As filed with the Securities and Exchange Commission on
January 19, 2007
UNITED STATES SECURITIES AND
EXCHANGE COMMISSION
Washington, D.C.
20549
Form S-3
REGISTRATION
STATEMENT
UNDER
THE SECURITIES ACT OF
1933
COVANTA HOLDING
CORPORATION
(Exact name of registrant as
specified in its charter)
|
|
|
Delaware
|
|
95-6021257
|
(State or other jurisdiction
of
incorporation or organization)
|
|
(I.R.S. Employer
Identification No.)
|
40 Lane Road
Fairfield, New Jersey
07004
(973) 882-9000
(Address, including zip code and
telephone number, including area code, of registrants
principal executive offices)
Anthony J. Orlando
President and Chief Executive
Officer
Covanta Holding
Corporation
40 Lane Road
Fairfield, New Jersey
07004
(973) 882-9000
(Name, address, including zip
code, and telephone number, including area code, of agent for
service)
with copies to:
|
|
|
Timothy J. Simpson, Esq.
Senior Vice President, General Counsel and Secretary
Covanta Holding Corporation
40 Lane Road
Fairfield, New Jersey 07004
|
|
David S. Stone, Esq.
Neal, Gerber & Eisenberg LLP
Two North LaSalle Street
Chicago, Illinois 60602
|
Approximate date of commencement of proposed sale to the
public:
FROM TIME TO TIME AFTER THE REGISTRATION
STATEMENT BECOMES EFFECTIVE.
If the only securities being registered on this form are being
offered pursuant to dividend or interest reinvestment plans,
please check the following box:
o
If any of the securities being registered on this form are to be
offered on a delayed or continuous basis pursuant to
Rule 415 under the Securities Act of 1933, other than
securities offered only in connection with dividend or interest
reinvestment plans, check the following box:
þ
If this form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act,
please check the following box and list the Securities Act
registration statement number of the earlier effective
registration statement for the same
offering.
o
If this form is a post-effective amendment filed pursuant to
Rule 462(c) under the Securities Act, check the following
box and list the Securities Act registration statement number of
the earlier effective registration statement for the same
offering.
o
If this form is a registration statement pursuant to General
Instruction I.D. or a post-effective amendment thereto that
shall become effective upon filing with the Commission pursuant
to Rule 462(e) under the Securities Act, check the
following box.
þ
If this form is a post-effective amendment to a registration
statement filed pursuant to General Instruction I.D. filed to
register additional securities or additional classes of
securities pursuant to Rule 413(b) under the Securities
Act, check the following box.
o
CALCULATION OF REGISTRATION FEE
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Proposed Maximum
|
|
|
Proposed Maximum
|
|
|
Amount of
|
Title of Each Class
|
|
|
Amount to be
|
|
|
Offering
|
|
|
Aggregate
|
|
|
Registration
|
of Securities to be Registered
|
|
|
Registered(1)
|
|
|
Price per Share(1)
|
|
|
Offering Price(1)
|
|
|
Fee(1)(2)
|
Common Stock, $0.10 par value per
share
|
|
|
|
|
|
|
|
|
|
|
|
|
Preferred Stock, $0.10 par
value per share
|
|
|
|
|
|
|
|
|
|
|
|
|
Warrants
|
|
|
|
|
|
|
|
|
|
|
|
|
Debt Securities
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1)
|
|
There are being registered under
this registration statement such indeterminate number of shares
of common stock and preferred stock, such indeterminate number
of warrants and such indeterminate principal amount of debt
securities of the Registrant as may from time to time be offered
at indeterminate prices.
|
|
(2)
|
|
In accordance with Rule 456(b)
and Rule 457(r), the Registrant is deferring payment of the
entire registration fee.
|
PROSPECTUS
COVANTA
HOLDING CORPORATION
COMMON STOCK
PREFERRED STOCK
WARRANTS
DEBT SECURITIES
Covanta Holding Corporation may offer, from time to time, common
stock, preferred stock, warrants or debt securities. In
addition, selling stockholders to be named in a prospectus
supplement may offer, from time to time, shares of our common
stock.
We will provide the specific terms of any offering and the
offered securities in supplements to this prospectus. Any
prospectus supplement may also add, update or change information
contained in this prospectus. You should read this prospectus
and the accompanying prospectus supplement carefully before you
make your investment decision.
This prospectus may not be used to consummate any sales of
securities unless accompanied by a prospectus supplement which
will describe the method and terms of the offering.
Our common stock is traded on the New York Stock Exchange under
the symbol CVA. Our principal executive offices are
located at 40 Lane Road, Fairfield, New Jersey 07004, and our
telephone number is
(973) 882-9000.
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved of these
securities or determined if this prospectus is truthful or
complete. Any representation to the contrary is a criminal
offense.
The date of this prospectus is January 19, 2007.
About
This Prospectus
Unless the context otherwise requires, references in this
prospectus to Covanta we,
our, us and similar terms refer to
Covanta Holding Corporation and its subsidiaries; references to
Covanta Energy refer to Covanta Energy Corporation,
a direct wholly-owned subsidiary of Covanta, and its
subsidiaries; references to ARC Holdings refer to
Covanta ARC Holdings, Inc., a direct wholly-owned subsidiary of
Covanta Energy, and its subsidiaries; references to
Ref-Fuel Holdings refer to Covanta Ref-Fuel Holdings
LLC; and references to NAICC refer to National
American Insurance Company of California and its
subsidiaries.
The prospectus is part of a registration statement that we filed
with the Securities and Exchange Commission, referred to in this
prospectus as the SEC, using a shelf
registration process. Under this shelf registration process,
(1) we may, from time to time, sell any combination of
common stock, preferred stock, warrants or debt securities as
described in this prospectus, in one or more offerings and
(2) selling stockholders to be named in a prospectus
supplement may, from time to time, sell common stock in one or
more offerings. This prospectus provides you with a general
description of the securities that we may offer. Each time that
securities are sold, a prospectus supplement containing specific
information about the terms of that offering will be provided.
The prospectus supplement may also add, update or change
information contained in this prospectus. You should read both
this prospectus and any prospectus supplement together with
additional information described under the section entitled
Where You Can Find More Information.
You should rely only on the information contained or
incorporated by reference in this prospectus and any prospectus
supplement. We have not authorized anyone to provide you with
different information. If anyone provides you with different or
inconsistent information, you should not rely on it. Covanta and
the selling stockholders are not making an offer to sell these
securities in any jurisdiction where the offer or sale is not
permitted.
You should assume that the information in this prospectus is
accurate only as of the date of this prospectus.
Where You
Can Find More Information
We are subject to the information and reporting requirements of
the Securities Exchange Act of 1934, under which we file annual,
quarterly and special reports, proxy statements and other
information with the SEC. You may read and copy any materials we
file with the SEC at the SECs public reference room at 100
F Street, N.E., Room 1580, Washington, DC 20549. Copies of
such material also can be obtained at the SECs website,
www.sec.gov
or by mail from the SECs public
reference room, at prescribed rates. Please call the SEC at
1-800-SEC-0330
for further information on the public reference room. Our SEC
filings are also available to the public on our corporate
website,
www.covantaholding.com.
Our common stock is
traded on the New York Stock Exchange. Material filed by us can
be inspected at the offices of the New York Stock Exchange at
20 Broad Street, New York, N.Y. 10005.
Information on our website is not incorporated into this
prospectus or other securities filings and is not a part of
these filings.
Incorporation
By Reference
The SEC allows us to incorporate by reference the
information we file with them, which means that we can disclose
important information to you by referring you to those
documents. The information incorporated by reference is
considered to be part of this prospectus, and information that
we file later with the SEC will automatically update and
supersede this information. We incorporate by reference the
documents listed below which have been filed with the SEC:
1. Our Annual Report on
Form 10-K
for the year ended December 31, 2005, filed on
March 14, 2006;
2. Our Quarterly Report on
Form 10-Q
for the quarterly period ended March 31, 2006, filed on
May 4, 2006, our Quarterly Report on
Form 10-Q
for the quarterly period ended June 30, 2006, filed on
August 3,
1
2006, and our Quarterly Report on
Form 10-Q
for the quarterly period ended September 30, 2006, filed on
October 30, 2006;
3. Covanta Energys Annual Report on
Form 10-K/A
for the fiscal year ended December 31, 2004, filed on
April 22, 2005 (only with respect to the consolidated
financial statements of Covanta Energy and subsidiaries for the
fiscal year ended December 31, 2003);
4. Exhibit No. 99.2 of our Current Report on
Form 8-K
filed on April 7, 2005 (only with respect to the
consolidated financial statements of ARC Holdings (f/k/a
American Ref-Fuel Holdings Corp.) as of December 31, 2004
and 2003 and for the year ended December 31, 2004, the
period from December 12, 2003 through December 31,
2003, and the period from January 1, 2003 through
December 12, 2003 and the consolidated financial statements
of Ref-Fuel Holdings LLC as of December 31, 2004 and 2003
and for the year ended December 31, 2004, the period from
December 12, 2003 through December 31, 2003, the
period from January 1, 2003 through December 12, 2003
and the year ended December 31, 2002);
5. Exhibit No. 99.4 of our Current Report on
Form 8-K/A
filed on May 12, 2005 (only with respect to the
consolidated financial statements of ARC Holdings (f/k/a
American Ref-Fuel Holdings Corp.) as of and for the three months
ended March 31, 2005);
6. Our Current Reports on
Form 8-K
filed on February 24, 2006, March 6, 2006,
March 15, 2006 (as amended by our Current Report on
Form 8-K/A
filed on January 19, 2007), March 20, 2006,
April 3, 2006, April 7, 2006, May 31, 2006,
June 2, 2006, August 17, 2006, September 25,
2006, November 17, 2006, and January 19, 2007; and
7. The description of our common stock on
Form 8-A/A
filed on November 17, 2006.
All documents filed by us under Sections 13(a), 13(c), 14
or 15(d) of the Securities Exchange Act of 1934 (other than any
information furnished pursuant to Item 2.02 or
Item 7.01 of any Current Report on
Form 8-K
unless we specifically state in such Current Report that such
information is to be considered filed under the
Securities Exchange Act of 1934, as amended, which we refer to
as the Exchange Act, or we incorporate it by
reference into a filing under the Securities Act of 1933, as
amended, or the Exchange Act) from the date of this prospectus
until the sale of all securities registered hereunder shall be
deemed to be incorporated by reference in this prospectus. Any
statement contained in this prospectus or in a document
incorporated or deemed to be incorporated by reference herein
shall be deemed to be modified or superseded for purposes of
this prospectus to the extent that a statement contained in any
subsequently filed document which is or is deemed to be
incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to
constitute a part of this prospectus.
We will provide to each person, including any beneficial owner,
to whom a prospectus is delivered, upon written or oral request,
a copy of any or all of the reports or documents that have been
incorporated by reference in this prospectus but not delivered
with the prospectus. You may access a copy of any or all of
these filings, free of charge, at our web site,
www.covantaholding.com
, or by writing us at the following
address or telephoning us at the number below:
Covanta
Holding Corporation
Attn: Gavin A. Bell
40 Lane Road
Fairfield, New Jersey 07004
(973) 882-7001
You may also direct your requests via
e-mail
to
gbell@covantaholding.com
2
Risk
Factors
Please carefully consider the risk factors described in our
periodic reports filed with the SEC, which are incorporated by
reference in this prospectus. Before making investment
decisions, you should carefully consider these risks as well as
other information we include or incorporate by reference in this
prospectus or include in any applicable prospectus supplement.
Additional risks and uncertainties not presently known to us or
that we currently deem immaterial may also impair our business
operations.
Forward-Looking
Statements
This prospectus, the documents incorporated by reference in this
prospectus and other written reports and oral statements made
from time to time by us may contain statements that may
constitute forward-looking statements as defined in
Section 27A of the Securities Act of 1933, as amended,
Section 21E of the Exchange Act, the Private Securities
Litigation Reform Act of 1995, referred to as the
PSLRA in this prospectus, or in releases made by the
SEC, all as may be amended from time to time. Such
forward-looking statements involve known and unknown risks,
uncertainties and other important factors that could cause the
actual results, performance or achievements of us and our
subsidiaries, or industry results, to differ materially from any
future results, performance or achievements expressed or implied
by such forward-looking statements. Statements that are not
historical fact are forward-looking statements. Forward-looking
statements can be identified by, among other things, the use of
forward-looking language, such as the words plan,
believe, expect, anticipate,
intend, estimate, project,
may, will, would,
could, should, seeks, or
scheduled to, or other similar words, or the
negative of these terms or other variations of these terms or
comparable language, or by discussion of strategy or intentions.
These cautionary statements are being made pursuant to the
Securities Act of 1933, as amended, the Exchange Act and the
PSLRA with the intention of obtaining the benefits of the
safe harbor provisions of such laws. We caution
investors that any forward-looking statements made by us are not
guarantees or indicative of future performance. Important
assumptions and other important factors that could cause actual
results to differ materially from those forward-looking
statements with respect to us include, but are not limited to,
the risks and uncertainties affecting our businesses described
in Item 1A Risk Factors of our Annual Report on
Form 10-K
for the year ended December 31, 2005 and in registration
statements and other securities filings by us and our
subsidiaries.
Although we believe that our plans, intentions and expectations
reflected in or suggested by such forward-looking statements are
reasonable, actual results could differ materially from a
projection or assumption in any of its forward-looking
statements. Our future financial condition and results of
operations, as well as any forward-looking statements, are
subject to change and inherent risks and uncertainties. The
forward-looking statements contained in this prospectus and
registration statement are made only as of the date hereof and
we do not have or undertake any obligation to update or revise
any forward-looking statements whether as a result of new
information, subsequent events or otherwise, unless otherwise
required by law.
Covanta
Holding Corporation
We are a holding company incorporated in Delaware on
April 16, 1992. We changed our name as of
September 20, 2005 from Danielson Holding Corporation to
Covanta Holding Corporation. We primarily operate in the waste
and energy markets through Covanta Energy. We acquired Covanta
Energy on March 10, 2004 and acquired ARC Holdings
(formerly known as American Ref-Fuel Holdings Corp.) and
subsidiaries on June 24, 2005. Substantially all of our
operations were conducted in the insurance industry prior to our
acquisition of Covanta Energy through our indirect subsidiaries,
NAICC and related entities.
We are a leading developer, owner and operator of infrastructure
for the conversion of energy-from-waste, waste disposal,
renewable energy production and independent power production in
the United States and abroad. Through our operating
subsidiaries, we own or operate 51 energy generation facilities,
41 of which are in the United States and 10 of which are
located outside of the United States. Our energy generation
facilities use a variety of fuels, including municipal solid
waste, water (hydroelectric), natural gas, coal, wood waste,
landfill gas and heavy fuel oil. We also own or operate several
businesses that are associated with our energy-from-waste
business, including a waste procurement business, two landfills
and several waste transfer stations. We also operate one water
treatment facility which is located in the United States.
3
The fundamental purpose of our energy-from-waste projects is to
provide waste disposal services, typically to municipal clients
who sponsor the projects. The electricity or steam generated is
generally sold to local utilities or industrial customers, and
most of the resulting revenues reduce the overall cost of waste
disposal services to the municipal clients. These projects are
capable of providing waste disposal services and generating
electricity or steam, if properly operated and maintained, for
several decades. Generally, we provide these waste disposal
services and sell the electricity or steam generated under
long-term contracts, which expire on various dates between 2008
and 2027. Many of our service contracts may be renewed for
varying periods of time, at the option of the municipal client.
The nature of our business, the risks attendant to such business
and the trends that we face have been significantly altered by
the acquisitions of Covanta Energy and ARC Holdings.
Accordingly, our financial results prior to the acquisitions of
Covanta Energy in March 2004 and ARC Holdings in June 2005 are
not directly comparable to current and future financial results.
Our principal executive offices are located at 40 Lane Road,
Fairfield, New Jersey 07004, and our telephone number is
(973) 882-9000.
Use of
Proceeds
Unless otherwise indicated in the applicable prospectus
supplement or other offering material, we will use the net
proceeds from the sale of the securities for general corporate
purposes. We will not receive proceeds from sales of our common
stock by selling stockholders except as may otherwise be stated
in an applicable prospectus supplement.
Description
of the Securities
We may issue from time to time, in one or more offerings the
following securities:
|
|
|
|
|
shares of our common stock, $0.10 par value per share;
|
|
|
|
shares of our preferred stock, $0.10 par value per share;
|
|
|
|
warrants exercisable for our common stock; or
|
|
|
|
debt securities.
|
We will set forth in the applicable prospectus supplement a
description of the common stock, preferred stock, warrants or
debt securities that may be offered under this prospectus. The
terms of the offering of securities, the initial offering price
and the net proceeds to us will be contained in the prospectus
supplement, and other offering material, relating to such
offering.
Selling
Stockholders
Information about selling stockholders, where applicable, will
be set forth in a prospectus supplement, in a post-effective
amendment, or in filings we make with the SEC under the Exchange
Act which are incorporated by reference.
Experts
Ernst & Young LLP, independent registered public
accounting firm, has audited our consolidated financial
statements and schedules included in our Annual Report on
Form 10-K
for the year ended December 31, 2005, and managements
assessment of the effectiveness of our internal control over
financial reporting as of December 31, 2005 as set forth in
their reports, which are incorporated by reference in this
prospectus and elsewhere in the registration statement. Our
financial statements and schedules and managements
assessment are incorporated by reference in reliance on
Ernst & Young LLPs reports, given on their
authority as experts in accounting and auditing.
4
The consolidated financial statements of Quezon Power, Inc. as
of December 31, 2005 and 2004, and for each of the years
ended December 31, 2005, 2004 and 2003, incorporated by
reference in this prospectus and registration statement have
been audited by Sycip Gorres Velayo & Co., a member
practice of Ernst & Young Global, independent
registered public accounting firm, as set forth in their report
thereon incorporated by reference in this prospectus and
registration statement and are incorporated in reliance upon
such report given on the authority of such firm as an expert in
accounting and auditing.
The audited historical financial statements as of
December 31, 2004 and 2003, for the year ended
December 31, 2004 and the period from December 12,
2003 to December 31, 2003 of ARC Holdings and Subsidiaries
included in Exhibit 99.2 of our Current Report on
Form 8-K
dated April 7, 2005 have been incorporated by reference in
this prospectus and are so incorporated in reliance on the
report of PricewaterhouseCoopers LLP, an independent registered
public accounting firm, given on the authority of said firm as
experts in auditing and accounting.
The audited historical financial statements for the period from
January 1, 2003 to December 12, 2003 of ARC Holdings
and Subsidiaries included in Exhibit 99.2 of our Current
Report on
Form 8-K
dated April 7, 2005 have been incorporated by reference in
this prospectus and are so incorporated in reliance on the
report of PricewaterhouseCoopers LLP, an independent registered
public accounting firm, given on the authority of said firm as
experts in auditing and accounting.
The audited historical financial statements of Ref-Fuel Holdings
LLC and subsidiaries as of December 31, 2004 and 2003, for
the year ended December 31, 2004 and the period from
December 12, 2003 to December 31, 2003, included in
Exhibit 99.2 of our Current Report on
Form 8-K
dated April 7, 2005 have been incorporated by reference in
this prospectus and have been so incorporated in reliance on the
report of PricewaterhouseCoopers LLP, an independent registered
public accounting firm, given on the authority of said firm as
experts in auditing and accounting.
The audited historical financial statements of Ref-Fuel Holdings
LLC and subsidiaries for the period from January 1, 2003
through December 12, 2003, included in Exhibit 99.2 of
our Current Report on
Form 8-K
dated April 7, 2005 have been incorporated by reference in
this prospectus and have been so incorporated in reliance on the
report of PricewaterhouseCoopers LLP, an independent registered
public accounting firm, given on the authority of said firm as
experts in auditing and accounting.
