as practicable notify the Company and the Trustee of the
Debentures or portions thereof so selected. For the purposes of such
selection, the Debenture Registrar shall close the Debenture Register for the
purpose of exchange and transfer of Debentures, for a period not exceeding
five days prior to such selection.
Prior to the date fixed for redemption specified in the notice of
redemption given as provided in this Section, the Company will deposit with
the Trustee or with the paying agent an amount of money sufficient to redeem on
the date fixed for redemption all the Debentures so called for redemption at
the appropriate redemption price, together with accrued interest to the date
fixed for redemption.
Section 4.03. Payment of Debentures Called for Redemption. If notice of
redemption has been given as above provided, the Debentures or portions of
Debentures with respect to which such notice has been given shall become due
and payable on the date and at the place stated in such notice at the
applicable redemption price, together with interest accrued to the date
fixed for redemption, and on and after said date (unless the Company shall
default in the payment of such Debentures or portions thereof at such
redemption price, together with interest accrued to said date) interest on the
Debentures and portions of Debentures so called for redemption shall cease to
accrue, and such Debentures and portions of Debentures shall be deemed not to
be outstanding hereunder and shall not be entitled to any benefit under this
Indenture except to receive payment of such redemption price, together with
accrued interest to the date fixed for redemption. On presentation and
surrender of such Debentures at the place of payment in said notice specified,
the said Debentures or the specified portions thereof shall be paid and
redeemed by the Company at the applicable redemption price, together with
interest accrued thereon to the date fixed for redemption.
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Upon presentation and surrender of any Debentures redeemed in part only,
the Company shall execute and the Trustee or Authenticating Agent shall
authenticate and the Debenture Registrar shall register and deliver to the
holder thereof, at the expense of the Company, a new Debenture or Debentures, of
authorized denominations, in aggregate principal amount equal to the unredeemed
portion of the Debenture so presented and surrendered.
Section 4.04. Sinking Fund. As and for a mandatory sinking fund for the
retirement of Debentures and so long as any of the Debentures remain outstanding
and unpaid, the Company shall pay to the Trustee an amount in cash, except as
provided in Section 4.05, not less than one business day before June 1, 1999 and
before June 1 in each year thereafter to and including June 1, 2013, equal to 5%
of the aggregate principal amount of Debentures theretofore authenticated and
delivered under this Indenture (excluding Debentures authenticated and delivered
in exchange for or in lieu of the Debentures), or such lesser amount equal to
the principal amount of the Debentures then outstanding. The last date on which
a payment under this Section 4.04 may be made in each year is herein referred to
as the "sinking fund payment date".
All cash paid to the Trustee pursuant to this Section 4.04 shall be applied
in accordance with the provisions of this Article Four.
Section 4.05. Credits Against Sinking Fund. (a) In lieu of making all or
any part of any sinking fund payment as required by Section 4.04 hereof in cash,
the Company may (x) take credit for the principal amount of and deliver to the
Debenture Registrar for cancellation Debentures theretofore issued and acquired
by the Company at any time prior to the April 1 preceding the due date of such
payment and not theretofore made the basis for the reduction of a sinking fund
payment, (y) take credit for the principal amount of any Debentures theretofore
redeemed pursuant to the provisions of this Article Four (otherwise than by
means of a mandatory sinking fund payment) or Article Four-A or which shall have
been duly called for redemption (otherwise than through the operation of the
mandatory sinking fund) or for which a Notice of Election has been delivered to
the Company pursuant to Section 4 A.04 and the redemption price of which,
together with accrued interest thereon, shall have been deposited in trust for
that purpose, as provided in this Article Four or Article Four-A, as the case
may be, and not theretofore made the basis of the reduction of a sinking fund
payment, or (z) take credit for the principal amount of Debentures surrendered
for conversion at any time prior to the April 1 preceding the due date for such
payment in accordance with the provisions of Article Fourteen, and not
theretofore made the basis of the reduction of a sinking fund payment; and in
each such case the amount of cash required by Section 4.04 to be paid to the
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Trustee shall be reduced to the extent of the principal amount of the
Debentures so delivered or so redeemed or so called for redemption or so
converted.
(b) Anything contained in this Article Four to the contrary
notwithstanding, the amount of cash payable to the Trustee pursuant to Section
4.04 hereof shall be reduced by the aggregate sinking fund redemption price of
Debentures called for redemption under Section 4.09 on the next sinking fund
payment date but which are converted as provided in Article Fourteen hereof
prior to such sinking fund payment date. The Company shall deliver to the
Trustee, together with or in Lieu of the cash required to be delivered to the
Trustee pursuant to Section 4.04, an Officers' Certificate with respect to
such conversions of Debentures called for redemption pursuant to the operation
of the sinking fund, together with the Debentures so converted. The Trustee
shall promptly deliver a copy of such Officer's Certificate to the Debenture
Registrar, together with such Debentures for cancellation in accordance with
Section 4.11.
Section 4.06. Certificates and Debentures to be Delivered to the
Trustee. On or before April 1 of each year in which the Company is obligated
to make a sinking fund payment (unless a shorter notice shall be accepted by
the Trustee and the Debenture Registrar), the Company shall:
(a) Deliver to the Trustee and the Debenture Registrar an Officers'
Certificate stating:
(i) the manner in which the Company will fulfill its sinking fund
obligation under this Article Four for such year;
(ii) the amount of cash, if any, which the Company will (subject to
Section 4.05(C)) pay to the Trustee or any paying agent, as and for sinking
fund payments, on or before the next sinking fund payment date;
(iii) the principal amount of Debentures, if any, which pursuant to
clause (x) of Section 4.05(a), the Company will surrender to the Debenture
Registrar for cancellation in Lieu of the payment of cash, and that such
Debentures were therefore issued and acquired by the Company prior to said
April 1 and have not therefore been made the basis for the reduction of a
sinking fund payment;
(iv) the principal amount of Debentures, if any, for which credit is
claimed pursuant to clause (y) of Section 4.05(a),
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together with such facts as shall demonstrate that the Company is entitled to
such credit; and
(v) the principal amount of Debentures, if any, for which credit is claimed
pursuant to clause (z) of Section 4.05(a), together with such facts as shall
demonstrate that the Company is entitled to such credit.
(b) Deliver to the Trustee the Debentures, if any, referred to in clauses
(iii) and (v) of the Officers' Certificate given pursuant to this Section 4.06.
The Trustee shall promptly deliver a copy of such Officer's Certificate to the
Debenture Registrar, together with such Debentures for cancellation in
accordance with Section 4.11.
Section 4.07. Cash to be Delivered to the Trustee. At least one business
day prior to the sinking fund payment date of each year in which the Company is
obligated to make a sinking fund payment, the Company shall pay to the Trustee
the amount of cash, if any, payable on or before such sinking fund payment date,
after giving credit pursuant to Section 4.05 for Debentures previously acquired,
redeemed, called for redemption or converted, as evidenced by the certificates
delivered pursuant to Sections 4.05(b) and 4.06, together with a sum, in cash,
equal to all interest accrued to the date fixed for redemption of Debentures to
be redeemed on such sinking fund payment date, after taking into account in the
calculation of such interest the giving of such credit.
Section 4.08. Application of Sinking Fund Payments. The Trustee shall,
as soon as practicable after the receipt of the certificate delivered pursuant
to Section 4.06, take the action herein specified to call for redemption on the
next June 1, at 100% of the principal amount thereof together with accrued
interest to the date fixed for redemption, of a sufficient principal amount of
Debentures to absorb, as nearly as may be practicable, the amount of any unused
balance of any preceding sinking fund payments made in cash plus the amount of
cash which, as indicated in such certificate, the Company will pay to the
Trustee, as and for sinking fund payments, on or before the next succeeding
sinking fund payment date; provided, however, that, if such amount does not in
the aggregate exceed $1OO,OOO, the Trustee shall not take such action except on
request of the Company (made at the time of delivery of such certificate) and,
in the absence of any such request, such moneys shall be retained by the
Trustee. Subject to the preceding proviso, the Trustee shall apply the amount
of any cash sinking fund payment to the redemption of Debentures on the
appropriate sinking fund redemption date.If, after any sinking fund payment
date, the amount of cash in the hands of the Trustee in the sinking fund which
is not required for payment of
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Debentures previously called for redemption or purchased through operation of
the sinking fund is $100,000 or Less, such moneys, upon request of the Company,
shall be applied by the Trustee on a best efforts basis prior to the next
succeeding April 1 to the purchase of Debentures, by public or private purchase
in the open market or otherwise, at prices (excluding accrued interest and
brokerage commissions, funds for which shall be supplied by the Company from
sources other than the sinking fund) not exceeding the sinking fund redemption
price. Any and all sinking fund moneys held by the Trustee on June 1, 2014, and
not held for the payment or redemption of particular Debentures shall be applied
by the Trustee, together with other moneys, if necessary, to be deposited
sufficient for the purpose, to the payment of the principal of the Debentures at
maturity.
Section 4.09. Manner of Redeeming Debentures. The Debentures to be
redeemed from time to time as in Sections 4.01(b), 4.04 and 4.08 provided shall
be selected by the Trustee for redemption in the manner provided in Section 4.02
and notice thereof shall be given to the Company and the Debenture Registrar,
and the Company hereby irrevocably authorizes the Trustee, in the name of and at
the expense of the Company, to give notice on behalf of the Company of the call
of such,Debentures, all in the manner and with the effect in this Article Four
specified, except that, with respect to redemptions pursuant to Section 4.04, in
addition to the matters required to be included in such notice by Section 4.02,
such notice shall also state that the Debentures therein designated for
redemption are to be redeemed through operation of the sinking fund. The
Trustee shall cause such Debentures to be so redeemed and paid in accordance
with such notice in the manner and with the effect provided in Sections 4.02 and
4.03.
Section 4.10. Sinking Fund Moneys to be held as Security During
Continuation of Default; Exceptions. The Trustee shall not redeem any Debenture
with sinking fund moneys or mail any notice of redemption of Debentures by
operation of the sinking fund during the continuance of any default in payment
of interest on the Debentures when due or of any Event of Default, except that
if the notice of redemption of any Debentures shall theretofore have been mailed
in accordance with the provisions hereof, the Trustee shall redeem such
Debentures if cash sufficient for that purpose shall be deposited with the
Trustee for that purpose in accordance with the terms of this Article Four.
Except as aforesaid, any moneys in the sinking fund at the time when any such
default or Event of Default shall occur and any moneys thereafter paid into the
sinking fund shall, during the continuance of such default or Event of Default,
be held as security for the payment of all the Debentures; provided, however,
that in case such default or Event of
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Default shall have been cured or waived as provided herein, such moneys shall
thereafter be applied pursuant to the provisions of Section 4.08.
Section 4.11. Cancellation and Destruction of Redeemed Debentures. All
Debentures surrendered to or purchased by the Trustee or any paying agent,
pursuant to the provisions of this Article Four or Article Four-A, shall be
delivered to the Debenture Registrar and forthwith cancelled by it, and evidence
of such cancellation shall be furnished to the Trustee, and thereafter held or
disposed of in accordance with Section 2.08.
ARTICLE FOUR-A
Redemption of Debentures; Holder's Option
Section 4A.01 Right to Redemption. In the event that a Redemption Even
shall have occurred, then subject to the terms and conditions of this Article
Four-A each holder of Debentures shall have the right, at the holder's option,
to require the Company to redeem all or any portion (equal to $1,000 or any
integral multiple thereof) of the holder's Debentures for cash at the principal
amount thereof together in each case with accrued interest thereon to the
Redemption Date.
The "Redemption Date" shall be the ninetieth (90th) day after the date on
which a Redemption Event shall have occurred.
A "Redemption Event" shall be deemed to have occurred upon the happening
of any of the following events:
(a) Any person or group (within the meaning of section 13(d) (3) of
the Exchange Act), together with any affiliates and associates of any
thereof, shall beneficially own (within the meaning of Rule 13d-3 under the
Exchange Act) at least a majority of the total voting power of all classes
of capital stock of the Company entitled to vote generally in the election
of directors of the Company; or
(b) The Company, directly or indirectly, consolidates with, merges
with or into, or sells, leases or conveys all or substantially all its
assets to any other Person in a transaction pursuant to which all or
substantially all of the Company's Common Stock shall be exchanged for,
converted into, acquired for or constitute the right to receive
consideration less than 90% of which (in terms of value) is common stock
which is (or, upon consummation of or immediately following such
transaction or event, will be) listed on a national securities exchange or
approved for quotation
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in the NASDAQ National Market System or any successor to such system.
Notwithstanding the right of the holders of the Debentures to require the
Company to redeem the Debentures as described above, the Company shall not be
obligated to redeem any Debenture at any time when the subordination provisions
of the Debentures would not permit the Company to make a payment of principal,
premium or interest on the Debentures. Notwithstanding the provisions of this
Article Four-A, the Trustee shall not be charged with notice or knowledge of the
existence of any Redemption Event unless and until the Trustee shall have
received written notice thereof at the corporate trust office from the Company
or a Debentureholder; and, prior to the receipt of any such written notice, the
Trustee shall be entitled to assume that no such Redemption Event has occurred.
Section 4A.02 Applicability of Article. Redemption of Debentures in
accordance with this Article Four-A shall be at the election of the holder
thereof and shall be made in accordance with the provisions of this Article.
Section 4A.03 Notice of Redemption Event. Unless the Company shall have
theretofore called all the outstanding Debentures for redemption pursuant to
Article Four, notice of the occurrence of a Redemption Event shall be given by
first class mail, postage prepaid, mailed not more than ten (10) days after the
occurrence of such Redemption Event, to each holder of Debentures at his address
appearing in the Debenture Register and to the Trustee at its corporate trust
office, but failure to give such notice by mailing in the manner herein provided
to the holder of any Debenture, or any defect in the notice to any holder, shall
not affect the validity of the proceedings for the redemption of any other
Debenture.
All such notices shall state:
(a) the event constituting the Redemption Event;
(b) the Redemption Date;
(c) that the redemption price will be the principal amount of the
Debentures a holder elects to redeem, plus accrued interest thereon;
(d) that on the Redemption Date the redemption price will become due
and payable upon each Debenture with respect to which a
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holder has elected redemption, and that interest thereon shall cease to
accrue on and after such date;
(e) the place or places where such Debentures are to be surrendered
for payment of the redemption price;
(f) the Conversion Price then in effect, the date on which the right
to convert the principal amount of the Debentures to be redeemed will
terminate and the place or places where such Debentures may be surrendered
for conversion; and
(g) a redemption election by a holder shall be irrevocable.
Notice of a Redemption Event shall be given by the Company, or by the Trustee at
the Company's written request in the name and at the expense of the Company.
No failure of the Company to give the foregoing notice shall limit any
Debentureholder's right to require the redemption of Debentures pursuant to this
Article Four-A.
Section 4A.04 Notice of Election. A holder of Debentures electing to
require redemption of all or any portion of such Debentures shall make such
election by delivering to the office or agency to be maintained by the Company
pursuant to Section 5.02 not later than the fifth (5th) day prior to the
Redemption Date a validly executed Notice of Election ("Notice of Election")
setting forth the name of the Debentureholder, the principal amount of the
Debentures, or portions thereof, with respect to which an election to require
redemption is being made, and a statement that the election to require
redemption is being made thereby. Such Notice of-Election shall be irrevocable.
Section 4A.05 Deposit of Funds. On or prior to the Redemption Date, the
Company shall deposit with the Trustee an amount of money in same day funds
sufficient to pay the principal amount of, and (except if the Redemption Date
shall be on a June 1 or December 1) accrued interest on, all the Debentures with
respect to which properly completed and validly executed Notices of Election
shall have been delivered pursuant to Section 4A.04.
Section 4A.06 Debentures Payable on Redemption Date. The Debentures with
respect to which Debentureholders shall have elected to require redemption
shall, on the Redemption Date, become due and payable at the redemption price as
set forth in Section 4A.01, and from and after such date (unless the Company
shall default in the payment of the redemption price) such Debentures shall
cease to bear interest. Upon
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surrender of any Debenture for redemption in accordance with any Notice of
Election, such Debenture shall be redeemed by the Company at the redemption
price.
If any Debenture to be redeemed shall not be so paid upon surrender thereof
for redemption, the principal shall, until paid, bear interest from the
Redemption Date at the rate borne by the Debenture.
Section 4A.07 Debentures Redeemed in Part. Any Debenture that is to be
redeemed only in part shall be surrendered at any office or agency of the
Company designated for that purpose pursuant to Section 5.02 (with due
endorsement by, or a written instrument of transfer in form satisfactory to the
Trustee duly executed by, the holder thereof or his attorney duly authorized in
writing), and the Company shall execute, and the Trustee shall authenticate and
make available for delivery to the holder of such Debenture without service
charge, a new Debenture or Debentures, of any authorized denomination as
requested by such Debentureholder, in aggregate principal amount equal to and in
exchange for the unredeemed portion of the principal of the Debenture so
surrendered.
For all purposes of this Article Four-A, unless the context otherwise
requires, all provisions relating to the redemption of Debentures shall relate,
in the case of any Debenture redeemed or to be redeemed only in part, to the
portion of the principal amount of such Debentures that has been or is to be
redeemed.
ARTICLE FIVE
Particular Covenants of the Company
Section 5.01. Payment of Principal, Premium and Interest on Debentures. The
Company covenants and agrees that it will duly and punctually pay or cause to be
paid the principal of (and premium, if any) and the interest on each of the
Debentures at the place, at the respective times and in the manner provided in
the Debentures.
Section 5.02. Office for Notices and Payments, etc. So long as any of the
Debentures remain outstanding, the Company will maintain in the City of Houston,
Texas, and in the Borough of Manhattan, The City of New York, an office or
agency where the Debentures may be presented for payment, an office or agency
where the Debentures may be presented for registration of transfer or exchange
or for conversion as in this Indenture provided, and an office or agency where
notices and demands to or upon the Company in respect of the Debentures or of
this Indenture may be served. Until otherwise designated by the Company in a
written notice
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to the Trustee, such offices or agencies in the City of Houston, Texas, and in
the Borough of Manhattan, The City of New York, for purposes of presentation for
payment and presentation for registration of transfer and exchange and for
conversion and for purposes of services of notices and demands shall be the
corporate trust offices of the Trustee. If the Company shall at any time fail
to maintain any such offices or agencies, or shall fail to give notice to the
Trustee of any change in the location thereof, presentation may be made and
notice and demand may be served in respect of the Debentures or of this
Indenture at said offices of the Trustee.
