EXHIBIT 10.24
EXECUTION COPY
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ALLIED WASTE INDUSTRIES, INC.
AND
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
INDENTURE
Dated as of
April 20, 2004
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4-1/4% Senior Subordinated Convertible Debentures due 2034
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CROSS-REFERENCE TABLE*
Trust Indenture Indenture
Act Section Section
----------- -------
Section 310(a)(1) 8.09
(a)(2) 8.09
(a)(3) N.A.
(a)(5) N.A.
(a)(4) N.A.
(b) 8.08
(c) N.A.
Section 311(a) 8.13
(b) 8.13
(c) N.A.
Section 312(a) 6.01; 6.02
(b) N.A.
(c) N.A.
Section 313(a) 6.03
(b) N.A.
(c) 6.03
(d) 6.03
Section 314(a) 6.04
(b) N.A.
(c)(1) 16.05
(c)(2) 16.05
(c)(3) N.A.
(d) N.A.
(e) 16.05
(f) N.A.
Section 315(a) 8.01; 8.02
(b) 7.08
(c) 7.06
(d) 8.01; 806
(e) 7.09
Section 316(a)(1) 7.07
(a)(2) 11.02
(b) N. A.
(c) 9.01
Section 317(a)(1) 7.02
(a)(2) 7.02
(b) 5.04
Section 318(a) 17.08
N.A. means not applicable.
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* This Cross-Reference Table shall not, for any purpose, be deemed to be part of
this Indenture.
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TABLE OF CONTENTS
PAGE
ARTICLE 1
DEFINITIONS
Section 1.01. Definitions................................................................................ 1
ARTICLE 2
ISSUE, DESCRIPTION, EXECUTION, REGISTRATION AND EXCHANGE OF DEBENTURES
Section 2.01. Designation Amount and Issue of Debentures................................................. 13
Section 2.02. Form of Debentures......................................................................... 14
Section 2.03. Date and Denomination of Debentures; Payments of Interest.................................. 14
Section 2.04. Execution of Debentures.................................................................... 16
Section 2.05. Exchange and Registration of Transfer of Debentures; Restrictions on
Transfer................................................................................... 17
Section 2.06. Mutilated, Destroyed, Lost or Stolen Debentures............................................ 21
Section 2.07. Temporary Debentures....................................................................... 22
Section 2.08. Cancellation of Debentures................................................................. 22
Section 2.09. CUSIP Numbers.............................................................................. 22
ARTICLE 3
REDEMPTION AND REPURCHASE OF DEBENTURES
Section 3.01. Company's Right To Redeem.................................................................. 23
Section 3.02. Notice of Optional Redemption; Selection of Debentures..................................... 23
Section 3.03. Payment of Debentures Called for Redemption by the Company................................. 25
Section 3.04. [Reserved]................................................................................. 26
Section 3.05. Repurchase of Debentures by the Company at Option of Holders upon a
Fundamental Change......................................................................... 26
Section 3.06. Repurchase of Debentures by the Company at Option of Holders on Specified
Dates...................................................................................... 28
Section 3.07. Company's Right To Elect Manner of Payment of Repurchase Price............................. 30
Section 3.08. Conditions and Procedures for Repurchase at Option of Holders.............................. 33
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ARTICLE 4
CONTINGENT INTEREST
Section 4.01. Contingent Interest........................................................................ 36
Section 4.02. Payment of Contingent Interest............................................................. 36
Section 4.03. Contingent Interest Notification........................................................... 37
ARTICLE 5
PARTICULAR COVENANTS OF THE COMPANY
Section 5.01. Payment of Principal and Interest.......................................................... 37
Section 5.02. Maintenance of Office or Agency............................................................ 37
Section 5.03. Appointments to Fill vacancies in Trustee's Office......................................... 37
Section 5.04. Provisions as to Paying Agent.............................................................. 38
Section 5.05. Existence.................................................................................. 39
Section 5.06. [Reserved]................................................................................. 39
Section 5.07. [Reserved]................................................................................. 39
Section 5.08. Compliance Certificate..................................................................... 39
Section 5.09. Contingent Debt Tax Treatment.............................................................. 39
ARTICLE 6
DEBENTUREHOLDERS' LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE
Section 6.01. Debentureholders' Lists.................................................................... 40
Section 6.02. Preservation and Disclosure of Lists....................................................... 40
Section 6.03. Reports by Trustee......................................................................... 41
Section 6.04. Reports by Company......................................................................... 41
ARTICLE 7
REMEDIES OF THE TRUSTEE AND DEBENTUREHOLDERS ON AN EVENT OF DEFAULT
Section 7.01. Events of Default.......................................................................... 41
Section 7.02. Acceleration; Rescission and Annulment..................................................... 43
Section 7.03. Collection of Indebtedness and Suits for Enforcement by Trustee............................ 44
Section 7.04. Trustee May File Proofs of Claim........................................................... 45
Section 7.05. Trustee May Enforce Claims Without Possession of Debentures................................ 45
Section 7.06. Delay or Omission Not Waiver............................................................... 46
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Section 7.07. Waiver of Past Defaults.................................................................... 46
Section 7.08. Control by Majority........................................................................ 46
Section 7.09. Limitation on Suits by Debentureholders.................................................... 46
Section 7.10. Rights of Debentureholders To Receive Payment.............................................. 47
Section 7.11. Application of Money Collected............................................................. 47
Section 7.12. Restoration of Rights and Remedies......................................................... 48
Section 7.13. Rights and Remedies Cumulative............................................................. 48
Section 7.14. Undertaking for Costs...................................................................... 48
Section 7.15. Waiver of Stay, Extension or Usury Laws.................................................... 49
ARTICLE 8
THE TRUSTEE
Section 8.01. Duties and Responsibilities of Trustee..................................................... 49
Section 8.02. Reliance on Documents, Opinions, Etc....................................................... 50
Section 8.03. No Responsibility for Recitals, Etc........................................................ 52
Section 8.04. Trustee, Paying Agents, Bid Solicitation Agents, Conversion Agents or
Registrar May Own Debentures............................................................... 52
Section 8.05. Monies To Be Held in Trust................................................................. 52
Section 8.06. Compensation and Expenses of Trustee....................................................... 52
Section 8.07. Officers' Certificate as Evidence.......................................................... 53
Section 8.08. Conflicting Interests of Trustee........................................................... 53
Section 8.09. Eligibility of Trustee..................................................................... 53
Section 8.10. Resignation or Removal of Trustee.......................................................... 53
Section 8.11. Acceptance by Successor Trustee............................................................ 55
Section 8.12. Succession by Merger....................................................................... 55
Section 8.13. Preferential Collection of Claims.......................................................... 56
ARTICLE 9
THE DEBENTUREHOLDERS
Section 9.01. Action by Debentureholders................................................................. 56
Section 9.02. Proof of Execution by Debentureholders..................................................... 56
Section 9.03. Who Are Deemed Absolute Owners............................................................. 57
Section 9.04. Company-Owned Debentures Disregarded....................................................... 57
Section 9.05. Revocation of Consents, Future Holders Bound............................................... 57
ARTICLE 10
MEETINGS OF DEBENTUREHOLDERS
Section 10.01. Purpose of Meetings........................................................................ 58
Section 10.02. Call of Meetings by Trustee................................................................ 58
Section 10.03. Call of Meetings by Company or Debentureholders............................................ 58
Section 10.04. Qualifications for Voting.................................................................. 59
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Section 10.05. Regulations................................................................................ 59
Section 10.06. Voting..................................................................................... 59
Section 10.07. No Delay of Rights by Meeting.............................................................. 60
ARTICLE 11
SUPPLEMENTAL INDENTURES
Section 11.01. Supplemental Indentures Without Consent of Debentureholders................................ 60
Section 11.02. Supplemental Indenture with Consent of Debentureholders.................................... 61
Section 11.03. Effect of Supplemental Indenture........................................................... 62
Section 11.04. Notation on Debentures..................................................................... 63
Section 11.05. Evidence of Compliance of Supplemental Indenture To Be Furnished to
Trustee.................................................................................... 63
ARTICLE 12
CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE
Section 12.01. Company May Consolidate on Certain Terms................................................... 63
Section 12.02. Successor To Be Substituted................................................................ 64
Section 12.03. Opinion of Counsel To Be Given Trustee..................................................... 64
ARTICLE 13
SATISFACTION AND DISCHARGE OF INDENTURE
Section 13.01. Discharge of Indenture..................................................................... 65
Section 13.02. Paying Agent To Repay Monies Held.......................................................... 65
Section 13.03. Return of Unclaimed Monies................................................................. 65
ARTICLE 14
IMMUNITY OF INCORPORATORS, SHAREHOLDERS, OFFICERS AND DIRECTORS
Section 14.01. Indenture and Debentures Solely Corporate Obligations...................................... 66
ARTICLE 15
CONVERSION OF DEBENTURES
Section 15.01. Right To Convert........................................................................... 66
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Section 15.02. Exercise of Conversion Privilege; Issuance of Common Stock on Conversion;
No Adjustment for Interest or Dividends.................................................... 69
Section 15.03. Payment Upon Conversion; Cash Payments in Lieu of Fractional Shares........................ 71
Section 15.04. Conversion Rate............................................................................ 72
Section 15.05. Adjustment of Conversion Rate.............................................................. 72
Section 15.06. [Reserved]................................................................................. 77
Section 15.07. Taxes on Shares Issued..................................................................... 77
Section 15.08. Reservation of Shares, Shares To Be Fully Paid; Compliance with
Governmental Requirements; Listing of Common Stock......................................... 77
Section 15.09. Responsibility of Trustee.................................................................. 78
Section 15.10. Notice to Holders Prior to Certain Actions................................................. 79
ARTICLE 16
SUBORDINATION
Section 16.01. Debentures Subordinate to Senior Debt...................................................... 80
Section 16.02. Payment Over of Proceeds Upon Dissolution, Etc............................................. 80
Section 16.03. No Payment When Senior Debt in Default..................................................... 81
Section 16.04. Certain Payments Permitted................................................................. 82
Section 16.05. Subrogation to Rights of Holders of Senior Debt............................................ 82
Section 16.06. Provisions Solely To Define Relative Rights................................................ 83
Section 16.07. [Reserved]................................................................................. 83
Section 16.08. Trustee To Effectuate Subordination........................................................ 83
Section 16.09. No Waiver of Subordination Provisions...................................................... 83
Section 16.10. Notice to Trustee.......................................................................... 84
Section 16.11. Reliance on Judicial Order or Certificate of Liquidating Agent............................. 84
Section 16.12. Trustee Not Fiduciary for Holders of Senior Debt........................................... 84
Section 16.13. Rights of Trustee as Holder of Senior Debt; Preservation of Trustee's
Rights..................................................................................... 85
Section 16.14. Article Applicable to Paying Agents........................................................ 85
Section 16.15. Defeasance of this Article 16.............................................................. 85
ARTICLE 17
MISCELLANEOUS PROVISIONS
Section 17.01. Provisions Binding on Company's Successors................................................. 85
Section 17.02. Official Acts by Successor Corporation..................................................... 85
Section 17.03. Addresses for Notices, Etc................................................................. 85
Section 17.04. Governing Law.............................................................................. 86
Section 17.05. Evidence of Compliance with Conditions Precedent, Certificates to Trustee.................. 86
Section 17.06. Legal Holidays............................................................................. 87
Section 17.07. Company Responsible for Making Calculations................................................ 87
Section 17.08. Trust Indenture Act........................................................................ 87
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Section 17.09. No Security Interest Created............................................................... 87
Section 17.10. Benefits of Indenture...................................................................... 88
Section 17.11. Table of Contents, Headings, Etc........................................................... 88
Section 17.12. Authenticating Agent....................................................................... 88
Section 17.13. Execution in Counterparts.................................................................. 89
Section 17.14. Severability............................................................................... 89
Exhibit A Form of Debenture
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INDENTURE
INDENTURE dated as of April 20, 2004 between
Allied Waste Industries, Inc., a Delaware corporation
(hereinafter called the "Company"), having its
principal office at 00000 Xxxxx Xxxxxxxx-Xxxxxx Xxxx,
Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000, and U.S. Bank
National Association, as trustee hereunder
(hereinafter called the "Trustee").
W I T N E S S E T H:
WHEREAS, for its lawful corporate purposes, the Company has
duly authorized the issue of its 4-1/4% Senior Subordinated Convertible
Debentures due 2034 in an aggregate principal amount not to exceed $230,000,000
on the date hereof (the "Debentures"), and, to provide the terms and conditions
upon which the Debentures are to be authenticated, issued and delivered, the
Company has duly authorized the execution and delivery of this Indenture; and
WHEREAS the Debentures, the certificate of authentication to
be borne by the Debentures, a form of assignment, a form of fundamental change
repurchase election, a form of Company repurchase election and a form of
conversion notice to be borne by the Debentures are to be substantially in the
forms hereinafter provided for; and
WHEREAS all acts and things necessary to make the Debentures,
when executed by the Company and authenticated and delivered by the Trustee or a
duly authorized authenticating agent, as in this Indenture provided, the valid,
binding and legal obligations of the Company, and to constitute this Indenture a
valid agreement according to its terms, have been done and performed, and the
execution of this Indenture and the issue hereunder of the Debentures 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, and are to be, authenticated, issued and delivered, and in
consideration of the premises and of the purchase and acceptance of the
Debentures by the holders thereof, the Company covenants and agrees with the
Trustee for the equal and proportionate benefit of the respective holders from
time to time of the Debentures (except as otherwise provided below), as follows:
ARTICLE 1
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 that are defined in the Trust Indenture Act or which are by reference
therein defined in the Securities Act (except as herein otherwise expressly
provided or unless the context otherwise requires) shall have the meanings
assigned to such terms in the Trust Indenture Act and in the Securities Act as
in force at the date of the execution of this Indenture. The words "herein",
"hereof", "hereunder" and words of similar import refer to this Indenture as a
whole and not to any particular Article, Section or other subdivision. The terms
defined in this Article include the plural as well as the singular.
"Agent Members" has the meaning specified in Section
2.05(b).
"Affiliate" of any Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such Person. For the purposes of this definition, "control" when
used with respect to any specified Person means the power to direct the
management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise, and the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
"Applicable Five-Day Trading Period" means, with respect to
any Interest Period as to which Contingent Interest may be payable, the five
Trading Days ending on the second Trading Day immediately preceding the
applicable Interest Period.
"Allied NA" means Allied Waste North America, Inc., a
wholly-owned Subsidiary of the Company.
"Apollo" means Apollo Management IV, L.P., or its permitted
transferees (exclusive of the Company, Allied NA and their respective
Subsidiaries).
"Bid Solicitation Agent" means such Person (other than any
Affiliate of the Company) as the Company may designate as Bid Solicitation Agent
from time to time, and shall initially mean the Trustee.
"Blackstone" means the collective reference to (i) Blackstone
Capital Partners III Merchant Banking Fund L.P., a Delaware limited partnership,
Blackstone Capital Partners II Merchant Banking Fund L.P., a Delaware limited
partnership, Blackstone Offshore Capital Partners III L.P., a Cayman Islands
limited partnership, Blackstone Offshore Capital Partners II L.P., a Cayman
Islands limited partnership, Blackstone Family Investment Partnership III L.P.,
a Delaware limited partnership, and Blackstone Family Investment Partnership II
L.P., a Cayman Islands limited partnership (each of the foregoing, a "Blackstone
Fund") and (ii) each Affiliate of any Blackstone Fund that is not an operating
company or controlled by an operating company and each general partner of any
Blackstone Fund or any Blackstone Affiliate who is a partner or employee of the
Blackstone Group L.P.
"Board of Directors" means the Board of Directors of the
Company or a committee of such Board of Directors duly authorized to act for it
hereunder.
2
"Business Day" means any day, other than a Saturday or Sunday,
that is neither a legal holiday nor a day on which commercial banks are
authorized or required by law, regulation or executive order to close in the
City of New York.
"capital stock" of any Person means any and all shares
(including ordinary shares or American Depositary Shares), interests,
participations or other equivalents however designated of corporate stock or
other equity participations, including partnership interests, whether general or
limited, of such Person and any rights (other than debt securities convertible
or exchangeable into an equity interest), warrants or options to acquire an
equity interest in such Person.
"Cash Settlement Averaging Period" has the meaning specified
in Section 15.03(a).
"Cash Settlement Notice Period" has the meaning specified in
Section 15.03(a).
"Commission" means the Securities and Exchange Commission, as
from time to time constituted under the Exchange Act, or, if at any time after
the execution of this Indenture such Commission is not existing and performing
the duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
"Common Stock" means 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. Subject to
the provisions of Section 15.05(b), however, shares issuable on conversion of
Debentures shall include only shares of the class designated as common stock of
the Company at the date of this Indenture (namely, the Common Stock, $0.01 par
value, per share) 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 then
so issuable on conversion 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.
"Company" means the corporation named as the "Company" in the
first paragraph of this Indenture, and, subject to the provisions of Article 12
and Section 15.05(b), shall include its successors and assigns.
"Company Debentures Payment" has the meaning specified in
Section 16.02.
"Company Payment Blockage Period" has the meaning specified in
Section 16.03.
3
"Company Proceeding" has the meaning specified in Section
16.02.
"Company Repurchase Date" has the meaning specified in Section
3.06(a).
"Company Repurchase Election" has the meaning specified in
Section 3.06(c).
"Company Repurchase Notice" has the meaning specified in
Section 3.06(b).
"Company Repurchase Price" has the meaning specified in
Section 3.06(a).
"Company Senior Nonmonetary Default" has the meaning specified
in Section 16.03.
"Company Senior Payment Default" has the meaning specified in
Section 16.03.
"Constituent Person" has the meaning specified in Section
15.05(b).
"Contingent Interest" has the meaning specified in Section
4.01.
"Continuing Director" means, as of any date of determination
with respect to any Person, any member of the Board of Directors of such Person
who (i) was a member of such Board of Directors on the date of this Indenture or
(ii) was nominated for election or elected to such Board of Directors with the
approval of a majority of the Continuing Directors who were members of such
Board of Directors at the time of such nomination or election.
"Conversion Agent" means the Trustee or such other office or
agency designated by the Company where Debentures may be presented for
conversion.
"Conversion Date" has the meaning specified in Section 15.02.
"Conversion Obligation" has the meaning specified in Section
15.03(a).
"Conversion Price" as of any day means $1,000 divided by the
Conversion Rate as of such date and rounded to the nearest cent. The Conversion
Price shall initially be $20.43 per share of Common Stock.
"Conversion Rate" has the meaning specified in Section 15.04.
"Conversion Retraction Period" has the meaning specified in
Section 15.03(a).
4
"Conversion Trading Price" means, as of any of date of
determination, the average of the secondary market bid quotations per $1,000
principal amount of Debentures obtained by the Bid Solicitation Agent for
$5,000,000 aggregate principal amount of Debentures at approximately 4:00 p.m.,
New York City time, on such determination date from three independent nationally
recognized securities dealers (none of which shall be an Affiliate of the
Company) selected by the Company; provided, however, if at least three such bids
cannot be reasonably obtained by the Bid Solicitation Agent, but two bids are
obtained, then the average of the two bids shall be used, and if only one such
bid can be reasonably be obtained by the Bid Solicitation Agent, the one shall
be used. If, however, no bid is obtained by the Bid Solicitation Agent or, in
the Company's reasonable judgment, the bid quotations are not indicative of the
secondary market value of Debentures as of such determination date, then the
Conversion Trading Price per $1,000 principal amount of the Debentures for such
determination date will be deemed to be less than 98% of the product of (i) the
Conversion Rate as of such determination date multiplied by (ii) the Last
Reported Sale Price for the Common Stock for such determination date.
"Corporate Trust Office" or other similar term, means the
designated office of the Trustee at which at any particular time its corporate
trust business as it relates to this Indenture shall be principally
administered, which office is, at the date as of which this Indenture is dated,
located at 00 Xxxxxxxxxx Xxxxxx, Xx. Xxxx, Xxxxxxxxx 00000 or at any other
address as the Trustee may designate from time to time by notice to the holders.
"Credit Facility" means the credit agreement of Allied NA,
dated July 21, 1999, as amended and restated as of August 20, 2003, as further
amended and restated as of November 20, 2003, and as further amended and
restated as of March 30, 2004, among Allied NA, the Company, certain lenders
party thereto, JPMorgan Chase Bank, as administrative agent and collateral
agent, and Citicorp North America, Inc., as syndication agent, as amended, or
any bank credit agreement that replaces, amends, supplements, restates or renews
such Credit Facility.
"Current Market Price" on any day means (i) the average of the
Last Reported Sale Prices per share of Common Stock for the five consecutive
Trading Days preceding the earlier of the day preceding the day in question and
the day before the "ex date" with respect to the issuance or distribution
requiring the computation of the Current Market Price, (ii) in the case of any
Spin-Off that is effected simultaneously with an Initial Public Offering of the
securities being distributed in the Spin-Off, the Last Reported Sale Price of
the Common Stock on the Trading Day on which the initial public offering price
of the securities being distributed in the Spin-Off is determined and (iii) in
the case of any other Spin-Off, the average of the Last Reported Sale Prices of
the Common Stock over the first 10 Trading Days following the effective date of
such Spin-Off. For purposes of this definition, the term "ex date", when used
with respect to any issuance or distribution described in clause (i) of this
definition, means the first date on which the Common Stock trades without the
right to receive the issuance or distribution requiring the computation of the
Current Market Price.
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"Custodian" means U.S. Bank National Association, as custodian
with respect to the Debentures in global form, or any successor entity thereto.
"Debenture" or "Debentures" means any Debenture or Debentures,
as the case may be, authenticated and delivered under this Indenture, including
any Global Debenture.
"Debenture Register" has the meaning specified in Section
2.05.
"Debenture Registrar" has the meaning specified in Section
2.05.
"Debentureholder" or "holder" as applied to any Debenture, or
other similar terms (but excluding the term "beneficial holder"), means any
Person in whose name at the time a particular Debenture is registered on the
Debenture Registrar's books.
"Default" means any event that is, or after notice or passage
of time, or both, would be, an Event of Default.
"Defaulted Interest" has the meaning specified in Section
2.03.
"Depositary" means the clearing agency registered under the
Exchange Act that is designated to act as the Depositary for the Global
Debentures. The Depository Trust Company shall be the initial Depositary, until
a successor shall have been appointed and become such pursuant to the applicable
provisions of this Indenture, and thereafter, "Depositary" shall mean or include
such successor.
"Designated Senior Debt" means (i) indebtedness or guarantees
of indebtedness outstanding under the Credit Facility and (ii) after payment in
full of all obligations under the Credit Facility, any other Senior Debt the
principal amount of which is $100.0 million or more and that has been designated
by the Company as "Designated Senior Debt".
"Event of Default" means any event specified in Section 7.01
as an Event of Default.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder, as in effect from
time to time.
"Ex-Dividend Date" means the first date upon which a sale of
the Common Stock does not automatically transfer the right to receive the
relevant distribution from the seller of the Common Stock to its buyer.
"Expiration Time" has the meaning specified in Section
15.05(a)(vi).
"Fair Market Value" means (i) in the case of any Spin-Off that
is effected simultaneously with an Initial Public Offering of the securities
being distributed in the Spin-Off, the initial public offering price of such
securities, and (ii) in the case of any other Spin-Off, the average of the Last
Reported Sale Prices of the securities being
6
distributed in the Spin-Off over the first 10 Trading Days following the
effective date of such Spin-Off.
"Final Notice Date" has the meaning specified in Section
15.03(a).
"Fundamental Change" means the occurrence of any of the
following after the date of the Indenture:
(i) any person, or any persons (other than a
Permitted Allied Successor), acting together that would constitute a
"group" (a "group") for purposes of Section 13(d) of the Exchange Act,
together with any Affiliates or Related Persons thereof (other than any
employee stock ownership plan), beneficially own 50% or more of the
total voting power of all classes of Voting Stock of the Company;
(ii) any person or group, together with any
Affiliates or Related Persons thereof, succeeds in having a sufficient
number of its nominees who have not been approved by the Continuing
Directors of the Company elected to the Board of Directors of the
Company such that such nominees, when added to any existing director
remaining on the Board of Directors of the Company after such election
who is an Affiliate, Related Person, director, officer, employee or
consultant of such person or group, will constitute a majority of the
Board of Directors of the Company;
(iii) consummation of any share exchange,
consolidation or merger of the Company or any sale, lease or other
transfer in one transaction or a series of transactions of all or
substantially all of the consolidated assets of the Company and its
Subsidiaries, taken as a whole, to any Person other than the Company or
one or more of its Subsidiaries pursuant to which the Common Stock will
be converted into cash, securities or other property; provided,
however, that a transaction where the holders of the Company's Voting
Stock immediately prior to such transaction have, directly or
indirectly, more than 50% of the aggregate voting power of all shares
of capital stock of the continuing or surviving corporation or
transferee entitled to vote generally in the election of directors
immediately after such event shall not be a Fundamental Change;
provided, further, that so long as any senior long-term debt financing
of the Company or any of its Subsidiaries is outstanding, any such
transaction that does not constitute a "change of control" under the
comparable provisions of any senior long-term debt financing shall not
be a Fundamental Change;
(iv) the stockholders of the Company approve any plan
or proposal for the liquidation or dissolution of the Company; or
(v) the Common Stock or other common stock into which
the Debentures are convertible is neither listed for trading on a U.S.
national or regional securities exchange nor approved for trading on
the Nasdaq National Market or another established automated over
the-counter trading market in the
7
United States and no American Depositary Shares or similar instruments
for such common stock are so listed or approved for trading.
A Fundamental Change will not be deemed to have occurred in
respect of any of the foregoing, however, if either:
(i) the Last Reported Sale Price of the Common Stock
for any five Trading Days within the 10 consecutive Trading Days ending
immediately before the later of the Fundamental Change or the public
announcement thereof, equals or exceeds 105% of the Conversion Price of
the Debentures immediately before the Fundamental Change or the public
announcement thereof, or
(ii) at least 90% of the consideration, excluding
cash payments for fractional shares, in the transaction or transactions
constituting the Fundamental Change consists of shares of capital stock
traded on a U.S. national or regional securities exchange or quoted on
the Nasdaq National Market or another established automated
over-the-counter trading market in the United States or which will be
so traded or quoted when issued or exchanged in connection with a
Fundamental Change (these securities being referred to as "publicly
traded securities") and as a result of this transaction or transactions
the Debentures become convertible into such publicly traded securities,
excluding cash payments for fractional shares, such publicly traded
securities to be valued as of the date on which the transaction or
transactions constituting the Fundamental Change were publicly
announced.
"Fundamental Change Repurchase Date" has the meaning specified
in Section 3.05(a).
"Fundamental Change Repurchase Election" has the meaning
specified in Section 3 .05(c)(i).
"Fundamental Change Repurchase Notice" has the meaning
specified in Section 3.05(b).
"Fundamental Change Repurchase Price" has the meaning provided
in Section 3.05(a).
"Global Debenture" has the meaning specified in Section 2.02.
"Indenture" means this instrument as originally executed or,
if amended or supplemented as herein provided, as so amended or supplemented.
"Initial Public Offering" means the first time securities of
the same class or type as the securities being distributed in the related
Spin-Off are offered to the public for cash.
"Interest" means, when used with reference to the Debentures,
any interest payable under the terms of the Debentures, including Contingent
Interest, if any.
8
"Interest Payment Date" means April 15 and October 15 of each
year, commencing October 15, 2004.
"Interest Period" means any six-month period from April 15 to
October 15 or from October 15 to April 15, commencing on or after October 15,
2004 and ending before April 15, 2034.
"Last Reported Sale Price" of the Common Stock on any date
means the closing sale price per share (or if no closing sale price is reported,
the average of the bid and asked prices or, if more than one in either case, the
average of the average bid and the average asked prices) on such date as
reported in composite transactions for the principal U.S. securities exchange on
which the Common Stock is traded or, if the Common Stock is not listed on a U.S.
national or regional securities exchange, as reported by the Nasdaq National
Market. If the Common Stock is not listed for trading on a U.S. national or
regional securities exchange and not reported by the Nasdaq National Market on
the relevant date, the "Last Reported Sale Price" will be the last quoted bid
price for the Common Stock in the over-the-counter market on the relevant date
as reported by the National Quotation Bureau Incorporated or similar
organization. If the Common Stock is not so quoted, the "Last Reported Sale
Price" will be the average of the mid-point of the last bid and asked prices for
the Common Stock on the relevant date quoted by each of at least three
nationally recognized independent investment banking firms selected by the
Company for this purpose.
"Major Subsidiary" means (i) so long as any long-term debt
financing of the Company or any of its Subsidiaries is outstanding, any
Subsidiary of the Company that is subject to any covenant relating to such
long-term debt financing and (ii) if no long-term debt financing of the Company
or any of its Subsidiaries is outstanding, any Significant Subsidiary of the
Company or any Subsidiary that would constitute a Significant Subsidiary of the
Company if the investments in, and the assets and income of, such Subsidiary
were aggregated with the investments in, and the assets and income of, each
other Subsidiary of the Company that has experienced a bankruptcy, insolvency or
reorganization event described in Sections 7.01(i) and (j) since the date of
this Indenture. For purposes of this definition, "Significant Subsidiary" means
any Subsidiary that would be a "Significant Subsidiary" of the Company within
the meaning of Rule 1-02 under Regulation S-X promulgated by the Commission.