The audited historical financial statements of Ref-Fuel Holdings
LLC and subsidiaries for the period from January 1, 2003 to
December 12, 2003 and for the year ended December 31,
2002, have been incorporated by reference herein in reliance on
the report of PricewaterhouseCoopers LLP, an independent
registered public accounting firm, given on the authority of
said firm as experts in auditing and accounting.
The consolidated financial statements and the related financial
statement schedules of Covanta Energy (Debtor in Possession) and
subsidiaries as of December 31, 2003 and for each of the
two years in the period ended December 31, 2003,
incorporated into this prospectus by reference from the Annual
Report on
Form 10-K/A
of Covanta Energy for the year ended December 31, 2004,
have been audited by Deloitte & Touche LLP, an
independent registered public accounting firm, as stated in
their report (which report expresses an unqualified opinion and
includes explanatory paragraphs relating to Covanta Energy and
various domestic subsidiaries having filed voluntary petitions
for reorganization under Chapter 11 of the Federal
Bankruptcy Code, the Bankruptcy Court having entered an order
confirming Covanta Energys plan of reorganization which
became effective after the close of business on March 10,
2004, substantial doubt about Covanta Energys ability to
continue as a going concern, Covanta Energys adoption of
Statement of Financial Accounting Standards, referred to in this
prospectus as SFAS, No. 143, Accounting
for Asset Retirement Obligations in 2003,
SFAS No. 142, Goodwill and Other Intangible
Assets, SFAS No. 144, Accounting for the
Impairment or Disposal of Long-Lived Assets in 2002, and
the restatements described in Note 35) which is
incorporated by reference herein, and have been so incorporated
in reliance upon the report of such firm given upon their
authority as experts in accounting and auditing.
Legal
Matters
The validity of the securities offered hereby will be passed
upon for us by Neal, Gerber & Eisenberg LLP of Chicago,
Illinois.
5
PART II
INFORMATION
NOT REQUIRED IN THIS PROSPECTUS
|
|
Item 14.
|
Other
Expenses of Issuance and Distribution.
|
The following table sets forth the various expenses in
connection with the sale and distribution of securities being
registered, other than discounts, concessions and brokerage
commissions. All amounts set forth below are estimates.
|
|
|
|
|
SEC registration fee
|
|
$
|
|
*
|
Legal fees and expenses
|
|
|
50,000
|
|
Accounting fees and expenses
|
|
|
20,000
|
|
Miscellaneous
|
|
|
5,000
|
|
|
|
|
|
|
Total
|
|
$
|
75,000
|
|
|
|
|
|
|
We will bear all of the foregoing expenses.
|
|
|
*
|
|
We are deferring payment of the registration fee in reliance on
Rule 456(b) and Rule 457(r) under the Securities Act.
|
|
**
|
|
Estimate
|
|
|
Item 15.
|
Indemnification
of Directors and Officers.
|
Under Section 145 of Delaware General Corporation Law
(DGCL), a corporation has the authority to indemnify
any person who was or is a party or is threatened to be made a
party to an action (other than an action by or in the right of
the corporation) by reason of such persons service as a
director or officer of the corporation, or such persons
service, at the corporations request, as a director,
officer, employee or agent of another corporation or other
enterprise, against amounts paid and expenses incurred in
connection with the defense or settlement of such action, if
such person acted in good faith and in a manner such person
reasonably believed to be in or not opposed to the
corporations best interests and, with respect to any
criminal action or proceeding, had no reasonable cause to
believe that such persons conduct was unlawful. If such
person has been judged liable to the corporation in any action
or proceeding brought by or in the right of the corporation,
however, indemnification is only permitted to the extent that
the adjudicating court (or the court in which the action was
brought) determines, despite the adjudication of liability, that
such indemnification is proper.
As permitted by Section 145 of DGCL, our restated
certificate of incorporation and by-laws authorize us to
indemnify any officer, director and employee of ours against
amounts paid or expenses incurred in connection with any action,
suit or proceeding (other than any such action by or in the
right of the corporation) to which such person is threatened to
be made a party as a result of such positions if the Board of
Directors or stockholders or independent legal counsel to us, in
a written opinion, determine that indemnification is proper.
|
|
|
|
|
Exhibit No.
|
|
Description
|
|
|
1
|
.1*
|
|
Form of Underwriting Agreement.
|
|
3
|
.1**
|
|
Restated Certificate of
Incorporation of Covanta Holding Corporation (incorporated
herein by reference to Exhibit 3.1 of Covanta Holding
Corporations Current Report on
8-K
dated
January 19, 2007 and filed with the SEC on January 19,
2007).
|
|
3
|
.2**
|
|
Amended and Restated Bylaws of
Covanta Holding Corporation (incorporated herein by reference to
Exhibit 3.1 of Covanta Holding Corporations Current
Report on
Form 8-K
dated September 7, 2004 and filed with the SEC on
September 9, 2004).
|
|
4
|
.1
|
|
Indenture for Senior Debt
Securities.
|
|
5
|
.1
|
|
Legal Opinion of Neal,
Gerber & Eisenberg LLP.
|
|
23
|
.1
|
|
Consent of Neal, Gerber &
Eisenberg LLP (included as part of Exhibit 5.1).
|
II-1
|
|
|
|
|
Exhibit No.
|
|
Description
|
|
|
23
|
.2
|
|
Consent of Independent Registered
Public Accounting Firm of Covanta Holding Corporation and
Subsidiaries, dated January 18, 2007, by Ernst &
Young LLP.
|
|
23
|
.3
|
|
Consent of Independent Registered
Public Accounting Firm of Quezon Power, Inc., dated
January 16, 2007, by Sycip Gorres Velayo & Co., a
Member Practice of Ernst & Young Global.
|
|
23
|
.4
|
|
Consent of Independent Registered
Public Accounting Firm of Covanta ARC Holdings, Inc. and
Subsidiaries, dated January 17, 2007, by
PricewaterhouseCoopers LLP for their report dated March 15,
2005.
|
|
23
|
.5
|
|
Consent of Independent Registered
Public Accounting Firm of Covanta ARC Holdings, Inc. and
Subsidiaries, dated January 17, 2007, by
PricewaterhouseCoopers LLP for their report dated June 30,
2004.
|
|
23
|
.6
|
|
Consent of Independent Registered
Public Accounting Firm of Covanta Ref-Fuel Holdings LLC and
Subsidiaries, dated January 17, 2007, by
PricewaterhouseCoopers LLP for their report dated March 15,
2005.
|
|
23
|
.7
|
|
Consent of Independent Registered
Public Accounting Firm of Covanta Ref-Fuel Holdings LLC and
subsidiaries, dated January 17, 2007, by
PricewaterhouseCoopers LLP for their report dated March 29,
2004.
|
|
23
|
.8
|
|
Consent of Independent Registered
Public Accounting Firm of Covanta Energy Corporation and
Subsidiaries, dated January 16, 2007, by
Deloitte & Touche LLP.
|
|
24
|
.1
|
|
Powers of Attorney (included as
part of the signature page of this Registration Statement).
|
|
25
|
.1
|
|
Statement of Eligibility of
Trustee on
Form T-1
for the Debt Securities.
|
|
|
|
*
|
|
To be filed by a post-effective amendment or as an exhibit to a
document to be incorporated by reference herein.
|
|
**
|
|
Not filed herewith but incorporated herein by reference.
|
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration
statement:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change
in the information set forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered)
and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to
Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than 20 percent change in the
maximum aggregate offering price set forth in the
Calculation of Registration Fee table in the
effective registration statement.
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in the
registration statement or any material change to such
information in the registration statement.
Provided, however, that paragraphs (i), (ii) and
(iii) do not apply if the information required to be
included in a post-effective amendment by those paragraphs is
contained in reports filed with or furnished to the Commission
by the registrant pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934 that
are incorporated by reference in the registration statement, or
is contained in a form of prospectus filed pursuant to
Rule 424(b) that is part of the registration statement.
II-2
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial
bona fide
offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being registered
which remain unsold at the termination of the offering.
(4) That, for the purpose of determining liability under
the Securities Act of 1933 to any purchaser:
(i) Each prospectus filed by the registrant pursuant to
Rule 424(b)(3) shall be deemed to be part of the
registration statement as of the date the filed prospectus was
deemed part of and included in the registration
statement; and
(ii) Each prospectus required to be filed pursuant to
Rule 424(b)(2), (b)(5) or (b)(7) as part of a registration
statement in reliance on Rule 430B relating to an offering
made pursuant to Rule 415(a)(1)(i), (vii) or
(x) for the purpose of providing the information required
by Section 10(a) of the Securities Act of 1933 shall be
deemed to be part of and included in the registration statement
as of the earlier of the date such form of prospectus is first
used after effectiveness or the date of the first contract of
sale of securities in the offering described in the prospectus.
As provided in Rule 430B, for liability purposes of the
issuer and any person that is at that date an underwriter, such
date shall be deemed to be a new effective date of the
registration statement relating to the securities in the
registration statement to which the prospectus relates, and the
offering of such securities at that time shall be deemed to be
the initial
bona fide
offering thereof. Provided,
however, that no statement made in a registration statement or
prospectus that is part of the registration statement or made in
a document incorporated or deemed incorporated by reference into
the registration statement or prospectus that is part of the
registration statement will, as to a purchaser with a time of
contract of sale prior to such effective date, supersede or
modify any statement that was made in the registration statement
or prospectus that was part of the registration statement or
made in any such document immediately prior to such effective
date.
(5) That, for the purpose of determining liability of the
registrant under the Securities Act of 1933 to any purchaser in
the initial distribution of the securities:
The undersigned registrant undertakes that in a primary offering
of securities of the undersigned registrant pursuant to this
registration statement, regardless of the underwriting method
used to sell the securities to the purchaser, if the securities
are offered or sold to such purchaser by means of any of the
following communications, the undersigned registrant will be a
seller to the purchaser and will be considered to offer or sell
such securities to such purchaser:
(i) Any preliminary prospectus or prospectus of the
undersigned registrant relating to the offering required to be
filed pursuant to Rule 424;
(ii) Any free writing prospectus relating to the offering
prepared by or on behalf of the registrant or used or referred
to by the registrant;
(iii) The portion of any other free writing prospectus
relating to the offering containing material information about
the undersigned registrant or its securities provided by or on
behalf of the undersigned registrant; and
(iv) Any other communication that is an offer in the
offering made by the undersigned registrant to the purchaser.
(6) That, for purposes of determining any liability under
the Securities Act of 1933, each filing of the registrants
annual report pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each
filing of an employee benefit plans annual report pursuant
to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the registration
statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial
bona fide
offering thereof.
II-3
(7) To file an application for the purpose of determining
the eligibility of the trustee to act under
subsection (a) of Section 310 of the
Trust Indenture Act in accordance with the rules and
regulations by the Commission under Section 305(b)(2) of
the Trust Indenture Act.
(b) Insofar as indemnification for liabilities arising
under the Securities Act of 1933 may be permitted to directors,
officers and controlling persons of the registrant pursuant to
the foregoing provisions, or otherwise, the registrant has been
advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as
expressed in the Securities Act of 1933 and is, therefore,
unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer
or controlling person of the registrant in the successful
defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the
securities being registered, that the registrant will, unless in
the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act of 1933
and will be governed by the final adjudication of such issue.
II-4
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable ground to believe
that it meets all the requirements for filing on
Form S-3
and has duly caused this registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the
City of Fairfield, State of New Jersey, on January 19, 2007.
COVANTA HOLDING CORPORATION
(Registrant)
|
|
|
|
By:
|
/s/
ANTHONY
J. ORLANDO
|
Anthony J. Orlando
President and Chief Executive Officer
KNOW ALL PERSONS BY THESE PRESENTS, that each of the undersigned
persons whose signature appears below constitutes and appoints
ANTHONY J. ORLANDO and TIMOTHY J. SIMPSON, and each of them,
with power to act without the other, such undersigned
persons true and lawful
attorneys-in-fact
and agents with full power of substitution and resubstitution,
for such person and in his or her respective name, place and
stead, in any and all capacities, to sign, execute and file this
registration statement on
Form S-3,
and any and all amendments thereto, and to file the same, with
all exhibits thereto and all documents in connection therewith,
with the Securities and Exchange Commission, or any other
governmental or regulatory authority, granting unto each said
attorneys-in-fact
and each of them, full power and authority to do and perform
each and every act and thing requisite and necessary to be done
in connection therewith, as fully for all intents and purposes
as such undersigned person might or could do in person, hereby
ratifying and confirming all that said
attorneys-in-fact
or any of them, or his or her substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Registration Statement on
Form S-3
has been signed on January 19, 2007 by the following
persons in the capacities indicated:
|
|
|
|
|
Signature
|
|
Title
|
|
/s/ SAMUEL
ZELL
Samuel
Zell
|
|
Chairman of the Board
|
|
|
|
/s/ ANTHONY
J. ORLANDO
Anthony
J. Orlando
|
|
President and Chief Executive
Officer and Director
(Principal Executive Officer)
|
|
|
|
/s/ MARK
A. PYTOSH
Mark
A. Pytosh
|
|
Senior Vice President and Chief
Financial Officer
(Principal Financial Officer)
|
|
|
|
/s/ THOMAS
E. BUCKS
Thomas
E. Bucks
|
|
Vice President and Chief
Accounting Officer
(Principal Accounting Officer)
|
|
|
|
/s/ DAVID
M. BARSE
David
M. Barse
|
|
Director
|
|
|
|
/s/ RONALD
J. BROGLIO
Ronald
J. Broglio
|
|
Director
|
II-5
|
|
|
|
|
Signature
|
|
Title
|
|
/s/ PETER
C.B. BYNOE
Peter
C.B. Bynoe
|
|
Director
|
|
|
|
/s/ RICHARD
L. HUBER
Richard
L. Huber
|
|
Director
|
|
|
|
/s/ WILLIAM
C. PATE
William
C. Pate
|
|
Director
|
|
|
|
/s/ ROBERT
S. SILBERMAN
Robert
S. Silberman
|
|
Director
|
|
|
|
/s/ JEAN
SMITH
Jean
Smith
|
|
Director
|
|
|
|
/s/ CLAYTON
YEUTTER
Clayton
Yeutter
|
|
Director
|
II-6
EXHIBIT INDEX
|
|
|
|
|
Exhibit No.
|
|
Description
|
|
|
1
|
.1*
|
|
Form of Underwriting Agreement.
|
|
3
|
.1**
|
|
Restated Certificate of
Incorporation of Covanta Holding Corporation (incorporated
herein by reference to Exhibit 3.1 of Covanta Holding
Corporations Current Report on
8-K
dated
January 19, 2007 and filed with the SEC on January 19,
2007).
|
|
3
|
.2**
|
|
Amended and Restated Bylaws of
Covanta Holding Corporation (incorporated herein by reference to
Exhibit 3.1 of Covanta Holding Corporations Current
Report on
Form 8-K
dated September 7, 2004 and filed with the SEC on
September 9, 2004).
|
|
4
|
.1
|
|
Indenture for Senior Debt
Securities.
|
|
5
|
.1
|
|
Legal Opinion of Neal,
Gerber & Eisenberg LLP.
|
|
23
|
.1
|
|
Consent of Neal, Gerber &
Eisenberg LLP (included as part of Exhibit 5.1).
|
|
23
|
.2
|
|
Consent of Independent Registered
Public Accounting Firm of Covanta Holding Corporation and
Subsidiaries, dated January 18, 2007, by Ernst &
Young LLP.
|
|
23
|
.3
|
|
Consent of Independent Registered
Public Accounting Firm of Quezon Power, Inc., dated
January 16, 2007, by Sycip Gorres Velayo & Co., a
Member Practice of Ernst & Young Global.
|
|
23
|
.4
|
|
Consent of Independent Registered
Public Accounting Firm of Covanta ARC Holdings, Inc. and
Subsidiaries, dated January 17, 2007, by
PricewaterhouseCoopers LLP for their report dated March 15,
2005.
|
|
23
|
.5
|
|
Consent of Independent Registered
Public Accounting Firm of Covanta ARC Holdings, Inc. and
Subsidiaries, dated January 17, 2007, by
PricewaterhouseCoopers LLP for their report dated June 30,
2004.
|
|
23
|
.6
|
|
Consent of Independent Registered
Public Accounting Firm of Covanta Ref-Fuel Holdings LLC and
Subsidiaries, dated January 17, 2007, by
PricewaterhouseCoopers LLP for their report dated March 15,
2005.
|
|
23
|
.7
|
|
Consent of Independent Registered
Public Accounting Firm of Covanta Ref-Fuel Holdings LLC and
subsidiaries, dated January 17, 2007, by
PricewaterhouseCoopers LLP for their report dated March 29,
2004.
|
|
23
|
.8
|
|
Consent of Independent Registered
Public Accounting Firm of Covanta Energy Corporation and
Subsidiaries, dated January 16, 2007, by
Deloitte & Touche LLP.
|
|
24
|
.1
|
|
Powers of Attorney (included as
part of the signature page of this Registration Statement).
|
|
25
|
.1
|
|
Statement of Eligibility of
Trustee on
Form T-1
for the Debt Securities.
|
|
|
|
*
|
|
To be filed by a post-effective amendment or as an exhibit to a
document to be incorporated by reference herein.
|
|
**
|
|
Not filed herewith but incorporated herein by reference.
