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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON , 1997
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
INTERNATIONAL ALLIANCE SERVICES, INC.
(Exact Names of Registrants as Specified in Its Charter)
DELAWARE 22-279024
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
10055 SWEET VALLEY DRIVE
VALLEY VIEW, OHIO 44125
(216) 447-9000
(Address, Including Zip Code,
and Telephone Number, Including
Area Code, of Registrant's Principal Executive Offices)
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GREGORY J. SKODA
CHIEF FINANCIAL OFFICER
AND EXECUTIVE VICE PRESIDENT
10055 SWEET VALLEY DRIVE
VALLEY VIEW, OHIO 44125
(Name, Address, Including Zip Code,
and Telephone Number, Including Area Code,
of Agent for Service)
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With a copy to:
SETH R. MOLAY, P.C.
AKIN, GUMP, STRAUSS, HAUER & FELD, L.L.P.
1700 PACIFIC AVENUE, SUITE 4100
DALLAS, TEXAS 75201
(219) 969-2800
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after the effective date of this registration statement, as determined
by the registrant.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
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, check the following box. [x]
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. [ ] ________________
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. [ ] __________________
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
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Proposed Maximum Proposed Maximum
Title of Each Class of Securities Amount to be Offering Price Aggregate Offering Amount of
to be Registered Registered(1) Unit Price(2) Registration Fee(2)
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Debt Securities(3)
Common Stock, par value $.01 per
share(4)
Warrants(5)
Total . . . . . . . . . . . $125,000,000 (6) $125,000,000 $37,879
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(1) The amount to be registered represents the aggregate dollar value of each
class of securities to be registered.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(o). In no event will the aggregate initial offering
price of all securities issued from time to time pursuant to this
Registration Statement exceed $125,000,000.
(3) Subject to Footnote (2), there are being registered hereunder an
indeterminate principal amount of Debt Securities as may be sold from time
to time by the Registrant. If any such Debt Securities are issued at an
original issue discount, then the offering price shall be in such greater
principal amount as shall result in an aggregate initial offering price of
up to $125,000,000. There is also being registered hereunder an
indeterminate principal amount of Debt Securities as may be issuable upon
the exercise of the Warrants registered hereby.
(4) Subject to Footnote (2), there are being registered hereunder an
indeterminate number of shares of Common Stock as may be sold from time to
time by the Registrant. There are also being registered hereunder an
indeterminate number of shares of Common Stock as may be issuable upon
conversion of the Debt Securities or exercise of Warrants registered
hereby.
(5) Subject to Footnote (2), there are being registered hereunder an
indeterminate number of Warrants as may be sold from time to time by the
Registrant. There are also being registered hereunder an indeterminate
number of shares of Common Stock and an indeterminate principal amount of
Debt Securities as may be issuable upon the exercise of the Warrants
registered hereby.
(6) The proposed maximum initial offering price per unit will be determined,
from time to time, by the Registrant.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE
A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF THE
SECURITIES ACT OF 1933, AS AMENDED, OR UNTIL THE REGISTRATION STATEMENT SHALL
BECOME EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
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INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NEITHER BE SOLD NOR
MAY OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT
BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NEITHER CONSTITUTE AN OFFER TO SELL OR
THE SOLICITATION OF ANY OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE
SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE
UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF
ANY SUCH STATE.
SUBJECT TO COMPLETION, DATED NOVEMBER 14, 1997
PROSPECTUS
, 1997
$125,000,000
INTERNATIONAL ALLIANCE SERVICES, INC.
Debt Securities
Common Stock
Warrants
International Alliance Services, Inc. (the "Company" or "IASI") may
offer and issue from time to time (i) debt securities of the Company ("Debt
Securities"), consisting of debentures, notes, bonds and other unsecured
evidences of indebtedness in one or more series, (ii) shares of common stock,
par value $.01 per share of the Company ("Common Stock"), and (iii) warrants to
purchase Debt Securities or Common Stock ("Warrants"). The foregoing securities
are collectively referred to as the "Securities." Any Securities may be
offered with other Securities or separately. The Securities will be offered at
an aggregate initial offering price not to exceed $125,000,000.
SEE "RISK FACTORS" IN THE ACCOMPANYING PROSPECTUS SUPPLEMENT FOR A
DISCUSSION OF CERTAIN FACTORS THAT SHOULD BE CONSIDERED BY PROSPECTIVE
PURCHASERS OF THE SECURITIES.
Certain terms of any Debt Securities in respect of which this
Prospectus is being delivered will be set forth in an accompanying Prospectus
Supplement including, without limitation, the specific designation, aggregate
principal amount, purchase price, currency of payment, denomination, maturity,
interest rate (which may be fixed or variable) and time of payment of interest
(if any), guarantees thereof (if any), terms (if any) for the subordination,
redemption, purchase or conversion thereof, listing (if any) on a securities
exchange, additional or different covenants and events of default, and any
other material terms of the Debt Securities. The purchase price of any Common
Stock in respect of which this Prospectus is being delivered will be set forth
in an accompanying Prospectus Supplement. The Prospectus Supplement will also
contain information, where applicable, about certain United States federal
income tax considerations relating to the Securities covered by the Prospectus
Supplement.
The Company's Common Stock is quoted on The Nasdaq National Market
under the symbol "IASI." Any Common Stock offered hereby will be listed,
subject to official notice of issuance, on The Nasdaq National Market.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS
THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF
THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
The Securities may be sold on a negotiated or competitive bid basis to
or through underwriters or dealers designated from time to time or to other
purchasers directly or through agents designated from time to time. Certain
terms of any offering and sale of the Securities, including, where applicable,
the names of the underwriters, dealers or agents, if any, the principal amount
or number of shares to be purchased, the purchase price of the Securities, the
proceeds to the Company from such sale and any applicable commissions,
discounts and other items constituting compensation of such underwriters,
dealers or agents will also be set forth in an accompanying Prospectus
Supplement.
THIS PROSPECTUS MAY NOT BE USED TO CONSUMMATE SALES OF SECURITIES UNLESS
ACCOMPANIED BY A PROSPECTUS SUPPLEMENT.
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THE COMPANY
OVERVIEW
IASI is a leading provider of outsourced business services to small
and medium sized companies throughout the United States. The Company provides
integrated services in the following areas: accounting systems, advisory and
tax; employee benefits design and administration; human resources; information
technology systems; payroll; specialty insurance; valuation; and workers'
compensation. These services are provided through a network of 60 Company
offices in 25 states, as well as through its subsidiary Comprehensive Business
Services ("Comprehensive"), a franchisor of accounting services with 250
franchisee offices located in 42 states. As of October 31, 1997, the Company
served approximately 50,000 clients, of which approximately 24,000 are served
through the Comprehensive franchisee network. Management estimates that its
clients employ over 800,000 employees, including 24,000 employed by clients of
the Comprehensive franchise network.
The Company's clients typically have fewer than 500 employees, and
prefer to focus their scarce resources on operational competencies while
allowing IASI to provide non-core administrative functions. In many instances,
outsourcing administrative functions allows clients to enhance productivity,
reduce costs, and improve service, quality and efficiency. Depending on a
client's size and capabilities, it may choose to utilize all or a portion of
the Company's broad array of services, which it typically accesses through a
single Company representative.
Pursuant to a strategic redirection of the Company initiated in
November 1996, the Company began its acquisition program to expand its
operations rapidly in the outsourced business services industry from its
existing insurance platform. From November 1, 1996 through September 30, 1997,
the Company acquired 23 companies representing over $98 million in revenues.
The Company's acquisition program typically focuses on (i) market entry
acquisitions in which the Company establishes a significant presence in a city
or (ii) follow-on acquisitions of additional service providers in areas where
the Company's presence is established, increasing the number of clients served
and services offered in such markets. The Company seeks to acquire profitable,
well-run companies and to continue to employ their existing management teams,
providing them with incentive by utilizing a large proportion of restricted
IASI Common Stock as consideration for the acquisitions. The Company believes
that substantial additional acquisition opportunities exist throughout the
United States for several reasons, including the highly fragmented nature of
the industry, the advantages of economies of scale, and the desire of many
long-time owners for liquidity. From October 1, 1997 through November 3, 1997,
the Company has completed or has announced as pending an additional 15
acquisitions representing over $40 million in revenues.
The outsourced business services industry in which the Company
currently operates is highly fragmented with approximately 600,000 outsourcing
establishments collectively generating approximately $300 billion in annual
revenue and has grown at a compound annual rate in excess of 9% since 1992.
The Company believes that this growth reflects the following trends: (i) more
companies are now utilizing outsourced business services, (ii) companies that
have traditionally used a limited amount of outsourced business services are
now utilizing a broader array of such services, and (iii) the number of small
and medium sized businesses in the United States continues to grow.
The Company's goal is to be the nation's premier provider of
outsourced business services to small and medium sized companies. The
Company's strategies to achieve this goal include: (i) continuing to provide
clients with a broad range of high quality services, (ii) continuing to expand
locally through internal
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growth by increasing the number of clients it serves and increasing the number
of services it provides to existing clients, and (iii) continuing to expand
nationally through an aggressive acquisition program.
USE OF PROCEEDS
Unless a Prospectus Supplement indicates otherwise, the net proceeds
to be received by the Company from the issue and sale from time to time of the
Securities will be added to the general funds of the Company to be used for
general corporate purposes, working capital requirements and the cash portion
of acquisitions. Pending such application, such net proceeds may be invested in
short-term marketable securities. Each Prospectus Supplement will contain
specific information concerning the use of proceeds from the sale of Securities
to which it relates.
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the Company's historical ratio of
earnings to fixed charges for the three years ended December 31, 1996, and the
nine months ended September 30, 1996 and 1997:
Nine Months
Ended
Year Ended December 31, September 30,
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1994 1995 1996 1996 1997
Ratio (1) . . . . . . . . . . 187.3 78.6 113.3 463.0 41.8
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(1) For purposes of computing the ratio of earnings to fixed charges,
earnings consist of pretax income from continuing operations adjusted
to exclude interest expense. Fixed charges consist of interest
expense on capitalized lease obligations and debt borrowings.
DESCRIPTION OF DEBT SECURITIES
The following sets forth certain general terms and provisions of the
Indenture (as defined herein) under which the Debt Securities are to be issued.
The particular terms of the Debt Securities will be set forth in a Prospectus
Supplement relating to such Debt Securities.
The Debt Securities are to be issued under one or more Indentures, as
amended or supplemented from time to time (the "Indenture"), to be entered into
between the Company, the guarantors (as defined below), if any, and Star Bank,
N.A., as trustee, (together with any other trustee(s) chosen by the Company,
qualified to act as such under the Trust Indenture Act of 1939, as amended (the
"TIA") and appointed in a supplemental indenture with respect to a particular
series, the "Trustee"). The form of Indenture has been filed as an exhibit to
the Registration Statement of which this Prospectus is a part and will be
available for inspection at the corporate trust office of the Trustee, or as
described above under "Available Information." The Indenture is subject to,
and governed by, the TIA. The Company will execute an Indenture if and when
the Company issues any Debt Securities. The statements made hereunder relating
to the Indenture and the Debt Securities to be issued thereunder are summaries
of certain provisions thereof and do not purport to be complete and are subject
to, and are qualified in their entirety by reference to, all provisions of the
Indenture (including those terms made a part of the Indenture by reference to
the TIA) and such Debt Securities. Capitalized terms used but not defined
herein shall have the respective meanings set forth in the Indenture.
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References below to an "Indenture" are deemed to constitute a reference to the
applicable Indenture under which a particular series of Debt Securities is
issued.
GENERAL
The Debt Securities will be unsecured obligations of the Company. The
Debt Securities may be issued in one or more series. Specific terms of each
series of Debt Securities will be contained in authorizing resolutions or a
supplemental indenture relating to that series. There will be Prospectus
Supplements relating to particular series of Debt Securities. Each Prospectus
Supplement will describe, as to the Debt Securities to which it relates: (i)
the title of the Debt Securities; (ii) any limit upon the aggregate principal
amount of a series of Debt Securities which may be issued; (iii) the date or
dates on which principal of the Debt Securities will be payable and the amount
of principal which will be payable; (iv) the rate or rates (which may be fixed
or variable) at which the Debt Securities will bear interest, if any, as well
as the dates from which interest will accrue, the dates on which interest will
be payable and the record date for the interest payable on any payment date;
(v) the currency or currencies in which principal, premium, if any, and
interest, if any, will be paid; (vi) the place or places where principal,
premium, if any, and interest, if any, on the Debt Securities will be payable
and where Debt Securities which are in registered form can be presented for
registration of transfer or exchange and the identification of any depository
or depositories for any global debt securities; (vii) any provisions regarding
the right of the Company to redeem or purchase Debt Securities or of holders to
require the Company to redeem Debt Securities; (viii) the right, if any, of
holders of the Debt Securities to convert them into stock or other securities
of the Company, including any provisions intended to prevent dilution of the
conversion rights or otherwise; (ix) any provisions by which the Company will
be required or permitted to make payments to a sinking fund which will be used
to redeem Debt Securities or a purchase fund which will be used to purchase
Debt Securities; (x) the percentage of the principal amount at which Debt
Securities will be issued and, if other than the full principal amount thereof,
the percentage of the principal amount of the Debt Securities which is payable
if maturity of the Debt Securities is accelerated because of a default; (xi)
the terms, if any, upon which Debt Securities may be subordinated to other
indebtedness of the Company; (xii) any additions to, modifications of or
deletions from the terms of the Debt Securities with respect to Events of
Default or covenants or other provisions set forth in the Indenture; and (xiii)
any other material terms of the Debt Securities, which may be different than
the terms set forth in this Prospectus.
Each Prospectus Supplement will describe, as to the Debt Securities to
which it relates, any guarantees (the "Guarantees") by certain direct and
indirect subsidiaries of the Company which may guarantee the Debt Securities
(the "Guarantors"), including the terms of subordination, if any, of any such
Guarantee.
EVENTS OF DEFAULT AND REMEDIES
An Event of Default with respect to any series of Debt Securities is
defined in the Indenture as being (i) default for a period of 30 days in payment
of any interest on any Debt Security of such series when it becomes due and
payable, (ii) default in payment of the principal of (or premium, if any), on
any of the Debt Securities of such series at its maturity (iii) default in the
deposit of any sinking fund payment, when and as due by the terms of any Debt
Security of such series, (iv) default by the Company or any Guarantor for a
period of 60 days after notice in the observance or performance of any other
covenants in the Indenture relating to such series, and (v) certain events
involving bankruptcy, insolvency or reorganization of the Company or certain
Guarantors.
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The Indenture provides that if any Event of Default has occurred and is
continuing with respect to any series of Debt Securities, the Trustee or the
holders of not less than 25% in principal amount of such series of Debt
Securities then outstanding may declare the principal of all the Debt Securities
of such series to be due and payable immediately. However, the holders of a
majority in principal amount of the Debt Securities of such series then
outstanding by written notice to the Trustee and the Company may waive any Event
of Default (other than any Event of Default in payment of principal or interest
or in respect of certain covenants) with respect to such series of Debt
Securities. Holders of a majority in principal amount of the then outstanding
Debt Securities of any series may rescind an acceleration with respect to such
series and its consequences (except an acceleration due to nonpayment of
principal or interest on such series) if the rescission would not conflict with
any judgment or decree and if all existing Events of Default with respect to
such series have been cured or waived.
The holders of a majority in principal amount of the Debt Securities
of any series then outstanding will have the right to direct the time, method
and place of conducting any proceedings for any remedy available to the Trustee
with respect to such series, subject to certain limitations specified in the
Indenture.
DEFEASANCE OF INDENTURE
The Indenture permits the Company and the Guarantors to terminate all
of their respective obligations under the Indenture as they relate to any
particular series of Debt Securities, other than the obligation to pay
interest, if any, on and the principal of the Debt Securities of such series
and certain other obligations, at any time by (i) depositing in trust with the
Trustee, under an irrevocable trust agreement, money or U.S. Government
Obligations in an amount sufficient to pay principal of and interest, if any,
on the Debt Securities of such series to their maturity, and (ii) complying
with certain other conditions, including delivery to the Trustee of an opinion
of counsel or a ruling received from the Internal Revenue Service to the effect
that holders will not recognize income, gain or loss for federal income tax
purposes as a result of the Company's exercise of such right 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 otherwise.
In addition, the Indenture permits the Company and the Guarantors to
terminate all of their respective obligations under the Indenture as they
relate to any particular series of Debt Securities (including the obligations
to pay interest, if any, on and the principal of the Debt Securities of such
series and certain other obligations), at any time by (i) depositing in trust
with the Trustee, under an irrevocable trust agreement, money or U.S.
government obligations in an amount sufficient to pay principal of and
interest, if any, on the Debt Securities of such series to their maturity, and
(ii) complying with certain other conditions, including delivery to the Trustee
of an opinion of counsel or a ruling received from the Internal Revenue Service
to the effect that holders will not recognize income, gain or loss for federal
income tax purposes as a result of the Company's exercise of such right 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 otherwise, which opinion of
counsel is based upon a change in the applicable federal tax law since the date
of the Indenture.
TRANSFER AND EXCHANGE
A holder will be able to transfer or exchange Debt Securities only in
accordance with the provisions of the Indenture. The registrar may require a
holder, among other things, to furnish appropriate endorsements and transfer
documents, and to pay any taxes and fees required or permitted by the
Indenture.
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AMENDMENT, SUPPLEMENT AND WAIVER
Subject to certain exceptions, the Indenture, the Debt Securities or
the Guarantees of a particular series may be amended or supplemented with the
consent (which may include consents obtained in connection with a tender offer
or exchange offer for Debt Securities) of the holders of at least a majority in
principal amount of the Debt Securities of such series then outstanding, and
any existing Default under, or compliance with any provision of the Indenture
relating to a particular series of Debt Securities may be waived (other than
any continuing Default or Event of Default in the payment of interest on or the
principal of such Debt Securities) with the consent (which may include consents
obtained in connection with a tender offer or exchange offer for Debt
Securities) of the holders of a majority in principal amount of the Debt
Securities of such series then outstanding. Without the consent of any holder,
the Company and the Trustee may amend or supplement the Indenture, the Debt
Securities or the Guarantees to (i) cure any ambiguity, defect or
inconsistency, (ii) provide for uncertificated Debt Securities in addition to
or in place of certificated Debt Securities, (iii) make any change that does
not adversely affect the legal rights of any holder, to create a series and
establish its terms, or (iv) delete a Guarantor which, in accordance with the
terms of the Indenture, ceases to be liable on its Guarantee.
Without the consent of each holder affected, the Company and the
Trustee may not (i) reduce the amount of Debt Securities of such series whose
holders must consent to an amendment, supplement or waiver, (ii) reduce the
rate of or change the time for payment of interest, (iii) reduce the principal
of or change the fixed maturity of any Debt Security or alter the provisions
with respect to redemptions or mandatory offers to repurchase Debt Securities
pursuant to certain covenants set forth in the Indenture, (iv) make any Debt
Security payable in money other than that stated in the Debt Security, (v)
modify the ranking or priority of the Debt Securities or any Guarantee, (vi)
release any Guarantor from any of its obligations under its Guarantee or the
Indenture otherwise than in accordance with the Indenture, or (vii) waive a
continuing default in the payment of principal of or interest on the Debt
Securities.
The right of any holder to participate in any consent required or
sought pursuant to any provision of the Indenture (and the obligation of the
Company to obtain any such consent otherwise required from such holder) may be
subject to the requirement that such holder shall have been the holder of
record of any Debt Securities with respect to which such consent is required or
sought as of a date identified by the Trustee in a notice furnished to holders
in accordance with the terms of the Indenture.
CONCERNING THE TRUSTEE
In the ordinary course of its business, Star Bank, N.A., the Trustee,
provides, and may continue to provide, services to the Company as transfer
agent for the Common Stock of the Company and is a party to the Company's
Credit Agreement dated as of October 3, 1997. The Indenture contains certain
limitations on the rights of the Trustee, if it becomes a creditor of the
Company, to obtain payment of claims in certain cases or to realize on certain
property received in respect of any such claim as security or otherwise. The
Trustee will be permitted to engage in other transactions; however, if it
acquires any conflicting interest, it must eliminate such conflict or resign.
The Indenture provides that if an Event of Default occurs and is not
cured, the Trustee will be required, in the exercise of its power, to use the
degree of care of a prudent person in similar circumstances in the conduct of
its own affairs. The Trustee may refuse to perform any duty or exercise any
right or power under the Indenture, unless it receives indemnity, satisfactory
to it, against any loss, liability or expense.
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GOVERNING LAW
The Indenture, the Debt Securities and the Guarantees will be governed
by the laws of the State of New York without giving effect to principles of
conflict of laws.
DESCRIPTION OF COMMON STOCK
The Company's authorized capital stock is 100,000,000 shares of Common
Stock, par value $.01 per share. As of November 6, 1997, 40,058,481 shares of
Common Stock were outstanding.
Holders of shares of Common Stock are entitled to one vote for each
share held of record on all matters submitted to a vote of stockholders. There
are no cumulative voting rights with respect to the election of directors.
Accordingly, the holder or holders of a majority of the outstanding shares of
Common Stock will be able to elect the entire Board of Directors of the
Company. Holders of Common Stock have no preemptive rights and are entitled to
such dividends as may be declared by the Board of Directors of the Company out
of funds legally available therefor. The Common Stock is not entitled to any
sinking fund, redemption or conversion provisions. On liquidation, dissolution
or winding up of the Company, the holders of Common Stock are entitled to share
ratably in the net assets of the Company remaining after the payment of all
creditors, if any. The outstanding shares of Common Stock are duly authorized,
validly issued, fully paid and nonassessable. The transfer agent and registrar
for the Common Stock is Star Bank, N.A.