"non-electing share" has the meaning specified in Section
15.05(b).
"Officers' Certificate", when used with respect to the
Company, means a certificate signed by any two of the Chairman of the Board, the
Chief Executive officer, the Chief Operating Officer, the President, the Chief
Financial Officer, any Vice President (whether or not designated by a number or
numbers or word or words added before or after the title "Vice President"), the
Treasurer or the Secretary of the Company; provided that the Officers'
Certificate delivered as of the date hereof pursuant to Section 17.05 may be
signed by any one of the foregoing.
9
"Opinion of Counsel" means an opinion in writing signed by the
general counsel of the Company or other legal counsel reasonably acceptable to
the Trustee. Such counsel may be an employee of or counsel to the Company,
"Outstanding", when used with reference to Debentures and
subject to the provisions of Section 9.04, means, as of any particular time, all
Debentures authenticated and delivered by the Trustee under this Indenture,
except:
(a) Debentures theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(b) Debentures, or portions thereof, (i) for the redemption of
which monies in the necessary amount shall have been deposited in trust
with the Trustee or with any Paying Agent (other than the Company) or
(ii) which shall have been otherwise defeased in accordance with
Article 13;
(c) Debentures in lieu of which, or in substitution for which,
other Debentures shall have been authenticated and delivered pursuant
to the terms of Section 2.06; and
(d) Debentures converted into Common Stock, cash or a
combination of cash and Common Stock pursuant to Article 15 and
Debentures deemed not outstanding pursuant to Article 3.
"Paying Agent" means the Trustee or such other office or
agency designated by the Company where Debentures may be presented for payment.
"Payment Blockage Notice" has the meaning specified in Section
16.03.
"Permitted Allied Successor" means (i) an issuer, other than
the Company, of Voting Stock issued to the stockholders of the Company in a
merger, consolidation or other transaction permitted in clause (iii) of the
definition of Fundamental Change, (ii) Apollo and (iii) Blackstone.
"Permitted Interest Rate or Currency Protection Agreement" of
any Person means any agreement entered into with one or more financial
institutions in the ordinary course of business that is designed to protect such
Person against fluctuations in interest rates or currency exchange rates with
respect to debt incurred and that shall have a notional amount no greater than
the payments due with respect to the debt being hedged thereby.
"Permitted Junior Securities" means (i) the Company's capital
stock and all warrants, options or other rights to acquire capital stock (but
excluding any debt security that is convertible into, or exchangeable for,
capital stock) or (ii) the Company's debt securities that are subordinated to
all Senior Debt (and any debt securities issued in exchange for Senior Debt) to
substantially the same extent as, or to a greater extent than, the Debentures
are subordinated to Senior Debt pursuant to this Indenture.
10
"permitted transferees" means, with respect to any Person, (i)
any Affiliate of such Person; (ii) any investment manager, investment advisor,
or constituent general partner of such Person; or (iii) any investment fund,
investment account, or investment entity that is organized by such Person or its
Affiliates and whose investment manager, investment advisor, or constituent
general partner is such Person or a permitted transferee of such Person.
"Person" means a corporation, an association, a partnership, a
limited liability company, an individual, a joint venture, a joint stock
company, a trust, an unincorporated organization or a government or an agency or
a political subdivision thereof.
"Predecessor Debenture" of any particular Debenture means
every previous Debenture evidencing all or a portion of the same debt as that
evidenced by such particular Debenture, and, for the purposes of this
definition, any Debenture authenticated and delivered under Section 2.06 in lieu
of a lost, destroyed or stolen Debenture shall be deemed to evidence the same
debt as the lost, destroyed or stolen Debenture that it replaces.
"Purchased Shares" has the meaning specified in Section
15.05(a)(vi).
"Redemption Date" has the meaning specified in Section
3.02(a).
"Redemption Notice" has the meaning specified in Section
3.02(a).
"Redemption Price" has the meaning specified in Section 3.01.
"Regular Record Date" means, with respect to each Interest
Payment Date, the close of business on the April 1 or October 1 immediately
preceding such Interest Payment Date (whether or not a Business Day).
"Related Person" of any Person means, without limitation, any
other Person owning (i) 5% or more of the outstanding common stock of such
Person or (ii) 5% or more of the Voting Stock of such Person.
"Repurchase Date" means the Fundamental Change Repurchase Date
or the Company Repurchase Date, as applicable.
"Repurchase Election" means the Fundamental Change Repurchase
Election or the Company Repurchase Election, as applicable.
"Repurchase Price" means the Fundamental Change Repurchase
Price or the Company Repurchase Price, as applicable.
"Responsible Officer" means, when used with respect to the
Trustee, any officer of the Trustee who has direct responsibility for the
administration of this Indenture and also shall mean any other officer or person
performing similar functions to
11
whom any corporate trust matter is referred because of such Person's knowledge
of any familiarity with the particular subject.
"Securities Act" means the Securities Act of 1933, as amended,
and the rules and regulations promulgated thereunder, as in effect from time to
time.
"Special Record Date" has the meaning specified in Section
2.03.
"Senior Debt" means (i) all the Company's indebtedness
outstanding under the Credit Facility and all Permitted Interest Rate or
Currency Protection Agreements with respect thereto, unless the instrument under
which such indebtedness is incurred expressly provides that it is on parity with
or subordinated in right of payment to the Debentures or subordinated to any of
the Company's other indebtedness, (ii) any of the Company's other indebtedness,
unless the instrument under which such indebtedness is incurred expressly
provides that it is on parity with or subordinated in right of payment to the
Debentures or subordinated to any of the Company's other debt and (iii) all
obligations with respect to the items listed in the preceding two clauses.
Notwithstanding anything to the contrary in the preceding sentence, Senior Debt
will not include any liability for federal, state, local or other taxes owed or
owing by the Company, any trade payables or any of the Company's indebtedness
owing to any of its Subsidiaries or other Affiliates.
"Spin-Off" means a dividend or other distribution on the
Common Stock of shares of capital stock of any class or series, or similar
equity interests, of or relating to any Subsidiary of the Company or other
business unit of the Company.
"Stated Maturity" means April 15, 2034.
"Subsidiary" means, with respect to any Person, (i) any
corporation, association or other business entity of which more than 50% of the
total voting power of shares of capital stock or other equity interest entitled
(without regard to the occurrence of any contingency) to vote in the election of
directors, managers or trustees thereof is at the time owned or controlled,
directly or indirectly, by such Person or one or more of the other subsidiaries
of that Person (or a combination thereof) and (ii) any partnership (a) the sole
general partner or managing general partner of which is such Person or a
subsidiary of such Person or (b) the only general partners of which are such
Person or of one or more subsidiaries of such Person (or any combination
thereof).
"Tax Original Issue Discount" means the amount of ordinary
interest income on a Debenture that must be accrued as original issue discount
for United States Federal income tax purposes pursuant to U.S. Treasury
Regulation section 1.1275-4.
"Trading Day" means a day during which trading in securities
generally occurs on the New York Stock Exchange or, if the Common Stock is not
listed on the New York Stock Exchange, on the principal other U.S. national or
regional securities exchange on which the Common Stock is then listed or, if the
Common Stock is not listed on a U.S. national or regional securities exchange,
on the principal other market on which the Common Stock is then traded.
12
"Trading Price" means, as of any of date of determination, the
average of the secondary market bid quotations per $1,000 principal amount of
Debentures obtained by the Bid Solicitation Agent for $5,000,000 aggregate
principal amount of Debentures at approximately 4:00 p.m., New York City time,
on such determination date from three independent nationally recognized
securities dealers (none of which shall be an Affiliate of the Company) selected
by the Company; provided, however, if at least three such bids cannot be
reasonably obtained by the Bid Solicitation Agent, but two bids are obtained,
then the average of the two bids shall be used, and if only one such bid can be
reasonably be obtained by the Bid Solicitation Agent, the one shall be used. If,
however, no bid is obtained by the Bid Solicitation Agent or, in the Company's
reasonable judgment, the bid quotations are not indicative of the secondary
market value of Debentures as of such determination date, then the Trading Price
per $1,000 principal amount of the Debentures for such determination date will
equal (i) the Conversion Rate as of such determination date multiplied by (ii)
the average Last Reported Sale Price for the Common Stock on the five Trading
Days ending on such determination date.
"Trust Indenture Act" means the Trust Indenture Act of 1939,
as amended, as it was in force at the date of this Indenture, except as provided
in Section 11.03; provided that if the Trust Indenture Act of 1939 is amended
after the date hereof, the term "Trust Indenture Act" shall mean, to the extent
required by such amendment, the Trust Indenture Act of 1939 as so amended.
"Trustee" means U.S. Bank National Association and its
successors and any corporation resulting from or surviving any consolidation or
merger to which it or its successors may be a party and any successor trustee at
the time serving as successor trustee hereunder.
"Voting Stock" of any Person means capital stock of such
Person that ordinarily has voting power for the election of directors (or
Persons performing similar functions) of such Person, whether at all times or
only so long as no senior class of securities has such voting power by reason of
any contingency.
ARTICLE 2
ISSUE, DESCRIPTION, EXECUTION, REGISTRATION AND
EXCHANGE OF DEBENTURES
Section 2.01. Designation Amount and Issue of Debentures. The
Debentures shall be designated as "4-1/4% Senior Subordinated Convertible
Debentures due 2034". Debentures not to exceed the aggregate principal amount of
$230,000,000 (except Debentures authenticated and delivered pursuant to Sections
2.05, 2.06, 3.05, 3.06 and 15.02 hereof) may be executed by the Company and
delivered to the Trustee for authentication, and the Trustee shall thereupon
authenticate and deliver said Debentures to or upon the written order of the
Company, signed by its Chief Executive Officer, its President, its Chief
Operating Officer or any Vice President (whether or not designated by a number
or numbers or word or words added before or after the title "Vice President"),
without any further action by the Company hereunder.
13
Section 2.02. Form of Debentures. The Debentures and the
Trustee's certificate of authentication to be borne by such Debentures shall be
substantially in the form set forth in Exhibit A. The terms and provisions
contained in the form of Debenture attached as Exhibit A hereto shall
constitute, and are hereby expressly made, a part of this Indenture and, to the
extent applicable, the Company and the Trustee, by their execution and delivery
of this Indenture, expressly agree to such terms and provisions and to be bound
thereby. Any of the Debentures may have such letters, numbers or other marks of
identification and such notations, legends, endorsements or changes 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 by the Custodian, the Depositary or by the
National Association of Securities Dealers, Inc. or as may be required to comply
with any applicable law or with any rule or regulation made pursuant thereto or
with any rule or regulation of any securities exchange or automated quotation
system on which the Debentures may be listed, or to conform to usage, or to
indicate any special limitations or restrictions to which any particular
Debentures are subject.
So long as the Debentures are eligible for book-entry
settlement with the Depositary, or unless otherwise required by law, or
otherwise contemplated by Section 2.05(a), all of the Debentures will be
represented by one or more Debentures in global form registered in the name of
the Depositary or the nominee of the Depositary (a "Global Debenture"). The
transfer and exchange of beneficial interests in any such Global Debenture shall
be effected through the Depositary in accordance with this Indenture and the
applicable procedures of the Depositary. Except as provided in Section 2.05(a),
beneficial holders of a Global Debenture will not receive or be entitled to
receive physical delivery of certificates in definitive registered form and will
not be considered holders of such Global Debenture.
Any Global Debenture shall represent such of the outstanding
Debentures as shall be specified therein and shall provide that it shall
represent the aggregate amount of outstanding Debentures from time to time
endorsed thereon and that the aggregate amount of outstanding Debentures
represented thereby may from time to time be increased or reduced to reflect
redemptions, repurchases, conversions, transfers or exchanges permitted hereby.
Any endorsement of a Global Debenture to reflect the amount of any increase or
decrease in the amount of outstanding Debentures represented thereby shall be
made by the Trustee or the Custodian, at the direction of the Trustee, in such
manner and upon instructions given by the holder of such Debentures in
accordance with this Indenture. Payment of principal of and Interest on any
Global Debenture shall be made to the holder of such Global Debenture.
Section 2.03. Date and Denomination of Debentures; Payments of
Interest. The Debentures shall be issuable in fully registered form without
interest coupons in denominations of $1,000 principal amount and integral
multiples thereof. Each Debenture shall be dated the date of its authentication
and shall bear interest from the date specified on the face of the form of
Debenture attached as Exhibit A hereto. Interest on the Debentures shall be
computed on the basis of a 360-day year comprised of twelve 30-day months.
14
The Person in whose name any Debenture (or its Predecessor
Debenture) is registered on the Debenture Register at the close of business on
the Regular Record Date with respect to an Interest Payment Date shall be
entitled to receive the Interest payable on such Interest Payment Date, except
that the Interest payable upon redemption or repurchase will be payable to the
Person to whom principal is payable pursuant to such redemption or repurchase
(unless the Redemption Date or the Repurchase Date, as the case may be, is an
Interest Payment Date, in which case the semi-annual payment of interest
becoming due on such date shall be payable to the holders of such Debentures
registered as such on the applicable Regular Record Date). Notwithstanding the
foregoing, if any Debenture (or portion thereof) is converted into Common Stock
during the period after a Regular Record Date to, but excluding, the next
succeeding Interest Payment Date and such Debenture (or portion thereof) has
been called or tendered for redemption on a Redemption Date which occurs during
such period, the Company shall not be required to pay interest on such Interest
Payment Date in respect of any such Debenture (or portion thereof), except as
provided in Section 15.02. The Company shall pay Interest (i) on any Debentures
in certificated form by check mailed to the address of the Person entitled
thereto as it appears in the Debenture Register (or upon written notice, by wire
transfer in immediately available funds, if such Person is entitled to Interest
on Debentures with an aggregate principal amount in excess of $2,000,000) or
(ii) on any Global Debenture by wire transfer of immediately available funds to
the account of the Depositary or its nominee.
Any Interest on any Debenture which is payable, but is not
punctually paid or duly provided for, on any April 15 or October 15 (herein
called "Defaulted Interest") shall forthwith cease to be payable to the
Debentureholder on the relevant Regular Record Date by virtue of his having been
such Debentureholder, and such Defaulted Interest shall be paid by the Company,
at its election in each case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any
Defaulted Interest to the Persons in whose names the
Debentures (or their respective Predecessor Debentures) are
registered at the close of business on a "Special Record Date"
for the payment of such Defaulted Interest, which shall be the
date fixed in the following manner. The Company shall notify
the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each Debenture and the date of the
proposed payment (which shall be not less than 25 days after
the receipt by the Trustee of such notice, unless the Trustee
shall consent to an earlier date), and at the same time the
Company shall deposit with the Trustee an amount of money
equal to the aggregate amount to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to
the Trustee for such deposit on or prior to the date of the
proposed payment, such money when deposited to be held in
trust for the benefit of the Persons entitled to such
Defaulted Interest as in this clause provided. Thereupon the
Trustee shall fix a Special Record Date for the payment of
such Defaulted Interest which shall be not more than 15 days
and not less than 10 days prior to the date of the proposed
payment, and not less than 10 days after the receipt by the
15
Trustee of the notice of the proposed payment. The Trustee
shall promptly notify the Company of such Special Record Date
and, in the name and at the expense of the Company, shall
cause notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor to be mailed,
first-class postage prepaid, to each holder at his address as
it appears in the Debenture Register, not less than 10 days
prior to such Special Record Date. Notice of the proposed
payment of such Defaulted Interest and the Special Record Date
therefor having been so mailed, such Defaulted Interest shall
be paid to the Persons in whose names the Debentures (or their
respective Predecessor Debentures) are registered at the close
of business on such Special Record Date and shall no longer be
payable pursuant to the following clause (2) of this Section
2.03.
(2) The Company may make payment of any Defaulted
Interest in any other lawful manner not inconsistent with the
requirements of any securities exchange or automated quotation
system on which the Debentures may be listed or designated for
issuance, and upon such notice as may be required by such
exchange or automated quotation system, if, after notice given
by the Company to the Trustee of the proposed payment pursuant
to this clause, such manner of payment shall be deemed
practicable by the Trustee.
Section 2.04. Execution of Debentures. The Debentures shall be
signed in the name and on behalf of the Company by the manual or facsimile
signature of its Chief Executive Officer, President, Chief Operating Officer or
any Vice President (whether or not designated by a number or numbers or word or
words added before or after the title "Vice President"). Only such Debentures as
shall bear thereon a certificate of authentication substantially in the form set
forth on the form of Debenture attached as Exhibit A hereto, manually executed
by the Trustee (or an authenticating agent appointed by the Trustee as provided
by Section 17.12), shall be entitled to the benefits of this Indenture or be
valid or obligatory for any purpose. Such certificate by the Trustee (or such an
authenticating agent) upon any Debenture executed by the Company shall be
conclusive evidence that the Debenture so authenticated has been duly
authenticated and delivered hereunder and that the holder is entitled to the
benefits of this Indenture.
In case any officer of the Company who shall have signed any
of the Debentures shall cease to be such officer before the Debentures so signed
shall have been authenticated and delivered by the Trustee, or disposed of by
the Company, such Debentures nevertheless may be authenticated and delivered or
disposed of as though the Person who signed such Debentures had not ceased to be
such officer of the Company, and any Debenture may be signed 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 an officer.
16
Section 2.05. Exchange and Registration of Transfer of
Debentures; Restrictions on Transfer. (a) The Company shall cause to be kept at
the Corporate Trust Office a register (the register maintained in such office
and in any other office or agency of the Company designated pursuant to Section
5.02 being herein sometimes collectively referred to as the "Debenture
Register") in which, subject to such reasonable regulations as it may prescribe,
the Company shall provide for the registration of Debentures and of transfers of
Debentures. The Debenture Register shall be in written form or in any form
capable of being converted into written form within a reasonably prompt period
of time. The Trustee is hereby appointed "Debenture Registrar" for the purpose
of registering Debentures and transfers of Debentures as herein provided. The
Company may appoint one or more co-registrars in accordance with Section 5.02.
Upon surrender for registration of transfer of any Debenture
to the Debenture Registrar or any co-registrar, and satisfaction of the
requirements for such transfer set forth in this Section 2.05, the Company shall
execute, and the Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Debentures of any
authorized denominations and of a like aggregate principal amount and bearing
such legends as may be required by this Indenture.
Debentures may be exchanged for other Debentures of any
authorized denominations and of a like aggregate principal amount, upon
surrender of the Debentures to be exchanged at any such office or agency
maintained by the Company pursuant to Section 5.02. Whenever any Debentures are
so surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Debentures which the Debentureholder making the
exchange is entitled to receive bearing registration numbers not
contemporaneously outstanding.
All Debentures issued upon any registration of transfer or
exchange of Debentures shall be the valid obligations of the Company, evidencing
the same debt, and entitled to the same benefits under this Indenture, as the
Debentures surrendered upon such registration of transfer or exchange.
All Debentures presented or surrendered for registration of
transfer or for exchange, redemption, repurchase or conversion shall (if so
required by the Company or the Debenture Registrar) be duly endorsed, or be
accompanied by a written instrument or instruments of transfer in form
satisfactory to the Company, duly executed by the Debentureholder thereof or his
attorney duly authorized in writing.
No service charge shall be made to any holder of Debentures
for any registration of, transfer or exchange of Debentures, but the Company may
require payment by the holder of a sum sufficient to cover any tax, assessment
or other governmental charge that may be imposed in connection with any
registration of transfer or exchange of Debentures.
Neither the Company nor the Trustee nor any Debenture
Registrar shall be required to exchange or register a transfer of (a) any
Debentures for a period of 15 days preceding any selection of Debentures to be
redeemed, (b) any Debentures or portions
17
thereof called for redemption pursuant to Section 3.01, (c) any Debentures or
portions thereof surrendered for conversion pursuant to Article 15, (d) any
Debentures or portions thereof tendered for repurchase (and not withdrawn)
pursuant to Section 3.05 or (e) any Debentures or portions thereof tendered for
repurchase (and not withdrawn) pursuant to Section 3.06.
(b) The following provisions shall apply only to Global
Debentures:
(i) Each Global Debenture authenticated under this Indenture
shall be registered in the name of the Depositary or a nominee thereof
and delivered to such Depositary or a nominee thereof or Custodian
therefor, and each such Global Debenture shall constitute a single
Debenture for all purposes of this Indenture.
(ii) Notwithstanding any other provision in this Indenture, no
Global Debenture may be exchanged in whole or in part for Debentures
registered, and no transfer of a Global Debenture in whole or in part
may be registered, in the name of any Person other than the Depositary
or a nominee thereof unless (A) the Depositary (i) has notified the
Company that it is unwilling or unable to continue as Depositary for
such Global Debenture and a successor Depositary has not been appointed
by the Company within 90 days or (ii) has ceased to be a clearing
agency registered under the Exchange Act, (B) an Event of Default has
occurred and is continuing, (C) the Company, in its sole discretion,
notifies the Trustee in writing that it no longer wishes to have all
the Debentures represented by Global Debentures or (D) any beneficial
holder reasonably requests such exchange on terms acceptable to the
Company, the Trustee and the Depositary, which in the case of the
Trustee may include, in the Trustee's sole discretion, among other
things, the requirement that (i) the Trustee and any Debenture
Registrar receive (a) from the Company or the Depositary, a written
order, in either case requesting such exchange, and an Opinion of
Counsel (which upon receipt thereof the Trustee and such Debenture
Registrar shall be fully protected in relying) to the effect that (x)
all securities laws in connection with such exchange have been complied
with and (y) such exchange is otherwise authorized or permitted by this
Indenture; and (b) from such beneficial holder (x) an affidavit as to
its beneficial ownership interest in such Global Debenture and/or (y)
an indemnity, reasonably satisfactory to the Trustee and such Debenture
Registrar, against any loss, liability or expense to the Trustee and
such Debenture Registrar to the extent that the Trustee or Debenture
Registrar acts upon such order, affidavit and/or indemnity; and (ii)
such exchange can be accomplished in a manner that is practicable and
not inconsistent with the rules of any applicable Depositary or
securities exchange upon which the Debentures may be listed for
trading. Any Global Debenture exchanged pursuant to clause (A) or (B)
above shall be so exchanged in whole and not in part and any Global
Debenture exchanged pursuant to clause (C) or (D) above may be
exchanged in whole or from time to time
18
in part as directed by the Company. Any Debenture issued in exchange
for a Global Debenture or any portion thereof shall be a Global
Debenture; provided that any such Debenture so issued that is
registered in the name of a Person other than the Depositary or a
nominee thereof shall not be a Global Debenture.
(iii) Debentures issued in exchange for a Global Debenture or
any portion thereof pursuant to clause (ii) above shall be issued in
definitive, fully registered form, without interest coupons, shall have
an aggregate principal amount equal to that of such Global Debenture or
portion thereof to be so exchanged, shall be registered in such names
and be in such authorized denominations as the Depositary shall
designate and shall bear any legends required hereunder. Any Global
Debenture to be exchanged in whole shall be surrendered by the
Depositary to the Trustee, as Debenture Registrar. With regard to any
Global Debenture to be exchanged in part, either such Global Debenture
shall be so surrendered for exchange or, if the Trustee is acting as
Custodian for the Depositary or its nominee with respect to such Global
Debenture, the principal amount thereof shall be reduced, by an amount
equal to the portion thereof to be so exchanged, by means of an
appropriate adjustment made on the records of the Trustee. Upon any
such surrender or adjustment, the Trustee shall authenticate and make
available for delivery the Debenture issuable on such exchange to or
upon the written order of the Depositary or an authorized
representative thereof.
(iv) In the event of the occurrence of any of the events
specified in clause (ii) above, the Company will promptly make
available to the Trustee a reasonable supply of certificated Debentures
in definitive, fully registered form, without interest coupons.
(v) Neither any members of, or participants in, the Depositary
("Agent Members") nor any other Persons on whose behalf Agent Members
may act shall have any rights under this Indenture with respect to any
Global Debenture registered in the name of the Depositary or any
nominee thereof, and the Depositary or such nominee, as the case may
be, may be treated by the Company, the Trustee and any agent of the
Company or the Trustee as the absolute owner and holder of such Global
Debenture for all purposes whatsoever. Notwithstanding the foregoing,
nothing herein shall prevent the Company, the Trustee or any agent of
the Company or the Trustee from giving effect to any written
certification, proxy or other authorization furnished by the Depositary
or such nominee, as the case may be, or impair, as between the
Depositary, its Agent Members and any other Person on whose behalf an
Agent Member may act, the operation of customary practices of such
Persons governing the exercise of the rights of a beneficial holder of
any Debenture.
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(vi) At such time as all interests in a Global Debenture have
been redeemed, repurchased, converted, canceled or exchanged for
Debentures in certificated form, such Global Debenture shall, upon
receipt thereof, be canceled by the Trustee in accordance with standing
procedures and instructions existing between the Depositary and the
Custodian. At any time prior to such cancellation, if any interest in a
Global Debenture is redeemed, repurchased, converted, canceled or
exchanged for Debentures in certificated form, the principal amount of
such Global Debenture shall, in accordance with the standing procedures
and instructions existing between the Depositary and the Custodian, be
appropriately reduced, and an endorsement shall be made on such Global
Debenture, by the Trustee or the Custodian, at the direction of the
Trustee, to reflect such reduction.
(c) Each Debenture shall bear the following legend:
FOR PURPOSES OF SECTIONS 1272, 1273 AND 1275 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED, THIS DEBENTURE IS BEING ISSUED WITH ORIGINAL
ISSUE DISCOUNT. THE ISSUE PRICE OF EACH DEBENTURE IS $1,000 PER $1,000 OF
PRINCIPAL AMOUNT, AND THE ISSUE DATE IS APRIL 20, 2004. THIS DEBENTURE IS
SUBJECT TO UNITED STATES FEDERAL INCOME TAX REGULATIONS GOVERNING CONTINGENT
PAYMENT DEBT INSTRUMENTS. FOR PURPOSES OF SECTIONS 1272, 1273 AND 1275 OF THE
INTERNAL REVENUE CODE, THE COMPARABLE YIELD OF THIS DEBENTURE IS 7.625%,
COMPOUNDED SEMI-ANNUALLY (WHICH WILL BE TREATED AS THE YIELD TO MATURITY FOR
UNITED STATES FEDERAL INCOME TAX PURPOSES).
THE COMPANY AGREES, AND BY ACCEPTING A BENEFICIAL OWNERSHIP
INTEREST IN THIS DEBENTURE EACH HOLDER AND ANY BENEFICIAL OWNER OF THIS
DEBENTURE WILL BE DEEMED TO HAVE AGREED, FOR UNITED STATES FEDERAL INCOME TAX
PURPOSES (1) TO TREAT THIS DEBENTURE AS A DEBT INSTRUMENT THAT IS SUBJECT TO
TREAS. REG. SEC. 1.1275-4 (THE "CONTINGENT PAYMENT REGULATIONS"), (2) TO TREAT
THE FAIR MARKET VALUE OF ANY COMMON STOCK RECEIVED UPON ANY CONVERSION OF THIS
DEBENTURE OR UPON A PURCHASE OF THIS DEBENTURE AT THE HOLDER'S OPTION AS A
CONTINGENT PAYMENT FOR PURPOSES OF THE CONTINGENT PAYMENT REGULATIONS, AND (3)
TO ACCRUE INTEREST WITH RESPECT TO THE DEBENTURE AS ORIGINAL ISSUE DISCOUNT FOR
UNITED STATES FEDERAL INCOME TAX PURPOSES ACCORDING TO THE "NONCONTINGENT BOND
METHOD," SET FORTH IN THE CONTINGENT PAYMENT REGULATIONS, AND TO BE BOUND BY THE
COMPANY'S DETERMINATION OF THE "COMPARABLE YIELD" AND "PROJECTED PAYMENT
SCHEDULE," WITHIN THE MEANING OF THE CONTINGENT PAYMENT REGULATIONS, WITH
RESPECT TO THIS DEBENTURE. THE COMPANY AGREES TO PROVIDE
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PROMPTLY TO THE HOLDER OF THIS DEBENTURE, UPON WRITTEN REQUEST, THE ISSUE
PRICE, AMOUNT OF TAX ORIGINAL ISSUE DISCOUNT, ISSUE DATE, YIELD TO
MATURITY, COMPARABLE YIELD AND PROJECTED PAYMENT SCHEDULE. ANY SUCH WRITTEN
REQUEST SHOULD BE SENT TO THE COMPANY AT THE FOLLOWING ADDRESS: ALLIED
WASTE INDUSTRIES, INC., 00000 XXXXX XXXXXXXX-XXXXXX XXXX, XXXXX 000,
XXXXXXXXXX, XXXXXXX 00000, ATTN: INVESTOR RELATIONS.
Section 2.06. Mutilated, Destroyed, Lost or Stolen Debentures.
In case any Debenture shall become mutilated or be destroyed, lost or stolen,
the Company in its discretion may execute, and upon its written request the
Trustee or an authenticating agent appointed by the Trustee shall authenticate
and make available for delivery, a new Debenture, bearing a number not
contemporaneously outstanding, in exchange and substitution for the mutilated
Debenture, or in lieu of and in substitution for the Debenture so destroyed,
lost or stolen. In every case, the applicant for a substituted Debenture shall
furnish to the Company, to the Trustee and, if applicable, to such
authenticating agent such security or indemnity as may be required by them to
save each of them harmless for any loss, liability, cost or expense caused by or
connected with such substitution, and, in every case of destruction, loss or
theft, the applicant shall also furnish to the Company, to the Trustee and, if
applicable, to such authenticating agent evidence to their satisfaction of the
destruction, loss or theft of such Debenture and of the ownership thereof.