|
COVANTA HOLDING CORPORATION
INDENTURE
Dated
as of January 18, 2007
Wells
Fargo Bank, National Association
Trustee
TABLE OF CONTENTS
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Page
|
|
ARTICLE I. DEFINITIONS AND INCORPORATION BY REFERENCE
|
|
|
2
|
|
|
|
|
|
|
|
|
|
|
|
|
Section 1.1
|
|
Definitions
|
|
|
2
|
|
|
|
Section 1.2
|
|
Other Definitions
|
|
|
8
|
|
|
|
Section 1.3
|
|
Incorporation by Reference of Trust Indenture Act
|
|
|
8
|
|
|
|
Section 1.4
|
|
Rules of Construction
|
|
|
8
|
|
|
|
|
|
|
|
|
|
|
ARTICLE II. THE SECURITIES
|
|
|
9
|
|
|
|
|
|
|
|
|
|
|
|
|
Section 2.1
|
|
Issuable in Series
|
|
|
9
|
|
|
|
Section 2.2
|
|
Establishment of Terms of Series of Securities
|
|
|
9
|
|
|
|
Section 2.3
|
|
Execution and Authentication
|
|
|
11
|
|
|
|
Section 2.4
|
|
Registrar and Paying Agent
|
|
|
12
|
|
|
|
Section 2.5
|
|
Paying Agent to Hold Money in Trust
|
|
|
13
|
|
|
|
Section 2.6
|
|
Securityholder Lists
|
|
|
13
|
|
|
|
Section 2.7
|
|
Transfer and Exchange
|
|
|
14
|
|
|
|
Section 2.8
|
|
Mutilated, Destroyed, Lost and Stolen Securities
|
|
|
14
|
|
|
|
Section 2.9
|
|
Outstanding Securities
|
|
|
15
|
|
|
|
Section 2.10
|
|
Treasury Securities
|
|
|
15
|
|
|
|
Section 2.11
|
|
Temporary Securities
|
|
|
15
|
|
|
|
Section 2.12
|
|
Cancellation
|
|
|
16
|
|
|
|
Section 2.13
|
|
Defaulted Interest
|
|
|
16
|
|
|
|
Section 2.14
|
|
Global Securities
|
|
|
16
|
|
|
|
Section 2.15
|
|
CUSIP or similar Numbers
|
|
|
17
|
|
|
|
|
|
|
|
|
|
|
ARTICLE III. REDEMPTION
|
|
|
17
|
|
|
|
|
|
|
|
|
|
|
|
|
Section 3.1
|
|
Notice to Trustee
|
|
|
17
|
|
|
|
Section 3.2
|
|
Selection of Securities to be Redeemed
|
|
|
18
|
|
|
|
Section 3.3
|
|
Notice of Redemption
|
|
|
18
|
|
|
|
Section 3.4
|
|
Effect of Notice of Redemption
|
|
|
19
|
|
|
|
Section 3.5
|
|
Deposit of Redemption Price
|
|
|
19
|
|
|
|
Section 3.6
|
|
Securities Redeemed in Part
|
|
|
19
|
|
|
|
|
|
|
|
|
|
|
ARTICLE IV. COVENANTS
|
|
|
19
|
|
|
|
|
|
|
|
|
|
|
|
|
Section 4.1
|
|
Payment of Principal and Interest
|
|
|
19
|
|
|
|
Section 4.2
|
|
SEC Reports
|
|
|
19
|
|
|
|
Section 4.3
|
|
Compliance Certificate
|
|
|
20
|
|
|
|
Section 4.4
|
|
Stay, Extension and Usury Laws
|
|
|
20
|
|
|
|
Section 4.5
|
|
Corporate Existence
|
|
|
20
|
|
|
|
Section 4.6
|
|
Taxes
|
|
|
21
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Page
|
|
ARTICLE V. SUCCESSORS
|
|
|
21
|
|
|
|
|
|
|
|
|
|
|
|
|
Section 5.1
|
|
When Company May Merge, Etc
|
|
|
21
|
|
|
|
Section 5.2
|
|
Successor Corporation Substituted
|
|
|
21
|
|
|
|
|
|
|
|
|
|
|
ARTICLE VI. DEFAULTS AND REMEDIES
|
|
|
22
|
|
|
|
|
|
|
|
|
|
|
|
|
Section 6.1
|
|
Events of Default
|
|
|
22
|
|
|
|
Section 6.2
|
|
Acceleration of Maturity; Rescission and Annulment
|
|
|
23
|
|
|
|
Section 6.3
|
|
Collection of Indebtedness and Suits for Enforcement by Trustee
|
|
|
24
|
|
|
|
Section 6.4
|
|
Trustee May File Proofs of Claim
|
|
|
25
|
|
|
|
Section 6.5
|
|
Trustee May Enforce Claims Without Possession of Securities
|
|
|
26
|
|
|
|
Section 6.6
|
|
Application of Money Collected.
|
|
|
26
|
|
|
|
Section 6.7
|
|
Limitation on Suits
|
|
|
26
|
|
|
|
Section 6.8
|
|
Unconditional Right of Holders to Receive Principal and Interest
|
|
|
27
|
|
|
|
Section 6.9
|
|
Restoration of Rights and Remedies
|
|
|
27
|
|
|
|
Section 6.10
|
|
Rights and Remedies Cumulative
|
|
|
27
|
|
|
|
Section 6.11
|
|
Delay or Omission Not Waiver
|
|
|
27
|
|
|
|
Section 6.12
|
|
Control by Holders
|
|
|
28
|
|
|
|
Section 6.13
|
|
Waiver of Past Defaults
|
|
|
28
|
|
|
|
Section 6.14
|
|
Undertaking for Costs
|
|
|
28
|
|
|
|
|
|
|
|
|
|
|
ARTICLE VII. TRUSTEE
|
|
|
29
|
|
|
|
|
|
|
|
|
|
|
|
|
Section 7.1
|
|
Duties of Trustee
|
|
|
29
|
|
|
|
Section 7.2
|
|
Rights of Trustee
|
|
|
30
|
|
|
|
Section 7.3
|
|
Individual Rights of Trustee
|
|
|
31
|
|
|
|
Section 7.4
|
|
Trustees Disclaimer
|
|
|
31
|
|
|
|
Section 7.5
|
|
Notice of Defaults
|
|
|
31
|
|
|
|
Section 7.6
|
|
Reports by Trustee to Holders
|
|
|
31
|
|
|
|
Section 7.7
|
|
Compensation and Indemnity
|
|
|
32
|
|
|
|
Section 7.8
|
|
Replacement of Trustee
|
|
|
32
|
|
|
|
Section 7.9
|
|
Successor Trustee by Merger, Etc
|
|
|
33
|
|
|
|
Section 7.10
|
|
Eligibility; Disqualification
|
|
|
33
|
|
|
|
Section 7.11
|
|
Preferential Collection of Claims Against Company
|
|
|
34
|
|
|
|
|
|
|
|
|
|
|
ARTICLE VIII. NOTE GUARANTEES
|
|
|
34
|
|
|
|
|
|
|
|
|
|
|
|
|
Section 8.1
|
|
Guarantee
|
|
|
34
|
|
|
|
Section 8.2
|
|
Limitation on Guarantor Liability
|
|
|
35
|
|
|
|
Section 8.3
|
|
Execution and Delivery of Note Guarantee
|
|
|
35
|
|
|
|
Section 8.4
|
|
Guarantors May Consolidate, etc., on Certain Terms
|
|
|
36
|
|
|
|
Section 8.5
|
|
Releases
|
|
|
36
|
|
|
|
|
|
|
|
|
|
|
ARTICLE IX. SATISFACTION AND DISCHARGE; DEFEASANCE
|
|
|
37
|
|
|
|
|
|
|
|
|
|
|
|
|
Section 9.1
|
|
Satisfaction and Discharge of Indenture
|
|
|
37
|
|
|
|
Section 9.2
|
|
Application of Trust Funds; Indemnification
|
|
|
38
|
|
|
|
Section 9.3
|
|
Legal Defeasance of Securities of any Series
|
|
|
39
|
|
ii
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Page
|
|
|
|
Section 9.4
|
|
Covenant Defeasance
|
|
|
41
|
|
|
|
Section 9.5
|
|
Repayment to Company
|
|
|
42
|
|
|
|
Section 9.6
|
|
Reinstatement
|
|
|
42
|
|
|
|
|
|
|
|
|
|
|
ARTICLE X. AMENDMENTS AND WAIVERS
|
|
|
42
|
|
|
|
|
|
|
|
|
|
|
|
|
Section 10.1
|
|
Without Consent of Holders
|
|
|
42
|
|
|
|
Section 10.2
|
|
With Consent of Holders
|
|
|
43
|
|
|
|
Section 10.3
|
|
Limitations
|
|
|
44
|
|
|
|
Section 10.4
|
|
Compliance with Trust Indenture Act
|
|
|
44
|
|
|
|
Section 10.5
|
|
Revocation and Effect of Consents
|
|
|
45
|
|
|
|
Section 10.6
|
|
Notation on or Exchange of Securities
|
|
|
45
|
|
|
|
Section 10.7
|
|
Trustee Protected
|
|
|
45
|
|
|
|
|
|
|
|
|
|
|
ARTICLE XI. MISCELLANEOUS
|
|
|
45
|
|
|
|
|
|
|
|
|
|
|
|
|
Section 11.1
|
|
Trust Indenture Act Controls
|
|
|
45
|
|
|
|
Section 11.2
|
|
Notices
|
|
|
45
|
|
|
|
Section 11.3
|
|
Communication by Holders with Other Holders
|
|
|
46
|
|
|
|
Section 11.4
|
|
Certificate and Opinion as to Conditions Precedent
|
|
|
46
|
|
|
|
Section 11.5
|
|
Statements Required in Certificate or Opinion
|
|
|
47
|
|
|
|
Section 11.6
|
|
Rules by Trustee and Agents
|
|
|
47
|
|
|
|
Section 11.7
|
|
Legal Holidays
|
|
|
47
|
|
|
|
Section 11.8
|
|
No Recourse Against Others
|
|
|
47
|
|
|
|
Section 11.9
|
|
Counterparts
|
|
|
47
|
|
|
|
Section 11.10
|
|
Governing Laws
|
|
|
48
|
|
|
|
Section 11.11
|
|
No Adverse Interpretation of Other Agreements
|
|
|
48
|
|
|
|
Section 11.12
|
|
Successors
|
|
|
48
|
|
|
|
Section 11.13
|
|
Severability
|
|
|
48
|
|
|
|
Section 11.14
|
|
Table of Contents, Headings, Etc
|
|
|
48
|
|
|
|
Section 11.15
|
|
Securities in a Foreign Currency or in ECU
|
|
|
48
|
|
|
|
Section 11.16
|
|
Judgment Currency
|
|
|
49
|
|
|
|
|
|
|
|
|
|
|
ARTICLE XII. SINKING FUNDS
|
|
|
49
|
|
|
|
|
|
|
|
|
|
|
|
|
Section 12.1
|
|
Applicability of Article
|
|
|
50
|
|
|
|
Section 12.2
|
|
Satisfaction of Sinking Fund Payments with Securities
|
|
|
50
|
|
|
|
Section 12.3
|
|
Redemption of Securities for Sinking Fund
|
|
|
50
|
|
iii
COVANTA HOLDING CORPORATION
Reconciliation and tie between Trust Indenture Act of 1939 and
Indenture, dated as of January 18, 2007
|
|
|
Section 310(a)(1)
|
|
7.10
|
(a)(2)
|
|
7.10
|
(a)(3)
|
|
Not Applicable
|
(a)(4)
|
|
Not Applicable
|
(a)(5)
|
|
7.10
|
(b)
|
|
7.10
|
Section 311(a)
|
|
7.11
|
(b)
|
|
7.11
|
(c)
|
|
Not Applicable
|
Section 312(a)
|
|
2.6
|
(b)
|
|
10.3
|
(c)
|
|
10.3
|
Section 313(a)
|
|
7.6
|
(b)(1)
|
|
7.6
|
(b)(2)
|
|
7.6
|
(c)(1)
|
|
7.6
|
(d)
|
|
7.6
|
Section 314(a)
|
|
4.2, 10.5
|
(b)
|
|
Not Applicable
|
(c)(1)
|
|
10.4
|
(c)(2)
|
|
10.4
|
(c)(3)
|
|
Not Applicable
|
(d)
|
|
Not Applicable
|
(e)
|
|
10.5
|
(f)
|
|
Not Applicable
|
Section 315(a)
|
|
7.1
|
(b)
|
|
7.5
|
(c)
|
|
7.1
|
(d)
|
|
7.1
|
(e)
|
|
6.14
|
Section 316(a)
|
|
2.10
|
(a)(1)(A)
|
|
6.12
|
(a)(1)(B)
|
|
6.13
|
(b)
|
|
6.8
|
Section 317(a)(1)
|
|
6.3
|
(a)(2)
|
|
6.4
|
(b)
|
|
2.5
|
Section 318(a)
|
|
10.1
|
|
Note: This reconciliation and tie
shall not, for any purpose, be
deemed to be part of the Indenture.
|
Indenture
dated as of January 18, 2007 between Covanta Holding Corporation, a Delaware
corporation (Company), and Wells Fargo Bank, National
Association (Trustee).
Each party agrees as follows for the benefit of the other party and for the equal and ratable
benefit of the Holders of the Securities issued under this Indenture.
ARTICLE I.
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.1
Definitions
.
Additional Amounts means any additional amounts that are required hereby or by any of the
terms of the Security, including the terms of any applicable Board Resolution, supplemental
indenture or Officers Certificate, under circumstances specified herein or therein, to be paid by
the Company in respect of certain taxes imposed on Holders specified therein and that are owing to
such Holders.
Affiliate of any specified person means any other person directly or indirectly controlling
or controlled by or under direct or indirect common control with such specified person. For the
purposes of this definition, control (including, with correlative meanings, the terms controlled
by and under common control with), as used with respect to any person, shall mean the
possession, directly or indirectly, of the power to direct or cause the direction of the management
or policies of such person, whether through the ownership of voting securities or by agreement or
otherwise.
Agent means any Registrar, Paying Agent, Service Agent or authenticating agent.
Authorized Newspaper means a newspaper in an official language of the country of publication
customarily published at least once a day for at least five days in each calendar week and of
general circulation in the place in connection with which the term is used. If it shall be
impractical to make any publication of any notice required hereby in an Authorized Newspaper, any
publication or other notice in lieu thereof that is made or given by the Trustee shall constitute a
sufficient publication of such notice.
Bearer means anyone in possession from time to time of a Bearer Security.
Bearer Security means any Security, including any interest coupon appertaining thereto, that
does not provide for the identification of the Holder thereof.
Board of Directors means the Board of Directors of the Company or any duly authorized
committee thereof.
Board Resolution means a copy of a resolution certified by the Secretary or an Assistant
Secretary of the Company to have been adopted by the Board of Directors or pursuant to
authorization by the Board of Directors and to be in full force and effect on the date of the
certificate and delivered to the Trustee.
2
Business Day means, unless otherwise provided by Board Resolution, Officers Certificate or
supplemental indenture hereto for a particular Series, any day except a Saturday, Sunday or a legal
holiday in The City of New York, New York, or the office of the Paying Agent, on which banking
institutions are authorized or required by law, regulation or executive order to close.
Capital Stock means:
(a) in the case of a corporation, corporate stock;
(b) in the case of an association or business entity, any and all shares, interests,
participations, rights or other equivalents (however designated) of corporate stock;
(c) in the case of a partnership or limited liability company, partnership interests
(whether general or limited) or membership interests; and
(d) any other interest or participation that confers on a person the right to receive a
share of the profits and losses of, or distributions of assets of, the issuing Person, but
excluding from all of the foregoing any debt securities convertible into Capital Stock,
whether or not such debt securities include any right of participation with Capital Stock.
Company means the party named as such in the first paragraph of this instrument until a
successor replaces it in accordance with the terms hereby and thereafter means the successor.
Company Order means a written order signed in the name of the Company by two Officers, one
of whom must be the Companys chief executive officer, chief financial officer or principal
accounting officer.
Company Request means a written request signed in the name of the Company by its Chief
Executive Officer, Chairman of the Board, President or a Vice President, and by its Treasurer, an
Assistant Treasurer, its Secretary or an Assistant Secretary, and delivered to the Trustee.
Corporate Trust Office means the office of the Trustee at which at any particular time its
corporate trust business shall be principally administered.
Debt of any person as of any date means, without duplication, all indebtedness of such
person in respect of borrowed money, including all interest, fees and expenses owed in respect
thereto (whether or not the recourse of the lender is to the whole of the assets of such person or
only to a portion thereof), or evidenced by bonds, notes, debentures or similar instruments.
Default means any event that is, or after notice or passage of time would be, an
Event of Default.
3
Depository means, with respect to the Securities of any Series issuable or issued in whole
or in part in the form of one or more Global Securities, the person designated as Depository for
such Series by the Company, which Depository shall be a clearing agency registered under the
Exchange Act; and if at any time there is more than one such person, Depository as used with
respect to the Securities of any Series shall mean the Depository with respect to the Securities of
such Series.
Discount Security means any Security that provides for an amount less than the stated
principal amount thereof to be due and payable upon declaration of acceleration of the maturity
thereof pursuant to Section 6.2.
Dollars means the currency issued by The United States of America.
ECU means the European Currency Unit as determined by the Commission of the European Union.
Equity Interests means 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).
Exchange Act means the Securities Exchange Act of 1934, as amended.
Foreign Currency means any currency or currency unit issued by a government other than the
government of The United States of America.
Foreign Government Obligations means with respect to Securities of any Series that are
denominated in a Foreign Currency, (i) direct obligations of the government that issued or caused
to be issued such currency for the payment of which obligations its full faith and credit is
pledged or (ii) obligations of a person controlled or supervised by or acting as an agency or
instrumentality of such government the timely payment of which is unconditionally guaranteed as a
full faith and credit obligation by such government, which, in either case under clauses (i) or
(ii), are not callable or redeemable at the option of the issuer thereof.
Global Security or Global Securities means a Security or Securities, as the case may be,
in the form established pursuant to Section 2.2 evidencing all or part of a Series of Securities,
issued to the Depository for such Series or its nominee, and registered in the name of such
Depository or nominee.
Guarantors means any person or Subsidiary of the Company that executes a Note Guarantee in
accordance with the provisions of this Indenture, and their respective successors and assigns, in
each case, until the Note Guarantee of such person has been released in accordance with the
provisions of the indenture.
Holder or Securityholder means a person in whose name a Security is registered or the
holder of a Bearer Security.
Indenture means this Indenture as amended from time to time and shall include the form and
terms of particular Series of Securities established as contemplated hereunder.
4
interest with respect to any Discount Security which by its terms bears interest only after
Maturity, means interest payable after Maturity.
Lien means, with respect to any asset, any mortgage, lien, pledge, charge, security interest
or encumbrance of any kind in respect of such asset, whether or not filed, recorded or otherwise
perfected under applicable law, including any conditional sale or other title retention agreement,
any lease in the nature thereof, any option or other agreement to sell or give a security interest
in and any filing of or agreement to give any financing statement under the Uniform Commercial Code
(or equivalent statutes) of any jurisdiction.
Maturity, when used with respect to any Security or installment of principal thereof, means
the date on which the principal of such Security or such installment of principal becomes due and
payable as therein or herein provided, whether at the Stated Maturity or by declaration of
acceleration, call for redemption, notice of option to elect repayment or otherwise.
Net Proceeds means the aggregate cash proceeds received by the Company or any of its
Subsidiaries in respect of any asset sale (including, without limitation, any cash received upon
the sale or other disposition of any non-cash consideration received in any asset sale), net of the
direct costs relating to such asset sale (including, without limitation, legal, accounting and
investment banking fees, and sales commissions) and any relocation expenses incurred as a result
thereof, taxes paid or payable as a result thereof (after taking into account any available tax
credits or deductions and any tax sharing arrangements), amounts required to be applied to the
repayment of Indebtedness secured by a Lien on the asset or assets that were the subject of such
asset sale and any reserve for adjustment in respect of the sale price of such asset or assets
established in accordance with GAAP.
Non-Recourse Debt means Indebtedness:
(a) as to which neither the Company nor any of its Restricted Subsidiaries (a) provides
credit support of any kind (including any undertaking, agreement or instrument that would
constitute Indebtedness), (b) is directly or indirectly liable as a guarantor or otherwise,
or (c) constitutes the lender;
(b) no default with respect to which (including any rights that the holders of the
Indebtedness may have to take enforcement action against an Unrestricted Subsidiary) would
permit upon notice, lapse of time or both any holder of any other Indebtedness of the
Company or any of its Restricted Subsidiaries to declare a default on such other
Indebtedness or cause the payment of the Indebtedness to be accelerated or payable prior to
its Stated Maturity; and
(c) as to which the lenders have been notified in writing that they will not have any
recourse to the stock or assets of the Company or any of its Restricted Subsidiaries.
Officer means the Chief Executive Officer, Chairman of the Board, the
President, any Vice-President, the Treasurer, the Secretary, any Assistant Treasurer or any
Assistant Secretary of the Company.
5
Officers Certificate means a certificate signed by two Officers, one of whom must be the
Companys principal executive officer, principal financial officer or principal accounting officer.
Opinion of Counsel means a written opinion of legal counsel who is acceptable to the
Trustee. The counsel may be an employee of or counsel to the Company.
person means any individual, corporation, partnership, joint venture, association, limited
liability company, joint-stock company, trust, unincorporated organization or government or any
agency or political subdivision thereof.
principal of a Security means the principal of the Security plus, when appropriate, the
premium, if any, on, and any Additional Amounts in respect of, the Security.
Responsible Officer means any officer of the Trustee with direct responsibility for the
administration of the Indenture and also means, with respect to a particular corporate trust
matter, any other officer to whom any corporate trust matter is referred because of his or her
knowledge of and familiarity with a particular subject.