The Company currently has the following provisions in its charter or
bylaws which could be considered to be "anti-takeover" provisions: (i) an
article in its charter requiring the affirmative vote of the holders of a
majority of the outstanding shares of Common Stock or two-thirds of the other
directors to remove a director and (ii) a bylaw limiting the persons who may
call special meetings of stockholders to the Board of Directors or the
President of the Company. These provisions may have the effect of delaying
stockholder actions with respect to certain business combinations and the
election of new members to the Board of Directors. As such, the provisions
could have the effect of discouraging open market purchases of the Company's
Common Stock because they may be considered disadvantageous by a stockholder
who desires to participate in a business combination or elect a new director.
The Company is a Delaware corporation and is subject to Section 203 of
the Delaware General Corporation Law. In general, Section 203 prevents an
"interested stockholder" (defined generally as a person owning 15% or more of
the Company's outstanding voting stock) from engaging in a "business
combination" with the Company for three years following the date that person
became an interested stockholder unless: (i) before that person became an
interested stockholder, the Board of Directors of the Company approved the
transaction in which the interested stockholder became an interested
stockholder or approved the business combination; (ii) upon completion of the
transaction that resulted in the interested stockholder becoming an interested
stockholder, the interested stockholder owned at least 85% of the voting stock
of the Company outstanding at the time the transaction commenced (excluding
stock held by persons who are both directors and officers of the Company or by
certain employee stock plans); or (iii) on or following the date on which that
person became an interested stockholder, the business combination is approved
by the Company's Board and authorized at a meeting of stockholders by the
affirmative vote of the holders of at least 66-2/3% of the outstanding voting
stock of the Company (excluding shares held by the interested stockholder). A
"business combination" includes mergers, asset sales and other transactions
resulting in a financial benefit to the interested stockholder.
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DESCRIPTION OF WARRANTS
The Company may issue Warrants, including Warrants to purchase Debt
Securities or Common Stock as well as other types of Warrants. Warrants may be
issued independently or together with any Debt Securities or Common Stock and
may be attached to or separate from such Debt Securities or Common Stock. Each
series of Warrants will be issued under a separate warrant agreement (each a
"Warrant Agreement") to be entered into between the Company and a warrant agent
("Warrant Agent"). The Warrant Agent will act solely as an agent of the Company
in connection with the Warrants of such series and will not assume any
obligation or relationship of agency or trust for or with any holders or
beneficial owners of Warrants.
The applicable Prospectus Supplement will describe the following terms
of the Warrants in respect of which this Prospectus is being delivered: (i) the
title of such Warrants; (ii) the aggregate number of such Warrants; (iii) the
price or prices at which such Warrants will be issued; (iv) the designation,
aggregate principal amount and terms of the Debt Securities or Common Stock
purchasable upon exercise of such Warrants; (v) if applicable, the designation
and terms of the Debt Securities with which such Warrants are issued and the
number of such Warrants issued with each such Debt Security; (vi) if
applicable, the date on and after which such Warrants and the related Debt
Securities will be separately transferable; (vii) the price at which the Debt
Securities or Common Stock purchasable upon exercise of such Warrants may be
purchased; (viii) the date on which the right to exercise such Warrants shall
commence and the date on which such right shall expire; (ix) if applicable, the
minimum or maximum amount of such Warrants which may be exercised at any one
time; (x) if applicable, any index or formula used to determine the amount of
payments of principal of and any premium and interest on Debt Securities
purchasable upon exercise of Warrants; (xi) information with respect to
book-entry procedures, if any; (xii) if applicable, a discussion of certain
United States Federal income tax considerations; and (xiii) any other terms of
such Warrants, including terms, procedures and limitations relating to the
exchange and exercise of such Warrants.
PLAN OF DISTRIBUTION
The Company may offer and sell the Securities to or through
underwriters or dealers, and also may offer and sell the Securities directly to
other purchasers or through agents.
Each Prospectus Supplement will set forth the terms of the offering of
the particular series of Securities to which the Prospectus Supplement relates,
including the name or names of any underwriters, dealers or agents, the
purchase price or prices of the Securities, the proceeds to the Company from
the sale of such series of Securities, the use of such proceeds, any initial
public offering price or purchase price of such series of Securities, any
underwriting discount or commission, any discounts, concessions or commissions
allowed or reallowed or paid by any underwriters to other dealers, any
commissions paid to any agents and the securities exchanges, if any, on which
such Securities will be listed. Any initial public offering price or purchase
price and any discounts, concessions or commissions allowed or reallowed or
paid by any underwriter to other dealers may be changed from time to time.
Sales of Common Stock offered pursuant to any Prospectus Supplement
may be effected from time to time in one or more transactions through The
Nasdaq National Market, or in negotiated transactions or any combination of
such methods of sale, at market prices prevailing at the time of sale, at
prices related to such prevailing market prices, or at other negotiated prices.
9
10
In connection with distributions of Common Stock or otherwise, the
Company may enter into hedging transactions with broker-dealers in connection
with which such broker-dealers may sell Common Stock registered hereunder in
the course of hedging through short sales the positions they assumed with the
Company.
In connection with the sale of Securities, underwriters or agents may
receive compensation from the Company or from purchasers of Securities for whom
they may act as agents in the form of discounts, concessions or commissions.
Underwriters may sell Securities to or through dealers, and such dealers may
receive compensation in the form of discounts, concessions or commissions from
the underwriters and/or commissions from the purchasers for whom they may act
as agents. Underwriters, dealers and agents that participate in the
distribution of Securities may be deemed to be underwriters, and any discounts
or commissions received by them from the Company and any profit on the resale
of Securities by them may be deemed to be underwriting discounts and
commissions under the Securities Act. Any such underwriter or agent will be
identified, and any such compensation received from the Company will be
described, in the applicable Prospectus Supplement.
Under agreements which may be entered into by the Company,
underwriters and agents who participate in the distribution of Securities may
be entitled to indemnification by the Company against certain liabilities,
including liabilities under the Securities Act.
If so indicated in the applicable Prospectus Supplement, the Company
will authorize underwriters or other persons acting as the Company's agent to
solicit offers by certain institutions to purchase Debt Securities or Common
Stock or Warrants to purchase Debt Securities or Common Stock from the Company
pursuant to contracts providing for payment and delivery on a future date.
Institutions with which such contracts may be made include commercial and
savings banks, insurance companies, pension funds, investment companies,
educational and charitable institutions and others, but in all cases such
institutions must be approved by the Company. The obligations of any purchaser
under any such contract will be subject to the condition that the purchase of
the offered Debt Securities or Common Stock shall not at the time of delivery
be prohibited under the laws of the jurisdiction to which such purchaser is
subject. The underwriters and such other agents will not have any
responsibility in respect of the validity or performance of such contracts.
The Company may grant underwriters who participate in the distribution
of Common Stock an option to purchase additional Common Stock to cover
over-allotments, if any.
The place and date of delivery for the Securities in respect of which
this Prospectus is being delivered will be set forth in the applicable
Prospectus Supplement.
Unless otherwise indicated in the applicable Prospectus Supplement,
the Securities in respect of which this Prospectus is being delivered (other
than Common Stock) will be a new issue of securities, will not have an
established trading market when issued and will not be listed on any securities
exchange. Any underwriters or agents to or through whom such Securities are
sold by the Company for public offering and sale may make a market in such
Securities, but such underwriters or agents will not be obligated to do so and
may discontinue any market making at any time without notice. No assurance can
be given as to the liquidity of the trading market for any such Securities.
Certain of the underwriters and their affiliates may from time to time
perform various commercial banking and investment banking services for the
Company, for which customary compensation is received.
10
11
LEGAL MATTERS
The validity of the Shares offered hereby will be passed upon for the
Company by Akin, Gump, Strauss, Hauer & Feld, L.L.P., Houston, Texas. Rick L.
Burdick, a director of the Company, is a partner in Akin, Gump, Strauss, Hauer
& Feld, L.L.P.
EXPERTS
The consolidated and combined financial statements of International Alliance
Services, Inc. and its subsidiaries as of December 31, 1996 and 1995, and for
each of the years in the three year period ended December 31, 1996, have been
incorporated by reference herein in reliance upon the report of the KPMG Peat
Marwick LLP, independent certified public accountants, incorporated by
reference herein, and upon the authority of said firm as experts in accounting
and auditing.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules
and regulations promulgated thereunder, and, in accordance therewith, files
reports, proxy and information statements and other information with the
Securities and Exchange Commission (the "Commission"). These reports, proxy
and information statements and other information concerning the Company can be
inspected and copied at the public reference facilities maintained by the
Commission at Room 1024, 450 Fifth Street, N.W., Washington, D.C. 20549, and
at the Commission's regional offices located at Northwest Atrium Center, Suite
1400, 500 West Madison Street, Room 3190, Chicago, Illinois 60661 and at Seven
World Trade Center, 13th Floor, New York, New York 10048. Copies of such
material can also be obtained from the Commission at prescribed rates through
its Public Reference Section at 450 Fifth Street, N.W., Washington, D.C.
20549. The Commission also maintains a site on the World Wide Web at
http://www.sec.gov that contains reports, proxy and information statements and
other information regarding registrants such as the Company that file
electronically with the Commission. Such material is also available for
inspection at the offices of The National Association of Securities Dealers,
Inc. (the "NASD"), 1735 K Street, N.W., Washington, D.C. 20006.
The Company has filed with the Commission a Registration Statement on
Form S-3 under the Securities Act with respect to the Securities offered hereby
(including all amendments and supplements thereto, the "Registration
Statement"). This Prospectus, which constitutes a part of the Registration
Statement, does not contain all of the information set forth in the
Registration Statement, certain parts of which have been omitted in accordance
with the rules and regulations of the Commission. For further information with
respect to the Company and such Securities, reference is made to the
Registration Statement, including the documents and exhibits filed or
incorporated as a part thereof. Statements contained herein concerning the
provisions of certain documents are not necessarily complete and, in each
instance, reference is made to the copy of such document filed as an exhibit to
the Registration Statement or otherwise filed with the Commission. Each such
statement is qualified in its entirety by such reference. The Registration
Statement and the exhibits thereto can be inspected and copied at the public
reference facilities and regional offices of the Commission and at the offices
of the NASD referred to above.
11
12
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents, which have been filed by the Company with the
Commission pursuant to the Exchange Act, are incorporated by reference and made
a part of this Prospectus: (i) the Company's Annual Report on Form 10-K for the
fiscal year ended December 31, 1996; (ii) all other reports filed pursuant to
Section 13(a) or 15(d) of the Exchange Act since December 31, 1996,
specifically including the Company's Quarterly Report on Form 10-Q for the
quarters ended March 31, 1997, June 30, 1997, and September 30, 1997,
respectively, and the Company's Current Reports on Form 8-K dated February 19,
1997 (as amended on Form 8-K/A filed on April 2, 1997), April 3, 1997, April
21, 1997, and July 23, 1997 (as amended on Form 8-K/A dated October 3, 1997),
respectively; and (iii) the Company's Proxy Statement dated April 1, 1997
relating to the 1997 Annual Meeting of Stockholders held May 6, 1997.
All documents filed by the Company pursuant to Sections 13(a), 13(c),
14 or 15(d) of the Exchange Act subsequent to the date of this Prospectus and
prior to the termination of the offering shall be deemed to be incorporated by
reference in this Prospectus and to be a part hereof from the date of filing of
such documents. Any statement contained in a document or information
incorporated or deemed to be incorporated herein by reference shall be deemed
to be modified or superseded for purposes of this Prospectus to the extent that
a statement contained herein or in any subsequently filed document that also
is, or is deemed to be, incorporated herein by reference, 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.
The Company undertakes to provide, without charge, to each person,
including any beneficial owner, to whom a copy of this Prospectus is delivered,
upon the written or oral request of such person, a copy of any and all of the
documents or information referred to above that has been or may be incorporated
by reference in this Prospectus (excluding exhibits to such documents unless
such exhibits are specifically incorporated by reference). Requests should be
directed to Corporate Secretary, International Alliance Services, Inc., 10055
Sweet Valley Drive, Valley View, Ohio 44125, telephone (216) 447-9000.
12
13
================================================================================
TABLE OF CONTENTS
PAGE
The Company . . . . . . . . . . . . . . . . . 3
Use of Proceeds . . . . . . . . . . . . . . . 4
Ratio of Earnings to Fixed Charges . . . . . 4
Description of Debt Securities . . . . . . . 4
Description of Common Stock . . . . . . . . . 8
Description of Warrants . . . . . . . . . . . 9
Plan of Distribution . . . . . . . . . . . . 9
Legal Matters . . . . . . . . . . . . . . . . 11
Experts . . . . . . . . . . . . . . . . . . . 11
Available Information . . . . . . . . . . . . 11
Incorporation of Certain Documents
by Reference . . . . . . . . . . . . . . . 12
================================================================================
$125,000,000
INTERNATIONAL ALLIANCE
SERVICES, INC.
Debt Securities
Common Stock
Warrants
---------------
PROSPECTUS
---------------
, 1997
================================================================================
14
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14 - OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following sets forth expenses, other than underwriting fees and
commissions, expected to be borne by the Registrant in connection with the
distribution of the securities being registered:
Securities and Exchange Commission registration fee $ 37,879
Blue Sky fees and expenses *
Rating agency fees *
Trustee fees and expenses *
Legal fees and expenses *
Printing and engraving expenses *
Accounting fees and expenses *
Miscellaneous(1) *
-------------
Total (2) *
=============
- ----------------
(1) Includes estimates of Nasdaq listing fees and NASD filing fees.
(2) All amounts listed above are estimates, except for the Securities and
Exchange Commission registration fee.
* to be filed by amendment.
ITEM 15 - INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the General Corporation Law of the State of Delaware
(the "DGCL") empowers a Delaware corporation to indemnify any person who was or
is a party, or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative
or investigative (other than an action by or in the right of such corporation)
by reason of the fact that such person is or was an officer or director of such
corporation, or is or was serving at the request of such corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise. The indemnity may include expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by such person in connection with such action,
suit or proceeding, provided that such person acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests of
the corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe such person's conduct was unlawful. A Delaware
corporation may indemnify past or present officers and directors of such
corporation or of another corporation or other enterprise at the former
corporation's request, in an action by or in the right of the corporation to
procure a judgment in its favor under the same conditions, except that no
indemnification is permitted without judicial approval if the officer or
director is adjudged to be liable to the corporation. Where an officer or
director is successful on the merits or otherwise in defense of any action
referred to above, or in defense of any claim, issue or matter therein, the
corporation must indemnify such person against the expenses (including
attorneys' fees) which such person actually and reasonably incurred in
connection therewith. Section 145 further provides that any indemnification
shall be made by the corporation only as authorized in each specific case upon
a determination that indemnification of such person is proper because he has
met the applicable standard of conduct by the (i) stockholders, (ii) board of
directors by a majority vote of a quorum consisting of directors who were not
parties to such action, suit or proceeding, (iii) committee of directors who
are not parties to such action, suit or proceeding designated by majority vote
by such disinterested directors even if less than a quorum, or (iv) independent
legal counsel, if
II-1
15
there are no such disinterested directors, or if such disinterested directors
so direct. Section 145 further provides that indemnification pursuant to its
provisions is not exclusive of other rights of indemnification to which a
person may be entitled under any bylaw, agreement, vote of stockholders or
disinterested directors or otherwise.
The Amended and Restated Certificate of Incorporation, as amended, of
the Registrant entitles the Board of Directors to provide for indemnification
of directors and officers to the fullest extent provided by law, except for
liability (i) for any breach of director's duty of loyalty to the Registrant or
its stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) for unlawful
payments of dividends, or for unlawful stock purchases or redemptions, or (iv)
for any transaction from which the director derived an improper personal
benefit.
Article VII of the Amended and Restated Bylaws of the Registrant
provide that to the fullest extent and in the manner permitted by the laws of
the State of Delaware and specifically as is permitted under Section 145 of the
DGCL, the Registrant shall indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative,
other than an action by or in the right of the Registrant, by reason of the
fact that such person is or was a director, officer, employee or agent of the
Registrant, or is or was serving at the request of the Registrant as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against expenses, including attorneys' fees,
judgments, fines and amounts paid in settlement actually and reasonably
incurred in connection with such action, suit, or proceeding if such person
acted in good faith and in a manner he reasonably believed to be in and not
opposed to the best interests of the Registrant, and with respect to any
criminal action or proceeding, such person had no reasonable cause to believe
his conduct was unlawful. Determination of an action, suit, or proceeding by
judgment, order, settlement, conviction, or upon a plea of nolo contendere or
its equivalent, shall not, of itself, create a presumption that a person did
not act in good faith and in a manner such person reasonably believed to be in
and not opposed to the best interests of the Registrant, and with respect to
any criminal action or proceeding, had reasonable cause to believe his conduct
was lawful.
The Amended and Restated Bylaws provide that any decision as to
indemnification shall be made: (a) by the Board of Directors of the Registrant
by a majority vote of a quorum consisting of directors who were not parties to
such action, suit or proceeding; or (b) if such a quorum is not obtainable, or
even if obtainable, if a quorum of disinterested directors so directs, by
independent legal counsel in a written opinion; or (c) by the stockholders.
The Board of Directors of the Registrant may authorize indemnification of
expenses incurred by an officer or director in defending a civil or criminal
action, suit or proceeding in advance of the final disposition of such action,
suit or proceeding. Indemnification pursuant to these provisions is not
exclusive of any other rights to which those seeking indemnification may be
entitled under any bylaw, agreement, vote of stockholders or disinterested
directors or otherwise and shall continue as to a person who has ceased to be a
director or officer. The Registrant may purchase and maintain insurance on
behalf of any person who is or was a director, officer, employee or agent of
the Registrant.
Further, the Amended and Restated Bylaws of the Registrant provide
that the indemnity provided will be extended to the directors, officers,
employees and agents of any constituent corporation (including any constituent
of a constituent) absorbed in a consolidation or merger which, if its separate
existence had continued, would have had power and authority to indemnify its
directors, officers, and employees or agents so that any person who is or was a
director, officer, employee or agent of such constituent corporation, or is or
was serving at the request of such constituent corporation as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, shall stand in the same position
II-2
16
under the provisions of the Amended and Restated Bylaws with respect to the
resulting or surviving corporation as such person would have with respect to
such constituent corporation if its separate existence had continued.
The Registrant does not currently maintain a separate insurance policy
relating to its directors and officers; however, the Registrant is currently
considering purchasing and maintaining an insurance policy under which the
directors and officers of the Registrant would be insured, within the limits
and subject to the limitations of the policy, against certain expenses in
connection with the defense of certain claims, actions, suits or proceedings,
and certain liabilities which might be imposed as a result of such claims,
actions, suits or proceedings, which may be brought against them by reason of
being or having been such directors or officers.
ITEM 16 - EXHIBITS
Exhibit Number Description
**4.1 Amended and Restated Certificate of Incorporation of the Registrant (filed as Exhibit
3.1 to Registration Statement on Form 10, Commission File No. 000-25890 and
incorporated herein by reference)
**4.2 Certificate of Amendment to the Amended and Restated Certificate of Incorporation of
the Registrant (filed as Exhibit 3.2 to Annual Report on Form 10-K for the fiscal year
ended December 31, 1996, Commission File No. 000-25890 and incorporated herein by
reference)
**4.3 Amended and Restated Bylaws of the Registrant (filed as Exhibit 3.2 to Registration
Statement on Form 10, Commission File No. 000-25890 and incorporated herein by
reference)
4.4 Form of Indenture for Debt Securities
4.5 Form of Debt Security (included in Exhibit 4.4)
*5.1 Opinion of Akin, Gump, Strauss, Hauer & Feld, L.L.P.
12.1 Statement re Computation of Ratios
*23.1 Consent of Akin, Gump, Strauss, Hauer & Feld, L.L.P. (included in Exhibit 5.1)
23.2 Consent of KPMG Peat Marwick LLP
24.1 Power of Attorney (included in the signature page of this Registration Statement)
25.1 Statement of Eligibility of Trustee on Form T-1
---------------
* To be filed by amendment.
** Previously filed.
ITEM 17 - UNDERTAKINGS
(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:
II-3
17
(i) to include any prospectus required by
Section 10(a)(3) of the Securities Act;
(ii) to reflect in the prospectus any facts or
events arising after the effective date of this 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 this
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 a 20% change in the maximum
aggregate offering price set forth in the "Calculation of
Registration Fee" table in this Registration Statement;
(iii) to include any material information with
respect to the plan of distribution not previously disclosed
in this Registration Statement or any material change to such
information in this Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) above do not apply
if the information required to be included in a post-effective amendment by
these paragraphs is contained in periodic reports filed with or furnished by
the Registrant pursuant to Section 13 or 15(d) of the Exchange Act that are
incorporated by reference in this Registration Statement;
(2) that, for the purpose of determining any liability
under the Securities Act, each such post- effective amendment shall be
deemed to be a new registration statement relating to the securities
offered herein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof; and
(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.
(b) The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act, each filing of
the Registrant's annual report pursuant to Section 13(a) or Section 15(d) of
the Exchange Act that is incorporated by reference in this Registration
Statement shall be deemed to be a new registration statement relating to the
securities offered herein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act 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 Commission such
indemnification is against public policy as expressed in the Securities Act 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, 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 and will be governed
by the final adjudication of such issue.
II-4
18
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, the Registrant certifies that it has reasonable grounds to believe
that it meets all of 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 Valley View, State of
Ohio, on November 14, 1997.
INTERNATIONAL ALLIANCE SERVICES, INC.
By: /s/ GREGORY J. SKODA
---------------------------------------
Gregory J. Skoda
Executive Vice President
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears
below constitutes and appoints Michael G. DeGroote and Gregory J. Skoda, and
each of them, with the power to act without the other, his true and lawful
attorneys- in-fact and agents, with full power of substitution and
resubstitution, for him in his name, place and stead, in any and all
capacities, to sign on his behalf individually and in each capacity stated
below any or all amendments or post- effective amendments to this Registration
Statement, and to file the same, with all exhibits thereto, and other documents
in connection therewith, with the Securities and Exchange commission, granting
unto said attorneys-in-fact and agents, 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 and about the premises, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents, or either of them, or their
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 has been signed by the following persons
in the capacities indicated on November 14, 1997.