Following receipt by the Trustee or such authenticating agent,
as the case may be, of satisfactory security or indemnity and evidence, as
described in the preceding paragraph, the Trustee or such authenticating agent
may authenticate any such substituted Debenture and make available for delivery
such Debenture. Upon the issuance of any substituted Debenture, the Company may
require the payment by the holder of a sum sufficient to cover any tax,
assessment 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 or has been
tendered for repurchase upon a Fundamental Change (and not withdrawn) or has
been surrendered for repurchase on a Repurchase Date (and not withdrawn) or is
to be converted into Common Stock shall become mutilated or be destroyed, lost
or stolen, the Company may, instead of issuing a substitute Debenture, pay or
authorize the payment of or convert or authorize the conversion of the same
(without surrender thereof except in the case of a mutilated Debenture), as the
case may be, if the applicant for such payment or conversion shall furnish to
the Company, to the Trustee and, if applicable, to such authenticating agent
such security or indemnity as may be required by them to save each of them
harmless from any loss, liability, cost or expense caused by or in connection
with such substitution, and, in every case of destruction, loss or theft, the
applicant shall also furnish to the Company, the Trustee and, if applicable, any
Paying Agent or Conversion Agent evidence to their satisfaction of the
destruction, loss or theft of such Debenture and of the ownership thereof. Every
substitute Debenture issued pursuant to the provisions of this Section 2.06 by
virtue of the fact that any Debenture is destroyed, lost or stolen shall
constitute an additional contractual obligation of the Company, whether or not
the
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destroyed, lost or stolen Debenture shall be found at any time, and shall be
entitled to all the benefits of (but shall be subject to all the limitations set
forth in) this Indenture equally and proportionately with any and all other
Debentures duly issued hereunder. To the extent permitted by law, all Debentures
shall be held and owned upon the express condition that the foregoing provisions
are exclusive with respect to the replacement or payment or conversion or
redemption or repurchase of mutilated, destroyed, lost or stolen Debentures and
shall preclude any and all other rights or remedies notwithstanding any law or
statute existing or hereafter enacted to the contrary with respect to the
replacement or payment or conversion or redemption or repurchase of negotiable
instruments or other securities without their surrender.
Section 2.07. Temporary Debentures. Pending the preparation of
Debentures in certificated form, the Company may execute and the Trustee or an
authenticating agent appointed by the Trustee shall, upon the written request of
the Company, authenticate and deliver temporary Debentures (printed or
lithographed). Temporary Debentures shall be issuable in any authorized
denomination, and substantially in the form of the Debentures in certificated
form, but with such omissions, insertions and variations as may be appropriate
for temporary Debentures, all as may be determined by the Company. Every such
temporary Debenture shall be executed by the Company and authenticated by the
Trustee or such authenticating agent upon the same conditions and in
substantially the same manner, and with the same effect, as the Debentures in
certificated form. Without unreasonable delay, the Company will execute and
deliver to the Trustee or such authenticating agent Debentures in certificated
form and thereupon any or all temporary Debentures may be surrendered in
exchange therefor, at each office or agency maintained by the Company pursuant
to Section 5.02 and the Trustee or such authenticating agent shall authenticate
and make available for delivery in exchange for such temporary Debentures an
equal aggregate principal amount of Debentures in certificated form. Such
exchange shall be made by the Company at its own expense and without any charge
therefor. Until so exchanged, the temporary Debentures shall in all respects be
entitled to the same benefits and subject to the same limitations under this
Indenture as Debentures in certificated form authenticated and delivered
hereunder.
Section 2.08. Cancellation of Debentures. All Debentures
surrendered for the purpose of payment, redemption, repurchase, conversion,
exchange or registration of transfer shall, if surrendered to the Company or any
Paying Agent or any Debenture Registrar or any Conversion Agent, be surrendered
to the Trustee and promptly canceled by it, or, if surrendered to the Trustee,
shall be promptly canceled by it, and no Debentures shall be issued in lieu
thereof except as expressly permitted by any of the provisions of this
Indenture. The Trustee shall dispose of such canceled Debentures in accordance
with its customary procedures. If the Company shall acquire any of the
Debentures, such acquisition shall not operate as a redemption, repurchase or
satisfaction of the indebtedness represented by such Debentures unless and until
the same are delivered to the Trustee for cancellation.
Section 2.09. CUSIP Numbers. The Company in issuing the
Debentures may use "CUSIP" or "ISIN" numbers and/or similar numbers (if then
generally in use),
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and, if so, the Trustee shall use "CUSIP" and/or "ISIN" numbers in notices of
redemption as a convenience to Debentureholders; provided that any such notice
may state that no representation is made as to the correctness of such numbers
either as printed on the Debentures or as contained in any notice of a
redemption and that reliance may be placed only on the other identification
numbers printed on the Debentures, and any such redemption shall not be affected
by any defect in or omission of such numbers. The Company will promptly notify
the Trustee of any change in the "CUSIP" and/or similar numbers.
ARTICLE 3
REDEMPTION AND REPURCHASE OF DEBENTURES
Section 3.01. Company's Right To Redeem. Prior to April 18,
2009, the Debentures will not be redeemable at the Company's option. At any time
on or after April 18, 2009 and prior to Stated Maturity, the Company, at its
option, may redeem the Debentures, in whole or in part, in accordance with the
provisions of Section 3.02, Section 3.03 and Section 3.04 on the Redemption Date
for a redemption price (the "Redemption Price") in cash equal to 100% of the
principal amount of the Debentures to be redeemed together in each case with
accrued and unpaid Interest on the Debentures redeemed to, but excluding, the
Redemption Date.
Section 3.02. Notice of Optional Redemption; Selection of
Debentures. (a) In case the Company shall desire to exercise the right to redeem
all or any part of the Debentures pursuant to Section 3.01, it shall fix a date
for redemption (the "Redemption Date") and it or, at its written request
received by the Trustee not fewer than 45 days prior (or such shorter period of
time as may be acceptable to the Trustee) to the Redemption Date, the Trustee in
the name of and at the expense of the Company, shall mail or cause to be mailed
a notice of such redemption (a "Redemption Notice") not fewer than 30 nor more
than 60 days prior to the Redemption Date to each holder of Debentures so to be
redeemed as a whole or in part at its last address as the same appears on the
Debenture Register; provided that if the Company shall give such notice, it
shall also give written notice of the Redemption Date 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 as a whole or in part shall not affect the validity of the
proceedings for the redemption of any other Debenture. Concurrently with the
mailing of any such Redemption Notice, the Company shall issue a press release
announcing such redemption, the form and content of which press release shall be
determined by the Company in its sole discretion. The failure to issue any such
press release or any defect therein shall not affect the validity of the
Redemption Notice or any of the proceedings for the redemption of any Debenture
called for redemption.
(b) Each such Redemption Notice shall specify the aggregate
principal amount of Debentures to be redeemed, the CUSIP, ISIN or
similar number or numbers of the Debentures being redeemed, the
Redemption Date
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(which shall be a Business Day), the Redemption Price at which
Debentures are to be redeemed, the place or places of payment, that
payment will be made upon presentation and surrender of such
Debentures, that Interest accrued to the Redemption Date will be paid
as specified in said notice, and that on and after said date Interest
thereon or on the portion thereof to be redeemed will cease to accrue.
Such notice shall also state the current Conversion Rate and the date
on which the right to convert such Debentures or portions thereof into
Common Stock will expire. If fewer than all the Debentures are to be
redeemed, the Redemption Notice shall identify the Debentures to be
redeemed (including CUSIP, ISIN or similar numbers, if any). In case
any Debenture is to be redeemed in part only, the Redemption Notice
shall state the portion of the principal amount thereof to be redeemed
and shall state that, on and after the Redemption Date, upon surrender
of such Debenture, a new Debenture or Debentures in principal amount
equal to the unredeemed portion thereof will be issued.
(c) On or prior to the Redemption Date specified in the
Redemption Notice given as provided in this Section 3.02, the Company
will deposit with the Trustee or with one or more Paying Agents (or, if
the Company is acting as its own Paying Agent, set aside, segregate and
hold in trust as provided in Section 5.04) an amount of money in
immediately available funds sufficient to redeem on the Redemption Date
all the Debentures (or portions thereof) so called for redemption
(other than those theretofore surrendered for conversion into Common
Stock) at the appropriate Redemption Price; provided that if such
payment is made on the Redemption Date it must be received by the
Trustee or Paying Agent, as the case may be, by 10:00 a.m., New York
City time, on such date. The Company shall be entitled to retain any
interest, yield or gain on amounts deposited with the Trustee or any
Paying Agent pursuant to this Section 3.02(c) in excess of amounts
required hereunder to pay the Redemption Price and accrued interest to,
but excluding, the Redemption Date. Subject to the last sentence of
Section 8.05, if any Debenture called for redemption is converted
pursuant hereto prior to such Redemption Date, any money deposited with
the Trustee or any Paying Agent or so segregated and held in trust for
the redemption of such Debenture shall be paid to the Company upon its
written request, or, if then held by the Company, shall be discharged
from such trust. Whenever any Debentures are to be redeemed, the
Company will give the Trustee written notice in the form of an
Officers' Certificate not fewer than 45 days (or such shorter period of
time as may be acceptable to the Trustee) prior to the Redemption Date
as to the aggregate principal amount of Debentures to be redeemed.
(d) If less than all of the outstanding Debentures are to be
redeemed, the Trustee shall select the Debentures or portions thereof
of the Global Debenture or the Debentures in certificated form to be
redeemed (in principal amounts of $1,000 or integral multiples thereof)
on a pro rata basis unless otherwise required by law or applicable
stock exchange requirements. If any Debenture selected for partial
redemption is submitted for conversion in part after such selection,
the portion of such Debenture submitted for conversion shall be deemed
(so far as may be possible) to be from the portion selected for
redemption.
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The Debentures (or portions thereof) so selected shall be deemed duly
selected for redemption for all purposes hereof, notwithstanding that
any such Debenture is submitted for conversion in part before the
mailing of the Redemption Notice. Upon any redemption of less than all
of the outstanding Debentures, the Company and the Trustee may (but
need not), solely for purposes of determining the pro rata allocation
among such Debentures as are unconverted and outstanding at the time of
redemption, treat as outstanding any Debentures surrendered for
conversion during the period of 15 days next preceding the mailing of a
Redemption Notice and may (but need not) treat as outstanding any
Debenture authenticated and delivered during such period in exchange
for the unconverted portion of any Debenture converted in part during
such period.
Section 3.03. Payment of Debentures Called for Redemption by
the Company. If notice of redemption has been given as provided in Section 3.02,
the Debentures or portion of Debentures with respect to which such notice has
been given shall, unless converted into Common Stock pursuant to the terms
hereof, become due and payable on the Redemption Date and at the place or places
stated in such notice at the applicable Redemption Price, and on and after the
Redemption Date (unless the Company shall default in the payment of such
Debentures at the Redemption Price) Interest on the Debentures or portion of
Debentures so called for redemption shall cease to accrue (so long as the
Company has deposited funds in accordance with Section 3.02(c)) and, after the
close of business on the second Business Day immediately preceding the
Redemption Date (unless the Company shall default in the payment of such
Debentures at the Redemption Price) such Debentures shall cease to be
convertible into Common Stock and, except as provided in Section 8.05, to be
entitled to any benefit or security under this Indenture, and the holders
thereof shall have no right in respect of such Debentures except the right to
receive the Redemption Price thereof. On presentation and surrender of such
Debentures at a 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; provided that if the applicable Redemption Date
is an Interest Payment Date, the Interest payable on such Interest Payment Date
shall be paid on such Interest Payment Date to the holders of record of such
Debentures on the applicable record date instead of the holders surrendering
such Debentures for redemption on such date.
Upon presentation of any Debenture redeemed in part only, the
Company shall execute and the Trustee shall authenticate and make available for
delivery to the holder thereof, at the expense of the Company, a new Debenture
or Debentures, of authorized denominations, in principal amount equal to the
unredeemed portion of the Debentures so presented.
Notwithstanding the foregoing, the Trustee shall not redeem
any Debentures or mail any Redemption Notice during the continuance of a default
in payment of Interest on the Debentures. If any Debenture called for redemption
shall not be so paid upon surrender thereof for redemption, the principal shall,
until paid or duly provided for, continue to bear interest at the rate borne by
the Debenture, compounded semi-annually, and such Debenture shall remain
convertible into Common Stock until the
25
principal and Interest shall have been paid or duly provided for. The Company
will notify all of the holders if the Company redeems any of the Debentures.
Section 3.04. [Reserved].
Section 3.05. Repurchase of Debentures by the Company at
Option of Holders upon a Fundamental Change. (a) If a Fundamental Change shall
occur at any time prior to Stated Maturity, each holder shall have the right, at
such holder's option, to require the Company to repurchase any or all of such
holder's Debentures, or any portion of the principal amount thereof that is
equal to $1,000 or an integral multiple of $1,000, on the date specified in the
Fundamental Change Repurchase Notice, which date shall be no more than 30 days
after the date of the Fundamental Change Repurchase Notice (subject to extension
to comply with applicable law) (the "Fundamental Change Repurchase Date"). The
Company shall repurchase such Debentures at a price (the "Fundamental Change
Repurchase Price") equal to 100% of the principal amount thereof plus any
accrued and unpaid Interest to but excluding the Fundamental Change Repurchase
Date.
(b) On or before the 30th day after the occurrence of
a Fundamental Change, the Company, or at its written request the
Trustee in the name of and at the expense of the Company (which request
must be received by the Trustee at least five Business Days prior to
the date the Trustee is requested to give notice as described below,
unless the Trustee shall agree to a shorter period), shall mail or
cause to be mailed, by first class mail, to all holders of record on
such date a notice (the "Fundamental Change Repurchase Notice") of the
occurrence of such Fundamental Change and of the repurchase right at
the option of the holders arising as a result thereof to each holder of
Debentures at its last address as the same appears on the Debenture
Register; provided that if the Company shall give such notice, it shall
also give written notice of the Fundamental Change to the Trustee and
Paying Agent, if other than the Trustee, at such time as it is mailed
to Debentureholders. Such 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. Each Fundamental Change
Repurchase Notice shall state, among other things:
(i) the events causing the Fundamental Change;
(ii) the date of the Fundamental Change;
(iii) the last date on which a holder may exercise the
repurchase right;
(iv) the Fundamental Change Repurchase Price, excluding
accrued and unpaid Interest, the applicable Conversion Rate at
the time of such notice (and any applicable adjustments to the
Conversion Rate) and, to the extent known at the time of such
notice, the amount of Interest that will be payable with
respect to the Debentures on the Fundamental Change Repurchase
Date;
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(v) the Fundamental Change Repurchase Date;
(vi) the name and address of the Paying Agent and the
Conversion Agent;
(vii) whether the Company elects to pay the Fundamental
Change Repurchase Price in cash, in shares of Common Stock or
a combination thereof, specifying the percentage or amount of
each;
(viii) that Debentures as to which a Fundamental Change
Repurchase Election has been given by the holder may be
converted only if the election has been withdrawn by the
holder in accordance with the terms of this Indenture;
provided that the Debentures are otherwise convertible in
accordance with Section 15.01;
(ix) that the holder shall have the right to withdraw any
Debentures surrendered prior to the close of business on the
Business Day immediately preceding the Fundamental Change
Repurchase Date (or any such later time as may be required by
applicable law);
(x) a description of the procedures which a
Debentureholder must follow to exercise such repurchase right
or to withdraw any surrendered Debentures;
(xi) the CUSIP, ISIN or similar number or numbers of the
Debentures (if then generally in use); and
(xii) briefly, the conversion rights of the Debentures and
whether, at the time of such notice, the Debentures are
eligible for conversion.
No failure of the Company to give the foregoing notices and no
defect therein shall limit the Debentureholders' repurchase rights or affect the
validity of the proceedings for the repurchase of the Debentures pursuant to
this Section 3.05.
(c) Debentures shall be repurchased pursuant
to this Section 3.05 at the option of the holder upon:
(i) delivery to the Trustee (or other Paying Agent
appointed by the Company) by a holder of a duly completed
notice (a "Fundamental Change Repurchase Election") in the
form set forth on the reverse of the Debenture at any time
prior to the close of business on the Business Day immediately
preceding the Fundamental Change Repurchase Date (subject to
extension to comply with applicable law) stating:
(A) if certificated, the certificate numbers
of the Debentures which the holder shall deliver to
be repurchased;
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(B) the portion of the principal amount of
the Debentures that the holder shall deliver to be
repurchased, which portion must be $1,000 or an
integral multiple thereof; and
(C) that such Debentures shall be
repurchased as of the Fundamental Change Repurchase
Date pursuant to the terms and conditions specified
in the Debentures and in this Indenture; and
(ii) delivery or book-entry transfer of the
Debentures to the Trustee (or other Paying Agent appointed by
the Company) at any time prior to the close of business on the
Business Day immediately preceding the Fundamental Change
Repurchase Date (subject to extension to comply with
applicable law) (together with all necessary endorsements) at
the Corporate Trust Office of the Trustee (or other Paying
Agent appointed by the Company), such delivery or transfer
being a condition to receipt by the holder of the Fundamental
Change Repurchase Price therefor; provided that such
Fundamental Change Repurchase Price shall be so paid pursuant
to this Section 3.05 only if the Debentures so delivered or
transferred to the Trustee (or other Paying Agent appointed by
the Company) shall conform in all respects to the description
thereof in the related Fundamental Change Repurchase Election.
All questions as to the validity, eligibility (including time
of receipt) and acceptance of any Debenture for repurchase
shall be determined by the Company, whose determination shall
be final and binding absent manifest error.
If the Debentures are not in certificated form, holders must
provide notice of their election in accordance with the appropriate procedures
of the Depositary.
Section 3.06. Repurchase of Debentures by the Company at
Option of Holders on Specified Dates. (a) On each of April 15, 2011, April 15,
2014, April 15, 2019, April 15, 2024 and April 15, 2029 (each, a "Company
Repurchase Date"), each holder shall have the right, at such holder's option, to
require the Company to repurchase all of such holder's Debentures, or any
portion of the principal amount thereof that is an integral multiple of $1,000.
The Company shall repurchase such Debentures at a price (the "Company Repurchase
Price") equal to 100% of the principal amount thereof plus any accrued and
unpaid Interest to, but excluding, the Company Repurchase Date.
(b) On or before the 20th day prior to each Company Repurchase
Date, the Company, or at its written request the Trustee in the name of
and at the expense of the Company (which request must be received by
the Trustee at least five Business Days prior to the date the Trustee
is requested to give notice as described below, unless the Trustee
shall agree to a shorter period), shall mail or cause to be mailed, by
first class mail, to all holders of record on such date a notice (the
"Company Repurchase Notice") to each holder of Debentures at its last
address as the same appears on the Debenture Register, and to
beneficial owners as required by applicable law; provided that if the
Company shall give such notice, it shall also give written notice to
the Trustee and Paying Agent, if other than the
28
Trustee, at such time as it is mailed to Debentureholders. Such 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. Each Company Repurchase Notice shall state, among other things:
(i) the Company Repurchase Price, excluding accrued
and unpaid Interest, the applicable Conversion Rate at the
time of such notice (and any applicable adjustments to the
Conversion Rate) and, to the extent known at the time of such
notice, the amount of Interest that will be payable with
respect to the Debentures on the Company Repurchase Date;
(ii) the Company Repurchase Date;
(iii) the last date on which a holder may exercise
the repurchase right;
(iv) whether the Company elects to pay the Company
Repurchase Price in cash, in shares of Common Stock or a
combination thereof, specifying the percentage or amounts of
each;
(v) the name and address of the Paying Agent and the
Conversion Agent;
(vi) that Debentures as to which a Company Repurchase
Election has been given by the holder may be converted only if
the election has been withdrawn by the holder in accordance
with the terms of this Indenture; provided that the Debentures
are otherwise convertible in accordance with Section 15.01;
(vii) that the holder shall have the right to
withdraw any Debentures surrendered prior to the close of
business on the Business Day immediately preceding the Company
Repurchase Date (or any such later time as may be required by
applicable law);
(viii) a description of the procedures which a
Debentureholder must follow to exercise such repurchase right
or to withdraw any surrendered Debentures;
(ix) the CUSIP, ISIN or similar number or numbers of
the Debentures (if then generally in use); and
(x) briefly, the conversion rights of the Debentures
and whether, at the time of such notice, the Debentures are
eligible for conversion.
No failure of the Company to give the foregoing notices and no
defect therein shall limit the Debentureholders' repurchase rights or affect the
validity of the proceedings for the repurchase of the Debentures pursuant to
this Section 3.06.
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(c) Debentures shall be repurchased pursuant to this
Section 3.06 at the option of the holder upon:
(i) delivery to the Trustee (or other Paying Agent appointed
by the Company) by a holder of a duly completed notice (a "Company
Repurchase Election") in the form set forth on the reverse of the
Debenture at any time from the opening of business on the 20th Business
Day preceding the Company Repurchase Date until the close of business
on the Business Day immediately preceding the Company Repurchase Date
stating:
(A) if certificated, the certificate numbers of the
Debentures which the holder shall deliver to be repurchased;
(B) the portion of the principal amount of the
Debentures that the holder shall deliver to be repurchased,
which portion must be $1,000 or an integral multiple thereof;
and
(C) that such Debentures shall be repurchased as of
the Company Repurchase Date pursuant to the terms and
conditions specified in the Debentures and in the Indenture;
and
(ii) delivery or book-entry transfer of the Debentures to the
Trustee (or other Paying Agent appointed by the Company) at any time
after delivery of the Company Repurchase Election (together with all
necessary endorsements) at the Corporate Trust Office of the Trustee
(or other Paying Agent appointed by the Company), such delivery or
transfer being a condition to receipt by the holder of the Company
Repurchase Price therefor; provided that such Company Repurchase Price
shall be so paid pursuant to this Section 3.06 only if the Debentures
so delivered or transferred to the Trustee (or other Paying Agent
appointed by the Company) shall conform in all respects to the
description thereof in the related Company Repurchase Election. All
questions as to the validity, eligibility (including time of receipt)
and acceptance of any Debenture for repurchase shall be determined by
the Company, whose determination shall be final and binding absent
manifest error.
If the Debentures are not in certificated form, holders must provide
notice of their election in accordance with the appropriate procedures of the
Depositary.
Section 3.07. Company's Right To Elect Manner of Payment of Repurchase
Price. (a) The Debentures to be repurchased by the Company on any Repurchase
Date pursuant to Section 3.05 or Section 3.06, may be paid for, in whole or in
part, at the election of the Company (in the Company's sole discretion), in U.S.
legal tender ("cash"), shares of Common Stock, or in any combination of cash and
shares of Common Stock, subject to the conditions set forth in Section 3.07(e);
provided that accrued and unpaid Interest and any fractional interest in shares
of Common Stock shall
30
be paid in cash in an amount based upon the Last Reported Sale Price with
respect to the applicable Repurchase Date. The Company shall designate in its
Repurchase Notice whether the Company will purchase the Debentures for cash or
shares of Common Stock, or, if a combination thereof, the percentage of the
Repurchase Price that it will pay in cash and the percentage that it will pay in
shares of Common Stock; provided that the Company will pay cash for accrued and
unpaid Interest and for fractional interests in shares of Common Stock in an
amount based upon the Last Reported Sale Price with respect to the applicable
Repurchase Date. For purposes of determining the amount of any fractional
interests, all Debentures subject to repurchase held by a holder shall be
considered together (no matter how many separate certificates are to be
presented).
(b) Each holder whose Debentures are repurchased pursuant to
Section 3.05 or Section 3.06 shall receive the same percentage of cash
or shares of Common Stock in payment of the Repurchase Price for such
Debentures as any other holder whose Debentures are so repurchased,
except (i) as provided in Section 3.07(a) with regard to the payment of
cash in lieu of fractional shares of Common Stock and (ii) in the event
that the Company is unable to purchase the Debentures of a holder or
holders for shares of Common Stock because any necessary qualifications
or registrations of the shares of Common Stock under applicable state
securities laws cannot be obtained, or because the conditions to
purchasing such Debentures for shares of Common Stock set forth in
Section 3.07(e) have not been satisfied, the Company may purchase the
Debentures of such holder or holders for cash. The Company may not
change its election with respect to the consideration (or components or
percentages of components thereof) to be paid once the Company has
given its Repurchase Notice to holders except as provided in the
preceding sentence or pursuant to Section 3.07(e) in the event of a
failure to satisfy, prior to the close of business on the Business Day
immediately preceding the Repurchase Date, any condition to the payment
of the Repurchase Price in whole or in part in shares of Common Stock.
(c) At least three Business Days before the date of any
Repurchase Notice, the Company shall deliver an Officers' Certificate
to the Trustee specifying:
(i) the manner of payment selected by the Company;
(ii) the information required to be included in the Repurchase
Notice;
(iii) if the Company elects to pay the Repurchase Price, or a
specified percentage thereof, in shares of Common Stock, to the extent
applicable, that the conditions to such manner of payment set forth in
Section 3.07(e) have been or will be complied with; and
(iv) whether the Company desires the Trustee to give the Repurchase
Notice required.
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(d) If the Company elects to pay the Repurchase Price, or any
percentage thereof, with respect to a Repurchase Date in shares of
Common Stock, the number of shares of Common Stock to be delivered with
respect to each $1,000 principal amount of Debentures shall be equal to
the quotient obtained by dividing (i) the dollar amount of the
Repurchase Price (not including any accrued and unpaid interest) to be
paid in shares of Common Stock by (ii) the average Last Reported Sale
Prices of the Common Stock for the five Trading Days immediately
preceding the Repurchase Date; provided that no fractional shares will
be delivered.
(e) The Company's right to elect to pay some or all of the
Repurchase Price with respect to a Repurchase Date by delivering shares
of Common Stock shall be conditioned upon:
(i) the Company giving timely notice of its election and not having
previously given notice of an election to pay the Repurchase Price with
respect to such Repurchase Date entirely in cash;
(ii) the approval for listing of such shares of Common Stock on each
U.S. national or regional securities exchange on which the Common Stock
is then listed, subject to official notice of issuance, and approval of
trading of such shares of Common Stock on the New York Stock Exchange
or other similar securities exchange on which the Common Stock is then
traded;
(iii) information necessary to calculate the Last Reported Sale Price
being published in a daily newspaper of national circulation or being
otherwise readily publicly available;
(iv) any necessary qualification or registration under applicable
state securities laws or the availability of an exemption from such
qualification and registration; and
(v) the receipt by the Trustee of an Officers' Certificate and an
Opinion of Counsel each stating that (A) the terms of the issuance of
the shares of Common Stock are in conformity with this Indenture and
(B) the shares of Common Stock to be issued by the Company in payment
of the Repurchase Price in respect of Debentures have been duly
authorized and, when issued and delivered pursuant to the terms of this
Indenture in payment of the Repurchase Price will be validly issued,
fully paid and nonassessable and free from preemptive rights under the
Company's Certificate of Incorporation and By-laws, in each case as
then in effect, and the Delaware General Corporation Law (or other
applicable corporate law), and, in the case of such Officers'
Certificate, stating that each of the conditions in this clause (e)
have been satisfied and, in the case of such Opinion of Counsel,
stating that the condition in clause (iv) above has been satisfied.
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If the foregoing conditions are not satisfied with respect to
a holder or holders prior to the close of business on the Business Day
immediately preceding the Repurchase Date the Company shall pay the entire
Repurchase Price of the Debentures of such holder or holders in cash.
Upon determination of the actual number of shares of Common
Stock to be issued upon repurchase of Debentures, the Company shall be required
to disseminate a press release through Dow Xxxxx & Company, Inc., Bloomberg
Business News or a comparable news service containing this information or
publish the information on the Company's website on the World Wide Web or
through such other public medium as the Company may use at that time.
(f) All shares of Common Stock delivered upon
repurchase or redemption of the Debentures shall be newly issued shares
or treasury shares, shall be duly authorized, validly issued, fully
paid and nonassessable, and shall be free from preemptive rights and
free of any lien or adverse claim.
(g) If a holder is paid some or all of the Repurchase
Price with respect to such holder's Debentures in shares of Common
Stock, the Company shall pay any documentary, stamp or similar issue or
transfer tax due on such issue of Common Stock; provided that the
holder shall pay any such tax which is due because the holder requests
the Common Stock to be issued in a name other than that of the holder.
The Paying Agent may refuse to deliver the certificates representing
the shares of Common Stock being issued in a name other than the
holder's name until the Paying Agent receives a sum sufficient to pay
any tax which will be due because the shares of Common Stock are to be
issued in a name other than the holder's name. Nothing herein shall
preclude any income tax withholding required by law or regulations.
Section 3.08. Conditions and Procedures for Repurchase at
Option of Holders. (a) The Company shall repurchase from the holder thereof,
pursuant to Section 3.05 or Section 3.06, a portion of a Debenture, if the
principal amount of such portion is $1,000 or a whole multiple of $1,000.
