THIS SECURITY IS A BOOK-ENTRY SECURITY WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A
DEPOSITARY OR A NOMINEE OF A DEPOSITARY. THIS SECURITY IS EXCHANGEABLE FOR
SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR
ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND
NO TRANSFER OF THIS SECURITY (OTHER THAN A TRANSFER OF THIS SECURITY AS A
WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE
DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY) MAY BE
REGISTERED EXCEPT IN SUCH LIMITED CIRCUMSTANCES.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK LIMITED PURPOSE TRUST COMPANY
("DTC"), TO THE COMPANY (AS DEFINED BELOW) OR ITS AGENT FOR REGISTRATION FOR
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN
THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
BOOK-ENTRY SECURITY
No. 1 U.S. $200,000,000
CUSIP 000000XX0
WASTE MANAGEMENT, INC.
6-1/8% MANDATORILY TENDERED SENIOR NOTE
DUE 2011
WASTE MANAGEMENT, INC. (formerly known as USA WASTE SERVICES, INC.), a
Delaware corporation (the "Company"), for value received, hereby promises to
pay to CEDE & CO. or registered assigns, at the office or agency of the
Company, the principal sum of $200,000,000 U.S. dollars on July 15, 2011 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 on January 15 and July 15 in each year (each an "Interest
Payment Date'), to the person in whose name the Security is registered at the
close of business on the record date for such interest which shall be the
preceding December 31 or June 30, respectively, payable commencing January
15, 1999, with interest on January 15, 1999 consisting of interest accrued
from July 17, 1998.
The rate of interest on this Security shall be 6-1/8% per annum to but
excluding July 15, 2001 (the "Remarketing Date"). If, acting pursuant to the
Remarketing Agreement dated as of July 17, 1998 (the "Remarketing Agreement")
between X.X. Xxxxxx Securities Inc., as Remarketing Dealer (the "Remarketing
Dealer") and the Company, the Remarketing Dealer elects to remarket the
Securities on the Remarketing Date, then, from and including the Remarketing
Date the interest rate on the Securities shall be reset to but excluding July
15, 2011 (the "Stated Maturity Date"), and the rate of interest shall be
determined by the Remarketing Dealer in accordance with the procedures set
forth in Section 4 on the reverse hereof. If the Remarketing Dealer elects
to remarket the Securities on the Remarketing Date, then this Security shall
be subject to mandatory tender to the Remarketing Dealer for remarketing on
such Remarketing Date, on the terms and subject to the conditions set forth
on the reverse hereto. Interest will be computed on the basis of a 360-day
year consisting of twelve 30-day months.
If the Remarketing Dealer for any reason does not purchase all of the
Securities on the Remarketing Date, then the Company shall repurchase on such
Remarketing Date, at a price equal to 100% of the principal amount of the
Securities plus all accrued interest, if any, on the Securities to (but
excluding) the Remarketing Date, any Securities that have not been purchased
by the Remarketing Dealer on the Remarketing Date.
This Security will be redeemable by the Company on and after the
Remarketing Date pursuant to the terms and conditions set forth on the
reverse hereof.
Reference is made to the further provisions of this Security set forth
on the reverse hereof. Such further provisions shall for all purposes have
the same effect as though fully set forth at this place.
The statements in the legend set forth above are an integral part of the
terms of this Security and by acceptance hereof the Holder of this Security
agrees to be subject to, and bound by, the terms and provisions set forth in
such legend.
This Security is issued in respect of a series of Securities of an
aggregate of U.S. $600,000,000 in principal amount designated as the 6-1/8%
Mandatorily Tendered Senior Notes due 2011 of the Company and is governed by
the Indenture dated as of September 10, 1997, duly executed and delivered by
the Company to Chase Bank of Texas, National Association, as trustee (the
"Trustee"), as supplemented by Board Resolutions (as defined in the
Indenture) (such Indenture and Board Resolutions, collectively, the
"Indenture"). The terms of the Indenture are incorporated herein by
reference. This Security shall in all respects be entitled to the same
benefits as definitive Securities under the Indenture.