Restricted Subsidiary of a person means any Subsidiary of the referent person that is not an
Unrestricted Subsidiary.
SEC means the Securities and Exchange Commission.
Securities means the debentures, notes or other debt instruments of the Company of any
Series authenticated and delivered under this Indenture.
Series or Series of Securities means each series of debentures, notes or other debt
instruments of the Company created pursuant to Section 2.1 and 2.2 hereof.
Significant Subsidiary means (i) any direct or indirect Subsidiary of the Company that would
be a significant subsidiary as defined in Article 1, Rule 1-02 of Regulation S-X, promulgated
pursuant to the Securities Act of 1933, as amended, as such regulation is in effect on the date
hereof, or (ii) any group of direct or indirect Subsidiaries of the Company that, taken together as
a group, would be a significant subsidiary as defined in Article 1, Rule 1-02 of Regulation S-X,
promulgated pursuant to the Securities Act of 1933, as amended, as such regulation is in effect on
the date hereof.
Stated Maturity when used with respect to any Security or any installment of principal
thereof or interest thereon, means the date specified in such Security as the fixed date on which
the principal of such Security or such installment of principal or interest is due and payable.
Subsidiary of any specified person means any corporation of which at least a majority of the
outstanding stock having by the terms thereof ordinary voting power for the
election of directors of such corporation (irrespective of whether or not at the time stock of
any other class or classes of such corporation shall have or might have voting power by reason of
the happening of any contingency) is at the time directly or indirectly owned by such person, or by
6
one or more other Subsidiaries, or by such person and one or more other Subsidiaries.
TIA means the Trust Indenture Act of 1939, as amended and as in effect on the date of this
Indenture;
provided
,
however
, that in the event the Trust Indenture Act of 1939 is
amended after such date, TIA means, to the extent required by any such amendment, the Trust
Indenture Act as so amended.
Trustee means the person named as such in the first paragraph of this instrument until a
successor Trustee shall have become such pursuant to the applicable provisions of this Indenture,
and thereafter Trustee shall mean or include each person who is then a Trustee hereunder, and if
at any time there is more than one such person, Trustee as used with respect to the Securities of
any Series shall mean the Trustee with respect to Securities of that Series.
Unrestricted Subsidiary means any Subsidiary of the Company that is designated by the Board
of Directors of the Company as an Unrestricted Subsidiary pursuant to a resolution of the Board of
Directors, but only to the extent that such Subsidiary:
(a) has no Indebtedness other than Non-Recourse Debt;
(b) except as permitted under this Indenture, is not party to any agreement, contract,
arrangement or understanding with the Company or any Restricted Subsidiary of the Company
unless the terms of any such agreement, contract, arrangement or understanding are no less
favorable to the Company or such Restricted Subsidiary than those that might be obtained at
the time from persons who are not Affiliates of the Company;
(c) is a person with respect to which neither the Company nor any of its Restricted
Subsidiaries has any direct or indirect obligation (a) to subscribe for additional Equity
Interests or (b) to maintain or preserve such persons financial condition or to cause such
person to achieve any specified levels of operating results; and
(d) has not guaranteed or otherwise directly or indirectly provided credit support for
any Indebtedness of the Company or any of its Restricted Subsidiaries.
U.S. Government Obligations means securities that are (i) direct obligations of The United
States of America for the payment of which its full faith and credit is pledged or (ii) obligations
of a person controlled or supervised by and acting as an agency or instrumentality of The United
States of America the payment of which is unconditionally guaranteed as a full faith and credit
obligation by The United States of America, and which in the case of (i) and (ii) are not callable
or redeemable at the option of the issuer thereof, and shall also include a depository receipt
issued by a bank or trust company as custodian with respect to any such U.S. Government Obligation
or a specific payment of interest on or principal of any such U.S. Government Obligation held by
such custodian for the account of the holder of a depository receipt,
provided
that (except as
required by law) such custodian is not authorized to make any deduction from the
amount payable to the holder of such depository receipt from any amount received by the
custodian in respect of the U.S. Government Obligation evidenced by such depository receipt.
7
Section 1.2
Other Definitions
.
|
|
|
|
|
|
|
DEFINED IN
|
TERM
|
|
SECTION
|
Bankruptcy Law
|
|
|
6.1
|
|
Custodian
|
|
|
6.1
|
|
Event of Default
|
|
|
6.1
|
|
Journal
|
|
|
11.15
|
|
Judgment Currency
|
|
|
11.16
|
|
Legal Holiday
|
|
|
11.7
|
|
mandatory sinking fund payment
|
|
|
12.1
|
|
Market Exchange Rate
|
|
|
11.15
|
|
New York Banking Day
|
|
|
11.16
|
|
Paying Agent
|
|
|
2.4
|
|
Registrar
|
|
|
2.4
|
|
Required Currency
|
|
|
11.16
|
|
Service Agent
|
|
|
2.4
|
|
successor person
|
|
|
5.1
|
|
Section 1.3
Incorporation by Reference of Trust Indenture Act
.
Whenever this Indenture refers to a provision of the TIA, the provision is incorporated by
reference in and made a part of this Indenture. The following TIA terms used in this Indenture
have the following meanings:
Commission means the SEC.
indenture securities means the Securities.
indenture security holder means a Securityholder.
indenture to be qualified means this Indenture.
indenture trustee or institutional trustee means the Trustee.
obligor on the indenture securities means the Company and any successor
obligor upon the Securities.
All other terms used in this Indenture that are defined by the TIA, defined by TIA reference
to another statute or defined by SEC rule under the TIA and not otherwise defined herein are used
herein as so defined.
Section 1.4
Rules of Construction
.
Unless the context otherwise requires:
(a) a term has the meaning assigned to it;
8
(b) an accounting term not otherwise defined has the meaning assigned to it in
accordance with generally accepted accounting principles;
(c) references to generally accepted accounting principles shall mean generally
accepted accounting principles in effect as of the time when and for the period as to which
such accounting principles are to be applied;
(d) or is not exclusive;
(e) words in the singular include the plural, and in the plural include the singular;
and
(f) provisions apply to successive events and transactions.
ARTICLE II.
THE SECURITIES
Section 2.1
Issuable in Series
.
The aggregate principal amount of Securities that may be authenticated and delivered under
this Indenture is unlimited. The Securities may be issued in one or more Series. All Securities of
a Series shall be identical except as may be set forth in a Board Resolution, a supplemental
indenture or an Officers Certificate detailing the adoption of the terms thereof pursuant to the
authority granted under a Board Resolution. In the case of Securities of a Series to be issued from
time to time, the Board Resolution, Officers Certificate or supplemental indenture may provide for
the method by which specified terms (such as interest rate, maturity date, record date or date from
which interest shall accrue) are to be determined. Securities may differ between Series in respect
of any matters, provided that all Series of Securities shall be equally and ratably entitled to the
benefits of the Indenture.
Section 2.2
Establishment of Terms of Series of Securities
.
At or prior to the issuance of any Securities within a Series, the following shall be
established (as to the Series generally, in the case of Subsection 2.2.1 and either as to such
Securities within the Series or as to the Series generally in the case of Subsections 2.2.2 through
2.2.23) by a Board Resolution, a supplemental indenture or an Officers Certificate pursuant to
authority granted under a Board Resolution:
2.2.1 the title of the Series (which shall distinguish the Securities of that particular
Series from the Securities of any other Series);
2.2.2 the price or prices (expressed as a percentage of the principal amount thereof) at which
the Securities of the Series will be issued;
2.2.3 any limit upon the aggregate principal amount of the Securities of the Series which may
be authenticated and delivered under this Indenture (except for Securities authenticated and
delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of
the Series pursuant to Section 2.7, 2.8, 2.11, 3.6 or 10.6);
9
2.2.4 the date or dates on which the principal of the Securities of the Series is payable;
2.2.5 the rate or rates (which may be fixed or variable) per annum or, if applicable, the
method used to determine such rate or rates (including, but not limited to, any commodity,
commodity index, stock exchange index or financial index) at which the Securities of the Series
shall bear interest, if any, the date or dates from which such interest, if any, shall accrue, the
date or dates on which such interest, if any, shall commence and be payable and any regular record
date for the interest payable on any interest payment date;
2.2.6 the place or places where the principal of and interest, if any, on the Securities of
the Series shall be payable, or the method of such payment, if by wire transfer, mail or other
means, and where the Securities of such Series may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Company in respect of the Securities of such
Series and this Indenture may be served;
2.2.7 if applicable, the period or periods within which, the price or prices at which and the
terms and conditions upon which the Securities of the Series may be redeemed, in whole or in part,
at the option of the Company;
2.2.8 the obligation, if any, of the Company to redeem or purchase the Securities of the
Series pursuant to any sinking fund or analogous provisions or at the option of a Holder thereof
and the period or periods within which, the price or prices at which and the terms and conditions
upon which Securities of the Series shall be redeemed or purchased, in whole or in part, pursuant
to such obligation;
2.2.9 the dates, if any, on which and the price or prices at which the Securities of the
Series will be repurchased by the Company at the option of the Holders thereof and other detailed
terms and provisions of such repurchase obligations;
2.2.10 if other than denominations of $1,000 and any integral multiple thereof, the
denominations in which the Securities of the Series shall be issuable;
2.2.11 the forms of the Securities of the Series in bearer or fully registered form (and, if
in fully registered form, whether the Securities will be issuable as Global Securities);
2.2.12 if other than the principal amount thereof, the portion of the principal amount of the
Securities of the Series that shall be payable upon declaration of acceleration of the maturity
thereof pursuant to Section 6.2;
2.2.13 the currency of denomination of the Securities of the Series, which may be Dollars or
any Foreign Currency, including, but not limited to, the ECU, and if such currency of denomination
is a composite currency other than the ECU, the agency or organization, if any, responsible for
overseeing such composite currency;
2.2.14 the designation of the currency, currencies or currency units in which payment of the
principal of and interest, if any, on the Securities of the Series will be made;
10
2.2.15 if payments of principal of or interest, if any, on the Securities of the Series are to
be made in one or more currencies or currency units other than that or those in which such
Securities are denominated, the manner in which the exchange rate with respect to such payments
will be determined;
2.2.16 the manner in which the amounts of payment of principal of or interest, if any, on the
Securities of the Series will be determined, if such amounts may be determined by reference to an
index based on a currency or currencies or by reference to a commodity, commodity index, stock
exchange index or financial index;
2.2.17 the provisions, if any, relating to any security provided for the Securities of the
Series;
2.2.18 if the holders of Securities of the Series may convert or exchange the Securities into
or for securities of the Company or of other entities or other property, the period or periods
within which, the rate or rates at which and the terms and conditions upon which Securities of the
Series may be converted or exchanged, in whole or in part;
2.2.19 any addition to or change in the Events of Default which applies to any Securities of
the Series and any change in the right of the Trustee or the requisite Holders of such Securities
to declare the principal amount thereof due and payable pursuant to Section 6.2;
2.2.20 any addition to or change in the covenants set forth in Articles IV or V which applies
to Securities of the Series;
2.2.21 any other terms of the Securities of the Series (which terms shall not be inconsistent
with the provisions of this Indenture, except as permitted by Section 10.1, but which may modify or
delete any provision of this Indenture insofar as it applies to such Series); and
2.2.22 any depositories, interest rate calculation agents, exchange rate calculation agents or
other agents with respect to Securities of such Series if other than those appointed herein;
2.2.23 the provisions, if any, relating to any security or guarantee provided for the
Securities of the Series;
2.2.24 All Securities of any one Series need not be issued at the same time and may be issued
from time to time, consistent with the terms of this Indenture, if so provided by or pursuant to
the Board Resolution, supplemental indenture or Officers Certificate referred to above, and the
authorized principal amount of any Series may not be increased to provide for issuances of
additional Securities of such Series, unless otherwise provided in such Board Resolution,
supplemental indenture or Officers Certificate.
Section 2.3
Execution and Authentication
.
Two Officers shall sign the Securities for the Company by manual or facsimile signature.
11
If an Officer whose signature is on a Security no longer holds that office at the time the
Security is authenticated, the Security shall nevertheless be valid.
A Security shall not be valid until authenticated by the manual signature of the Trustee or an
authenticating agent. The signature shall be conclusive evidence that the Security has been
authenticated under this Indenture.
The Trustee shall at any time, and from time to time, authenticate Securities for original
issue in the principal amount provided in the applicable Board Resolution, supplemental indenture
or Officers Certificate, upon receipt by the Trustee of a Company Order. Such Company Order may
authorize authentication and delivery pursuant to oral or electronic instructions from the Company
or its duly authorized agent or agents, which oral instructions shall be promptly confirmed in
writing. Each Security shall be dated the date of its authentication unless otherwise provided by
the applicable Board Resolution, supplemental indenture or Officers Certificate.
The aggregate principal amount of Securities of any Series outstanding at any time may not
exceed any limit upon the maximum principal amount for such Series set forth in the Board
Resolution, supplemental indenture hereto or Officers Certificate delivered pursuant to Section
2.2, except as provided in Section 2.8.
Prior to the issuance of Securities of any Series, the Trustee shall have received and
(subject to Section 7.2) shall be fully protected in relying on: (a) the Board Resolution,
supplemental indenture hereto or Officers Certificate establishing the form of the Securities of
that Series or of Securities within that Series and the terms of the Securities of that Series or
of Securities within that Series, (b) an Officers Certificate complying with Section 11.4, and (c)
an Opinion of Counsel complying with Section 11.4.
The Trustee shall have the right to decline to authenticate and deliver any Securities of such
Series: (a) if the Trustee, being advised by counsel, determines that such action may not lawfully
be taken; or (b) if the Trustee in good faith by its board of directors or trustees, executive
committee or a trust committee of directors and/or vice-presidents shall determine that such action
would expose the Trustee to personal liability to Holders of any then outstanding Series of
Securities.
The Trustee may appoint an authenticating agent acceptable to the Company to authenticate
Securities. An authenticating agent may authenticate Securities whenever the Trustee may do so.
Each reference in this Indenture to authentication by the Trustee includes authentication by such
agent. An authenticating agent has the same rights as an Agent to deal with the Company or an
Affiliate.
Section 2.4
Registrar and Paying Agent
.
The Company shall maintain, with respect to each Series of Securities, at the place or places
specified with respect to such Series pursuant to Section 2.2, an office or agency where Securities
of such Series may be presented or surrendered for payment (Paying Agent), where Securities of
such Series may be surrendered for registration of transfer or exchange (Registrar) and where
notices and demands to or upon the Company in respect of the
12
Securities of such Series and this
Indenture may be served (Service Agent). The Registrar shall keep a register with respect to
each Series of Securities and to their transfer and exchange. The Company will give prompt written
notice to the Trustee of the name and address, and any change in the name or address, of each
Registrar, Paying Agent or Service Agent. If at any time the Company shall fail to maintain any
such required Registrar, Paying Agent or Service Agent or shall fail to furnish the Trustee with
the name and address thereof, such presentations, surrenders, notices and demands may be made or
served at the Corporate Trust Office of the Trustee, and the Company hereby appoints the Trustee as
its agent to receive all such presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more co-registrars, additional paying
agents or additional service agents and may from time to time rescind such designations;
provided
,
however
, that no such designation or rescission shall in any manner
relieve the Company of its obligations to maintain a Registrar, Paying Agent and Service Agent in
each place so specified pursuant to Section 2.2 for Securities of any Series for such purposes.
The Company will give prompt written notice to the Trustee of any such designation or rescission
and of any change in the name or address of any such co-registrar, additional paying agent or
additional service agent. The term Registrar includes any co-registrar; the term Paying Agent
includes any additional paying agent; and the term Service Agent includes any additional service
agent.
The Company hereby appoints the Trustee the initial Registrar, Paying Agent and Service Agent
for each Series unless another Registrar, Paying Agent or Service Agent, as the case may be, is
appointed prior to the time Securities of that Series are first issued.
Section 2.5
Paying Agent to Hold Money in Trust
.
The Company shall require each Paying Agent other than the Trustee to agree in writing that
the Paying Agent will hold in trust, for the benefit of Securityholders of any Series of
Securities, or the Trustee, all money held by the Paying Agent for the payment of principal of or
interest on the Series of Securities, and will notify the Trustee of any default by the Company
in making any such payment. While any such default continues, the Trustee may require a
Paying Agent to pay all money held by it to the Trustee. The Company at any time may require a
Paying Agent to pay all money held by it to the Trustee. Upon payment over to the Trustee, the
Paying Agent (if other than the Company or a Subsidiary) shall have no further liability for the
money. If the Company or a Subsidiary acts as Paying Agent, it shall segregate and hold in a
separate trust fund for the benefit of Securityholders of any Series of Securities all money held
by it as Paying Agent.
Section 2.6
Securityholder Lists
.
The Trustee shall preserve in as current a form as is reasonably practicable the most recent
list available to it of the names and addresses of Securityholders of each Series of Securities and
shall otherwise comply with TIA Section 312(a). If the Trustee is not the Registrar, the Company
shall furnish to the Trustee at least ten days before each interest payment date and at such other
times as the Trustee may request in writing a list, in such form and as of such date as the Trustee
may reasonably require, of the names and addresses of Securityholders of each Series of Securities.
13
Section 2.7
Transfer and Exchange
.
Where Securities of a Series are presented to the Registrar or a co-registrar with a request
to register a transfer or to exchange them for an equal principal amount of Securities of the same
Series, the Registrar shall register the transfer or make the exchange if its requirements for such
transactions are met. To permit registrations of transfers and exchanges, the Trustee shall
authenticate Securities at the Registrars request. No service charge shall be made for any
registration of transfer or exchange (except as otherwise expressly permitted herein), but the
Company may require payment of a sum sufficient to cover any transfer tax or similar governmental
charge payable in connection therewith (other than any such transfer tax or similar governmental
charge payable upon exchanges pursuant to Sections 2.11, 3.6 or 10.6).
Neither the Company nor the Registrar shall be required (a) to issue, register the transfer
of, or exchange Securities of any Series for the period beginning at the opening of business 15
days immediately preceding the mailing of a notice of redemption of Securities of that Series
selected for redemption and ending at the close of business on the day of such mailing, or (b) to
register the transfer of or exchange Securities of any Series selected, called or being called for
redemption as a whole or the portion being redeemed of any such Securities selected, called or
being called for redemption in part.
Section 2.8
Mutilated, Destroyed, Lost and Stolen Securities
.
If any mutilated Security is surrendered to the Trustee, the Company shall execute and the
Trustee shall authenticate and deliver in exchange therefor a new Security of the same
Series and of like tenor and principal amount and bearing a number not contemporaneously
outstanding.
If there shall be delivered to the Company and the Trustee (i) evidence to their satisfaction
of the destruction, loss or theft of any Security and (ii) such security or indemnity as may be
required by them to save each of them and any agent of either of them harmless, then, in the
absence of notice to the Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and upon its request the Trustee shall authenticate and make
available for delivery, in lieu of any such destroyed, lost or stolen Security, a new Security of
the same Series and of like tenor and principal amount and bearing a number not contemporaneously
outstanding.
In case any such mutilated, destroyed, lost or stolen Security has become or is about to
become due and payable, the Company in its discretion may, instead of issuing a new Security, pay
such Security.
Upon the issuance of any new Security under this Section, the Company may require the payment
of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of the Trustee) connected
therewith.
Every new Security of any Series issued pursuant to this Section in lieu of any destroyed,
lost or stolen Security shall constitute an original additional contractual obligation of the
Company, whether or not the destroyed, lost or stolen Security shall be at any time
14
enforceable by
anyone, and shall be entitled to all the benefits of this Indenture equally and proportionately
with any and all other Securities of that Series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the extent lawful) all
other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost
or stolen Securities.