Provisions of this Indenture that apply to the repurchase of all of a Debenture
also apply to the repurchase of such portion of such Debenture. Upon
presentation of any Debenture repurchased in part only, the Company shall
execute and the Trustee shall authenticate and make available for delivery to
the holder thereof, at the expense of the Company, a new Debenture or
Debentures, of any authorized denomination, in aggregate principal amount equal
to the portion of the Debentures presented not repurchased.
(b) On or prior to a Repurchase Date, the Company
will deposit with the Trustee or with one or more Paying Agents (or, if
the Company is acting as its own Paying Agent, set aside, segregate and
hold in trust as provided in Section 5.04) an amount of money
sufficient to repurchase on the Repurchase Date all the Debentures or
portions thereof to be repurchased on such date at the Repurchase
Price; provided that if such deposit is made on the Repurchase Date it
33
must be received by the Trustee or Paying Agent, as the case may be, by
10:00 a.m., New York City time, on such date.
If the Trustee or other Paying Agent appointed by the Company,
or the Company or an Affiliate of the Company, if it or such Affiliate is acting
as the Paying Agent, holds money sufficient to pay the aggregate Repurchase
Price of all the Debentures or portions thereof that are to be repurchased on
the Repurchase Date, then, on the Business Day following such date (i) such
Debentures will cease to be outstanding, (ii) Interest on such Debentures will
cease to accrue (whether or not book-entry transfer of the Debentures has been
made or the Debentures have been delivered to the Trustee or Paying Agent) and
(iii) all other rights of the holders of such Debentures will terminate (other
than the right to receive the Repurchase Price upon transfer or delivery of the
Debentures).
(c) Upon receipt by the Trustee (or other Paying
Agent appointed by the Company) of a Repurchase Election, the
holder of the Debenture in respect of which such Repurchase
Election was given shall (unless such notice is validly
withdrawn) thereafter be entitled to receive solely the
Repurchase Price with respect to such Debenture. Such
Repurchase Price shall be paid to such holder, subject to
receipt of funds and/or Debentures by the Trustee (or other
Paying Agent appointed by the Company), promptly following the
later of (x) the Repurchase Date with respect to such
Debenture (provided the holder has satisfied the conditions in
Section 3.05(c) or Section 3.06(c), as applicable) and (y) the
time of book-entry transfer or delivery of such Debenture to
the Trustee (or other Paying Agent appointed by the Company)
by the holder thereof in the manner required by Section
3.05(c) or Section 3.06(c), as applicable. Debentures in
respect of which a Repurchase Election has been given by the
holder thereof may not be converted pursuant to Article 15
hereof on or after the date of the delivery of such Repurchase
Election unless such notice has first been validly withdrawn.
(d) Notwithstanding anything herein to the contrary,
any holder delivering to the office of the Trustee (or other
Paying Agent appointed by the Company) a Repurchase Election
shall have the right to withdraw such election, in whole or in
part, at any time prior to the close of business on the
Business Day preceding the Repurchase Date (or any such later
time as may be required by applicable law) by delivery of a
written notice of withdrawal to the Trustee (or other Paying
Agent appointed by the Company) specifying:
(i) the principal amount of the Debenture
with respect to which such notice of withdrawal is
being submitted, and
(ii) the certificate number, if any, of the
Debenture in respect of which such notice of
withdrawal is being submitted, or the appropriate
Depositary information if the Debenture in respect of
which such notice of withdrawal is being submitted is
represented by a Global Debenture,
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(iii) the principal amount, if any, of such
Debenture which remains subject to the original Repurchase
Election and which has been or will be delivered for
repurchase by the Company.
If the Debentures are not in certificated form, holders must
provide notice of their withdrawal in accordance with the appropriate procedures
of the Depositary.
The Trustee (or other Paying Agent appointed by the Company)
shall promptly notify the Company of the receipt by it of any Repurchase
Election or written notice of withdrawal thereof.
(e) The Company will comply with the provisions of
Rule 13e-4 and any other tender offer rules under the Exchange Act to
the extent then applicable in connection with the repurchase rights of
the holders of Debentures at the time of a Fundamental Change
Repurchase Notice or a Company Repurchase Notice. If then required by
applicable rules, the Company will file a Schedule TO or any other
schedule required in connection with any offer by the Company to
repurchase Debentures.
(f) There shall be no repurchase of any Debentures
pursuant to Section 3.05 or Section 3.06 if there has occurred at any
time prior to, and is continuing on, the Repurchase Date an Event of
Default (other than an Event of Default that is cured by the payment of
the Repurchase Price with respect to such Debentures). The Paying Agent
will promptly return to the respective holders thereof any Debentures
(x) with respect to which a Repurchase Election has been withdrawn in
compliance with this Indenture, or (y) held by it during the
continuance of an Event of Default (other than a default in the payment
of the Repurchase Price with respect to such Debentures) in which case,
upon such return, the Repurchase Election with respect thereto shall be
deemed to have been withdrawn.
(g) The Trustee (or other Paying Agent appointed by
the Company) shall return to the Company any cash that remains
unclaimed as provided in Section 13.03, together with interest, if any,
thereon, held by them for the payment of the Repurchase Price; provided
that to the extent that the aggregate amount of cash deposited by the
Company pursuant to Section 3.08(b) exceeds the aggregate Repurchase
Price of the Debentures or portions thereof which the Company is
obligated to purchase as of the Repurchase Date then, unless otherwise
agreed in writing with the Company, promptly after the Business Day
following the Repurchase Date, the Trustee shall return any such excess
to the Company together with interest, if any, thereon.
(h) In the case of a reclassification, change,
consolidation, merger, binding share exchange, combination, sale or
conveyance to which Section 15.05(b) applies, in which the Common Stock
of the Company is changed or exchanged as a result into the right to
receive cash, securities or other property, which includes shares of
Common
35
Stock of the Company or shares of common stock of another Person that
are, or upon issuance will be, traded on a U.S. national securities
exchange or approved for trading on an established automated
over-the-counter trading market in the United States and such shares
constitute at the time such change or exchange becomes effective in
excess of 50% of the aggregate fair market value of such cash,
securities or other property (as determined by the Company, which
determination shall be conclusive and binding), then the Person formed
by such consolidation or resulting from such merger or which acquires
such assets, as the case may be, shall execute and deliver to the
Trustee a supplemental indenture (accompanied by an Opinion of Counsel
that such supplemental indenture complies with the Trust Indenture Act
as in force at the date of execution of such supplemental indenture)
modifying the provisions of this Indenture relating to the right of
holders of the Debentures to cause the Company to repurchase the
Debentures following a Fundamental Change, including without limitation
the applicable provisions of this Article 3 and the definition of
Fundamental Change, as appropriate, as determined in good faith by the
Company (which determination shall be conclusive and binding), to make
such provisions apply to such other Person if different from the
Company (in lieu of the Company).
ARTICLE 4
CONTINGENT INTEREST
Section 4.01. Contingent Interest. Additional interest
("Contingent Interest") will accrue on each Debenture during an Interest Period,
beginning with the Interest Period commencing on April 15, 2009, if the average
Trading Price of the Debentures during the Applicable Five-Day Trading Period
equals or exceeds 125% of the principal amount of the Debentures. If Contingent
Interest accrues during an Interest Period pursuant to the preceding sentence,
the amount of Contingent Interest payable with respect to such Interest Period
per $1,000 principal amount of Debentures shall equal 0.25% of the average
Trading Price during the Applicable Five-Day Trading Period with respect to such
Interest Period. The Trustee's sole responsibility pursuant to this Section 4.01
shall be to obtain the bids for determining the Trading Price of the Debentures
for each Trading Day during the Applicable Five-Day Trading Period and to
provide such information to the Company, to the extent that the Trustee is then
the Bid Solicitation Agent. The Company shall determine the Trading Price and
whether holders are entitled to receive Contingent Interest, and if so, provide
notice pursuant to Section 4.03. Notwithstanding any term contained in this
Indenture or any other document to the contrary, the Trustee shall have no
responsibilities, duties or obligations for or with respect to (i) determining
whether the Company must pay Contingent Interest or (ii) determining the amount
of Contingent Interest, if any, payable by the Company.
Section 4.02. Payment of Contingent Interest. Contingent
Interest for any Interest Period shall be paid on the immediately succeeding
Interest Payment Date to the Person in whose name any Debenture (or its
Predecessor Debenture) is registered on the Debenture Register at the close of
business on the corresponding Regular Record Date. Contingent Interest due under
this Article 4 shall be treated for all purposes of this Indenture like any
other interest accruing on the Debentures.
36
Section 4.03. Contingent Interest Notification. (a) As soon as
practicable following the first Business Day of an Interest Period for which
Contingent Interest will be payable pursuant to Section 4.01, the Company shall
issue a press release stating that Contingent Interest will be paid on the
Debentures and identifying the Interest Period and publish the information on
its website on the World Wide Web.
(b) On any Interest Payment Date on which Contingent
Interest is payable pursuant to this Article 4, the Company shall
deliver notice to the Trustee, issue a press release stating the amount
of such Contingent Interest and setting the forth the manner in which
such amount was calculated and publish such information on its website
on the World Wide Web.
ARTICLE 5
PARTICULAR COVENANTS OF THE COMPANY
Section 5.01. Payment of Principal and Interest. The Company
covenants and agrees that it will duly and punctually pay or cause to be paid
the principal of (including any Redemption Price or Repurchase Price pursuant to
Article 3) and Interest on each of the Debentures at the places, at the
respective times and in the manner provided herein and in the Debentures.
Section 5.02. Maintenance of Office or Agency. The Debentures
may be surrendered for registration of transfer or exchange or for presentation
for payment or for conversion, redemption or repurchase and notices and demands
to or upon the Company in respect of the Debentures and this Indenture at the
Corporate Trust Office of the Trustee. The Company will give prompt written
notice to the Trustee of the location, and any change in the location, of any
such office or agency. The Company may also from time to time designate
co-registrars and one or more offices or agencies where the Debentures may be
presented or surrendered for any or all such purposes and may from time to time
rescind such designations. The Company will give prompt written notice of any
such designation or rescission and of any change in the location of any such
other office or agency.
The Company hereby initially designates the Trustee as Paying
Agent, Debenture Registrar, Custodian, Bid Solicitation Agent and Conversion
Agent, and the Corporate Trust Office shall be considered as the office or
agency of the Company for each of the aforesaid purposes.
So long as the Trustee is the Debenture Registrar, the Trustee
agrees to mail, or cause to be mailed, the notices set forth in Section 8.10(a)
and the third paragraph of Section 8.11. If co-registrars have been appointed in
accordance with this Section, the Trustee shall mail such notices only to the
Company and the holders of Debentures it can identify from its records.
Section 5.03. Appointments to Fill vacancies in Trustee's
Office. The Company, whenever necessary to avoid or fill a vacancy in the office
of Trustee, will
37
appoint, in the manner provided in Section 8.10, a Trustee, so that there shall
at all times be a Trustee hereunder.
Section 5.04. Provisions as to Paying Agent. (a) If the
Company shall appoint a Paying Agent other than the Trustee, or if the Trustee
shall appoint such a Paying Agent, the Company will cause such Paying Agent to
execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this Section 5.04:
(1) that it will hold all sums held by it as such agent for
the payment of the principal of or 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;
(2) that it will give the Trustee notice of any failure by the
Company (or by any other obligor on the Debentures) to make any payment
of the principal of or Interest on the Debentures when the same shall
be due and payable; and
(3) that at any time during the continuance of an Event of
Default, upon request of the Trustee, it will forthwith pay to the
Trustee all sums so held in trust.
The Company shall, on or before each due date of the principal
of or Interest on the Debentures, deposit with the Paying Agent a sum (in funds
which are immediately available on the due date for such payment) sufficient to
pay such principal or Interest, and (unless such Paying Agent is the Trustee)
the Company will promptly notify the Trustee of any failure to take such action;
provided that if such deposit is made on the due date, such deposit shall be
received by the Paying Agent by 10:00 a.m., New York City time, on such date.
(b) If the Company shall act as its own Paying Agent,
it will, on or before each due date of the principal of or Interest on
the Debentures, set aside, segregate and hold in trust for the benefit
of the holders of the Debentures a sum sufficient to pay such principal
or Interest so becoming due and will promptly notify the Trustee of any
failure to take such action and of any failure by the Company (or any
other obligor under the Debentures) to make any payment of the
principal of or Interest on the Debentures when the same shall become
due and payable.
(c) Anything in this Section 5.04 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 the Company or any Paying Agent hereunder as required by this
Section 5.04, such sums to be held by the Trustee upon the trusts
herein contained and upon such payment by the Company or any Paying
Agent to the Trustee, the Company or such Paying Agent shall be
released from all further liability with respect to such sums.
38
(d) Anything in this Section 5.04 to the contrary
notwithstanding, the agreement to hold sums in trust as provided in
this Section 5.04 is subject to Sections 13.02 and 13.03.
The Trustee shall not be responsible for the actions of any
other Paying Agents (including the Company if acting as its own Paying Agent)
and shall have no control of any funds held by such other Paying Agents.
Section 5.05. Existence. Subject to Article 12, the Company
will do or cause to be done all things necessary to preserve and keep in full
force and effect its existence and rights (charter and statutory); provided that
the Company shall not be required to preserve any such right if the Company
shall determine that the preservation thereof is no longer desirable in the
conduct of the business of the Company and that the loss thereof is not
disadvantageous in any material respect to the Debentureholders.
Section 5.06. [Reserved].
Section 5.07. [Reserved].
Section 5.08. Compliance Certificate. The Company shall
deliver to the Trustee, within 120 days after the end of each fiscal year of the
Company (which fiscal year of the Company is presently the twelve calendar
months ending December 31), a certificate signed by either the principal
executive officer, principal financial officer or principal accounting officer
of the Company, stating whether or not to the best knowledge of the signer
thereof the Company is in default in the performance and observance of any of
the terms, provisions and conditions of this Indenture (without regard to any
period of grace or requirement of notice provided hereunder) and, if the Company
shall be in default, specifying all such defaults and the nature and the status
thereof of which the signer may have knowledge.
The Company will deliver to the Trustee, promptly upon
becoming aware of (i) any default in the performance or observance of any
covenant, agreement or condition contained in this Indenture, or (ii) any Event
of Default, an Officers' Certificate specifying with particularity such default
or Event of Default and further stating what action the Company has taken, is
taking or proposes to take with respect thereto.
Any notice required to be given under this Section 5.08 shall
be delivered to a Responsible Officer of the Trustee at its Corporate Trust
Office.
Section 5.09. Contingent Debt Tax Treatment. The Company
agrees and, by acceptance of a Debenture, each beneficial holder of a Debenture
will be deemed to have agreed for United States federal income tax purposes (1)
to treat the Debentures as debt instruments that are subject to Treas. Reg. Sec.
1.1275-4 (the "Contingent Payment Regulations"), (2) to treat the fair market
value of any common stock received upon any conversion of the Debentures or upon
a purchase of the Debentures at the holder's option as a contingent payment for
purposes of the Contingent Payment Regulations and (3) to accrue interest with
respect to the Debentures as original issue discount for United States federal
income tax purposes according to the "noncontingent bond method" set forth in
39
the Contingent Payment Regulations and to be bound by the Company's
determination of the "comparable yield" and "projected payment schedule," within
the meaning of the Contingent Payment Regulations, with respect to the
Debentures. A holder of Debentures may obtain the amount of original issue
discount, issue date, yield to maturity, comparable yield and projected payment
schedule for the Debentures, determined by the Company pursuant to Treas. Reg.
Sec. 1.1275-4, by submitting a written request for it to the Company at the
following address: Allied Waste Industries, Inc., 00000 Xxxxx Xxxxxxxx-Xxxxxx
Xxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000, Attention: Investor Relations.
ARTICLE 6
DEBENTUREHOLDERS' LISTS AND REPORTS
BY THE COMPANY AND THE TRUSTEE
Section 6.01. Debentureholders' Lists. The Company covenants
and agrees that it will furnish or cause to be furnished to the Trustee,
semiannually, not more than 15 days after each April 1 and October 1 in each
year beginning with October 1, 2004, and at such other times as the Trustee may
request in writing, within 30 days after receipt by the Company of any such
request (or such lesser time as the Trustee may reasonably request in order to
enable it to timely provide any notice to be provided by it hereunder), a list
in such form as the Trustee may reasonably require of the names and addresses of
the holders of Debentures as of a date not more than 15 days (or such other date
as the Trustee may reasonably request in order to so provide any such notices)
prior to the time such information is furnished, except that no such list need
be furnished by the Company to the Trustee so long as the Trustee is acting as
the sole Debenture Registrar.
Section 6.02. Preservation and Disclosure of Lists. (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 contained
in the most recent list furnished to it as provided in Section 6.01 or
maintained by the Trustee in its capacity as Debenture Registrar or co-registrar
in respect of the Debentures, if so acting. The Trustee may destroy any list
furnished to it as provided in Section 6.01 upon receipt of a new list so
furnished.
(b) The rights of Debentureholders to communicate
with other holders of Debentures with respect to their rights under
this Indenture or under the Debentures, and the corresponding rights
and duties of the Trustee, shall be as provided by the Trust Indenture
Act.
(c) Every Debentureholder, by receiving and holding
the same, agrees with the Company and the Trustee that neither the
Company nor the Trustee nor any agent of either of them shall be held
accountable by reason of any disclosure of information as to names and
addresses of holders of Debentures made pursuant to the Trust Indenture
Act.
40
Section 6.03. Reports by Trustee. (a) Within 60 days after May
15 of each year commencing with the year 2004, the Trustee shall transmit to
holders of Debentures such reports dated as of May 15 of the year in which such
reports are made concerning the Trustee and its actions under this Indenture as
may be required pursuant to the Trust Indenture Act at the times and in the
manner provided pursuant thereto. In the event that no events have occurred
under the applicable sections of the Trust Indenture Act, the Trustee shall be
under no duty or obligation to provide such reports.
(b) A copy of such report shall, at the time of such
transmission to holders of Debentures, be filed by the Trustee with
each stock exchange and automated quotation system upon which the
Debentures are listed and with the Company. The Company will promptly
notify the Trustee in writing when the Debentures are listed on any
stock exchange or automated quotation system or delisted therefrom.
Section 6.04. Reports by Company. The Company shall file with
the Trustee and the Commission, and transmit to holders of Debentures, such
information, documents and other reports and such summaries thereof, as may be
required pursuant to the Trust Indenture Act at the times and in the manner
provided pursuant to such Act, whether or not the Debentures are governed by
such Act; provided that any such information, documents or reports required to
be filed with the Commission pursuant to Section 13 or 15(d) of the Exchange Act
shall be filed with the Trustee within 15 days after the same is so required to
be filed with the Commission. Delivery of such reports, information and
documents to the Trustee is for informational purposes only and the Trustee's
receipt of such shall not constitute constructive notice of any information
contained therein or determinable from information contained therein, including
the Company's compliance with any of its covenants hereunder (as to which the
Trustee is entitled to rely exclusively on Officers' Certificates).
ARTICLE 7
REMEDIES OF THE TRUSTEE AND DEBENTUREHOLDERS
ON AN EVENT OF DEFAULT
Section 7.01. Events of Default. An "Event of Default" with
respect to the Debentures, means any one of the following events (each, an
"Event of Default") (whatever the reason for such Event of Default and whether
it shall be voluntary or involuntary or be effected by operation of law or
pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):
(a) default in the payment of the principal of any of the
Debentures as and when the same becomes due and payable at Stated
Maturity; or
(b) default in the payment of Interest on any of the
Debentures as and when the same becomes due and payable, and such
default continues for a period of 30 days; or
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(c) default in the Company's obligation to convert the
Debentures into shares of Common Stock, cash or a combination of cash
and shares of Common Stock upon the exercise of a Debentureholder's
rights pursuant to Article 15 and continuation of such default for a
period of 10 days; or
(d) default in the Company's obligation to repurchase the
Debentures at the option of a holder upon a Fundamental Change pursuant
to Section 3.05 or on specified dates pursuant to Section 3.06; or
(e) default in the Company's obligation to redeem the
Debentures after it has exercised its option to redeem; or
(f) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture (other than a covenant or
warranty a default in whose performance or whose breach is elsewhere in
this Section 7.01 specifically dealt with) or the Debentures, and
continuance of such default or breach for a period of 60 days after
there has been given to the Company by the Trustee or to the Company
and the Trustee by the Debentureholders of at least 10% in principal
amount of the Debentures at the time outstanding determined in
accordance with Section 9.04, a written notice specifying such default
or breach and requiring it to be remedied and stating that such notice
is a "Notice of Default" hereunder; or
(g) a default or defaults under the terms of any bond(s),
debenture(s), note(s) or other evidence(s) of, or obligations
constituting, indebtedness of the Company or any of its Subsidiaries,
or under any mortgage(s), indenture(s), agreement(s) or instrument(s)
under which there may be issued or by which there may be secured or
evidenced, any indebtedness of the Company or any of its Subsidiaries
with a principal amount then outstanding, individually or in the
aggregate, in excess of $50,000,000, whether such indebtedness now
exists or is hereafter incurred, which default or defaults constitute a
failure to pay any portion of the principal or similar amount of such
indebtedness when due and payable after the expiration of any
applicable grace period with respect thereto or results in such
indebtedness becoming or being declared due and payable prior to the
date on which it would otherwise have become due and payable; or
(h) a final judgment or final judgments (not subject to
appeal) for the payment of money are entered against the Company or any
of its Subsidiaries in an aggregate amount in excess of $50,000,000 by
a court or courts of competent jurisdiction, which judgments remain
unstayed, undischarged or unbonded for a period of 60 days after the
entry of such judgment or judgments; or
(i) the entry by a court having jurisdiction in the premises
of (A) a decree or order for relief in respect of the Company or any
Major Subsidiary in an involuntary case or proceeding under any
applicable Federal or state bankruptcy, insolvency, reorganization or
other similar law or (B) a decree or order adjudging the Company or any
Major Subsidiary a bankrupt or insolvent, or approving as properly
filed a petition seeking reorganization, arrangement, adjustment or
42
composition of or in respect of the Company or any Major Subsidiary
under any applicable Federal or state law, or appointing a custodian,
receiver, liquidator, assignee, trustee, sequestrator or other similar
official of the Company or any Major Subsidiary or of any substantial
part of the property of the Company or any Major Subsidiary, or
ordering the winding up or liquidation of the affairs of the Company or
any Major Subsidiary, and the continuance of any such decree or order
for relief or any such other decree or order unstayed and in effect for
a period of 60 consecutive days; or
(j) the commencement by the Company or any Major Subsidiary of
a voluntary case or proceeding under any applicable Federal or state
bankruptcy, insolvency, reorganization or other similar law or of any
other case or proceeding to be adjudicated a bankrupt or insolvent, or
the consent by the Company or any Major Subsidiary to the entry of a
decree or order for relief in respect of the Company or any Major
Subsidiary in an involuntary case or proceeding under any applicable
Federal or state bankruptcy, insolvency, reorganization or other
similar law or to the commencement of any bankruptcy or insolvency case
or proceeding against the Company or any Major Subsidiary or the filing
by the Company or any Major Subsidiary of a petition or answer or
consent seeking reorganization or relief under any applicable Federal
or state law, or the consent by the Company or any Major Subsidiary to
the filing of such a petition or to the appointment of or taking
possession by a custodian, receiver, liquidator, assignee, trustee,
sequestrator or similar official of the Company or any Major Subsidiary
or of any substantial part of the property of the Company or any Major
Subsidiary, or the making by the Company or any Major Subsidiary of an
assignment for the benefit of creditors, or the admission by the
Company or any Major Subsidiary in writing of its inability to pay its
debts generally as they become due, or the taking of corporate action
by the Company or any Major Subsidiary in furtherance of any such
action.
Section 7.02. Acceleration; Rescission and Annulment. If an
Event of Default with respect to the Debentures at the time outstanding as
determined in accordance with Section 9.04 (other than an Event of Default
specified in clause (i) or (j) of Section 7.01) occurs and is continuing, the
Trustee or the holders of at least 25% in aggregate principal amount of all of
the Outstanding Debentures determined in accordance with Section 9.04, by
written notice received by the Company (and, if given by the Debentureholders,
received by the Trustee), may declare the principal of, premium, if any, and
accrued Interest, if any, on all the Debentures to be due and payable and upon
any such declaration such principal, premium, if any, and interest, if any,
shall be immediately due and payable. If an Event of Default specified in clause
(i) or (j) of Section 7.01 with respect to the Outstanding Debentures determined
in accordance with Section 9.04 occurs and is continuing, then the principal of,
premium, if any, and accrued Interest, if any, on all the Debentures shall be
immediately due and payable without any declaration or act on the part of the
Trustee or any holder of such Debentures.
At any time after such a declaration of acceleration has been
made and before a judgment or decree for payment of the money due has been
obtained by the
43
Trustee as hereinafter in this Article provided, the holders of not less than a
majority in aggregate principal amount of the Outstanding Debentures determined
in accordance with Section 9.04, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if:
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue Interest on all Debentures,
(B) the principal of (an premium, if any on) any
Debentures which have become due otherwise than by such
declaration of acceleration and any Interest thereon at the
rate borne by the Debentures,
(C) to the extent that payment of such interest is
lawful, Interest upon overdue interest at the rate provided
therefor in the Debentures, and
(D) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel;
and
(2) all Events of Default, other than the nonpayment of the
principal of Debentures which have become due solely by such
declaration of acceleration, have been cured or waived as provided in
Section 7.07.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Section 7.03. Collection of Indebtedness and Suits for
Enforcement by Trustee. The Company agrees that if:
(a) default is made in the payment of any Interest on any
Debenture when such Interest becomes due and payable and such default
continues for a period of 30 days, or
(b) default is made in the payment of the principal of any
Debenture at the Stated Maturity or in connection with any redemption
or repurchase, in each case pursuant to Article 3 or otherwise,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
holders of such Debentures, if any, the whole amount then due and payable on
such Debentures for principal, and Interest and, to the extent that payment of
such Interest shall be legally enforceable, Interest on any overdue principal,
and on any overdue Interest, at the rate or rates prescribed therefor in such
Debentures or interest coupons, if any, and, in addition
44
thereto, such further amount as shall be sufficient to cover the costs and
expenses of collection, including all amounts due the Trustee, its agents and
counsel under Section 8.06.
If the Company fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and unpaid
and may prosecute such proceeding to judgment or final decree, and may enforce
the same against the Company and collect the moneys adjudged or decreed to be
payable in the manner provided by law out of the property of the Company.
If an Event of Default with respect to Debentures occurs and
is continuing, the Trustee may in its discretion proceed to protect and enforce
its rights and the rights of the holders of Debentures by such appropriate
judicial proceedings as the Trustee shall deem most effectual to protect and
enforce any such rights, whether for the specific enforcement of any agreement
in this Indenture or in aid of the exercise of any power granted herein, or to
secure any other proper remedy, subject, however, to Section 7.08.
Section 7.04. Trustee May File Proofs of Claim. In case of any
judicial proceeding relative to the Company, its property or its creditors, the
Trustee shall be entitled and empowered, by intervention in such proceeding or
otherwise, to take any and all actions authorized under the Trust Indenture Act
in order to have claims of the Debentureholders and the Trustee allowed in any
such proceeding. In particular, the Trustee shall be authorized to collect and
receive any moneys or other property payable or deliverable on any such claims
and to distribute the same; and any custodian, receiver, assignee, trustee,
liquidator, sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Debentureholder to make such payments to
the Trustee and, in the event that the Trustee shall consent to the making of
such payments directly to the Debentureholders, to pay to the Trustee any amount
due it for the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 8.06.
No provision of this Indenture shall be deemed to authorize
the Trustee to authorize or consent to or accept or adopt on behalf of any
holder of a Debenture or interest coupon any plan of reorganization,
arrangement, adjustment or composition affecting the Debentures or the rights of
any holder of a Debenture or interest coupon thereof or to authorize the Trustee
to vote in respect of the claim of any holder of a Debenture or interest coupon
in any such proceeding; provided, however, that the Trustee may, on behalf of
the Debentureholders, vote for the election of a trustee in bankruptcy or
similar official and be a member of a creditors' or other similar committee.
Section 7.05. Trustee May Enforce Claims Without Possession of
Debentures. All rights of action and claims under this Indenture or the
Debentures may be prosecuted and enforced by the Trustee without the possession
of any of the Debentures or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by the Trustee shall be brought in
its own name as trustee of an express trust, and any recovery of judgment shall,
after provision for the payment of the
45
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, be for the ratable benefit of the holders of the
Debentures in respect of which such judgment has been recovered.
Section 7.06. Delay or Omission Not Waiver. No delay or
omission by the Trustee or any holder of any Debentures to exercise any right or
remedy accruing upon an Event of Default shall impair any such right or remedy
or constitute a waiver of or acquiescence in any such Event of Default.