Section 5.03. Prohibition of Extension of Claims for Interest. In order to
prevent any accumulation of claims for interest after maturity thereof, the
Company will not directly or indirectly extend or consent to the extension of
the time for the payment of any claim for interest on any of the Debentures and
will not directly be a party to or approve any such arrangement by the purchase
or funding of said claims for interest or in any other manner; provided,
however, that this Section 5.03 shall not apply in any case where an extension
shall be made pursuant to a plan proposed by the Company to the holders of all
the Debentures then outstanding.
Section 5.04. Appointment to Fill a Vacancy in the Office of Trustee. The
Company, whenever necessary to avoid or fill a vacancy in the office of Trustee,
will appoint, in the manner provided in Section 8.10, a Trustee, so that there
shall at all times be a Trustee hereunder.
Section 5.05. Provision as to Paying Agent. (a) The Company initially
appoints the Trustee as paying agent. If the Company shall appoint a paying
agent other than the Trustee, it will cause such paying agent to execute and
deliver to the Trustee an instrument in which such agent shall agree with the
Trustee, subject to the provisions of this Section 5.05,
(i) that it will hold all sums held by it as such agent for the
payment of the principal of (and premium, if any) and interest on the
Debentures (whether such sums have been paid to it by the Company or by any
other obligor on the Debentures) in trust for the benefit of the holders of
the Debentures;
(ii) that it will give the Trustee notice of any failure by the
Company (or by any other obligor on the Debentures) in making any payment
of the principal of (or premium, if any) or interest on the Debentures when
the same shall be due and payable; and
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(iii) that it will, at any time during the continuance of any such failure,
upon the written request of the Trustee, forthwith pay to the Trustee all sums
so held in trust by such paying agent.
(b) If the Company shall act as its own paying agent, it will, on or before
each due date of the principal of (and premium, if any) or interest on any of
the Debentures, set aside, segregate and hold in trust for the benefit of the
holders of such Debentures entitled thereto a sum sufficient (together with any
sums deposited with any other paying agent for such purpose) to pay such
principal (and premium, if any) or interest so becoming due and will notify the
Trustee of any failure by it to take such action and of any failure by the
Company (or by other obligor under the Debentures) to make any payment of the
principal of or premium, if any, or interest on the Debentures when the same
shall become due and payable. Whenever the Company shall have one or more paying
agents, it will, on or before each due date of the principal of (or premium, if
any) or interest on any of the Debentures, deposit with a paying agent a sum
sufficient to pay such principal (or premium, if any) or interest so becoming
due, such sums to be held in trust for the benefit of the holders of such
Debentures entitled thereto, and (unless the paying agent is the Trustee) the
Company will notify the Trustee of its action or of any failure by it to take
such action.
(c) Anything in this Section 5.05 to the contrary notwithstanding, the
Company may, at any time, for the purpose of obtaining a satisfaction and
discharge of this Indenture, or for any other reason, pay or cause to be paid to
the Trustee all sums held in trust by it or any paying agent hereunder, as
required by this Section 5.05, such sums to be held by the Trustee upon the
trusts herein contained.
(d) Anything in this Section 5.05 to the contrary notwithstanding, the
agreement to hold sums in trust as provided in this Section 5.05 is subject to
the provisions of Sections 13.03 and 13.04.
Section 5.06. Company to Furnish Annual Compliance Certificate. On or
before the 90th day after the end of the Company's fiscal year beginning with
the year in which the Debentures are originally issued, the Company will file
with the Trustee an Officers' Certificate stating that in the course of the
performance by the signers of their duties as officers of the Company they would
normally have knowledge of any action or failure to act on the part of the
Company in violation of any covenant, agreement, provision or condition
contained in this Indenture, stating whether or not they have knowledge of any
action or failure to act on the part of the Company during the preceding fiscal
year, in violation of any covenant, agreement, provision or condition contained
in
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this Indenture and, if so, specifying each such default of which the signers
have knowledge and the nature thereof.
ARTICLE SIX
Debentureholders' Lists and Reports
by the Company and the Trustee
Section 6.01. Debentureholders' List. The Company shall furnish or cause
to be furnished to the Trustee
(a) semiannually, not more than 10 days after each May 15 and
November 15, commencing after the date of original issuance of the
Debentures, a list, in such form as the Trustee may reasonably require,
of the names and addresses of the holders of Debentures as of such
May 15 and November 15, and
(b) at such other times as the Trustee may request in writing,
within 25 days after the receipt by the Company of any such request, a
list of similar form and content as of a date not more than 15 days prior
to the time such list is furnished,
excluding from any such list names and addresses received by the Trustee in its
capacity as Debenture Registrar or paying agent if so acting.
Section 6.02. Preservation and Disclosure of List. (a) The Trustee shall
preserve, in as current a form as is reasonably practicable, all information as
to the names and addresses of the holders of Debentures (i) contained in the
most recent list furnished to it as provided in Section 6.01 and (ii) received
by it in the capacity of Debenture Registrar or of paying agent (if so acting)
hereunder. The Trustee may destroy any list furnished to it pursuant to Section
6.01 upon receipt of a new list so furnished.
(b) In case three or more holders of Debentures (hereinafter referred
to as "applicants") apply in writing to the Trustee, and furnish to the Trustee
reasonable proof that each such applicant has owned a Debenture for a period
of at least six months preceding the date of such application, and such
application states that the applicants desire to communicate with other holders
of Debentures with respect to their rights under this Indenture or under the
Debentures, and is accompanied by a copy of the form of proxy or other
communication which such applicants propose to transmit, then the Trustee
shall, within five business days after the receipt of such application, at its
election, either,
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(i) afford such applicants access to the information preserved at the time
by the Trustee in accordance with the provisions of subsection (a) of this
Section 6.02, or
(ii) inform such applicants as to the approximate number of holders of
Debentures whose names and addresses appear in the information preserved at the
time by the Trustee, in accordance with the provisions of subsection (a) of this
Section 6.02, and as to the approximate cost of mailing to such Debentureholders
the form of proxy or other communication, if any, specified in such application.
If the Trustee shall elect not to afford such applicants access to such
information, the Trustee shall, upon the written request of such applicants,
mail to each Debentureholder whose name and address appears in the information
preserved at the time by the Trustee in accordance with the provisions of
subsection (a) of this Section 6.02 and to the Company, a copy of the form of
proxy or other communication which is specified in such request, with reasonable
promptness after a tender to the Trustee of the material to be mailed and of
payment, or provision for the payment, of the reasonable expenses of such
mailing, unless within five days after such tender, the Trustee shall mail to
such applicants and file with the Securities and Exchange Commission, together
with a copy of the material to be mailed, a written statement to the effect
that, in the opinion of the Trustee, such mailing would be contrary to the best
interests of the holders of Debentures or would be in violation of applicable
law. Such written statement shall specify the basis of such opinion. If the
Securities and Exchange Commission, after opportunity for a hearing upon the
objections specified in the written statements so filed, shall enter an order
refusing to sustain any of such objections or if, after the entry of an order
sustaining one or more of such objections, the Securities and Exchange
Commission shall find, after notice and opportunity for hearing, that all the
objections so sustained have been met and shall enter an order so declaring, the
Trustee shall mail copies of such material to all such Debentureholders with
reasonable promptness after the entry of such order and the renewal of such
tender; otherwise the Trustee shall be relieved of any obligation or duty to
such applicants respecting their application.
(c) Each and every holder of the Debentures, by receiving and holding the
same, agrees with the Company and the Trustee that neither the Company nor the
Trustee nor any paying agent nor any Debenture Registrar shall be held
accountable by reason of the disclosure of any such information as to the names
and addresses of the holders of Debentures in accordance with the provisions of
subsection (b) of this Section 6.02, regardless of the source from which such
information was derived,
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and that the Trustee shall not be held accountable by reason of mailing any
material pursuant to a request made under said subsection (b).
Section 6.03. Annual and Other Reports to be Filed by the Company with the
Trustee. (a) The Company covenants and agrees to file with the Trustee, within
15 days after the Company is required to file the same with the Securities and
Exchange Commission, copies of the annual reports and of the information,
documents and other reports (or copies of such portions of any of. the foregoing
as the Securities and Exchange Commission may from time to time by rules and
regulations prescribe) which the Company may be required to file with the
Securities and Exchange Commission pursuant to section 13 or section 15(d) of
the Securities Exchange Act of 1934, or, if the Company is not required to file
information, documents or reports pursuant to either of such sections, then to
file with the Trustee and the Securities and Exchange Commission, in accordance
with rules and regulations prescribed from time to time by the Securities and
Exchange Commission, such of the supplementary and periodic information,
documents and reports which may be required pursuant to section 13 of the
Securities Exchange Act of 1934 in respect of a security listed and registered
on a national securities exchange as may be prescribed from time to time in such
rules and regulations.
(b) The Company covenants and agrees to file with the Trustee and the
Securities and Exchange Commission, in accordance with the rules and regulations
prescribed from time to time by the Securities and Exchange Commission, such
additional information, documents, and reports with respect to compliance by the
Company with the conditions and covenants provided for in this Indenture as may
be required from time to time by such rules and regulations.
(c) The Company covenants and agrees to transmit by mail to the holders of
Debentures within 30 days after the filing thereof with the Trustee, as their
names and addresses appear on the Debenture Register, such summaries of any
information, documents and reports required to be filed by the Company pursuant
to subsections (a) and (b) of this Section 6.03 as may be required by rules and
regulations prescribed from time to time by the Securities and Exchange
Commission.
Section 6.04. Reports by the Trustee. (a) Within 60 days after May 15 of
each year commencing with the first May 15 to occur after the date of this
Indenture, so long as any Debentures are outstanding hereunder, the Trustee
shall transmit to the Debentureholders as hereinafter in this Section 6.04
provided, a brief report dated as of the preceding May 15, with respect to:
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(i) its eligibility under Section 8.09 and its qualifications under Section
8.08, or in lieu thereof, if to the best of its knowledge it has continued to be
eligible and qualified under such Sections, a written statement to such effect:
(ii) the character and amount of any advances (and if the Trustee elects so
to state, the circumstances surrounding the making thereof) made by the Trustee
(as such) which remain unpaid on the date of such report, and for the
reimbursement of which it claims or may claim a lien or charge, prior to that of
the Debentures, on any property or funds held or collected by it as Trustee or
paying agent, except that the Trustee shall not be required (but may elect) to
report such advances if such advances so remaining unpaid aggregate not more
than one-half of 1 percent of the principal amount of the Debentures outstanding
on the date of such report;
(iii) the amount, interest rate and maturity date of all other indebtedness
owing by the Company (or by any other obligor on the Debentures) to the Trustee
in its individual capacity, on the date of such report, with a brief description
of any property held as collateral security therefor, except an indebtedness
based upon a creditor relationship arising in any manner described in paragraphs
(ii), (iii), (iv) or (vi) of subsection (b) of Section 8.13;
(iv) the property and funds, if any, physically in the possession of the
Trustee as such on the date of such report;
(v) any additional issuance of Debentures not previously reported; and
(vi) any action taken by the Trustee in the performance of its duties under
this Indenture which it has not previously reported and which in its opinion
materially affects the Debentures except action in respect of a default, notice
of which has been or is to be withheld by it in accordance with the provisions
of Section 7.07.
(b) The Trustee shall transmit to the Debentureholders, as hereinafter
provided, a brief report with respect to the character and amount of any
advances (and if the Trustee elects so to state, the circumstances surrounding
the making thereof) made by the Trustee (as such) since the date of the last
report transmitted pursuant to the pro- visions of subsection (a) of this
Section 6.04 (or if no such report has yet been so transmitted, since the date
of execution of this Indenture), for the reimbursement of which it claims or may
claim a lien or charge prior to that of the Debentures of the property or funds
held or collected by it as Trustee, and which it has not previously reported
pursuant to this
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subsection (b) except that the Trustee shall not be required (but may elect) to
report such advances if such advances remaining unpaid at any time aggregate 10
percent or less of the principal amount of Debentures outstanding at such time,
such report to be transmitted within 90 days after such time.
(c) Reports given pursuant to this Section 6.04 shall be transmitted by
mail to all holders of Debentures, as the names and addresses of such holders
appear upon the Debenture Register and to such holders of Debentures as have,
within the two years preceding such transmission, filed their names and
addresses with the Trustee for that purpose.
(d) A copy of each such report shall, at the time of such transmission to
Debentureholders, be filed by the Trustee with the Company, each stock exchange
upon which the Debentures are listed and also with the Securities and Exchange
Commission. The Company agrees to notify the Trustee when and as the Debentures
become listed on any stock exchange.
ARTICLE SEVEN
Remedies of the Trustee and
Debentureholders in Event of Default
Section 7.01. Events of Default. In case one or more of the following
Events of Default shall have occurred and be continuing:
(a) default in the payment (whether or not prohibited by the provisions of
Article Three) of any installment of interest upon any of the Debentures as and
when the same shall become due and payable, and continuance of such default for
a period of 30 days; or
(b) default in the payment (whether or not prohibited by the provisions of
Article Three) of the principal of and premium, if any, on any of the Debentures
as and when the same shall become due and payable either at maturity, upon
redemption, by declaration or otherwise; or
(c) default in the payment or satisfaction of any sinking fund obligation,
as and when such sinking fund obligation shall become due and payable in this
Indenture expressed; or
(d) failure on the part of the Company duly to observe or perform any
covenants or agreements (other than a covenant or agreement the breach or a
default in the performance of which is
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elsewhere in this Section 7.01 specifically dealt with) on the part of the
Company in the Debentures or in this Indenture contained for a period of 60
days after the date on which written notice (such written notice to state
it is a "Notice of Default" hereunder) of such failure, requiring the
Company to remedy the same, shall have been given to the Company by the
Trustee, or to the Company and each holder of any Senior Indebtedness and
each person or entity committed or obligated to issue or fund any Senior
Indebtedness (provided that such holder, person or entity has previously
given Trustee written notice to the effect that it is a holder of Senior
Indebtedness or a person or entity committed or obligated to issue or fund
Senior Indebtedness (as the case may be) and that such holder, person or
entity requests that he or it be given any such notice) and the Trustee by
the holders of at least 25 percent in aggregate principal amount of the
Debentures at the time outstanding; or
(e) without the consent of the Company a court having jurisdiction
shall enter an order for relief with respect to the Company under the
Bankruptcy Code or without the consent of the Company a court having
jurisdiction shall enter a judgment, order or decree adjudging the Company
a bankrupt or insolvent, or enter an order for relief for reorganization,
arrangement, adjustment or composition of or in respect of the Company
under the Bankruptcy Code or applicable state insolvency law and the
continuance of any such judgment, order or decree unstayed and in effect
for a period of 90 consecutive days; or
(f) the Company shall institute proceedings for entry of an order for
relief with respect to the Company under the Bankruptcy Code or for an
adjudication of insolvency, or shall consent to the institution of
bankruptcy or insolvency proceedings against it, or shall file a petition
seeking, or seek or consent to reorganization, arrangement, composition or
relief under the Bankruptcy Code or any applicable state law, or shall
consent to filing of such petition or to the appointment of a receiver,
custodian, liquidator, assignee, trustee, sequestrator or similar official
(other than a custodian pursuant to 8 Delaware Code Section 226 or any
similar statute under other state laws) of the Company or of substantially
all of its property, or the Company shall make a general assignment for the
benefit of creditors as recognized under the Bankruptcy Code;
then and in each and every such case, unless the principal of all the Debentures
shall have already become due and payable, either the Trustee or the holders of
not less than 25 percent in aggregate principal amount of the Debentures then
outstanding hereunder, by notice in writing to the
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Company and each holder of any Senior Indebtedness and each person or entity
committed or obligated to issue or fund any Senior Indebtedness (provided that
such holder, person or entity has previously given Trustee written notice to the
effect that it is a holder of Senior Indebtedness or a person or entity
committed or obligated to issue or fund Senior Indebtedness (as the case may be)
and that such holder, person or entity requests that he or it be given any such
notice) (and to the Trustee if given by Debentureholders), may declare the
principal of all the Debentures and any accrued interest to the date of
declaration to be due and payable immediately, and upon any such declaration the
same shall become and shall be immediately due and payable, anything in this
Indenture or in the Debentures contained to the contrary notwithstanding. The
foregoing provision, however, is subject to the condition that if, at any time
after the principal of the Debentures shall have been so declared due and
payable, and before any judgment or decree for the payment of the moneys due
shall have been obtained or entered as hereinafter provided, the Company shall
pay or shall deposit with the Trustee a sum sufficient to pay all matured
installments of interest upon all the Debentures and the principal of (or
premium, if any, on) any and all Debentures which shall have become due
otherwise than by acceleration (with interest upon such principal (and premium,
if any) and, to the extent that payment of such interest is enforceable under
applicable law, upon overdue installments of interest, at the rate borne by the
Debentures to the date of such payment or deposit) and such amount as shall be
sufficient to cover reasonable compensation, disbursements, expenses and
advances of the Trustee, and any and all defaults under the Indenture, other
than the non-payment of the principal of and premium, if any, and accrued
interest on Debentures which shall have become due by acceleration, shall have
been cured or shall have been waived in accordance with Section 7.06 or
provision deemed by the Trustee to be adequate shall have been made therefor --
then and in every such case the holders of a majority in aggregate principal
amount of the Debentures then outstanding, by written notice to the Company and
to the Trustee, may rescind and annul such declaration and its consequences; but
no such rescission and annulment shall extend to or shall effect any subsequent
default or shall impair any right consequent thereon.
If the Trustee shall have proceeded to enforce any right under this
Indenture and such proceedings shall have been discontinued or abandoned because
of such rescission or annulment or for any other reason or shall have been
determined adversely to the Trustee, then and in every such case the Company,
the Trustee and the holders of the Debentures shall be restored respectively to
their former positions and rights hereunder, and all rights, remedies and powers
of the Company and the Trustee and the holders of the Debentures shall continue
as though no such proceedings had been taken.
