1
Exhibit 4.1
===========================================================
ALLIED WASTE NORTH AMERICA, INC., as Issuer
and
THE GUARANTORS NAMED HEREIN, as Guarantors
to
U.S. BANK TRUST NATIONAL ASSOCIATION, as Trustee
SENIOR INDENTURE
Dated as of December 23, 1998
Providing for Issuance of
Senior Debt Securities in Series
===========================================================
2
Reconciliation and tie between Senior Indenture, dated as of December 23, 1998
(the "Indenture") and the Trust Indenture Act of 1939, as amended.
Trust Indenture Act Indenture
of 0000 Xxxxxxx Xxxxxxx
------------------- ---------
310(a)(1)......................................................6.9
(a)(2)...................................................6.9
(a)(3)...................................................TIA
(a)(4)...................................................Not Applicable
(a)(5)...................................................TIA
(b)......................................................6.8; 6.10; TIA
311(a).........................................................TIA
(b)......................................................TIA
312(a).........................................................10.1
(b)......................................................TIA
(c)......................................................TIA
313(a).........................................................10.3; TIA
(b)......................................................TIA
(c)......................................................TIA
(d)......................................................TIA
314(a).........................................................10.4; TIA
(b)......................................................Not Applicable
(c)(1)...................................................1.2
(c)(2)...................................................1.2
(c)(3)...................................................Not Applicable
(d)......................................................Not Applicable
(e)......................................................TIA
(f)......................................................TIA
315(a).........................................................6.1
(b)......................................................6.2
(c)......................................................6.1
(d)(1)...................................................TIA
(d)(2)...................................................TIA
(d)(3)...................................................TIA
(e)......................................................TIA
316(a)(last sentence)..........................................1.1
(a)(1)(A)................................................5.2; 5.8
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(a)(1)(B)................................................5.7
(b)......................................................5.9; 5.10
(c)......................................................TIA
317(a)(1)......................................................5.3
(a)(2)...................................................5.4
(b)......................................................9.3
318(a).........................................................1.12
(b)......................................................TIA
(c)......................................................1.12; TIA
This reconciliation and tie section does not constitute part of the Indenture.
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TABLE OF CONTENTS
Page
----
Recitals...................................................................................................1
ARTICLE 1
Definitions and Other Provisions of General Application....................................................1
Section 1.1. Definitions...............................................................................1
Section 1.2. Compliance Certificates and Opinions.....................................................14
Section 1.3. Form of Documents Delivered to Trustee...................................................15
Section 1.4. Acts of Holders..........................................................................15
Section 1.5. Notices, Etc., to Trustee, Company and Guarantors........................................18
Section 1.6. Notice to Holders; Waiver................................................................18
Section 1.7. Headings and Table of Contents...........................................................19
Section 1.8. Successor and Assigns....................................................................19
Section 1.9. Separability.............................................................................19
Section 1.10. Benefits of Indenture....................................................................19
Section 1.11. Incorporators, Officers and Directors of the Company Exempt from
Individual Liability................................................................20
Section 1.12. Governing Law; Conflict with Trust Indenture Act.........................................20
Section 1.13. Legal Holidays...........................................................................20
Section 1.14. Moneys of Different Currencies to Be Segregated..........................................21
Section 1.15. Independence of Agreements...............................................................21
Section 1.16. Counterparts.............................................................................21
ARTICLE 2
Security and Senior Guarantee Forms.......................................................................21
Section 2.1. Forms Generally..........................................................................21
Section 2.2. Form of Trustee's Certificate of Authentication..........................................22
Section 2.3 Form of Senior Guarantee.................................................................22
Section 2.4. Global Securities........................................................................26
Section 2.5. Form of Legend for Global Securities.....................................................27
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ARTICLE 3
The Securities............................................................................................27
Section 3.1. Amount Unlimited; Issuable in Series.....................................................27
Section 3.2. Denominations............................................................................32
Section 3.3. Execution, Authentication, Delivery and Dating...........................................32
Section 3.4. Temporary Securities.....................................................................36
Section 3.5. Registration, Transfer and Exchange......................................................37
Section 3.6. Replacement Securities...................................................................42
Section 3.7. Payment of Interest; Interest Rights Preserved...........................................43
Section 3.8. Persons Deemed Owners....................................................................46
Section 3.9. Cancellation.............................................................................47
Section 3.10. Computation of Interest.................................................................47
Section 3.11. CUSIP Numbers...........................................................................47
Section 3.12. Currency and Manner of Payment in Respect of Securities.................................48
ARTICLE 4
Satisfaction, Discharge and Defeasance....................................................................48
Section 4.1. Termination of Company's Obligations Under the Indenture.................................48
Section 4.2. Application of Trust Funds...............................................................49
Section 4.3. Applicability of Defeasance Provisions; Company's Option to Effect
Defeasance or Agreement Defeasance..................................................50
Section 4.4. Defeasance and Discharge.................................................................50
Section 4.5. Agreement Defeasance.....................................................................51
Section 4.6. Conditions to Defeasance or Agreement Defeasance.........................................51
Section 4.7. Deposited Money and U.S. Government Obligations to Be Held in Trust......................53
Section 4.8. Repayment to Company.....................................................................54
Section 4.9. Indemnity for Government Obligations.....................................................54
Section 4.10. Reinstatement............................................................................54
ARTICLE 5