Section 7.07. Waiver of Past Defaults. The Debentureholders of
not less than a majority in aggregate principal amount of Outstanding Debentures
by written notice to the Trustee may waive on behalf of the holders of all
Debentures and any interest coupons appertaining thereto a past Default or Event
of Default with respect to its consequences except a Default or Event of Default
(i) in the payment of the principal of, premium, if any, or Interest on any
Debenture, (ii) by the Company to convert any Debentures into shares of Common
Stock, cash or a combination of cash and shares of Common Stock, (iii) in the
payment of the Redemption Price pursuant to Section 3.03, (iv) in the payment of
the Fundamental Change Repurchase Price pursuant to Section 3.05 or Company
Repurchase Price pursuant to Section 3.06 or (v) in respect of a covenant or
provision hereof which pursuant to Article 11 cannot be modified or amended
without the consent of each holder of Debentures then outstanding or affected
thereby. Upon any such waiver, such Default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
Section 7.08. Control by Majority. The Debentureholders of not
less than a majority in aggregate principal amount of the Outstanding Debentures
shall have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee or exercising any trust or
power conferred on it with respect to Debentures; provided, however, that (i)
the Trustee may refuse to follow any direction that conflicts with any
governmental rule or law or this Indenture, (ii) the Trustee may refuse to
follow any direction that is unduly prejudicial to the rights of the Holders of
Debentures not consenting, or that would in the good faith judgment of the
Trustee have a substantial likelihood of involving the Trustee in personal
liability without adequate indemnity having been offered therefor and (iii)
subject to Section 8.01, the Trustee may take any other action deemed proper by
the Trustee which is not inconsistent with such direction.
Section 7.09. Limitation on Suits by Debentureholders. No
holder of any Debenture or any interest coupons appertaining thereto shall have
any right to institute any proceeding, judicial or otherwise, with respect to
this Indenture, or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless:
(a) the holder of such Debenture has previously given written
notice to the Trustee of a continuing Event of Default with respect to
the Debentures of that series;
46
(b) the holders of at least 25% in aggregate principal amount
of the Outstanding Debentures determined in accordance with Section
9.04 have made a written request to the Trustee to institute
proceedings in respect of such Event of Default in its own name as
Trustee hereunder;
(c) such holder or holders of Debentures have offered to the
Trustee indemnity satisfactory to the Trustee against any loss,
liability or expense to be, or which may be, incurred by the Trustee in
pursuing the remedy;
(d) the Trustee for 60 days after its receipt of such notice,
request and the offer of indemnity has failed to institute any such
proceedings; and
(e) during such 60-day period, the holders of a majority in
aggregate principal amount of the Outstanding Debentures determined in
accordance with Section 9.04 have not given to the Trustee a direction
inconsistent with such written request; provided, however, that the
limitations contained in (a) through (e) of this Section do not apply
to any suit by a holder of any Debenture for enforcement of payment of
the principal of (and premium, if any) or Interest on such Debenture on
or after the respective due date expressed in such Debenture.
No one or more holders of Debentures shall have any right in
any manner whatever by virtue of, or by availing of, any provision of this
Indenture to affect, disturb or prejudice the rights of any other of such
holders, or to obtain or to seek to obtain priority or preference over any other
of such holders or to enforce any right under this Indenture, except in the
manner herein provided and for the equal and ratable benefit of all of such
holders.
Section 7.10. Rights of Debentureholders To Receive Payment.
Notwithstanding any other provision of this Indenture, but subject to Section
5.02, each of the right of any holder of a Debenture or interest coupon to
receive payment of principal of, premium, if any, and, subject to Sections 2.03
and 2.05, Interest on the Debenture, on or after the respective due dates
expressed in the Debenture (or, in case of redemption or a required repurchase
by the Company under the terms of the relevant Debentures, on the Redemption
Dates or specified Repurchase Dates), the right of any holder of an interest
coupon to receive payment of Interest due as provided in such interest coupon,
or to bring suit for the enforcement of any such payment on or after such
respective dates, and the right, if any, to convert or exchange such Debenture
in accordance with Article 15, is unconditional and shall not be impaired or
affected without the consent of such holder.
Section 7.11. Application of Money Collected. If the Trustee
collects any money pursuant to this Article, it shall pay out the money in the
following order, at the date or dates fixed by the Trustee and, in case of the
distribution of such money on account of principal, premium, if any, or
Interest, upon presentation of the Debentures and interest coupons, if any, and
the notation thereon of the payment if only partially paid and upon surrender
thereof if fully paid:
47
First: to the Trustee (including any predecessor Trustee) for
amounts due under Section 8.06;
Second: to holders of Debentures and interest coupons in
respect of which or for the benefit of which such money has been
collected for amounts due and unpaid on such Debentures for principal
of, premium, if any, and interest, ratably, without preference or
priority of any kind, according to the amounts due and payable on such
Debentures for principal, premium, if any, and interest, respectively;
and
Third: the balance, if any, to the Company.
The Trustee may fix a record date and payment date for any
payment to Debentureholders pursuant to this Section 7.11. At least 15 days
before such record date, the Trustee shall mail to each Debentureholder and the
Company a notice that states the record date, the payment date and the amount to
be paid.
Section 7.12. Restoration of Rights and Remedies. If the
Trustee or any Debentureholder has instituted any proceeding to enforce any
right or remedy under this Indenture and such proceeding has been discontinued
or abandoned for any reason, or has been determined adversely to the Trustee or
to such Debentureholder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the
Debentureholders shall be restored severally and respectively to their former
positions hereunder and thereafter all rights and remedies of the Trustee and
the Debentureholders shall continue as though no such proceeding had been
instituted.
Section 7.13. Rights and Remedies Cumulative. Except as
otherwise provided with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Debentures in Section 2.06, no right or remedy herein
conferred upon or reserved to the Trustee or the Debentureholders is intended to
be exclusive of any other right or remedy, and every right and remedy shall, to
the extent permitted by law, be cumulative and in addition to every other right
and remedy given hereunder or now or hereafter existing at law as in equity or
otherwise. The assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
Section 7.14. Undertaking for Costs. In any suit for the
enforcement of any right or remedy under this Indenture, or in any suit against
the Trustee for any action taken, suffered or omitted by it as Trustee, a court
may require any party litigant in such suit to file an undertaking to pay the
costs of such suit, and may assess costs against any such party litigant, in the
manner and to the extent provided in the Trust Indenture Act; provided, however,
that neither this Section nor the Trust Indenture Act shall be deemed to
authorize any court to require such an undertaking or to make such an assessment
in any suit instituted by the Company, the Trustee or any Debentureholder, or
group of Debentureholders, holding in the aggregate at least 10% in principal
amount of the Outstanding Debentures determined in accordance with Section 9.04
or in any suit instituted by any Debentureholder for the enforcement of
principal of, premium, if any, or
48
interest on any Debenture on or after the respective Stated Maturities expressed
in such Debenture (or, in the case of redemption or any required repurchase by
the Company, on or after the Redemption Date or specified Repurchase Date).
Section 7.15. Waiver of Stay, Extension or Usury Laws. The
Company agrees (to the extent that it may lawfully do so) that it will not at
any time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay or extension law or any usury or other law
wherever enacted, now or at any time hereafter in force, which would prohibit or
forgive the Company from paying all or any portion of the principal of, and
premium, if any, or Interest on the Debentures contemplated herein or in the
Debentures or which may affect the covenants or the performance of this
Indenture; and each of the Company (to the extent that it may lawfully do so)
hereby expressly waives all benefit or advantage of any such law, and agrees
that it will not hinder, delay or impede the execution of any power herein
granted to the Trustee, but will suffer and permit the execution of every such
power as though no such law had been enacted.
ARTICLE 8
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. In case an
Event of Default has occurred (which has not been cured or waived), 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 person
would exercise or use under the circumstances in the conduct of such person's
own affairs. 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 or waiving of all Events of Default which may have occurred:
(i) the duties and obligations of the Trustee shall
be determined solely by the express provisions of this
Indenture and the Trust Indenture Act, 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 and the Trust Indenture Act 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 which by
any provisions hereof are specifically required to be
furnished to the
49
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 the Trustee was negligent in ascertaining the pertinent facts;
(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
written direction of the holders of not less than a majority in
principal amount of the Debentures at the time outstanding determined
as provided in Section 9.04 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;
(d) the Trustee shall not be liable in respect of any payment
(as to the correctness of amount, entitlement to receive or any other
matters relating to payment) or notice effected by the Company or any
Paying Agent or any records maintained by any co-registrar with respect
to the Debentures; and
(e) if any party fails to deliver a notice relating to an
event the fact of which, pursuant to this Indenture, requires notice to
be sent to the Trustee, the Trustee may conclusively rely on its
failure to receive such notice as reason to act as if no such event
occurred.
The Trustee shall not be deemed to have knowledge or notice of
any default (as defined in Section 7.08) or Event of Default hereunder unless a
Responsible Officer of the Trustee shall have received at the Corporate Trust
Office written notice of such default or Event of Default from the Company or
the holders of at least 10% in aggregate principal amount of the Debentures and
such notice refers to such default or Event of Default, the Debentures and the
Indenture.
None of the provisions contained in this Indenture shall
require the Trustee to expend or risk its own funds or otherwise incur personal
financial liability in the performance of any of its duties 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.
Whether or not therein 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 conclusively rely and shall be protected
in acting upon any resolution, certificate, statement, instrument,
opinion, report, notice,
50
request, consent, order, bond, debenture, note, coupon or other paper
or document (whether in its original or facsimile form) believed by it
in good faith 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
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 of its own selection
and any advice or Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken 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 satisfactory to
it against the costs, expenses and liabilities which may be incurred
therein or thereby;
(e) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture or other paper or document, but the
Trustee may make such further inquiry or investigation into such facts
or matters as it may see fit, and, if the Trustee shall determine to
make such further inquiry or investigation, it shall be entitled to
examine the books, records and premises of the Company, personally or
by agent or attorney; and
(f) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed by it with due care hereunder.
(g) the Trustee shall not be liable for any action taken,
suffered or omitted to be taken by it in good faith and reasonably
believed by it to be authorized or within the discretion or rights or
powers conferred upon it by this Indenture;
(h) the rights, privileges, protections, immunities and
benefits given to the Trustee, including, without limitation, its right
to be indemnified, are extended to, and shall be enforceable by, the
Trustee in each of its capacities hereunder, and each agent, custodian
and other Person employed to act hereunder;
(i) the Trustee may request that the Company deliver an
Officers' Certificate setting forth the names of individuals and/or
titles of officers authorized at such time to take specified actions
pursuant to this Indenture, which Officers' Certificate may be signed
by any person authorized to sign an Officers'
51
Certificate, including any person specified as so authorized in any
such certificate previously delivered and not superseded; and
(j) before the Trustee acts or refrains from acting, it may
require an Officers' Certificate or an Opinion of Counsel. The Trustee
shall not be liable for any action which it takes or omits to take in
good faith in reliance on the Officers' 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 Debentures or the proceeds of any
Debentures authenticated and delivered by the Trustee in conformity with the
provisions of this Indenture.
Section 8.04. Trustee, Paying Agents, Bid Solicitation Agents,
Conversion Agents or Registrar May Own Debentures. The Trustee, any Paying
Agent, any Bid Solicitation Agent, any Conversion 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, Paying
Agent, Bid Solicitation Agent, Conversion Agent or Debenture Registrar.
Section 8.05. Monies To Be Held in Trust. Subject to the
provisions of Section 13.03, all monies received by the Trustee shall, until
used or applied as herein provided, be held in trust for the purposes for which
they were received. Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law. The Trustee
shall be under no liability for interest on any money received by it hereunder
except as may be agreed in writing from time to time by the Company and the
Trustee.
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, such compensation for all services rendered by it
hereunder in any capacity (which shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust) as mutually agreed
to from time to time in writing between the Company and the Trustee, and the
Company will pay or reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances reasonably 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, willful misconduct or bad faith.
The Company also covenants to indemnify the Trustee and any predecessor Trustee
(or any officer, director or employee of the Trustee), in any capacity under
this Indenture and its agents and any authenticating agent for, and to hold them
harmless against, any and all loss, liability, damage, claim or expense
including taxes (other than taxes based on the income of the
52
Trustee) incurred without negligence, willful misconduct or bad faith on the
part of the Trustee or such officers, directors, employees and agent or
authenticating agent, as the case may be, and arising out of or in connection
with the acceptance or administration of this trust or in any other capacity
hereunder, including the costs and expenses (including reasonable attorneys'
fees and expenses) of defending themselves against any claim (whether asserted
by the Company, any holder or any other Person) of liability in connection with
the exercise or performance of any of its powers or duties hereunder. The
obligation of the Company under this Section shall survive the resignation or
removal of the Trustee and the satisfaction and discharge or termination of this
Indenture.
When the Trustee and its agents and any authenticating agent
incur expenses or render services after an Event of Default specified in Section
7.01(i) or Section 7.01(j) with respect to the Company occurs, the expenses
(including reasonable attorneys' fees and expenses) and the compensation for the
services are intended to constitute expenses of administration under any
bankruptcy, insolvency or similar laws.
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 omitting any action
hereunder, such matter (unless other evidence in respect thereof be herein
specifically prescribed) may, in the absence of bad faith or willful misconduct
on the part of the Trustee, be deemed to be conclusively proved and established
by an Officers' Certificate delivered to the Trustee.
Section 8.08. Conflicting Interests of Trustee. If the Trustee
has or shall acquire a conflicting interest within the meaning of the Trust
Indenture Act, the Trustee shall either eliminate such interest or resign, to
the extent and in the manner provided by, and subject to the provisions of, the
Trust Indenture Act and this Indenture.
Section 8.09. Eligibility of Trustee. There shall at all times
be a Trustee hereunder which shall be a Person that is eligible pursuant to the
Trust Indenture Act to act as such and has a combined capital and surplus of at
least $25,000,000 (or if such Person is a member of a bank holding company
system, its bank holding company shall have a combined capital and surplus of at
least $25,000,000). If such Person publishes reports of condition at least
annually, pursuant to law or to the requirements of any supervising or examining
authority, then for the purposes of this Section the combined capital and
surplus of such Person shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time
the Trustee shall cease to be eligible in accordance with the provisions of this
Section 8.09, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
Section 8.10. Resignation or Removal of Trustee. (a) The
Trustee may at any time resign by giving written notice of such resignation to
the Company and to the holders of Debentures. 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, one copy
of which instrument shall be delivered to the resigning Trustee and one copy to
the successor trustee. If no successor trustee shall have
53
been so appointed and have accepted appointment 60 days after the mailing of
such notice of resignation to the Debentureholders, the resigning Trustee may,
upon 10 Business Days' notice to the Company and the Debentureholders, appoint a
successor identified in such notice or may petition, at the expense of the
Company, any court of competent jurisdiction for the appointment of a successor
trustee, or, if any Debentureholder who has been a bona fide holder of a
Debenture or Debentures for at least six months may, subject to the provisions
of Section 7.14, 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 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, 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 7.14, 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; provided that if no
successor Trustee shall have been appointed and have accepted appointment 60
days after either the Company or the Debentureholders has removed the Trustee,
or the Trustee resigns, the Trustee so removed may petition, at the expense of
the Company, any court of competent jurisdiction for an 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 which shall be deemed
appointed as successor trustee unless, within 10 days after notice to
the Company of such nomination, the Company objects thereto, in which
case the Trustee so removed or any Debentureholder, or if such Trustee
so removed or any Debentureholder fails to
54
act, the Company, upon the terms and conditions and otherwise as in
Section 8.10(a) provided, may petition any court of competent
jurisdiction for an appointment of a successor trustee.
(d) Any resignation or removal of the Trustee and
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.
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 hereunder, 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 hereunder, with like effect 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 amount 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 be eligible under
the provisions of Section 8.09.
Upon acceptance of appointment by a successor trustee as
provided in this Section 8.11, the Company (or the former trustee, at the
written direction of the Company) shall mail or cause to be mailed notice of the
succession of such trustee hereunder to the holders of Debentures at their
addresses as they shall appear on the Debenture Register. 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 8.12. Succession by Merger. Any Person into which the
Trustee may be merged or converted or with which it may be consolidated, or any
Person resulting from any merger, conversion or consolidation to which the
Trustee shall be a party, or any Person succeeding to all or substantially all
of the corporate trust business of the Trustee (including any trust created by
this Indenture), shall be the successor to the Trustee hereunder without the
execution or filing of any paper or any further act on the part of any of the
parties hereto, provided that in the case of any Person succeeding to all or
substantially all of the corporate trust business of the Trustee, such Person
shall be qualified under the provisions of Section 8.08 and eligible under the
provisions of Section 8.09.
55
In case at the time such successor to the Trustee shall
succeed to the trusts created by this Indenture, any of the Debentures shall
have been authenticated but not delivered, any such successor to the Trustee may
adopt the certificate of authentication of any predecessor trustee or
authenticating agent appointed by such predecessor trustee, and deliver such
Debentures so authenticated; and in case at that time any of the Debentures
shall not have been authenticated, any successor to the Trustee or any
authenticating agent appointed by such successor trustee may authenticate such
Debentures in the name of the successor trustee; and in all such cases such
certificates shall have the full force that is provided in the Debentures or in
this Indenture; provided 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 its successor or successors by
merger, conversion or consolidation.
Section 8.13. Preferential Collection of Claims. If and when
the Trustee shall be or become a creditor of the Company (or any other obligor
upon the Debentures), the Trustee shall be subject to the provisions of the
Trust Indenture Act regarding the collection of the claims against the Company
(or any such other obligor).
ARTICLE 9
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 10, or (c) by a combination of such instrument or instruments and any
such record of such a meeting of Debentureholders. Whenever the Company or the
Trustee solicits the taking of any action by the holders of the Debentures, the
Company or the Trustee may fix in advance of such solicitation, a date as the
record date for determining holders entitled to take such action. The record
date shall be not more than 15 days prior to the date of commencement of
solicitation of such action.
Section 9.02. Proof of Execution by Debentureholders. Subject
to the provisions of Sections 8.01, 8.02 and 10.05, proof of the execution of
any instrument by a Debentureholder or its agent or proxy shall be sufficient if
made in accordance with such reasonable rules and regulations as may be
prescribed by the Trustee or in such manner as shall be satisfactory to the
Trustee. The holding of Debentures shall be proved by the registry of such
Debentures or by a certificate of the Debenture Registrar.
The record of any Debentureholders' meeting shall be proved in
the manner provided in Section 10.06.
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Section 9.03. Who Are Deemed Absolute Owners. The Company, the
Trustee, any Paying Agent, any Conversion Agent and any Debenture Registrar may
deem the Person in whose name such Debenture shall be registered upon the
Debenture Register to be, and may treat it 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 any Person other than
the Company or any Debenture Registrar) for the purpose of receiving payment of
or on account of the principal of and Interest on such Debenture, for conversion
of such Debenture and for all other purposes; and neither the Company nor the
Trustee nor any Paying Agent nor any Conversion Agent nor any Debenture
Registrar shall be affected by any notice to the contrary. All such payments so
made to any 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, waiver or other action
under this Indenture, Debentures which are owned by the Company or any other
obligor on the Debentures or any Affiliate of 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; provided that for the purposes of determining
whether the Trustee shall be protected in relying on any such direction,
consent, waiver or other action, only Debentures which a Responsible Officer
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 the
Company, any other obligor on the Debentures or any Affiliate of the Company or
any such other obligor. In the case of a dispute as to such right, any decision
by the Trustee taken upon the advice of counsel shall be full protection to the
Trustee. 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 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 purpose of any such determination.
Section 9.05. Revocation of Consents, Future Holders Bound. 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
such action may, by filing written notice with the Trustee at its Corporate
Trust Office and upon proof of holding 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
Debentures issued in exchange or substitution therefor, irrespective of whether
any notation in regard
57
thereto is made upon such Debenture or any Debenture issued in exchange or
substitution therefor.
ARTICLE 10
MEETINGS OF DEBENTUREHOLDERS
Section 10.01. Purpose of Meetings. A meeting of
Debentureholders may be called at any time and from time to time pursuant to the
provisions of this Article 10 for any of the following purposes:
(1) to give any notice to the Company or to the Trustee or to
give any directions to the Trustee permitted under this Indenture, or
to consent to the waiving of any default or Event of 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
7;
(2) to remove the Trustee and nominate a successor trustee
pursuant to the provisions of Article 8;
(3) to consent to the execution of an indenture or indentures
supplemental hereto pursuant to the provisions of Section 11.02; or
(4) 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. Call of Meetings by Trustee. 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 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 and the establishment of any record date pursuant to
Section 9.01, shall be mailed to holders of Debentures at their addresses as
they shall appear on the Debenture Register. Such notice shall also be mailed to
the Company. Such notices shall be mailed not less than 20 nor more than 90 days
prior to the date fixed for the meeting.
Any meeting of Debentureholders shall be valid without notice
if the holders of all Debentures then outstanding are present in person or by
proxy or if notice is waived before or after the meeting by the holders of all
Debentures outstanding, and if the Company and the Trustee are either present by
duly authorized representatives or have, before or after the meeting, waived
notice.
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% in aggregate principal
amount of the Debentures then outstanding, shall have requested the Trustee to
call a meeting of Debentureholders, by written request setting forth in
reasonable detail the action proposed to be taken at the meeting, and the
58
Trustee shall not have mailed the notice of such meeting within 20 days after
receipt of such request, then the Company or such Debentureholders may determine
the time and the place for such meeting and may call such meeting to take any
action authorized in Section 10.01, by mailing notice thereof as provided in
Section 10.02.
Section 10.04. Qualifications for Voting. To be entitled to
vote at any meeting of Debentureholders a Person shall (a) be a holder of one or
more Debentures on the record date pertaining to such meeting or (b) be a Person
appointed by an instrument in writing as proxy by a holder of one or more
Debentures on the record date pertaining to such meeting. 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. Notwithstanding any other
provisions of this Indenture, the Trustee may make such reasonable 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 matters concerning the conduct of the meeting as it shall think
fit.
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 at the meeting.
Subject to the provisions of Section 9.04, at any meeting each
Debentureholder or proxyholder shall be entitled to one vote for each $1,000
principal amount of Debentures held or represented by him; provided 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 proxy 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 by the holders of a majority
of the aggregate principal amount of Debentures represented at the meeting,
whether or not constituting a quorum, and the meeting may be held as so
adjourned without further notice.
Section 10.06. Voting. The vote upon any resolution submitted
to any meeting of Debentureholders shall be by written ballot on which shall be
subscribed the signatures of the holders of Debentures or of their
representatives by proxy and the outstanding principal amount of the Debentures
held or represented by them. The
59
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 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 show the principal amount of the
Debentures voting in favor of or against any resolution. 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
contained in this Article 10 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 11
SUPPLEMENTAL INDENTURES
Section 11.01. Supplemental Indentures Without Consent of
Debentureholders. The Company, when authorized by the resolutions of the Board
of Directors, and the Trustee may, from time to time, and at any time enter into
an indenture or indentures supplemental hereto for one or more of the following
purposes:
(a) to make provision with respect to the conversion rights of
the holders of Debentures pursuant to the requirements of Section
15.05(b) or the repurchase obligations of the Company pursuant to the
requirements of Section 3.08(h);
(b) to convey, transfer, assign, mortgage or pledge to the
Trustee as security for the Debentures, any property or assets or to
guarantee the Debentures;
(c) to evidence the assumption by a successor Person of the
obligations of the Company pursuant to Article 12;
(d) to add to the covenants of the Company such further
covenants for the benefit of the holders of Debentures, and to make the
occurrence, or the occurrence and continuance, of a default in any such
additional covenants 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 that in
60
respect of any such additional covenant 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;
(e) to establish the forms or terms of the Debentures;
(f) to cure any ambiguity or correct any error in this
Indenture, so long as such action will not adversely affect the
interests of holders of Debentures; provided that any such amendment
made solely to conform the provisions of this Indenture to the
description of the Debentures in the prospectus supplement relating to
the Debentures will be deemed not to adversely affect the interests of
holders;
(g) to evidence the acceptance of appointment hereunder by a
successor Trustee with respect to the Debentures;
(h) to modify, eliminate or add to the provisions of this
Indenture to such extent as shall be necessary to qualify or maintain
the qualification of this Indenture under the Trust Indenture Act, or
under any similar federal statute hereafter enacted; or
(i) make other changes to the Indenture or forms or terms of
the Debentures, provided no such change individually or in the
aggregate with all other such changes has or will have a material
adverse effect on the interests of the Debentureholders.
Upon the written request of the Company, accompanied by a copy
of the resolutions of the Board of Directors certified by its Secretary or
Assistant Secretary authorizing the execution of any supplemental indenture, 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 that may be therein contained and to accept the conveyance,
transfer and assignment of any property thereunder, but the Trustee shall not be
obligated to, but may in its discretion, enter into any supplemental indenture
that 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 Indenture with Consent of
Debentureholders. With the consent (evidenced as provided in Article 9) of the
holders of at least a majority in aggregate principal amount of the Debentures
at the time outstanding, the Company, when authorized by the resolutions of the
Board of Directors, and the Trustee may, from time to time and at any time,
enter into an indenture or
61
indentures supplemental hereto for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Indenture or
any supplemental indenture or of modifying in any manner the rights of the
holders of the Debentures; provided that no such supplemental indenture shall
(i) extend the Stated Maturity of any Debenture, or reduce the rate or extend
the time for payment of Interest thereon, or reduce the principal amount
thereof, or reduce any amount payable on redemption or repurchase thereof, or
impair the right of any Debentureholder to institute suit for the payment
thereof, or make the principal thereof or Interest thereon payable in any coin
or currency other than that provided in the Debentures, or affect the obligation
of the Company to redeem any Debenture on a Redemption Date in a manner adverse
to the holders of Debentures, or affect the obligation of the Company to
repurchase any Debenture upon the happening of a Fundamental Change in a manner
adverse to the holders of Debentures, or affect the obligation of the Company to
repurchase any Debenture on a Company Repurchase Date in a manner adverse to the
holders of Debentures, or impair the right to convert the Debentures into Common
Stock subject to the terms set forth herein, including Section 15.05(b), or
reduce the number of shares of Common Stock, the amount of cash or the amount of
other property receivable upon conversion, in each case, without the consent of
the holder of each Debenture so affected, or modify any of the provisions of
this Section 11.02 or Section 7.07, except to increase any such percentage or to
provide that certain other provisions of this Indenture cannot be modified or
waived without the consent of the holder of each Debenture so affected, or (ii)
reduce the aforesaid percentage of Debentures, the holders of which are required
to consent to any such supplemental indenture, without the consent of the
holders of all Debentures then outstanding.
Upon the written request of the Company, accompanied by a copy
of the resolutions of the Board of Directors certified by its Secretary or
Assistant Secretary authorizing the execution of any such supplemental
indenture, and upon the filing with the Trustee of evidence of the consent of
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.
Section 11.03. Effect of Supplemental Indenture. Any
supplemental indenture executed pursuant to the provisions of this Article 11
shall comply with the Trust Indenture Act, as then in effect; provided that this
Section 11.03 shall not require such supplemental indenture or the Trustee to be
qualified under the Trust Indenture Act prior to the time such qualification is
in fact required under the terms of the Trust Indenture Act or the Indenture has
been qualified under the Trust Indenture Act, nor shall it constitute any
admission or acknowledgment by any party to such supplemental indenture that any
such qualification is required prior to the time such qualification is in fact
required under the terms of the Trust Indenture Act or the Indenture has been
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qualified under the Trust Indenture Act. Upon the execution of any supplemental
indenture pursuant to the provisions of this Article 11, this Indenture shall be
and be deemed to be modified and amended in accordance therewith and the
respective rights, limitation of rights, obligations, duties and immunities
under this Indenture of the Trustee, the Company and the holders of Debentures
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.
Section 11.04. Notation on Debentures. Debentures
authenticated and delivered after the execution of any supplemental indenture
pursuant to the provisions of this Article 11 may bear a notation in form
approved by the Trustee as to any matter provided for in such supplemental
indenture. If the Company or the Trustee shall so determine, new Debentures so
modified as to conform, in the opinion of the Trustee and the Board of
Directors, to any modification of this Indenture contained in any such
supplemental indenture may, at the Company's expense, be prepared and executed
by the Company, authenticated by the Trustee (or an authenticating agent duly
appointed by the Trustee pursuant to Section 17.12) and delivered in exchange
for the Debentures then outstanding, upon surrender of such Debentures then
outstanding.
Section 11.05. Evidence of Compliance of Supplemental
Indenture To Be Furnished to Trustee. Prior to entering into any supplemental
indenture, the Trustee shall be provided with an Officers' Certificate and an
Opinion of Counsel as conclusive evidence that any supplemental indenture
executed pursuant hereto complies with the requirements of this Article 11 and
is otherwise authorized or permitted by this Indenture.
ARTICLE 12
CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE
Section 12.01. Company May Consolidate on Certain Terms.
Subject to the provisions of Section 12.02, the Company shall not consolidate
with or merge with or into any other Person or Persons (whether or not
affiliated with the Company), nor shall the Company or its successor or
successors be a party or parties to successive consolidations or mergers, nor
shall the Company transfer, convey, sell, lease or otherwise dispose of all or
substantially all its or its Subsidiaries' consolidated property and assets, to
any other Person (whether or not affiliated with the Company), unless: (i) the
Company is the surviving Person, or the resulting, surviving or transferee
Person, if other than the Company, is a legal entity organized and existing
under the laws of the United States of America, any state thereof or the
District of Columbia; (ii) upon any such consolidation, merger, transfer,
conveyance, sale, lease or other disposition, all the obligations of the Company
under the Debentures and this Indenture, including the due and punctual payment
of the principal of and Interest on all of the Debentures, according to their
tenor and the due and punctual performance and observance of all of the
covenants and conditions of this Indenture to be performed by the Company, shall
be expressly assumed, by supplemental indenture satisfactory in form to the
Trustee,
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executed and delivered to the Trustee by the Person (if other than the Company)
formed by such consolidation, or into which the Company shall have been merged,
or by the Person that shall have acquired or leased such property, and such
supplemental indenture shall provide for the applicable conversion rights set
forth in Section 15.05(b); and (iii) immediately before and after giving effect
to the transaction described above, no Event of Default, and no event which,
after notice or passage of time or both, would become an Event of Default, shall
have happened and be continuing.