SIGNATURE TITLE
- ------------------------------------------- --------------------------------------------------
/s/ MICHAEL G. DEGROOTE President, Chief Executive Officer, Chairman of the
- ------------------------------------------- Board and Director
Michael G. DeGroote (Principal Executive Officer)
/s/ GREGORY J. SKODA Executive Vice President, Chief Financial Officer and
- ------------------------------------------- Director
Gregory J. Skoda (Principal Accounting and Financial Officer)
/s/ RICK L. BURDICK Director
- -------------------------------------------
Rick L. Burdick
/s/ HARVE A. FERRILL Director
- -----------------------------------------
Harve A. Ferrill
II-5
19
/s/ HUGH P. LOWENSTEIN Director
- --------------------------------
Hugh P. Lowenstein
/s/ RICHARD C. ROCHON Director
- -----------------------------------------
Richard C. Rochon
II-6
20
EXHIBIT INDEX
Exhibit Number Description
- -------------- -----------
**4.1 Amended and Restated Certificate of Incorporation of the Registrant (filed as Exhibit
3.1 to Registration Statement on Form 10, Commission File No. 000-25890 and
incorporated herein by reference)
**4.2 Certificate of Amendment to the Amended and Restated Certificate of Incorporation of
the Registrant (filed as Exhibit 3.2 to Annual Report on Form 10-K for the fiscal year
ended December 31, 1996, Commission File No. 000-25890 and incorporated herein by
reference)
**4.3 Amended and Restated Bylaws of the Registrant (filed as Exhibit 3.2 to Registration
Statement on Form 10, Commission File No. 000-25890 and incorporated herein by
reference)
4.4 Form of Indenture for Debt Securities
4.5 Form of Debt Security (included in Exhibit 4.4)
*5.1 Opinion of Akin, Gump, Strauss, Hauer & Feld, L.L.P.
12.1 Statement re Computation of Ratios
*23.1 Consent of Akin, Gump, Strauss, Hauer & Feld, L.L.P. (included in Exhibit 5.1)
23.2 Consent of KPMG Peat Marwick LLP
24.1 Power of Attorney (included in the signature page of this Registration Statement)
25.1 Statement of Eligibility of Trustee on Form T-1
----------------
* To be filed by amendment.
** Previously filed.
1
- --------------------------------------------------------------------------------
INTERNATIONAL ALLIANCE SERVICES, INC.
TO
STAR BANK, N.A.,
TRUSTEE
INDENTURE
DATED AS OF
---------------
- --------------------------------------------------------------------------------
2
INTERNATIONAL ALLIANCE SERVICES, INC.
CERTAIN SECTIONS OF THIS INDENTURE RELATING TO
SECTIONS 310 THROUGH 318, INCLUSIVE, OF THE
TRUST INDENTURE ACT OF 1939:
TRUST INDENTURE
ACT SECTION INDENTURE SECTION
- --------------- -----------------
Section 310(a)(1)............................................................................... 609
(a)(2)............................................................................... 609
(a)(3)............................................................................... Not applicable
(a)(4)............................................................................... Not applicable
(b).................................................................................. 608
610
Section 311(a).................................................................................. 613
(b).................................................................................. 613
Section 312(a).................................................................................. 701
702(a)
(b).................................................................................. 792(b)
(c).................................................................................. 702(c)
Section 313(a).................................................................................. 703(a)
(b).................................................................................. 703(a)
(c).................................................................................. 703(a)
(d).................................................................................. 703(b)
Section 314(a).................................................................................. 704
(a)(4)............................................................................... 101
1009
(b).................................................................................. Not applicable
(c)(1)............................................................................... 102
(c)(2)............................................................................... 102
(c)(3)............................................................................... Not applicable
(d).................................................................................. Not applicable
(e).................................................................................. 102
Section 315(a).................................................................................. 601
(b).................................................................................. 602
(c).................................................................................. 601
(d).................................................................................. 601
(e).................................................................................. 514
Section 316(a).................................................................................. 101
(a)(1)(A)............................................................................ 502
512
(a)(1)(B)............................................................................ 513
(a)(2)............................................................................... Not applicable
(b).................................................................................. 508
(c).................................................................................. 104(c)
Section 317(a)(1)............................................................................... 503
(a)(2)............................................................................... 504
(b).................................................................................. 1003
Section 318(a).................................................................................. 107
- --------------------
Note: This reconciliation and tie shall not, for any purpose, be deemed to be
a part of the Indenture.
3
TABLE OF CONTENTS
PARTIES.................................................................. 1
RECITALS OF THE COMPANY.................................................. 1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101 Definitions............................................. 1
"Act" .............................................. 2
"Affiliate"............................................ 2
"Authenticating Agent"................................. 2
"Board of Directors"................................... 2
"Board Resolution"..................................... 2
"Business Day"......................................... 2
"Commission"........................................... 2
"Company".............................................. 2
"Company Request"; "Company Order"..................... 3
"Consolidated Subsidiaries"............................ 3
"Corporate Trust Office"............................... 3
"Corporation".......................................... 3
"Defaulted Interest"................................... 3
"Depositary"........................................... 3
"Event of Default"..................................... 3
"Global Security"...................................... 3
"Holder" .............................................. 3
"Indenture"............................................ 3
"Interest Payment Date"................................ 3
"Maturity"............................................. 3
"Officers' Certificate"................................ 4
"Opinion of Counsel"................................... 4
"Outstanding".......................................... 4
"pari passu"........................................... 5
"Paying Agent"......................................... 5
"Person" .............................................. 5
"Place of Payment"..................................... 5
"Predecessor Security"................................. 5
"Redemption Date"...................................... 5
"Redemption Price"..................................... 5
- -------------------
Note: This reconciliation and tie shall not for any purpose, be deemed to be
a part of the Indenture.
(i)
4
"Regular Record Date"................................. 5
"Responsible Officer"................................. 5
"Securities".......................................... 6
"Security Register" and "Security Registrar".......... 6
"Special Record Date"................................. 6
"Stated Maturity"..................................... 6
"Subsidiary of the Company"........................... 6
"Trustee"............................................. 6
"Trust Indenture Act"................................. 6
"U.S. Government Obligations"......................... 7
"Vice President"...................................... 7
Section 102 Compliance Certificates and Opinions................... 7
Section 103 Form of Documents Delivered to Trustee................. 8
Section 104 Acts of Holders; Record Dates.......................... 9
Section 105 Notices, Etc., to Trustee and Company.................. 9
Section 106 Notice to Holders; Waiver.............................. 10
Section 107 Conflict with Trust Indenture Act...................... 10
Section 108 Effect of Headings and Table of Contents............... 10
Section 109 Successors and Assigns................................. 10
Section 110 Separability Clause.................................... 10
Section 111 Benefits of Indenture.................................. 10
Section 112 Governing Law.......................................... 10
Section 113 Legal Holdings......................................... 10
ARTICLE TWO
SECURITY FORMS
Section 201 Forms Generally........................................ 11
Section 202 Form of Face of Security............................... 11
Section 203 Form of Reverse of Security............................ 13
Section 204 Form of Trustee's Certificate of Authentication........ 15
ARTICLE THREE
THE SECURITIES
Section 301 Amount Limited to $125,000,000; Issuable in Series..... 16
Section 302 Denominations.......................................... 18
Section 303 Execution, Authentication, Delivery and Dating......... 18
Section 304 Temporary Securities................................... 20
- ------------------
Note: This reconciliation and tie shall not, for any purpose, be deemed to be
a part of the Indenture.
(ii)
5
Section 305 Registration, Registration of Transfer and Exchange.... 20
Section 306 Mutilated, Destroyed, Lost and Stolen Securities....... 22
Section 307 Payment of Interest; Interest Rights Preserved......... 22
Section 308 Persons Deemed Owners.................................. 24
Section 309 Cancellation........................................... 24
Section 310 Computation of Interest................................ 24
ARTICLE FOUR
SATISFACTION AND DISCHARGE
Section 401 Satisfaction and Discharge of Indenture................ 24
Section 402 Application of Trust Money............................. 25
Section 403 Defeasance and Discharge of Securities of any Series... 26
Section 404 Defeasance of Certain Obligations...................... 27
Section 405 Reinstatement.......................................... 29
ARTICLE FIVE
REMEDIES
Section 501 Events of Default...................................... 29
Section 502 Acceleration of Maturity; Rescission and Annulment..... 30
Section 503 Collection of Indebtedness and Suits for Enforcement
by Trustee.......................................... 31
Section 504 Trustee May File Proof of Claim........................ 32
Section 505 Trustee May Enforce Claims Without Possession of
Securities........................................... 32
Section 506 Application of Money Collected......................... 33
Section 507 Limitation on Suits.................................... 33
Section 508 Unconditional Right of Holders to Receive Principal,
Premium and Interest................................. 34
Section 509 Restoration of Rights and Remedies..................... 34
Section 510 Rights and Remedies Cumulative......................... 34
Section 511 Delay or Omission Not Waiver........................... 35
Section 512 Control by Holders..................................... 35
Section 513 Waiver of Past Defaults................................ 35
Section 514 Undertaking for Costs.................................. 35
Section 515 Waiver of Stay or Extension Laws....................... 36
- ---------------
Note: This reconciliation and tie shall not, for any purpose,
be deemed to be a party of the Indenture.
(iii)
6
ARTICLE SIX
THE TRUSTEE
Section 601 Certain Duties and Responsibilities..................... 36
Section 602 Notice of Defaults...................................... 36
Section 603 Certain Rights of Trustee............................... 36
Section 604 Not Responsible for Recitals or Issuance of Securities.. 37
Section 605 May Hold Securities..................................... 38
Section 606 Money Held in Trust..................................... 38
Section 607 Compensation and Reimbursement.......................... 38
Section 608 Disqualification; Conflicting Interests................. 39
Section 609 Corporate Trustee Required; Eligibility................. 39
Section 610 Resignation and Removal; Appointment of Successor....... 39
Section 611 Acceptance of Appointment by Successor.................. 41
Section 612 Merger, Conversion, Consolidation or Succession to
Business.............................................. 42
Section 613 Preferential Collection of Claims Against Company....... 42
Section 614 Appointment of Authenticating Agent..................... 42
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 701 Company to Furnish Trustee Names and Addresses of
Holders............................................... 44
Section 702 Preservation of Information; Communications to Holders.. 44
Section 703 Reports by Trustee...................................... 45
Section 704 Reports by Company...................................... 45
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 801 Company May Consolidate, Etc., Only on Certain Terms..... 45
Section 802 Successor Substituted.................................... 45
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 901 Supplemental Indentures Without Consent of Holders...... 46
Section 902 Supplemental Indentures with Consent of Holders......... 47
- ----------------
Note: This reconciliation and tie shall not, for any purpose, be deemed to be
a part of the Indenture.
(iv)
7
Section 903 Execution of Supplemental Indentures................... 48
Section 904 Effect of Supplemental Indentures...................... 48
Section 905 Conformity with Trust Indenture Act.................... 48
Section 906 Reference in Securities to Supplemental Indentures..... 48
ARTICLE TEN
COVENANTS
Section 1001 Payment of Principal, Premium and Interest............ 49
Section 1002 Maintenance of Office or Agency....................... 49
Section 1003 Money for Securities Payments to Be Held in Trust..... 49
Section 1004 Existence............................................. 50
Section 1005 Maintenance of Properties............................. 51
Section 1006 Payment of Taxes and Other Claims..................... 51
Section 1007 Statement of Officers as to Default................... 51
Section 1008 Waiver of Certain Covenants........................... 51
Section 1009 SEC Reports........................................... 52
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
Section 1101 Applicability of Article.............................. 52
Section 1102 Election to Redeem; Notice to Trustee................. 52
Section 1103 Selection by Trustee of Securities to Be Redeemed..... 52
Section 1104 Notice of Redemption.................................. 53
Section 1105 Deposit of Redemption Price........................... 54
Section 1106 Securities Payable on Redemption Date................. 54
Section 1107 Securities Redeemed in Part........................... 54
- ---------------
Note: This reconciliation and tie shall not, for any purpose, be deemed to be
a part of the Indenture
(v)
8
INDENTURE, dated as of ___________, between INTERNATIONAL ALLIANCE
SERVICES, INC., a corporation duly organized and existing under the laws of the
State of Delaware (herein called the "Company"), having its principal office at
10055 Sweet Valley Drive, Cleveland, Ohio 44125 and STAR BANK, N.A., having its
principal office at ______________ _______________________________________, as
Trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (herein called the
"Securities"), to be issued in one or more series as in this Indenture provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Securities or of series
thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101 Definitions
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the
singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles, and, except as otherwise herein expressly provided, the term
"generally accepted accounting principles" with respect to any computation
required or permitted hereunder shall mean such accounting principles as
are generally accepted at the date of such computation; and
9
(4) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
Certain terms, used principally in Article Six, are defined in that Article.
"Act", when used with respect to any Holder, has the meaning
specified in Section 104.
"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" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise,
provided, that any Person who does not own, directly or indirectly, more than 5%
of the outstanding voting securities of the Company shall not be deemed to
"control" the Company; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 614 to act on behalf of the Trustee to authenticate
Securities of one or more series.
"Board of Directors" means either the board of directors of the
Company or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or Assistant Secretary of the Company to have been duly adopted by the
Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day", when used with respect to any Place of Payment,
means each Monday, Tuesday, Wednesday, Thursday and Friday which is a day on
which banking institutions in that Place of Payment are authorized or obligated
by law or executive order to be open.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), or, if at any time after the execution of this
instrument such Commission is not existing and performing the duties now
assigned to it under the Trust Indenture Act, then the body performing such
duties at such time.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
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10
"Company Request"; "Company Order" means a written request or
order signed in the name of the Company by its Chairman of the Board, its Vice
Chairman of the Board, its President or a Vice President, and by its Treasurer,
an Assistant Treasurer, its Secretary or an Assistant Secretary, and delivered
to the Trustee.
"Consolidated Subsidiaries" of any Person means all other Persons
that would be accounted for as consolidated Persons in such Person's financial
statements in accordance with generally accepted accounting principles.
"Corporate Trust Office" means the principal office of the
Trustee in Cleveland, Ohio or The City of New York, at which at any particular
time its corporate trust business shall be administered.
"Corporation" means a corporation, association, company,
joint-stock company or business trust.
"Defaulted Interest" has the meaning specified in Section 307.
"Depositary" means, unless otherwise specified by the Company
pursuant to Section 301, with respect to Securities of any series issuable or
issued as a Global Security, The Depository Trust Company, New York, New York,
or any successor thereto registered under the Securities Exchange Act of 1934,
as amended, or other applicable statute or regulation.
"Event of Default" has the meaning specified in Section 501.
"Global Security" means a Security issued to evidence all or a
part of any series of Securities which is executed by the Company and
authenticated and delivered by the Trustee to the Depositary (or its nominee or
other representative) or pursuant to the Depositary's instruction, all in
accordance with this Indenture and pursuant to a Company Order, which shall be
registered as to principal and interest in the name of the Depositary or its
nominee.
"Holder" means a Person in whose name a Security is registered in
the Security Register.
"Indenture" means this indenture as amended or supplemented from
time to time in accordance with the terms hereof.
"Interest Payment Date", when used with respect to any Security,
means the Stated Maturity of an installment of interest on such Security.
"Maturity" when used with respect to any Security, means the date
on which the principal of such Security or an installment of principal becomes
due and payable as therein or herein provided, whether at the Stated Maturity or
by declaration of acceleration, call for redemption or otherwise.
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11
"Officers' Certificate" means a certificate signed by Chairman of
the Board, a Vice Chairman of the Board, the President or a Vice President, and
by the Treasurer, an Assistant Treasurer, the Secretary or an Assistant
Secretary, of the Company, and delivered to the Trustee. One of the officers
signing an Officers' Certificate given pursuant to Section 1009 shall be the
principal executive, financial or accounting officer of the Company.
"Opinion of Counsel" means a written opinion of counsel, who shall
be reasonably acceptable to the Trustee.
"Outstanding" when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or delivered to the
Trustee for cancellation;
(ii) Securities for whose payment or redemption money in the necessary
amount has been theretofore deposited with the Trustee or any Paying Agent
(other than the Company) in trust or set aside and segregated in trust by the
Company (if the Company shall act as its own Paying Agent) for the Holders of
such Securities in accordance with Section 401; provided that, if such
Securities are to be redeemed, notice of such redemption has been duly given
pursuant to this Indenture or provision therefor satisfactory to the Trustee
has been made;
(iii) Securities for whose payment or redemption money or U.S. Government
Obligations in the necessary amount has been theretofore deposited with the
Trustee (or another trustee satisfying the requirements of Section 609) in
trust for the Holders of such Securities in accordance with Section 403; and
(iv) Securities which have been paid pursuant to Section 306 or in
exchange for or in lieu of which other Securities have been authenticated and
delivered pursuant to this Indenture, other than any such Securities in
respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona fide purchaser in
whose hands such Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, (i) the principal
amount of an Original Issue Discount Security that shall be deemed to be
Outstanding shall be the amount upon acceleration of the Maturity thereof
pursuant to Section 502, (ii) the principal amount of Security denominated in
one or more foreign currencies or currency units shall be the U.S. dollar
equivalent, determined in the manner provided as contemplated by Section 301 on
the date of original issuance of such Security, of the principal amount (or, in
the case of an Original Issue Discount Security, the U.S. dollar equivalent on
the date of original issuance of such Security of the amount determined as
provided in (i) above) of such Security, and (iii) Securities owned by the
Company or any other
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12
obligor upon the Securities or any Affiliate of the Company or of such other
obligor shall be disregarded and deemed not to be Outstanding, except that, in
determining whether the Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent or waiver, only
Securities which a Responsible Officer of the Trustee actually knows to be so
owned shall be so disregarded. Securities so owned which have been pledged in
good faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect to such
Securities and that the pledgee is not the Company or any other obligor upon the
Securities or any Affiliate of the Company or of such other obligor.
"pari passu" when used with respect to the ranking of any
indebtedness of any Person in relation to other indebtedness of such Person,
means that each such indebtedness (a) either (i) is not subordinate in right of
payment to any other indebtedness of such Person or (ii) is subordinate in right
of payment to the same indebtedness of such person as is the other and is so
subordinate to the same extent and (b) is not subordinate in right of payment to
the other or to any indebtedness of such Person as to which the other is not so
subordinate.
"Paying Agent" means any Person authorized by the Company to pay
the principal of or any premium or interest on any Securities on behalf of the
Company.
"Person" means any individual, corporation, partnership, joint
venture, trust, unincorporated organization or government or any agency or
political subdivision thereof.
"Place of Payment" when used with respect to the Securities of
any series, means New York, New York.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that evidenced
by such particular Security; and, for the purposes of this definition, any
Securities authenticated and delivered under Section 306 in exchange for or in
lieu of mutilated, destroyed, lost or stolen Security shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security.
"Redemption Date", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", means used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Regular Record Date" for the interest payable on any Interest
Payment Date on the Securities of any series means the date specified for that
purpose as contemplated by Section 301.
"Responsible Officer", means any vice president, assistant vice
president or corporate trust officer of the Corporate Trust Department of the
Trustee and also means, with respect to a particular corporate trust matter, any
other officer of the Trustee to whom such matter is referred because of his
knowledge of and familiarity with the particular subject.
5
13
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and delivered
under this Indenture.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Special Record Date" for the payment of any Default Interest means a
date fixed by the Trustee pursuant to Section 307.
"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 the Company" means any corporation of which the Company
directly or indirectly owns or controls stock which under ordinary circumstances
(not dependent upon the happening of a contingency) has the voting power to
elect a majority of the board of directors of such corporation. "Trustee" means
the Person named as the "Trustee" in the first paragraph of this instrument
until a successor Trustee shall have become such pursuant to the applicable
provisions of the 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.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in
force at the date as of which this instrument was executed, provided, however,
that in the event the Trust Indenture Act of 1939 is amended after such date,
"Trust Indenture Act" means, to the extent required by any such amendment, the
Trust Indenture Act of 1939 as so amended.
"U.S. Government Obligations" means securities which 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, which, in either case, are
not callable or redeemable at the option of the issuer thereof, and shall also
include a depository receipt issued by a bank (as defined in Section 3(a)(2) of
the Securities Act of 1933, as amended) as custodian with respect to any such
U.S. Government Obligation or a specific payment of interest on or principal of
any 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 or the specific payment of interest on
or principal of the U.S. Government Obligation evidenced by such depository
receipt.
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"Vice President", when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number or a
word or words added before or after the title "vice president".
Section 102 Compliance Certificates and Opinions
Upon any application or request by the Company to the Trustee to
take any action under any provision of this Indenture, the Company shall furnish
to the Trustee such certificates and opinions as may be required under the Trust
Indenture Act. Each such certificate or opinion shall be given in the form of an
Officers' Certificate, if to be given by an officer of the Company, or an
Opinion of Counsel, if to be given by counsel, and shall comply with the
requirements of the Trust Indenture Act and any other requirements set forth in
this Indenture.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include
(1) a statement that each individual signing such certificate
or opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) 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;
(3) a statement that, in the opinion of each such individual,
such individual has made such examination or investigation as is necessary
to enable such individual to express an informed opinion as to whether or
not such covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 103 Form of Documents Delivered to Trustee
In any case where several matters are required to be certified by,
or covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or opinion of,
or representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which such officer's certificate or opinion is
based are erroneous. Any such certificate or opinion of counsel may be based,
insofar as it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or
7
15
officers of the Company stating that the information with respect to such
factual matters is in the possession of the Company, unless such counsel knows,
or in the exercise of reasonable care should know, that the certificate or
opinion or representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Section 104 Acts of Holders; Record Dates
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent
duly appointed in writing; and, except as herein otherwise expressly
provided, such action shall become effective when such instrument or
instruments are delivered to the Trustee and, where it is hereby expressly
required, to the Company. Such instrument or instruments (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as
the "Act" of the Holders signing such instrument or instruments. Proof of
execution of any such instrument or of a writing appointing any such agent
shall be sufficient for any purpose of this Indenture and (subject to
Section 601) conclusive in favor of the Trustee and the Company, if made in
the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer
authorized by law to take acknowledgements of deeds, certifying that the
individual signing such instrument or writing acknowledged to such officer
the execution thereof. Where such execution is by a signer acting in a
capacity other than such signer's individual capacity, such certificate or
affidavit shall also constitute sufficient proof of such signer's
authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be
proved in any other manner which the Trustee deems sufficient.