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Section 7.02. Payment of Debentures on Default: Suit Therefor. The Company
covenants that (a) if default shall be made in the payment of any installment of
interest on any of the Debentures, as and when the same shall become due and
payable, and such default shall have continued for a period of 30 days, or (b)
in case default shall be made in the payment of the principal of or premium, if
any, on any of the Debentures as and when the same shall have become payable,
whether upon maturity of the Debentures or upon redemption or upon declaration
or otherwise then, upon demand of the Trustee, the Company will pay to the
Trustee, for the benefit of the holders of the Debentures, the whole amount that
then shall have become due and payable on all such Debentures for principal (and
premium, if any) or interest, or both, as the case may be, with interest upon
the overdue principal and premium, if any, and (to the extent that payment of
such interest is enforceable under applicable law) upon overdue installments of
interest, at the rate borne by the Debentures; and, in addition thereto, such
further amount as shall be sufficient to cover the costs and expenses of
collection, including reasonable compensation to the Trustee, its agents,
attorneys and counsel, and any expenses or liabilities incurred by the Trustee
hereunder other than through its negligence or bad faith.
If the Company shall fail forthwith to pay such amounts upon such demand,
the Trustee, in its own name and as trustee of an express trust, shall be
entitled and empowered to institute any action or proceeding at law or in equity
for the collection of the sums so due and unpaid, and may prosecute any such
action or proceeding to judgment or final decree, and may enforce any such
judgment or final decree against the Company or other obligor upon the
Debentures and collect in the manner provided by law out of the property of the
Company or other obligor upon the Debentures wherever situated the moneys
adjudged or decreed to be payable.
If there shall be pending proceedings for the bankruptcy or for the
reorganization of the Company or any other obligor upon the Debentures under the
Bankruptcy Code or any other federal or state bankruptcy, insolvency or similar
laws relative to the Company or to such other obligor, or in case a receiver or
trustee shall have been appointed for the property of the Company or such other
obligor, or in case of any other similar judicial proceedings relative to the
Company or other obligor upon the Debentures, or to the creditors or the
property of the Company or such other obligor, the Trustee, irrespective of
whether the principal of the Debentures 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 pursuant to the provisions of this Section 7.02,
shall be entitled and empowered, by intervention in such proceedings or
otherwise, to file and prove a claim or claims for the
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whole amount of principal (and premium, if any) and interest owing and unpaid in
respect of the Debentures, 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 reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel) and of the Debentureholders allowed in any
judicial proceedings relative to the Company, or other obligor upon the
Debentures, its or their creditors or its or their property, and to collect and
receive any moneys or other property payable or deliverable on any such claims,
and to distribute the same after the deduction of its charges and expenses; and
any receiver, assignee, liquidator, sequestrator or trustee in bankruptcy or
reorganization is hereby authorized by each of the Debentureholders to make such
payments to the Trustee, and, in the event that the Trustee shall consent to the
making of payments directly to the Debentureholders, to pay to the Trustee any
amount due it for reasonable compensation, expenses, disbursements and advances
of trustee, its agents and counsel, and any other amounts due to the Trustee
under Section 8.06.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Debentureholder any
plan of reorganization, arrangement, adjustment or composition affecting the
Debentures or the rights of any holder thereof or to authorize the Trustee to
vote in respect of the claim of any Debentureholder in any such proceeding.
All rights of action and of asserting claims under this Indenture, or under
any of the Debentures, may be enforced by the Trustee without the possession of
any of the Debentures, or the production thereof in any trial or other
proceedings relative thereto, and any such action or proceedings instituted by
the Trustee shall be brought in its own name and as trustee of an express trust,
and any recovery of judgment shall be for the equal and ratable benefit of the
holders of the Debentures.
In case of an Event of Default hereunder the Trustee may in its discretion
proceed to protect and enforce the rights vested in it by this Indenture by such
appropriate judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any of such rights, either at law or in equity or in
bankruptcy or otherwise, whether for the specific enforcement of any covenant or
agreement contained in this Indenture or in aid of the exercise of any power
granted in this Indenture, or to enforce any other legal or equitable right
vested in the Trustee by this Indenture or by law.
Section 7.03. Application of Moneys Collected by Trustee. Subject to the
provisions of Article Three, any moneys collected by the Trustee pursuant to
Section 7.02 shall be applied in the following order, at the
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date or dates fixed by the Trustee and, in case of the distribution of such
moneys on account of principal and premium, if any, or interest, upon
presentation of the several Debentures for delivery of a new Debenture
representing the unpaid portion, if only partially paid, and upon surrender
thereof, if fully paid:
FIRST: To the payment of costs and expenses of collection, and
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due to the Trustee
under Section 8.06;
SECOND: If the principal of the Debentures shall not have become due
and be unpaid, to the payment of interest on the Debentures, in the order
of the maturity of the installments of such interest, with interest (to the
extent that such interest has been collected by the Trustee and to the
extent-permitted by applicable law) upon the overdue installments of
interest at the rate borne by the Debentures, such payments to be made
ratably to the persons entitled thereto;
THIRD: If the principal of the Debentures shall have become due, by
declaration or otherwise, to the payment of the whole amount then owing and
unpaid upon the Debentures for principal, premium, if any, and interest,
with interest on the overdue principal and premium, if any, and (to the
extent that such interest has been collected by the Trustee and the payment
thereof is permitted by applicable law) upon overdue installments of
interest at the rate borne by the Debentures; and in case such moneys shall
be insufficient to pay in full the whole amount so due and unpaid upon the
Debentures, then to the payment of such principal and premium, if any, and
interest, without preference or priority of principal and premium, if any,
over interest, or of interest over principal and premium, if any, or of any
installment of interest over any other installment of interest, or of any
Debenture over any other Debenture, ratably to the aggregate of such
principal and premium, if any, and accrued and unpaid interest; and
FOURTH: To the payment of any surplus remaining to the Company, its
successors or assigns, or to whomever may be lawfully entitled to receive
the same.
No claim for interest which in any manner at or after maturity shall have
been transferred or pledged separate or apart from the Debentures to which it
relates, or which in any manner shall have been kept alive after maturity by an
extension (otherwise than pursuant to an extension made pursuant to a plan
proposed by the Company to the holders of all
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Debentures then outstanding), purchase, funding or otherwise by or on behalf or
with the consent or approval of the Company shall be entitled, in case of a
default hereunder, to any benefit of this Indenture, except after prior payment
in full of the principal of and the premium, if any, of all Debentures at the
time outstanding hereunder and of all claims for interest not so transferred,
pledged, kept alive, extended, purchased or funded.
Section 7.04. Limitation on Suits by Holders of Debentures. No holder of
any Debenture shall have any right by virtue or by availing of any provision of
this Indenture to institute any action, suit or proceeding at law or in equity
or in bankruptcy or otherwise, upon or under or with respect to this Indenture,
or for the appointment of a receiver or trustee or similar official, or, for any
other remedy hereunder, unless such holder previously shall have given to the
Trustee written notice of default and of the continuance thereof, as
hereinbefore provided, and unless also the holders of not less than 25 percent
in aggregate principal amount of the Debentures then outstanding shall have made
written request to the Trustee to institute such action, suit or proceeding in
its own name as Trustee hereunder and shall have offered to the Trustee such
reasonable indemnity as it may require against the costs, expenses and
liabilities to be incurred therein or thereby, and the Trustee, for 60 days
after its receipt of such notice, request and offer of indemnity, shall have
failed to institute any such action, suit or proceeding and no direction
inconsistent with such written request shall have been given to the Trustee
pursuant to Section 7.06; it being understood and intended, and being expressly
covenanted by the taker and holder of every Debenture with every other taker and
holder and the Trustee, that no one or more holders of Debentures shall have any
right in any manner whatever by virtue or by availing of any provision of this
Indenture to affect, disturb or prejudice the rights of the holders of any other
of such Debentures, or to obtain or seek to obtain priority over or preference
to any other such holder, or to enforce any right under this Indenture, except
in the manner herein provided and for the ratable and common benefit of all
holders of Debentures. For the protection and enforcement of the provisions of
this Section 7.04, each and every Debentureholder and the Trustee shall be
entitled to such relief as can be given either at law or in equity.
Notwithstanding any other provision in this Indenture, however, but subject
to the provisions of Article Three, the right of any holder of any Debenture to
receive payment of the principal of (and premium, if any) and interest on such
Debenture, on or after the respective due dates expressed in such Debenture, or
to institute suit for the enforcement of any such payment on or after such
respective dates, shall not be impaired or affected without the consent of such
holder.
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Section 7.05. Remedies Cumulative and Continuing All powers and remedies
given by this Article Seven to the Trustee or to the Debentureholders shall, to
the extent permitted by law, be deemed cumulative and not exclusive of any other
thereof or of any other powers and remedies available to the Trustee or the
Debentureholders, by judicial proceedings or otherwise, to enforce the
performance or observance of the covenants and agreements contained in this
Indenture, and no delay or omission of the Trustee or of any holder of any of
the Debentures to exercise any right or power accruing upon any default
occurring and continuing as aforesaid, shall impair any such right or power, or
shall be construed to be a waiver of any such default or an acquiescence
therein; and, subject to the provisions of Section 7.04, every power and remedy
given by this Article Seven or by law to the Trustee or to the Debentureholders
may be exercised from time to time, and as often as shall be deemed expedient,
by the Trustee or by the Debentureholders.
Section 7.06. Direction of Proceedings and Waiver of Defaults by Majority
of Debentureholders. The holders of a majority in aggregate principal amount of
the Debentures at the time outstanding 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,
however, that (subject to the provisions of Section 8.01), the Trustee shall
have the right to decline to follow any such direction if the Trustee, after
being advised by counsel, shall determine that the action so directed may not
lawfully be taken or if the Trustee in good faith shall, by a responsible
officer or officers, determine that the action so directed would be unduly
prejudicial to the holders of the Debentures not taking part in such direction.
The holders of a majority in aggregate principal amount of the Debentures at the
time outstanding may on behalf of the holders of all of the Debentures waive any
past default or Event of Default hereunder and its consequences except a default
in the payment of the principal of (or premium, if any) or interest on any of
the Debentures which has become due other than as a result of the acceleration
thereof. In the case of any such waiver, said default or Event of Default shall
for all purposes of the Debentures and this Indenture be deemed to have been
cured and to be not continuing, and the Company, the Trustee and the holders of
the Debentures shall be restored to their former positions and rights hereunder,
respectively; but no such waiver shall extend to any subsequent or other default
or impair any right consequent thereon.
Section 7.07. Notice of Defaults. The Trustee shall, within 90 days after
the occurrence of a default, give to the Debentureholders, in the manner and to
the extent provided in subsection (c) of Section 6.04, notice of all defaults
known to the Trustee, unless such default shall
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have been cured before the giving of such notice; provided, however, that, in
the case of any default of the character specified in clause (d) of Section
7.01, no such notice to Debentureholders shall be given until at least 60 days
after the giving of written notice thereof to the Company pursuant to said
clause (d); and provided, further, that except in the case of default in the
payment of the principal of (or premium, if any) or interest on any of the
Debentures, or in the making of any sinking fund payment, the Trustee shall be
protected in withholding such notice if and so long as the board of directors,
the executive committee, or a trust committee of directors and/or responsible
officers, of the Trustee in good faith determines that the withholding of such
notice is in the interests of the Debentureholders.
Section 7.08. Undertaking to Pay Costs. All parties to this Indenture
agree, and each holder of any Debenture 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 or omitted by it as Trustee, the filing
by any party litigant in such suit of an undertaking to pay the costs of such
suit, and that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees, against any party litigant in such suit,
having due regard to the merits and good faith of the claims or defenses made by
such party litigant; but the provisions of this Section 7.08 shall not apply to
any suit instituted by the Trustee, to any suit instituted by any
Debentureholder, or group of Debentureholders, holding in the aggregate more
than 10 percent in principal amount of the Debentures outstanding, or to any
suit instituted by any Debentureholder for the enforcement of the payment of the
principal of (or premium, if any), or interest on any Debenture against the
Company, on or after the due date expressed in such Debenture.
ARTICLE EIGHT
Concerning the Trustee
Section 8.01. Duties and Responsibilities of Trustee. The Trustee, prior to
the occurrence of an Event of Default and after the curing of all Events of
Default which may have occurred, undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture. If an Event of Default
has occurred (which has not been cured), the Trustee shall exercise such of the
rights and powers vested in it by this Indenture, and use the same degree of
care and skill in their exercise, as a prudent man would exercise or use under
the circumstances in the conduct of his own affairs.
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No provision of this Indenture shall be construed to relieve the Trustee
from liability for its own negligent action, its own negligent failure to act,
or its own willful misconduct, except that
(a) prior to the occurrence of an Event of Default and after the curing of
all Events of Default that may have occurred:
(i) the duties and obligations of the Trustee shall be determined
solely by the express provisions of this Indenture, and the Trustee shall
not be liable except for the performance of such duties and obligations as
are specifically set forth in this Indenture, and no implied covenants or
obligations shall be read into this Indenture against the Trustee; and
(ii) in the absence of bad faith on the part of the Trustee, the
Trustee may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any certificates or
opinions furnished to the Trustee and conforming to the requirements of
this Indenture; but in the case of any such certificates or opinions that
by any provision hereof are specifically required to be furnished to the
Trustee, the Trustee shall be under a duty to examine the same to determine
whether or not they conform to the requirements of this Indenture:
(b) the Trustee shall not be liable for any error of judgment made in good
faith by a responsible officer or officers of the Trustee, unless it shall be
proved that the Trustee was negligent in ascertaining the pertinent facts; and
(c) the Trustee shall not be liable with respect to any action taken or
omitted to be taken by it in good faith in accordance with the direction of the
holders of not less than a majority in principal amount of the Debentures at the
time outstanding relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any trust or
power conferred upon the Trustee, under this Indenture.
None of the provisions contained in this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder or in the exercise
of any of its rights or powers, if there is reasonable ground for believing that
the repayment of such funds or adequate indemnity against such risk or liability
is not reasonably assured to it.
For all purposes under the Indenture, the Trustee shall not be deemed to
have notice of the existence of any facts or circumstances
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described in clause (d) through (f) of Section 7.01 unless a Responsible Officer
assigned to and working in the Trustee's corporate trust department at the
corporate trust office has actual knowledge thereof or unless written notice of
any event that is in fact such a fact or circumstance is received by the Trustee
at the corporate trust office, and such notice references the Debentures
generally, the Company or the Indenture.
Whether or not therein expressly so provided, every provision of this
Indenture relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of this Section
8.01.
Section 8.02. Reliance on Documents, Opinions, etc. Except as otherwise
provided in Section 8.01:
(a) The Trustee may rely and shall be protected in acting or refraining
from acting upon any resolution, certificate, statement, instrument, opinion,
report, notice, request, consent, direction, approval, order, bond, debenture,
or other paper or document believed by it to be genuine and to have been signed
or presented by the proper party or parties;
(b) Any request, direction, order or demand of the Company mentioned herein
shall be sufficiently evidenced by an Officers' Certificate (unless other
evidence in respect thereof be herein specifically prescribed); and any
resolution of the Board of Directors of the Company may be evidenced to the
Trustee by a copy thereof certified by the Secretary or an Assistant Secretary
of the Company;
(c) 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 accordance with such advice or Opinion of Counsel;
(d) The Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Indenture at the request, order or direction of
any of the Debentureholders, pursuant to the provisions of this Indenture,
unless such Debentureholders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities that may be
incurred therein or thereby;
(e) The Trustee shall not be liable for any action taken or omitted by it
in good faith and believed by it to be authorized or
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within the discretion or rights or powers conferred upon it by this Indenture:
(f) Prior to the occurrence of an Event of Default and after the curing or
waiving of all Events of Default, the Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, consent, order,
direction, approval, bond, debenture or other paper or document, but the
Trustee, in its discretion, may, and upon the request in writing by the holders
of not less than a majority in principal amount of Debentures then outstanding
shall, 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 (other than an employee of the
Trustee) appointed by it with due care hereunder; and
(h) Before the Trustee acts or refrains from acting, it may require an
Officer's Certificate or an Opinion of Counsel and the Trustee shall not be
liable for any action it takes or omits to take in reliance on such Officer's
Certificate or Opinion of Counsel.
Section 8.03. No Responsibility for Recitals, etc. The recitals contained
herein and in the Debentures (except in the Trustee's certificate of
authentication) shall be taken as the statements of the Company, and the Trustee
assumes no responsibility for the correctness of the same. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Debentures. The Trustee shall not be accountable for the use or application by
the Company of any of the Debentures authenticated by or on behalf of the
Trustee in conformity with the requirements of this Indenture or of the proceeds
thereof.
Section 8.04. Trustee, Paying Agent or Debenture Registrar May Own
Debentures. The Trustee or any Authenticating Agent or any paying agent or
Debenture Registrar, in its individual or any other capacity, may become the
owner or pledgee of Debentures with the same rights it would have if it were not
Trustee, Authenticating Agent, paying agent or Debenture Registrar.
Section 8.05. Moneys to be Held in Trust. Subject to the provisions of
Article Three and Section 13.04, all moneys received by the
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Trustee shall, until used or applied as herein provided, be held in trust for
the purposes for which they were received, but need not be segregated from other
funds except to the extent required by law. Neither the. Trustee nor any paying
agent shall be under any liability for interest on any moneys received by it
hereunder except such as it may agree in writing with the Company to pay
thereon. So Long as no Event of Default shall have occurred and be continuing,
all interest, if any, allowed on any such moneys shall be paid from time to time
upon the written order of the Company, signed by its President or any Vice
President or its Treasurer or an Assistant Treasurer.
Section 8.06. Compensation and Expenses of Trustee. The Company covenants
and agrees to pay to the Trustee from time to time, and the Trustee shall be
entitled to, reasonable compensation for all services rendered by it hereunder
(which shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust), and, except as otherwise
expressly provided, the Company will pay or reimburse the Trustee upon its
request for all reasonable expenses, disbursements and advances incurred or made
by the Trustee in accordance with any of the provisions of this Indenture
(including the reasonable compensation and the expenses and disbursements of its
counsel and of all persons not regularly in its employ) except any such expense
disbursement or advance as may arise from its negligence or bad faith. If any
property other than cash shall at any time be subject to a lien in favor of the
Debentureholders, the Trustee, if and to the extent authorized by a receiver or
bankruptcy court of competent jurisdiction or by the supplemental instrument
subjecting such property to such lien, shall be entitled to make advances for
the purpose of preserving such property or of discharging tax liens or other
prior liens or encumbrances thereon, provided that the Trustee shall be under no
affirmative duty to make such advances. The Company also covenants to indemnify
the Trustee for, and to hold it harmless against, any loss, liability or expense
incurred without negligence or bad faith on the part of the Trustee, arising out
of or in connection with the acceptance or administration of this trust,
including the cost and expenses of defending itself against any claim of
liability in the premises. The obligations of the Company under this Section
8.06 to compensate the Trustee and to pay or reimburse the Trustee for expenses,
disbursements and advances shall constitute additional indebtedness hereunder.