Section 12.02. Successor To Be Substituted. In case of any
such consolidation, merger, transfer, conveyance, sale, lease or other
disposition and upon the assumption by the successor Person, by supplemental
indenture, executed and delivered to the Trustee and satisfactory in form to the
Trustee, of all the obligations of the Company under the Debentures and this
Indenture, including the due and punctual payment of the principal of and
Interest on all of the Debentures and the due and punctual performance of all of
the covenants and conditions of this Indenture to be performed by the Company,
such successor Person shall succeed to and be substituted for the Company, with
the same effect as if it had been named herein as the party of this first part.
Such successor Person thereupon may cause to be signed, and may issue either in
its own name or in the name of Allied Waste Industries, Inc. any or all of the
Debentures, issuable hereunder that theretofore shall not have been signed by
the Company and delivered to the Trustee; and, upon the order of such successor
Person instead of the Company and subject to all the terms, conditions and
limitations in this Indenture prescribed, the Trustee shall authenticate and
shall deliver, or cause to be authenticated and delivered, any Debentures that
previously shall have been signed and delivered by the officers of the Company
to the Trustee for authentication, and any Debentures that such successor Person
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 the
event of any such consolidation, merger, transfer, conveyance, sale, lease or
other disposition, the Person named as the "Company" in the first paragraph of
this Indenture or any successor that shall thereafter have become such in the
manner prescribed in this Article 12 may be dissolved, wound up and liquidated
at any time thereafter and such Person shall be released from its covenants and
its obligations under this Indenture and the Debentures.
In case of any such consolidation, merger, transfer,
conveyance, sale, lease or other disposition, such changes in phraseology and
form (but not in substance) may be made in the Debentures thereafter to be
issued as may be appropriate.
Section 12.03. Opinion of Counsel To Be Given Trustee. The
Trustee shall receive an Officers' Certificate and an Opinion of Counsel as
conclusive evidence that any such consolidation, merger, transfer, conveyance,
sale, lease or other disposition and any such assumption complies with the
provisions of this Article 12.
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ARTICLE 13
SATISFACTION AND DISCHARGE OF INDENTURE
Section 13.01. Discharge of Indenture. When (a) the Company
shall deliver to the Trustee for cancellation all Debentures theretofore
authenticated (other than any Debentures that have been destroyed, lost or
stolen and in lieu of or in substitution for which other Debentures shall have
been authenticated and delivered) and not theretofore canceled, or (b) all the
Debentures not theretofore canceled or delivered to the Trustee for cancellation
shall have become due and payable and the Company shall deposit with the Trustee
or with one or more Paying Agents (or, if the Company is acting as its own
Paying Agent, set aside, segregate and hold in trust as provided in Section
5.04), in trust, funds sufficient to pay all amounts due and owing on Debentures
(other than any Debentures that shall have been mutilated, destroyed, lost or
stolen and in lieu of or in substitution for which other Debentures shall have
been authenticated and delivered) not theretofore canceled or delivered to the
Trustee for cancellation, and if in either case the Company shall also pay or
cause to be paid all other sums payable hereunder by the Company, then this
Indenture shall cease to be of further effect (except as to (i) remaining rights
of registration of transfer, substitution and exchange and conversion of
Debentures, (ii) rights hereunder of Debentureholders to receive payments of
principal of and Interest on the Debentures and the other rights, duties and
obligations of Debentureholders, as beneficiaries hereof with respect to the
amounts, if any, so deposited with the Trustee and (iii) the rights, obligations
and immunities of the Trustee hereunder, including those pursuant to Section
8.06), and the Trustee, on written demand of the Company accompanied by an
Officers' Certificate and an Opinion of Counsel as required by Section 17.05 and
at the cost and expense of the Company, shall execute proper instruments
acknowledging satisfaction of and discharging this Indenture; the Company,
however, hereby agrees to reimburse the Trustee for any costs or expenses
thereafter reasonably and properly incurred by the Trustee and to compensate the
Trustee for any services thereafter reasonably and properly rendered by the
Trustee in connection with this Indenture or the Debentures.
Section 13.02. Paying Agent To Repay Monies Held. Upon the
satisfaction and discharge of this Indenture, all monies then held by any Paying
Agent of the Debentures (other than the Trustee) shall, upon written request of
the Company, be repaid to it or paid to the Trustee, and thereupon such Paying
Agent shall be released from all further liability with respect to such monies.
Section 13.03. Return of Unclaimed Monies. Subject to the
requirements of applicable law, any monies deposited with or paid to the Trustee
for payment of the principal of or Interest on Debentures and not applied but
remaining unclaimed by the holders of Debentures for two years after the date
upon which the principal of or Interest on such Debentures, as the case may be,
shall have become due and payable, shall be repaid to the Company by the Trustee
on demand and all liability of the Trustee shall thereupon cease with respect to
such monies; and the holder of any of the Debentures shall thereafter look only
to the Company for any payment that such holder may be
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entitled to collect unless an applicable abandoned property law designates
another Person.
ARTICLE 14
IMMUNITY OF INCORPORATORS, SHAREHOLDERS,
OFFICERS AND DIRECTORS
Section 14.01. Indenture and Debentures Solely Corporate
Obligations. No recourse for the payment of the principal of 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, shareholder, employee, agent, officer, director or
subsidiary, 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.
ARTICLE 15
CONVERSION OF DEBENTURES
Section 15.01. Right To Convert. (a) Subject to and upon
compliance with the provisions of this Indenture, prior to April 15, 2034, the
holder of any Debenture shall have the right, at such holder's option, to
convert the principal amount of the Debenture, or any portion of such principal
amount which is an integral multiple of $1,000, into fully paid and
non-assessable shares of Common Stock (as such shares shall then be constituted)
at the Conversion Rate in effect at such time, by surrender of the Debenture so
to be converted in whole or in part, together with any required funds, under the
circumstances described in this Section 15.01 and in the manner provided in
Section 15.02. The Debentures shall be convertible only during the following
periods upon the occurrence of one of the following events:
(i) during any calendar quarter commencing after the
quarter ended June 30, 2004 and before June 30, 2034 if the
Last Reported Sale Price for the Common Stock for at least 20
Trading Days during the period of 30 consecutive Trading Days
ending on the last Trading Day of the previous calendar
quarter is greater than 125% of the Conversion Price on such
last Trading Day;
(ii) in the event that the Company calls any or all
of the Debentures for redemption, at any time prior to the
close of business on the second Business Day immediately
preceding the Redemption Date (unless the Company fails to pay
the Redemption Price); provided that only those
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Debentures that are called for redemption may be converted
following such an event;
(iii) during the five Business Day period after any
three consecutive Trading Day period in which the average
Conversion Trading Price per Debenture, as determined
following a request by a holder in accordance with the
procedures described below, for such period is less than 98%
of the average of the product of the Conversion Rate and the
Last Reported Sale Price of the Common Stock for each day
during such period; provided that if, on the date of any
conversion pursuant to this Section 15.01(a)(iii) that is on
or after April 15, 2029, the Last Reported Sale Price of the
Common Stock is greater than the Conversion Price, then
holders of Debentures surrendered for conversion will receive,
in lieu of Common Stock based on the Conversion Rate, shares
of Common Stock with a value equal to the principal amount of
the Debentures converted; or
(iv) as provided in Section (b) of this Section
15.01.
In connection with any conversion pursuant to Section
15.01(a)(iii), the Trustee shall have no obligation to obtain the bids necessary
for the Company to determine the Conversion Trading Price of the Debentures
unless the Company has requested it to do so, and the Company shall have no
obligation to make such request unless a holder of Debentures provides the
Company with reasonable evidence that the Conversion Trading Price per Debenture
is less than 98% of the product of the Last Reported Sale Price of the Common
Stock and the Conversion Rate. At such time, the Company will instruct the
Trustee to obtain the bids (in the manner described in the definition of
Conversion Trading Price) beginning on the next Trading Day and on each
successive Trading Day until the Conversion Trading Price per Debenture is
greater than or equal to 98% of the product of the Last Reported Sale Price of
the Common Stock and the Conversion Rate.
The Company or its designated agent shall determine on a daily
basis during the time period specified in Section 15.01(a)(i) and 15.01(a)(iii)
whether the Debentures shall be convertible as a result of the occurrence of an
event specified in clause (i) or (iii) above and, if the Debentures shall be so
convertible, the Company shall promptly deliver to the Trustee (or other
Conversion Agent appointed by the Company) written notice thereof. Whenever the
Debentures shall become convertible pursuant to this Section 15.01, the Company
or, at the Company's request, the Trustee in the name and at the expense of the
Company, shall notify the holders of the event triggering such convertibility in
the manner provided in Section 17.03, and the Company shall also publicly
announce such information by publication on the Company's website or through
such other public medium as it may use at such time. Any notice so given shall
be conclusively presumed to have been duly given, whether or not the holder
receives such notice.
The Trustee shall be entitled at its sole discretion to
consult with the Company and to request the assistance of the Company in
connection with the Trustee's
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duties and obligations pursuant to Section 15.01(a) hereof, and the Company
agrees, if requested by the Trustee, to cooperate with, and provide assistance
to, the Trustee in carrying out its duties under this Section 15.01; provided,
however, that nothing herein shall be construed to relieve the Trustee of its
duties pursuant to Section 15.01(a) hereof.
(b) In addition, if:
(i) (A) the Company distributes to all holders of Common
Stock rights, warrants, options or other securities entitling
them to subscribe for or purchase, for a period expiring
within 45 days of the date after the date of distribution,
shares of Common Stock, or securities convertible into shares
of Common Stock, at less than the average of the Last Reported
Sale Prices of the Common Stock for the five Trading Days
immediately preceding the declaration date of the
distribution, or (B) the Company distributes to all holders of
Common Stock assets, evidence of indebtedness or other
property or rights to subscribe for or purchase securities of
the Company, which distribution has a per share value as
determined by the Board of Directors and set forth in a Board
Resolution exceeding 10% of the average of the Last Reported
Sale Prices of the Common Stock for the five Trading Days
immediately preceding the declaration date for such
distribution, then, in either case, the Debentures may be
surrendered for conversion at any time on and after the date
that the Company gives notice to the holders of such
distribution, which shall be not less than 20 Business Days
prior to the Ex-Dividend Date for such distribution, until the
earlier of the close of business on the Business Day
immediately preceding, but not including, the Ex-Dividend Date
or the date the Company publicly announces that such
distribution will not take place; provided that no holder may
exercise this right to convert if the holder will otherwise
participate in such distribution without conversion;
(ii) the Company consolidates with or merges with or
into another Person or is a party to a binding share exchange,
in each case pursuant to which the Common Stock is converted
into cash or property other than securities, then the
Debentures may be surrendered for conversion at any time from
and after the date which is 15 days prior to the anticipated
effective date of the transaction until and including the date
which is 15 days after the actual effective date of the
transaction. The Board of Directors shall determine the
anticipated effective date of the transaction, and such
determination shall be conclusive and binding on the
Debentureholders and shall be publicly announced by the
Company by publication on its website or through such other
public medium as it may use at that time not later than two
Business Days prior to such 15th day;
(c) A Debenture in respect of which a holder is
electing to exercise its option to require repurchase upon a
Fundamental Change pursuant to Section 3.05 or repurchase pursuant to
Section 3.06 may be converted only if such holder withdraws its
election in accordance with Section 3.08(d). A holder of
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Debentures is not entitled to any rights of a holder of Common Stock
until such holder has converted his Debentures to Common Stock, and
only to the extent such Debentures are deemed to have been converted to
Common Stock under this Article 15.
Section 15.02. Exercise of Conversion Privilege; Issuance of
Common Stock on Conversion; No Adjustment for Interest or Dividends. In order to
exercise the conversion privilege with respect to any Debenture in certificated
form, the Company must receive at the office or agency of the Company maintained
for that purpose or, at the option of such holder, the Corporate Trust Office,
such Debenture with the original or facsimile of the form entitled "Form of
Conversion Notice" on the reverse thereof, duly completed and manually signed,
together with such Debentures duly endorsed for transfer, accompanied by the
funds, if any, required by this Section 15.02. Such notice shall also state the
name or names (with address or addresses) in which the certificate or
certificates for shares of Common Stock which shall be issuable on such
conversion shall be issued, and shall be accompanied by transfer or similar
taxes, if required pursuant to Section 15.07.
In order to exercise the conversion privilege with respect to
any interest in a Global Debenture, the beneficial holder must complete, or
cause to be completed, the appropriate instruction form for conversion pursuant
to the Depositary's book-entry conversion program, deliver, or cause to be
delivered, by book-entry delivery an interest in such Global Debenture, furnish
appropriate endorsements and transfer documents if required by the Company or
the Trustee or Conversion Agent, and pay the funds, if any, required by this
Section 15.02 and any transfer or similar taxes if required pursuant to Section
15.07.
As promptly as practicable after satisfaction of the
requirements for conversion set forth above, subject to Section 15.03 and
compliance with any restrictions on transfer if shares issuable on conversion
are to be issued in a name other than that of the Debentureholder (as if such
transfer were a transfer of the Debenture or Debentures (or portion thereof) so
converted), the Company shall issue and shall deliver to such Debentureholder at
the office or agency maintained by the Company for such purpose pursuant to
Section 5.02, a certificate or certificates for the number of full shares of
Common Stock, cash or a combination of cash and shares of Common Stock (if the
Company timely elects to pay cash for any portion of the shares of Common Stock
issuable upon conversion) issuable upon the conversion of such Debenture or
portion thereof as determined by the Company in accordance with the provisions
of this Article 15 and a check or cash in respect of any fractional interest in
respect of a share of Common Stock arising upon such conversion, calculated by
the Company as provided in Section 15.03. In case any Debenture of a
denomination greater than $1,000 shall be surrendered for partial conversion,
and subject to Section 2.03, the Company shall execute and the Trustee shall
authenticate and deliver to the holder of the Debenture so surrendered, without
charge to such holder, a new Debenture or Debentures in authorized denominations
in an aggregate principal amount equal to the unconverted portion of the
surrendered Debenture.
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Each conversion shall be deemed to have been effected as to
any such Debenture (or portion thereof) on the date on which the requirements
set forth above in this Section 15.02 have been satisfied as to such Debenture
(or portion thereof) (such date, the "Conversion Date"), and the Person in whose
name any certificate or certificates for shares of Common Stock shall be
issuable upon such conversion shall be deemed to have become on said date the
holder of record of the shares represented thereby; provided that any such
surrender on any date when the stock transfer books of the Company shall be
closed shall constitute the Person in whose name the certificates are to be
issued as the record holder thereof for all purposes on the next succeeding day
on which such stock transfer books are open, but such conversion shall be at the
Conversion Rate in effect on the date upon which such Debenture shall be
surrendered.
Any Debenture or portion thereof surrendered for conversion
during the period from the close of business on any Regular Record Date to the
opening of business on the immediately following Interest Payment Date shall be
accompanied by payment, in immediately available funds or other funds acceptable
to the Company, of an amount equal to the Interest otherwise payable on such
Interest Payment Date on the principal amount being converted; provided that no
such payment need be made (1) if the Company has specified a Redemption Date
that is after a Regular Record Date and on or prior to the next Interest Payment
Date, (2) if the Company has specified a Repurchase Date following a Fundamental
Change that is after a Regular Record Date and on or prior to the next Interest
Payment Date or (3) to the extent of any overdue Interest, if any overdue
Interest exists at the time of conversion with respect to such Debenture. Except
as provided above in this Section 15.02, no payment or other adjustment shall be
made for Interest accrued on any Debenture converted or for dividends on any
shares issued upon the conversion of such Debenture as provided in this Article
15.
Upon the conversion of an interest in a Global Debenture, the
Trustee (or other Conversion Agent appointed by the Company), or the Custodian
at the direction of the Trustee (or other Conversion Agent appointed by the
Company), shall make a notation on such Global Debenture as to the reduction in
the principal amount represented thereby. The Company shall notify the Trustee
in writing of any conversions of Debentures effected through any Conversion
Agent other than the Trustee.
Upon the conversion of a Debenture, that portion of the
accrued but unpaid Interest with respect to the converted Debenture shall not be
cancelled, extinguished or forfeited, but rather shall be deemed to be paid in
full to the holder thereof through delivery of the Common Stock, cash or a
combination of cash and Common Stock (together with the cash payment, if any in
lieu of fractional shares) in exchange for the Debenture being converted
pursuant to the provisions hereof; and the fair market value of such shares of
Common Stock and any such cash payment (together with any such cash payment in
lieu of fractional shares) shall be treated as issued, to the extent thereof,
first in exchange for and in satisfaction of the Company's obligation to pay the
principal amount of the converted Debenture and the accrued but unpaid Interest,
and the balance, if any, of such fair market value of such Common Stock (and any
such cash payment) shall be treated as issued in exchange for and in
satisfaction of the right to convert the Debenture being converted pursuant to
the provisions hereof.
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Section 15.03. Payment Upon Conversion; Cash Payments in Lieu
of Fractional Shares. (a) In the event that the Company receives notice of
conversion on or prior to the day that is 20 days prior to Stated Maturity or,
with respect to Debentures being redeemed, the applicable Redemption Date (the
"Final Notice Date"), the following procedures will apply:
If the Company chooses to satisfy all or any portion of the
Company's obligation (the "Conversion Obligation") in cash, the Company
will notify the holder through the Trustee of the dollar amount to be
satisfied in cash (which must be expressed either as 100% of the
Conversion Obligation or as a fixed dollar amount) at any time on or
before the date that is two Business Days following receipt of the
notice of conversion ("Cash Settlement Notice Period"). If the Company
timely elects to pay cash for any portion of the shares otherwise
issuable to such holder, the conversion notice may be retracted by the
holder at any time during the two Business Day period beginning on the
day after the final day of the Cash Settlement Notice Period
("Conversion Retraction Period"); no such retraction can be made (and a
conversion notice shall be irrevocable) if the Company does not elect
to deliver cash in lieu of shares (other than cash in lieu of
fractional shares). If the conversion notice has not been retracted,
then settlement (in cash and/or shares) will occur on the Business Day
following the final day of the 10 Trading Day period beginning on the
day after the final day of the Conversion Retraction Period. Settlement
amounts will be computed as follows:
(i) If the Company elects to satisfy all or any
portion of the Conversion Obligation in shares, the Company
will deliver to holders surrendering Debentures for conversion
a number of shares equal to (1) the aggregate original
principal amount of Debentures to be converted into shares
divided by 1,000 multiplied by (2) the Conversion Rate.
(ii) If the Company elects to satisfy all or any
portion of the Conversion Obligation in cash, the Company will
deliver to holders surrendering Debentures for conversion cash
in an amount equal to the product of:
(A) a number equal to (1) the aggregate
original principal amount of Debentures to be paid in
cash divided by 1,000 multiplied by (2) the
Conversion Rate and
(B) the average of the Last Reported Sale
Prices of the Common Stock for the 10 consecutive
Trading Days immediately following the date of the
Company's notice of its election to deliver cash (the
"Cash Settlement Averaging Period").
(b) In the event that the Company receives
notice of conversion after the Final Notice Date, the Company will not
send individual notices of its election to satisfy all or any portion
of the Conversion obligation in cash. Instead, if the Company chooses
to satisfy all or any portion of such Conversion Obligation
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in cash, the Company will send a single notice to the Trustee of the
dollar amount to be satisfied in cash (which must be expressed either
as 100% of the Conversion Obligation or as a fixed dollar amount)
promptly following the Company's receipt of such notice of conversion.
Settlement amounts will be computed and settlement dates will be
determined in the same manner as set forth under Section 15.03(a) above
except that the "Cash Settlement Averaging Period" shall be the five
consecutive Trading Days ending on the third Trading Day prior to the
Conversion Date. Settlement (in cash and/or shares) will occur on the
Business Day following the final day of such Cash Settlement Averaging
Period, subject to receipt by the Company of the Debentures to be
converted.
(c) No fractional shares of Common Stock or
scrip certificates representing fractional shares 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 that shall be issuable upon conversion shall be computed
on the basis of the aggregate principal amount of the Debentures (or
specified portions thereof to the extent permitted hereby) so
surrendered. If any fractional share of stock would be issuable upon
the conversion of any Debenture or Debentures, the Company shall make
an adjustment and payment therefor in cash to the holder of Debentures
at the Last Reported Sale Price on the last Trading Day immediately
preceding the day on which the Debentures (or specified portions
thereof) are deemed to have been converted.
Section 15.04. Conversion Rate. Each $1,000 principal amount
of the Debentures shall be convertible into the number of shares of Common Stock
specified in the form of Debenture (herein called the "Conversion Rate")
attached as Exhibit A hereto (initially 48.9476 shares), subject to adjustment
as provided in this Article 15.
Section 15.05. Adjustment of Conversion Rate. (a) The
Conversion Rate shall be adjusted from time to time by the Company as follows:
(i) If the Company shall pay or make a dividend or
other distribution on the Common Stock in shares of the Common
Stock, the Conversion Rate, as in effect at the opening of
business on the day following the date fixed for the
determination of stockholders entitled to receive such
dividend or other distribution, shall be increased by dividing
such Conversion Rate by a fraction of which the numerator
shall be the number of shares of Common Stock outstanding at
the close of business on the date fixed for such determination
and the denominator shall be the sum of such number of shares
and the total number of shares constituting such dividend or
other distribution, such increase to become effective
immediately after the opening of business on the day following
the date fixed for such determination.
(ii) If the Company shall issue to all holders of its
Common Stock (such issuance not being available on an
equivalent basis to holders of the Debentures upon conversion)
(1) options, warrants or other rights entitling
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them to subscribe for or purchase shares of Common Stock, or
(2) securities convertible or exchangeable into shares of
Common Stock options, warrants or other rights to purchase or
acquire securities convertible or exchangeable into shares of
Common Stock, in each case at a price per share of Common
Stock less than the Current Market Price on the date fixed for
the determination of stockholders entitled to receive such
options, warrants or other rights or securities (other than
pursuant to a dividend reinvestment, share purchase or similar
plan), the Conversion Rate in effect at the opening of
business on the day following the date fixed for such
determination shall be increased by dividing such Conversion
Rate by a fraction, the numerator of which shall be the number
of shares of Common Stock outstanding at the close of business
on the date fixed for such determination plus the number of
shares of Common Stock which the aggregate consideration
expected to be received by the Company upon the exercise,
conversion or exchange of such options, warrants or other
rights or securities (as determined in good faith by the Board
of Directors, whose determination shall be conclusive and
described in a Board Resolution) would purchase at such
Current Market Price and the denominator of which shall be the
number of shares of Common Stock outstanding at the close of
business on the date fixed for such determination plus the
number of shares of Common Stock so offered for subscription
or purchase, either directly and indirectly, or into which
such securities are convertible or exchangeable, such increase
to become effective immediately after the opening of business
on the day following the date fixed for such determination.
(iii) If outstanding shares of Common Stock shall be
subdivided, split, combined or reclassified into a greater
number of shares of Common Stock, the Conversion Rate in
effect at the opening of business on the day following the day
upon which such subdivision, split, combination or
reclassification becomes effective shall be proportionately
increased, and, conversely, in case outstanding shares of
Common Stock shall each be combined or reclassified into a
smaller number of shares of Common Stock, the Conversion Rate
in effect at the opening of business on the day following the
day upon which such combination or reclassification becomes
effective shall be proportionately reduced, such increase or
reduction, as the case may be, to become effective immediately
after the opening of business on the day following the day
upon which such subdivision, split, reclassification or
combination becomes effective.
(iv) (A) If the Company shall, by dividend or
otherwise, distribute to all holders of its Common Stock
evidences of its indebtedness, shares of capital stock, cash
or other assets (but excluding any issuance of options,
warrants or other rights or securities referred to in
paragraph (ii) of this Section 15.05(a), any dividend or
distribution paid exclusively in cash and any dividend, shares
of capital stock of any class or series, or similar equity
interests, of or relating to a subsidiary or other business
unit in the
73
case of a Spin-Off referred to in the next subparagraph, or
dividend or distribution referred to in paragraph (i) of this
Section 15.05(a)), the Conversion Rate shall be increased by
dividing the Conversion Rate 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, the numerator of which shall be the Current Market
Price on the date fixed for such determination less the then
fair market value (as determined in good faith by the Board of
Directors, whose determination shall be conclusive and
described in a Board Resolution) of the portion of the assets
or evidences of indebtedness so distributed applicable to one
share of Common Stock and the denominator of which shall be
such Current Market Price, such adjustment to 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. In any case in which
this clause (iv)(A) is applicable, clause (iv)(B) of this
Section 15.05 shall not be applicable.
(B) In the case of a Spin-Off, the Conversion Rate in
effect immediately before the close of business on the record
date fixed for determination of stockholders entitled to
receive that distribution will be increased by multiplying the
Conversion Rate by a fraction, the numerator of which is the
Current Market Price plus the Fair Market Value of the portion
of those shares of capital stock or similar equity interests
so distributed applicable to one share of Common Stock and the
denominator of which is the Current Market Price; provided
that if the application of the foregoing formula would result
in a decrease in the Conversion Rate, no adjustment to the
Conversion Rate will be made. Any adjustment to the Conversion
Rate under this subclause (iv)(B) will occur at the earlier of
(A) the tenth Trading Day from, and including, the effective
date of the Spin-Off and (B) the date of the securities being
offered in the Initial Public Offering of the Spin-Off, if
that Initial Public Offering is effected simultaneously with
the Spin-Off.
(v) In case the Company shall, by dividend or
otherwise, distribute to all holders of its Common Stock cash
(excluding any cash that is distributed in a Reorganization
Event to which Section 15.05(b) applies or as part of a
distribution referred to in paragraph (iv) of this Section
15.05(a)), then, and in each such case, immediately after the
close of business on such date for determination, the
Conversion Rate shall be increased by dividing the Conversion
Rate in effect immediately prior to the close of business on
the date fixed for determination of the stockholders entitled
to receive such distribution by a fraction (A) the numerator
of which shall be equal to the Current Market Price on the
date fixed for such determination less an amount equal to the
quotient of (x) the aggregate amount of cash distributed to
all holders of the Common Stock and (y) the number of shares
of Common Stock outstanding on the date
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fixed for such determination and (B) the denominator of which
shall be equal to the Current Market Price on the date fixed
for such determination.
(vi) In case a tender or exchange offer made by the
Company or any Subsidiary of the Company for all or any
portion of the Common Stock shall expire and such tender or
exchange offer (as amended through the expiration thereof)
shall require the payment per share of Common Stock exceeding
the Last Reported Sale Price on the Trading Day next
succeeding the last time (the "Expiration Time") tenders could
have been made pursuant to such tender or exchange offer (as
amended through the expiration thereof), then, and in each
such case, immediately prior to the opening of business on the
day after such Trading Day next succeeding the Expiration
Time, the Conversion Rate shall be increased by dividing the
Conversion Rate immediately prior to the close of business on
such Trading Day next succeeding the date of the Expiration
Time by a fraction (A) the numerator of which shall be equal
to (x) the product of (I) the Last Reported Sale Price on the
Trading Day next succeeding the date of the Expiration Time
and (II) the number of shares of Common Stock outstanding
(including any tendered shares) on the Trading Day next
succeeding the date of the Expiration Time less (y) the amount
of cash plus the fair market value (determined as aforesaid)
of the aggregate consideration payable to stockholders in such
tender or exchange offer (assuming the acceptance, up to any
maximum specified in the terms of the tender or exchange
offer, of Purchased Shares), and (B) the denominator of which
shall be equal to the product of (x) the Last Reported Sale
Price on the Trading Day next succeeding the date of the
Expiration Time and (y) the number of shares of Common Stock
outstanding (including any tendered shares) on the Trading Day
next succeeding the date of the Expiration Time less the
number of all shares validly tendered, not withdrawn and
accepted for payment on the date of the Expiration Time (such
validly tendered shares, up to any such maximum, being
referred to as the "Purchased Shares").
(vii) All adjustments to the Conversion Rate shall be
calculated to the nearest 1/10,000th of a share of Common
Stock (or if there is not a nearest 1/10,000th of a share to
the next lower 1/10,000th of a share). No adjustment to the
Conversion Rate will be required until the earlier of (1) such
time as the Company provides notice to holders of the
Debentures of the Company's intention to redeem the Debentures
or (2) such time as the adjustment would require an increase
or decrease of at least 1% of the Conversion Rate. If an
adjustment is not made because the adjustment would not change
the Conversion Rate by more than 1%, then the adjustment that
is not made will be carried forward and taken into account in
any future adjustment.
(viii) The Company may make such increases in the
Conversion Rate, in addition to those required or permitted by
this Section 15.05, as the Board
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of Directors considers to be advisable in order to avoid or
diminish any income tax to any holders of shares of Common
Stock resulting from any dividend or distribution of shares
(or rights to acquire shares) or from any event treated as
such for income tax purposes or for any other reasons.