(c) The Company may, in the circumstances permitted by the Trust
Indenture Act, fix any day as the record date for the purpose of
determining the Holders of Securities of any series entitled to give or
take any request, demand, authorization, direction, notice, consent, waiver
or other action, or to vote on any action, authorized or permitted to be
given or taken by Holders of Securities of such series. If not set by the
Company prior to the first solicitation of a Holder of Securities of such
series made by any Person in respect of any such action, or, in the case of
any such vote, prior to such vote, the record date for any such action or
vote shall be the 30th day (or, if later, the date of the most recent list
of Holders required to be provided pursuant to Section 701) prior to such
first solicitation or vote, as the case may be. With regard to any record
date for action to be taken by the Holders of one or more series of
Securities, only the Holders of
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Securities of such series on such date (or their duly designated proxies)
shall be entitled to give or take, or vote on, the relevant action.
(d) The ownership of Securities shall be proved by the Security
Register.
(e) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future
Holder of the same Security and the Holder of every Security issued upon
the registration of transfer thereof or in exchange therefor or in lieu
thereof in respect of anything done, omitted or suffered to be done by the
Trustee or the Company in reliance thereon, whether or not notation of such
action is made upon such Security.
Section 105 Notices, Etc., to Trustee and Company
Any request, demand, authorization, direction, notice, consent,
waiver or Act of Holders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or filed
in writing to or with the Trustee at its Corporate Trust Office, Attention:
Corporate Trust Department, or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to the
Company addressed to it at the address of its principal office specified in
the first paragraph of this instrument or at any other address previously
furnished in writing to the Trustee by the Company, to the attention of the
Treasurer with a copy to the Secretary.
Section 106 Notice to Holders; Waiver
Where this Indenture provides for notice to Holders of any event,
such notice shall be sufficiently given (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, or by facsimile
transmission to each Holder affected by such event, at such Holder's address as
it appears in the Security Register, not later than the latest date (if any),
and not earlier than the earliest date (if any), prescribed for the giving of
such notice. In any case where notice to Holders is given by mail, neither the
failure to mail such notice, nor any defect in any notice so mailed, to any
particular Holder shall affect the sufficiency of such notice with respect to
other Holders. Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by Holders shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver. Notice may be given to the Trustee by
facsimile transmission at telephone number _____________, and to the Company at
telephone number _________________.
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In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by mail,
then such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
Section 107 Conflict with Trust Indenture Act
If any provision hereof limits, qualifies or conflicts with a
provision of the Trust Indenture Act that is required under such Act to be a
part of and govern this Indenture, the Trust Indenture Act shall control. If any
provision of this Indenture modifies or excludes any provision of the Trust
Indenture Act that may be so modified or excluded, the latter provision shall be
deemed to apply to this Indenture as so modified or to be excluded, as the case
may be.
Section 108 Effect of Headings and Table of Contents
The Article and Section headings herein and the Table of Contents
are for convenience only and shall not affect the construction hereof.
Section 109 Successors and Assigns
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
Section 110 Separability Clause
In case any provision in this Indenture or in the Securities shall
be invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby.
Section 111 Benefits of Indenture
Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person other than the parties hereto and their successors
hereunder and the Holders, any benefit or legal or equitable right, remedy or
claim under this Indenture.
Section 112 Governing Law
This Indenture and the Securities shall be governed by and construed
in accordance with the laws of the State of New York, but without regard to
principles of conflicts of laws.
Section 113 Legal Holdings
In any case where any Interest Payment Date, Redemption Date or
Stated Maturity of any Security shall not be a Business Day at any Place of
Payment, then (notwithstanding any other provision of this Indenture or of the
Securities (other than a provision
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of the Securities of any series which specifically states that such provision
shall apply in lieu of this Section)) payment of interest or principal (and
premium, if any) need not be made at such Place of Payment on such date, but may
be made on the next succeeding Business Day at such Place of Payment with the
same force as if made on the Interest Payment Date or Redemption Date, or at the
Stated Maturity, provided that no interest shall accrue for the period from and
after such Interest Payment Date, Redemption Date or Stated Maturity, as the
case may be.
ARTICLE TWO
SECURITY FORMS
Section 201 Forms Generally
The Securities of each series shall be in substantially the form set
forth in this Article, or in such other form as shall be established by or
pursuant to a Board Resolution or in one or more indentures supplemental hereto,
in each case with such appropriate insertions, omissions, substitutions and
other variations as are required or permitted by this Indenture, and may have
such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any
securities exchange or as may, consistently herewith, be determined by the
officers executing such Securities, as evidenced by their execution of the
Securities. If the form of Securities of any series is established by action
taken pursuant to a Board Resolution, a copy of an appropriate record of such
action shall be certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the delivery of the Company
Order contemplated by Section 303 for the authentication and delivery of such
Securities.
The definitive Securities shall be printed, lithographed or engraved
on steel engraved borders or may be produced in any other manner, all as
determined by the officers executing such Securities, as evidenced by their
execution of such Securities.
Section 202 Form of Face of Security
[if the Security is a Global Security, insert - Unless this
certificate is presented by an authorized representative of The Depository Trust
Company, a New York corporation (the "Depositary"), to the Company or its agent
for registration of transfer, exchange or payment, and any certificate issued is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of the Depositary (and any payment is made to Cede &
Co. or to such other entity as is requested by an authorized representative of
the Depositary), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR THE
INDIVIDUAL SECURITIES REPRESENTED HEREBY, THIS GLOBAL SECURITY MAY NOT BE
TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A
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NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR
ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.]
INTERNATIONAL ALLIANCE SERVICES, INC.
-------------------------
No. $
------------ ----------
International Alliance Services, Inc., a corporation duly organized
and existing under the laws of the State of Delaware (herein called the
"Company"), which term includes any successor Person under the Indenture
hereinafter referred to), for value received, hereby promises to pay to
________________________________ or registered assigns, the principal sum of
___________________________________ Dollars on ______________________________
[if the Security is to bear interest prior to Maturity, insert - and to pay
interest thereon from ______________________ or from the most recent Interest
Payment Date to which interest has been paid or duly provided for, semi-annually
on _____________________ and _____________ in each year, commencing
_____________________, at the rate of ______% per annum, until the principal
hereof is paid or made available for payment [if applicable, insert -, and (to
the extent that the payment of such interest shall be legally enforceable) at
the rate of _____% per annum on any overdue principal and premium and on any
overdue installment of interest]. The interest so payable, and punctually paid
or duly provided for, on any Interest Payment Date will, as provided in such
Indenture, be paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest, which shall be the _______________ or
________________ (whether or not a Business Day), as the case may be, next
preceding such Interest Payment Date. Any such interest not so punctually paid
or duly provided for will forthwith cease to be payable to the Holder on such
Regular Record Date and may either be paid to the Person in whose name this
Security (or one or more Predecessor Securities) is registered at the close of
business on a Special Record Date for the payment of such Defaulted Interest to
be fixed by the Trustee, notice whereof shall be given to Holders of Securities
of this series not less than [10] days prior to such Special Record Date, or be
paid at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Securities of this series
may be listed, and upon such notice as may be required by such exchange, all as
more fully provided in said Indenture].
[If the Security is not to bear interest prior to Maturity, insert -
The principal of this Security shall not bear interest except in the case of a
default in payment of principal upon acceleration, upon redemption or at Stated
Maturity and in such case the overdue principal of this Security shall bear
interest at the rate of ______% per annum (to the extent that the payment of
such interest shall be legally enforceable), which shall accrue from the date of
such default in payment to the date payment of such principal has been paid or
duly provided for. Interest on any overdue principal shall be payable on demand.
Any such interest on any overdue principal
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that is not so paid on demand shall bear interest at the rate of _____% per
annum (to the extent that the payment of such interest shall be legally
enforceable), which shall accrue from the date of such demand for payment to the
date payment of such interest has been made or duly provided for, and such
interest shall also be payable on demand.]
Payment of the principal of (and premium if any) and [if applicable,
insert - any such] interest on this Security will be made at the office or
agency of the Company maintained for that purpose in _______________________, in
such coin or currency of the United States of America as at the time of payment
is legal tender for payment of public and private debts [if applicable, insert
- -; provided however that at the option of the Company payment of interest may be
made by check mailed on or prior to an Interest Payment Date to the address of
the Person entitled thereto as such address shall appear in the Security
Register].
Reference is hereby made to the further provisions of this Security
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be
duly executed under its corporate seal.
Dated: INTERNATIONAL ALLIANCE SERVICES, INC.
By:
-------------------------------------
Section 203 Form of Reverse of Security
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture, dated _______________ (herein called the
"Indenture"), between the Company and [TRUSTEE], as Trustee (herein called the
"Trustee," which term includes any successor trustee under the Indenture), to
which Indenture and all indentures supplemental thereto reference is hereby made
for a statement of the respective rights, limitations of rights, duties and
immunities thereunder of the Company, the Trustee and the Holders of the
Securities and of the terms upon which the Securities are, and are to be,
authenticated and delivered. This Security is one of the series designated on
the face hereof [, limited in aggregate principal amount to $_____________].
[If applicable, insert - The Securities of this series are subject
to redemption upon not less than _____ days' notice by mail, at any time [on or
after _______________], as a whole or in part, at the election of the Company,
at the following Redemption Prices (expressed as
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percentages of the principal amount): If redeemed [on or before
________________, ____%, and if redeemed] during the 12-month period beginning
_____________ of the year indicated,
Year Redemption Price Year Redemption Price
---- ---------------- ---- ----------------
and thereafter at a Redemption Price equal to ______% of the principal amount,
together in the case of any such redemption with accrued interest to the
Redemption Date, but interest installments whose Stated Maturity is on or prior
to such Redemption Date will be payable to the Holders of such Securities, or
one or more Predecessor Securities, of record at the close of business on the
relevant Record Dates as referred to on the face hereof, all as provided in the
Indenture].
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of a majority in principal amount of the Securities at
the time Outstanding of each series to be affected. The Indenture also contains
provisions permitting the Holders of specified percentages in principal amount
of the Securities of each series at the time Outstanding, on behalf of the
Holders of all Securities of such series, to waive compliance by the Company
with certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security issued upon the registration
of transfer hereof or in exchange hereof or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Security.
As provided in and subject to the provisions of the Indenture, the
Holder of this Security shall not have the right to institute any proceeding
with respect to the Indenture or for the appointment of a receiver or trustee or
for any other remedy thereunder, unless such Holder shall have previously given
the Trustee written notice of a continuing Event of Default with respect to the
Securities of this series, the Holders of not less than 25% in principal amount
of the Securities of this series at the time Outstanding shall have made written
request to the Trustee to institute proceedings in respect of such Event of
Default as Trustee and offered the Trustee reasonable indemnity and the Trustee
shall not have received from the Holders of a majority in principal amount of
Securities of this series at the time Outstanding a direction inconsistent with
such request, and shall have failed to institute any such proceeding, for 60
days after receipt of such notice, request and offer of indemnity. The foregoing
shall not apply to any suit instituted by the Holder of this Security for the
enforcement of any payment of principal hereof or any interest hereof on or
after the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and
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unconditional, to pay the principal of and any premium and interest on this
Security at the times, place and rate, and in the coin or currency, herein
prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registerable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in any place where the principal of and any
premium and interest on this Security are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or such
Holder's attorney duly authorized in writing, and thereupon one or more
Securities of this Series and of like tenor, of authorized denominations and for
the same aggregate principal amount, will be issued to the designated transferee
or transferees.
The Securities of this series are issuable only in registered form
without coupons only in minimum denominations of $100,000 and any integral
multiple of $1,000 in excess thereof. As provided in the Indenture and subject
to certain limitations therein set forth, Securities of this series are
exchangeable for a like aggregate principal amount of Securities of this series
and of like tenor of a different authorized denomination, as requested by the
Holder surrendering the same.
No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Security is registered as the owner
hereof for all purposes, whether or not this Security be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
Section 204 Form of Trustee's Certificate of Authentication
The Trustee's certificate of authentication shall be in
substantially the following form:
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This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
STAR BANK, N.A.
as Trustee
By:
----------------------------------
ARTICLE THREE
THE SECURITIES
Section 301 Amount Limited to $125,000,000; Issuable in Series
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is limited to $125,000,000.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution, and subject to Section 303,
set forth, or determined in the manner provided, in an Officers' Certificate, or
established in one or more indentures supplemental hereto, prior to the issuance
of Securities of any series,
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from Securities of any other
series);
(2) 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 304, 305, 306, 906 or 1107 and
except for any Securities which, pursuant to Section 303, are deemed never
to have been authenticated and delivered hereunder);
(3) the Person to whom any interest on a Security of the
series shall be payable, if other than the Person in whose name that
Security (or one or more Predecessor Securities) is registered at the close
of business on the Regular Record Date for such interest;
(4) the date or dates on which the principal of the Securities
of the series is payable;
(5) the rate or rates at which the Securities of the series
shall bear interest, or the method or methods by which such rate or rates
shall be determined, if any, the date or dates from which such interest
shall accrue, the Interest Payment Dates on
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which such interest shall be payable and the Regular Record Date for any
interest payable on any Interest Payment Date;
(6) the period or periods within which, the price or prices at
which and the terms and conditions upon which Securities of the series may
be redeemed, in whole or in part, at the option of the Company;
(7) the obligation, if any, of the Company to redeem or purchase
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;
(8) if other than denominations of $100,000 and any integral
multiple of $1,000 in excess thereof, the denominations in which Securities
of the series shall be issuable;
(9) the currency, currencies or currency units in which payment
of the principal of and any premium and interest on any Securities of the
series shall be payable if other than the currency of the United States of
America and the manner of determining the equivalent thereof in the
currency of the United States of America for purposes of the definition of
"Outstanding" in Section 101;
(10) if the amount of payments of principal of or any premium or
interest on any Securities of the series may be determined with reference
to an index, the manner in which such amounts shall be determined;
(11) whether the Securities of the series shall be issued in
whole or in part in the form of a Global Security and, in such case, the
Depositary with respect to such Global Security or Securities and the
circumstances under which any such Global Security may be registered for
transfer for exchange, or authenticated and delivered, in the name of a
Person other than such Depositary or its nominee, if other than as set
forth in Section 305;
(12) if other than the principal of or any premium or interest on
any Securities of the series is to be payable, at the election of the
Company or a Holder thereof, in one or more currencies or currency units
other than that or those in which the Securities are stated to be payable,
the currency, currencies or currency units in which the payment of the
principal of and any premium and interest on Securities of such series as
to which such election is made shall be payable, and the periods within
which and the terms and conditions upon which such election is to be made;
(13) if other than the entire principal amount thereof, the
portion of the principal amount of Securities of the series which shall be
payable upon declaration of acceleration of the Maturity thereof pursuant
to Section 502; and
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(14) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture, except as permitted by
Section 901(5)).
All Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided in or pursuant
to the Board Resolution referred to above and (subject to Section 303) set
forth, or determined in the manner provided, in the Officers' Certificate
referred to above or in any such indenture supplemental hereto. The terms of the
Securities of any series may provide, without limitation, that the Securities
shall be authenticated and delivered by the Trustee on original issue from time
to time upon telephonic or written order of persons designated in the Officers'
Certificate or supplemental indenture (telephonic instructions to be promptly
confirmed in writing by such person) and that such persons are authorized to
determine, consistent with such Officers' Certificate or any applicable
supplemental indenture, such terms and conditions of the Securities of such
series as are specified in such Officers' Certificate or supplemental indenture.
Except as otherwise provided with respect to any series of
Securities, at the option of the Company, interest on the Securities of any
series that bears interest may be paid by mailing a check, on or before the
applicable Interest Payment Date, to the address of the person entitled thereto
as such address shall appear in the Securities Register.
If any of the terms of the series are established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of such action
shall be certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to delivery of the Officers' Certificate
setting forth the terms of the series.
Section 302 Denominations
The Securities of each series shall be issuable in registered form
without coupons in such denominations as shall be specified as contemplated by
Section 301. In the absence of any such provisions with respect to the
Securities of any series, the Securities of such series shall be issuable in
denominations of $100,000 and any integral multiple of $1,000 in excess thereof.
Section 303 Execution, Authentication, Delivery and Dating
The Securities shall be executed on behalf of the Company by its
Chairman of the Board, its Vice Chairman of the Board, its President or one of
its Vice Presidents, under its corporate seal reproduced thereon attested by its
Treasurer or Secretary or one of its Assistant Treasurers or Assistant
Secretaries. The signature of any of these officers on the Securities may be
manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
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At any time and from time to time after the execution and delivery
of this Indenture, the Company may deliver Securities of any series executed by
the Company to the Trustee for authentication, together with a Company Order for
the authentication and delivery of such Securities, and the Trustee in
accordance with the Company Order shall authenticate and deliver such
Securities. If the form or terms of the Securities of the series have been
established in or pursuant to one or more Board Resolutions as permitted by
Sections 201 and 301, in authenticating such Securities, and accepting the
additional responsibilities under this Indenture in relation to such Securities,
the Trustee shall be entitled to receive, and (subject to Article 6) shall be
fully protected in relying upon, an Opinion of Counsel stating:
(a) if the form of such Securities has been established by or
pursuant to Board Resolution as permitted by Section 201, that such form
has been established in conformity with the provisions of this Indenture;
(b) if the terms of such Securities have been established by or
pursuant to Board Resolution as permitted by Section 301, that such terms
have been established in conformity with the provisions of this Indenture;
and
(c) that such Securities, when authenticated and delivered by the
Trustee and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid and
legally binding obligations of the Company enforceable in accordance with
their terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles.
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 301 and of the preceding
paragraph, if all Securities of a series are not to be originally issued at one
time, it shall not be necessary to deliver the Officers' Certificate otherwise
required pursuant to Section 301 or the Company Order and Opinion of Counsel
otherwise required pursuant to such preceding paragraph at or prior to the time
of authentication upon original issuance of the first Security of such series to
be issued.
Each security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such Security
has been duly authenticated and delivered hereunder. Notwithstanding the
foregoing, if any Security shall have been authenticated and delivered but never
issued and sold by the
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Company and the Company shall deliver such Security to the Trustee for
cancellation as provided in Section 309, for all purposes of this Indenture
such Security shall be deemed never to have been authenticated and delivered
hereunder and shall never be entitled to the benefits of this Indenture.
Section 304 Temporary Securities
Pending the preparation of definitive Securities of any series, the
Company may execute, and upon Company Order the Trustee shall authenticate and
deliver, temporary Securities which are printed, lithographed, typewritten,
mimeographed or otherwise produced in any authorized denomination, substantially
of the tenor of the definitive Securities in lieu of which they are issued and
with such appropriate insertions, omissions, substitutions and other variations
as the officers executing such Securities may determine, as evidenced by their
execution of such Securities.
If temporary Securities of any series are issued, the Company will
cause definitive Securities of that series to be prepared without unreasonable
delay. After the preparation of definitive Securities of such series, the
temporary Securities of such series shall be exchangeable for definitive
Securities of such series upon surrender of the temporary Securities of such
series at the office or agency of the Company in a Place of Payment for that
series, without charge to the Holder. Upon surrender for cancellation of any one
or more temporary Securities of any series the Company shall execute and the
Trustee shall authenticate and deliver in exchange therefor one or more
definitive Securities of the same series, of any authorized denominations and of
a like aggregate principal amount and tenor. Until so exchanged the temporary
Securities of any series shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities of such series and tenor.
Section 305 Registration, Registration of Transfer and Exchange
The Company shall cause to be kept at the Corporate Trust Office of
the Trustee a register (the register maintained in such office and in any other
office or agency of the Company in a Place of Payment being herein sometimes
collectively referred to as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Securities and of transfers of Securities. The Trustee is hereby
appointed "Security Registrar" for the purpose of registering Securities and
transfers of Securities as herein provided.
Upon surrender for registration of transfer of any Security of any
series at the office or agency in a Place of Payment for that series, the
Company shall execute, and the Trustee shall authenticate and deliver, the name
of the designated transferee or transferees, one or more new Securities of the
same series, of any authorized denominations and of a like aggregate principal
amount and tenor.
At the option of the Holder, Securities of any series may be
exchanged for other Securities of the same series, of any authorized
denominations and of a like aggregate principal
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amount and tenor, upon surrender of the Securities to be exchanged at such
office or agency. Whenever any Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and deliver, the
Securities which the Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or exchange
of Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer
or for exchange shall (if so required by the Company or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or such Holder's attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 304, 906 or 1107 not involving any transfer.
The Company shall not be required (i) to issue, register the
transfer of or exchange Securities of any series during a period beginning at
the opening of business 15 days before the day of the mailing of a notice of
redemption of Securities of that series selected for redemption under Section
1103 and ending at the close of business on the day of such mailing, or (ii) to
register the transfer of or exchange any Security so selected for redemption in
whole or in part, except the unredeemed portion of any Security being redeemed
in part.