Such additional indebtedness shall be secured by a lien prior to that of the
Debentures upon all property and funds held or collected by the Trustee as such,
except funds held in trust for the benefit of the holders of particular
Debentures. The Company's obligation to pay the Trustee and to pay and reimburse
the Trustee for such expenses, disbursements and advances pursuant to this
Section 8.06 shall not be subordinate to the payment of Senior Indebtedness
pursuant to Article III.
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Section 8.07. Officers' Certificate as Evidence. Except as otherwise
provided in Section 8.01, whenever in the administration of the provisions of
this Indenture the Trustee shall deem it necessary or desirable that a matter be
proved or established prior to taking or suffering any action hereunder, such
matter (unless other evidence in respect thereof be herein specifically
prescribed) may, in the absence of negligence or bad faith on the part of the
Trustee, be deemed to be conclusively proved and established by an Officers'
Certificate delivered to the Trustee and such Officers' Certificate, in the
absence of negligence or bad faith on the part of the Trustee, shall be full
warranty to the Trustee for any action taken, suffered or omitted by it under
the provisions of this Indenture upon the faith thereof.
Section 8.08. Conflicting Interest of Trustee. (a) If the Trustee has or
shall acquire any conflicting interest, as defined in this Section 8.08, it
shall, within 90 days after ascertaining that it has such conflicting interest,
either eliminate such conflicting interest or resign in the manner and with the
effect specified in Section 8.10, such resignation to become effective upon the
appointment of a successor trustee and such successor's acceptance of such
appointment, and the Company shall take prompt steps to have a successor
appointed in the manner provided in Section 8.10.
(b) If the Trustee shall fail to comply with the provisions of subsection
(a) of this Section 8.08; the Trustee shall, within 10 days after the expiration
of such 90 day period, transmit notice of such failure to the Debentureholders
in the manner and to the extent provided in subsection (C) of Section 6.04.
(c) For the purposes of this Section 8.08 the Trustee shall be deemed to
have a conflicting interest if:
(i) The Trustee is trustee under another indenture under which any other
securities, or certificates of interest or participation in any other
securities, of the Company, are outstanding, unless such other indenture is a
collateral trust indenture under which the only collateral consists of
Debentures issued under this Indenture, provided that there shall be excluded
from the operation of this paragraph any other indenture or indentures under
which other securities, or certificates of interest or participation in other
securities of the Company are outstanding if (A) this Indenture and such other
indenture or indentures are wholly unsecured and such other indenture or
indentures are hereafter qualified under the Trust Indenture Act of 1939, unless
the
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Securities and Exchange Commission shall have found and declared by order
pursuant to subsection (b) of Section 305 or subsection (c) of Section 307 of
the Trust Indenture Act of 1939 that differences exist between the provisions of
this Indenture and the provisions of such other indenture or indentures which
are so likely to involve a material conflict of interest as to make it necessary
in the public interest or for the protection of investors to disqualify the
Trustee from acting as such under this Indenture or such other indenture or
indentures, or (B) the Company shall have sustained the burden of proving, on
application to the Securities and Exchange Commission and after opportunity for
hearing thereon, that the trusteeship under this Indenture and such other
indenture or indentures is not so likely to involve a material conflict of
interest as to make it necessary in the public interest or for the protection of
investors to disqualify the Trustee from acting as such under one of such
indentures;
(ii) the Trustee or any of its directors or executive officers is an
obligor upon the Debentures or an underwriter for the Company;
(iii) the Trustee directly or indirectly controls or is directly or
indirectly controlled by or is under direct or indirect common control with the
Company or an underwriter for the Company;
(iv) the Trustee or any of its directors or executive officers is a
director, officer, partner, employee, appointee, or representative of the
Company, or of an underwriter (other than the Trustee itself) for the Company
who is currently engaged in the business of underwriting, except that (A) one
individual may be a director and/or an executive officer of the Trustee and a
director and/or an executive officer of the Company, but may not be at the same
time an executive officer of both the Trustee and the Company; (B) if and so
long as the number of directors of the Trustee in office is more than nine, one
additional individual may be a director and/or an executive officer of the
Trustee and a director of the Company; and (C) the Trustee may be designated by
the Company or by any underwriter for the Company to act in the capacity of
transfer agent, registrar, custodian, paying agent, fiscal agent, escrow agent,
subject to or depositary, or in any other similar capacity, or, the provisions
of paragraph (i) of this subsection (c) to act as trustee whether under an
indenture or otherwise;
(v) 10 percent or more of the voting securities of the Trustee is
beneficially owned either by the Company or by any director, partner or
executive officer thereof, or 20 percent or more of such voting securities is
beneficially owned, collectively, by any two or
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more of such persons; or 10 percent or more of the voting securities of the
Trustee is beneficially owned either by an underwriter for the Company or by any
director, partner or executive officer thereof, or is beneficially owned,
collectively, by any two or more such persons;
(vi) the Trustee is the beneficial owner of, or holds as collateral
security for an obligation which is in default (as hereinafter in this
subsection (c) defined), (A) 5 percent or more of the voting securities, or 10
percent or more of any other class of security, of the Company, not including
the Debentures issued under this Indenture and securities issued under any other
indenture under which the Trustee is also trustee, or (B) 10 percent or more of
any class of security of an underwriter for the Company;
(vii) the Trustee is the beneficial owner of, or holds as collateral
security, for an obligation which is in default (as hereinafter in this
subsection (c) defined), 5 percent or more of the voting securities of any
person who, to the knowledge of the Trustee, owns 10 percent or more of the
voting securities of, or controls directly or indirectly, or is under direct or
indirect common control with, the Company;
(viii) the Trustee is the beneficial owner of, or holds as collateral
security for an obligation which is in default (as hereinafter in this
subsection (c) defined), 10 percent or more of any class of security of any
person who, to. the knowledge of the Trustee, owns 50 percent or more of the
voting securities of the Company; or
(ix) the Trustee owns on May 15 in any calendar year, in the capacity of
executor, administrator, testamentary or inter vivos trustee, guardian,
committee or conservator, or in any other similar capacity, an aggregate of 25
percent or more of the voting securities, or of any class of security, of any
person, the beneficial ownership of a specified percentage of which would have
constituted a conflicting interest under paragraph (vi), (vii), or (viii) of
this subsection (c). As to any such securities of which the Trustee acquired
ownership through becoming executor, administrator, or testamentary trustee of
an estate which included them, the provisions of the preceding sentence shall
not apply, for a period of two years from the date of such acquisition, to the
extent that such securities included in such estate do not exceed 25 percent of
such voting securities or 25 percent of any such class of security. Promptly
after May 15, in each calendar year, the Trustee shall make a check of its
holdings of such securities in any of the
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above-mentioned capacities as of such May 15. If the Company fails to make
payment in full of principal of (or premium, if any) or interest on any of the
Debentures when and as the same become due and payable, and such failure
continues for 30 days thereafter, the Trustee shall make a prompt check of its
holdings of such securities in any of the above-mentioned capacities as of the
date of the expiration of such 30 day period, and after such date,
notwithstanding the foregoing provisions of this paragraph (ix), all such
securities so held by the Trustee, with sole or joint control over such
securities vested in it, shall, but only so long as such failure shall
continue, be considered as though beneficially owned by the Trustee for the
purposes of paragraph (vi), (vii) and (viii) of this subsection (c).
The specifications of percentages in paragraphs (v) to (ix), inclusive, of
this subsection (c) shall not be construed as indicating that the ownership of
such percentages of the securities of a person is or is not necessary or
sufficient to constitute direct or indirect control for the purposes of
paragraph (iii) or (vii) of this subsection (c).
For the purposes of paragraph (vi), (vii), (viii) and (ix) of this
subsection (c) only, (A) the terms "security" and "securities" shall include
only such securities as are generally known as corporate securities, but shall
not include any note or other evidence of indebtedness issued to evidence an
obligation to repay moneys lent to a person by one or more banks, trust
companies or banking firms, or any certificate of interest or participation in
any such note or evidence of indebtedness; (B) an obligation shall be deemed to
be "in default" when a default in payment of principal shall have continued for
30 days or more and shall not have been cured; and (C) the Trustee shall not be
deemed to be the owner or holder of (1) any security which it holds as
collateral security (as trustee or otherwise) for an obligation which is not in
default as defined in clause (B) above, or (2) any security which it holds as
collateral security under this Indenture, irrespective of any default hereunder
or (3) any security which it holds as agent for collection, or as custodian,
escrow agent, or depositary, or in any similar representative capacity.
Except as provided in the next preceding paragraph hereof, the word
"security" or "securities" as used in this Indenture shall mean any note,
stock, treasury stock, bond, debenture, evidence of indebtedness, certificate
of interest or participation in any profit-sharing agreement, collateral-trust
certificate, preorganization certificate or subscription, transferable share,
investment contract, voting-trust certificate, certificate of deposit for a
security, fractional undivided
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interest in oil, gas, or other mineral rights, or, in general, any interest or
instrument commonly known as a "security", or any certificate of interest or
participation in, temporary or interim certificate for, receipt for, guarantee
of or warrant or right to subscribe to or purchase, any of the foregoing.
(d) For the purposes of this Section 8.08:
(i) The term "underwriter" when used with reference to the Company shall
mean every person, who, within three years prior to the time as of which the
determination is made, has purchased from the Company with a view to, or has
offered for sale or has sold for the Company in connection with, the
distribution of any security of the Company outstanding at such time, or has
participated or has had a direct or indirect participation in any such
undertaking, or has participated or has had a participation in the direct or
indirect underwriting of any such undertaking, but such term shall not include a
person whose interest was limited to a commission from an underwriter or dealer
not in excess of the usual and customary distributors' or sellers' commission.
(ii) The term "director" shall mean any director of a corporation or any
individual performing similar functions with respect to any organization whether
incorporated or unincorporated.
(iii) The term "person" shall mean an individual, a corporation, a
partnership, an association, a joint-stock company, a trust, an unincorporated
organization, or a government or political subdivision thereof. As used in this
paragraph, the term "trust" shall include only a trust where the interest or
interests of the beneficiary or beneficiaries are evidenced by a security.
(iv) The term "voting security" shall mean any security presently entitling
the owner or holder thereof to vote in the direction or management of the
affairs of a person, or any security issued under or pursuant to any trust,
agreement or arrangement whereby a trustee or trustees or agent or agents for
the owner or holder of such security are presently entitled to vote in the
direction or management of the affairs of a person.
(v) The term "Company" shall mean any obligor upon the Debentures.
(vi) The term "executive officer" shall mean the president, every vice
president, every trust officer, the cashier, the secretary and the treasurer of
a corporation, and any individual
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customarily performing similar functions with respect to any organization
whether incorporated or unincorporated, but shall not include the chairman of
the board of directors.
(e) The percentage of voting securities and other securities specified in
this Section 8.08 shall be calculated in accordance with the following
provisions:
(i) A specified percentage of the voting securities of the Trustee,
the Company or any other person referred to in this Section 8.08 (each of
whom is referred to as a "person" in this paragraph) means such amount of
the outstanding voting securities of such person as entitles the holder or
holders thereof to cast such specified percentage of the aggregate votes
which the holders of all the outstanding voting securities of such person
are entitled to cast in the direction or management of the affairs of such
person.
(ii) A specified percentage of a class of securities of a person means
such percentage of the aggregate amount of securities of the class
outstanding.
(iii) The term "amount", when used in regard to securities, means the
principal amount if relating to evidences of indebtedness, the number of
shares if relating to capital shares, and the number of units if relating
to any other kind of security.
(iv) The term "outstanding" means issued and not held by or for the
account of the issuer. The following securities shall not be deemed
outstanding within the meaning of this definition:
(A) Securities of an issuer held in a sinking fund relating to
securities of the issuer of the same class;
(B) Securities of an issuer held in a sinking fund relating to
another class of securities of the issuer, if the obligation evidenced
by such other class of securities is not in default as to principal or
interest or otherwise;
(C) Securities pledged by the issuer thereof as security for an
obligation of the issuer not in default as to principal or interest or
otherwise; and
(D) Securities held in escrow if placed in escrow by the issuer
thereof;
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provided, however, that any voting securities of an issuer shall be
deemed outstanding if any person other than the issuer is entitled to
exercise the voting rights thereof.
(v) A security shall be deemed to be of the same class as another
security if both securities confer upon the holder or holders thereof
substantially the same rights and privileges; provided, however, that, in
the case of secured evidences of indebtedness, all of which are issued
under a single indenture, differences in the interest rates or maturity
dates of various series thereof shall not be deemed sufficient to
constitute such series different classes and provided, further, that, in
the case of unsecured evidences of indebtedness, differences in the
interest rates or maturity dates thereof shall not be deemed sufficient to
constitute them securities of different classes, whether or not they are
issued under a single indenture.
Section 8.09. Eligibility of Trustee. The Trustee hereunder, together with
its parent company, shall at all times be a corporation organized and doing
business under the laws of the United States or of any state or territory
thereof or of the District of Columbia, authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus of at least 50
million dollars, and subject to supervision or examination by federal, state,
territorial or District of Columbia authority and having an office, place of
business or agency in the City of New York. If such corporation publishes
reports of condition or financial statements at least annually, pursuant to law
or to the requirements of the aforesaid supervising or examining authority, then
for the purposes of this Section 8.09, 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 or financial statements so published. In
case at any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section 8.09, the Trustee shall resign immediately in the
manner and with the effect specified in Section 8.10.
Section 8.10. Resignation or Removal of Trustee. (a) The Trustee may at any
time resign by giving written notice of resignation to the Company and by
mailing notice thereof to the holders of Debentures at their addresses as shall
appear on the Debenture Register. Upon receiving such notice of resignation, the
Company shall promptly appoint a successor trustee by written instrument in
duplicate executed by order of the Board of Directors of the Company, the copy
of which instrument shall be delivered to the resigning Trustee and one copy to
the successor trustee. If no successor trustee shall have been so appointed and
have accepted appointment within 60 days after giving of such notice of
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resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor trustee, or any Debentureholder
who has been a bona fide holder of a Debenture or Debentures for at least 6
months may, subject to the provisions of Section 7.08, on behalf of himself and
all others similarly situated, petition any such court for the appointment of a
successor trustee. Such court may thereupon, after such notice, if any, as it
may deem proper and prescribe, appoint a successor trustee.
(b) In case at any time any of the following shall occur:
(i) the Trustee shall fail to comply with the provisions of subsection
(a) of Section 8.08 after written request therefor by the Company or by any
Debentureholder who has been a bona fide holder of a Debenture or
Debentures for at least six months, or
(ii) the Trustee shall cease to be eligible in accordance with the
provisions of Section 8.09 and shall fail to resign after written request
therefor by the Company or by any such Debentureholder, or
(iii) 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, the
Company may remove the Trustee and appoint a successor trustee by written
instrument, in duplicate, executed by order of the Board of Directors of
the Company, one copy of which instrument shall be delivered to the Trustee
so removed and one copy to the successor trustee, or, subject to the
provisions of Section 7.08, any Debentureholder who has been a bona fide
holder of a Debenture or Debentures 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. Such court may thereupon, after such notice, if
any, as it may deem proper and prescribe, remove the Trustee and appoint a
successor trustee.
(c) The holders of a majority in aggregate principal amount of the
Debentures at the time outstanding may at any time remove the Trustee and
nominate a successor trustee by delivering to the Trustee so removed, to the
nominated successor trustee so appointed and to the Company, the evidence
provided for in Section 9.01 of the action taken by the Debentureholders, in
which case, unless within 10 days after such nomination the Company objects
thereto, the nominated successor trustee shall be deemed appointed a successor
trustee. If the Company so
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objects, the Trustee so removed or any Debentureholder, upon the terms, subject
to the conditions and otherwise as in subsection (a) of this Section 8.10
provided, may petition any court of competent jurisdiction for the appointment
of a successor trustee.
(d) Any resignation or removal of the Trustee and any appointment of a
successor trustee pursuant to any of the provisions of this Section 8.10 shall
become effective upon acceptance of appointment by the successor trustee as
provided in Section 8.11.
(e) The Company shall give notice of each resignation and each removal of
the Trustee and each appointment of a successor trustee by mailing written
notice of such event by first-class mail, postage pre-paid, to the
Debentureholders as their names and addresses appear in the Debenture Register.
Each notice shall include the name of the successor trustee and the address of
its principal corporate trust office. If the Company fails to mail such notice
within 10 days after acceptance of appointment by the successor trustee, the
successor trustee shall cause such notice to be mailed at the expense of the
Company.
Section 8.11. Acceptance by Successor Trustee. Any successor trustee
appointed as provided in Section 8.10 shall execute, acknowledge and deliver to
the Company and to its predecessor trustee an instrument accepting such
appointment, and thereupon the resignation or removal of the predecessor trustee
shall become effective and such successor trustee, without any further act, deed
or conveyance, shall become vested with all the rights, powers, duties and
obligations of its predecessor, with like effects as if originally named as
trustee herein; but, nevertheless, on the written request of the Company or of
the successor trustee, the trustee ceasing to act shall, upon payment of any
amounts then due it pursuant to the provisions of Section 8.06, execute and
deliver an instrument transferring to such successor trustee all the rights and
powers of the trustee so ceasing to act. Upon request of any such successor
trustee, the Company shall execute any and all instruments in writing for more
fully and certainly vesting in and confirming to such successor trustee all such
rights and powers.
No successor trustee shall accept appointment as provided in this Section
8.11 unless at the time of such acceptance such successor trustee. shall be
qualified under the provisions of Section 8.08 and eligible under the provisions
of Section 8.09.
Section 8.12. Succession by Merger. etc. 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 or conversion or consolidation to which
the Trustee shall be a party, or any
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corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder without
the execution or filing of any paper or any further act on the part of any of
the parties hereto, anything herein to the contrary notwithstanding; provided,
such corporation shall be qualified under the provisions of Section 8.08 and
eligible under the provisions of Section 8.09.
If at the time such successor trustee shall succeed to the trusts created
by this Indenture any of the Debentures shall have been authenticated but not
delivered, any such successor trustee may adopt the certificate of
authentication of any predecessor trustee, and deliver or cause to be delivered
such Debentures so authenticated; and in case at that time any of the Debentures
shall not have been authenticated, any successor to the Trustee may authenticate
such Debentures either in the name of any predecessor hereunder or in the name
of the successor trustee; and in all such cases such certificate shall have the
full force which it is anywhere in the Debentures or in this Indenture provided
that the certificate of the Trustee shall have; provided, however, that the
right to adopt the certificate of authentication of any predecessor trustee or
authenticate Debentures in the name of any predecessor trustee shall apply only
to the successor or successors by merger, conversion or consolidation.