If and to the extent that any provision of the Indenture limits,
qualifies, or conflicts with any other provision of the Indenture which is
required to be included in the Indenture or is deemed applicable to the
Indenture by virtue of the provisions of the Trust Indenture Act of 1939, as
amended, such required provision shall control.
The Company hereby irrevocably undertakes to the Holder hereof to
exchange this Book-Entry Security in accordance with the terms of the
Indenture without charge.
This Security shall not be valid or become obligatory for any purpose
until the Certificate of Authentication hereon shall have been manually
signed by the Trustee under the Indenture.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
WASTE MANAGEMENT, INC.,
a Delaware corporation
By:
------------------------------------
Xxxx X. XxXxxxxx
Executive Vice President and
Chief Financial Officer
[Corporate Seal]
Attest:
By:
--------------------------------
Xxxxxxx X. Xxxxxxxx
Vice President and Secretary
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
Dated: July 17, 1998
CHASE BANK OF TEXAS, NATIONAL ASSOCIATION, as
Trustee
By:
----------------------------------------------
Authorized Signatory
2
REVERSE OF BOOK-ENTRY SECURITY
WASTE MANAGEMENT, INC.
6-1/8% MANDATORILY TENDERED SENIOR NOTE DUE 2011
This Book-Entry Security is one of a duly authorized issue of Securities
or other evidences of indebtedness of the Company (the "Securities") of the
series hereinafter specified, all issued or to be issued under and pursuant
to the Indenture, to which Indenture 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
Securities. The Securities may be issued in one or more series, which
different series may be issued in various aggregate principal amounts, may
mature at different times, may bear interest (if any) at different rates, may
be subject to different sinking, purchase or analogous funds (if any) and may
otherwise vary as provided in the Indenture. This Security is one of a series
designated as the 6-1/8% Mandatorily Tendered Senior Notes due 2011 of the
Company, limited in aggregate principal amount to $600,000,000. The
Securities are sometimes referred to herein as the "Notes."
1. Definitions.
(a) The following terms have the following meanings:
"Base Rate" means 5.585% per annum.
"Business Day" means any day other than a Saturday or Sunday or
other day on which banking institutions in the City of New York are
authorized or obligated by law, executive order or governmental decree to be
closed.
"Call Price" means the fair market value of the embedded interest
rate option implicit in the Remarketing Dealer's right to purchase at par and
remarket on the Remarketing Date, pursuant to this Agreement, of any Notes
not purchased (due to the prior termination of this Agreement or otherwise)
by the Remarketing Dealer on the Remarketing Date (such principal amount of
Notes, the "Unpurchased Notes"). This amount shall equal:
(i) if the Remarketing Dealer's request for the Call Price
payment is made before the Determination Date, the Commercially
Reasonable Option Value on the date of such request;
(ii) if the Remarketing Dealer's request for the Call Price
payment is made on or after the Determination Date, the amount, if
positive, equal to: (x) the Dollar Price less the Original Amount of
Notes, multiplied by (y) a fraction, the numerator of which is the
Unpurchased Notes and the denominator of which is the Original Amount
of Notes.
"Commercially Reasonable Option Value" means, on any date, the
amount determined by the Remarketing Dealer on such date under Section 6(e)
of the Master Agreement on a "Market Quotation" basis in respect of the
embedded interest rate option implicit in the Remarketing Dealer's option to
purchase at par the Unpurchased Notes on the Remarketing Date, as if a
"Termination Event" had occurred on such specified date under such interest
rate option with respect to the Company under the Master Agreement and the
Company was the "Affected Party". The determination of the Commercially
Reasonable Option Value shall be made using the provisions of the Master
Agreement regardless of any termination of the Master Agreement.