Notwithstanding the foregoing, no Global Security shall be
registered for transfer or exchange, or authenticated and delivered, whether
pursuant to this Section, Section 304, 306, 906 or 1107 or otherwise, in the
name of a Person other than the Depositary for such Global Security or its
nominee until (i) the Depositary with respect to a Global Security notifies the
Company that it is unwilling or unable to continue as Depositary for such Global
Security or the Depositary ceases to be a clearing agency registered under the
Exchange Act, (ii) the Company executes and delivers to the Trustee a Company
Order that such Global Security shall be so transferable and exchangeable, or
(iii) there shall have occurred and be continuing an Event of Default with
respect to the Securities of such series. Upon the occurrence in respect of any
Global Security of any series of any one or more of the conditions specified in
clauses (i), (ii) or (iii) of the preceding sentence or such other conditions as
may be specified as contemplated by Section 301 for such series, such Global
Security may be registered for transfer or exchange for Securities registered in
the names of, or authenticated and delivered to, such Persons as the Depositary
with respect to such series shall direct.
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Except as provided in the preceding paragraph, any Security
authenticated and delivered upon registration of transfer of, or in exchange
for, or in lieu of, any Global Security, whether pursuant to this Section,
Section 304, 306, 906 or 1107 or otherwise, shall also be a Global Security and
bear the legend specified in Section 202.
Section 306 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 the Trustee shall authenticate and
deliver, 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 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 307 Payment of Interest; Interest Rights Preserved
Except as otherwise provided as contemplated by Section 301 with
respect to any series of Securities, interest on any Security which is payable,
and is punctually paid or duly provided for, on any Interest Payment Date shall
be paid to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest.
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Any interest on any Securities of any series which is payable, but is
not punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities of such series (or
their respective Predecessor Securities) are registered at the close of
business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Company shall
notify the Trustee in writing of the amount of Defaulted Interest proposed
to be paid on each Security of such series and the date of the proposed
payment, and at the same time the Company shall deposit with the Trustee an
amount of money equal to the aggregate amount proposed to be paid in
respect to such Defaulted Interest or shall make arrangements satisfactory
to the Trustee for such deposit prior to the date of the proposed payment,
such money when deposited to be held in trust for the benefit of the
Persons entitled to such Defaulted Interest as in this Clause provided.
Thereupon the Trustee shall fix a Special Record Date for the payment for
such Defaulted Interest which shall be not more than 15 days and not less
than 10 days prior to the date of the proposed payment and not less than 10
days after the receipt by the Trustee of the notice of the proposed
payment. The Trustee shall promptly notify the Company of such Special
Record Date and, in the name and at the expense of the Company, shall cause
notice of the proposed payment of such Defaulted Interest and the Special
Record Date therefor to be mailed, first class postage prepaid, to each
Holder of Securities of such series at such Holder's address as it appears
in the Security Register, not less than 10 days prior to such Special
Record Date. Notice of the proposed payment of such Defaulted Interest and
the Special Record Date therefor having been so mailed, such Defaulted
Interest shall be paid to the Persons in whose names the Securities of such
series (or their respective Predecessor Securities) are registered at the
close of business on such Special Record Date and shall no longer be
payable pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest on the
Securities of any series in any other lawful manner not inconsistent with
the requirements of any securities exchange on which such Securities may be
listed, and upon such notice as may be required by such exchange, if, after
notice given by the Company to the Trustee of the proposed payment pursuant
to this Clause, such manner of payment shall be deemed practicable by the
Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
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Section 308 Persons Deemed Owners
Prior to due presentment of a Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name such Security is registered as the owner of such
Security for the purpose of receiving payment of principal of and any premium
and (subject to Section 307) any interest on such Security and for all other
purposes whatsoever, whether or not such Security be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
Section 309 Cancellation
All Securities surrendered for payment, redemption, registration of
transfer or exchange or for credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee
and shall be promptly cancelled by it. The Company may at any time deliver to
the Trustee for cancellation any Securities previously authenticated and
delivered hereunder which the Company may have acquired in any manner
whatsoever, and may deliver to the Trustee (or to any other Person for delivery
to the Trustee) for cancellation any Securities previously authenticated
hereunder which the Company has not issued and sold, and all Securities so
delivered shall be promptly cancelled by the Trustee. No Securities shall be
authenticated in lieu of or in exchange for any Securities cancelled as provided
in this Section, except as expressly permitted by this Indenture. All cancelled
Securities held by the Trustee shall be disposed of unless otherwise directed by
a Company Order.
Section 310 Computation of Interest
Except as otherwise specified as contemplated by Section 301 for
Securities of any series, interest on the Securities of each series shall be
computed on the basis of a 360-day year of twelve 30-day months.
ARTICLE FOUR
SATISFACTION AND DISCHARGE"
Section 401 Satisfaction and Discharge of Indenture
This Indenture shall upon Company request cease to be of further
effect (except as to any surviving rights of registration of transfer or
exchange of Securities herein expressly provided for), and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and delivered
(other than (i) Securities which have been destroyed, lost or stolen and
which have been replaced or paid as provided in Section 306 and (ii)
Securities for whose payment money has
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theretofore been deposited in trust or segregated and held in trust by the
Company and thereafter repaid to the Company or discharged from such trust,
as provided in Section 1003) have been delivered to the Trustee for
cancellation; or
(B) all such Securities not theretofore delivered to the
Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated
Maturity within one year, or
(iii) 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,
and the Company, in the case of (i), (ii) or (iii) above, has deposited or
caused to be deposited with the Trustee as trust funds in trust for the
purpose an amount sufficient to pay and discharge the entire indebtedness
on such Securities not theretofore delivered to the Trustee for
cancellation, for principal and any premium and interest to the date of
such deposit (in the case of Securities which have become due and payable)
or to the Stated Maturity or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(3) 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 607, the obligations
of the Trustee to any Authenticating Agent under Section 614 and, if money or
U.S. Government Obligations shall have been deposited with the Trustee in
accordance with Section 403 or 404, the obligations of the Company to the
Trustee under Section 402(b), and, if money shall have been deposited with the
Trustee pursuant to subclause (B) of Clause (1) of this Section, the obligations
of the Trustee under Section 402 and the last paragraph of Section 1003 shall
survive.
Section 402 Application of Trust Money
(a) Subject to the provisions of the last paragraph in Section 1003,
all money deposited with the Trustee pursuant to Section 401, all money and
U.S. Government Obligations deposited with the Trustee pursuant to Section
403 or 404 and all money received by the Trustee in respect of U.S.
Government Obligations deposited with the Trustee pursuant to Section 403
or 404, shall be held in trust and applied by it, in accordance with the
provisions of the Securities and this Indenture, to the payment, either
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directly or through any Paying Agent (including the Company acting as its
own Paying Agent) as the Trustee may determine, to the Persons entitled
thereto, of the principal (and premium, if any) and interest for whose
payment such money has been deposited with or received by the Trustee or to
make mandatory sinking fund payments or analogous payments as contemplated
by Section 403 or 404.
(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 deposited pursuant to Section 403 or 404 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 money or U.S. Government Obligations held by
it as provided in Section 403 or 404 which, in the opinion of a nationally
recognized firm of independent 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 money or U.S. Government Obligations were deposited
or received.
Section 403 Defeasance and Discharge of Securities of any Series
The Company may elect, at its option by Board Resolution at any
time, to have this Section 403 be applicable to Securities of any series. Upon
the Company's exercise of the option to have this Section 403 applied to
Securities of any series, then notwithstanding Section 401, the Company shall be
deemed to have paid and discharged the entire indebtedness on all the
Outstanding Securities of that series, the provisions of this Indenture as it
relates to such Outstanding Securities (except as to the rights of Holders of
Securities to receive, from the trust funds described in subparagraph (1) below,
payment of the principal of (and premium, if any) or interest on such Securities
on the Stated Maturity of such principal or installment of principal or interest
or any mandatory sinking fund payments or analogous payments applicable to the
Securities of that series on the day on which such payments are due and payable
in accordance with the terms of the Indenture and of such Securities, the
Company's obligations with respect to such Securities under Sections 304, 306,
1002 and 1003 and the rights, powers, trusts, duties and immunities of the
Trustee hereunder) shall no longer be in effect, and the Trustee, at the expense
of the Company, shall, upon Company Request, execute proper instruments
acknowledging the same, provided that the following conditions have been
satisfied:
(1) the Company has deposited or caused to be deposited with
the Trustee (or another trustee satisfying the requirements of Section
609), irrevocably (irrespective of whether the conditions in subparagraphs
(2), (3), (4), (5), (6), (7) and (8) below have been satisfied, but subject
to the provisions of Section 402(c) and the last paragraph of Section
1003), as trust funds in trust, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of the Securities of that
series, with reference to this Section 403, (A) money in an amount, or (B)
U.S. Government Obligations which through the payment of interest and
principal in respect thereof in
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accordance with their terms will provide not later than the opening of
business on the due date of any payment referred to in clause (i) or (ii)
of this subparagraph (1) money in an amount, or (C) a combination thereof,
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 the principal of (and premium, if any)
and each installment of principal (and premium, if any) and interest on
such Outstanding Securities on the Stated Maturity of such principal or
installment of principal or interest;
(2) such deposit will not result in a breach or violation of,
or constitute a default under, any other agreement or instrument to which
the Company is a party or by which it is bound, which breach, violation or
default is material to the interests of the Holders of the Securities of
that series;
(3) no Event of Default or event which with the giving of
notice or lapse of time, or both, would become an Event of Default with
respect to the Securities of that series (other than an Event of Default
under Section 501(4) with respect to any of Sections 1005 through 1008,
inclusive, and Section 801) shall have occurred and be continuing on the
date of such deposit and no Event of Default under Section 501(6) or
Section 501(7) or event which with the giving of notice or lapse of time or
both, would become an Event of Default under Section 501(6) or Section
501(7) shall have occurred and be continuing on the 91st day after such
date;
(4) the Company has delivered to the Trustee an Opinion of
Counsel to the effect that the Company has received from, or there has been
published by, the Internal Revenue Service a ruling, or there has been a
change in the applicable federal income tax law, in either case to the
effect that Holders of the Securities of that 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; and
(5) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to the defeasance and discharge of the
entire indebtedness on all Outstanding Securities of any such series as
contemplated by this Section have been complied with.
Section 404 Defeasance of Certain Obligations
The Company may elect, at its option by Board Resolution at any
time, to have this Section 404 be applicable to Securities of any series. Upon
the Company's exercise of the option to have this Section 404 applied to the
Securities of any series, the Company may omit to comply with and shall have no
liability in respect of any term, provision or condition set forth in Sections
1005 and 1006(whether directly or indirectly by reason of any reference
elsewhere herein to any such Section or by reason of any reference in any such
Section to any other provision herein), and Section 501(4) (with respect to any
term, provision or condition set forth in Sections 1005
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and 1006 and Section 801) and 501(5) shall be deemed not to be an Event of
Default, in each case with respect to the Securities of that series, provided
that the following conditions have been satisfied:
(1) the Company has deposited or caused to be deposited with the
Trustee (or another trustee satisfying the requirements of Section 609),
irrevocably (irrespective of whether the conditions in subparagraphs (2),
(3), (4), (5), (6), (7) and (8) below have been satisfied, but subject to
the provisions of Section 402(c) and the last paragraph of Section 1003),
as trust funds in trust, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of the Securities of that
series, with reference to this Section 404, (A) money in an amount, or (B)
U.S. Government Obligations which through the payment of interest and
principal in respect thereof in accordance with their terms will provide
not later than the opening of business on the due date of any payment
referred to in clause (i) or (ii) of this subparagraph (1) money in an
amount, or (C) a combination thereof, 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 (i) the principal of (and premium, if any) and each installment
of principal (and premium, if any) and interest on such Outstanding
Securities on the Stated Maturity of such principal or installment of
principal or interest;
(2) such deposit will not result in a breach or violation of, or
constitute a default under, any other agreement or instrument to which the
Company is a party or by which it is bound, which breach, violation or
default is material to the interests of the Holders of the Securities of
that series;
(3) no Event of Default or event which with the giving of notice
or lapse of time, or both, would become an Event of Default with respect to
the Securities of that series (other than an Event of Default under Section
501(4) with respect to any of Sections 1005 through 1008, inclusive, and
Section 801) shall have occurred and be continuing on the date of such
deposit and no Event of Default under Section 501(6) or Section 501(7) or
event which with the giving of notice or lapse of time or both, would
become an Event of Default under Section 501(6) or Section 501(7) shall
have occurred and be continuing on the 91st day after such date;
(4) the Company has delivered to the Trustee an Opinion of
Counsel to the effect that the Holders of the Securities of that series
will not recognize income, gain or loss for federal income tax purposes as
a result of such deposit or the elimination of the Company's obligations to
comply with the terms and provisions as contemplated above 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 and
elimination of the Company's obligations to comply as contemplated above
had not occurred; and
(5) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for
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relating to the defeasance and elimination of the Company's obligations to
comply as contemplated above have been complied with.
Section 405 Reinstatement
If the Trustee or any Paying Agent is unable to apply any money from
any deposit under Section 403 or 404 in accordance with Section 402(a) with
respect to the Securities of the series entitled thereto by reason of any order
or judgment of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, then the Company's obligations under
this Indenture and such Securities shall be revived and reinstated as though no
deposit had occurred pursuant to Section 403 or 404 with respect to such
Securities until such time as the Trustee or Paying Agent is permitted to apply
all money held in trust pursuant to Section 402(a) with respect to such
Securities in accordance with Section 402(a); provided, however, that if the
Company makes any payment of principal of or any interest on any such Security
following the reinstatement of its obligations, the Company shall be subrogated
to the rights of the Holders of such Securities to receive such payment from the
money so held in trust.
ARTICLE FIVE
REMEDIES
Section 501 Events of Default
"Event of Default", wherever used herein with respect to Securities
of any series, means any one of the following events (whatever the reason for
such Event of Default and whether it shall be voluntary or involuntary or be
effected by operation of law or pursuant to any judgment, decree or order of any
court or any order, rule or regulation of any administrative or governmental
body):
(1) default in the payment of any interest upon any Security of
that series when it becomes due and payable, and continuance of such
default for a period of 30 days; or
(2) default in the payment of the principal of (or premium, if
any) on any Security of that series at its Maturity; or
(3) default in the deposit of any sinking fund payment, when
and as due by the terms of a Security of that series; or
(4) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture (other than a covenant or
warranty a default in whose performance or whose breach is elsewhere in
this Section specifically dealt with or which has expressly been included
in this Indenture solely for the benefit of series of Securities other than
that series), and continuance of such default or breach for a period of 60
days after there has been given, by registered or certified mail, to the
Company by the Trustee
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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
(5) the entry by a court having jurisdiction in the premises
of (A) a decree or order for relief in respect of the Company in an
involuntary case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law or (B) a decree
or order adjudging the Company a bankrupt or insolvent, or approving as
properly filed a petition seeking reorganization, arrangement, adjustment
or composition of or in respect of the Company under any applicable Federal
or State law, or appointing a custodian, receiver, liquidator, assignee,
trustee, sequestrator or other similar official of the Company or of any
substantial part of its property, or ordering the winding up or liquidation
of its affairs, and the continuance of any such decree or order for relief
or any such other decree or order unstayed and in effect for a period of 60
consecutive days; or
(6) the commencement by the Company of a voluntary case or
proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or of any other case or proceeding to
be adjudicated a bankrupt or insolvent, or the consent by it to the entry
of a decree or order for relief in respect of the Company in an involuntary
case or proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or to the commencement of
any bankruptcy or insolvency case or proceeding against it, or the filing
by it of a petition or answer or consent seeking reorganization or relief
under any applicable Federal or State law, or the consent by it to the
filing of such petition or to the appointment of or taking possession by a
custodian, receiver, liquidator, assignee, trustee, sequestrator or other
similar official of the Company or of any substantial part of its property,
or the making by it of an assignment for the benefit of creditors, or the
admission by it in writing of its inability to pay its debts generally as
they become due, or the taking of corporate action by the Company in
furtherance of any such action; or
(7) any other Event of Default provided with respect to
Securities of that series.
Section 502 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, 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 of the Securities of that series are Original Issue Discount Securities,
such portion of the principal amount of such Securities as may be specified in
the terms thereof) of 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) shall become immediately due and payable.
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At any time after such a declaration of acceleration with respect to
Securities of any series has 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
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest on all Securities of that
series,
(B) the principal of (and premium, if any, on) any
Securities of that series which have become due otherwise than by
such declaration of acceleration and any interest thereon at the
rate or rates prescribed therefor in such Securities,
(C) to the extent that payment of such interest is
lawful, interest upon overdue interest at the rate or rates
prescribed therefor in such Securities, and
(D) all sums paid or advanced by the Trustee hereunder
and the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel; and
(2) all Events of Default with respect to Securities of that
series, other than the non-payment of the principal of Securities of that
series which have become due solely by such declaration of acceleration,
have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Section 503 Collection of Indebtedness and Suits for Enforcement by Trustee
The Company covenants that if
(1) 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
(2) default is made in the payment of the principal of (or
premium, if any, on) any Security at the Maturity thereof,
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 any premium and interest and, to the extent that
payment of such interest shall be legally enforceable, interest on any overdue
principal and premium and on any overdue interest, at the rate or rates
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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 decreed 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 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 504 Trustee May File Proof of Claim
In case of any judicial proceeding relative to the Company (or any
other obligor upon the Securities), its property or its creditors, the Trustee
shall be entitled and empowered, by intervention in such proceeding or
otherwise, to take any and all actions authorized under the Trust Indenture Act
in order to have claims of the Holders and the Trustee allowed in any such
proceeding. In particular, the Trustee shall be authorized to collect and
receive any moneys or other property payable or deliverable on any such claims
and to distribute the same; and any custodian, receiver, assignee, trustee,
liquidator, sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each 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 607.
No provision of this Indenture shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
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; provided,
however, that the Trustee may, on behalf of the Holders, vote for the election
of a trustee in bankruptcy or similar official and be a member of a creditors'
or other similar committee.
Section 505 Trustee May Enforce Claims Without Possession of Securities
All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without the possession
of any of the Securities or the production
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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 506 Application of Money Collected
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal or any premium
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 607; and
SECOND: To the payment of the amounts then due and unpaid for
principal of and any premium 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 any premium and interest,
respectively.
Section 507 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
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the Securities of
that series;
(2) 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;
(3) 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;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such proceeding;
and
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(5) 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 any availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or seek to obtain priority or preference over any
other of such Holders, or to obtain or seek to obtain priority or preference
over any other of such Holders or to enforce any right under this Indenture,
except in the manner herein provided and for the equal and ratable benefit of
all of such Holders.
Section 508 Unconditional Right of Holders to Receive Principal, Premium
and Interest
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of and any premium and (subject to Section 307)
any interest on such Security on the Stated Maturity or 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 509 Restoration of Rights and Remedies
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holder shall
be restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and the Holder shall continue
as though no such proceeding had been instituted.
Section 510 Rights and Remedies Cumulative
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities in the last paragraph
of Section 306, no right or remedy herein conferred upon or reserved to the
Trustee or to the Holders is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.
Section 511 Delay or Omission Not Waiver
No delay or omission of the Trustee or of any Holder of any
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
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remedy given by this Article or by law to the Trustee or to the Holders may be
exercised from time to time, and as often as may be deemed expedient, by the
Trustee or by the Holders, as the case may be.
Section 512 Control by Holders
The Holders of 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
(1) such direction shall not be in conflict with any rule of
law or with this Indenture,
(2) such Holder or Holders provide the Trustee an indemnity
reasonably satisfactory to the Trustee against any loss, liability or
expense, and
(3) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
Section 513 Waiver of Past Defaults
The Holders of not less than a majority in principal amount of the
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
(1) in the payment of the principal of or any premium or
interest on any Security of such series, or
(2) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Security of such series affected.
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 514 Undertaking for Costs
In any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken, suffered or
omitted by it as Trustee, a court may require any party litigant in such suit to
file an undertaking to pay the costs of such suit, and may assess costs against
any such party litigant, in the manner and to the extent provided in the Trust
Indenture Act, provided, that neither this Section nor the Trust Indenture Act
shall be deemed to authorize any court to require such an undertaking or to make
such an assessment in any suit instituted by the Company.
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Section 515 Waiver of Stay or Extension Laws
The Company covenants (to the extent that it may lawfully do so)
that it will not at any time insist upon, or plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay or extension law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE SIX
THE TRUSTEE
Section 601 Certain Duties and Responsibilities
The duties and responsibilities of the Trustee shall be provided by
the Trust Indenture Act and this Indenture. Notwithstanding the foregoing, no
provision of this Indenture shall require the Trustee to expend or risk its own
funds or otherwise incur any financial liability in the performance of any of
its duties hereunder, or in the exercise of any of its rights or powers, if it
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured to
it. Whether or not therein expressly so provided, every provision of this
Indenture relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of this Section.
The Trustee undertakes to perform such duties and only such duties
as are specifically set forth in this Indenture with respect to Securities of
such series, and no implied covenants or obligations shall be read into this
Indenture against the Trustee with respect to such series.
Section 602 Notice of Defaults
If a default occurs hereunder with respect to Securities of any
series, the Trustee shall give the Holders of Securities of such series notice
of such default as and to the extent provided by the Trust Indenture Act;
provided, however, that in the case of any default of the character specified in
Section 501(4) with respect to Securities of such series, no such notice to
Holders shall be given until at least 30 days after the occurrence thereof. For
the purpose of this Section, the term "default" means any event which is, or
after notice or lapse of time or both would become, an Event of Default with
respect to Securities of such series.