Section 2.9
Outstanding Securities
.
Subject to Section 2.10, the Securities outstanding at any time are all the Securities
authenticated by the Trustee except for those canceled by it, those delivered to it for
cancellation, those reductions in the interest on a Global Security effected by the Trustee in
accordance with the provisions hereof and those described in this Section as not outstanding.
If a Security is replaced pursuant to Section 2.8, it ceases to be outstanding until the
Trustee receives proof satisfactory to it that the replaced Security is held by a bona fide
purchaser.
If the Paying Agent (other than the Company, a Subsidiary or an Affiliate of any thereof)
holds on the Maturity of Securities of a Series money sufficient to pay such Securities payable on
that date, then on and after that date such Securities of the Series cease to be outstanding and
interest on them ceases to accrue.
Notwithstanding Section 2.10, a Security does not cease to be outstanding because the Company
or an Affiliate holds the Security.
In determining whether the Holders of the requisite principal amount of outstanding Securities
have given any request, demand, authorization, direction, notice, consent or waiver hereunder, the
principal amount of a Discount Security that shall be deemed to be outstanding for such purposes
shall be the amount of the principal thereof that would be due and payable as of the date of such
determination upon a declaration of acceleration of the Maturity thereof pursuant to Section 6.2.
Section 2.10
Treasury Securities
.
In determining whether the Holders of the required principal amount of Securities of a Series
have concurred in any request, demand, authorization, direction, notice, consent or waiver
Securities of a Series owned by the Company or an Affiliate shall be disregarded, except that for
the purposes of determining whether the Trustee shall be protected in relying on any such request,
demand, authorization, direction, notice, consent or waiver only Securities of a Series that the
Trustee knows are so owned shall be so disregarded.
Section 2.11
Temporary Securities
.
Until definitive Securities are ready for delivery, the Company may prepare and the Trustee
shall authenticate temporary Securities upon a Company Order. Temporary Securities shall be
substantially in the form of definitive Securities but may have variations that the Company
considers appropriate for temporary Securities. Without unreasonable delay, the
15
Company shall prepare and the Trustee upon request shall authenticate definitive Securities of
the same Series and date of maturity in exchange for temporary Securities. Until so exchanged,
temporary Securities shall have the same rights under this Indenture as the definitive Securities.
Section 2.12
Cancellation
.
The Company at any time may deliver Securities to the Trustee for cancellation. The Registrar
and the Paying Agent shall forward to the Trustee any Securities surrendered to them for
registration of transfer, exchange or payment. The Trustee shall cancel all Securities surrendered
for transfer, exchange, payment, replacement or cancellation and shall destroy such canceled
Securities (subject to the record retention requirement of the Exchange Act) and deliver a
certificate of such destruction to the Company. The Company may not issue new Securities to
replace Securities that it has paid or delivered to the Trustee for cancellation.
Section 2.13
Defaulted Interest
.
If the Company defaults in a payment of interest on a Series of Securities, it shall pay the
defaulted interest, plus, to the extent permitted by law, any interest payable on the defaulted
interest, on the next regularly scheduled interest payment date to holders of record entitled to
receive such next regularly scheduled interest payment, provided however, if the Company so elects
it may make such payment to the persons who are Securityholders of the Series on a subsequent
special record date. The Company shall fix the record date and payment date. At least 10 days
before the record date, the Company shall mail to the Trustee and to each Securityholder of the
Series a notice that states the record date, the payment date and the amount of interest to be
paid. The Company may pay defaulted interest in any other lawful manner.
Section 2.14
Global Securities
.
2.14.1
Terms of Securities
. A Board Resolution, a supplemental indenture hereto or an
Officers Certificate shall establish whether the Securities of a Series shall be issued in whole
or in part in the form of one or more Global Securities and the Depository for such Global Security
or Securities.
2.14.2
Transfer and Exchange
. Notwithstanding any provisions to the contrary
contained in Section 2.7 of the Indenture and in addition thereto, any Global Security shall be
exchangeable pursuant to Section 2.7 of the Indenture for Securities registered in the names of
Holders other than the Depository for such Security or its nominee only if (i) such Depository
notifies the Company that it is unwilling or unable to continue as Depository for such Global
Security or if at any time such Depository ceases to be a clearing agency registered under the
Exchange Act, and, in either case, the Company fails to appoint a successor Depository within 90
days of such event, (ii) the Company executes and delivers to the Trustee an Officers Certificate
to the effect that such Global Security shall be so exchangeable or (iii) an Event of Default with
respect to the Securities represented by such Global Security shall have happened and be
continuing. Any Global Security that is exchangeable pursuant to the preceding sentence shall be
exchangeable for Securities registered in such names as the Depository shall direct in writing in
an aggregate principal amount equal to the principal amount of the Global Security with like tenor
and terms.
16
Except as provided in this Section 2.14.2, a Global Security may not be transferred except as
a whole by the Depository with respect to such Global Security to a nominee of such Depository, by
a nominee of such Depository to such Depository or another nominee of such Depository or by the
Depository or any such nominee to a successor Depository or a nominee of such a successor
Depository.
2.14.3
Legend
. Unless otherwise provided pursuant to Section 2.2, any Global Security
issued hereunder shall bear a legend in substantially the following form:
This Security is a Global Security within the meaning of the Indenture hereinafter referred
to and is registered in the name of the Depository or a nominee of the Depository. This Security
is exchangeable for Securities registered in the name of a person other than the Depository or its
nominee only in the limited circumstances described in the Indenture, and may not be transferred
except as a whole by the Depository to a nominee of the Depository, by a nominee of the Depository
to the Depository or another nominee of the Depository or by the Depository or any such nominee to
a successor Depository or a nominee of such a successor Depository.
2.14.4
Acts of Holders
. The Depository, as a Holder, may appoint agents and otherwise
authorize participants to give or take any request, demand, authorization, direction, notice,
consent, waiver or other action which a Holder is entitled to give or take under the Indenture.
2.14.5
Payments
. Notwithstanding the other provisions of this Indenture, unless
otherwise specified as contemplated by Section 2.2, payment of the principal of , premium, if any,
and interest, if any, on any Global Security shall be made to the Holder thereof.
2.14.6
Consents, Declaration and Directions
. Except as provided in Section 2.14.5,
the Company, the Trustee and any Agent shall treat a person as the Holder of such principal amount
of outstanding Securities of such Series represented by a Global Security as shall be specified in
a written statement of the Depository with respect to such Global Security, for purposes of
obtaining any consents, declarations, waivers or directions required to be given by the Holders
pursuant to this Indenture.
Section 2.15
CUSIP or Similar Numbers
.
The Company in issuing the Securities may use CUSIP or similar numbers (if then generally in
use), and, if so, the Trustee shall use CUSIP or similar numbers in notices of redemption as a
convenience to Holders;
provided
that any such notice may state that no representation is
made as to the correctness of such numbers either as printed on the Securities or as contained in
any notice of a redemption and that reliance may be placed only on the other elements of
identification printed on the Securities, and any such redemption shall not be affected by any
defect in or omission of such numbers.
ARTICLE III.
REDEMPTION
Section 3.1
Notice to Trustee
.
17
The Company may, with respect to any Series of Securities, reserve the right to redeem and pay
the Series of Securities or may covenant to redeem and pay the Series of Securities or any part
thereof prior to the Stated Maturity thereof at such time and on such terms as provided for in such
Securities. If a Series of Securities is redeemable and the Company wants or is obligated to
redeem prior to the Stated Maturity thereof all or part of the Series of Securities pursuant to the
terms of such Securities, it shall notify the Trustee of the redemption date and the principal
amount of Series of Securities to be redeemed. The Company shall give the notice at least 30 days
prior to the date of the proposed notice of redemption (or such shorter notice as may be acceptable
to the Trustee).
Section 3.2
Selection of Securities to be Redeemed
.
Unless otherwise indicated for a particular Series by a Board Resolution, a supplemental
indenture or an Officers Certificate, if less than all the Securities of a Series are to be
redeemed, the Trustee shall select the Securities of the Series to be redeemed on pro rata basis to
the extent practicable unless otherwise required by law or applicable stock exchange requirements.
The Trustee shall make the selection from Securities of the Series outstanding not previously
called for redemption. The Trustee may select for redemption portions of the principal of
Securities of the Series that have denominations larger than $1,000. Securities of the Series and
portions of them it selects shall be in amounts of $1,000 or whole multiples of $1,000 or, with
respect to Securities of any Series issuable in other denominations pursuant to Section 2.2.10, the
minimum principal denomination for each Series and integral multiples thereof. Provisions of this
Indenture that apply to Securities of a Series called for redemption also apply to portions of
Securities of that Series called for redemption.
Section 3.3
Notice of Redemption
.
Unless otherwise indicated for a particular Series by a Board Resolution, a supplemental
indenture hereto or an Officers Certificate, at least 30 days but not more than 60 days before a
redemption date, the Company shall mail a notice of redemption by first-class mail to each Holder
whose Securities are to be redeemed, and if any Bearer Securities are outstanding, the Company
shall publish on one occasion a notice in an Authorized Newspaper; except that redemption notices
may be mailed more than 60 days prior to a redemption date if the notice is issued in connection
with a satisfaction and discharge of this Indenture pursuant to Articles IX or XI hereof.
The notice shall identify the Securities of the Series to be redeemed and shall state:
(a) the redemption date;
(b) the redemption price;
(c) the name and address of the Paying Agent;
(d) that Securities of the Series called for redemption must be surrendered to the
Paying Agent to collect the redemption price;
18
(e) that interest on Securities of the Series called for redemption ceases to accrue on
and after the redemption date;
(f) the CUSIP or similar number, if any; and
(g) any other information as may be required by the terms of the particular Series or
the Securities of a Series being redeemed.
At the Companys request, the Trustee shall give the notice of redemption in the Companys
name and at its expense; provided such request will be delivered at least 5 days prior to the date
on which such notice is to be given (unless a shorter period shall be acceptable to the Trustee).
Section 3.4
Effect of Notice of Redemption
.
Once notice of redemption is mailed or published as provided in Section 3.3, Securities of a
Series called for redemption become due and payable on the redemption date and at the redemption
price. A notice of redemption may not be conditional. Upon surrender to the Paying Agent, such
Securities shall be paid at the redemption price plus accrued interest to the redemption date ;
provided that installments of interest whose Stated Maturity is on or prior to the redemption date
shall be payable to the Holders of such Securities (or one or more predecessor Securities)
registered at the close of business on the relevant record date thereof according to their terms
and the terms of this Indenture.
Section 3.5
Deposit of Redemption Price
.
On or before the redemption date, the Company shall deposit with the Paying Agent money
sufficient to pay the redemption price of and accrued interest, if any, on all Securities to be
redeemed on that date.
Section 3.6
Securities Redeemed in Part
.
Upon surrender of a Security that is redeemed in part, the Trustee shall authenticate for the
Holder a new Security of the same Series and the same Maturity equal in principal amount to the
unredeemed portion of the Security surrendered.
ARTICLE IV.
COVENANTS
Section 4.1
Payment of Principal and Interest
.
The Company covenants and agrees for the benefit of the Holders of each Series of Securities
that it will duly and punctually pay the principal of, premium, if any, and interest, if any, on
the Securities of that Series in accordance with the terms of such Securities and this Indenture.
Section 4.2
SEC Reports
.
The Company shall deliver to the Trustee within 15 days after it would have been
19
required to file them with the SEC copies of the annual reports and of the information,
documents, and other reports (or copies of such portions of any of the foregoing as the SEC may by
rules and regulations prescribe) which the Company is required to file with the SEC pursuant to
Section 13 or 15(d) of the Exchange Act. The Company also shall comply with the other provisions
of TIA Section 314(a).
Section 4.3
Compliance Certificate
.
The Company and each guarantor of any Series of Securities (to the extent that such guarantor
is so required under the TIA) shall deliver to the Trustee, within 120 days after the end of each
fiscal year of the Company, an Officers Certificate stating that a review of the activities of the
Company and its Subsidiaries during the preceding fiscal year has been made under the supervision
of the signing Officers with a view to determining whether the Company has kept, observed,
performed and fulfilled its obligations under this Indenture, and further stating, as to each such
Officer signing such certificate, that to the best of his knowledge the Company has kept, observed,
performed and fulfilled each and every covenant contained in this Indenture and is not in default
in the performance or observance of any of the terms, provisions and conditions hereof (or, if a
Default or Event of Default shall have occurred, describing all such Defaults or Events of Default
of which he may have knowledge).
The Company will, so long as any of the Securities are outstanding, deliver to the Trustee
with respect to such Securities, forthwith upon any Officer becoming aware of any Default or Event
of Default, an Officers Certificate specifying such Default or Event of Default and what action
the Company is taking or proposes to take with respect thereto.
Section 4.4
Stay, Extension and Usury Laws
.
The Company covenants (to the extent that it may lawfully do so) that it will not, and each
guarantor of such Securities will not, at any time insist upon, plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay, extension or usury law wherever enacted, now
or at any time hereafter in force, which may affect the covenants or the performance of this
Indenture or the Securities; and the Company and each of such guarantors (to the extent it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law and covenants that
it will not, by resort to any such law, 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 has been enacted.
Section 4.5
Corporate Existence
.
Subject to Article V, the Company will do or cause to be done all things necessary to preserve
and keep in full force and effect its corporate existence and the corporate, partnership or other
existence of each Significant Subsidiary in accordance with the respective organizational documents
(as the same may be amended from time to time) of the Company or of each Significant Subsidiary and
the rights (charter and statutory), licenses and franchises of the Company and its Significant
Subsidiaries;
provided
,
however
, that the Company shall not be required to preserve
any such right, license or franchise, or the corporate, partnership or other existence of any
Significant Subsidiary, if the Board of Directors shall determine that the preservation thereof is
no longer desirable in the conduct of the business of the Company and its
20
Subsidiaries taken as a whole and that the loss thereof is not adverse in any material respect
to the Holders.
Section 4.6
Taxes
.
The Company shall, and shall cause each of its Significant Subsidiaries to, pay prior to
delinquency all material taxes, assessments and governmental levies, except as contested in good
faith and by appropriate proceedings or where the failure to effect such payment is not adverse in
any material respect to the Holders of such Securities.
ARTICLE V.
SUCCESSORS
Section 5.1
When Company May Merge, Etc
.
The Company shall not consolidate with or merge into, or sell, assign, convey or transfer, all
or substantially all of its and its Subsidiaries taken as a whole properties and assets, in one or
more related transactions, to, any person (a successor person), and may not permit any person to
merge into, or convey, transfer or lease its properties and assets substantially as an entirety to,
the Company, unless:
(a) the successor person (if any) is the Company as the surviving corporation or a
corporation, partnership, limited liability company, trust or other entity organized and
validly existing under the laws of any U.S. domestic jurisdiction and expressly assumes the
Companys obligations on the Securities and under this Indenture and
(b) immediately after giving effect to the transaction, no Default or Event of Default,
shall have occurred and be continuing.
The Company shall deliver to the Trustee prior to the consummation of the proposed transaction
an Officers Certificate to the foregoing effect and an Opinion of Counsel stating that the
proposed transaction and such supplemental indenture comply with this Indenture.
This Section 5.1 will not apply to:
(i) a merger of the Company with an Affiliate solely for the purpose of
reincorporating or reorganizing the Company in another jurisdiction or forming a
direct holding company of the Company; or
(ii) any sale, assignment, conveyance or transfer, between or among the Company
and its Subsidiaries, including by way of merger or consolidation.
Section 5.2
Successor Corporation Substituted
.
Upon any consolidation or merger, or any sale, assignment, conveyance or transfer of all or
substantially all of the properties or assets of the Company in accordance with Section 5.1, the
successor corporation formed by such consolidation or into or with which the Company is merged or
to which such sale, assignment, conveyance or transfer is made shall
21
succeed to, and be substituted for, and may exercise every right and power of, the Company
under this Indenture with the same effect as if such successor person has been named as the Company
herein;
provided
,
however
, that the predecessor Company in the case of a sale,
assignment, conveyance or transfer shall not be released from the obligation to pay the principal
of and interest, if any, on the Securities, except in the case of a sale of all of the Companys
assets in a transaction that is subject to, and that complies with the provisions of, Section 5.1
hereof.
ARTICLE VI.
DEFAULTS AND REMEDIES
Section 6.1
Events of Default
.
Event of Default, wherever used herein with respect to Securities of any Series, means any
one of the following events, unless in the establishing Board Resolution, supplemental indenture or
Officers Certificate, it is provided that such Series shall not have the benefit of said Event of
Default:
(a) default in the payment of any interest on any Security of that Series when it
becomes due and payable, and continuance of such default for a period of 30 days (unless the
entire amount of such payment is deposited by the Company with the Trustee or with a Paying
Agent prior to the expiration of such period of 30 days); or
(b) default in the payment of the principal of any Security of that Series at its
Maturity; or
(c) default in the deposit of any sinking fund payment, within 30 days when and as due
in respect of any Security of that Series; or
(d) default in the performance or breach of any covenant or warranty of the Company in
this Indenture (other than a covenant or warranty that has been included in this Indenture
solely for the benefit of a Series of Securities other than that Series), which default
continues uncured for a period of 90 days after there has been given, by registered or
certified mail, to the Company by the Trustee or to the Company and the Trustee by the
Holders of at least 25% in principal amount of the outstanding Securities of that Series 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
(e) the Company or any of its Significant Subsidiaries pursuant to or within the
meaning of any Bankruptcy Law:
(i) commences a voluntary case,
(ii) consents to the entry of an order for relief against it in an involuntary
case,
(iii) consents to the appointment of a Custodian of it or for all or
substantially all of its property,
22
(iv) makes a general assignment for the benefit of its creditors, or
(v) generally is unable to pay its debts as the same become due; or
(f) a court of competent jurisdiction enters an order or decree under any Bankruptcy
Law that:
(i) is for relief against the Company or any of its Significant Subsidiaries in
an involuntary case,
(ii) appoints a Custodian of the Company or any of its Significant Subsidiaries
or for all or substantially all of its property, or
(iii) orders the liquidation of the Company or any of its Significant
Subsidiaries,
and the order or decree remains unstayed and in effect for 60 days; or
(g) except as permitted by this Indenture, any guarantee is held in any judicial
proceeding to be unenforceable or invalid or ceases for any reason to be in full force and
effect, or any guarantor, or any person acting on behalf of any guarantor, denies or
disaffirms its obligations under its guarantee; or
(h) any other Event of Default provided with respect to Securities of that Series,
which is specified in a Board Resolution, a supplemental indenture hereto or an Officers
Certificate, in accordance with Section 2.2.19.
The term Bankruptcy Law means Title 11, U.S. Code or any similar Federal or State law for
the relief of debtors. The term Custodian means any receiver, trustee, assignee, liquidator or
similar official under any Bankruptcy Law.
Section 6.2
Acceleration of Maturity; Rescission and Annulment
.
If an Event of Default with respect to Securities of any Series at the time outstanding occurs
and is continuing (other than an Event of Default referred to in Section 6.1(e) or (f)) then in
every such case the Trustee or the Holders of not less than 25% in principal amount of the
outstanding Securities of that Series may declare the principal amount (or, if any Securities of
that Series are Discount Securities, such portion of the principal amount as may be specified in
the terms of such Securities) of and accrued and unpaid interest, if any, on all of the Securities
of that Series to be due and payable immediately, by a notice in writing to the Company (and to the
Trustee if given by Holders), and upon any such declaration such principal amount (or specified
amount) and accrued and unpaid interest, if any, shall become immediately due and payable. If an
Event of Default specified in Section 6.1(e) or (f) shall occur, the principal amount (or specified
amount) of and accrued and unpaid interest, if any, on all outstanding Securities shall
ipso facto
become and be immediately due and payable without any declaration or other act on the part of the
Trustee or any Holder.