"Comparable Treasury Issue" means the United States Treasury
security selected by the Remarketing Dealer as having an actual maturity on
the Determination Date (or the United States Treasury securities selected by
the Remarketing Dealer to derive an interpolated yield to maturity on such
Determination Date) comparable to the remaining term of the Notes.
"Comparable Treasury Price" means (a) the offer price for the
Comparable Treasury Issue (expressed as a percentage of its principal amount)
on the Determination Date, as set forth on Telerate Page 500 (as defined
below), adjusted to reflect settlement on the Remarketing Date, if prices
quoted on Telerate Page 500 are for settlement on any date other than the
Remarketing Date, or (b) if such page (or any successor page) is not
displayed or does not contain such offer prices on such Business Day, (i) the
average of five Reference Treasury Dealer Quotations (as defined below) for
the Remarketing Date,
3
excluding the highest and lowest of such Reference Treasury Dealer Quotations
(unless there is more than one highest or lowest quotation, in which case
only one such highest and/or lowest quotation shall be excluded), or (ii) if
the Remarketing Dealer obtains fewer than five such Reference Treasury Dealer
Quotations, the average of all such Reference Treasury Dealer Quotations.
The Remarketing Dealer shall have the discretion to select the time at which
the Comparable Treasury Price is determined on the Determination Date.
"Dollar Price" means the discounted present value to the
Remarketing Date of the cash flows on a bond
(i) with a principal amount equal to the aggregate principal
amount of the Notes,
(ii) maturing on the Stated Maturity Date, and
(iii) bearing interest at a rate equal to the Base Rate,
using a discount rate equal to the Treasury Rate (defined below),
payable semi-annually (assuming a 360-day year consisting of twelve 30-day
months) on the Interest Payment Dates of the Notes from and including the
Remarketing Date to but excluding the Stated Maturity Date.
"Master Agreement" means the ISDA Master Agreement dated as of
June 30, 1995 between the Company and X.X. Xxxxxx Securities Inc., as amended
"Original Amount of Notes" means the principal amount of the Notes
issued by the Company on the date hereof.
"Reference Corporate Dealer" means X.X. Xxxxxx Securities Inc.;
Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation; BancAmerica Xxxxxxxxx
Xxxxxxxx; Xxxxx Securities, Inc.; and Deutsche Bank Securities. If any of
such persons shall cease to be a leading dealer of publicly-traded debt
securities of the Company, then the Remarketing Dealer may replace, with the
approval of the Company (not to be unreasonably withheld), such person with
any other leading dealer of publicly-traded debt securities of the Company.
"Reference Treasury Dealer" means a primary U.S. Government
securities dealer in The City of New York (which may include the Remarketing
Dealer) selected by the Remarketing Dealer.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer, the offer price(s) for the Comparable Treasury
Issue (expressed as a percentage of its principal amount) for settlement on
the Remarketing Date, quoted in writing to the Remarketing Dealer by such
Reference Treasury Dealer by 3:30 p.m., New York City time, on the
Determination Date.
"Telerate Page 500" means the display designated as "Telerate Page
500" on Dow Xxxxx Markets Limited (or such other page as may replace Telerate
Page 500 on such service) or such other service displaying the offer prices
specified in clause (a) of the definition of Comparable Treasury Price as may
replace Dow Xxxxx Markets Limited.
"Treasury Rate" means the annual rate equal to the semi-annual
equivalent yield to maturity or interpolated (on a 30/360 day count basis)
yield to maturity on the Determination Date of the Comparable Treasury Issue
(defined above) for value on the Remarketing Date, assuming a price for the
Comparable Treasury Issue (expressed as a percentage of its principal amount)
equal to the Comparable Treasury Price (as defined above).
(b) Capitalized terms herein are used as defined in the Indenture
unless otherwise defined herein.