Section 603 Certain Rights of Trustee
Subject to the provisions of Section 601:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice,
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request, direction, consent, order, bond, debenture, note, other evidence
of indebtedness or other paper or document believed by it to be genuine and
to have been signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall
be sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors may be sufficiently evidenced by a
Board Resolution;
(c) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may, in the absence of
bad faith on its part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction
of any of the Holders pursuant to this Indenture, unless such Holders shall
have offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which might be incurred by it in compliance
with such request or direction;
(f) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further inquiry
or investigation into such facts or matters as it may see fit, and, if the
Trustee shall determine to make such further inquiry or investigation, it
shall be entitled to examine the books, records and premises of the
Company, personally or by agent or attorney; and
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder.
Section 604 Not Responsible for Recitals or Issuance of Securities
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and the Trustee or any Authenticating Agent assumes no
responsibility for their correctness. The Trustee makes no representations as to
the validity or sufficiency of this Indenture or of the Securities. The Trustee
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or any Authenticating Agent shall not be accountable for the use or application
by the Company of Securities or the proceeds thereof.
Section 605 May Hold Securities
The Trustee, any Authenticating Agent, any Paying Agent, any
Security Registrar or any other agent of the Company, in its individual or any
other capacity, may become the owner or pledgee of Securities and, subject to
Sections 608 and 613, may otherwise deal with the Company with the same rights
it would have if it were not Trustee, Authenticating Agent, Paying Agent,
Security Registrar or such other agent.
Section 606 Money Held in Trust
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed with the Company.
Section 607 Compensation and Reimbursement
The Company agrees
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which compensation
shall not be limited by any provision of law in regard to the compensation
of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse
the Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision
of this Indenture (including the reasonable compensation and the expenses
and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad
faith; and
(3) to indemnify the Trustee and its officers, directors,
employees and agents for, and to hold them harmless against, any loss,
liability or expense incurred without negligence or bad faith on its part,
arising out of or in connection with the acceptance or administration of
the trust or trusts hereunder, including the costs and expenses of
defending any of them against any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder.
As security for the performance of the obligations of the Company
under this Section 607 the Trustee shall have a lien prior to the Securities
upon all property and funds held or collected by the Trustee as such, except
funds held in trust for the payment of principal of, premium, if any, or
interest on particular Securities.
When the Trustee incurs expenses or renders services in connection
with an Event of Default specified in Article Five, the expenses (including the
reasonable fees and expenses of its
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counsel) and the compensation for the services are intended to constitute
expenses of administration under any applicable bankruptcy, insolvency or other
similar law. The obligations of the Company set forth in this Section 607 and
any lien arising hereunder shall survive the resignation or removal of any
Trustee.
In the event that the Trustee is also acting as Paying Agent or
Transfer Agent and Security Registrar hereunder, the rights and protections
afforded to the Trustee pursuant to this Article Six shall also be afforded to
such Paying Agent or Transfer Agent and Security Registrar.
Section 608 Disqualification; Conflicting Interests
If the Trustee has or shall acquire a conflicting interest within
the meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture.
Section 609 Corporate Trustee Required; Eligibility
There shall at all times be a Trustee hereunder which shall be a
Person that is eligible pursuant to the Trust Indenture Act to act as such and
has a combined capital and surplus of at least $25,000,000 and its Corporate
Trust Office, or an office or agency thereof, in The City of New York. If such
Person publishes reports of condition at least annually, pursuant to law or to
the requirements of said supervising or examining authority, then for the
purposes of this Section, the combined capital and surplus of such Person shall
be deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. If at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article.
Section 610 Resignation and Removal; Appointment of Successor
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 611.
(b) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to the
Company. If the instrument of acceptance by a successor Trustee required by
Section 611 shall not have been delivered to the Trustee within 30 days
after the giving of such notice of resignation, the resigning Trustee may
petition any court of competent jurisdiction for the appointment of a
successor Trustee with respect to the Securities of such series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal
amount of the Outstanding Securities of such series, delivered to the
Trustee and to the Company.
(d) If at any time:
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(1) the Trustee shall fail to comply with Section 608 after
written request therefor by the Company or by any Holder who has been a
bona fide Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 609
and shall fail to resign after written request therefor by the Company or
by any such Holder, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove
the Trustee with respect to all securities, or (ii) subject to Section 514,
any Holder who has been a bona fide Holder of a Security for at least six
months may, on behalf of itself and all others similarly situated, petition
any court of competent jurisdiction for the removal of the Trustee with
respect to all Securities and the appointment of a successor Trustee or
Trustees.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause,
with respect to the Securities of one or more series, the Company, by a
Board Resolution, shall promptly appoint a successor Trustee or Trustees
with respect to the Securities of that or those series (it being understood
that any such successor Trustee may be appointed with respect to the
Securities of one or more or all of such series and that at any time there
shall be only one Trustee with respect to the Securities of any particular
series) and shall comply with the applicable requirements of Section 611.
If, within one year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee with respect to the
Securities of any series shall be appointed by Act of the Holders of a
majority in principal amount of the Outstanding Securities of such series
delivered to the Company and the retiring Trustee, the successor Trustee so
appointed shall forthwith upon its acceptance of such appointment in
accordance with the applicable requirements of Section 611, become the
successor Trustee with respect to the Securities of such series and to that
extent supersede the successor Trustee appointed by the Company. If no
successor Trustee with respect to the Securities of any series shall have
been so appointed by the Company or the Holders and accepted appointment in
the manner required by Section 611, any Holder who has been a bona fide
Holder of a Security of such series for at least six months may, on behalf
of itself and all others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor Trustee with
respect to the Securities of such series.
(f) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series and
each appointment of a successor Trustee with respect to the Securities of
any series to all Holders of Securities of such series in the manner
provided in Section 106. Each notice shall include the name
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of the successor Trustee with respect to the Securities of such series and
the address of its Corporate Trust Office.
Section 611 Acceptance of Appointment by Successor
(a) In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Trustee
an instrument accepting such appointment, and thereupon the resignation or
removal of the retiring Trustee shall become effective and such successor
Trustee, without any further act, deed or conveyance, shall become vested
with all the rights, powers, trusts and duties of the retiring Trustee;
but, on the request of the Company or the successor Trustee, such retiring
Trustee shall, upon payment of its charges, execute and deliver an
instrument transferring to such successor Trustee all the rights, powers
and trusts of the retiring Trustee and shall duly assign, transfer and
deliver to such successor Trustee all property and money held by such
retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company,
the retiring Trustee and each successor Trustee with respect to the
Securities of one or more series shall execute and deliver an indenture
supplemental hereto wherein each successor Trustee shall accept such
appointment and which (1) shall contain such provisions as shall be
necessary or desirable to transfer and confirm to, and to vest in, each
successor Trustee all the right, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates, (2) if the retiring Trustee
is not retiring with respect to all Securities, shall contain such
provisions as shall be deemed necessary or desirable to confirm that all
the rights, powers, trusts and duties of the retiring Trustee with respect
to the Securities of that or those series as to which the retiring Trustee
is not retiring shall continue to be vested in the retiring Trustee, and
(3) shall 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, it being understood that nothing herein
or in such supplemental indenture shall constitute such Trustees
co-trustees of the same trust and that each such Trustee shall be trustee
of a trust or trusts hereunder separate and apart from any trust or trusts
hereunder administered by any other such Trustee; and upon the execution
and delivery of such supplemental indenture, the resignation or removal of
the retiring Trustee shall become effective to the extent provided therein
and each such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee with respect to the Securities of that or
those series to which the appointment of such successor Trustee relates;
but, on request of the Company or any successor Trustee, such retiring
Trustee shall duly assign, transfer and deliver to such successor Trustee
all property and money held by such retiring Trustee hereunder with respect
to the Securities of that or those series to which the appointment of such
successor Trustee relates.
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(c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts
referred to in paragraphs (a) and (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
Section 612 Merger, Conversion, Consolidation or Succession to Business
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such Securities.
Section 613 Preferential Collection of Claims Against Company
If and when the Trustee shall be or become a creditor of the Company
(or any other obligor upon the Securities), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims against
the Company (or any such other obligor).
Section 614 Appointment of Authenticating Agent
The Trustee may appoint an Authenticating Agent or Agents with
respect to one or more series of Securities which shall be authorized to act on
behalf of the Trustee to authenticate Securities of such series issued upon
original issue and upon exchange, registration of transfer or partial redemption
thereof or pursuant to Section 306, and Securities so authenticated shall be
entitled to the benefits of this Indenture and shall be valid and obligatory for
all purposes as if authenticated by the Trustee hereunder. Wherever reference is
made in this Indenture to the authentication and delivery of Securities by the
Trustee or the Trustee's certificate of authentication, such reference shall be
deemed to include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a corporation organized and
doing business under the laws of the United States of America, any State thereof
or the District of Columbia, authorized under such laws to act as Authenticating
Agent, having a combined capital and surplus of not less than $25,000,000 and
subject to supervision or examination by Federal or State authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then
for the purposes of this Section,
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the combined capital and surplus of such Authenticating Agent shall be deemed to
be its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time an Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section, such Authenticating
Agent shall resign immediately in the manner and with the effect specified in
this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice thereof
to such Authenticating Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall mail written notice of
such appointment by first-class mail, postage prepaid, to all Holders of
Securities of the series with respect to which such Authenticating Agent will
serve, as their names and addresses appear in the Security Register. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Trustee agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section, and the
Trustee shall be entitled to be reimbursed for such payments, subject to the
provisions of Section 607.
If an appointment with respect to one or more series is made
pursuant to this Section, the Securities of such series may have endorsed
thereon, in addition to the Trustee's certificate of authentication, an
alternative certificate of authentication in the following form:
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This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
STAR BANK, N.A.
As Trustee
By:
------------------------------
As Authenticating Agent
By:
------------------------------
Authorized Officer
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 701 Company to Furnish Trustee Names and Addresses of Holders
The Company will furnish or cause to be furnished to the Trustee:
(a) semi-annually, not later than 15 days after each Regular Record
Date for each series of Securities at the time Outstanding, a list, in such
form as the Trustee may reasonably require, of the names and addresses of
the Holders as of such Regular Record Date (or a date to be determined
pursuant to Section 301 for Original Issue Discount Securities); and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a list
of similar form and content as of a date not more than 15 days prior to the
time such list is furnished; provided, however, that for so long as the
Trustee is the Security Registrar for any Series, no such list need be
furnished with respect to such Series.
Section 702 Preservation of Information; Communications to Holders
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders contained in the
most recent list furnished to the Trustee as provided in Section 701 and
the names and addresses of Holders received by the Trustee in its capacity
as Security Registrar. The Trustee may destroy any list furnished to it as
provided in Section 701 upon receipt of a new list so furnished.
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(b) The rights of the Holders to communicate with other Holders with
respect to their rights under this Indenture or under the Securities, and
the corresponding rights and privileges of the Trustee, shall be as
provided by the Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding same,
agrees with the Company and the Trustee that neither the Company nor the
Trustee nor any agent of either of them shall be held accountable by reason
of any disclosure of information as to names and addresses of Holders made
pursuant to the Trust Indenture Act.
Section 703 Reports by Trustee
(a) The Trustee shall transmit to Holders such reports concerning
the Trustee and its actions under this Indenture as may be required
pursuant to the Trust Indenture Act at the times and in the manner provided
pursuant thereto within 60 days after July 1 of each year commencing July
1, 1998.
(b) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange
upon which any Securities are listed, with the Commission and with the
Company. The Company will notify the Trustee when any Securities are listed
on any stock exchange.
Section 704 Reports by Company
The Company shall file with the Trustee and the Commission, and
transmit to Holders, such information, documents and other reports, and
such summaries thereof, as may be required pursuant to the Trust Indenture
Act at the times and in the manner provided pursuant to such Act; provided
that any such information, documents or reports required to be filed with
the Commission pursuant to Section 13 or 15(d) of the Exchange Act shall be
filed with the Trustee within 15 days after the same is so required to be
filed with the Commission.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 801 Company May Consolidate, Etc., Only on Certain Terms
[INSERT MERGER COVENANT]
Section 802 Successor Substituted
Upon any consolidation of the Company with, or merger of the Company
into, any other Person or any conveyance, transfer or lease of the properties
and assets of the Company
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substantially as an entirety in accordance with Section 801, the successor
Person formed by such consolidation or into which the Company is merged or to
which such conveyance, transfer or lease is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Company under
this Indenture with the same effect as if such successor Person had been named
as the Company herein, and thereafter, except in the case of a lease, the
predecessor Person shall be relieved of all obligations and covenants under this
Indenture and the Securities.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 901 Supplemental Indentures Without Consent of Holders
Without the consent of any Holders, the Company, when authorized by
a Board Resolution, and the Trustee, at any time and from time to time, may
enter into one or more indentures supplemental hereto, in form satisfactory to
the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the
Company and the assumption by any such successor of the covenants of the
Company herein and in the Securities; or
(2) to add to the covenants of the Company for the benefit of
the Holders of all of or any series of Securities (and if such covenants
are to be for the benefit of less than all series of Securities, stating
that such covenants are expressly being included solely for the benefit of
such series) or to surrender any right or power herein conferred upon the
Company; or
(3) to add any additional Events of Default; or
(4) to add to or change any of the provisions of this
Indenture to such extent as shall be necessary to permit or facilitate the
issuance of Securities in bearer form, registrable or not registrable as to
principal, and with or without interest coupons, or to permit or facilitate
the issuance of Securities in uncertificated form; or
(5) to add to, change or eliminate any of the provisions of
this Indenture in respect of one or more series of Securities, provided
that any such addition, change or elimination (i) shall neither (A) apply
to any Security of any series created prior to the execution of such
supplemental indenture and entitled to the benefit of such provision nor
(B) modify the rights of the Holder of any such Security with respect to
such provision or (ii) shall become effective only when there is no such
Security Outstanding; or
(6) to secure the Securities pursuant to the requirements of
Section 1007 or otherwise; or
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(7) to establish the form or terms of Securities of any
series as permitted by Section 201 and 301; or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or
more series 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, pursuant to the requirements of
Section 611(b); or
(9) to cure any ambiguity, to correct or supplement any
provision herein which may be inconsistent with any other provision herein,
or to make any other provisions with respect to matters or questions
arising under this Indenture, provided that such action pursuant to this
clause (9) shall not adversely affect the interests of the Holders of
Securities of any series in any material respect.
Section 902 Supplemental Indentures with Consent of Holders
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by a Board Resolution, and the Trustee may
enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders of Securities of such series under this Indenture; provided, however,
that no such supplemental indenture shall, without the consent of the Holder of
each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any
installment of principal of or interest on, any Security, or reduce the
principal amount thereof or the rate of interest thereon or any premium
payable upon the redemption thereof, or reduce the amount of the principal
of an Original Issue Discount Security that would be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section
502, or change any Place of Payment where, or the coin or currency in
which, any Security or any premium or interest thereon is payable, or
impair the right to institute suit for the enforcement of any such payment
on or after the Stated Maturity thereof (or, in the case of redemption, on
or after the Redemption Date), or
(2) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of whose Holders is
required for any such supplemental indenture, or the consent of whose
Holders is required for any waiver (of compliance with certain provisions
of this Indenture or certain defaults hereunder and their consequences)
provided for in this Indenture, or
(3) modify any of the provisions of this Section, Section 513
or Section 1010, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived
without the consent of the
47
55
Holder of each Outstanding Security affected thereby; provided, however,
that this clause shall not be deemed to require the consent of any Holder
with respect to changes in the references to "the Trustee" and concomitant
changes in this Section and Section 1010, or the deletion of this proviso,
in accordance with the requirements of Sections 611(b) and 901(8).
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included solely for
the benefit of one or more particular series of securities, or which modifies
the rights of the Holders of Securities of such series with respect to such
covenant or other provisions, shall be deemed not to affect the rights under
this Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section
to approve the particular form of any proposed supplemental indenture, but it
shall be sufficient if such Act shall approve the substance thereof.
Section 903 Execution of Supplemental Indentures
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Article Six) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
Section 904 Effect of Supplemental Indentures
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
Section 905 Conformity with Trust Indenture Act
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act.
Section 906 Reference in Securities to Supplemental Indentures
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture
48
56
may be prepared and executed by the Company and authenticated and delivered by
the Trustee in exchange for Outstanding Securities of such series.
ARTICLE TEN
COVENANTS
Section 1001 Payment of Principal, Premium and Interest
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of and any premium
and interest on the Securities of that series in accordance with the terms of
the Securities and this Indenture.
Section 1002 Maintenance of Office or Agency
The Company will maintain in each Place of Payment for any series
of Securities an office or agency where Securities of that series may be
presented or surrendered for payment, where Securities of that 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 that series and
this Indenture may be served. The Company will give prompt written notice to the
Trustee of the location, and any change in the location, of such office or
agency. If at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, and the Company hereby appoints the
Trustee as its agent to receive all such presentations, surrenders, notices and
demands.
The Company may also from time to time designate one or more other
offices or agencies where the Securities of one or more series may be presented
or surrendered for any or all such purposes 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 obligation to maintain an office
or agency in each Place of Payment 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 location of any such other
office or agency.
Section 1003 Money for Securities Payments to Be Held in Trust
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it will, on or before each due date of the
principal of or any premium or interest on any of the Securities of that series,
segregate and hold in trust for the benefit of the Persons entitled thereto a
sum sufficient to pay the principal and any premium and interest so becoming due
until such sums shall be paid to such Persons or otherwise disposed of as herein
provided and will promptly notify the Trustee of its action or failure so to
act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities, it will, on or prior to each due date of the principal of
or any premium or interest on
49
57
any Securities of that series, deposit with a Paying Agent a sum sufficient to
pay such amount, such sum to be held as provided by the Trust Indenture Act, and
(unless such Paying Agent is the Trustee) the Company will promptly notify the
Trustee of its action or failure so to act.
The Company will cause each Paying Agent for any series of
Securities other than the Trustee to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee, subject to
the provisions of this Section, that such Paying Agent will (i) comply with the
provisions of the Trust Indenture Act applicable to it as a Paying Agent and
(ii) during the continuance of any default by the Company (or any other obligor
upon the Securities of that series) in the making of any payment in respect of
the Securities of that series, and upon the written request of the Trustee,
forthwith pay to the Trustee all sums held in trust by such Paying Agent for
payment in respect of the Securities of that series.
The Company may at any time, for the purpose of obtaining
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or then
held by the Company, in trust for the payment of the principal of or any premium
or interest on any Security of any series and remaining unclaimed for two years
after such principal, premium or interest has become due and payable shall be
paid to the Company on Company Request, or (if then held by the Company) shall
be discharged from such trust; and the Holder of such Security shall thereafter,
as an unsecured general creditor, look only to the Company for the payment
thereof, and all liability of the Trustee or such Paying Agent with respect to
such trust money, and all liability of the Company as trustee thereof, shall
thereupon cease; provided, however, that the Trustee or such Paying Agent,
before being required to make any such repayment, may at the expense of the
Company cause to be published once, in a newspaper published in the English
language, customarily published on each Business Day and of general circulation
in the Borough of Manhattan, The City of New York, notice that such money
remains unclaimed and that, after a date specified therein, which shall not be
less than 30 days from the date of such publication, any unclaimed balance of
such money then remaining will be repaid to the Company.
Section 1004 Existence
Subject to Article Eight, the Company will do or cause to be done
all things necessary to preserve and keep in full force and effect its
existence, rights (charter and statutory) and franchises; provided, however,
that the Company shall not be required to preserve any such right or franchise
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 that the loss
thereof is not disadvantageous in any material respect to the Holders.
50
58
Section 1005 Maintenance of Properties
The Company will cause all properties used or useful in the conduct
of its business or the business of any Principal Subsidiary of the Company to be
maintained and kept in good condition, repair and working order and supplied
with all necessary equipment and will cause to be made all necessary repairs,
renewals, replacements, betterments and improvements thereof, all as in the
judgment of the Company may be necessary so that the business carried on in
connection therewith may be properly and advantageously conducted at all times;
provided, however, that nothing in this Section shall prevent the Company from
discontinuing the operation or maintenance of any of such properties if such
discontinuance is, in the judgment of the Company desirable in the conduct of
its business or the business of any Principal Subsidiary of the Company and not
disadvantageous in any material respect to the Holders.
Section 1006 Payment of Taxes and Other Claims
The Company will pay or discharge or cause to be paid or
discharged, before the same shall become delinquent, (1) all taxes, assessments
and governmental charges levied or imposed upon the Company or any Subsidiary or
upon the income, profits or property of the Company or any Subsidiary, and (2)
all lawful claims for labor, materials and supplies which, if unpaid, might by
law become a lien upon the property of the Company or any Subsidiary; provided,
however, that the Company shall not be required to pay or discharge or cause to
be paid or discharged any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by appropriate
proceedings.
Section 1007 Statement of Officers as to Default
The Company will deliver to the Trustee, within 120 days after the
end of each fiscal year of the Company ending after the date hereof, an
Officers' Certificate, stating whether or not to the best knowledge of the
signers thereof the Company is in default in the performance and observance of
any of the terms, provisions and conditions of this Indenture (without regard to
any period of grace or requirement of notice provided hereunder) and, if the
Company shall be in default, specifying all such defaults and the nature and
status thereof of which they may have knowledge.
Section 1008 Waiver of Certain Covenants
The Company may omit in any particular instance to comply with any
term, provision or condition set forth in Sections 1007 and 1008 with respect to
the Securities of any series if before the time for such compliance the Holders
of at least a majority in principal amount of the Outstanding Securities of such
series shall, by Act of such Holders, either waive such compliance in such
instance or generally waive compliance with such term, provision or condition,
but no such waiver shall extend to or affect such term, provision or condition
except to the extent so expressly waived, and, until such waiver shall become
effective, the obligations of the Company and the duties of the Trustee in
respect of any such term, provision or condition shall remain in full force and
effect.
52
59
Section 1009 SEC Reports
The Company shall deliver to the Trustee within 15 days after it
files the same with the Commission, copies of all reports and information (or
copies of such portions of any of the foregoing as the Commission may by rules
and regulations prescribe), if any, which the Company is required to file with
the Commission pursuant to Section 13 or 15(d) of the Exchange Act.