At any time after such a declaration of acceleration with respect to any Series has
23
been made and before a judgment or decree for payment of the money due has been obtained by
the Trustee as hereinafter in this Article provided, the Holders of a majority in principal amount
of the outstanding Securities of that Series, by written notice to the Company and the Trustee, may
rescind and annul such declaration and its consequences if the rescission would not conflict with
any judgment or decree and:
(a) the Company has paid or deposited with the Trustee a sum sufficient to pay
(i) all overdue interest, if any, on all Securities of that Series,
(ii) the principal of any Securities of that Series which have become due
otherwise than by such declaration of acceleration and interest thereon at the rate
or rates prescribed therefor in such Securities,
(iii) to the extent that payment of such interest is lawful, interest upon any
overdue principal and overdue interest at the rate or rates prescribed therefor in
such Securities, and
(iv) 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
(b) all Events of Default with respect to Securities of that Series, other than the
non-payment of the principal or interest of Securities of that Series which have become due
solely by such declaration of acceleration, have been cured or waived as provided in Section
6.13.
No such rescission shall affect any subsequent Default or impair any right consequent thereon.
Section 6.3
Collection of Indebtedness and Suits for Enforcement by Trustee
.
The Company covenants that if
(a) default is made in the payment of any interest on any Security when such interest
becomes due and payable and such default continues for a period of 30 days, or
(b) default is made in the payment of principal of any Security at the Maturity
thereof, or
(c) default is made in the deposit of any sinking fund payment when and as due by the
terms of a Security,
then,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the Holders of
such Securities, the whole amount then due and payable on such Securities for principal and
24
interest and, to the extent that payment of such interest shall be legally enforceable, interest on
any overdue principal or any overdue interest, at the rate or rates prescribed therefor in such
Securities, and, in addition thereto, such further amount as shall be sufficient to cover the costs
and expenses of collection, including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand, the Trustee, in its own
name and as trustee of an express trust, may institute a judicial proceeding for the collection of
the sums so due and unpaid, may prosecute such proceeding to judgment or final decree and may
enforce the same against the Company or any other obligor upon such Securities and collect the
moneys adjudged or deemed to be payable in the manner provided by law out of the property of the
Company or any other obligor upon such Securities, wherever situated.
If an Event of Default with respect to any Securities of any Series occurs and is continuing,
the Trustee may in its discretion proceed to protect and enforce its rights and the rights of the
Holders of Securities of such Series by such appropriate judicial proceedings as the Trustee shall
deem most effectual to protect and enforce any such rights, whether for the specific enforcement of
any covenant or agreement in this Indenture or in aid of the exercise of any power granted herein,
or to enforce any other proper remedy.
Section 6.4
Trustee May File Proofs of Claim
.
In case of the pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial proceeding relative to the
Company or any other obligor upon the Securities or the property of the Company or of such other
obligor or their creditors, the Trustee (irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by declaration or otherwise and irrespective
of whether the Trustee shall have made any demand on the Company for the payment of overdue
principal or interest) shall be entitled and empowered, by intervention in such proceeding or
otherwise,
(a) to file and prove a claim for the whole amount of principal and interest owing and
unpaid in respect of the Securities and to file such other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee (including any claim for
the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel) and of the Holders allowed in such judicial proceeding, and
(b) to collect and receive any moneys or other property payable or deliverable on any
such claims and to distribute the same, and any custodian, receiver, assignee, trustee,
liquidator, sequestrator or other similar official in any such judicial proceeding is hereby
authorized by each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders, to pay to the
Trustee any amount due it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 7.7.
25
Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to
or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or
composition affecting the Securities or the rights of any Holder thereof or to authorize the
Trustee to vote in respect of the claim of any Holder in any such proceeding.
Section 6.5
Trustee May Enforce Claims Without Possession of Securities
.
All rights of action and claims under this Indenture or the Securities may be prosecuted and
enforced by the Trustee without the possession of any of the Securities or the production thereof
in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be
brought in its own name as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel, be for the ratable benefit of the Holders of the Securities in
respect of which such judgment has been recovered.
Section 6.6
Application of Money Collected.
Any money or property collected by the Trustee pursuant to this Article shall be applied in
the following order, at the date or dates fixed by the Trustee and, in case of the distribution of
such money or property on account of principal or interest, upon presentation of the Securities and
the notation thereon of the payment if only partially paid and upon surrender thereof if fully
paid:
First: To the payment of all amounts due the Trustee under Section 7.7; and
Second: To the payment of the amounts then due and unpaid for principal of and interest on the
Securities in respect of which or for the benefit of which such money has been collected, ratably,
without preference or priority of any kind, according to the amounts due and payable on such
Securities for principal and interest, respectively; and
Third: To the Company or to such party as a court of competent jurisdiction shall direct.
The Trustee may fix a record date and payment date for any payment to Holders of Securities
pursuant to this Section.
Section 6.7
Limitation on Suits
.
No Holder of any Security of any Series shall have any right to institute any proceeding,
judicial or otherwise, with respect to this Indenture, or for the appointment of a receiver or
trustee, or for any other remedy hereunder, unless
(a) such Holder has previously given written notice to the Trustee of a continuing
Event of Default with respect to the Securities of that Series;
(b) the Holders of not less than 25% in principal amount of the outstanding Securities
of that Series shall have made written request to the Trustee to institute proceedings in
respect of such Event of Default in its own name as Trustee hereunder;
26
(c) such Holder or Holders have offered to the Trustee reasonable indemnity against the
costs, expenses and liabilities to be incurred in compliance with such request;
(d) the Trustee for 60 days after its receipt of such notice, request and offer of
indemnity has failed to institute any such proceeding; and
(e) no direction inconsistent with such written request has been given to the Trustee
during such 60-day period by the Holders of a majority in principal amount of the
outstanding Securities of that Series;
it being understood and intended that no one or more of such Holders shall have any right in any
manner whatever by virtue of, or by availing of, any provision of this Indenture to affect, disturb
or prejudice the rights of any other 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 such Holders.
Section 6.8
Unconditional Right of Holders to Receive Principal and Interest
.
Notwithstanding any other provision in this Indenture, the Holder of any Security shall have
the right, which is absolute and unconditional, to receive payment of the principal of and
interest, if any, on such Security on the Stated Maturity or Stated Maturities expressed in such
Security (or, in the case of redemption, on the redemption date) and to institute suit for the
enforcement of any such payment, and such rights shall not be impaired without the consent of such
Holder.
Section 6.9
Restoration of Rights and Remedies
.
If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy
under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has
been determined adversely to the Trustee or to such Holder, then and in every such case, subject to
any determination in such proceeding, the Company, the Trustee and the Holders shall be restored
severally and respectively to their former positions hereunder and thereafter all rights and
remedies of the Trustee and the Holders shall continue as though no such proceeding had been
instituted.
Section 6.10
Rights and Remedies Cumulative
.
Except as otherwise provided with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities in Section 2.8, no right or remedy herein conferred upon or
reserved to the Trustee or to the Holders is intended to be exclusive of any other right or remedy,
and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not
prevent the concurrent assertion or employment of any other appropriate right or remedy.
Section 6.11
Delay or Omission Not Waiver
.
27
No delay or omission of the Trustee or of any Holder of any Securities to exercise any right
or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a
waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by
this Article or by law to the Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Holders, as the case may be.
Section 6.12
Control by Holders
.
The Holders of a majority in principal amount of the outstanding Securities of any Series
shall have the right to direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any trust or power conferred on the Trustee, with
respect to the Securities of such Series, provided that
(a) such direction shall not be in conflict with any rule of law or with this Indenture
that such Trustee determines may be unduly prejudicial to the rights of other Holders of
such Securities,
(b) the Trustee may take any other action deemed proper by the Trustee which is not
inconsistent with such direction, and
(c) subject to the provisions of Section 6.1, the Trustee shall have the right to
decline to follow any such direction if the Trustee in good faith shall, by a Responsible
Officer of the Trustee, determine that the proceeding so directed would involve the Trustee
in personal liability.
Section 6.13
Waiver of Past Defaults
.
Subject to Section 6.2, the Holders of not less than a majority in principal amount of then
outstanding Securities of any Series may on behalf of the Holders of all the Securities of such
Series waive any past Default hereunder with respect to such Series and its consequences, except a
Default in the payment of the principal of or interest on any Security of such Series (provided,
however, that the Holders of a majority in principal amount of the outstanding Securities of any
Series may rescind an acceleration and its consequences, including any related payment default that
resulted from such acceleration). 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 6.14
Undertaking for Costs
.
All parties to this Indenture agree, and each Holder of any Security by his acceptance thereof
shall be deemed to have agreed, that any court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any
action taken, suffered or omitted by it as Trustee, the filing by any party litigant in such suit
of an undertaking to pay the costs of such suit, and that such court may in its discretion assess
reasonable costs, including reasonable attorneys fees, against any party litigant in such suit,
having due regard to the merits and good faith of the claims or defenses made by
28
such party litigant; but the provisions of this Section shall not apply to any suit instituted
by the Company, to any suit instituted by the Trustee, to any suit instituted by any Holder, or
group of Holders, holding in the aggregate more than 10% in principal amount of the outstanding
Securities of any Series, or to any suit instituted by any Holder for the enforcement of the
payment of the principal of or interest on any Security on or after the Stated Maturity or Stated
Maturities expressed in such Security (or, in the case of redemption, on the redemption date).
ARTICLE VII.
TRUSTEE
Section 7.1
Duties of Trustee
.
(a) If an Event of Default has occurred and is continuing, the Trustee shall exercise
the rights and powers vested in it by this Indenture and use the same degree of care and
skill in their exercise as a prudent man would exercise or use under the circumstances in
the conduct of his own affairs.
(b) Except during the continuance of an Event of Default:
(i) The Trustee need perform only those duties that are specifically set forth
in this Indenture and no others.
(ii) In the absence of bad faith on its part, the Trustee may conclusively
rely, as to the truth of the statements and the correctness of the opinions
expressed therein, upon Officers Certificates or Opinions of Counsel furnished to
the Trustee and conforming to the requirements of this Indenture;
however
,
in the case of any such Officers Certificates or Opinions of Counsel which by any
provisions hereof are specifically required to be furnished to the Trustee, the
Trustee shall examine such Officers Certificates and Opinions of Counsel to
determine whether or not they conform to the requirements of this Indenture.
(c) The Trustee may not be relieved from liability for its own negligent action, its
own negligent failure to act or its own willful misconduct, except that:
(i) This paragraph does not limit the effect of paragraph (b) of this Section.
(ii) The Trustee shall not be liable for any error of judgment made in good
faith by a Responsible Officer, unless it is proved that the Trustee was negligent
in ascertaining the pertinent facts.
(iii) The Trustee shall not be liable with respect to any action taken,
suffered or omitted to be taken by it with respect to Securities of any Series in
good faith in accordance with the direction of the Holders of a majority in
principal amount of the outstanding Securities of such Series relating to the time,
method and place of conducting any proceeding for any remedy available to the
29
Trustee, or exercising any trust or power conferred upon the Trustee, under
this Indenture with respect to the Securities of such Series.
(d) Every provision of this Indenture that in any way relates to the Trustee is subject
to paragraph (a), (b) and (c) of this Section.
(e) The Trustee may refuse to perform any duty or exercise any right or power at the
request or direction of any Holder unless it receives indemnity satisfactory to it against
any loss, liability or expense.
(f) The Trustee shall not be liable for interest on any money received by it except as
the Trustee may agree in writing with the Company. Money held in trust by the Trustee need
not be segregated from other funds except to the extent required by law.
(g) No provision of this Indenture shall require the Trustee to risk its own funds or
otherwise incur any financial liability in the performance of any of its duties, or in the
exercise of any of its rights or powers, if it shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against such risk is not reasonably
assured to it.
(h) The Paying Agent, the Registrar and any authenticating agent shall be entitled to
the protections and immunities as are set forth in paragraphs (a), (b) and (c) of this
Section with respect to the Trustee.
Section 7.2
Rights of Trustee
.
(a) The Trustee may rely on and shall be protected in acting or refraining from acting
upon any document believed by it to be genuine and to have been signed or presented by the
proper person. The Trustee need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require an Officers
Certificate or an Opinion of Counsel or both. The Trustee shall not be liable for any
action it takes or omits to take in good faith in reliance on such Officers Certificate or
Opinion of Counsel.
(c) The Trustee may act through agents and shall not be responsible for the misconduct
or negligence of any agent appointed with due care. No Depository shall be deemed an agent
of the Trustee and the Trustee shall not be responsible for any act or omission by any
Depository.
(d) The Trustee shall not be liable for any action it takes or omits to take in good
faith which it believes to be authorized or within its rights or powers provided that the
Trustees conduct does not constitute negligence or bad faith.
(e) The Trustee may consult with counsel and the advice of such counsel or any Opinion
of Counsel shall be full and complete authorization and protection in respect
30
of any action taken, suffered or omitted by it hereunder without negligence and in good
faith and in reliance thereon.
(f) The Trustee shall be under no obligation to exercise any of the rights or powers
vested in it by this Indenture at the request or direction of any of the Holders of
Securities unless such Holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might be incurred by it in
compliance with such request or direction.
Section 7.3
Individual Rights of Trustee
.
The Trustee in its individual or any other capacity may become the owner or pledgee of
Securities and may otherwise deal with the Company or an Affiliate with the same rights it would
have if it were not Trustee. Any Agent may do the same with like rights. The Trustee is also
subject to Sections 7.10 and 7.11.
Section 7.4
Trustees Disclaimer
.
The Trustee makes no representation as to the validity or adequacy of this Indenture or the
Securities, it shall not be accountable for the Companys use of the proceeds from the Securities,
and it shall not be responsible for any statement in the Securities other than its authentication.
Section 7.5
Notice of Defaults
.
If a Default or Event of Default occurs and is continuing with respect to the Securities of
any Series and if it is known to a Responsible Officer of the Trustee, the Trustee shall mail to
each Securityholder of the Securities of that Series and, if any Bearer Securities are outstanding,
the Company shall publish on one occasion in an Authorized Newspaper, notice of a Default or Event
of Default within 90 days after it occurs or, if later, after a Responsible Officer of the Trustee
has knowledge of such Default or Event of Default. Except in the case of a Default or Event of
Default in payment of principal of or interest on any Security of any Series, the Trustee may
withhold the notice if and so long as its corporate trust committee or a committee of its
Responsible Officers in good faith determines that withholding the notice is in the interests of
Securityholders of that Series.
Section 7.6
Reports by Trustee to Holders
.
Within 60 days after May 15 in each year, the Trustee shall transmit by mail to all
Securityholders, as their names and addresses appear on the register kept by the Registrar and, if
any Bearer Securities are outstanding, the Company shall publish in an Authorized Newspaper, a
brief report dated as of such May 15, in accordance with, and to the extent required under, TIA
Section 313.
A copy of each report at the time of its mailing to Securityholders of any Series shall be
filed with the SEC and each stock exchange on which the Securities of that Series are listed. The
Company shall promptly notify the Trustee when Securities of any Series are listed on any stock
exchange.
31
Section 7.7
Compensation and Indemnity
.
The Company shall pay to the Trustee from time to time reasonable compensation for its
services as the Company and the Trustee shall from time to time agree upon in writing. The
Trustees compensation shall not be limited by any law on compensation of a trustee of an express
trust. The Company shall reimburse the Trustee upon request for all reasonable out-of-pocket
expenses incurred by it. Such expenses shall include the reasonable compensation and expenses of
the Trustees agents and counsel.
The Company shall indemnify the Trustee (including the cost of defending itself) against any
loss, liability or expense incurred by it except as set forth in the next paragraph in the
performance of its duties under this Indenture as Trustee or Agent. The Trustee shall notify the
Company promptly of any claim for which it may seek indemnity. The Company shall defend the claim
and the Trustee shall cooperate in the defense. The Trustee may have separate counsel and the
Company shall pay the reasonable fees and expenses of such counsel. The Company need not pay for
any settlement made without its consent, which consent shall not be unreasonably withheld. This
indemnification shall apply to officers, directors, employees, shareholders and agents of the
Trustee.
The Company need not reimburse any expense or indemnify against any loss or liability incurred
by the Trustee or by any officer, director, employee, shareholder or agent of the Trustee through
negligence or bad faith.
To secure the Companys payment obligations in this Section, the Trustee shall have a Lien
prior to the Securities of any Series on all money or property held or collected by the Trustee,
except that held in trust to pay principal of and interest on particular Securities of that Series.
When the Trustee incurs expenses or renders services after an Event of Default specified in
Section 6.1(e) or (f) occurs, the expenses and the compensation for the services are intended to
constitute expenses of administration under any Bankruptcy Law.
The provisions of this Section shall survive the termination of this Indenture.
Section 7.8
Replacement of Trustee
.
A resignation or removal of the Trustee and appointment of a successor Trustee shall become
effective only upon the successor Trustees acceptance of appointment as provided in this Section.
The Trustee may resign with respect to the Securities of one or more Series by so notifying
the Company. The Holders of a majority in principal amount of the Securities of any Series may
remove the Trustee with respect to that Series by so notifying the Trustee and the Company. The
Company may remove the Trustee with respect to Securities of one or more Series if:
(a) the Trustee fails to comply with Section 7.10;
32
(b) the Trustee is adjudged a bankrupt or an insolvent or an order for relief is
entered with respect to the Trustee under any Bankruptcy Law;
(c) a Custodian or public officer takes charge of the Trustee or its property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the office of Trustee for any
reason, the Company shall promptly appoint a successor Trustee. Within one year after the
successor Trustee takes office, the Holders of a majority in principal amount of the then
outstanding Securities may appoint a successor Trustee to replace the successor Trustee appointed
by the Company.
If a successor Trustee with respect to the Securities of any one or more Series does not take
office within 60 days after the retiring Trustee resigns or is removed, the retiring Trustee, the
Company or the Holders of at least 10% in principal amount of the Securities of the applicable
Series may petition any court of competent jurisdiction for the appointment of a successor Trustee.
If the Trustee with respect to the Securities of any one or more Series fails to comply with
Section 7.10, any Securityholder of the applicable Series may petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its appointment to the retiring
Trustee and to the Company. Immediately after that, the retiring Trustee shall transfer all
property held by it as Trustee to the successor Trustee subject to the Lien provided for in Section
7.7, the resignation or removal of the retiring Trustee shall become effective, and the successor
Trustee shall have all the rights, powers and duties of the Trustee with respect to each Series of
Securities for which it is acting as Trustee under this Indenture. A successor Trustee shall mail
a notice of its succession to each Securityholder of each such Series and, if any Bearer Securities
are outstanding, publish such notice on one occasion in an Authorized Newspaper. Notwithstanding
replacement of the Trustee pursuant to this Section 7.8, the Companys obligations under Section
7.7 hereof shall continue for the benefit of the retiring trustee with respect to expenses and
liabilities incurred by it prior to such replacement.
Section 7.9
Successor Trustee by Merger, Etc
.
If the Trustee consolidates with, merges or converts into, or transfers all or substantially
all of its corporate trust business to, another corporation, the successor corporation without any
further act shall be the successor Trustee.
Section 7.10
Eligibility; Disqualification
.
This Indenture shall always have a Trustee who satisfies the requirements of TIA Sections
310(a)(1), (2) and (5). The Trustee shall always have a combined capital and surplus of at least
$100,000,000 as set forth in its most recent published annual report of condition. The Trustee
shall comply with TIA Section 310(b).
33
Section 7.11
Preferential Collection of Claims Against Company
.