(ix) Whenever the Conversion Rate is adjusted in
accordance with this Section 15.05, the Company shall: (1)
forthwith compute the Conversion Rate in accordance with this
Section 15.05 and prepare and transmit to the Transfer Agent
an Officer's Certificate setting forth the Conversion Rate,
the method of calculation thereof in reasonable detail, and
the facts requiring such adjustment and upon which such
adjustment is based; and (2) as soon as practicable following
the occurrence of an event that requires or permits an
adjustment to the Conversion Rate pursuant to this Section
15.05 (or if the Company is not aware of such occurrence, as
soon as practicable after becoming so aware), provide a
written notice to the holders of Debentures of the occurrence
of such event and a statement setting forth in reasonable
detail the method by which the adjustment to the Conversion
Rate was determined and setting forth the adjusted Conversion
Rate.
(x) To the extent that the Company adopts any future
rights plan, holders of Debentures will receive, upon
conversion of Debentures, in addition to shares of the Common
Stock, the rights under such future rights plan whether or not
the rights have separated from shares of the Common Stock at
the time of conversion and no adjustment to the Conversion
Rate will be made in accordance with paragraph (iv) above or
otherwise.
(b) In the event of:
(i) any consolidation or merger of the Company with
or into another Person or of another Person with or into the
Company; or
(ii) any sale, transfer, lease or conveyance to
another Person of the property of the Company as an entirety
or substantially as an entirety; or
(iii) any reclassification (other than a
reclassification to which paragraph (iii) of Section 15.05(a)
applies),
(any such event, a "Reorganization Event"), each Debenture prior to such
Reorganization Event shall, after such Reorganization Event, be converted into
the right to receive the kind and amount of securities, cash and other property
receivable in such Reorganization Event (without any interest thereon, and
without any right to dividends or distribution thereon which have a record date
that is prior to the date of the Reorganization Event) by a holder of a number
of shares of Common Stock issuable upon conversion of such Debentures that (1)
is not a Person with which the Company consolidated or into which the Company
merged or which merged into the Company or to which such sale or
76
transfer was made, as the case may be (any such Person, a "Constituent Person"),
or an Affiliate of a Constituent Person to the extent such Reorganization Event
provides for different treatment of Common Stock held by Affiliates of the
Company and non-Affiliates, and (2) has failed to exercise the rights of
election, if any, as to the kind or amount of securities, cash and other
property receivable upon such Reorganization Event (provided that if the kind or
amount of securities, cash and other property receivable upon such
Reorganization Event is not the same for each share of Common Stock held
immediately prior to such Reorganization Event by other than a Constituent
Person or an Affiliate thereof and in respect of which such rights of election
shall not have been exercised ("non-electing share"), then for the purpose of
this Section 15.05 the kind and amount of securities, cash and other property
receivable upon such Reorganization Event by 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). On the Conversion Date, the Conversion Rate then in effect
shall be applied to the value or amount on the Conversion Date of such
securities, cash or other property.
In the event of such a Reorganization Event, the Person formed by such
consolidation, or merger or the Person which acquires the assets of the Company
shall execute and deliver to the Transfer Agent an agreement supplement hereto
providing that the holder of each Debenture that remains outstanding after the
Reorganization Event (if any) shall have the rights provided by this Section
15.05. Such supplemental agreement shall provide for adjustments which, for
events subsequent to the effective date of such supplemental agreement, shall be
as nearly equivalent as may be practicable to the adjustments provided for in
this Section 15.05. The above provisions of this Section 15.05 shall similarly
apply to successive Reorganization Events.
Section 15.06. Withholding Taxes. The Company shall have the
right to set-off any withholding taxes that the Company is required to pay with
respect to any deemed distributions occurring as a result of changes in the
Conversion Rate against cash payments of interest payable on the Debentures.
Section 15.07. Taxes on Shares Issued. The issue of stock
certificates on conversions of Debentures shall be made without charge to the
converting Debentureholder for any documentary, stamp or similar issue or
transfer tax in respect of the issue thereof. The Company shall not, however, be
required to pay any such tax which may be payable in respect of any transfer
involved in the issue and delivery of stock in any name other than that of the
holder of any Debenture converted, and the Company shall not be required to
issue or deliver any such stock certificate unless and until the Person or
Persons requesting the issue 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. Nothing herein shall preclude any tax withholding
required by law or regulations.
Section 15.08. Reservation of Shares, Shares To Be Fully Paid;
Compliance with Governmental Requirements; Listing of Common Stock. The Company
shall provide, free from preemptive rights, out of its authorized but unissued
shares or shares held in treasury, sufficient shares of Common Stock to provide
for the
77
conversion of the Debentures from time to time as such Debentures are presented
for conversion.
Before taking any action which would cause an adjustment
increasing the Conversion Rate to an amount that would cause the Conversion
Price to be reduced below the then par value, if any, of the shares of Common
Stock issuable upon conversion of the Debentures, the Company will take all
corporate action which may, in the opinion of its counsel, be necessary in order
that the Company may validly and legally issue shares of such Common Stock at
such adjusted Conversion Rate.
The Company covenants that all shares of Common Stock which
may be issued upon conversion of Debentures will upon issue be fully paid and
non-assessable by the Company and free from all taxes, liens and charges with
respect to the issue thereof.
The Company covenants that, if any shares of Common Stock to
be provided for the purpose of conversion of Debentures hereunder require
registration with or approval of any governmental authority under any federal or
state law before such shares may be validly issued upon conversion, the Company
will in good faith and as expeditiously as possible, to the extent then
permitted by the rules and interpretations of the Commission (or any successor
thereto), endeavor to secure such registration or approval, as the case may be.
The Company further covenants that, if at any time the Common Stock shall be
listed on the New York Stock Exchange, Nasdaq National Market or any other U.S.
national securities exchange or automated quotation system, the Company will, if
permitted by the rules of such exchange or automated quotation system, list and
keep listed, so long as the Common Stock shall be so listed on such exchange or
automated quotation system, all Common Stock issuable upon conversion of the
Debentures; provided that if the rules of such exchange or automated quotation
system permit the Company to defer the listing of such Common Stock until the
first conversion of the Debentures into Common Stock in accordance with the
provisions of this Indenture, the Company covenants to list such Common Stock
issuable upon conversion of the Debentures in accordance with the requirements
of such exchange or automated quotation system at such time.
Section 15.09. Responsibility of Trustee. The Trustee and any
other Conversion Agent shall not at any time be under any duty or responsibility
to the Company or any holder of Debentures to determine the Conversion Rate or
whether any facts exist which may require any adjustment of the Conversion Rate,
or with respect to the nature or extent or calculation of any such adjustment
when made, or with respect to the method employed, or herein or in any
supplemental indenture provided to be employed, in making the same. The Trustee
and any other Conversion Agent shall not be accountable with respect to the
validity or value (or the kind or amount) of any shares of Common Stock, or of
any securities or property, which may at any time be issued or delivered upon
the conversion of any Debenture; and the Trustee and any other Conversion Agent
make no representations with respect thereto. Neither the Trustee nor any
Conversion Agent shall be responsible for any failure of the Company to issue,
transfer or deliver any shares of Common Stock or stock certificates or other
securities or
78
property or cash upon the surrender of any Debenture for the purpose of
conversion or to comply with any of the duties, responsibilities or covenants of
the Company contained in this Article 15. Without limiting the generality of the
foregoing, neither the Trustee nor any Conversion Agent shall be under any
responsibility to determine the correctness of any provisions contained in any
supplemental indenture entered into pursuant to Section 15.05(b) relating either
to the kind or amount of shares of stock or securities or property (including
cash) receivable by Debentureholders upon the conversion of their Debentures
after any event referred to in such Section 15.05(b) 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, the Officers' Certificate (which the Company
shall be obligated to file with the Trustee prior to the execution of any such
supplemental indenture) with respect thereto.
Section 15.10. Notice to Holders Prior to Certain Actions. In
case:
(a) the Company shall declare a dividend (or any other
distribution) on its Common Stock that would require an adjustment in
the Conversion Rate pursuant to Section 15.05; or
(b) the Company shall authorize the granting to the holders of
all or substantially all of its Common Stock of rights or warrants to
subscribe for or purchase any share of any class or any other rights or
warrants; or
(c) of any reclassification or reorganization of the Common
Stock of the Company (other than a subdivision or combination of its
outstanding Common Stock, or a change in par value, or from par value
to no par value, or from no par value to par value), or of any
consolidation or merger to which the Company is a party and for which
approval of any shareholders of the Company is required, or of the sale
or transfer of all or substantially all of the assets of the Company;
or
(d) of the voluntary or involuntary dissolution, liquidation
or winding up of the Company;
the Company shall cause to be filed with the Trustee and to be
mailed to each holder of Debentures at such holder's address appearing on the
Debenture Register provided for in Section 2.05 of this Indenture, as promptly
as possible but in any event at least ten (10) days prior to the applicable date
hereinafter specified, a notice stating (x) the date on which a record is to be
taken for the purpose of such dividend, distribution or 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 or rights are to be
determined, or (y) the date on which such reclassification, consolidation,
merger, sale, transfer, dissolution, liquidation or winding up is expected to
become effective or occur, 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, transfer, dissolution, liquidation or winding up.
Failure to give such notice, or any defect therein, shall not affect the
79
legality or validity of such dividend, distribution, reclassification,
consolidation, merger, sale, transfer, dissolution, liquidation or winding up.
ARTICLE 16
SUBORDINATION
Section 16.01. Debentures Subordinate to Senior Debt. The
Company agrees, and each holder of a Debenture, by acceptance thereof, likewise
agrees, that, to the extent and in the manner hereinafter set forth in this
Article 16, the payment of the principal of, premium, if any, and Interest on
the Debentures and any other obligations in respect of the Debentures are hereby
expressly made subordinate in right of payment to the prior payment in full of
all Senior Debt of the Company and that the subordination is for the benefit of
and enforceable by the holders of such Senior Debt. The Company shall not incur,
create, assume, guarantee or otherwise become liable for any indebtedness that
is subordinate or junior in right of payment to any of the Company's other
indebtedness and senior in any respect in right of payment to the Debentures.
Section 16.02. Payment Over of Proceeds Upon Dissolution, Etc.
In the event of (a) any insolvency or bankruptcy case or proceeding, or any
receivership, liquidation, reorganization or other similar case or proceeding in
connection therewith, relative to the Company or to its creditors, as such, or
to its assets, or (b) any liquidation, dissolution or other winding up of the
Company, whether voluntary or involuntary and whether or not involving
insolvency or bankruptcy, or (c) any assignment for the benefit of creditors or
any other marshaling of assets and liabilities of the Company, then and in any
such event specified in (a), (b) or (c) above (each such event, if any, herein
sometimes referred to as a "Company Proceeding") the holders of all Senior Debt
of the Company shall first be entitled to receive payment in full of all amounts
due or to become due on or in respect of all such Senior Debt (including
interest after the commencement of any Company Proceeding at the rate specified
in the applicable Senior Debt), or provision shall be made for such payment in
cash or cash equivalents or otherwise in a manner satisfactory to the holders of
such Senior Debt, before the holders of the Debentures are entitled to receive
any payment or distribution of any kind or character from the Company, whether
in cash, property or Debentures (including any payment or distribution which may
be payable or deliverable by reason of the payment of any other debt of the
Company subordinated to the payment of the Debentures on account of principal
of, premium, if any, or Interest on or other obligations in respect of the
Debentures or on account of any purchase or redemption or other acquisition of
Debentures by the Company or any Subsidiary of the Company, all such payments,
distributions, purchases and acquisitions herein referred to, individually and
collectively, as a "Company Debentures Payment"), and to that end the holders of
Senior Debt of the Company shall be entitled to receive, for application to the
payment thereof, any Company Debentures Payment which may be payable or
deliverable in respect of the Debentures in any such Company Proceeding.
Notwithstanding the foregoing, holders of Debentures may receive and retain
Permitted Junior Securities.
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In the event that, notwithstanding the foregoing provisions of
this Section, the Trustee or the holder of any Debenture shall have received any
Company Debentures Payment before all Senior Debt of the Company is paid in full
or payment thereof provided for in cash or cash equivalents or otherwise in a
manner satisfactory to the holders of such Senior Debt, then and in such event
such Company Debentures Payment shall be paid over or delivered forthwith to the
holders of Senior Debt for application to the payment of such Senior Debt
remaining unpaid, to the extent necessary to pay such Senior Debt in full, after
giving effect to any concurrent payment or distribution to or for the holders of
such Senior Debt.
The consolidation of the Company with, or the merger of the
Company with, another Person or the liquidation or dissolution of the Company
following the conveyance or transfer of all or substantially all of its
properties and assets as an entirety to another Person upon the terms and
conditions set forth in Article 12 shall not be deemed a Company Proceeding for
the purposes of this section if the Person formed by such consolidation or with
which the Company merges or the Person which acquires by conveyance or transfer
such properties and assets as an entirety, as the case may be, shall, as a part
of such consolidation, merger, conveyance or transfer, complies with the
conditions set forth in Article 12.
Section 16.03. No Payment When Senior Debt in Default. In the
event that any Company Senior Payment Default (as defined below) shall have
occurred and be continuing, then no Company Debentures Payment shall be made
unless and until such Company Senior Payment Default shall have been cured or
waived or shall have ceased to exist or all amounts then due and payable in
respect of Senior Debt of the Company shall have been paid in full, or provision
shall have been made for such payment in cash or otherwise in a manner
satisfactory to the holders of such Senior Debt. Notwithstanding the foregoing,
holders may receive and retain Permitted Junior Securities. "Company Senior
Payment Default" means (i) any default in the payment of principal of, premium,
if any, or interest on any Designated Senior Debt of the Company that continues
beyond any applicable grace period and (ii) any event of default with respect to
Designated Senior Debt of the Company which has resulted in such Designated
Senior Debt becoming or being declared due and payable prior to the date on
which it would otherwise have become due and payable.
In the event that any Company Senior Nonmonetary Default (as
defined below) shall have occurred and be continuing, then, upon the receipt by
the Trustee of written notice (the "Payment Blockage Notice") of such Company
Senior Nonmonetary Default from the Company or any holder of Designated Senior
Debt, no Company Debentures Payment shall be made during the period (the
"Company Payment Blockage Period") commencing on the date of receipt of such
written notice and ending on the earlier of (i) the date on which such Company
Senior Nonmonetary Default shall have been cured or waived or shall have ceased
to exist and any acceleration of Designated Senior Debt of the Company shall
have been rescinded or annulled or the Designated Senior Debt of the Company to
which such Company Senior Nonmonetary Default relates shall have been discharged
or (ii) the 179th day after the date of such receipt of such written notice. If
the Trustee receives any Payment Blockage Notice, no subsequent
81
Payment Blockage Notice shall be effective for purposes of this Section 16.03
unless and until (A) at least 360 days shall have elapsed since the
effectiveness of the immediately prior Payment Blockage Notice and (B) all
scheduled payments of principal, premium, if any, and Interest on the Debentures
that have come due have been paid in full in cash. For all purposes of this
paragraph, no Company Senior Nonmonetary Default that existed or was continuing
on the date of commencement of any Company Payment Blockage Period shall be, or
can be, made the basis for the commencement of a subsequent Company Payment
Blockage Period whether or not within a period of 360 consecutive days by
holders of Designated Senior Debt of the Company or their representatives unless
such Company Senior Nonmonetary Default shall have been cured for a period of
not less than 90 consecutive days. "Company Senior Nonmonetary Default" means
the occurrence or existence and continuance of any event of default, or of any
event which, after notice or lapse of time (or both), would become an event of
default, under the terms of any instrument pursuant to which any Designated
Senior Debt of the Company is outstanding, permitting (after notice or lapse of
time or both) one or more holders of such Designated Senior Debt (or a trustee
or agent on behalf of the holders thereof) to declare such Designated Senior
Debt due and payable prior to the date on which it would otherwise become due
and payable, other than a Company Senior Payment Default. Notwithstanding the
foregoing, holders may receive and retain Permitted Junior Securities.
In the event that, notwithstanding the foregoing, the Company
shall make any Company Debentures Payment to the Trustee or any holder of
Debentures prohibited by the foregoing provisions of this Section, then and in
such event such Company Debentures Payment shall be paid over and delivered
forthwith to the holders of the Senior Debt of the Company.
The provisions of this Section shall not apply to any Company
Debentures Payment with respect to which Section 16.02 would be applicable.
Section 16.04. Certain Payments Permitted. Nothing contained
in this Article or elsewhere in this Indenture or in any of the Debentures shall
prevent the Company, at any time except during the pendency of any Company
Proceeding referred to in Section 16.02 or under the conditions described in
Section 16.03, from making Company Debentures Payments.
Section 16.05. Subrogation to Rights of Holders of Senior
Debt. After all Senior Debt is paid in full and until the Debentures are paid in
full, holders of Debentures shall be subrogated (equally and ratably with all
other indebtedness pari passu with the Debentures) to the rights of holders of
Senior Debt to receive distributions applicable to Senior Debt to the extent
that distributions otherwise payable to the holders of Debentures have been
applied to the payment of Senior Debt. A distribution made under this Article 16
to holders of Senior Debt that otherwise would have been made to holders of
Debentures is not, as between the Company and holders of Debentures, a payment
by the Company on the Debentures.
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Section 16.06. Provisions Solely To Define Relative Rights.
The provisions of this Article are and are intended solely for the purpose of
defining the relative rights of the holders of Debentures on the one hand and
the holders of Senior Debt on the other hand. Nothing contained in this Article
or elsewhere in this Indenture or in the Debentures is intended to or shall (a)
impair, as among the Company, its creditors other than holders of Senior Debt
and the holders of the Debentures, the obligation of the Company, which is
absolute and unconditional (and which, subject to the rights under this Article
of the holders of Senior Debt, is intended to rank equally with all other
general obligations of the Company), to pay to the holders of the Debentures the
principal of, premium, if any, and Interest on the Debentures as and when the
same shall become due and payable in accordance with their terms; or (b) affect
the relative rights against the Company, of the holders of the Debentures and
creditors of the Company, other than the holders of Senior Debt; or (c) prevent
the Trustee or the holder of any Debenture from exercising all remedies
otherwise permitted by applicable law upon default under this Indenture, subject
to the rights, if any, under this Article of the holders of Senior Debt to
receive cash, property and Debentures otherwise payable or deliverable to the
Trustee or such holder.
If the Company fails because of this Article 16 to pay
principal of, premium, if any, or Interest on a Debenture on the due date, the
failure is still a default or Event of Default under this Indenture. Nothing in
this Article 16 shall have any effect on the right of holders of Debentures or
the Trustee to accelerate the maturity of the Debentures.
Section 16.07. [Reserved].
Section 16.08. Trustee To Effectuate Subordination. Each
holder of a Debenture by acceptance thereof authorizes and directs the Trustee
on his behalf to take such action as may be necessary or appropriate to
effectuate the subordination provided in this Article and appoints the Trustee
his attorney-in-fact for any and all such purposes.
Section 16.09. No Waiver of Subordination Provisions. No right
of any present or future holder of any Senior Debt to enforce subordination as
herein provided shall at any time in any way be prejudiced or impaired by any
act or failure to act on the part of the Company or by any act or failure to
act, in good faith, by any such holder, or by any noncompliance by the Company
with the terms, provisions and agreements of this Indenture, regardless of any
knowledge thereof any such holder may have or be otherwise charged with.
Without in any way limiting the generality of the foregoing
paragraph, the holders of Senior Debt may, at any time and from time to time,
without the consent of or notice to the Trustee or the holders of the
Debentures, without incurring responsibility to the holders of the Debentures
and without impairing or releasing the subordination provided in this Article or
the obligations hereunder of the holders of the Debentures to the holders of
Senior Debt, do any one or more of the following: (i) change the manner, place
or terms of payment or extend the time of payment of, or renew or alter or
increase, Senior Debt, or otherwise amend or supplement in any manner Senior
Debt or any
83
instrument evidencing the same or any agreement under which Senior
Debt is outstanding; (ii) sell, exchange, release or otherwise deal with any
property pledged, mortgaged or otherwise securing Senior Debt; (iii) release any
Person liable in any manner for the collection of Senior Debt; and (iv) exercise
or refrain from exercising any rights against the Company and any other Person.
Section 16.10. Notice to Trustee. The Company shall give
prompt written notice to the Trustee of any fact known to the Company which
would prohibit the making of any payment to or by the Trustee in respect of the
Debentures. Notwithstanding the provisions of this Article or any other
provision of this Indenture, the Trustee shall not be charged with knowledge of
the existence of any facts which would prohibit the making of any payment to or
by the Trustee in respect of the Debentures and the Trustee may continue to make
payments on the Debentures, unless the Trustee shall have received at its
Corporate Trust Office at least five Business Days prior to the date of such
payment written notice of facts that would cause the payment obligations with
respect to the Debentures to violate this Article from the Company or a holder
of Senior Debt or from any trustee therefor; and, prior to the receipt of any
such written notice, the Trustee, subject to the provisions of Section 8.01,
shall be entitled in all respects to assume that no such facts exist, provided
that nothing in this Section 16.10 shall impair the subordination revisions of
this Article 16. Subject to the provisions of Section 8.01, the Trustee shall be
entitled to rely on the delivery to it of a written notice by a Person
representing himself to be a holder of Senior Debt (or a trustee, representative
or agent therefor) to establish that such notice has been given by a holder of
Senior Debt (or a trustee, representative or agent therefor). In the event that
the Trustee determines in good faith that further evidence is required with
respect to the right of any Person as a holder of Senior Debt to participate in
any payment or distribution pursuant to this Article, the Trustee may request
such Person to furnish evidence to the reasonable satisfaction of the Trustee as
to the amount of Senior Debt held by such Person, the extent to which such
Person is entitled to participate in such payment or distribution and any other
facts pertinent to the rights of such Person under this Article, and if such
evidence is not furnished, the Trustee may defer any payment to such Person
pending judicial determination as to the right of such Person to receive such
payment.
Section 16.11. Reliance on Judicial Order or Certificate of
Liquidating Agent. Upon any payment or distribution of assets or Debentures of
the Company referred to in this Article, the Trustee, subject to the provisions
of Section 8.01, and the holders of the Debentures shall be entitled to rely
upon any order or decree entered by any court of competent jurisdiction in which
such proceeding is pending, or a certificate of the trustee in bankruptcy,
receiver, liquidating trustee, custodian, assignee for the benefit of creditors,
agent or other Person making such payment or distribution, delivered to the
Trustee or to the holders of Debentures, for the purpose of ascertaining the
Persons entitled to participate in such payment or distribution, the holders of
the Senior Debt and other indebtedness of the Company, the amount thereof or
payable thereon, the amount or amounts paid or distributed thereon and all other
facts pertinent thereto or to this Article.
Section 16.12. Trustee Not Fiduciary for Holders of Senior
Debt. The Trustee shall not be deemed to owe any fiduciary duty to the holders
of Senior Debt and
84
shall not be liable to any such holders if it shall in good faith mistakenly pay
over or distribute to holders of Debentures or to the Company or to any other
Person cash, property or Debentures to which any holders of Senior Debt shall be
entitled by virtue of this Article or otherwise.
Section 16.13. Rights of Trustee as Holder of Senior Debt;
Preservation of Trustee's Rights. The Trustee in its individual capacity shall
be entitled to all the rights set forth in this Article with respect to any
Senior Debt which may at any time be held by it, to the same extent as any other
holder of Senior Debt, and nothing in this Indenture shall deprive the Trustee
of any of its rights as such holder.
Nothing in this Article shall apply to claims of, or payments
to, the Trustee under or pursuant to Section 8.06.
Section 16.14. Article Applicable to Paying Agents. In case at
any time any Paying Agent other than the Trustee shall have been appointed by
the Company and be then acting hereunder, the term "Trustee", as used in this
Article shall in such case (unless the context otherwise requires) be construed
as extending to and including such Paying Agent within its meaning as fully for
all intents and purposes as if such Paying Agent were named in this Article in
addition to or in place of the Trustee; provided, however, that Section 16.13
shall not apply to the Company or any Affiliate of the Company if it or such
Affiliate acts as Paying Agent.
Section 16.15. Defeasance of this Article 16. The
subordination of the Debentures provided by this Article 16 is expressly made
subject to the provisions for discharge of this Indenture in Article 13 and,
anything herein to the contrary notwithstanding, upon the effectiveness of any
such discharge, the Debentures then outstanding relating thereto shall thereupon
cease to be subordinated pursuant to this Article 16.
ARTICLE 17
MISCELLANEOUS PROVISIONS
Section 17.01. Provisions Binding on Company's Successors. All
the covenants, stipulations, promises and agreements by the Company contained in
this Indenture shall bind its successors and assigns whether so expressed or
not.
Section 17.02. Official Acts by Successor Corporation. 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 Person that shall at the time be the lawful sole
successor of the Company.
Section 17.03. Addresses for Notices, Etc.. Any request,
notice or demand which by any provision of this Indenture is required or
permitted to be given or served by the Trustee or by the holders of Debentures
on the Company shall be deemed to have been sufficiently given or made, for all
purposes, if delivered by messenger or
85
overnight carrier, given or served by being deposited postage prepaid by
registered or certified mail in a post office letter box or sent by telecopier
transmission addressed as follows: to Allied Waste Industries, Inc., 00000 Xxxxx
Xxxxxxxx-Xxxxxx Xxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000, Telecopier No.:
(000) 000-0000, Attention: Treasurer. Any notice, direction, request or demand
hereunder to or upon the Trustee shall be deemed to have been sufficiently given
or made, for all purposes, if delivered by messenger or overnight carrier, given
or served by being deposited, postage prepaid, by registered or certified mail
in a post office letter box or sent by telecopier transmission addressed as
follows: U.S. Bank National Association, 00 Xxxxxxxxxx Xxxxxx, Xx. Xxxx,
Xxxxxxxxx 00000, Telecopier No.: (000) 000-0000, Attention: Corporate Trust
Administration; provided, however, that the Trustee shall not be deemed to have
received notice until such notice is actually received.
The Company or the Trustee, by notice to the other, may
designate additional or different addresses for subsequent notices or
communications. Any notice or communication mailed to a Debentureholder shall be
mailed to him by first class mail, postage prepaid, at his address as it appears
on the Debenture Register and shall be sufficiently given to him if so mailed
within the time prescribed.
Failure to mail a notice or communication to a Debentureholder
or any defect in it shall not affect its sufficiency with respect to other
Debentureholders. If a notice or communication is mailed in the manner provided
above, it is duly given, whether or not the addressee receives it.
Section 17.04. Governing Law. 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
the State of New York (including Section 5-1401 of the New York General
Obligations Law or any successor to such statute).
Section 17.05. Evidence of Compliance with Conditions
Precedent, Certificates to Trustee. Upon any application, request 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.
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: (1) a statement that the person
making such certificate or opinion has read such covenant or condition; (2) a
brief statement as to the nature and scope of the examination or investigation
upon which the statement or opinion contained in such certificate or opinion is
based; (3) 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
86
with; and (4) a statement as to whether or not, in the opinion of such person,
such condition or covenant has been complied with.
Section 17.06. Legal Holidays. In any case in which the date
of maturity of Interest on or principal of the Debentures or the Redemption Date
of any Debenture or any Repurchase Date with respect to any Debenture will not
be a Business Day, then payment of such Interest 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 Redemption Date or the Repurchase Date, as the case may be, and no
Interest shall accrue for the period from and after such date.
Section 17.07. Company Responsible for Making Calculations.
The Company will be responsible for making all calculations called for under
this Indenture. These calculations include, but are not limited to,
determination of the Conversion Trading Price, Current Market Price, Last
Reported Sale Price, and Trading Price, the amount of accrued Interest payable
on the Debentures, the Conversion Price of the Debentures and the Conversion
Rate of the Debentures. The Company will make these calculations in good faith
and, absent manifest error, these calculations will be final and binding on the
Debentureholders. Promptly after the calculation thereof, the Company will
provide to each of the Trustee and the Conversion Agent an Officers' Certificate
setting forth a schedule of its calculations, and each of the Trustee and the
Conversion Agent is entitled to conclusively rely upon the accuracy of such
calculations without independent verification. The Trustee will forward the
Company's calculations to any Debentureholder upon the written request of such
Debentureholder.
Section 17.08. Trust Indenture Act. This Indenture is hereby
made subject to, and shall be governed by, the provisions of the Trust Indenture
Act required to be part of and to govern indentures qualified under the Trust
Indenture Act; provided that unless otherwise required by law, notwithstanding
the foregoing, this Indenture and the Debentures issued hereunder shall not be
subject to the provisions of subsections (a)(1), (a)(2), and (a)(3) of Section
314 of the Trust Indenture Act as now in effect or as hereafter amended or
modified; provided further that this Section 17.08 shall not require this
Indenture or the Trustee to be qualified under the Trust Indenture Act prior to
the time such qualification is in fact required under the terms of the Trust
Indenture Act, nor shall it constitute any admission or acknowledgment by any
party to the Indenture that any such qualification is required prior to the time
such qualification is in fact required under the terms of the Trust Indenture
Act. If any provision hereof limits, qualifies or conflicts with another
provision hereof which is required to be included in an indenture qualified
under the Trust Indenture Act, such required provision shall control.
Section 17.09. No Security Interest Created. Except as
provided in Section 8.06, nothing in this indenture or in the Debentures,
expressed or implied, shall be construed to constitute a security interest under
the Uniform Commercial Code or similar legislation, as now or hereafter enacted
and in effect, in any jurisdiction in which property of the Company or its
subsidiaries is located.