[OTHER COVENANTS TO COME]
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
Section 1101 Applicability of Article
Securities of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified as contemplated by Section 301 for Securities of any series)
in accordance with this Article.
Section 1103 Election to Redeem; Notice to Trustee
The election of the Company to redeem any Securities shall be
evidenced by a Board Resolution or by action taken pursuant to a Board
Resolution. In case of any redemption at the election of the Company of less
than all the Securities of any series, the Company shall, at least 60 days prior
to the Redemption Date fixed by the Company (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee of such Redemption Date, of the
principal amount of Securities of such series to be redeemed and, if applicable,
of the tenor of the Securities to be redeemed. In the case of any redemption of
Securities prior to the expiration of any restriction on such redemption
provided in the terms of such Securities or elsewhere in this Indenture, the
Company shall furnish the Trustee with an Officers' Certificate evidencing
compliance with such restriction.
Section 1103 Selection by Trustee of Securities to Be Redeemed
If less than all the Securities of any series are to be redeemed
(unless all of the Securities of such series and of a specified tenor are to be
redeemed), the particular Securities to be redeemed shall be selected not more
than 60 days prior to the Redemption Date by the Trustee, from the Outstanding
Securities of such series not previously called for redemption, by such method
as the Trustee shall deem fair and appropriate and which may provide for the
selection for redemption of portions (equal to the minimum authorized
denomination for Securities of that
52
60
series or any integral multiple thereof) of the principal amount of Securities
of such series of a denomination larger than the minimum authorized denomination
for Securities of that series. If less than all of the Securities of such series
and of a specified tenor are to be redeemed, the particular Securities to be
redeemed shall be selected not more than 60 days prior to the Redemption Date by
the Trustee, from the Outstanding Securities of such series and specified tenor
not previously called for redemption in accordance with the preceding sentence.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Securities selected
for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which has been or is to be
redeemed.
Section 1104 Notice of Redemption
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption
Date, to each Holder of Securities to be redeemed, at such Holder's address
appearing in the Security Register.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities of any series
are to be redeemed, the identification (and, in the case of partial
redemption of any Securities, the principal amounts) of the particular
Securities to be redeemed,
(4) that on the Redemption Date the Redemption Price will
become due and payable upon each such Security to be redeemed and, if
applicable, that interest thereon will cease to accrue on and after said
date,
(5) the place or places where such Securities are to be
surrendered for payment of the Redemption Price, and
(6) that the redemption is for a sinking fund, if such is the
case.
Notice of redemption of Securities to be redeemed at the election
of the Company shall be given by the Company or, at the Company's request, by
the Trustee in the name and at the expense of the Company.
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61
Section 1105 Deposit of Redemption Price
Prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 1003) an amount of
money sufficient to pay the Redemption Price of, and (except if the Redemption
Date shall be an Interest Payment Date) accrued interest on, all the Securities
which are to be redeemed on that date.
Section 1106 Securities Payable on Redemption Date
Notice of redemption having been given as aforesaid, the Securities
so to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest. Upon surrender of any
such Security for redemption in accordance with said notice, such Security shall
be paid by the Company at the Redemption Price, together with accrued interest
to the Redemption Date; provided, however, that unless otherwise specified as
contemplated by Section 301, installments of interest whose Stated Maturity is
on or prior to the Redemption Date shall be payable to the Holders of such
Securities, or one or more Predecessor Securities, registered as such at the
close of business on the relevant Record Dates according to their terms and the
provisions of Section 307.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal and any premium shall, until
paid, bear interest from the Redemption Date at the rate prescribed therefor in
the Security.
Section 1107 Securities Redeemed in Part
Any Security which is to be redeemed only in part shall be
surrendered at a Place of Payment therefor (with, if the Company or the Trustee
so requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the Holder thereof
or such Holder's attorney duly authorized in writing), and the Company shall
execute, and the Trustee shall authenticate and deliver to the Holder of such
Security without service charge, a new Security or Securities of the same series
and of like tenor, of any authorized denomination as required by such Holder, in
aggregate principal amount equal to and in exchange for the unredeemed portion
of the principal of the Security so surrendered.
62
IN WITNESS WHEREOF, the parties hereto have caused this Indenture
to be duly executed, and their respective corporate seals to be hereunto affixed
and attested, all as of the day and year first above written.
INTERNATIONAL ALLIANCE SERVICES, INC.
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
STAR BANK, N.A.,
AS TRUSTEE
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
1
EXHIBIT 12.1
International Alliance Services, Inc.
Ratio of Earning to Fixed Charges
December 31, September 30,
---------------------- ---------------
1994 1995 1996 1996 1997
---------------------- ---------------
Pretax Income-Continuing Operations 4,870 4,954 6,116 3,704 12,456
Interest Charges 26 63 54 8 298
---------------------- ---------------
Ratio of Earnings to Fixed Charges 187.3 78.6 113.3 463.0 41.8
====================== ===============
1
EXHIBIT 23.2
The Board of Directors
International Alliance Services, Inc.
We consent to the use of our reports incorporated herein by reference
and to the reference to our firm under the heading "Experts" in the Registration
Statement.
KPMG PEAT MARWICK LLP
Cleveland, Ohio
November 14, 1997
1
Securities Act of 1933 File No.___________________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM T-1
--------------------------------------------------
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
PURSUANT TO SECTION 305(b) (2) / X /
--------------------------------------------------
STAR BANK, NATIONAL ASSOCIATION
(Exact name of trustee as specified in its charter)
A National Banking Association 31-0841368
----------------
(IRS Employer Identification No.)
425 Walnut Street
Cincinnati, Ohio 45202
-----------------------------------------------------------
(Address of Principal Executive Offices (Zip Code)
-------------------------------------------------
Keith A. Maurmeier
Senior Trust Officer
Star Bank, National Association
425 Walnut Street
Cincinnati, Ohio 45202
(513) 632-2047
(Name, address, and telephone number of agent for services)
International Alliance Services, Inc.
----------------------------------------------------------------
(Exact name of obligor as specified in its charter)
Delaware 22-2769024
-------------------------- -----------------------------------
(State of Incorporation) (IRS Employer Identification No.)
10055 Sweet Valley Drive, Valley View, Ohio 44125
-------------------------------------------- ----------
(Address of principal executive offices) (Zip Code)
% Securities, Due
-----------------
2
(Title of the Indenture Securities)
1. General Information. Furnish the following information as
Trustee --
(a) Name and address of each examining or supervising authority
to which it is subject.
Comptroller of the Currency, Washington, D.C.
Federal Reserve Bank of Cleveland, Ohio
Federal Deposit Insurance Corporation, Washington,
D.C.
(b) Whether it is authorized to exercise corporate trust powers.
The Trustee is authorized to exercise corporate
trust powers.
2. Affiliations with obligor. If the obligor is an affiliate of the
trustee, describe each such affiliation. The obligor
is not an affiliate of the Trustee (including its
parent and any affiliates).
3. Voting Securities of the trustee. Furnish the following information
as to each class of voting securities of the trustee
(and its parent). As of _____________ (insert date
within 31 days)
Col A Col B
---------------- --------------------
(Title of Class) (Amount Outstanding)
4. Trusteeships under other Indentures. If the trustee is a trustee under
another Indenture under which any other securities, or
certificates of interest or participation in any other
securities, of the obligor are outstanding, furnish the
following information:
(a) Title of the securities outstanding under each such other
indenture.
(b) A brief statement of the facts relied upon as a basis for
the claim that no conflicting interest within the meaning
of Section 310(b)(1)
3
of the Act arises as a result of the trusteeship under any such
other indenture, including a statement as to how the indenture
securities will rank as compared with the securities issued
under such other indenture.
5. Interlocking directorates and similar relationships with the obligor
or underwriters. If the trustee (including its parent and any
other affiliates) or any of the directors or executive
officers of the trustee is a director, officer, partner,
employee, appointee, or representative of the obligor or of
any underwriter for the obligor, identify each such person
having any such connection and state the nature of each such
connection.OP
6. Voting securities of the trustee (including its parent and any
affiliate) owned by the obligor or its official. Furnish the following
information as to the voting securities of the trustee (including its
parent and any affiliates) owned beneficially by the obligor and each
director, partner and executive officer of the obligor:
As of _______________________ (insert date within 31 days)
Col. A. Col. B. Col. C Col. D
Percentage of
Voting Securities
Represented by
Amount Owned Amount Given
Name of Owner Title of Class Beneficially in Col. C
------------- -------------- ------------ -----------------
7. Voting securities of the trustee (including its parent and any
affiliates) owned by underwriters or their officials.
Furnish the following information as to the
voting securities of the trustee (including its parent and
any affiliates) owned beneficially by each underwriter for
the obligor and each director, partner, and executive officer
of each such underwriter:
As of ___________________(insert date within 31 days)
4
Col. A. Col. B. Col. C. Col. D.
Represented by
Amount Owned Amount Given
Name of Owner Title of Class Beneficially in Col. C
------------- -------------- ------------ --------------
8. Securities of the obligor owned or held by the trustee (including its
parent and any affiliates). Furnish the following information as to
securities of the obligor owned beneficially or held as collateral
security for obligations default by the trustee (including its parent
and any affiliates):
As of ___________________(insert date within 31 days)
Col. A Col. B Col. C Col. D
Amount Owned
Whether the Beneficially or
Securities Are Held as Collateral Percent of
Voting or Security for Class Represented
Nonvoting obligations in .by Amount Given
Title of Class Securities Default in Col. C
-------------- -------------- ------------------ -----------------
9. Securities of underwriters owned or held by the trustee (including its
parent and any affiliates). If the trustee (including its parent and
any affiliates) owns beneficially or holds as collateral security for
obligations in default any securities of an underwriter for the
obligor, furnish the following information as to each class of
securities of such underwriter any of which are so owned or held by
the trustee:
Col. A Col. B Col. C Col. D
Amount Owned
Beneficially or
Held as Collateral Percent of
Security for Class Represented
Title of Issuer Obligations in by Amount
and Title of Amount Default by Given in
Class Outstanding Trustee Col. C
---------------- ----------- ------------------ -----------------
5
10. Ownership or holdings by the trustee (including its parent and any
affiliates) of voting securities of certain affiliates or security
holders of the obligor. If the trustee (including its parent and any
affiliates) owns beneficially or holds as collateral security for
obligations in default voting securities of a person who, to the
knowledge of the trustee (1) owns 10% or more of the voting securities
of the obligor or (2) is an affiliate, other than a subsidiary, of the
obligor, furnish the following information as to the voting securities
of such person:
As of _______________________(insert date within 31 days)
Col. A Col. B Col. C Col. D
Amount Owned
Beneficially or
Held as Collateral Percent of
Security for Class Represented
Title of Issuer Obligations in by Amount
and Title of Amount Default by Given in
Class Outstanding Trustee Col. C
--------------- ----------- ------------------ -----------------
11. Ownership or holdings by the trustee (including its parent and any
affiliates) of any securities of a person owning 50 percent or more of
the voting securities of the obligor. If the trustee (including its
parent and any affiliates) owns beneficially or holds as collateral
security for obligations in default any securities of a person who, to
the knowledge of the trustee, owns 50 percent or more of the voting
securities of the obligor, furnish the following information as to
each class of securities of such person any of which are so owned or
held by the trustee (including its parent and affiliates):
As of ______________________(insert date within 31 days)
6
Col. A Col. B Col. C Col. D
Amount Owned
Beneficially or
Held as Collateral Percent of
Security for Class Represented
Title of Issuer Obligations in by Amount
and Title of Amount Default by Given in
Class Outstanding Trustee Col. C
--------------- ----------- ------------------ -----------------
12. Indebtedness of the Obligor to the Trustee. Except as noted in the
instructions, if the obligor is indebted to the trustee, furnish the
following information:
As of ____________________(insert date with 31 days)
Col. A Col. B Col. C
Amount
Nature of Indebtedness Outstanding Due Date
---------------------- ----------- --------
13. Defaults by the Obligor.
a) State whether there is or has been a default with
respect to the securities under this indenture.
Explain the nature of any such default.
-NONE-
b) If the Trustee is a trustee under another indenture
under which any other securities, or certificates of
interest or participation in any other securities,
of the obligor are outstanding, or is trustee for
more than one outstanding series or securities under
the indenture, state whether there has been a
default under any such indenture or
7
series, identify the indenture or series affected,
and explain the nature of any such default.
As of (insert date within 31 days)
----------------------------
-NONE-
Col. A Col. B Col. C Col. D
Amount Owned
Beneficially or
Held as Collateral Percent of
Security for Class Represented
Title of Issuer Obligations in by Amount
and Title of Amount Default by Given in
Class Outstanding Trustee Col. C
--------------- ----------- ------------------- ------------------
14. Affiliations with the Underwriters. If any underwriter is an affiliate
of the trustee (including its parent and any affiliates), described
each such affiliation.
15. Foreign Trustee. Identify the order or rule pursuant to which the
foreign trustee is authorized to act as sole trustee under indentures
qualified or to be qualified under the Act.
16. List of Exhibits. List below all exhibits filed as part of this
statement of eligibility.
1. (a) A copy of the Articles of
Association of Star Bank, National Association,
Cincinnati (now Star Bank, National Association)
as now in effect.
8
(b) A copy of the Amended Articles of Association dated
June 14, 1991, changing the name of the association
to Star Bank, National Association.
2. (a) A copy of the certificate of authority of The First
National Bank of Cincinnati (now Star Bank, National
Association)to commence business dated September 1,
1922.
(b) A copy of a Certificate of the Comptroller of the
Currency dated December 21, 1973, authorizing F N
National Bank to commence the business of banking.
(c) A copy of a Certificate of the Comptroller of the
Currency dated December 28, 1973, approving the
merger of The First National Bank of Cincinnati (now
Star Bank, National Association) into F N National
Bank under the title "The First National Bank of
Cincinnati" effective January 2, 1974.
(d) A copy of a letter dated June 8, 1988, from the
Comptroller of the Currency indicating the change in
the name of the association to Star Bank, National
Association, Cincinnati, effective July 1, 1988.
(e) A copy of a letter dated July 15, 1991, from the
Comptroller of the Currency indicating the change in
the name of the association to Star Bank, National
Association, effective
June 14, 1991.
3. A copy of the authorization of The First National Bank of
Cincinnati (now Star Bank, National Association) to exercise
corporate trust powers.
4. A copy of existing By-Laws to Star Bank, National
Association, Cincinnati(now Star Bank, National Association)
5. The consent of the Trustee required by section 321 (b) of the
Trust Indenture Act of 1939.
6. A copy of the latest report of condition of Star Bank,
National Association, published pursuant to law or the
requirements of its supervising or examining authority.
9
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of
1939, the Trustee, Star Bank, National Association, a national banking
association organized and existing under the laws of the United States
of America, has duly caused this statement of eligibility to be signed
on its behalf by the undersigned, thereunto duly authorized, all in
the City of Cincinnati and State of Ohio on the 31st day of October,
1997.
STAR BANK, NATIONAL ASSOCIATION
By: /s/
----------------------------
Stephen J. Blackstone
Trust Officer
10
EXHIBIT 1 (a)
STAR BANK, NATIONAL ASSOCIATION, CINCINNATI
CHARTER NO. 24
ARTICLES OF ASSOCIATION
FIRST: The title of this Association shall be "Star Bank, National
Association, Cincinnati."*
SECOND: The main office of the Association shall be in the City of Cincinnati,
County of Hamilton, State of Ohio. The general business of the Association
shall be conducted at its main office and its branches.
THIRD: The Board of Directors of this Association shall consist of not less
than five (5) nor more than twenty-five (25) shareholders, the exact number of
Directors within such minimum and maximum limits to be fixed and determined
from time to time by resolution of a majority of the full Board of Directors or
by resolution of the shareholders at any annual or special meeting thereof.
Unless otherwise provided by the laws of the United States, any vacancy in the
Board of Directors for any reason, including an increase in the number thereof,
may be filled by action of the Board of Directors.
FOURTH: The annual meeting of the shareholders for the election of Directors
and the transaction of whatever other business may be brought before said
meeting shall be held at the main office or such other place as the Board of
Directors may designate, on the day of each year specified therefor by the
Bylaws, but if no election is held on that day, it may be held on any
subsequent day according to the provisions of law; and all elections shall be
held according to such lawful regulations as may be prescribed by the Board of
Directors.
FIFTH: The authorized amount of capital stock of this Association shall be
3,640,000 shares of common stock of the par value of five dollars ($5.00) each,
but said capital stock may be increased or decreased from time to time, in
accordance with the provisions of the laws of the United States.
No holder of shares of the capital stock of any class of the Association shall
have any pre-emptive or preferential right of subscription to any shares of any
class of stock of the Association, whether now or hereafter authorized, or to
any obligations convertible into stock of the Association issued or sold, nor
any right of subscription to any thereof other than such, if any, as the Board
of Directors, in its discretion, may from time to time determine and at such
price as the Board of Directors may from time to time fix.
The Association, at any time and from time to time, may authorized and issue
debt obligations, whether or not subordinated, without the approval of the
shareholders.
*Amended June 14, 1991, see attached.
11
SIXTH: The Board of Directors shall appoint one of its members President of
this Association, who shall be Chairman of the Board, unless the Board appoints
another Director to be the Chairman. The Board of Directors shall have the
power to appoint one or more Vice Presidents; and to appoint a Cashier and such
other officers and employees as may be required to transact the business of
this Association. The Board of Directors shall have the power to define the
duties of the officers and employees of the Association; to fix the salaries to
be paid to them; to dismiss them; to require bonds from them and to fix the
penalty thereof; to regulate the manner in which any increase of the capital of
the Association shall be made; to manage and administer the business and
affairs of the Association; to make all Bylaws that it may be lawful for them
to make and generally to do and perform all acts that it may be legal for a
Board of Directors to do and perform.
The Board of Directors, without need for approval of shareholders, shall have
the power to change the location of the main office of this Association,
subject to such limitations as from time to time may be provided by law; and
shall have the power to establish or change the location of any branch or
branches of the Association to any other location, without the approval of the
shareholders, but subject to the approval of the Comptroller of the Currency.
SEVENTH: The corporate existence of this Association shall continue until
terminated in accordance with the laws of the United States.
EIGHTH: The Board of Directors of this Association, the Chairman of the Board,
the President, or any three or more shareholders owning, in the aggregate, not
less twenty-five percent of the stock of this Association, may call a special
meeting of shareholders at any time. Unless otherwise provided by the laws of
the United States, a notice of the time, place, and purpose of every annual and
special meeting of the shareholders shall be given by first-class mail, postage
prepaid, mailed at least ten days prior to the date of such meeting to each
shareholder of record at his address as shown upon the books of this
Association.
NINTH: Any person, his heirs, executors, or administrators, may be
indemnified or reimbursed by the Association for reasonable expenses actually
incurred in connection with any action, suit, or proceeding, civil or
criminal, to which he or they shall be made a party by reason of his being or
having been a director, officer, or employee of the Association or of any firm,
corporation, or organization which he served in any such capacity at the
request of the Association. Provided, however, that no person shall be so
indemnified or reimbursed in relation to any matter in such action, suit, or
proceeding as to which he shall finally be adjudged to have been guilty of or
liable for gross negligence, willful misconduct or criminal acts in the
performance of his duties to the Association; and, provided further, that no
person shall be so indemnified or reimbursed in relation to any matter in such
action, suit, or proceeding which has been made the subject of a compromise
settlement except with the approval of a court of competent jurisdiction, or
the holders of record of a majority of the outstanding shares of the
Association, or the Board of Directors, acting by vote of Directors not
parties to the same or substantially the same action, suit, or proceeding,
constituting a majority of the whole number of Directors. The foregoing right
of indemnification shall not be exclusive of other rights to which such
person, his heirs, executors, or administrators, may be entitled as a matter
of law. The Association may, upon the affirmative vote of a majority of its
Board of Directors, purchase insurance for the purpose of indemnifying its
directors, officers and other employees to the extent that such
indemnification is allowed in the preceding paragraph. Such insurance may, but
need not, be for the benefit of all directors, officers, or employees.
12
TENTH: These Articles of Association may be amended at any regular or special
meeting of the shareholders by the affirmative vote of the holders of a
majority of the stock of this Association, unless the vote of the holders of a
greater amount of stock is required by law and in that case by the vote of the
holders of such greater amount.
August 18, 1988
13
EXHIBIT 1(B)
STAR BANC
CORPORATION June 14, 1991
Deputy Comptroller
Central District
Office of the Comptroller of the Currency
One Financial Place
440 S. LaSalle, Suite 2700
Chicago, Illinois 60605
Dear Deputy Comptroller:
Re: Letter of Notification
Star Bank, National Association, Cincinnati, Charter #24 intends to
change its corporate title to Star Bank, National Association. The effective
date of the change is June 14, 1991.
A certified copy of the amendment to the articles of association is
enclosed. The amendment conforms to the requirements of 12 USC 21 a.
Sincerely,
/s/
--------------------
F. Kristen Koepcke
FKK:bjt
Enclosure
14
EXHIBIT 1 (b)
MINUTES OF SPECIAL MEETING OF THE SHAREHOLDER
STAR BANK, NATIONAL ASSOCIATION, CINCINNATI
A Special Meeting of the shareholder of Star Bank, National Association,
Cincinnati (the "Bank") was held on June 14, 1991.
Mr. Oliver W. Waddell called the meeting to order and selected Mr. F. Kristen
Koepke to act as Secretary.
The Secretary reported that all the outstanding shares of the Bank were
represented at this meeting and that the shareholder had waived notice of this
special meeting. Therefore, a quorum was present.
Mr. Waddell stated that the purpose of the meeting was to consider a proposed
name change for the Bank as recommended by the Board of Directors. On motion
duly made and carried, the following resolution was adopted:
RESOLVED, That Article First of the Articles of Association of
the Bank be amended in its entirely to read as follows:
FIRST:
The title of this Association shall be "Star Bank,
National Association."