2. Mandatory Tender on each Remarketing Date; Purchase and Settlement.
On a Business Day not later than fifteen Business Days prior
to the Remarketing Date (the "Notification Date"), the Remarketing Dealer
will notify the Company and the Trustee as to whether it elects to purchase
the Notes on the Remarketing Date. If, and only if, the Remarketing Dealer so
elects, the Notes shall be subject to mandatory tender to the Remarketing
Dealer for purchase and remarketing on the Remarketing Date, upon the terms
and subject to the conditions described herein. The purchase price of the
Notes shall be equal to 100% of the principal amount thereof. No holder or
4
beneficial owner of any Securities shall have any rights or claims under the
Remarketing Agreement or against the Company or the Remarketing Dealer as a
result of the Remarketing Dealer not purchasing such Securities on the
Remarketing Date.
3. Maintenance of Book-Entry System.
(a) The tender and settlement procedures with respect to the
Securities set forth in the Remarketing Agreement shall be subject to
modification, without the consent of the holders of the Securities, to the
extent required by DTC or, if the book-entry system is no longer available
for the Securities at the time of the remarketing, to the extent required to
facilitate the tendering and remarketing of Securities in certificated form.
In addition, the Remarketing Dealer may modify the settlement procedures
without the consent of the holders of the Securities in order to facilitate
the settlement process.
(b) The Company hereby agrees with the Trustee and the holders of
Securities that (i) at all times, it will use its best efforts to maintain
the Securities in book-entry form with DTC or any successor thereto and to
appoint a successor depositary to the extent necessary to maintain the
Securities in book-entry form and (ii) it waives any discretionary right that
it otherwise may have under the Indenture to cause the Securities to be
issued in certificated form.
4. Determination of Reset Interest Rates; Notification Thereto.
The Remarketing Dealer shall determine a new stated interest rate on the
Notes as of the Remarketing Date (the "Interest Rate to Maturity") on the
third Business Day immediately preceding the Remarketing Date (the
"Determination Date") by soliciting by 3:30 p.m., New York City time, the
Reference Corporate Dealers for firm, committed bids to purchase all
outstanding Notes at the Dollar Price and by selecting the lowest such firm,
committed bid (regardless of whether each of the Reference Corporate Dealers
actually submits a bid). Each bid shall be expressed in terms of the Interest
Rate to Maturity that the Notes would bear (quoted as a spread over the Base
Rate), based on the following assumptions:
(i) the Notes would be sold to such Reference Corporate
Dealer on the Remarketing Date for settlement on the same day;
(ii) the Notes would mature on the Stated Maturity Date; and
(iii) the Notes would bear interest from and including the
Remarketing Date to but excluding the Stated Maturity Date at a stated
rate equal to the Interest Rate to Maturity bid by such Reference
Corporate Dealer, payable semi-annually on the interest payment dates
for the Notes.
The Interest Rate to Maturity announced by the Remarketing Dealer
as a result of such process will be quoted to the nearest one
hundred-thousandth (0.00001) of one percent per annum and, absent manifest
error, will be binding and conclusive upon holders of the Notes, the Company
and the Trustee. Except as set forth below, the Remarketing Dealer shall have
the discretion to select the time at which the Interest Rate to Maturity is
determined on the Determination Date.
The Remarketing Dealer shall have the right in its sole discretion
to either (i) remarket the Notes for its own account or (ii) sell the Notes
to the Reference Corporate Dealer submitting the lowest firm, committed bid
pursuant to this section 4. If two or more Reference Corporate Dealers
submit equivalent bids which constitute the lowest firm, committed bid, the
Remarketing Dealer may in its sole discretion elect to sell the Notes to any
such Reference Corporate Dealer.
If the Remarketing Dealer has elected to remarket the Notes as
provided in section 2 and this section 4, then it shall notify the Company,
the Trustee and DTC by telephone, confirmed in writing (which may include
facsimile or other electronic transmission), by 5:00 p.m., New York City
time, on the Determination Date of the Interest Rate to Maturity applicable
to the Notes effective from and including the Remarketing Date.