87
Section 17.10. Benefits of Indenture. Nothing in this
Indenture or in the Debentures, express or implied, shall give to any Person,
other than the parties hereto, any Paying Agent, any authenticating agent, any
Debenture Registrar and their successors hereunder and the holders of
Debentures, any benefit or any legal or equitable right, remedy or claim under
this Indenture.
Section 17.11. 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.
Section 17.12. Authenticating Agent. The Trustee may appoint
an authenticating agent that shall be authorized to act on its behalf, and
subject to its direction, in the authentication and delivery of Debentures in
connection with the original issuance thereof and transfers and exchanges of
Debentures hereunder, including under Sections 2.04, 2.05, 2.06, 2.07, 3.02 and
3.08, as fully to all intents and purposes as though the authenticating agent
had been expressly authorized by this Indenture and those Sections to
authenticate and deliver Debentures. For all purposes of this Indenture, the
authentication and delivery of Debentures by the authenticating agent shall be
deemed to be authentication and delivery of such Debentures "by the Trustee" and
a certificate of authentication executed on behalf of the Trustee by an
authenticating agent shall be deemed to satisfy any requirement hereunder or in
the Debentures for the Trustee's certificate of authentication. Such
authenticating agent shall at all times be a Person eligible to serve as trustee
hereunder pursuant to Section 8.09.
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, consolidation or conversion to which any
authenticating agent shall be a party, or any corporation succeeding to the
corporate trust business of any authenticating agent, shall be the successor of
the authenticating agent hereunder, if such successor corporation is otherwise
eligible under this Section 17.12, without the execution or filing of any paper
or any further act on the part of the parties hereto or the authenticating agent
or such successor corporation.
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 under this Section,
the Trustee shall either promptly appoint a successor authenticating agent or
itself assume the duties and obligations of the former authenticating agent
under this Indenture and, upon such appointment of a successor authenticating
agent, if made, shall give written notice of such appointment of a successor
authenticating agent to the Company and shall mail notice of such appointment of
a successor authenticating agent to all holders of Debentures as the names and
addresses of such holders appear on the Debenture Register.
88
The Company agrees to pay to the authenticating agent from
time to time such reasonable compensation for its services as shall be agreed
upon in writing between the Company and the authenticating agent.
The provisions of Sections 8.02, 8.03, 8.04 and 9.03 and this
Section 17.12 shall be applicable to any authenticating agent.
Section 17.13. 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 17.14. Severability. In case any provision in this
Indenture or in the Debentures shall be invalid, illegal or unenforceable, then
(to the extent permitted by law) the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
U.S. Bank National Association hereby accepts the trusts in this Indenture
declared and provided, upon the terms and conditions herein above set forth.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
89
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed.
ALLIED WASTE INDUSTRIES, INC.,
by
______________________________________
Name:
Title:
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
by
______________________________________
Name:
Title:
EXHIBIT A
[Include only for Global Debentures:]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITARY TRUST COMPANY (55 XXXXX XXXXXX, XXX XXXX, XXX
XXXX) (THE "DEPOSITORY", WHICH TERM INCLUDES ANY SUCCESSOR DEPOSITARY FOR THE
CERTIFICATES) TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE
OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO.
OR IN SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITARY (AND ANY PAYMENT HEREIN IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY), ANY
TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.]
Each Debenture shall bear the following legend:
FOR PURPOSES OF SECTIONS 1272, 1273 AND 1275 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED, THIS DEBENTURE IF BEING ISSUED WITH ORIGINAL
ISSUE DISCOUNT. THE ISSUE PRICE OF EACH DEBENTURE IS $1,000 PER $1,000 OF
PRINCIPAL AMOUNT, AND THE ISSUE DATE IS APRIL 20, 2004. THIS DEBENTURE IS
SUBJECT TO UNITED STATES FEDERAL INCOME TAX REGULATIONS GOVERNING CONTINGENT
PAYMENT DEBT INSTRUMENTS. FOR PURPOSES OF SECTIONS 1272, 1273 AND 1275 OF THE
INTERNAL REVENUE CODE, THE COMPARABLE YIELD OF THIS DEBENTURE IS 7.625%,
COMPOUNDED SEMI-ANNUALLY (WHICH WILL BE TREATED AS THE YIELD TO MATURITY FOR
UNITED STATES FEDERAL INCOME TAX PURPOSES).
THE COMPANY AGREES, AND BY ACCEPTING A BENEFICIAL OWNERSHIP
INTEREST IN THIS DEBENTURE EACH HOLDER AND ANY BENEFICIAL OWNER OF THIS
DEBENTURE WILL BE DEEMED TO HAVE AGREED, FOR UNITED STATES FEDERAL INCOME TAX
PURPOSES (1) TO TREAT THIS DEBENTURE AS A DEBT INSTRUMENT THAT IS SUBJECT TO
TREAS. REG. SEC. 1.1275-4 (THE "CONTINGENT PAYMENT REGULATIONS"), (2) TO TREAT
THE FAIR MARKET VALUE OF ANY COMMON STOCK RECEIVED UPON ANY CONVERSION OF THIS
DEBENTURE OR UPON A PURCHASE OF THIS DEBENTURE AT THE HOLDER'S OPTION AS A
CONTINGENT PAYMENT FOR PURPOSES OF THE CONTINGENT PAYMENT REGULATIONS, AND (3)
TO ACCRUE INTEREST WITH RESPECT TO THE DEBENTURE AS ORIGINAL ISSUE DISCOUNT FOR
UNITED STATES FEDERAL INCOME TAX PURPOSES ACCORDING TO THE "NONCONTINGENT BOND
METHOD," SET FORTH IN THE CONTINGENT PAYMENT REGULATIONS, AND TO BE BOUND BY THE
COMPANY'S DETERMINATION OF THE "COMPARABLE YIELD" AND "PROJECTED PAYMENT
SCHEDULE," WITHIN
THE MEANING OF THE CONTINGENT PAYMENT REGULATIONS, WITH RESPECT TO THIS
DEBENTURE. THE COMPANY AGREES TO PROVIDE PROMPTLY TO THE HOLDER OF THIS
DEBENTURE, UPON WRITTEN REQUEST, THE ISSUE PRICE, AMOUNT OF TAX ORIGINAL ISSUE
DISCOUNT, ISSUE DATE, YIELD TO MATURITY, COMPARABLE YIELD AND PROJECTED PAYMENT
SCHEDULE. ANY SUCH WRITTEN REQUEST SHOULD BE SENT TO THE COMPANY AT THE
FOLLOWING ADDRESS: ALLIED WASTE INDUSTRIES, INC., 00000 XXXXX XXXXXXXX-XXXXXX
XXXX, XXXXX 000, XXXXXXXXXX, XXXXXXX 00000, ATTN: INVESTOR RELATIONS.
A-2
ALLIED WASTE INDUSTRIES, INC.
4-1/4% SENIOR subordinated convertible DEBENTUREs DUE 2034
No. $[ ] CUSIP: [ ]
Allied Waste Industries, Inc., a corporation duly organized
and validly existing under the laws of the State of Delaware (herein called the
"Company", which term includes any successor corporation under the Indenture
referred to on the reverse hereof), for value received hereby promises to pay to
[ ] or its registered assigns, [the principal sum of $[ ]] [the principal sum
set forth on Schedule I hereto](1) on April 15, 2034, at the office or agency of
the Company maintained for that purpose in accordance with the terms of the
Indenture, 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 private
debts, and to pay interest, semiannually on April 15 and October 15 of each
year, commencing October 15, 2004, on said principal sum at said office or
agency, in like coin or currency, at the rate per annum of 4-1/4%, from the
April 15 or October 15, as the case may be, next preceding the date of this
Debenture to which interest has been paid or duly provided for, unless the date
hereof is a date to which interest has been paid or duly provided for, in which
case from the date of this Debenture, or unless no interest has been paid or
duly provided for on the Debentures, in which case from April 20, 2004, until
payment of said principal sum has been made or duly provided for. Contingent
Interest, if any, will accrue for any six-month Interest Period and be payable
to holders of this Debenture on the applicable Interest Payment Date to the
person in whose name this Debenture is registered on the corresponding record
date. Except as otherwise provided in the Indenture, the interest payable on the
Debenture pursuant to the Indenture on any April 15 or October 15 will be paid
to the Person entitled thereto as it appears in the Debenture Register at the
close of business on the Regular Record Date, which shall be the April 1 or
October 1 (whether or not a Business Day) next preceding such April 15 or
October 15, as provided in the Indenture; provided that any such interest not
punctually paid or duly provided for shall be payable as provided in the
Indenture. The Company shall pay interest (i) on any Debentures in certificated
form by check mailed to the address of the Person entitled thereto as it appears
in the Debenture Register (or, upon written notice, by wire transfer in
immediately available funds, if such Person is entitled to interest on
Debentures with an aggregate principal amount in excess of $2,000,000) or (ii)
on any Global Debenture by wire transfer of immediately available funds to the
account of the Depositary or its nominee.
The Company promises to pay interest on overdue principal and
(to the extent that payment of such interest is enforceable under applicable
law) Interest at the rate of 4-1/4%, per annum, compounded semi-annually.
-------------------
(1) For Global Debentures only.
A-3
Reference is made to the further provisions of this Debenture
set forth on the reverse hereof, including, without limitation, provisions
giving the holder of this Debenture the right to convert this Debenture into
Common Stock of the Company on the terms and subject to the limitations referred
to on the reverse hereof and as more fully specified in the Indenture. Such
further provisions shall for all purposes have the same effect as though fully
set forth at this place.
This 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 and governed by the laws of the State of New York (including
Section 5-1401 of the New York General Obligations Law or any successor to such
statute). This Debenture shall not be valid or become obligatory for any purpose
until the certificate of authentication hereon shall have been manually signed
by the Trustee or a duly authorized authenticating agent under the Indenture.
A-4
IN WITNESS WHEREOF, the Company has caused this Debenture to
be duly executed.
ALLIED WASTE INDUSTRIES, INC.,
by
___________________________________
[Date of authentication]
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Debentures described in the within-named Indenture.
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
by
_________________________________
Authorized Signatory
, or
by
_________________________________
As Authenticating Agent
(if different from Trustee)
by
_________________________________
Authorized Signatory
A-5
FORM OF REVERSE OF DEBENTURE
ALLIED WASTE INDUSTRIES, INC.
4-1/4% SENIOR SUBORDINATED CONVERTIBLE DEBENTUREs DUE 2034
This Debenture is one of a duly authorized issue of Debentures
of the Company, designated as its 4-1/4% Senior Subordinated Convertible
Debentures due 2034 (herein called the "Debentures"), limited in aggregate
principal amount to $230,000,000, issued and to be issued under and pursuant to
an Indenture dated as of April 20, 2004 (herein called the "Indenture"), between
the Company and U.S. Bank National Association, as trustee (herein called 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. In case an Event of Default shall have occurred
and be continuing, the principal of and accrued Interest on all Debentures may
be declared by either the Trustee or the holders of not less than 25% in
aggregate principal amount of the Debentures then outstanding, and upon said
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 at least a majority in aggregate
principal amount of the Debentures at the time outstanding, 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
Debentures; provided that no such supplemental indenture shall (i) extend the
Stated Maturity of any Debenture, or reduce the rate or extend the time of
payment of Interest thereon, or reduce the principal amount thereof or reduce
any amount payable upon redemption or repurchase thereof, or impair the right of
any Debentureholder to institute suit for the payment thereof, or make the
principal thereof or Interest thereon payable in any coin or currency other than
that provided in the Debentures, or change the obligation of the Company to
redeem any Debenture on a Redemption Date in a manner adverse to the holders, or
change the obligation of the Company to repurchase any Debenture upon a
Fundamental Change in a manner adverse to the holder of the Debentures, or
change the obligation of the Company to repurchase any Debenture on a Company
Repurchase Date in a manner adverse to the holder of the Debentures, or impair
the right to convert the Debentures into Common Stock subject to the terms set
forth in the Indenture, including Section 15.05(b) thereof, or reduce the number
of shares of Common Stock, the amount of cash or the amount of other property
receivable upon conversion, in each case without the consent of the holder of
each Debenture so affected, or modify any of the provisions of Section 11.02 or
Section 7.07 thereof, except to increase any such percentage or to provide that
certain other provisions of the Indenture cannot be modified or waived without
the consent of the holder of each Debenture so affected or (ii) reduce the
aforesaid percentage of Debentures, the holders of which are required to consent
to any such supplemental indenture, without the consent
A-6
of the holders of all Debentures then outstanding. Subject to the provisions of
the Indenture, 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 under the Indenture and
its consequences except (A) a default in the payment of Interest on or the
principal of any of the Debentures, (B) a failure by the Company to convert any
Debentures into Common Stock, cash or a combination of cash and Common Stock,
(C) a default in the payment of the Redemption Price pursuant to Article 3 of
the Indenture, (D) a default in the payment of the Company Repurchase Price or
Fundamental Change Repurchase Price pursuant to Article 3 of the Indenture, or
(E) a default in respect of a covenant or provision of the Indenture which under
Article 11 of the Indenture cannot be modified or amended without the consent of
each holder of Debentures then outstanding or affected thereby. 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 any Debentures which may be issued in
exchange or substitution hereof, irrespective of whether or not any notation
thereof 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
Interest on this Debenture at the place, at the respective times, at the rate
and in the coin or currency herein prescribed.
Interest on the Debentures shall be computed on the basis of a
360-day year of twelve 30-day months.
The Debentures are issuable in fully registered form, without
interest coupons, in denominations of $1,000 principal amount and any multiple
of $1,000. At the office or agency of the Company referred to on the face
hereof, and in the manner and subject to the limitations provided in the
Indenture, without payment of any service charge but with payment of a sum
sufficient to cover any tax, assessment or other governmental charge that may be
imposed in connection with any registration or exchange of Debentures,
Debentures may be exchanged for a like aggregate principal amount of Debentures
of any other authorized denominations.
At any time on or after April 18, 2009, and prior to maturity,
the Debentures may be redeemed at the option of the Company, in whole or in
part, in cash upon mailing a notice of such redemption not less than 30 days but
not more than 60 days before the Redemption Date to the holders of Debentures at
their last registered addresses, all as provided in the Indenture, at a
Redemption Price equal to 100% of the principal amount of debentures being
redeemed plus accrued and unpaid Interest to, but excluding, the Redemption
Date; provided that if the applicable Redemption Date is an Interest Payment
Date, the Interest payable on such Interest Payment Date shall be paid on such
Interest Payment Date to the holders of record of such Debentures on the
applicable record date instead of the holders surrendering such Debentures for
redemption on such date.
A-7
In no event will any Security be redeemable at the option of
the Company before April 18, 2009.
The Company may not give notice of any redemption of the
Debentures if a default in the payment of Interest on the Debentures has
occurred and is continuing.
The Debentures are not subject to redemption through the
operation of any sinking fund.
If a Fundamental Change occurs at any time prior to maturity
of the Debentures, the Company will be obligated to repurchase this Debenture on
a Fundamental Change Repurchase Date, specified by the Company, which shall be
no later than 30 days after notice thereof, at the option of the holder of this
Debenture at a Fundamental Change Repurchase Price equal to 100% of the
principal amount thereof, together with accrued Interest to (but excluding) the
Fundamental Change Repurchase Date. The Company shall mail to all holders of
record of the Debentures a notice of the occurrence of a Fundamental Change and
of the repurchase right arising as a result thereof on or before the 30th day
after the occurrence of such Fundamental Change. For a Debenture to be so
repurchased at the option of the holder, the Company must receive at the office
or agency of the Company maintained for that purpose in accordance with the
terms of the Indenture, such Debenture with the form entitled "Form of
Fundamental Change Repurchase Election" on the reverse thereof duly completed,
together with such Debenture, duly endorsed for transfer at any time prior to
the close of business on the Business Day immediately preceding the Fundamental
Change Repurchase Date. Subject to the terms and conditions of the Indenture,
the Company shall become obligated to repurchase, at the option of the holder,
all or any portion of the Debentures held by such holder on April 15, 2011,
April 15, 2014, April 15, 2019, April 15, 2024, and April 15, 2029, in integral
multiples of $1,000 at a Company Repurchase Price of 100% of the principal
amount, plus any accrued and unpaid Interest on such Debenture to but excluding
the Company Repurchase Date. To exercise such right, a holder shall deliver to
the Company such Debenture with the form entitled "Form of Company Repurchase
Election" on the reverse thereof duly completed, together with the Debenture,
duly endorsed for transfer, at any time from the opening of business on the date
that is 20 Business Days prior to such Company Repurchase Date until the close
of business on the Business Day immediately preceding the Company Repurchase
Date, and shall deliver the Debentures to the Trustee (or other Paying Agent
appointed by the Company) as set forth in the Indenture.
The Company Repurchase Price to be paid on any of April 15,
2011, April 15, 2014, April 15, 2019, April 15, 2024, and April 15, 2029 and the
Fundamental Change Repurchase Price to be paid on any Fundamental Change
Repurchase Date may be paid, at the option of the Company, in cash or by the
issuance and delivery of shares of Common Stock, or in any combination thereof,
subject to the terms and conditions of the Indenture.
Holders have the right to withdraw any Repurchase Election by
delivering to the Trustee (or other Paying Agent appointed by the Company) a
written notice of
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withdrawal up to the close of business on the Business Day immediately preceding
the Repurchase Date, all as provided in the Indenture.
If cash or Common Stock sufficient to pay the Repurchase Price
with respect to all Debentures or portions thereof to be repurchased as of any
Repurchase Date is deposited with the Trustee (or other Paying Agent appointed
by the Company), then on and after such Repurchase Date, Interest will cease to
accrue on such Debentures (or portions thereof), and the holder thereof shall
have no other rights as such other than the right to receive the Repurchase
Price upon surrender of such Debenture.
Subject to the occurrence of certain events and in compliance
with the provisions of the Indenture, prior to the Stated Maturity of the
Debentures, the holder hereof has the right, at its option, to convert each
$1,000 principal amount of the Debentures into 48.9476 shares of the Company's
Common Stock (a Conversion Price of approximately $20.43 per share), as such
shares shall be constituted at the date of conversion and subject to adjustment
from time to time as provided in the Indenture, upon surrender of this Debenture
with the form entitled "Form of Conversion Notice" on the reverse hereof duly
completed, to the Company at the office or agency of the Company maintained for
that purpose in accordance with the terms of the Indenture, or at the option of
such holder, the Corporate Trust office, and, unless the shares issuable on
conversion are to be issued in the same name as this Debenture, duly endorsed
by, or accompanied by instruments of transfer in form satisfactory to the
Company duly executed by, the holder or by his duly authorized attorney. The
Company will notify the holder thereof of any event triggering the right to
convert the Debentures as specified above in accordance with the Indenture. The
Company may satisfy all or any portion of its conversion obligation in cash,
subject to the terms and conditions of the Indenture.
If the Company (i) is a party to a consolidation, merger,
statutory share exchange or combination, (ii) reclassifies the Common Stock, or
(iii) sells or conveys its properties and assets substantially as an entirety to
any Person, the right to convert a Debenture into shares of Common Stock may be
changed into a right to convert it into the kind or amount of cash, securities
or other property receivable upon such event, in each case in accordance with
the Indenture.
No adjustment in respect of Interest on any Debenture
converted or dividends on any shares issued upon conversion of such Debenture
will be made upon any conversion except as set forth in the next sentence. If
this Debenture (or portion hereof) is surrendered for conversion during the
period from the close of business on any record date for the payment of Interest
to the opening of business on the immediately following Interest Payment Date,
this Debenture (or portion hereof being converted) must be accompanied by
payment, in immediately available funds or other funds acceptable to the
Company, of an amount equal to the Interest otherwise payable on such Interest
Payment Date on the principal amount being converted; provided that no such
payment shall be required (1) if the Company has specified a Redemption Date
that is after a record date and prior to the next Interest Payment Date, (2) if
the Company has specified a Repurchase Date following a Fundamental Change that
is after a record date and on or
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prior to the next Interest Payment Date or (3) to the extent of any overdue
Interest, if any overdue Interest exists at the time of conversion with respect
to such Debenture.
No fractional shares will be issued upon any conversion, but
an adjustment and payment in cash will be made, as provided in the Indenture, in
respect of any fraction of a share which would otherwise be issuable upon the
surrender of any Debenture or Debentures for conversion.
A Debenture in respect of which a holder is exercising its
right to require repurchase upon a Fundamental Change or repurchase on a
Repurchase Date may be converted only if such holder withdraws its election to
exercise such right in accordance with the terms of the Indenture.
Upon due presentment for registration of transfer of this
Debenture at the office or agency of the Company maintained for that purpose in
accordance with the terms of the Indenture, a new Debenture or Debentures of
authorized denominations for an equal aggregate principal amount will be issued
to the transferee in exchange thereof, subject to the limitations provided in
the Indenture, without charge except for any tax, assessment or other
governmental charge imposed in connection therewith.
The Company, the Trustee, any authenticating agent, any Paying
Agent, any Conversion Agent and any Debenture Registrar may deem and treat the
registered holder hereof 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 anyone other than the Company or any Debenture
Registrar) for the purpose of receiving payment hereof, or on account hereof,
for the conversion hereof and for all other purposes, and neither the Company
nor the Trustee nor any other authenticating agent nor any Paying Agent nor
other Conversion 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 paid, satisfy and
discharge liability for monies payable on this Debenture.
No recourse for the payment of the principal of or Interest on
this Debenture, or for any claim based hereon or otherwise in respect hereof,
and no recourse under or upon any obligation, covenant or agreement of the
Company in the Indenture or any supplemental indenture or in any Debenture, or
because of the creation of any indebtedness represented thereby, shall be had
against any incorporator, shareholder, employee, agent, officer or director or
subsidiary, 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, all such liability
being, by acceptance hereof and as part of the consideration for the issue
hereof, expressly waived and released.
The Company agrees, and by acceptance of a Debenture, each
beneficial holder of a Debenture will be deemed to have agreed for United States
federal income tax purposes (1) to treat the Debentures as debt instruments that
are subject to Treas. Reg.
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Sec. 1.1275-4 (the "Contingent Payment Regulations"), (2) to treat the fair
market value of any common stock received upon any conversion of the Debentures
or upon a purchase of the Debentures at the holder's option as a contingent
payment for purposes of the Contingent Payment Regulations, and (3) to accrue
interest with respect to the Debentures as original issue discount for United
States federal income tax purposes according to the "noncontingent bond method"
set forth in the Contingent Payment Regulations and to be bound by the Company's
determination of the "comparable yield" and "projected payment schedule," within
the meaning of the Contingent Payment Regulations, with respect to the
Debentures. A holder of Debentures may obtain the issue price, the amount of
original issue discount, issue date, yield to maturity, comparable yield and
projected payment schedule for the Debentures, determined by the Company
pursuant to Treas. Reg. Sec. 1.1275-4, by submitting a written request for it to
the Company at the following address: Allied Waste Industries, Inc., 00000 Xxxxx
Xxxxxxxx-Xxxxxx Xxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000, Attention: Investor
Relations.
Terms used in this Debenture and defined in the Indenture are
used herein as therein defined.
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ABBREVIATIONS
The following abbreviations, when used in the inscription of
the face of this Debenture, shall be construed as though they were written out
in full according to applicable laws or regulations.
TEN COM -- as tenants in common UNIF GIFT MIN ACT -- Custodian
TEN ENT -- as tenant by the entireties (Cust) (Minor)
as joint tenants with right of survivorship
and not as tenants
JT TEN -- in common under Uniform Gifts to Minors Act
---------------------------------
(State)
Additional abbreviations may also be used though not in the above list.
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FORM OF
CONVERSION NOTICE
TO: ALLIED WASTE INDUSTRIES, INC.
U.S. BANK NATIONAL ASSOCIATION
The undersigned registered owner of this Debenture hereby
irrevocably exercises the option to convert this Debenture, or the portion
thereof (which is $1,000 or a multiple thereof) below designated, into shares of
Common Stock of Allied Waste Industries, Inc. and/or cash in accordance with the
terms of the Indenture referred to in this Debenture, and directs that the
shares issuable and deliverable and/or cash payable upon such conversion,
together with any check in payment for fractional shares and any Debentures
representing any unconverted principal amount hereof, be issued and delivered to
the registered holder hereof unless a different name has been indicated below.
Capitalized terms used herein but not defined shall have the meanings ascribed
to such terms in the Indenture. If shares, any portion of this Debenture not
converted or a check for cash payable are to be issued in the name of a person
other than the undersigned, the undersigned will provide the appropriate
information below and pay all transfer taxes payable with respect thereto. Any
amount required to be paid by the undersigned on account of Interest, including
Contingent Interest, if any, accompanies this Debenture.
Dated:
___________________________
___________________________
Signature(s)
Signature(s) must be guaranteed by an "eligible guarantor institution" meeting
the requirements of the Debenture Registrar, which requirements include
membership or participation in the Security Transfer Agent Medallion Program
("STAMP") or such other "signature guarantee program" as may be determined by
the Debenture Registrar in addition to, or in substitution for, STAMP, all in
accordance with the Securities Exchange Act of 1934, as amended.
________________________________________________________________________________
Signature Guarantee
Fill in the registration of shares of Common Stock if to be issued, and
Debentures if to be delivered, other than to and in the name of the registered
holder:
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_________________________________
(Name)
_________________________________
(Street Address)
_________________________________
(City, State and Zip Code)
Please print name and address
Principal amount to be converted (if less than all):
$
Social Security or Other Taxpayer Identification Number:
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FORM OF
FUNDAMENTAL CHANGE REPURCHASE ELECTION
TO: ALLIED WASTE INDUSTRIES, INC.
U.S. BANK NATIONAL ASSOCIATION
The undersigned registered owner of this Debenture hereby irrevocably
acknowledges receipt of a notice from Allied Waste Industries, Inc. (the
"Company") as to the occurrence of a Fundamental Change with respect to the
Company and requests and instructs the Company to repurchase the entire
principal amount of this Debenture, or the portion thereof (which is $1,000 or a
multiple thereof) below designated, in accordance with the terms of the
Indenture referred to in this Debenture at the price of 100% of such entire
principal amount or portion thereof, together with accrued Interest to, but
excluding, the Fundamental Change Repurchase Date, to the registered holder
hereof. Capitalized terms used herein but not defined shall have the meanings
ascribed to such terms in the Indenture.
Dated:
___________________________
___________________________
Signature(s)
NOTICE: The above signatures of the holder(s) hereof must correspond with the
name as written upon the face of the Debenture in every particular without
alteration or enlargement or any change whatever.
Debenture Certificate Number (if applicable):
Principal amount to be repurchased (if less than all):
Social Security or other Taxpayer Identification Number:
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FORM OF
COMPANY REPURCHASE ELECTION
TO: ALLIED WASTE INDUSTRIES, INC.
U.S. BANK NATIONAL ASSOCIATION
The undersigned registered owner of this Debenture hereby irrevocably
acknowledges receipt of a notice from Allied Waste Industries, Inc. (the
"Company") regarding the right of holders to elect to require the Company to
repurchase the Debentures and requests and instructs the Company to repay the
entire principal amount of this Debenture, or the portion thereof (which is
$1,000 or an integral multiple thereof) below designated, in accordance with the
terms of the Indenture at the price of 100% of such entire principal amount or
portion thereof, together with accrued Interest to, but excluding, the Company
Repurchase Date, to the registered holder hereof. Capitalized terms used herein
but not defined shall have the meanings ascribed to such terms in the Indenture.
The Debentures shall be repurchased by the Company as of the Company Repurchase
Date pursuant to the terms and conditions specified in the Indenture.
Dated:
___________________________
___________________________
Signature(s)
NOTICE: The above signatures of the holder(s) hereof must correspond with the
name as written upon the face of the Debenture in every particular without
alteration or enlargement or any change whatever.
Debenture Certificate Number (if applicable):
Principal amount to be repurchased (if less than all):
Social Security or Other Taxpayer Identification Number:
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ASSIGNMENT
For value received
hereby sell(s) assign(s) and transfer(s) unto (Please
insert social security or other Taxpayer Identification Number of assignee) the
within Debenture, and hereby irrevocably constitutes and appoints
attorney to transfer said Debenture on the books of the Company, with full
power of substitution in the premises.
Dated:
___________________________
___________________________
Signature(s)
Signature(s) must be guaranteed by "an eligible guarantor institution" meeting
the requirements of the Debenture Registrar, which requirements include
membership or participation in the Security Transfer Agent Medallion Program
("STAMP") or such other "signature guarantee program" as may be determined by
the Debenture Registrar in addition to, or in substitution for, STAMP, all in
accordance with the Securities Exchange Act of 1934, as amended.
________________________________________________________________________________
Signature Guarantee
NOTICE: The signature on the Conversion Notice, the Fundamental Change
Repurchase Election, the Company Repurchase Election or the Assignment must
correspond with the name as written upon the face of the Debenture in every
particular without alteration or enlargement or any change whatever.
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Schedule I
[Include Schedule I only for a Global Debenture]
ALLIED WASTE INDUSTRIES, INC.
4-1/4% Senior Subordinated Convertible Debentures due 2034
No. _____________
The initial principal amount of this Global Debenture is
$230,000,000. The following increases or decreases in this Global Debenture have
been made:
Principal Notation Explaining Authorized Signature
Date Amount Principal Amount Recorded of Trustee or Custodian
---- ------ ------------------------- -----------------------
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