15
There being no further business to come before the meeting, on motion duly made
and carried, the meeting was adjourned.
/s/
-------------------------------------
F. Kristen Koepke, Secretary
Approved:
/s/
- ---------------------------------------
Oliver W. Waddell
Chairman, Star Banc Corporation,
Shareholder
Certified Copy
/s/
---------------------------
Secretary
16
EXHIBIT 2 (a)
COPY OF THE CERTIFICATE OF AUTHORITY OF THE TRUSTEE TO COMMENCE
BUSINESS:
NO. 24
E Pluribus Unum
TREASURY DEPARTMENT
Office of Comptroller of the Currency
Washington, D.C., September 1, 1992
WHEREAS, the Act of Congress of the United States, entitled, "An Act to amend
section 5136, Revised Statutes of the United States, relating to corporate
powers of associations, so as to provide succession thereof for a period of
ninety-nine years or until dissolved, and to apply said section as so amended
to all national banking association", approved by the President on July 1,
1922, provided that all national banking associations organized and
operating under any law of the United States on July 1, 1992 should have
succession until ninety-nine years from that date, unless such association
should be sooner dissolved by the act of its shareholders owning two-thirds of
its stock, or unless its franchise should become forfeited by reason of
violation of law, or unless it should be terminated by an Act of Congress
hereinafter enacted;
NOW THEREFORE, I, D. R. Crissinger Comptroller of the Currency, do hereby
certify that The First National Bank of Cincinnati and State of Ohio,
was organized and operating under the laws of the United States on July 1,
1922, and that its
17
corporate existence was extended for the period of ninety-nine years from that
date in accordance with and subject to the condition in the Act of Congress
hereinbefore recited.
(SEAL)
IN TESTIMONY WHEREOF, witness my hand
and seal of office this first day of September,
1922
(Signed) D. R. Crissinger
Comptroller of the Currency
18
EXHIBIT 2 (b)
Comptroller of the Currency
TREASURY DEPARTMENT OF THE UNITED STATES
Washington, D.C.
Whereas, satisfactory evidence has been presented to the Comptroller of the
Currency that "FN NATIONAL BANK". located in CINCINNATI, State
of OHIO, has complied with all provisions of the Statutes of the United States
required t be complied with before being authorized to commence the business
of banking a National Banking Association;
Now, therefore, I hereby certify that the above-named association is
authorized to commence the business of banking as a National Banking
Association.
In testimony whereof, witness
SEAL my signature and seal of office
this 21st day of December, 1913.
/S/
--------------------------
19
EXHIBIT 2(c)
Comptroller of the Currency
TREASURY DEPARTMENT OF THE UNITED STATES
Washington, D.C.
WHEREAS, satisfactory evidence has been presented to the Comptroller
of the Currency that all requisite legal and corporate action has been taken,
in accordance with the statutes of the United States, to merge The First
National Bank of Cincinnati, Cincinnati, Ohio, into FN National Bank,
Cincinnati, Ohio, under the charter of FN National Bank and under the title
"The First National Bank of Cincinnati," with capital stock of $18,200,000;
NOW, THEREFORE, it is hereby certified that such merger was approved
November 29, 1973, and is effective as of the opening of business January 2,
1974.
IN TESTIMONY WHEREOF witness my signature and seal of
office this 28th day of December, 1973
SEAL /S/
-----------------------------------
James E. Smith
Comptroller of the Currency
20
EXHIBIT 2(d)
- ------------------------------------------------------------------------------
Comptroller of the Currency
Administrator of National Banks
- ------------------------------------------------------------------------------
Central District
One Financial Plaza, Suite 2700
440 South LaSalle Street
Chicago, Illinois 60605
June 8, 1988
Mr. Raymond D. Beck
Secretary & Counsel
First National Cincinnati Corporation
First National Bank Center
425 Walnut Street
Cincinnati, Ohio 45201-1038
Dear Mr. Beck:
The Office of the Comptroller of the Currency acknowledges receipt of your
letters concerning First National Cincinnati Corporation's banking subsidiaries'
title changes and the appropriate amendments to each bank's articles of
association. The Office has recorded the following banks' title changes
effective July 1, 1988.
Old Title New Title
The First National Bank of Ironton Star Bank, National Association,
Ironton, Ohio Tri-State
Charter No. 16607
Farmers and Traders National Bank Star Bank, National Association
Hillsboro, Ohio Hillsboro
Charter No. 17646
The First National Bank of Cincinnati Star Bank, National
Association Cincinnati
Cincinnati, Ohio
Charter No. 24
The First National Bank & Trust Company Star Bank, National Association
Troy, Ohio Troy
Charter No. 9336
21
Page 2
Mr. Raymond D. Beck (cont'd)
The Second National Bank of Hamilton Star Bank, National Association
Hamilton, Ohio Butler County
Charter No. 17200
The Second National Bank of Richmond Star Bank, National Association
Richmond, Indiana Eastern Indiana
Charter No. 1988
The First National Bank of Aurora Star Bank, National Association
Aurora, Indiana Aurora
Charter No. 699
The Peoples National Bank of Lawrenceburg Star Bank, National Association
Lawrenceburg, Indiana Southeastern Indiana
Charter No. 2612
Newport National Bank Star Bank, National Association
Newport, Kentucky Campbell County
Charter No. 4765
The First National Bank Star Bank, National Association
Sidney, Ohio Sidney
Charter No. 5214
Very truly yours,
David J. Rogers
National Bank Examiner
Analysis Division
22
EXHIBIT 2(e)
- ------------------------------------------------------------------------------
Comptroller of the Currency
Administrator of National Banks
- ------------------------------------------------------------------------------
Central District
One Financial Place
440 S. LaSalle, Suite 2700
Chicago, Illinois 60605
July 15, 1991
Mr. F. Kristen Koepcke
Vice President, General Counsel and Secretary
Star Banc Corporation
425 Walnut Street
P.O. Box 1038
Cincinnati, Ohio 45201-1038
Dear Mr. Koepcke:
The Office of the Comptroller of the Currency has received your letter
concerning the title change and the appropriate amendment to the bank's
articles of association. The Office has recorded that as of June 14, 1991, the
title of Star Bank, National Association, Cincinnati, Charter No. 24, was
changed to Star Bank, National Association.
As a result of the Garn-St Germain Depository Institutions Act of 1982, this
Office is no longer responsible for the approval of national bank name changes
nor does it maintain official records on the use of alternate titles. The use
of other titles or the retention of the rights to any previously used title is
the responsibility of the bank's board of directors. Legal counsel should be
consulted to determine whether or not the new title, or any previously used
title, could be challenged by competing institutions under the provisions of
federal or state law.
Very truly yours,
David J. Rogers
National Bank Examiner
Analysis Division
23
EXHIBIT 3
THE AUTHORIZATION OF THE TRUSTEE TO EXERCISE CORPORATE TRUST
POWERS:
FEDERAL RESERVE BOARD
Washington, D.C.
October 9, 1919
Pursuant to authority vested in the Federal Reserve Board by the Act
of Congress approved December 23, 1913, known as the Federal Reserve Act, as
amended by the Act of September 26, 1918, the
FIRST NATIONAL BANK OF CINCINNATI
has been granted the right to act, when not in contravention of State or local
law, as TRUSTEE, EXECUTOR, ADMINISTRATOR, REGISTRAR OF STOCKS AND BONDS,
GUARDIAN OF ESTATES, ASSIGNEE, RECEIVER OR IN ANY OTHER FIDUCIARY CAPACITY IN
WHICH STATE BANKS, TRUST COMPANIES OR OTHER CORPORATIONS WHICH COME INTO
COMPETITION WITH NATIONAL BANKS ARE PERMITTED TO ACT UNDER THE LAWS OF THE
STATE OF OHIO. The exercise of such rights shall be subject to regulations
prescribed by the Federal Reserve Board.
Federal Reserve Board,
By W. P. G. Harding
Governor.
ATTEST:
W. T. Chapman
Secretary.
24
STATE OF OHIO
DEPARTMENT OF BANKS AND BANKING
Certificate of Authority No. 17
NATIONAL BANKS
I, Philip C. Berg, Superintendent of Banks, do hereby certify that the
First National Bank of Cincinnati, Hamilton County, Ohio has complied with all
the requirements provided by law and is authorized to transact the business of
a trust company and to perform all the functions granted to such companies by
the laws of this state.
Given under my hand and official Seal at Columbus,
Ohio, this twenty-fifth day of November, A.D. 1919
Philip C. Berg,
Superintendent of Banks.
(SEAL)
25
EXHIBIT 4
BY-LAWS
STAR BANK, N.A., CINCINNATI
ARTICLE I
MEETINGS OF SHAREHOLDERS
SECTION 1. ANNUAL MEETING
The annual meeting of shareholders shall be held in the main banking house of
the Association at 11:00 a.m. on the second Tuesday in February of each year.
Notice of such meeting shall be mailed to shareholders not less than ten (10)
nor more than sixty (60) days prior to the meeting date.
SECTION 2. SPECIAL MEETINGS
Special meetings of shareholders may be called and held at such times and upon
such notice as is specified in the Articles of Association.
SECTION 3. QUORUM
A majority of the outstanding capital stock represented in person or by proxy
shall constitute a quorum of any meeting of the shareholders, unless otherwise
provided by law, but less than a quorum may adjourn any meeting, from time to
time, and the meeting amy be held as adjourned without further notice.
SECTION 4. INSPECTORS
The Board of Directors may, and in the event of its failure so to do, the
Chairman of the Board shall appoint Inspectors of Election who shall determine
the presence of a quorum, the validity of proxies, and the results of all
elections and all other matters voted upon by shareholders at all annual and
special meetings of shareholders.
SECTION 5. VOTING
In deciding on questions at meetings of shareholders, except in the election of
directors, each shareholder shall be entitled to one vote for each share of
stock held. A majority of votes cast shall decide each matter submitted to the
shareholders, except where by law a larger vote is required. In all elections
of directors, each shareholder shall have the right to vote the number of
26
shares owned by him for as many persons as there are directors to be elected,
or to cumulate such shares and give one candidate as many votes as the number
of directors multiplied by the number of his shares equal, or to distribute
them on the same principle among as many candidates as he shall think fit.
ARTICLE II
SECTION 1. TERM OF OFFICE
The directors of this Association shall hold office for one year and until
their successors are duly elected and qualified.
SECTION 2. REGULAR MEETINGS
The organization meeting of the Board of Directors shall be held as soon as
practical following the annual meeting of shareholders at the main banking
house. Other regular meetings of the Board of Directors shall be held without
notice at 11:00 a.m. on the second Tuesday of each month except February, at
the main banking house, or, provided notice is given by telegram, letter,
telephone or in person to every Director, at such time and place as may be
designated in the notice of the meeting. When any regular meeting of the Board
falls on a holiday, the meeting shall be held on the next banking business day,
unless the Board shall designate some other day.
SECTION 3. SPECIAL MEETINGS
Special meetings of the Board of Directors may be called by the Chairman of the
Board of the Association, or at the request of three or more Directors. Notice
of the time, place and purposes of such meetings shall be given by telegram,
letter, telephone or in person to every Director.
SECTION 4. QUORUM
A majority of the entire membership of the Board shall constitute a quorum at
any meeting of the Board.
SECTION 5. NECESSARY VOTE
A majority of those Directors present and voting at any meeting of the Board of
Directors shall decide each matter considered, except where otherwise required
by law or the Articles or By-Laws of this Association.
SECTION 6. COMPENSATION
Directors, excluding full-time employees of the Bank, shall receive such
reasonable compensation as may be fixed from time to time by the Board of
Directors.
27
SECTION 7. ELECTION-AGE LIMITATION
No person shall be elected or reelected a Director after reaching his
seventieth (70th) birthday, provided that any person who is a Director on
December 10, 1985, may continue to be reelected a Director until he reaches his
seventy-fifth (75th) birthday.
SECTION 8 RETIREMENT-AGE LIMITATION
Every Director of the Bank shall retire no later than the first month next
following his seventieth (70th) birthday, except for any person who was a
Director on December 10, 1985, who shall retire not later that the first of the
next month following his seventy-fifth (75th) birthday.
SECTION 9 DIRECTORS EMERITUS
The Board shall have the right from time to time to choose as Directors
Emeritus persons who have had prior service as members of the Board and who may
receive such compensation as shall be fixed from time to time by the Board of
Directors.
ARTICLE III
OFFICERS
SECTION 1 WHO SHALL CONSTITUTE
The Officers of the Association shall be a Chairman of the Board, a President,
a Secretary, and other officers such as Chairman of the Executive Committee,
Vice Chairman of the Board, Executive Vice Presidents, Senior Vice Presidents,
Vice Presidents, Assistant Secretaries, Trust Officers, Trust Investment
Officers, Trust Real Estate Officers, Assistant Trust Officers, a Controller,
Assistant Controller, an Auditor and Assistant Auditors, as the Board may
appoint from time to time. Any person may hold two offices. The Chairman of the
Board, all Vice Chairmen of the Board and the President shall at all times be
members of the Board of Directors.
SECTION 2 TERM OF OFFICE
All officers shall be elected for and shall hold office for one year and until
their successors are elected and qualified, subject to the right in the Board
of Directors by a majority vote of the entire membership to discharge any
officer at any time.
SECTION 3 CHAIRMAN OF THE BOARD (Amended 12/13/88-see attachment)
The Chairman of the Board shall be the Chief Executive Officer of the
Association and shall have all duties, responsibilities and powers of the Chief
Executive Officer. He shall, when
28
present, preside at all meetings of shareholders and directors and shall be ex
officio a member of all committees of the Board. He shall name all members of
the committees of the Board, subject to the confirmation thereof by the Board.
In the event that there is a vacancy in the position of President or in the
event of the absence or incapacity of the President, the Chairman may appoint,
or in the event of his failure to do so, the Board of Directors or the
Executive Committee thereof may designate any Vice Chairman of the Board, any
Executive Vice President or any Senior Vice President of the Association
temporarily to exercise the powers and perform the duties of the Chairman as
Chief Executive Officer when the Chairman is absent or incapacitated.
The Board of Directors shall have the power to elect a Chairman of the
Executive Committee. Any such Chairman of the Executive Committee shall
participate in the formation of the policies of the Association and shall have
such other duties as may be assigned to him from time to time by the President
or by the Board of Directors.
SECTION 4 PRESIDENT (amended 12/13/88-see attachment)
The President shall participate in the formation and supervision of the
policies and operations of the Association and shall perform such other duties
as may be assigned to him from time to time by the Board of Directors or by the
Chairman of the Board. In the event that there is a vacancy in the position of
the Chairman of the Board, the President shall be the Chief Executive Officer
of the Association and shall have all the powers and perform all the duties of
the Chairman of the Board, including the same power to name temporarily a Chief
Executive Officer to serve in the absence of the President.
SECTION 5 CHAIRMAN OF THE EXECUTIVE COMMITTEE
The Board of Directors shall have the power to elect a Chairman of the
Executive Committee. Any such Chairman of the Executive Committee shall
participate in the formation of the policies of the Association and shall have
such other duties as may be assigned to him from time to time by the President
or by the Board of Directors.
SECTION 6 VICE CHAIRMEN OF THE BOARD
The Board of Directors shall have the power to elect one or more Vice Chairmen
of the Board of Directors. Any such Vice Chairmen of the Board shall
participate in the formation of the policies of the Association and shall have
such other duties as may be assigned to him from time to time by the Chairman
of the Board or by the Board of Directors.
29
SECTION 7 OTHER OFFICERS
The Secretary and all other officers appointed by the Board of Directors shall
have such duties as defined by law and as may from time to time be assigned to
them by the Chief Executive Officer or the Board of Directors.
SECTION 8 RETIREMENT
Every officer of the Association shall retire not later than the first of the
month next following his sixty-fifth (65th) birthday. The Board of Directors
may, in its discretion, set the retirement date and terms of retirement of an
officer at a date later than provided above.
ARTICLE IV
COMMITTEES
SECTION 1 EXECUTIVE COMMITTEE
There shall be a standing committee of Directors in this Association to be
known as the Executive Committee. This Committee shall meet at 11:00 a.m. on
the first and fourth Tuesday of each month. It shall have all of the powers of
the Board of Directors between meetings of the Board, except as the Board only
by law is authorized to perform or exercise. All actions of the Executive
Committee shall be reported to the Board of Directors. In the event that any
member of the Executive Committee is unable to attend a meeting of that
committee, the Chairman of the Board or the President may, at his discretion,
appoint another Director to attend said meeting of the Executive Committee and
for that meeting to serve as a member of the Executive Committee with full
power to act in place of the absent regular member of the committee.
SECTION 2 COMPENSATION COMMITTEE
There shall be a standing committee of directors of this Association to be
known as the Compensation Committee who shall review the compensation of all
Executive Officers and those officers who participate in the Profit Sharing
Pool as well as fees for directors of the Association. They will recommend
specific compensation arrangements to the Board of Directors for their
confirmation.
SECTION 3 COMMITTEE ON AUDIT
There shall be a standing committee of Directors of this Association to be
known as the Committee on Audit, none of whose members shall be active officers
of the Association. This Committee shall make or cause to be made a suitable
examination of the affairs of the Association and the Trust Department at least
once during each period of twelve months. The results of such examination shall
be reported in writing to the Board at the next regular meeting thereafter
stating whether the Association and/or Trust Department is in a sound solvent
30
condition, whether adequate internal audit controls and procedures are being
maintained and make such recommendations as it deems advisable.
SECTION 4 TRUST COMMITTEE
There shall be a standing committee of Directors of this Association to be
known as the Trust Committee. The Trust Committee shall determine policies of
the Department and review actions of the Trust Investment Committee. All
actions of the Trust Committee shall be reported to the Board of Directors.
SECTION 5 TRUST INVESTMENT COMMITTEE
There shall be a standing committee of this Association to be known as the
Trust Investment Committee composed of officers of the Association. The Trust
Investment Committee or such officers as may be duly designated by the Trust
Investment Committee, shall pass upon the acceptance of all trusts, the closing
out or relinquishment of all trusts and the making, retention, or disposition
of all investments of trust funds in conformity with policies established by
the Trust Committee. Actions of the Trust Investment Committee shall be
reported to the Trust Committee.
SECTION 6 PENSION COMMITTEE
There shall be a standing committee of directors or officers of this
Association to be known as the Pension Committee, who shall have the powers and
duties as set forth in the Association's Employees' Pension Plan. A report of
the condition of the pension fund shall be submitted annually to the Board of
Directors.
SECTION 7 OTHER COMMITTEES
The Chairman may appoint, from time to time, other committees for such purposes
and with such powers as he or the Board may direct.
ARTICLE V
SEAL
SECTION 1 IMPRESSION
The following is an impression of the seal of this Association.
August 25, 1988
31
RESOLVED, That Section 3 of Article III of the By-Laws of the Bank shall be
amended to read:
SECTION 3 CHAIRMAN OF THE BOARD
The Chairman of the Board shall have general executive powers and duties and
shall perform such other duties as amy be assigned from time to time by the
Board of Directors. In addition, unless the Board of Directors shall have
designated the President to be the Chief Executive Officer, the Chairman of the
Board shall be the Chief Executive Officer and shall have all the powers and
duties of the Chief Executive Officer. He shall, when present, preside at all
meetings of shareholders and directors and shall be ex officio a member of all
committees of the Board. He shall name all members of the committees of the
Board, subject to the confirmation thereof by the Board.
If he is Chief Executive Officer, in the event that there is a vacancy in the
position of President or in the event of the absence or incapacity of the
President, the Chairman may appoint, or in the event of his failure to do so,
the Board of Directors or the Executive Committee thereof may designate, any
Vice Chairman of the Board, any Executive Vice President or any Senior Vice
President of the Association temporarily to exercise the powers and perform the
duties of the Chairman as Chief Executive Officer when the Chairman is absent
or incapacitated.
If the President has been designated Chief Executive Officer by the Board of
Directors, in the event that there is a vacancy in the position of the
President or in the event of the absence or incapacity of the President, the
Chairman shall be the Chief Executive Officer of the Association and shall have
all the powers and perform all the duties of the President, including the
powers to name temporarily a Chief Executive Officer to serve in the absence of
the Chairman.
FURTHER RESOLVED, That Section 4 of Article III of the By-Laws of the bank
shall be amended to read:
SECTION 4 PRESIDENT
The President shall have general executive powers and duties and shall perform
such other duties as may be assigned from time to time by the Board of
Directors. In addition, if designated by the Board of Directors, the President
shall be the Chief Executive Officer and shall have all the powers and duties
of the Chief Executive Officer, including the same power to name temporarily a
Chief Executive Officer to serve in the absence of the President if there is a
vacancy in the position of the Chairman or in the event of the absence or
incapacity of the Chairman.
If the Chairman has been designated Chief Executive Officer by the Board of
Directors, in the event that there is a vacancy in the position of the
Chairman of the Board or in the event of the absence or incapacity of the
Chairman of the Board, the President shall be the Chief Executive Officer of
the Association and shall have all the powers and perform all the duties of the
Chairman of the Board, including the same power to name temporarily a Chief
Executive Officer to serve in the absence of the President.
32
EXHIBIT 5
THE CONSENT OF THE TRUSTEE
REQUIRED BY 321 (B) OF THE ACT
Star Bank, National Association, the Trustee executing the statement
of eligibility and qualification to which this Exhibit is attached does hereby
consent that reports of examinations of the undersigned by Federal, State,
Territorial or District authorities may be furnished by such authorities to the
Securities and Exchange Commission upon request therefor in accordance with
the provisions of 321 (b) of the Trust Indenture Act of 1939.
STAR BANK, NATIONAL ASSOCIATION
____________________________ BY:_______________________________
Date Stephen J. Blackstone
Trust Officer