The Trustee is subject to TIA Section 311(a), excluding any creditor relationship listed in
TIA Section 311(b). A Trustee who has resigned or been removed shall be subject to TIA Section
311(a) to the extent indicated.
ARTICLE VIII.
NOTE GUARANTEES
Section 8.1
Guarantee
.
Subject to this Article VIII, each of the Guarantors hereby, jointly and severally,
unconditionally guarantees to each Holder authenticated and delivered by the Trustee and to the
Trustee and its successors and assigns, irrespective of the validity and enforceability of this
Indenture, the Securities or the obligations of the Company hereunder or thereunder, that:
(a) the principal of, premium, if any, and interest on, the Securities will be promptly
paid in full when due, whether at maturity, by acceleration, redemption or otherwise, and
interest on the overdue principal of and interest on the Securities, if any, if lawful, and
all other obligations of the Company to the Holders or the Trustee hereunder or thereunder
will be promptly paid in full or performed, all in accordance with the terms hereof and
thereof; and
(b) in case of any extension of time of payment or renewal of any Securities or any of
such other obligations, that same will be promptly paid in full when due or performed in
accordance with the terms of the extension or renewal, whether at stated maturity, by
acceleration or otherwise.
Failing payment when due of any amount so guaranteed or any performance so guaranteed for
whatever reason, the Guarantors will be jointly and severally obligated to pay the same
immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of
collection.
The Guarantors hereby agree that their obligations hereunder are unconditional, irrespective
of the validity, regularity or enforceability of the Securities or this Indenture, the absence of
any action to enforce the same, any waiver or consent by any Holder of the Securities with respect
to any provisions hereof or thereof, the recovery of any judgment against the Company, any action
to enforce the same or any other circumstance which might otherwise constitute a legal or equitable
discharge or defense of a guarantor. Each Guarantor hereby waives diligence, presentment, demand
of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company,
any right to require a proceeding first against the Company, protest, notice and all demands
whatsoever and covenant that this Securities Guarantee will not be discharged except by complete
performance of the obligations contained in the Securities and this Indenture.
If any Holder or the Trustee is required by any court or otherwise to return to the Company,
the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation
to either the Company or the Guarantors, any amount paid by either to the Trustee or
34
such Holder,
this Securities Guarantee, to the extent theretofore discharged, will be reinstated in full force
and effect.
Each Guarantor agrees that it will not be entitled to any right of subrogation in relation to
the Holders in respect of any obligations guaranteed hereby until payment in full of all
obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on
the one hand, and the Holders and the Trustee, on the other hand, (1) the maturity of the
obligations guaranteed hereby may be accelerated as provided in Article VI hereof for the purposes
of this Securities Guarantee, notwithstanding any stay, injunction or other prohibition preventing
such acceleration in respect of the obligations guaranteed hereby, and (2) in the event of any
declaration of acceleration of such obligations as provided in Article VI hereof, such obligations
(whether or not due and payable) will forthwith become due and payable by the Guarantors for the
purpose of this Securities Guarantee. The Guarantors will have the right to seek contribution from
any non-paying Guarantor so long as the exercise of such right does not impair the rights of the
Holders under the Securities Guarantee.
Section 8.2
Limitation on Guarantor Liability
Each Guarantor, and by its acceptance of Securities, each Holder, hereby confirms that it is
the intention of all such parties that the Securities Guarantee of such Guarantor not constitute a
fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance
Act, the Uniform Fraudulent Transfer Act or any similar federal or state law to the extent
applicable to any Securities Guarantee. To effectuate the foregoing intention, the Trustee, the
Holders and the Guarantors hereby irrevocably agree that the obligations of such Guarantor will be
limited to the maximum amount that will, after giving effect to such maximum amount and all other
contingent and fixed liabilities of such Guarantor that are relevant under such laws,
and after giving effect to any collections from, rights to receive contribution from or
payments made by or on behalf of any other Guarantor in respect of the obligations of such other
Guarantor under this Article VIII, result in the obligations of such Guarantor under its Securities
Guarantee not constituting a fraudulent transfer or conveyance.
Section 8.3
Execution and Delivery of Note Guarantee
To evidence its Securities Guarantee set forth in Section 8.1 hereof, each Guarantor hereby
agrees that a notation of such Securities Guarantee will be endorsed by an Officer of such
Guarantor on each Security authenticated and delivered by the Trustee and that this Indenture will
be executed on behalf of such Guarantor by one of its Officers.
Each Guarantor hereby agrees that its Securities Guarantee set forth in Section 8.1 hereof
will remain in full force and effect notwithstanding any failure to endorse on each Security a
notation of such Securities Guarantee.
If an Officer whose signature is on this Indenture or on the Securities Guarantee no longer
holds that office at the time the Trustee authenticates the Securities on which a Securities
Guarantee is endorsed, the Securities Guarantee will be valid nevertheless.
35
The delivery of any Security by the Trustee, after the authentication thereof hereunder, will
constitute due delivery of the Securities Guarantee set forth in this Indenture on behalf of the
Guarantors.
Section 8.4
Guarantors May Consolidate, etc., on Certain Terms
.
Except as otherwise provided in Section 8.5 hereof, no Guarantor may sell or otherwise dispose
of all or substantially all of its assets to, or consolidate with or merge with or into (whether or
not such Guarantor is the surviving person) another person, other than the Company or another
Guarantor, unless:
(a) immediately after giving effect to such transaction, no Default or Event of Default
exists; and
either:
(i) subject to Section 8.5 hereof, the person acquiring the property in any
such sale or disposition or the person formed by or surviving any such consolidation
or merger unconditionally assumes all the obligations of that Guarantor under this
Indenture and its Securities Guarantee on the terms set forth herein or therein,
pursuant to a supplemental indenture in form and substance reasonably satisfactory
to the Trustee; or
(ii) the Net Proceeds of such sale or other disposition are applied in
accordance with the applicable provisions of this Indenture.
In case of any such consolidation, merger, sale or conveyance 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 the Securities Guarantee endorsed upon the Notes and the due and
punctual performance of all of the covenants and conditions of this Indenture to be performed by
the Guarantor, such successor person will succeed to and be substituted for the Guarantor with the
same effect as if it had been named herein as a Guarantor. Such successor person thereupon may
cause to be signed any or all of the Securities Guarantees to be endorsed upon all of the
Securities issuable hereunder which theretofore shall not have been signed by the Company and
delivered to the Trustee. All the Securities Guarantees so issued will in all respects have the
same legal rank and benefit under this Indenture as the Securities Guarantees theretofore and
thereafter issued in accordance with the terms of this Indenture as though all of such Securities
Guarantees had been issued at the date of the execution hereof.
Except as set forth in Articles IV and V hereof, and notwithstanding clauses (a)(i) and
(a)(ii) above, nothing contained in this Indenture or in any of the Securities will prevent any
consolidation or merger of a Guarantor with or into the Company or another Guarantor, or will
prevent any sale or conveyance of the property of a Guarantor as an entirety or substantially as an
entirety to the Company or another Guarantor.
Section 8.5
Releases
.
In the event of any sale or other disposition of all or substantially all of the assets of any
Guarantor, by way of merger, consolidation or otherwise, or a sale or other disposition of all of
36
the Capital Stock of any Guarantor, in each case to a person that is not (either before or after
giving effect to such transactions) the Company or a Restricted Subsidiary of the Company, then
such Guarantor (in the event of a sale or other disposition, by way of merger, consolidation or
otherwise, of all of the Capital Stock of such Guarantor) or the corporation acquiring the property
(in the event of a sale or other disposition of all or substantially all of the assets of such
Guarantor) will be released and relieved of any obligations under its Securities Guarantee;
provided
that the Net Proceeds of such sale or other disposition are applied in accordance with the
applicable provisions of this Indenture. Upon delivery by the Company to the Trustee of an
Officers Certificate and an Opinion of Counsel to the effect that such sale or other disposition
was made by the Company in accordance with the provisions of this Indenture, the Trustee will
execute any documents reasonably required in order to evidence the release of any Guarantor from
its obligations under its Note Guarantee.
Upon designation of any Guarantor as an Unrestricted Subsidiary in accordance with the terms
of this Indenture, such Guarantor will be released and relieved of any obligations under its
Securities Guarantee.
Upon Legal Defeasance in accordance with Section 9.3 hereof or satisfaction and discharge of
this Indenture in accordance with Section 9.1 hereof, each Guarantor will be released and relieved
of any obligations under its Securities Guarantee.
Any Guarantor not released from its obligations under its Securities Guarantee as provided in
this Section 8.5 will remain liable for the full amount of principal of and interest and
premium, if any, on the Securities and for the other obligations of any Guarantor under this
Indenture as provided in this Article VIII.
ARTICLE IX.
SATISFACTION AND DISCHARGE; DEFEASANCE
Section 9.1
Satisfaction and Discharge of Indenture
.
This Indenture shall upon Company Order cease to be of further effect (except as hereinafter
provided in this Section 9.1), and the Trustee, at the expense of the Company, shall execute proper
instruments acknowledging satisfaction and discharge of this Indenture, when
(a) either
(i) all Securities theretofore authenticated and delivered (other than
Securities that have been destroyed, lost or stolen and that have been replaced or
paid and Securities for whose payment money has therefore been deposited in trust
and thereafter repaid to the Company) have been delivered to the Trustee for
cancellation; or
(ii) all such Securities not theretofore delivered to the Trustee for
cancellation
(1) have become due and payable, or
37
(2) will become due and payable at their Stated Maturity within one
year, or
(3) are to be called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of redemption by the
Trustee in the name, and at the expense, of the Company, or
(4) are deemed paid and discharged pursuant to Section 9.3, as
applicable;
and the Company, in the case of (1), (2) or (3) above, has deposited or caused to be deposited with
the Trustee as trust funds in trust an amount sufficient for the purpose of paying and discharging
the entire indebtedness on such Securities not theretofore delivered to the Trustee for
cancellation, for principal and interest to the date of such deposit (in the case of Securities
which have become due and payable on or prior to the date of such deposit) or to the Stated
Maturity or redemption date, as the case may be and no Default or Event of Default has occurred and
is continuing on the date of such deposit (other than a Default or Event of Default resulting from
the borrowing of funds to be applied to such deposit) and the deposit will not result in a breach
or violation of, or constitute a default under, any other instrument to which the Company or any
guarantor, as applicable, of such Securities is a party or by which the Company or any such
guarantor, as applicable, is bound;
(b) the Company or any guarantor has paid or caused to be paid all other sums payable
hereunder by the Company; and
(c) the Company has delivered irrevocable instructions to the Trustee for such
Securities under this Indenture to apply the deposited money toward the payment of such
Securities at Maturity or on the redemption date, as the case may be and the Company has
delivered to the Trustee an Officers Certificate and an Opinion of Counsel, each stating
that all conditions precedent herein provided for relating to the satisfaction and discharge
of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the
Company to the Trustee under Section 7.7, and, if money shall have been deposited with the Trustee
pursuant to clause (a) of this Section, the provisions of Sections 2.4, 2.7, 2.8, 9.1, 9.2 and 9.5
shall survive.
Section 9.2
Application of Trust Funds; Indemnification
.
(a) Subject to the provisions of Section 9.5, all money deposited with the Trustee
pursuant to Section 9.1, all money and U.S. Government Obligations or Foreign Government
Obligations deposited with the Trustee pursuant to Sections 9.3 or 9.4 and all money
received by the Trustee in respect of U.S. Government Obligations or Foreign Government
Obligations deposited with the Trustee pursuant to Sections 9.3 or 9.4, shall be held in
trust and applied by it, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying Agent (including the
Company acting as its own Paying Agent) as the Trustee may determine, to the persons
38
entitled thereto, of the principal and interest for whose payment such money has been
deposited with or received by the Trustee or to make mandatory sinking fund payments or
analogous payments as contemplated by Sections 9.3 or 9.4; but such money need not be
segregated from other funds except to the extent required by law.
(b) The Company shall pay and shall indemnify the Trustee against any tax, fee or other
charge imposed on or assessed against U.S. Government Obligations or Foreign Government
Obligations deposited pursuant to Sections 9.3 or 9.4 or the interest and principal received
in respect of such obligations other than any payable by or on behalf of Holders.
(c) The Trustee shall deliver or pay to the Company from time to time upon Company
Request any U.S. Government Obligations or Foreign Government Obligations or money held by
it as provided in Sections 9.3 or 9.4 which, in the opinion of a nationally recognized firm
of independent certified public accountants expressed in a written certification thereof
delivered to the Trustee, are then in excess of the amount thereof which then would have
been required to be deposited for the purpose for which such U.S. Government Obligations or
Foreign Government Obligations or money were deposited or received. This provision shall
not authorize the sale by the Trustee of any
U.S. Government Obligations or Foreign Government Obligations held under this
Indenture.
Section 9.3
Legal Defeasance of Securities of any Series
.
Unless this Section 9.3 is otherwise specified pursuant to Section 2.2.21 to be inapplicable
to Securities of any Series, the Company and each Guarantor, if any, of such Securities, shall be
deemed to have paid and discharged the entire indebtedness on all the outstanding Securities of
such Series (including the related Securities Guarantees, if any) on the 91
st
day after
the date of the deposit referred to in subparagraph (d) hereof, and the provisions of this
Indenture, as it relates to such outstanding Securities of such Series, shall no longer be in
effect (and the Trustee, at the expense of the Company, shall, at Company Request, execute proper
instruments acknowledging the same), except as to:
(a) the rights of Holders of Securities of such Series to receive, from the trust funds
described in subparagraph (d) hereof, (i) payment of the principal of and each installment
of principal of and interest on the outstanding Securities of such Series on the Stated
Maturity of such principal or installment of principal or interest and (ii) the benefit of
any mandatory sinking fund payments applicable to the Securities of such Series on the day
on which such payments are due and payable in accordance with the terms of this Indenture
and the Securities of such Series;
(b) the provisions of Sections 2.4, 2.7, 2.8, 9.2, 9.3 and 9.5; and
(c) the rights, powers, trust and immunities of the Trustee hereunder;
provided that, the following conditions shall have been satisfied:
39
(d) the Company shall have deposited or caused to be deposited irrevocably with the
Trustee as trust funds in trust for the purpose of making the following payments,
specifically pledged as security for and dedicated solely to the benefit of the Holders of
such Securities (i) in the case of Securities of such Series denominated in Dollars, cash in
Dollars (or such other money or currencies as shall then be legal tender in the United
States) and/or U.S. Government Obligations, or (ii) in the case of Securities of such Series
denominated in a Foreign Currency (other than a composite currency), money and/or Foreign
Government Obligations, which through the payment of interest and principal in respect
thereof, in accordance with their terms, will provide (and without reinvestment and assuming
no tax liability will be imposed on such Trustee), not later than one day before the due
date of any payment of money, an amount in cash, sufficient, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay and discharge each installment of principal
(including mandatory sinking fund or analogous payments) of and interest, if any, on all the
Securities of such Series on the dates such installments of interest or principal are due;
(e) such deposit will not result in a breach or violation of, or constitute a default
under, this Indenture or any other agreement or instrument to which the Company is a party
or by which it is bound;
(f) no Default or Event of Default with respect to the Securities of such Series shall
have occurred and be continuing on the date of such deposit or during the period ending on
the 91
st
day after such date;
(g) the Company shall have delivered to the Trustee an Officers Certificate and an
Opinion of Counsel to the effect that (i) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling, or (ii) since the date of execution of
this Indenture, there has been a change in the applicable federal income tax law, in either
case to the effect that, and based thereon such Opinion of Counsel shall confirm that, the
Holders of the Securities of such Series will not recognize income, gain or loss for Federal
income tax purposes as a result of such deposit, defeasance and discharge and will be
subject to Federal income tax on the same amount and in the same manner and at the same
times as would have been the case if such deposit, defeasance and discharge had not
occurred;
(h) the Company shall have delivered to the Trustee an Officers Certificate stating
that the deposit was not made by the Company with the intent of preferring the Holders of
the Securities of such Series over any other creditors of the company or with the intent of
defeating, hindering, delaying or defrauding any other creditors of the Company;
(i) such deposit shall not result in the trust arising from such deposit constituting
an investment company (as defined in the Investment Company Act of 1940, as amended), or
such trust shall be qualified under such Act or exempt from regulation thereunder; and
40
(j) the Company shall have delivered to the Trustee an Officers Certificate and an
Opinion of Counsel, each stating that all conditions precedent provided for relating to the
defeasance contemplated by this Section have been complied with.
Section 9.4
Covenant Defeasance
.
Unless this Section 9.4 is otherwise specified pursuant to Section 2.2.21 to be inapplicable
to Securities of any Series, on and after the 91
st
day after the date of the deposit
referred to in subparagraph (a) hereof, the Company may omit to comply with any term, provision or
condition set forth under Sections 4.2, 4.3, 4.4, 4.5, 4.6, and 5.1 as well as any additional
covenants contained in a supplemental indenture hereto for a particular Series of Securities or a
Board Resolution or an Officers Certificate delivered pursuant to Section 2.2.21 (and the failure
to comply with any such covenants shall not constitute a Default or Event of Default under Section
6.1) and the occurrence of any event described in clause (e) of Section 6.1 shall not constitute a
Default or Event of Default hereunder, with respect to the Securities of such Series, provided that
the following conditions shall have been satisfied:
(a) With reference to this Section 9.4, the Company has deposited or caused to be
irrevocably deposited (except as provided in Section 9.2(c)) with the Trustee as trust funds
in trust, specifically pledged as security for, and dedicated solely to, the benefit of the
Holders of such Securities (i) in the case of Securities of such Series denominated in
Dollars, cash in Dollars (or such other money or currencies as shall then be legal tender in
the United States) and/or U.S. Government Obligations, or (ii) in the case of Securities of
such Series denominated in a Foreign Currency (other than a composite currency), money
and/or Foreign Government Obligations, which through the payment of interest and principal
in respect thereof, in accordance with their terms, will provide (and without reinvestment
and assuming no tax liability will be imposed on such Trustee), not later than one day
before the due date of any payment of money, an amount in cash, sufficient, in the opinion
of a nationally recognized firm of independent certified public accountants expressed in a
written certification thereof delivered to the Trustee, to pay principal and interest, if
any, on and any mandatory sinking fund in respect of the Securities of such Series on the
dates such installments of interest or principal are due;
(b) Such deposit will not result in a breach or violation of, or constitute a default
under, this Indenture or any other agreement or instrument to which the Company is a party
or by which it is bound;
(c) No Default or Event of Default with respect to the Securities of such Series shall
have occurred and be continuing on the date of such deposit or during the period ending on
the 91
st
day after such date;
(d) the Company shall have delivered to the Trustee an Opinion of Counsel confirming
that Holders of the Securities of such Series will not recognize income, gain or loss for
federal income tax purposes as a result of such deposit and defeasance and will be subject
to federal income tax on the same amounts, in the same manner and at the same times as would
have been the case if such deposit and defeasance had not occurred;
41
(e) the Company shall have delivered to the Trustee an Officers Certificate stating
the deposit was not made by the Company with the intent of preferring the Holders of the
Securities of such Series over any other creditors of the Company or with the intent of
defeating, hindering, delaying or defrauding any other creditors of the Company; and
(f) The Company shall have delivered to the Trustee an Officers Certificate and an
Opinion of Counsel, each stating that all conditions precedent herein provided for relating
to the defeasance contemplated by this Section have been complied with.
Section 9.5
Repayment to Company
.
The Trustee and the Paying Agent shall pay to the Company upon request any money held by them
for the payment of principal and interest that remains unclaimed for two years. After that,
Securityholders entitled to the money must look to the Company for payment as general creditors
unless an applicable abandoned property law designates another person.
Section 9.6
Reinstatement
.