Section 8.13. Limitations on Rights of Trustee as a Creditor. (a) Subject
to the provisions of subsection (b) of this Section 8.13, if the Trustee shall
be or shall become a creditor, directly or indirectly, secured or unsecured, of
the Company within four months prior to a default, as defined in subsection (c)
of this Section 8.13, or subsequent to such a default, then, unless and until
such default shall be cured, the Trustee shall set apart and hold in a special
account for the benefit of the Trustee individually, the holders of the
Debentures and the holders of other indenture securities (as defined in
subsection (c) of this Section 8.13)
(i) an amount equal to any and all reductions in the amount due and
owing upon, any claim as such creditor in respect of principal or interest,
effected after the beginning of such four month period and valid as against
the Company and its other creditors, except any such reduction resulting
from the receipt or disposition of any property described in paragraph (ii)
of this subsection, or from the exercise of any right of set-off which the
Trustee could have exercised if a petition in bankruptcy had been filed by
or against the Company upon the date of such default; and
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(ii) all property received by the Trustee in respect of any claim as
such creditor, either as security therefor, or in satisfaction or
composition thereof, or otherwise, after the beginning of such four month
period, or an amount equal to the proceeds of any such property, if
disposed of, subject, however, to the rights, if any, of the Company and
its other creditors in such property or such proceeds.
Nothing herein contained, however, shall affect the right of the Trustee
(A) to retain for its own account (1) payments made on account of any
such claim by any person (other than the Company) who is liable
thereon, (2) the proceeds of the bona fide sale of any such claim
by the Trustee to a third person, and (3) distributions made in
cash, securities or other property Respect of claims filed
against the Company in bankruptcy or receivership or in
proceedings for reorganization pursuant CO the Bankruptcy Code,
or any other federal or state bankruptcy, insolvency or similar
law;
(B) to realize, for its own account, upon any property held by it as
security for any such claim, if such property was so held prior
to the beginning of such four month period;
(C) to realize, for its own account, but only to the extent of the
claim hereinafter mentioned, upon any property held by it as
security for any such claim, if such claim was created after the
beginning of such four-month period and such property was
received as security therefor simultaneously with the creation
thereof, and if the Trustee shall sustain the burden of proving
that at the time such property was so received the Trustee had no
reasonable cause to believe that a default as defined in
subsection (c) of this Section 8.13 would occur within four
months; or
(D) to receive payment on any claim referred to in paragraph (B) or
(C), against the release of any property held as security for
such claim as provided in such paragraph (B) or (C), as the case
may be, to the extent of the fair value of such property.
For the purposes of paragraphs (B), (C) and (D), property substituted after
the beginning of such four month period for property held as security at the
time of such substitution shall, to the extent of the fair value of the property
released, have the same status as the property released, and, to the extent that
any claim referred to in any of such paragraphs is created in renewal of or in
substitution for or for the purpose of repaying or refunding any preexisting
claim of the Trustee
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as such creditor, such claim shall have the same status as such preexisting
claim.
If the Trustee shall be required to account, the funds and property held in
such special account and the proceeds thereof shall be apportioned between the
Trustee, the Debentureholders and the holders of other indenture securities in
such manner that the Trustee, the Debentureholders and the holders of other
indenture securities realize, as a result of payment from such special account
and payments of dividends on claims filed against the Company in bankruptcy or
receivership or in proceedings for reorganization pursuant to the Bankruptcy
Code, or any other federal or state bankruptcy, insolvency or similar law, the
same percentage of their respective claims, figured before crediting to the
claim of the Trustee anything on account of the receipt by it from the Company
of the funds and property in such special account and before crediting to the
respective claims of the Trustee, the Debentureholders and the holders of other
indenture securities dividends on claims filed against the Company in bankruptcy
or receivership or in proceedings for reorganization pursuant to the Bankruptcy
Code, or any other federal or state bankruptcy, insolvency or similar law, but
after crediting thereon receipts on account of the indebtedness represented by
their respective claims from all sources other than from such dividends and from
the funds and property so held in such special account. As used in this
paragraph, with respect to any claim, the term "dividends" shall include any
distribution with respect to such claim, in bankruptcy or receivership or in
proceedings for reorganization pursuant to the federal bankruptcy laws, as now
or hereafter constituted, or any other federal or state bankruptcy, insolvency
or similar law, whether such distribution is made in cash, securities or other
property, but shall not include any such distribution with respect to the
secured portion, if any, of such claim. The court in which said bankruptcy,
receivership or proceeding for reorganization is pending shall have jurisdiction
(1) to apportion between the Trustee, the Debentureholders and the holders of
other indenture securities, in accordance with the provisions of this paragraph,
the funds and property held in such special account and the proceeds thereof, or
(2) in lieu of such apportionment, in whole or in part, to give to the
provisions of this paragraph due consideration in determining the fairness of
the distributions to be made to the Trustee, the Debentureholders and the
holders of other indenture securities with respect to their respective claims,
in which event it shall not be necessary to liquidate or to appraise the value
of any securities or other property held in such special account or as security
for any such claim, or to make a specific allocation of such distributions as
between the secured and unsecured portions of such claims, or otherwise to apply
the provisions of this paragraph as a mathematical formula.
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Any Trustee who has resigned or been removed after the beginning of such
four month period shall be subject to the provisions of this subsection (a) as
though such resignation or removal had not occurred. If any Trustee has resigned
or been removed prior to the beginning of such four month period, it shall be
subject to the provisions of this subsection (a) if and only if the following
conditions exist:
(i) the receipt of property or reduction of claim which would have
given rise to the obligation to account, if such Trustee had continued as
Trustee, occurred after the beginning of such four month period; and
(ii) such receipt of property or reduction of claim occurred within
four months after such resignation or removal.
(b) There shall be excluded from the operation of subsection (a) of this
Section 8.13 a creditor relationship arising from
(i) the ownership or acquisition of securities issued under any
indenture, or any security or securities having a maturity of one year or
more at the time of acquisition by the Trustee;
(ii) advances authorized by a receivership or bankruptcy court of
competent jurisdiction, or by this Indenture, for the purpose of preserving
any property which shall at any time be subject to the lien of this
Indenture or of discharging tax liens or other prior liens or encumbrances
thereon, if notice of such advance and of the circumstances surrounding the
making thereof is given to the debentureholders at the time and in the
manner provided in Section 6.04 with respect to reports pursuant to
subsections (a) and (b) thereof, respectively, and to the holders of other
indenture securities;
(iii) disbursements made in the ordinary course of business in the
capacity of trustee under an indenture, transfer agent, registrar,
custodian, paying agent, fiscal agent or depositary, or other similar
capacity;
(iv) an indebtedness created as a result of services rendered or
premises rented; or an indebtedness created as a result of goods or
securities sold in a cash transaction as defined in subsection (c) of this
Section 8.13;
(vi) the ownership of stock or of other securities of a corporation
organized under the provisions of Section 25(a) of the
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Federal Reserve Act, as amended, which is directly or indirectly a creditor
of the Company; or
(vi) the acquisition, ownership, acceptance or negotiation of any drafts,
bills of exchange, acceptances or obligations which fall within the
classification of self-liquidating paper, as defined in subsection (c) of this
Section 8.13.
(c) As used in this Section 8.13:
(i) The term "default" shall mean any failure to make payment in full of
the principal of (or premium, if any) or interest upon any of the Debentures or
upon the other indenture securities when and as such principal (or premium, if
any) or interest becomes due and payable.
(ii) The term "other indenture securities" shall mean securities upon which
the Company is an obligor (as defined in the Trust Indenture Act of 1939)
outstanding under any other indenture (A) under which the Trustee is also a
trustee, (B) which contains provisions substantially similar to the provisions
of subsection (a) of this Section 8.13, and (C) under which a default exists at
the time of the apportionment of the funds and property held in said special
account.
(iii) The term "cash transaction" shall mean any transaction in which full
payment for goods or securities sold is made within seven days after delivery of
the goods or securities in currency or in checks or other orders drawn upon
banks or bankers and payable upon demand.
(iv) The term "self-liquidating paper" shall mean any draft, bill of
exchange, acceptance or obligation which is made, drawn, negotiated or incurred
by the Company for the purpose of financing the purchase, processing,
manufacture, shipment, storage or sale of goods, wares or merchandise and which
is secured by documents evidencing title to, possession of, or a lien upon, the
goods, wares or merchandise or the receivables or proceeds arising from the sale
of the goods, wares or merchandise previously constituting the security;
provided the security is received by the Trustee simultaneously with the
creation of the creditor relationship with the Company arising from the making,
drawing, negotiating or incurring of the draft, bill of exchange, acceptance or
obligation.
(v) The term "Company" shall mean any obligor upon the Debentures.
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Section 8.14. Authenticating Asent of the Trustee. As long as any of the
Debentures remain outstanding, the Trustee may appoint an authenticating agent
to act on the Trustee's behalf in connection with the authentication of the
Debentures which shall be a corporation organized and doing business under the
laws of the United States or of any state, authorized under such laws to
exercise corporate trust powers, having a combined capital and surplus of at
least $50,000,000 and subject to supervision or examination by Federal or state
authority. If such corporation publishes reports of condition at least annually,
pursuant to law or to the requirements of any supervising or examining authority
above referred to, then for the purposes of this Section 8.14 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 as
published. Any such Authenticating Agent shall be appointed by the Trustee by an
instrument in writing, shall be subject in all respects to the control and
direction of the Trustee and shall have no responsibility or liability for any
action taken by it in good faith at the direction of the Trustee.
Any corporation into which any Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which any Authenticating Agent
shall be a party, or any corporation succeeding to the corporate trust business
of any Authenticating Agent, shall continue to be the Authenticating Agent
without the execution or filing of any paper or any further act on the part of
the Trustee or the Authenticating Agent.
Any Authenticating Agent may at any time resign by giving written notice of
resignation to the Trustee and to the Company. The Trustee may at any time
terminate the agency of any Authenticating Agent by giving written notice of
termination to such Authenticating Agent and to the Company. Upon receiving such
a notice of resignation or upon such a termination, or in case at any time any
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section 8.14, the Trustee may appoint a successor
Authenticating Agent and shall give written notice of any such appointment to
the Company. The Company shall mail to the holders of Debentures by first class
mail notice thereof. If the Company fails to mail such notice within 30 days
after the appointment of any such successor Authenticating Agent, the Trustee
shall, in its discretion, cause such notice to be mailed at the expense of the
Company. Any successor Authenticating Agent upon acceptance of its appointment
hereunder shall become vested with all the rights, powers, duties and
responsibilities of its predecessor hereunder, with like effect as if originally
appointed by the Trustee as Authenticating
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Agent. No successor Authenticating Agent shall be appointed unless eligible
under the provisions of this Section 8.14.
To the extent that the Trustee shall be entitled to be reimbursed and is
reimbursed for such payments, subject to the provisions of Section 8.06, the
Trustee agrees to pay to any Authenticating Agent from time to time reasonable
compensation for its services, and the Trustee shall be entitled to be
reimbursed for such payments subject to the provisions of Section 8.06.
ARTICLE NINE
Concerning the Debentureholders
Section 9.01. Action by Debentureholders. Whenever in this Indenture it
is provided that the holders of a specified percentage in aggregate principal
amount of the Debentures may take any action (including the making of any demand
or request, the giving of any notice, consent or waiver or the taking of any
other action) the fact that at the time of taking any such action the holders of
such specified percentage have joined therein may be evidenced (a) by any
instrument or any number of instruments of similar tenor executed by
debentureholders in person or by agent or proxy appointed in writing, or (b) by
the record of the holders of Debentures voting in favor thereof at any meeting
of Debentureholders duly called and held in accordance with the provisions of
Article Ten, or (c) by a combination of such instrument or instruments and any
such record of such a meeting of Debentureholders.
Section 9.02. Proof of Execution bv Debentureholders. Subject to the
provisions of Sections 8.01, 8.02 and 10.05 hereof, the execution of any proxy,
consent or other instrument by a Debentureholder or his agent or proxy shall be
deemed sufficient and conclusive for all purposes of this Indenture if (a) the
Trustee, Debenture Registrar or Company, as the case may be, shall have mailed
or delivered to the Debentureholder at his address as shown on the Debenture
Register such proxy, consent or other instrument, (b) the proxy, consent or
other instrument shall have been returned to the Trustee, Debenture Registrar or
Company, as the case may be, bearing a signature purporting and reasonably
appearing to be that of the Debentureholder, his agent or proxy, and (c) the
person receiving the executed proxy, consent or other instrument shall have no
actual knowledge or notice of any irregularity, or of any fact or circumstance,
which, if substantiated, would impair the validity of such proxy consent or
other instrument. The matters referred to in clauses (a), (b) and (c), above, of
this Section 9.02 may be evidenced by a certificate of the Trustee or Debenture
Registrar or an Officers' Certificate of the Company, as the case may be.
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The ownership of Debentures shall be proved by the Debenture Register or
by a certificate of the Debenture Registrar thereof.
The Trustee shall not be bound to recognize any person as a
Debentureholder unless and until his title to the Debentures held by him is
proved in the manner in this Article Nine provided.
The Trustee may require such additional proof of any matter referred to in
this Section 9.02 as it shall deem necessary.
The record of any Debentureholders' meeting shall be proved in the manner
provided in Section 10.06.
Section 9.03. Who May be Deemed Owners of Debentures. The Company, the
Trustee, any Authenticating Agent; any paying agent and any Debenture Registrar
may deem and treat the person in whose name any Debenture shall be registered in
the Debenture Register as the absolute owner of such Debenture (whether or not
such Debenture shall be overdue and notwithstanding any notation of ownership or
other writing thereon made by anyone other than the Company or any Debenture
Registrar) for the purpose of receiving payment thereof or on account thereof
and for all other purposes, and neither the Company nor the Trustee nor any
Authenticating Agent nor any paying agent nor any Debenture Registrar shall be
affected by any notice to the contrary. All such payments so made to any such
registered holder for the time being, or upon his order, shall be valid, and, to
the extent of the sum or sums so paid, effectual to satisfy and discharge the
liability for monies payable upon any such Debenture.
Section 9.04. Company-Owned Debentures Disregarded. In determining whether
the holders of the requisite aggregate principal amount of Debentures have
concurred in any direction, consent or waiver under this Indenture, Debentures
which are owned by the Company or any other obligor on the Debentures or by any
person directly or indirectly controlling or controlled by or under direct or
indirect common control with the Company or any other obligor on the Debentures
shall be disregarded and deemed not to be outstanding for the purpose of any
such determination, except that for the purpose of determining whether the
Trustee shall be protected in relying on any such direction, consent or waiver
only Debentures which the Trustee knows are so owned shall be so disregarded.
Debentures so owned which have been pledged in good faith may be regarded as
outstanding for the purposes of this Section 9.04, if the pledgee shall
establish to the satisfaction of the Trustee the pledgee's right to vote such
Debentures and that the pledgee is not a person directly or indirectly
controlling or controlled by or under direct or indirect
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common control with the Company or any such other obligor. Upon request of the
Trustee, the Company shall furnish to the Trustee promptly an Officers'
Certificate listing and identifying all Debentures, if any, known by the Company
to be owned or held by or for the account of any of the above described persons;
and, subject to the provisions of Section 8.01, the Trustee shall be entitled to
accept such Officers' Certificate as conclusive evidence of the facts therein
set forth and of the fact that all Debentures not listed therein are outstanding
for the purposes of any such determination.
Section 9.05. Instruments Executed by Debentureholders Bind Future Holders.
At any time prior to (but not after) the evidencing to the Trustee, as provided
in Section 9.01, of the taking of any action by the holders of the percentage
in aggregate principal amount of the Debentures specified in this Indenture in
connection with such action, any holder of a Debenture which is shown by the
evidence to be included in the Debentures the holders of which have consented to
or are bound by consents to such action may, by filing written notice with the
Trustee at its office and upon proof of ownership as provided in Section 9.02,
revoke such action so far as concerns such Debenture. Except as aforesaid any
such action taken by the holder of any Debenture shall be conclusive and binding
upon such holder and upon all future holders and owners of such Debenture, and
of any Debenture issued in exchange or substitution therefor, irrespective of
whether or not any notation in regard thereto is made upon such Debenture.
ARTICLE TEN
Debentureholders' Meetings
Section 10.01. Purposes of Meetings. A Meetings of Debentureholders may be
called at any time and from time to time pursuant to the provisions of this
Article Ten for any of the following purposes:
(i) to give any notice to the Company or to the Trustee, or, to give any
directions to the Trustee, or to consent to the waiving of any default
hereunder and its consequences, or to take any other action
authorized to be taken by Debentureholders pursuant to any of the
provisions of Article Seven;
(ii) to remove the Trustee and nominate for appointment a successor
trustee pursuant to the provisions of Article Eight;
(iii)to consent to the execution of an indenture or indentures supplemental
hereto pursuant to the provisions of Section 11.02; or
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(iv) to take any other action authorized to be taken by or on behalf of
the holders of any specified aggregate principal amount of the
Debentures under any other provision of this Indenture or under
applicable law.
Section 10.02. Manner of Calling Meetings. The Trustee may at any
time call a meeting of Debentureholders to take any action specified in
Section 10.01, to be held at such time and at such place in Houston,
Texas or the Borough of Manhattan, the City of New York, as the Trustee
shall determine. Notice of every meeting of the Debentureholders,
setting forth the time and the place of such meeting and in general terms
the action proposed to be taken at such meeting, shall be mailed to the
holders of Debentures at their addresses as shown by the Debenture Reg-
ister not less than 20 nor more than 60 days prior to the date fixed for
the meeting.
Section 10.03. Call of Meetings by Company or Debentureholders. In case at
any time the Company, pursuant to a resolution of its Board of Directors, or
the holders of at least 10 percent in aggregate principal amount of the
Debentures then outstanding, shall have requested the Trustee to call a
meeting of Debentureholders to take any action authorized in Section 10.01,
by written request setting forth in reasonable detail the action proposed to be
taken at the meeting, and the Trustee shall not have mailed the notice of such
meeting within 20 days after receipt of such request, then the Company or the
holders of Debentures in the amount above specified may determine the time and
the place in the Borough of Manhattan, The City of New York, for such meeting
and may call such meeting to take any action authorized by Section
10.01, by mailing notice thereof as provided in Section 10.02.