5. Repurchase.
If the Remarketing Dealer for any reason does not purchase all of the
Securities on the Remarketing Date, then the Company shall repurchase on such
Remarketing Date, at a price equal to 100% of the principal amount of the
Securities plus all accrued interest, if any, on the Securities to (but
excluding) the Remarketing Date, any Securities that have not been purchased
by the Remarketing Dealer on the Remarketing Date.
5
6. Redemption.
(a) On the Remarketing Date.
If the Remarketing Dealer has elected to remarket the Notes on the
Remarketing Date in accordance with sections 2 and 4 hereof, the Company may
irrevocably elect to exercise its right to redeem the Notes, in whole but not
in part, from the Remarketing Dealer on the Remarketing Date, by giving
written notice of such election to the Remarketing Dealer no later than the
later of
(i) the Business Day immediately prior to the Determination Date or
(ii) if fewer than three Reference Corporate Dealers submit firm,
committed bids in accordance with section 4 hereof, immediately after the
deadline set by the Remarketing Dealer for receiving such bids has passed;
and by paying the amount equal to the greater of (x) 100% of the aggregate
principal amount of the Notes and (y) the Dollar Price with respect to such
Notes.
In either such case, the Company shall pay such redemption price for the
Notes in same-day funds by wire transfer on the Remarketing Date to an
account designated by the Remarketing Dealer. For purposes of calculating
the Dollar Price, the Remarketing Dealer shall be deemed to have made the
request for the Dollar Price on the date the Company makes its election to
redeem the Notes.
(b) After the Remarketing Date.
After the Remarketing Date, if the Remarketing Dealer has elected to
remarket the Notes on the Remarketing Date, the Notes will be redeemable (a
"Post-Remarketing Redemption"), in whole or in part, at the option of the
Company at any time at a redemption price equal to the greater of (i) 100% of
the principal amount of such Notes or (ii) the sum of the present values of
the remaining scheduled payments of principal and interest thereon (not
including the portion of any such payments of interest accrued as of the
redemption date) discounted to the redemption date on a semiannual basis
(assuming a 360-day year consisting of twelve 30-day months) at the Adjusted
Treasury Rate (as defined below) (determined on the third Business Day
preceding such redemption date), plus, in each case, accrued and unpaid
interest thereon to (but excluding) the redemption date.
Notice of any Post-Remarketing Redemption will be mailed at least 30
days but not more than 60 days before the redemption date to each holder of
the Notes to be redeemed. Unless the Company defaults in payment of the
redemption price, on and after the redemption date, interest will cease to
accrue on the Notes or portions thereof called for redemption pursuant to a
Post-Remarketing Redemption.
"Adjusted Treasury Rate" means (i) the arithmetic means of the yields
under the heading "Week Ending" published in the Statistical Release most
recently published prior to the date of determination under the caption
"Treasury Constant Maturities" for the maturity (rounded to the nearest
month) corresponding to the remaining life to the maturity, as of the
redemption date, of the principal being redeemed plus (ii) 0.10%. If no
maturity set forth under such heading exactly corresponds to the maturity of
such principal, yields for the two published maturities most closely
corresponding to the maturity of such principal shall be calculated pursuant
to the immediately preceding sentence, and the Adjusted Treasury Rate shall
be interpolated or extrapolated from such yields on a straight-line basis,
rounding in each of the relevant periods to the nearest month.
"Statistical Release" means the statistical release designated
"H.15(519)" or any successor publication which is published weekly by the
Federal Reserve System and which establishes yields on actively-traded United
States government securities adjusted to constant maturities, or, if such
statistical release is not published at the time of any determination under
the terms of the Notes, then such other reasonably comparable index which
shall be designated by the Company.
7. Tax Treatment; Agreement to Tender.
The Company and the holders of this Security (and each holder of a
beneficial interest herein) by accepting this Security, agree to treat the
Notes as fixed rate debt instruments that mature on the Remarketing Date for
United States Federal
6
income tax purposes. Furthermore, each holder of this Security irrevocably
agrees that this Security shall automatically be tendered to the Remarketing
Dealer if the Remarketing Dealer elects to remarket the Securities on the
terms and conditions as set forth herein.