If the Trustee or Paying Agent is unable to apply any money or U.S. Government Obligations in
accordance with Sections 9.1, 9.3 or 9.4, as the case may be, by reason of any legal proceeding or
by reason of any order or judgment of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, the Companys and any applicable guarantors obligations
under this Indenture and the Securities and any applicable guarantees shall be revived and
reinstated as though no deposit had occurred pursuant to Section 9.1, 9.3 or 9.4, as the case may
be, until such time as the Trustee or Paying Agent is permitted to apply all such money or U.S.
Government Obligations in accordance with Section 9.1, 9.3 or 9.4, as the case may be;
provided
,
however
, that if the Company makes any payment of principal of, premium,
if any, or interest on any Securities because of reinstatement of its obligations, the Company
shall be subrogated to the rights of the holders of such Securities to receive such payment from
the money or U.S. Government Obligations held by the Trustee or Paying Agent.
ARTICLE X.
AMENDMENTS AND WAIVERS
Section 10.1
Without Consent of Holders
.
The Company and the Trustee may amend or supplement this Indenture or the Securities of one or
more Series without the consent of any Securityholder:
(a) to cure any ambiguity, defect or inconsistency;
(b) to provide for uncertificated securities in addition to or in place of certificated
securities;
42
(c) to provide for the assumption of our obligations to Holders of any debt security in
the case of a merger or consolidation or sale of all or substantially all of our assets;
(d) to make any change that would provide any additional rights or benefits to the
Holders of Securities or that does not adversely affect the legal rights under the Indenture
of any such Holder;
(e) to comply with requirements of the SEC in order to effect or maintain the
qualification of an indenture under the TIA;
(f) to conform the text of the indentures to any provision of the description of
Securities to the extent that such provision in the description of Securities was intended
by the Company (as demonstrated by an Officers Certificate) to be a substantially verbatim
recitation of a provision of the indentures;
(g) to provide for the issuance of additional securities in accordance with the
limitations set forth in the indenture as of the date of the indenture;
(h) to allow any guarantor to execute a supplemental indenture with respect to debt
securities and to release guarantors in accordance with the terms of the indenture; or
(i) to add additional obligors under the indenture and the securities.
(j) To evidence and provide for the acceptance of appointment hereunder by a successor
Trustee with respect to the Securities of one more Series and to add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee.
The consent of Holders is not necessary under the indentures to approve the particular form of
any proposed amendment. It is sufficient if such consent approves the substance of the proposed
amendment.
Section 10.2
With Consent of Holders
.
The Company and the Trustee may enter into a supplemental indenture with the written consent
of the Holders of at least a majority in principal amount of the outstanding Securities of each
Series affected by such supplemental indenture (including consents obtained in connection with a
tender offer or exchange offer for the Securities of such Series), for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of this Indenture or
of any supplemental indenture or of modifying in any manner the rights of the Securityholders of
each such Series. Except as provided in Section 6.13, the Holders of at least a majority in
principal amount of the outstanding Securities of each Series affected by such waiver by notice to
the Trustee (including consents obtained in connection with a tender offer or exchange offer for
the Securities of such Series) may waive compliance by the Company with any provision of this
Indenture or the Securities with respect to such Series.
43
It shall not be necessary for the consent of the Holders of Securities under this Section 10.2
to approve the particular form of any proposed supplemental indenture or waiver, but it shall be
sufficient if such consent approves the substance thereof. After a supplemental indenture or
waiver under this section becomes effective, the Company shall mail to the Holders of Securities
affected thereby and, if any Bearer Securities affected thereby are outstanding, publish on one
occasion in an Authorized Newspaper, a notice briefly describing the supplemental indenture or
waiver. Any failure by the Company to mail or publish such notice, or any defect therein, shall
not, however, in any way impair or affect the validity of any such supplemental indenture or
waiver.
Section 10.3
Limitations
.
Without the consent of each Securityholder affected, an amendment or waiver may not (with
respect to any Securities held by a non-consenting Holder):
(a) change the amount of Securities whose Holders must consent to an amendment,
supplement or waiver;
(b) reduce the rate of or extend the time for payment of interest (including default
interest) on any Security;
(c) reduce the principal or change the Stated Maturity of any Security or reduce the
amount of, or postpone the date fixed for, the payment of any sinking fund or analogous
obligation;
(d) reduce the principal amount of Discount Securities payable upon acceleration of the
maturity thereof;
(e) waive a Default or Event of Default in the payment of the principal of or interest,
if any, on any Security (except a rescission of acceleration of the Securities of any Series
by the Holders of at least a majority in principal amount of the outstanding Securities of
such Series and a waiver of the payment default that resulted from such acceleration);
(f) make the principal of or interest, if any, on any Security payable in any currency
other than that stated in the Security;
(g) make any change in Sections 6.8, 6.13, 10.3 (this sentence), 11.15 or 11.16; or
(h) waive a redemption payment with respect to any Security or change any of the
provisions with respect to the redemption of any Securities, except as specifically set
forth in the Board Resolution, supplemental indenture hereto or Officers Certificate
delivered pursuant to Section 2.2.
Section 10.4
Compliance with Trust Indenture Act
.
Every amendment to this Indenture or the Securities of one or more Series shall
44
be set forth in a supplemental indenture hereto that complies with the TIA as then in effect.
Section 10.5
Revocation and Effect of Consents
.
Until an amendment or waiver becomes effective, a consent to it by a Holder of a Security is a
continuing consent by the Holder and every subsequent Holder of a Security or portion of a Security
that evidences the same debt as the consenting Holders Security, even if notation of the consent
is not made on any Security. However, any such Holder or subsequent Holder may revoke the consent
as to his Security or portion of a Security if the Trustee receives
the notice of revocation before the date the amendment or waiver becomes effective.
Any amendment or waiver once effective shall bind every Securityholder of each Series affected
by such amendment or waiver unless it is of the type described in any of clauses (a) through (g) of
Section 10.3. In that case, the amendment or waiver shall bind each Holder of a Security who has
consented to it and every subsequent Holder of a Security or portion of a Security that evidences
the same debt as the consenting Holders Security.
Section 10.6
Notation on or Exchange of Securities
.
The Trustee may place an appropriate notation about an amendment or waiver on any Security of
any Series thereafter authenticated. The Company in exchange for Securities of that Series may
issue and the Trustee shall authenticate upon request new Securities of that Series that reflect
the amendment or waiver.
Section 10.7
Trustee Protected
.
In executing, or accepting the additional trusts created by, any supplemental indenture
permitted by this Article or the modifications thereby of the trusts created by this Indenture, the
Trustee shall be entitled to receive, and (subject to Section 7.1) shall be fully protected in
relying upon, an Opinion of Counsel and an Officers Certificate stating that the execution of such
supplemental indenture is authorized or permitted by this Indenture. The Trustee shall sign all
supplemental indentures, except that the Trustee need not sign any supplemental indenture that
adversely affects its rights.
ARTICLE XI.
MISCELLANEOUS
Section 11.1
Trust Indenture Act Controls
.
If any provision of this Indenture limits, qualifies, or conflicts with another provision
which is required or deemed to be included in this Indenture by the TIA, such required or deemed
provision shall control.
Section 11.2
Notices
.
Any notice or communication by the Company or the Trustee to the other or by a Holder to the
Company or the Trustee is duly given if in writing and delivered in person or mailed by first-class
mail:
45
if to the Company:
Covanta Holding Corporation
40 Lane Road
Fairfield, NJ 07004
Attention: President and Chief Executive Officer
if to the Trustee:
Wells
Fargo Bank, National Association
Corporate Trust Services
213 Court Street, Suite 703
Middletown, CT 06457
Attention: Joseph P. ODonnell
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 to a Securityholder shall be mailed by first-class mail to his
address shown on the register kept by the Registrar and, if any Bearer Securities are outstanding,
shall be published by the Company in an Authorized Newspaper. Failure to mail a notice or
communication to a Securityholder of any Series or any defect in it shall not affect its
sufficiency with respect to other Securityholders of that or any other Series.
If a notice or communication is mailed or published in the manner provided above, within the
time prescribed, it is duly given, whether or not the Securityholder receives it.
If the Company mails a notice or communication to Securityholders, it shall mail a copy to the
Trustee and each Agent at the same time.
Section 11.3
Communication by Holders with Other Holders
.
Securityholders of any Series may communicate pursuant to TIA Section 312(b) with other
Securityholders of that Series or any other Series with respect to their rights under this
Indenture or the Securities of that Series or all Series. The Company, the Trustee, the Registrar
and anyone else shall have the protection of TIA Section 312(c).
Section 11.4
Certificate and Opinion as to Conditions Precedent
.
Upon any request or application by the Company to the Trustee to take any action under this
Indenture, the Company shall furnish to the Trustee:
(a) an Officers Certificate stating that, in the opinion of the signers, all
conditions precedent, if any, provided for in this Indenture relating to the proposed action
have been complied with; and
46
(b) an Opinion of Counsel stating that, in the opinion of such counsel, all such
conditions precedent have been complied with.
Section 11.5
Statements Required in Certificate or Opinion
.
Each certificate or opinion with respect to compliance with a condition or covenant provided
for in this Indenture (other than a certificate provided pursuant to TIA Section 314(a)(4)) shall
comply with the provisions of TIA Section 314(e) and shall include:
(a) a statement that the person making such certificate or opinion has read such
covenant or condition;
(b) a brief statement as to the nature and scope of the examination or investigation
upon which the statements or opinions contained in such certificate or opinion are based;
(c) a statement that, in the opinion of such person, he has made such examination or
investigation as is necessary to enable him to express an informed opinion as to whether or
not such covenant or condition has been complied with; and
(d) a statement as to whether or not, in the opinion of such person, such condition or
covenant has been complied with.
Section 11.6
Rules by Trustee and Agents
.
The Trustee may make reasonable rules for action by or a meeting of Securityholders of one or
more Series. Any Agent may make reasonable rules and set reasonable requirements for its
functions.
Section 11.7
Legal Holidays
.
Unless otherwise provided by Board Resolution, Officers Certificate or supplemental indenture
for a particular Series, a Legal Holiday is any day that is not a Business Day. If a payment
date is a Legal Holiday at a place of payment, payment may be made at that place on the next
succeeding day that is not a Legal Holiday, and no interest shall accrue for the intervening
period.
Section 11.8
No Recourse Against Others
.
A director, officer, employee or stockholder, as such, of the Company shall not have any
liability for any obligations of the Company under the Securities or the Indenture or for any claim
based on, in respect of or by reason of such obligations or their creation. Each Securityholder by
accepting a Security waives and releases all such liability. The waiver and release are part of
the consideration for the issue of the Securities.
Section 11.9
Counterparts
.
This Indenture may be executed in any number of counterparts and by the parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
47
original and all of which taken together shall constitute one and the same agreement.
Section 11.10
Governing Laws
.
THIS INDENTURE AND THE SECURITIES AND ANY GUARANTEES OF THE SECURITIES SHALL BE GOVERNED BY
THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN SUCH STATE,
WITHOUT REGARD TO THE CONFLICT OF LAWS PROVISIONS THEREOF.
Section 11.11
No Adverse Interpretation of Other Agreements
.
This Indenture may not be used to interpret another indenture, loan or debt agreement of the
Company or a Subsidiary. Any such indenture, loan or debt agreement may not be used to interpret
this Indenture.
Section 11.12
Successors
.
All agreements of the Company in this Indenture and the Securities shall bind its successor.
All agreements of the Trustee in this Indenture shall bind its successor.
Section 11.13
Severability
.
In case any provision in this Indenture or in the Securities shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
Section 11.14
Table of Contents, Headings, Etc
.
The Table of Contents, Cross Reference Table, 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 11.15
Securities in a Foreign Currency or in ECU
.
Unless otherwise specified in a Board Resolution, a supplemental indenture hereto or an
Officers Certificate delivered pursuant to Section 2.2 of this Indenture with respect to a
particular Series of Securities, whenever for purposes of this Indenture any action may be taken by
the Holders of a specified percentage in aggregate principal amount of Securities of all Series or
all Series affected by a particular action at the time outstanding and, at such time, there are
outstanding Securities of any Series which are denominated in a coin or currency other than Dollars
(including ECUs), then the principal amount of Securities of such Series which shall be deemed to
be outstanding for the purpose of taking such action shall be that amount of Dollars that could be
obtained for such amount at the Market Exchange Rate at such time. For purposes of this Section
11.15, Market Exchange Rate shall mean the noon Dollar buying rate in New York City for cable
transfers of that currency as published by the Federal Reserve Bank of New York;
provided
,
however
, in the case of ECUs, Market Exchange Rate shall mean the rate of exchange
determined by the Commission of the European Union (or any successor thereto) as
48
published in the
Official Journal of the European Union (such publication or any successor publication, the
Journal). If such Market Exchange Rate is not available for any reason with respect to such
currency, the Trustee shall use, in its sole discretion and without liability on its part, such
quotation of the Federal Reserve Bank of New York or, in the case of ECUs, the rate of exchange as
published in the Journal, as of the most recent available date, or quotations or, in the case of
ECUs, rates of exchange from one or more major banks in The City of New York or in the country of
issue of the currency in question or, in the case of ECUs, in Luxembourg or such other quotations
or, in the case of ECUs, rates of exchange as the Trustee, upon consultation with the Company,
shall deem appropriate. The provisions of this paragraph shall apply in determining the equivalent
principal amount in respect of Securities of a Series denominated in currency other than Dollars in
connection with any action taken by Holders of Securities pursuant to the terms of this Indenture.
All decisions and determinations of the Trustee regarding the Market Exchange Rate or any
alternative determination provided for in the preceding paragraph shall be in its sole discretion
and shall, in the absence of manifest error, be conclusive to the extent permitted by law for all
purposes and irrevocably binding upon the Company and all Holders.
Section 11.16
Judgment Currency
.
The Company agrees, to the fullest extent that it may effectively do so under applicable law,
that (a) if for the purpose of obtaining judgment in any court it is necessary to
convert the sum due in respect of the principal of or interest or other amount on the
Securities of any Series (the Required Currency) into a currency in which a judgment will be
rendered (the Judgment Currency), the rate of exchange used shall be the rate at which in
accordance with normal banking procedures the Trustee could purchase in The City of New York the
Required Currency with the Judgment Currency on the day on which final unappealable judgment is
entered, unless such day is not a New York Banking Day, then, the rate of exchange used shall be
the rate at which in accordance with normal banking procedures the Trustee could purchase in The
City of New York the Required Currency with the Judgment Currency on the New York Banking Day
preceding the day on which final unappealable judgment is entered and (b) its obligations under
this Indenture to make payments in the Required Currency (i) shall not be discharged or satisfied
by any tender, any recovery pursuant to any judgment (whether or not entered in accordance with
subsection (a)), in any currency other than the Required Currency, except to the extent that such
tender or recovery shall result in the actual receipt, by the payee, of the full amount of the
Required Currency expressed to be payable in respect of such payments, (ii) shall be enforceable as
an alternative or additional cause of action for the purpose of recovering in the Required Currency
the amount, if any, by which such actual receipt shall fall short of the full amount of the
Required Currency so expressed to be payable, and (iii) shall not be affected by judgment being
obtained for any other sum due under this Indenture. For purposes of the foregoing, New York
Banking Day means any day except a Saturday, Sunday or a legal holiday in The City of New York on
which banking institutions are authorized or required by law, regulation or executive order to
close.
ARTICLE XII.
SINKING FUNDS
49
Section 12.1
Applicability of Article
.
The provisions of this Article shall be applicable to any sinking fund for the retirement of
the Securities of a Series, except as otherwise permitted or required by any form of Security of
such Series issued pursuant to this Indenture.
The minimum amount of any sinking fund payment provided for by the terms of the Securities of
any Series is herein referred to as a mandatory sinking fund payment and any other amount
provided for by the terms of Securities of such Series is herein referred to as an optional
sinking fund payment. If provided for by the terms of Securities of any Series, the cash amount
of any sinking fund payment may be subject to reduction as provided in Section 12.2. Each sinking
fund payment shall be applied to the redemption of Securities of any Series as provided for by the
terms of the Securities of such Series.
Section 12.2
Satisfaction of Sinking Fund Payments with Securities
.
The Company may, in satisfaction of all or any part of any sinking fund payment with respect
to the Securities of any Series to be made pursuant to the terms of such Securities (1) deliver
outstanding Securities of such Series to which such sinking fund payment is
applicable (other than any of such Securities previously called for mandatory sinking fund
redemption) and (2) apply as credit Securities of such Series to which such sinking fund payment is
applicable and which have been repurchased by the Company or redeemed either at the election of the
Company pursuant to the terms of such Series of Securities (except pursuant to any mandatory
sinking fund) or through the application of permitted optional sinking fund payments or other
optional redemptions pursuant to the terms of such Securities, provided that such Securities have
not been previously so credited. Such Securities shall be received by the Trustee, together with
an Officers Certificate with respect thereto, not later than 15 days prior to the date on which
the Trustee begins the process of selecting Securities for redemption, and shall be credited for
such purpose by the Trustee at the price specified in such Securities for redemption through
operation of the sinking fund and the amount of such sinking fund payment shall be reduced
accordingly. If as a result of the delivery or credit of Securities in lieu of cash payments
pursuant to this Section 12.2, the principal amount of Securities of such Series to be redeemed in
order to exhaust the aforesaid cash payment shall be less than $100,000, the Trustee need not call
Securities of such Series for redemption, except upon receipt of a Company Order that such action
be taken, and such cash payment shall be held by the Trustee or a Paying Agent and applied to the
next succeeding sinking fund payment,
provided
,
however
, that the Trustee or such
Paying Agent shall from time to time upon receipt of a Company Order pay over and deliver to the
Company any cash payment so being held by the Trustee or such Paying Agent upon delivery by the
Company to the Trustee of Securities of that Series purchased by the Company having an unpaid
principal amount equal to the cash payment required to be released to the Company.
Section 12.3
Redemption of Securities for Sinking Fund
.
Not less than 45 days (unless otherwise indicated in the Board Resolution, supplemental
indenture hereto or Officers Certificate in respect of a particular Series of Securities) prior to
each sinking fund payment date for any Series of Securities, the Company will deliver to the
Trustee an Officers Certificate specifying the amount of the next ensuing
50
mandatory sinking fund
payment for that Series pursuant to the terms of that Series, the portion thereof, if any, which is
to be satisfied by payment of cash and the portion thereof, if any, which is to be satisfied by
delivering and crediting of Securities of that Series pursuant to Section 12.2, and the optional
amount, if any, to be added in cash to the next ensuing mandatory sinking fund payment, and the
Company shall thereupon be obligated to pay the amount therein specified. Not less than 30 days
(unless otherwise indicated in the Board Resolution, Officers Certificate or supplemental
indenture in respect of a particular Series of Securities) before each such sinking fund payment
date the Trustee shall select the Securities to be redeemed upon such sinking fund payment date in
the manner specified in Section 3.2 and cause notice of the redemption thereof to be given in the
name of and at the expense of the Company in the manner provided in Section 3.2. Such notice
having been duly given, the redemption of such Securities shall be made upon the terms and in the
manner stated in Sections 3.4, 3.5 and 3.6.
51
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed as of
the day and year first above written.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
COVANTA HOLDING CORPORATION
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ Anthony J. Orlando
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Name: Anthony J. Orlando
|
|
|
|
|
|
|
Its: President and Chief Executive Officer
|
|
|
|
|
|
|
|
|
|
|
|
WELLS FARGO BANK,
NATIONAL ASSOCIATION, as Trustee
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ Joseph P. ODonnell
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Name: Joseph P. ODonnell
|
|
|
|
|
|
|
Its: Vice President
|
|
|
52