Section 10.04. Who May Attend and Vote at Meetings. To be entitled to
vote at any meeting of Debentureholders, a person shall (a) be a holder of one
or more Debentures, or (b) be a person appointed by an instrument in writing as
proxy by a holder of one or more Debentures. The only persons who shall be
entitled to be present or to speak at any meeting of Debentureholders shall be
the persons entitled to vote at such meeting and their counsel and any
representatives of the Trustee and its counsel and any representatives of the
Company and its counsel.
Section 10.05. Regulations May be Made by Trustee. Notwithstanding
any other provisions of this Indenture, the Trustee may make such reason-
able regulations as it may deem advisable for any meeting of
Debentureholders, in regard to proof of the holding of Debentures and of
the appointment of proxies, and in regard to the appointment and duties
of inspectors of votes, the submission and examination of proxies,
certificates and other evidence of the right to vote, and such other
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matters concerning the conduct of the meeting as it shall think fit. Except
as otherwise permitted or required by any such regulations, the holding of
Debentures shall be proved in the manner specified in Section 9.02, and the
appointment of any proxy shall be proved in the manner specified in said
Section 9.02 or by having the signature of the person executing the proxy
witnessed or guaranteed by any bank, banker or trust company.
The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Debentureholders as provided in Section 10.03, in which
case the Company or the Debentureholders calling the meeting, as the case
may be, shall in like manner appoint a temporary chairman. A permanent
chairman and a permanent secretary of the meeting shall be elected by
vote of the holders of a majority in principal amount of the Debentures
represented at the meeting and entitled to vote.
Subject to the provisions of Section 9.04, at any meeting each
Debentureholder or proxy shall be entitled to one vote for each $1,000 principal
amount of Debentures held or represented by him; provided, however, that no
vote shall be cast or counted at any meeting in respect of any Debenture
challenged as not outstanding and ruled by the chairman of the meeting to be not
outstanding. The chairman of the meeting shall have no right to vote other than
by virtue of Debentures held by him or instruments in writing as aforesaid duly
designating him as the person to vote on behalf of other Debentureholders.
Any meeting of debentureholders duly called pursuant to the provisions of
Section 10.02 or 10.03 may be adjourned from time to time, and the meeting may
be held as so adjourned without further notice.
At any meeting of debentureholders, the presence of persons holding or
representing Debentures in an aggregate principal amount sufficient to take
action upon the business for the transaction of which such meeting was called
shall be necessary to constitute a quorum; but, if less than a quorum be
present, the persons holding or representing a majority of the Debentures
represented at the meeting may adjourn such meeting with the same effect as
though a quorum had been present.
Section 10.06. Manner of Voting at Meetings and Record to be Kept. The
vote upon any resolution submitted to any meeting of Debentureholders shall be
by written ballots on which shall be subscribed the signatures of the
Debentureholders or proxies and the principal amount of the Debentures held or
represented by them. The permanent chairman of the meeting shall appoint two
inspectors of votes who shall count all votes cast at the meeting for or against
any resolution and who shall make and file with the secretary of the meeting
their verified
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written reports in duplicate of all votes cast at the meeting. A record in
duplicate of the proceedings of each meeting of Debentureholders shall be
prepared by the secretary of the meeting and there shall be attached to said
record the original reports of the inspectors of votes on any vote by ballot
taken thereat and affidavits by one or more persons having knowledge of the
facts setting forth a copy of the notice of the meeting and showing that said
notice was mailed as provided in Section 10.02. The record shall be signed and
verified by the affidavits of the permanent chairman and secretary of the
meeting and one of the duplicates shall be delivered to the Company and the
other to the Trustee to be preserved by the Trustee, the latter to have
attached thereto the ballots voted at the meeting.
Any record so signed and verified shall be conclusive evidence of
the matters therein stated.
Section 10.07. No Delay of Rights by Meeting. Nothing in this Article Ten
contained shall be deemed or construed to authorize or permit, by reason of
any call of a meeting of Debentureholders or any rights expressly or impliedly
conferred hereunder to make such call, any hindrance or delay in the exercise
of any right or rights conferred upon or reserved to the Trustee or to the
Debentureholders under any of the provisions of this Indenture or of the
Debentures.
ARTICLE ELEVEN
Supplemental Indentures
Section 11.01. Supplemental Indentures Without Consent of Debentureholders. The
Company, when authorized by a resolution of its Board of Directors, and the
Trustee may from time to time and at any time enter into an indenture or
indentures supplemental hereto (which shall conform to the provisions of the
Trust Indenture Act of 1939 as in force at the date of the execution thereof)
for one or more of the following purposes:
(a) to evidence the succession of another corporation to the
Company or successive successions, and the assumption by the successor
corporation of the covenants, agreements and obligations of the Company
pursuant to Article Twelve and, if appropriate, an adjustment in the
conversion price pursuant to Section 14.06;
(b) to add to the covenants of the Company such further covenants,
restrictions, conditions or provisions as its Board of Directors and
the Trustee shall consider to be for the protection of the holders of
Debentures, and to make the occurrence, or the occur-
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rence and continuance, of a default in any of such additional covenants,
restrictions, conditions or provisions a default or an Event of Default
permitting the enforcement of all or any of the several remedies provided in
this Indenture as herein set forth; provided, however, that in respect of any
such additional covenant, restriction, condition or provision such supplemental
indenture may provide for a particular period of grace after default (which
period may be shorter or longer than that allowed in the case of other
defaults) or may provide for an immediate enforcement upon such default or may
limit the remedies available to the Trustee upon such default or may limit the
right of the holders of a majority in aggregate principal amount of the
Debentures to waive such default;
(c) to cure any ambiguity or to correct or supplement any provision
contained herein or in any supplemental indenture which may be defective
or inconsistent with any other provision contained herein or in any
supplemental indenture; to convey, transfer, assign, mortgage or pledge
any property to or with the Trustee; or to amend such other provisions in
regard to matters or questions arising under this Indenture, provided
that such action shall not adversely affect the interests of the holders
of the Debentures; and
(d) to modify, eliminate or add to the provisions of this Indenture to
such extent as shall be necessary or helpful to conform to any mandatory
or optional provisions of, or to retain the qualification of the
Indenture under, the Trust Indenture Act as the same may from time to time
be amended.
The Trustee is hereby authorized to join with the Company in the execution
of any such supplemental indenture, to make any further appropriate
agreements and stipulations which may be therein contained and to accept
the conveyance, transfer, assignment, mortgage or pledge of any property
thereunder, but the Trustee shall not be obligated to enter into any
such supplemental indenture which adversely affects the Trustee's
own rights, duties or immunities under this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this Section
11.01 may be executed by the Company and the Trustee without the
consent of the holders of any of the Debentures at the time outstanding,
notwithstanding any of the provisions of Section 11.02.
Section 11.02. Supplemental Indentures With Consent of
Debentureholders. With the consent (evidenced as provided in Section
9.01) of the holders of not less than 66-2/3% in aggregate principal
amount of the Debentures at the time outstanding, the Company, when
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authorized by a resolution of its Board of Directors, and the Trustee may from
time to time and at any time enter into an indenture or indentures supplemental
hereto (which shall conform to the provisions of the Trust Indenture Act of 1939
as in force at the date of the execution thereof) for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Indenture or of any supplemental indenture or of modifying in any manner
the rights of the holders of the Debentures; provided, however, that no such
supplemental indenture shall (a) extend the fixed maturity of any Debenture,
or reduce the principal amount thereof or any premium thereon, or reduce the
rate or extend the time of payment of interest thereon, or make the principal
thereof or premium, if any, or interest thereon payable in any coin or currency
other than that provided in the Debentures, or adversely affect the right to
convert any Debentures as provided in Article Fourteen or modify the provisions
of this Indenture with respect to the subordination of the Debentures in a
manner adverse to the Debentureholders, without the consent of the holder of
each Debenture so affected, or (b) reduce the aforesaid percentage of
Debentures, the consent of the holders of which is required for any such
supplemental indenture, without the consent of the holders of all Debentures
then outstanding.
Upon the request of the Company, accompanied by a copy of a resolution
of its Board of Directors certified by the Secretary or an Assistant Secretary
of the Company authorizing the execution of any such supplemental indenture, and
upon the filing with the Trustee of evidence of the consent of the
Debentureholders as aforesaid, the Trustee shall join with the Company in the
execution of such supplemental indenture unless such supplemental indenture
affects the Trustee's own rights, duties or immunities under this Indenture or
otherwise, in which case the Trustee may in its discretion but shall not be
obligated to enter into such supplemental indenture,
It shall not be necessary for the consent of the Debentureholders under
this Section 11.02 to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of this Section 11.02, the
Company shall mail to the Debentureholders a notice, setting forth in general
terms the substance of such supplemental indenture. Any failure of the Company
to mail such notice, or any defect therein, shall not, however, in any way
impair or affect the validity of any such supplemental indenture.
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Section 11.03. Effect of Supplemental Indentures. Upon the execution
of any supplemental indenture pursuant to the provisions of this Article
Eleven, this Indenture shall be and be deemed to be modified and amended in
accordance therewith and the respective rights, limitations of rights,
obligations, duties and immunities under this Indenture of the Trustee, the
Company and the holders of Debentures and of Senior Indebtedness shall
thereafter be determined, exercised and enforced hereunder subject in all
respects to such modifications and amendments, and all the terms and
conditions of any such supplemental indenture shall be and be deemed to be part
of the terms and conditions of this Indenture for any and all purposes.
The Trustee, subject to the provisions of Sections 8.01 and 8.02, may
receive an Opinion of Counsel as conclusive evidence that any such supplemental
indenture complies with the provisions of this Article Eleven.
Section 11.04. Debentures May Bear Notation of Changes by Supplemental
Indentures. Debentures authenticated and delivered after the execution of any
supplemental indenture pursuant to the provisions of this Article Eleven or
after any action taken at a Debentureholders' meeting pursuant to Article Ten,
may, and shall if required by the Company, bear a notation in form approved
by the Trustee as to any matter provided for in such supplemental indenture
or as to any such action. New Debentures so modified as to conform, in the
opinion of the Trustee and the Board of Directors of the Company, to any
modification of this Indenture contained in any such supplemental indenture or
reflecting such action may be prepared by the Company, authenticated by or on
behalf of the Trustee and delivered in exchange for the Debentures
then outstanding.
ARTICLE TWELVE
Consolidation, Merger, Sale or Conveyance
Section 12.01. Consolidations and Mergers of Company and
Conveyances Permitted. Nothing contained in this Indenture or in any of the
Debentures shall prevent any consolidation or merger of the Company with or
into any other corporation or corporations or successive consolidations or
mergers in which the Company or its successor or successors shall be a
party or parties, or shall prevent any sale, conveyance or lease of all or
substantially all of the property of the Company to any other corporation
authorized to acquire and operate the same; provided, however, and the
Company hereby covenants and agrees, that any such consolidation, merger, sale,
conveyance or lease shall be upon the condition that (a) immediately after such
consolidation, merger,
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sale, conveyance or lease the corporation (whether the Company or such other
corporation) formed by or surviving any such consolidation or merger, or to
which such sale, conveyance or lease shall have been made, shall not be in
default in the performance or observance of any of the terms, covenants and
conditions of this Indenture to be kept or performed by the Company; (b) the
corporation (if other than the Company) formed by or surviving any such
consolidation or merger, or to which such sale, conveyance or lease shall
have been made, shall be a corporation organized under the laws of the United
States of America or any state thereof; and (c) the due and punctual payment of
the principal of and premium, if any, and interest on all of the Debentures,
according to their tenor, and the due and punctual performance and observance
of all the covenants and conditions of this Indenture to be performed or
observed by the Company, shall be expressly assumed, by supplemental
indenture, executed and delivered to the Trustee, by the corporation (if other
than the Company) formed by such consolidation, or into which the Company shall
have been merged, or by the corporation which shall have acquired or leased
such property.
Section 12.02. Successor Corporation Substituted. In case of any such
consolidation, merger, sale, conveyance or lease and upon the assumption
by the successor corporation, by supplemental indenture, executed and delivered
to the Trustee, of the due and punctual payment of the principal and premium, if
any, and interest on all of the Debentures and the due and punctual
performance and observance of all of the covenants and conditions of this
Indenture to be performed or observed by the Company, such successor
corporation shall succeed to and be substituted for the Company, with the
same effect as if it had been named herein as the party of the first part, and
the Company (including any intervening successor to the Company which shall have
become the obligor hereunder) shall be relieved of any further obligation
under this Indenture and the Debentures; provided, however, that in the case of
a sale, conveyance or lease of the property of the Company (including any such
intervening successor) in connection with which there is not a plan providing
for the complete liquidation of the Company (including any such intervening
successor), the Company (including any such intervening successor) shall
continue to be liable on its obligations under this Indenture and the
Debentures to the extent, but only to the extent, of liability to pay the
principal of and premium, if any, and interest on the Debentures at the time,
places and rate, and in the coin or currency, prescribed in this Indenture and
the Debentures. Such successor corporation thereupon may cause to be signed,
and may issue either in its own name or in the name of Allwaste, Inc., any or
all of the Debentures issuable hereunder which theretofore shall not have been
signed by the Company and delivered to the Trustee; and, upon the order of
such successor corporation instead of the Company, and subject to all the
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terms, conditions and limitations in this Indenture prescribed, the Trustee
shall authenticate and shall deliver any Debentures which previously shall
have been signed and delivered by the officers of the Company to the Trustee
for authentication, and any Debentures which such successor corporation
thereafter shall cause to be signed and delivered to the Trustee for that
purpose. All the Debentures so issued shall in all respects have the same
legal rank and benefit under this Indenture as the Debentures theretofore or
thereafter issued in accordance with the terms of this Indenture as though all
of such Debentures had been issued at the date of the execution hereof.
In case of any such consolidation, merger, sale, conveyance or lease such
changes in phraseology and form (but not in substance) may be made in the
Debentures thereafter to be issued as may be appropriate.
Nothing contained in this Indenture or in any of the Debentures shall
prevent the Company from merging into itself any other corporation (whether or
not affiliated with the Company) or acquiring by purchase or otherwise all or
any part of the property of any other corporation (whether or not affiliated
with the Company).
Section 12.03. Opinion of Counsel. The Trustee, subject to the
provisions of Sections 8.01 and 8.02, may receive an Opinion of Counsel as
conclusive evidence that any such consolidation, merger, sale,
conveyance or lease complies with the provisions of this Article Twelve,
ARTICLE THIRTEEN
Satisfaction and Discharge of Indenture;
Unclaimed Moneys
Section 13.01. Satisfaction and Discharqe of Indenture. If at any time
(a) the Company shall have delivered to the Debenture Registrar for
cancellation all Debentures theretofore authenticated (other than any
Debentures which shall have been destroyed, lost or stolen and which shall
have been replaced or paid as provided in Section 2.07) and not theretofore
cancelled, or (b) all the Debentures not theretofore cancelled or delivered to
the Debenture Registrar for cancellation shall have become due and payable, or
are by their terms to become due and payable within one year or are to be
called for redemption within one year under arrangements satisfactory to the
Trustee for the giving of notice of redemption, and the Company shall deposit
with the Trustee in trust, funds or U.S. Government Obligations sufficient to
pay at maturity or upon redemption all the Debentures (other than any
Debenture which shall have been destroyed, lost or stolen and which shall have
been replaced or paid as provided in Section 2.07) not theretofore cancelled
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or delivered to the Debenture Registrar for cancellation, including principal
and premium, if any, and interest due or to become due to such date of
maturity or redemption date, as the case may be, but excluding, however, the
amount of any moneys for the payment of principal of or premium, if any, or
interest on the Debentures (1) theretofore deposited with the Trustee and
repaid by the Trustee to the Company in accordance with the provisions of
Section 13.04, or (2) paid to any governmental authority pursuant to its
unclaimed property or similar laws, and if in either case the Company shall
also pay or cause to be paid all other sums payable hereunder by the Company,
then, except with respect to the remaining rights of conversion of any
Debentures (which shall continue in full force and effect upon the terms set
forth in Article Fourteen) and as to any surviving rights of transfer or
exchange of Debentures herein expressly provided for, this Indenture shall
cease to be of further effect, and the Trustee, on demand of the Company
accompanied by an Officers' Certificate and an Opinion of Counsel acquired by
Section 16.07 and at the cost and expense of the Company, shall execute
proper instruments acknowledging satisfaction of and discharging this
Indenture. The Company agrees to reimburse the Trustee for any costs or
expenses thereafter reasonably and properly incurred by the Trustee in
connection with this Indenture or the Debentures. Notwithstanding the
satisfaction and discharge of this Indenture the obligations of the Company to
the Trustee under Section 8.06, the rights, privileges and immunities of the
Trustee under Article Eight, and the obligations of the Trustee under Sections
13.02 and 13.04 or any Authenticating Agent under Section 8.14 shall survive.
In order to have money available on a payment date to pay principal or
interest on the Debentures, the U.S. Government Obligations shall be payable
as to principal or interest before such payment date in such amounts as
will provide the necessary money. U.S. Government Obligations shall
not be callable at the issuer's option.
Section 13.02. Application by Trustee of Funds Deposited for Payment of
Debentures. Subject to the provisions of Section 13.04, all moneys and U.S.
Government Obligations deposited with the Trustee pursuant to Section 13.01
shall be held in trust and such moneys and the proceeds of U.S. Government
Obligations shall be applied by it 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 the payment of which such moneys have been
deposited with the Trustee. All moneys and U.S. Government Obligations (or the
proceeds thereof) deposited with the Trustee pursuant to Section 13.01 and held
by it or any paying agent for the payment of Debentures subsequently
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converted shall be returned to the Company upon written request of the Company.
Section 13.03. Repayment of Moneys Held by Paying Agent. In connection
with the satisfaction and discharge of this Indenture all moneys then held by
any paying agent (other than the Trustee) under the provisions of this
Indenture shall, upon demand of the Company, be paid to the Trustee and
thereupon such paying agent shall be released from all further liability with
respect to such moneys.