8. Method of Payment.
The Company shall pay interest on the Securities (except Defaulted
Interest) to the persons who are the registered Holders at the close of
business on the Regular Record Date immediately preceding the Interest
Payment Date. Any such interest not so punctually paid ("Defaulted
Interest"), may be paid to the persons who are registered Holders at the
close of business on a Special Record Date for the payment of such Defaulted
Interest, or in any other lawful manner not inconsistent with the
requirements of any securities exchange on which such Securities may then be
listed if such manner of payment shall be deemed practicable by the Trustee,
as more fully provided in the Indenture referred to below. Except as
provided below, the Company shall pay principal and interest in such coin or
currency of the United States of America as at the time of payment shall be
legal tender for payment of public and private debts ("U.S. Legal Tender").
Payments in respect of the Book-Entry Securities (including principal,
premium, if any, and interest) will be made by wire transfer of immediately
available funds to the accounts specified by the Depositary. Payments in
respect of Securities in definitive form (including principal, premium, if
any, and interest) will be made at the office or agency of the Company
maintained for such purpose within the Borough of Manhattan, The City of New
York, or at the option of the Company, payment of interest may be made by
check mailed to the Holders on the Regular Record Date or on the Special
Record Date at their addresses set forth in the Security Register of Holders.
9. Paying Agent and Registrar.
Initially, Chase Bank of Texas, National Association (the "Trustee")
will act as Paying Agent and Registrar. The Company may change any Paying
Agent, Registrar or co-Registrar at any time upon notice to the Trustee and
the Holders. The Company or any of its Subsidiaries may, subject to certain
exceptions, act as Paying Agent, Registrar or co-Registrar.
10. Indenture.
This Security is one of a duly authorized issue of Securities of the
Company issued and to be issued in one or more series under an Indenture,
dated as of September 10, 1997 (the "Indenture"), between the Company and the
Trustee. The terms of the Securities include those stated in the Indenture,
all indentures supplemental thereto, those made part of the Indenture by
reference to the Trust Indenture Act of 1939, as amended, as in effect on the
date of the Indenture, and those terms stated in the Resolutions of the
Pricing Committee of the Board of Directors of the Company dated July 14,
1998 (the "Resolutions"). The Securities are subject to all such terms, and
Holders of Securities are referred to the Indenture, all indentures
supplemental thereto, said Act and said Resolutions for a statement of them.
The Securities of this series are general unsecured obligations of the
Company limited in aggregate principal amount to $600,000,000.
11. Denominations; Transfer; Exchange.
The Securities are issued in registered form, without coupons, in
denominations of $1,000 and integral multiples of $1,000. A Holder may
register the transfer of, or exchange, Securities in accordance with the
Indenture. The Securities Registrar may require a Holder, among other
things, to furnish appropriate endorsements and transfer documents and to pay
any taxes and fees required by law or permitted by the Indenture.
12. Person Deemed Owners.
The registered Holder of a Security may be treated as the owner of it
for all purposes.
13. Amendment; Supplement; Waiver.
Subject to certain exceptions, the Indenture or the Securities may be
amended or supplemented, and any existing Event of Default or compliance with
any provision may be waived, with the written consent of the Holders of a
majority in aggregate principal amount of the Securities then outstanding.
Without notice to or consent of any Holder, the parties thereto may amend or
supplement the Indenture or the Securities to, among other things, cure any
ambiguity, defect or inconsistency, or make any other change that does not
adversely affect the rights of any Holder of a Security. Any such consent or
waiver
7
by the Holder of this Security (unless revoked as provided in the Indenture)
shall be conclusive and binding upon such Holder and upon all future Holders
and owners of this Security and any Securities which may be issued in
exchange or substitution herefor, irrespective of whether or not any notation
thereof is made upon this Security or such other Securities.