Section 13.04. Repayment of Moneys Held by Trustee. Any moneys
deposited with the Trustee or any paying agent for the payment of the
principal of or premium, if any, or interest on any Debentures and not applied
but remaining unclaimed by the holders of Debentures for two years after the
date upon which such payment shall have become due and payable, shall be repaid
to the Company by the Trustee or by such paying agent on demand; and the
holder of any of the Debentures entitled to receive such payment shall
thereafter look only to the Company for the payment thereof and all liability
of the Trustee or any paying agent with respect to such moneys 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 a week for two successive weeks (in each case on any day of
the week) in an Authorized Newspaper a notice that said moneys have not been so
applied and that after a date named therein any unclaimed balance of said
moneys then remaining will be returned to the Company.
ARTICLE FOURTEEN
Conversion of Debentures
Section 14.01. Conversion Right and Conversion Price. Subject to and
upon compliance with the provisions of this Article Fourteen, the holder of
any Debenture shall have the right, at his option, to convert the principal
amount of such Debenture or any portion thereof which is $1,000 or an integral
multiple thereof at any time up to and including June 1, 2014, or in case such
Debenture or portion thereof shall have been called for redemption prior to
such date, then in respect of such Debenture or portion thereof until and
including, but (unless the Company shall default in the payment due upon the
redemption thereof) not after, the close of business on the fifth day prior to
the redemption date therefor, into that number of fully-paid and nonassessable
shares (calculated as to such conversion to the nearest 1/100th of a share) of
Common Stock of the Company, obtained by dividing the principal amount of the
Debenture or portion thereof surrendered for conversion by the conversion
price, determined as hereinafter provided, in effect at the
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time of conversion, upon surrender of the Debenture, the principal (or portion
thereof) of which is so to be converted, accompanied by (i) a duly executed
notice of conversion which may be in the form appearing in the form of Debenture
herein or such other form as is satisfactory to the Company and the Trustee
(specifying, if less than the entire principal amount thereof is to be
converted, the portion thereof to be converted) at any time during usual
business hours at the office or agency to be maintained by the Company in
accordance with the provisions of Section 5.02, (ii) a written instrument or
instruments of transfer in form satisfactory to the Trustee duly executed by the
holder or his attorney duly authorized in writing, and (iii) the funds, if any,
required by Section 14.03. For convenience, the conversion of any portion of the
principal of any Debenture or Debentures into the Common Stock of the Company is
hereafter sometimes referred to as the conversion of such Debenture or
Debentures.
The price at which shares of Common Stock shall be delivered upon
conversion (herein called the "conversion price"), shall be initially $23-7/8
per share of Common Stock. The conversion price shall be subject to adjustment
from time to time in certain instances as hereinafter provided.
Section 14.02. Issuance of Common Stock on Conversion. (a) As promptly
as practicable after the surrender, as herein provided, of any Debenture or
Debentures for conversion, accompanied by the funds, if any, required by Section
14.03, the Company shall deliver or cause to be delivered at its said office or
agency, to or upon the written order of the holder of the Debenture or
Debentures so surrendered, certificates representing the number of fully paid
and nonassessable shares of Common Stock of the Company into which such
Debenture or Debentures may be converted in accordance with the provisions of
this Article Fourteen. Such conversion shall be deemed to have been made at
the close of business on the date that such Debenture or Debentures shall have
been surrendered for conversion with a notice of conversion duly executed,
accompanied by the funds, if any, required by Section 14.03, so that the rights
of the holder of such Debenture or Debentures as a Debentureholder shall cease
at such time and, subject to the following provisions of this paragraph, the
person or persons entitled to receive the shares of Common Stock upon conversion
of such Debenture or Debentures shall be treated for all purposes as having
become the record holder or holders of such shares of Common Stock at such time
and such conversion shall be at the conversion price in effect at such time;
provided, however, that no such surrender on any date when the stock transfer
books of the Company shall be closed shall be effective to constitute the person
or persons entitled to receive the shares of Common Stock upon such conversion
as the record holder or holders of such shares of Common Stock on such date, but
such
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surrender shall be effective to constitute the person or persons entitled to
receive such shares of Common Stock as the record holder or holders thereof for
all purposes at the close of business on the next succeeding day on which such
stock transfer books are open; and, in that event such conversion shall be at
the conversion price in effect on the date that such Debenture or Debentures
shall have been surrendered for conversion, as if the stock transfer books of
the Company had not been closed.
(b) All Debentures surrendered for conversion shall, if surrendered to the
Company or any conversion agent, be delivered to the Debenture Registrar for
cancellation and cancelled by it or, if surrendered to the Debenture Registrar,
shall be cancelled by it, and, subject to the next succeeding sentence, no
Debentures shall be issued in lieu thereof. Upon conversion of any Debenture
which is converted in part only, the Company shall execute and the Trustee or
Authenticating Agent shall authenticate and the Debenture Registrar shall
register and deliver to or on the order of the holder thereof, at the expense
of the Company, a new Debenture or Debentures of authorized denominations in
principal amount equal to the unconverted portion of such Debenture.
(c) If the last day for the exercise of the conversion right shall not be a
business day, then such conversion right may be exercised on the next succeeding
business day.
Section 14.03. Interest and Dividends; Fractions and Shares. No
adjustments in respect of interest or dividends shall be made upon the
conversion of any Debenture or Debentures; provided, however, that if a
Debenture or any portion hereof shall be surrendered for conversion subsequent
to the record date preceding an interest payment date but prior to such interest
payment date, such Debenture must be accompanied by funds equal to the interest
payable on such Debenture on such interest payment date on the principal amount
so converted; provided, however, that if on or before June 1, 1991 the Company
is given a notice of redemption of the Debenture in accordance with Section 4.02
of the Indenture, the holder of record of the Debentures on May 15, 1991 will be
entitled to be paid the interest thereon on June 1, 1991, whether or not the
Debenture shall have been converted prior to June 1, 1991, and without any
requirement that such Debenture be accompanied by funds in the amount of
interest payable on June 1, 1991.
No fractional shares of Common Stock shall be issued upon conversion of
Debentures. If more than one Debenture shall be surrendered for conversion at
one time by the same holder, the number of full shares which shall be issuable
upon conversion thereof shall be computed on the basis of the aggregate
principal amount of the Debentures (or specified portions thereof) so
surrendered. Instead of any fractional share of
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Common Stock which would otherwise be issuable upon conversion of any Debenture
or Debentures (or specified portions thereof), the Company shall pay a cash
adjustment in respect of such fraction in an amount equal to such fraction
multiplied by the Current Market Price defined in Section 14.04(iv) per share of
Common Stock at the close of business on the business day which next precedes
the day of conversion as determined in accordance with Section 14.04.
Section 14.04. Adjustments of Conversion Price. The conversion price in
effect at any time shall be subject to adjustments from time to time on or after
the date of original issuance of the Debentures as follows:
(i) In case the Company shall (A) declare a dividend or make a distribution
payable in Common Stock on the Common Stock, (B) subdivide or reclassify its
outstanding shares of Common Stock into a greater number of shares, or (C)
combine its outstanding shares of Common Stock into a smaller number of shares,
the conversion price in effect at the time of the record date for such dividend
or distribution or the effective date of such subdivision, combination or
reclassification shall be proportionately reduced in the case of any increase in
the number of shares of Common Stock outstanding, and increased in the case of
any reduction in the number of shares of Common Stock outstanding, so that the
holder of any Debenture surrendered for conversion after such time shall be
entitled to receive the kind and amount of shares which he would have owned or
have been entitled to receive had such Debenture been converted into Common
Stock immediately prior to such time and had such Common Stock received such
dividend or other distribution or participated in such subdivision, combination
or reclassification. Such adjustment shall be effective as of the record date
for such dividend or distribution or the effective date of such combination,
subdivision or reclassification and shall be made successively whenever any
event listed above shall occur. If, as a result of an adjustment made pursuant
to this Section 14.04(i), the holder of any Debenture thereafter surrendered for
conversion shall become entitled to receive shares of two or more classes of the
capital stock of the Company, the Board of Directors of the Company (whose
determination shall be conclusive if made in good faith and shall be described
in a statement provided to the Trustee and the registered holders of the
Debentures) shall in good faith determine the allocation of the conversion price
between and among shares of such classes of capital stock.
(ii) In case the Company shall issue rights or warrants to all holders of
its Common Stock entitling them (for a period expiring
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within 45 days of the date fixed for the determination of stockholders entitled
to receive such rights or warrants) to subscribe for or purchase shares of
Common Stock at a price per share less than the Current Market Price (as defined
in paragraph (iv) below) of the Common Stock, on the date fixed for the
determination of stockholders entitled to receive such rights or warrants (the
"Determination Date"), the conversion price at the opening of business on the
day following the Determination Date shall be reduced by multiplying the
conversion price by a fraction of which the numerator shall be the number of
shares of Common Stock outstanding at the close of business on the Determination
Date plus the number of shares of Common Stock which the aggregate of the
offering price of the total number of shares of Common Stock so offered for
subscription or purchase would purchase at such Current Market Price of the
Common Stock and the denominator shall be the number of shares of Common Stock
outstanding at the close of business on the Determination Date plus the number
of shares of Common Stock so offered for subscription or purchase, such
reduction to become effective immediately after the opening of business on the
day following the Determination Date. For purposes of determining under this
paragraph the number of shares of Common Stock outstanding at any time, there
shall be excluded all shares of Common Stock held in the treasury of the
Company. If any or all such rights or warrants are not so issued or expire or
terminate before being exercised, the conversion price then in effect shall be
appropriately readjusted, but such readjustment shall not be applied
retroactively to any conversion of Debentures effected prior to such
readjustment.
(iii) In case the Company shall distribute to all holders of its Common
Stock evidences of its indebtedness or assets (including securities, but
excluding cash dividends or a distribution referred to in paragraph (i) above or
paid out of surplus) or rights or warrants to subscribe for or purchase any of
the Company's securities (excluding those referred to in paragraph (ii) above),
the conversion price shall be adjusted so that it shall equal the price
determined by multiplying the conversion price in effect immediately prior to
the close of business on the date fixed for the determination of stockholders
entitled to receive such distribution by a fraction of which the numerator shall
be the Current Market Price per share of the Common Stock on the date fixed for
such determination less the then fair market value (as determined by the Board
of Directors of the Company, in good faith and in the exercise of its reasonable
business judgment and described in a resolution of the Board of Directors
certified by the Secretary or Assistant Secretary and filed with the Trustee),
of the portion of the assets
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or evidences of indebtedness so distributed applicable to one share of Common
Stock and the denominator shall be such Current Market Price per share of the
Common Stock; provided, however, if exercise of such right or warrant is subject
to the occurrence of a contingent event, adjustment of the conversion price
shall be made in the manner provided for in paragraph (ii) above and the date
that the right or warrant becomes exercisable shall be deemed to be the
Determination Date for purposes of such adjustment. The conversion price
adjustment made pursuant to this paragraph (iii) shall become effective
immediately prior to the opening of business on the day following the date fixed
for the determination of stockholders entitled to receive such distribution
(except in the case of rights or warrants subject to exercise upon the
occurrence of a contingent event, in which case such adjustment shall become
effective at the time such rights or warrants become exercisable).
(iv) For the purposes of this Article Fourteen, the "Current Market Price"
per share of Common Stock on any date shall be deemed to be the average of the
last reported sale prices for the twenty (20) consecutive Trading Days (as
defined below) next preceding the day in question. The last reported sale price
for each day shall be (i) the last reported sale price of Common Stock on the
National Market of the National Association of Securities Dealers, Inc.,
Automated Quotation System, or any similar system of automated dissemination of
quotations of securities prices then in common use, if so quoted, or (ii) if not
quoted as described in clause (i), the mean between the high bid and low asked
quotations for Common Stock as reported by the National Quotation Bureau
Incorporated if at least two securities dealers have inserted both bid and
asked quotations for such class of stock on at least 5 of the 10 preceding days,
or (iii) if the Common Stock is listed or admitted for trading on any national
securities exchange, the last sale price, or the closing bid price if no sale
occurred, of such class of stock on the principal securities exchange on which
such class of stock is listed. If the Common Stock is quoted on a national
securities or central market system, in lieu of a market or quotation system
described above, the closing price shall be determined in the manner set forth
in clause (ii) of the preceding sentence if bid and asked quotations are
reported but actual transactions are not, and in the manner set forth in clause
(iii) of the preceding sentence if actual transactions are reported. If none of
the conditions set forth above is met, the closing price of Common Stock on any
day or the average of such closing prices for any period shall be the fair
market value of such class of stock as determined in good faith in the exercise
of their reasonable business judgment by the Board of Directors of the Company.
As used herein the term "Trading Days"
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with respect to Common Stock means (i) if the Common Stock is quoted
on the National Market of the National Association of Securities
Dealers, Inc., Automated Quotation System or any similar system of
automated dissemination of quotations of securities prices, days on
which trades may be made on such system or (ii) if the Common Stock is
listed or admitted for trading on any national securities exchange,
days on which such national securities exchange is open for business.
(v) All calculations under this Section 14.04 shall be made to the nearest
cent or to the nearest one-hundredth of a share, as the case may be.
(vi) No adjustment in the conversion price shall be required pursuant to
any paragraph of this Section 14.04 unless such adjustment (together
with prior adjustments which by reason of this paragraph (vi) were not
required to be made at the time otherwise required by the above
paragraphs of this Section 14.04) would require a change of at least
1% in such price; provided, however, that any adjustments which by
reason of this paragraph (vi) are not required to be made shall be
carried forward and taken into account in any subsequent adjustment.
(vii) The Company from time to time may reduce the conversion price by any
amount for any period of time if the period is at Least twenty (20)
days and if the reduction is irrevocable during the period; provided,
however, that the Company may not reduce the conversion price per
share to an amount less than the par value per share of the Common
Stock into which a Debenture is at the time convertible. Whenever the
conversion price is reduced in such
manner, the Company shall mail to Debentureholders, with a copy to the
Trustee, a notice of the reduction. The Company shall mail the notice
at least fifteen (15) days before the date the reduced conversion
price takes effect. The notice shall state the reduced conversion
price and the period it will be in effect. A reduction of the
conversion price does not change or adjust the conversion price
otherwise in effect for purposes of this Article Fourteen.
Section 14.05. Certain Notices and Calculations. Whenever the conversion
price is adjusted as provided in Section 14.04, the Company shall promptly file
with the Trustee and each conversion agent (a) an Officers' Certificate in the
case of an adjustment pursuant to subsection (i) of Section 14.04, or (b) a
Certificate of a Firm of Independent Public Accountants in the case of any other
adjustment, in each case setting forth the conversion price after such
adjustment and setting forth a brief statement of the facts requiring such
adjustment
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and the computation thereof, which Officers' Certificate or Certificate of a
Firm of Independent Public Accountants, as the case may be, shall be conclusive
evidence of the correctness of any such adjustment and the Trustee and any
conversion agent may be protected in relying thereon, and promptly after such
filing shall mail or cause to be mailed a notice of such adjustment to each
Debentureholder at his last address as the same appears on the Debenture
Register. Neither the Trustee nor any conversion agent shall be under any
duty or responsibility with respect to any such Certificate except to exhibit
the same to any holder of Debentures desiring inspection thereof.
Section 14.06. Effect of Consolidation. Merger. etc. (a) In case of any
consolidation or merger of the Company with and into any other corporation
(other than a merger which does not result in any reclassification,
conversion, exchange or cancellation of outstanding shares of Common Stock),
or in case of any sale or transfer of all or substantially all of the assets of
the Company, or the reclassification of the Common Stock into another form of
capital stock of the Company, whether in whole or in part, the Company or such
successor or purchasing corporation, as the case may be, shall execute with
the Trustee a supplemental indenture providing that the holder of each Debenture
then outstanding shall have the right thereafter to convert such Debenture into
the kind and amount of shares of stock and other securities and property or cash
(including, if applicable, Common Stock) which such holder would have been
entitled to receive upon such consolidation, merger, sale, transfer or
reclassification if he had held the Common Stock issuable upon the conversion of
such Debenture immediately prior to such consolidation, merger, sale,
transfer, or reclassification. Notwithstanding the foregoing, if the holders
of Common Stock in any such consolidation, merger, sale, transfer or
reclassification are afforded an election or are otherwise permitted or required
to exchange such shares for two or more alternate forms of consideration, then
such supplemental indenture shall provide that the holder of each such
Debenture shall after such consolidation, merger, sale, transfer or
reclassification have the right to convert such Debenture into the kind and
amount of shares of stock and other securities and property or cash
(including, if applicable, Common Stock) into or for which the Common Stock
issuable upon conversion of such Debenture would have been converted or
exchanged as a result of such consolidation, merger, sale, transfer
or reclassification if held by a holder of Common Stock who failed to exercise
his rights of election (provided that if the kind and amount of shares of stock
and other securities and property or cash receivable upon such consolidation,
merger, sale, transfer or reclassification is not the same for each share of
Common Stock in respect of which such rights of election shall not have been
exercised ("non-electing share"), then for the purpose of this Section
14.06(a), the kind and amount of
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shares of stock and ocher securities and property or cash receivable upon such
consolidation, merger, sale, transfer or reclassification in respect of each
non-electing share shall be deemed to be the kind and amount so receivable per
share by a plurality of the non-electing shares).
(b) Any supplemental indenture entered into pursuant to this Section
14.06 shall (i) where appropriate, state the conversion price in terms of one
full share of Common Stock of the Company or one full share of the common stock
of any successor, leasing or purchasing corporation and (ii) provide for
adjustments which shall be as nearly equivalent as may be practicable to the
adjustments provided for in this Article Fourteen. The Company shall cause
notice of the execution of each such supplemental indenture to be mailed to
each Debentureholder at his address as the same appears in the Debenture
Register.
(c) Neither the Trustee nor any conversion agent shall be under any
responsibility to determine the correctness of any provisions contained in any
such supplemental indenture relating either to the kind or amount of shares of
stock or securities or property or cash receivable by Debentureholders upon the
conversion of their Debentures after any such consolidation, merger, sale,
transfer or reclassification or to any adjustment to be made with respect
thereto, but, subject to the provisions of Section 8.01, may accept as
conclusive evidence of the correctness of any such provisions, and shall be
protected in relying upon, a Certificate of a Firm of Independent Public
Accountants with respect thereto.
(d) The above provisions of this Section 14.06 shall similarly apply to
successive reclassification and changes of shares of Common Stock of the
Company and to successive consolidations, mergers, sales, transfers, or
reclassifications.