14. Defaults and Remedies.
If an Event of Default occurs and is continuing, then in every such
case, the Trustee or the Holders of 25% in aggregate principal amount of the
Securities then outstanding may declare the principal amount of all the
Securities to be due and payable immediately in the manner and with the
effect provided in the Indenture. Notwithstanding the preceding sentence,
however, if at any time after the unpaid principal amount of the Securities
shall have been so declared due and payable and before any judgment or decree
for the payment of the moneys due shall have been obtained or entered as
hereinafter provided, the Company shall pay or shall deposit with the Trustee
a sum sufficient to pay all overdue installments of interest, if any, upon
all of the Securities and the principal of any and all Securities which shall
have become due otherwise than by acceleration and any interest thereon at
the rate prescribed therefor herein and, to the extent that payment of such
interest is lawful, interest upon overdue interest at the rate prescribed
therefor herein, as well as the reasonable compensation, disbursements,
expenses and advances of the Trustee, and any and all defaults under the
Indenture, other than the nonpayment of such portion of the principal amount
of and accrued interest, if any, on such Securities which shall become due by
acceleration, shall have been cured or shall have been waived or provision
deemed by the Trustee to be adequate shall have been made therefor -- then in
every such case the Holders of a majority in aggregate principal amount of
the Securities then Outstanding, by written notice to the Company and to the
Trustee, may rescind and annul such declaration and its consequences; but no
such rescission and annulment shall extend to or shall affect any subsequent
default, or shall impair any right consequent thereon. Holders of Securities
may not enforce the Indenture or the Securities except as provided in the
Indenture. The Trustee may require indemnity satisfactory to it before it
enforces the Indenture or the Securities. Subject to certain limitations,
Holders of a majority in aggregate principal amount of the Securities then
outstanding may direct the Trustee in its exercise of any trust or power.
15. Trustee Dealings with Company.
The Trustee under the Indenture, in its individual or any other
capacity, may make loans to, accept deposits from, and perform services for
the Company or its Affiliates or any subsidiary of the Company's Affiliates,
and may otherwise deal with the Company or its Affiliates as if it were not
the Trustee.
16. Authentication.
This Security shall not be valid until the Trustee or authenticating
agent signs the certificate of authentication on the other side of this
Security.
17. Abbreviations and Defined Terms.
Customary abbreviations may be used in the name of a Holder of a
Security or an assignee, such as: TEN COM (=tenant in common), TEN ENT
(=tenants by the entireties), JT TEN (=joint tenants with right of
survivorship and not as tenants in common), CUST (=Custodian), and U/G/M/A
(=Uniform Gifts to Minors Act).
18. CUSIP Numbers.
Pursuant to a recommendation promulgated by the Committee on Uniform
Note Identification Procedures, the Company will cause CUSIP numbers to be
printed on the Securities as a convenience to the Holders of the Securities.
No representation is made as to the accuracy of such number as printed on the
Securities and reliance may be placed only on the other identification
numbers printed hereon.
19. Absolute Obligation.
No reference herein to the Indenture and no provision of this Security
or the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of and interest on this
Security in the manner, at the respective times, at the rate and in the coin
or currency herein prescribed.
8
20. No Recourse.
No recourse under or upon any obligation, covenant or agreement
contained in the Indenture or in any Security, or because of any indebtedness
evidenced thereby, shall be had against any incorporator, past, present or
future stockholder, officer or director, as such of the Company or of any
successor, either directly or through the Company or of any successor, under
any rule of law, statute or constitutional provision or by the enforcement of
any assessment or by any legal or equitable proceeding or otherwise, all such
liability being expressly waived and released by the acceptance of the
Security by the Holder and as part of the consideration for the issue of the
Security.
21. Governing Law.
This Security shall be construed in accordance with and governed by the
laws of the State of New York.
9