Section 14.07. Reserves. The Company covenants that it will at all times
reserve and keep available, free from pre-emptive rights, out of its authorized
but unissued Common Stock, solely for the purpose of issue upon conversion of
Debentures as herein provided, such number of shares of Common Stock as shall
then be issuable upon the conversion of all outstanding Debentures. The
Company covenants that all shares of Common Stock which shall be so issuable
shall, upon issuance, be duly and validly issued and fully paid and
non-assessable. For purposes of this Section 14.07, the number of shares of
Common Stock which shall be deliverable upon the conversion of all outstanding
Debentures shall be computed as if at the time of computation all outstanding
Debentures were held by a single holder. The Company shall from time to
time, in accordance with applicable law, increase the authorized amount of its
Common Stock if at any time the authorized amount of its Common Stock
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remaining unissued shall not be sufficient to permit the conversion of all
Debentures at the time outstanding.
Section 14.08. Certain Covenants. (a) Before taking any action which
would cause an adjustment reducing the conversion price below the then stated
or par value of the shares of Common Stock issuable upon conversion of the
Debentures, the Company will take any corporate action which may, in the
opinion of its counsel, be necessary in order that the Company may validly and
legally issue fully paid and non-assessable shares of such Common Stock at
such adjusted conversion price.
(b) The Company covenants that if any shares of Common Stock required to
be reserved for purposes of conversion of Debentures hereunder require
registration with or approval of any governmental authority under any Federal
or State law, or listing upon any national securities exchange, before such
shares may issued upon conversion, the Company will in good faith and as
expeditiously as possible endeavor to cause such shares to be duly registered
approved or listed, as the case may be.
Section 14.09. Taxes Uoon Conversion. The issuance of certificates for
shares of Common Stock upon the conversion of Debentures shall be made without
charge to the converting Debentureholders for any tax in respect of the
issuance of such certificates, and such certificates shall be issued in the
respective names of, or in such names as may be directed by, the holders of the
Debentures converted; provided, however, that the Company shall not be required
to pay any tax which may be payable in respect of any transfer involved in the
issuance and delivery of any such certificate in a name other than that of the
holder of the Debenture converted, and the Company shall not be required to
issue or deliver such certificates unless or until the person or person
requesting the issuance thereof shall have paid to the Company the amount of
such tax or shall have established to the satisfaction of the Company that such
tax has been paid; and provided, further, that in no event shall the Company
be required to pay or reimburse the holder for any income tax payable by such
holder as a result of such issuance.
Section 14.10. Certain Notices. In case:
(i) the Company shall authorize the distribution to all holders of its
Common Stock of evidences of its indebtedness or assets (other than cash
dividends or other cash distributions paid out of surplus); or
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(ii) the Company shall authorize the granting to the holders of its Common
Stock of rights or warrants to subscribe for or purchase any shares of
capital stock or any class or of any other rights; or
(iii) of any reclassification of the capital stock of the Company
(other than a subdivision or combination of its outstanding shares of
Common Stock), or of any consolidation or merger to which the Company
is a party and for which approval of any stockholders of the Company is
required, or of the sale, lease or transfer of all or substantially all
of the property of the Company, requiring the execution of a
supplemental indenture pursuant to Section 14.06; or
(iv) of the voluntary or involuntary dissolution, liquidation or winding
up of the Company;
then, in each case, the Company shall cause notice thereof to be filed with
the Trustee and each conversion agent, and shall cause to be mailed, to each
holder of a Debenture at such holder's last address as the same appears on
the Debenture Register, at least 20 days prior to the applicable record or
effective date hereinafter specified, a notice stating (x) the date on which
a record is to be taken for the purpose of such dividend, distribution,
rights or warrants, or, if a record is not to be taken, the date as of which
the holders of Common Stock of record to be entitled to such dividend,
distribution, rights or warrants are to be determined, or (y) the date on
which such reclassification, consolidation, merger, sale, lease, transfer,
dissolution, liquidation or winding up is expected to become effective, and
the date as of which it is expected that holders of Common Stock of record
shall be entitled to exchange their Common Stock for securities or other
property deliverable upon such reclassification, consolidation, merger, sale,
lease, transfer, dissolution, liquidation or winding up.
Section 14.11. Determination of Facts. Neither the Trustee nor any
conversion agent shall at any time be under any duty or responsibility to any
Debentureholder to determine the conversion price or whether any facts exist
which may require any adjustment of the conversion price, or with respect to
the nature or extent of such adjustment when made, or with respect to the
method employed, or herein or in any supplemental indenture provided to be
employed, in making the same. Neither the Trustee nor any conversion agent
shall be accountable with respect to the validity or value (or the kind or
amount or the registration or listing on any securities exchange) of any
shares of Common Stock or of any securities or property or cash which may at
any time be issued or delivered upon the conversion of any Debenture; and
neither the Trustee nor any conversion agent makes any representation with
respect thereto. Neither the Trustee nor any conversion agent shall be
responsible for any
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failure of the Company to make any cash payment or to issue, transfer or deliver
any shares of Common Stock or stock certificates or other securities or
property or cash upon the surrender of any Debenture for the purpose of
conversion, or, subject to Section 8.01 and 8.02, to comply with any of the
covenants of the Company contained in this Article Fourteen.
Section 14.12. Common Stock Defined. Whenever reference is made in this
Article Fourteen to the issue or sale of shares of Common Stock, the term
"Common Stock" shall include only shares of the class designated as
Common Stock, $.Ol par value, of the Company at the date hereof or shares of
any class or classes resulting from any reclassification or reclassifications
thereof and which have no preference in respect of dividends or of amounts
payable in the event of any voluntary or involuntary liquidation, dissolution or
winding up of the Company and which are not subject to redemption by the
Company; provided, that if at any time there shall be more than one such
resulting class, the shares of each such class than so deliverable shall be
substantially in the proportion which the total number of shares of such class
resulting from all such reclassifications bears to the total number of shares of
all such classes resulting from all such reclassifications.
ARTICLE FIFTEEN
Immunity of Incorporators, Stockholders,
Officers and Directors
Section 15.01. Indenture and Debentures Solely Corporate
Obligations. No recourse for the payment of the principal of or premium, if
any, or interest on any Debenture, or for any claim based thereon or otherwise
in respect thereof, and no recourse under or upon any obligation,
covenant or agreement of the Company in this Indenture or in any supplemental
indenture, or in any Debenture, or because of the creation of any indebtedness
represented thereby, shall be had against any incorporator, stockholder,
officer or director, as such, past, present or future, of the Company or of any
successor corporation, either directly or through the Company or any successor
corporation, whether by virtue of any constitution, statute, or rule of Law,
or by the enforcement of any assessment or penalty or otherwise; it being
expressly understood that all such liability is hereby expressly waived and
released as a condition of, and as a consideration for, the execution of this
Indenture and the issue of the Debentures. No recourse may be taken, directly
or indirectly, against any incorporator, stockholder, officer, director or
employee of the Trustee with respect to the Trustee's obligations under this
Indenture.
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ARTICLE SIXTEEN
Miscellaneous Provisions
Section 16.01. Successors and Assigns of Company Bound by
Indenture. All the covenants, stipulations, promises and agreements in this
Indenture contained by or in behalf of the Company shall bind its successors
and assigns, whether so expressed or not.
Section 16.02. Acts of Board. Committee or Officer of Successor
Corporation Valid. Any act or proceeding by any provision of this Indenture
authorized or required to be done or performed by any board, committee or
officer of the Company shall and may be done and performed with like force and
effect by the like board, committee or officer of any corporation that shall
at that time be the successor of the Company.
Section 16.03. Indenture for Sole Benefit of Parties and
Debentureholders. Nothing in this Indenture or in the Debentures, expressed
or implied, shall give or be construed to give to any person, firm or
corporation, other than the parties hereto, any paying agent, any Debenture
Registrar, any Authenticating Agent, the holders of Senior Indebtedness and
the holders of the Debentures, any legal or equitable right, remedy or claim
under or in respect of this Indenture, or under any covenant, condition
or provision herein contained; all such covenants, conditions and
provisions being, subject to the provisions of Articles Twelve and Fifteen,
for the sole benefit of the parties hereto, any paying agent, any Debenture
Registrar, any Authenticating Agent, the holders of Senior Indebtedness and the
holders of the Debentures.
Section 16.04. Service of Certain Required Notices or Demands. Any
notice or demand that by any provisions of this Indenture is required or
permitted to be given or served by the Trustee or by the holders of Debentures
to or on the Company shall be delivered by hand or sent by first-class mail
postage prepaid addressed (until another address is filed by the Company with
the Trustee), as follows: Allwaste, Inc., 3040 Post Oak Boulevard, Suite
1300, Houston, Texas 77056, Attention: Corporate Secretary. Any notice,
direction, request or demand by any Debentureholder or the Company to or upon
the Trustee shall be deemed to have been sufficiently given or made, for all
purposes, if given or made as set forth above and received at the Trustee's
corporate trust office (until the Company is notified by the Trustee of another
address).
Section 16.05. Notice of Debentureholders. Where this Indenture
provides for notice to Debentureholders of any event, such notice shall be
sufficiently given (unless otherwise herein expressly provided) if in writing
and mailed, first class, postage prepaid, to each Debentureholder
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affected by such event, at his address as it appears on the Debenture 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
Debentureholders is given by mail, neither the failure to mail such notice, nor
any defect in any notice so mailed, to any particular Debentureholder shall
affect the sufficiency,of such notice with respect to other Debentureholders,
and any notice which is mailed to Debentureholders in the manner herein provided
shall be conclusively presumed to have been duly given.
Where this Indenture provides for notice in any manner, such notice may be
waived in writing by the person entitled to receive such notice, either before
or after the event, and such waiver shall be the equivalent of such notice.
Waivers of notice by Debentureholders 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 regular mail service as a result of
a strike, work stoppage or similar activity, it shall be impractical to mail
notice of any event to Debentureholders 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.
Section 16.06. NEW YORK CONTRACT. THIS INDENTURE AND EACH DEBENTURE
SHALL BE DEEMED TO BE A CONTRACT MADE UNDER THE LAWS OF THE STATE OF NEW YORK,
AND FOR ALL PURPOSES SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF SAID
STATE.
Section 16.07. Evidence of Compliance with Conditions Precedent. Upon any
application or demand by the Company to the Trustee to take any action under any
of the provisions of this Indenture, the Company shall furnish to the Trustee an
Officers' Certificate stating that all conditions precedent, if any, provided
for in this Indenture relating to the proposed action have been complied with
and an Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent have been complied with, except that in the case of any
such application or demand as to which the furnishing of such document is
specifically required by any provision of this Indenture relating to such
particular application or demand, no additional certificate or opinion need be
furnished.
Each certificate or opinion provided for in this Indenture and delivered to
the Trustee with respect to compliance with a condition or covenant provided for
in this Indenture shall include (a) a statement
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that the person making such certificate or opinion has read such covenant or
condition and the definitions 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 such person, 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 or not, in the opinion of such person, such condition or
covenant has been complied with.
Any Officers' Certificate 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 Officers' Certificate is based are erroneous. Any Opinion of
Counsel may be based, insofar as it relates to factual matters, upon a
certificate or opinion of, or representations by, an officer or officers of the
Company stating that the information with respect to such factual matters is in
the possession of the Company, unless such counsel knows, or in the exercise or
reasonable care should know, that the certificate or opinion or representations
with respect to such matters are erroneous.
Wherever in this Indenture, in connection with any application or
certificate or report to the Trustee, it is provided that the Company shall
deliver any document as a condition of the granting of such application, or as
evidence of compliance with any term hereof, it is intended that the truth and
accuracy, at the time of the granting of such application or at the effective
date of such certificate or report (as the case may be), of the facts and
opinions stated in such document as of the date to which such facts and opinions
relate shall in such case be conditions precedent to the right of the Company to
have such application granted or to the sufficiency of such certificate or
report. The foregoing shall not, however, be construed to affect the Trustee's
right to rely upon the truth and accuracy of any statement or opinion contained
in any such document as provided in Section 8.01.
Whenever in the Indenture it is provided that the absence of the occurrence
and continuation of an Event of Default is a condition precedent to the taking
of any action by the Trustee at the request or direction of the Company, then,
notwithstanding that the satisfaction of such condition is a condition precedent
to the Company's right to make such request or direction, the Trustee shall be
protected in acting in accordance with such request or direction if it does not
have knowledge
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of the occurrence and continuation of such Event of Default as provided in
Section 8.01.
Section 16.08. Legal Holidays. In any case where the date of maturity of
interest on or principal of (or premium, if any) on the Debenture or the date
fixed for redemption of any Debenture shall not be a business day, then payment
of interest (or premium, if any) on or principal of the Debentures 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 date of maturity or the date fixed for
redemption, and no interest shall accrue for the period after such prior date.
Section 16.09. Trust Indenture Act to Control. If and to the extent that
any provision of this Indenture limits, qualifies or conflicts with another
provision included in this Indenture which is required to be included in this
Indenture by any of Sections 310 to 317, inclusive, of the Trust Indenture Act
of 1939, such required provision shall control.
Section 16.10. Severability. In case any provision in this Indenture or
in the Debentures 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 16.11. Execution in Counterparts. This Indenture may be executed
in any number of counterparts, each of which shall be an original; but such
counterparts shall together constitute but one and the same instrument.
Section 16.12. Computation of Interest. Interest on the Debentures shall
be computed on the basis of a 360-day year consisting of twelve 30-day months.
Section 16.13. Table of Contents, Headings, etc. The table of contents
and the titles and headings of the articles and sections of this Indenture have
been inserted for convenience of reference only, are not to be considered a part
hereof, and shall in no way modify or restrict any of the terms or provisions
hereof.
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110
TEXAS COMMERCE TRUST COMPANY OF NEW YORK hereby accepts the trusts in this
Indenture declared and provided, upon the terms and conditions hereinabove set
forth.
IN WITNESS WHEREOF, ALLWASTE, INC. has caused this Indenture to be signed
and acknowledged by its Chairman of the Board, President or one of its Vice
Presidents, and its corporate seal to be affixed hereunto, and the same to be
attested by its Secretary or an Assistant Secretary, and TEXAS COMMERCE TRUST
COMPANY OF NEW YORK, as Trustee, has caused this Indenture to be signed and
acknowledged by one of its Trust Officers and its corporate seal to be
affixed hereunto, and the same to be attested by one of its Trust Officers,
all as of the day and year first written above.
ATTEST: ALLWASTE, INC.
By /s/ DOUGLAS M. CERNY By /s/ JIM A. HADDOX
____________________ __________________
[SEAL]
ATTEST: TEXAS COMMERCE
TRUST COMPANY OF NEW YORK, as Trustee
By /s/ STEVEN PATTERSON By /s/ ROY H. TRICE, JR.
_____________________ ______________________
Trust Officer Trust Officer
[SEAL]
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111
STATE OF TEXAS
COUNTY OF HARRIS
Before me, the undersigned authority, on this day personally appeared
James H. Haddox, Senior Vice President of ALLWASTE, INC., a Delaware
corporation, known to me to be the person whose name is subscribed to the
foregoing instrument, and acknowledged to me that he executed the same for the
purposes and consideration therein expressed, in the capacity therein stated,
and as the act and deed of said corporation.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this 1st day of June, 1989.
/s/ DIAN M. DUOTO
_____________________________________________
Notary Public, State of Texas
My commission expires 2-2-92
Printed or Typed Name of Notary:
SEAL: DIAN M. DUOTO
_____________________________________________
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112
STATE OF TEXAS
COUNTY OF HARRIS
Before me, the undersigned authority, on this day personally appeared Roy
H. Trice, Jr., Trust Officer of TEXAS COMMERCE TRUST COMPANY OF NEW YORK, a New
York trust company, known to me to be the person whose name is subscribed to the
foregoing instrument, and acknowledged to me that he executed the same for the
purposes and consideration therein expressed, in the capacity therein stated,
and as the act and deed of said corporation.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this 1st day of June, 1989
/s/ DIAN M. DUOTO
________________________________________________
Notary Public, State of Texas
My commission expires 2-2-92
Printed or Typed Name of Notary:
SEAL: DIAN M. DUOTO
________________________________________________
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113
Allwaste Inc.
__% Convertible Subordinated Debentures - $25,000,000
Schedule of Contacts
Exhibit III
TRUSTEE HOME ADDRESS & TELEPHONE
Texas Commerce Bank National
Association
600 Travis Street
8th Floor
Houston, Texas 77002
(713) 236-4181 Telephone
Roy H. Trite, Jr. 4008 Branard St.
Vice President & Trust Officer Houston, Texas 77027
(713) 236-4372 Telephone (713) 629-0741
(713) 236-4880 Telecopier
Robert E. Palmer, Jr. 1243 Columbia
Assistant Vice President Houston, Texas 77008
& Trust Officer (713) 869-1984
(713) 236-5614 Telephone
(713) 236-4880 Telecopier
COUNSEL TO TRUSTEE
Liddell, Sapp, Zivley, Hill
& LaBoon
Texas Commerce Tower
600 Travis
32nd Floor
Houston, TX 77002
Donna S. Burnett 6644 Wakeforest
(713) 226-1206 Telephone Houston, Texas 77005
(713) 223-3717 Telecopier (713) 663-7925
114
Distribution List
Allwaste, Inc.
3040 Post Oak Boulevard
Suite 1300
Houston, Texas 77056
Clayton Trier
Doug M. Cerny
James Haddox
Gaston & Snow - Company's Counsel
14 Wall Street
New York, NY 10005
Fax: (212) 815-7499
William J. Lynch
David S. Rosenthal
Liddell Sapp & Zivley
3500 Texas Commerce Tower
Houston, TX 77002-3095
Donna Burnett
Smith Barney, Harris Upham & Co. Incorporated
200 Crescent Court, Suite 1200
Dallas, TX 75201
Fax: (214) 871-5335
Lawrence E. Fish
Scott B. Osuna
Smith Barney, Harris Upham & Co. Incorporated
1345 Avenue of the Americas
New York, NY 10105
Fax: (212) 956-4513
or (212) 307-1488
Michael J. Kessler
Dan Sell
Alex. Brown & Sons Incorporated
135 East Baltimore Street
Baltimore, MD 21202
Fax: (301) 783-3024
David Gray
115
Texas Commerce Bank
712 Main Street
Houston, TX 77002
Roy Trite
Vinson & Elkins
1001 Fannin
First City Tower
Houston, TX 77002
Michael P. Finch
Shawn Cumberland
Arthur Andersen & Co.
711 Louisiana, Suite 1300
Houston, TX 77002
K. Eugene Frauenheim
Richard W. Russler