Defaults and Remedies.....................................................................................55
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Section 5.1. Events of Default........................................................................55
Section 5.2. Acceleration; Rescission and Annulment...................................................57
Section 5.3. Collection of Indebtedness and Suits for Enforcement by Trustee..........................58
Section 5.4. Trustee May File Proofs of Claim.........................................................59
Section 5.5. Trustee May Enforce Claims Without Possession of Securities..............................59
Section 5.6. Delay or Omission Not Waiver.............................................................60
Section 5.7. Waiver of Past Defaults..................................................................60
Section 5.8. Control by Majority......................................................................60
Section 5.9. Limitation on Suits by Holders...........................................................60
Section 5.10. Rights of Holders to Receive Payment....................................................61
Section 5.11. Application of Money Collected..........................................................62
Section 5.12. Restoration of Rights and Remedies......................................................62
Section 5.13. Rights and Remedies Cumulative..........................................................63
Section 5.14. Undertaking for Costs...................................................................63
Section 5.15. Waiver of Stay, Extension or Usury Laws.................................................63
ARTICLE 6
The Trustee...............................................................................................64
Section 6.1. Certain Duties and Responsibilities......................................................64
Section 6.2. Notice of Defaults.......................................................................64
Section 6.3. Certain Rights of Trustee................................................................64
Section 6.4. Not Responsible for Recitals or Issuance of Securities...................................65
Section 6.5. May Hold Securities......................................................................66
Section 6.6. Money Held in Trust......................................................................66
Section 6.7. Compensation and Reimbursement...........................................................66
Section 6.8. Conflicting Interests....................................................................66
Section 6.9. Corporate Trustee Required; Eligibility..................................................67
Section 6.10. Resignation and Removal; Appointment of Successor.......................................67
Section 6.11. Acceptance of Appointment by Successor..................................................69
Section 6.12. Merger, Conversion, Consolidation or Succession to Business.............................70
Section 6.13. Preferential Collection of Claims Against Company.......................................70
Section 6.14. Appointment of Authenticating Agent.....................................................70
ARTICLE 7
Consolidation, Merger or Sale of Assets by the Company....................................................72
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Section 7.1. Consolidation, Merger or Sale of Assets Permitted..........................................72
Section 7.2. Successor Substituted......................................................................73
ARTICLE 8
Supplemental Indentures...................................................................................74
Section 8.1. Supplemental Indentures Without Consent of Holders.......................................74
Section 8.2. Supplemental Indentures With Consent of Holders..........................................75
Section 8.3. Compliance with Trust Indenture Act......................................................77
Section 8.4. Execution of Supplemental Indentures.....................................................77
Section 8.5. Effect of Supplemental Indentures........................................................77
Section 8.6. Reference in Securities to Supplemental Indentures.......................................77
Section 8.7. Notice of Supplemental Indentures........................................................77
ARTICLE 9
Agreements................................................................................................78
Section 9.1. Payment of Principal, Premium, if any, and Interest......................................78
Section 9.2. Maintenance of Office or Agency..........................................................78
Section 9.3. Money for Securities Payments to Be Held in Trust; Unclaimed Money.......................80
Section 9.4. Corporate Existence......................................................................81
Section 9.5. Annual Review Certificate................................................................81
Section 9.6. Maintenance of Properties................................................................82
Section 9.7. Payments of Taxes and Other Claims.......................................................82
Section 9.8. Waiver of Certain Agreements.............................................................82
ARTICLE 10
Holders' Lists and Reports by Trustee and Company.........................................................83
Section 10.1. Company to Furnish Trustee Names and Addresses of Holders...............................83
Section 10.2. Preservation of Information, Communications to Holders..................................83
Section 10.3. Reports by Trustee......................................................................84
Section 10.4. Reports by the Company and the Guarantors...............................................84
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ARTICLE 11
Redemption................................................................................................84
Section 11.1. Applicability of Article................................................................84
Section 11.2. Election to Redeem; Notice to Trustee...................................................84
Section 11.3. Selection of Securities to Be Redeemed..................................................85
Section 11.4. Notice of Redemption....................................................................86
Section 11.5. Deposit of Redemption Price.............................................................87
Section 11.6. Securities Payable on Redemption Date...................................................87
Section 11.7. Securities Redeemed in Part.............................................................88
ARTICLE 12
Sinking Funds.............................................................................................89
Section 12.1. Applicability of Article................................................................89
Section 12.2. Satisfaction of Sinking Fund Payments with Securities...................................89
Section 12.3. Redemption of Securities for Sinking Fund...............................................89
ARTICLE 13
Meetings of Holders of Securities.........................................................................90
Section 13.1. Purposes for Which Meetings May Be Called...............................................90
Section 13.2. Call, Notice and Place of Meetings......................................................90
Section 13.3. Persons Entitled to Vote at Meetings....................................................90
Section 13.4. Quorum; Action..........................................................................91
Section 13.5. Determination of Voting Rights; Conduct and Adjournment of Meetings.....................92
Section 13.6. Counting Votes and Recording Action of Meetings.........................................93
ARTICLE 14
Conversion or Exchange of Securities......................................................................93
Section 14.1. Applicability of Article................................................................93
Section 14.2. Exercise of Conversion or Exchange Privilege............................................94
Section 14.3. No Fractional Equity Securities.........................................................95
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Section 14.4. Adjustment of Conversion or Exchange Price; Consolidation or Merger.....................96
Section 14.5. Notice of Certain Corporate Actions.....................................................97
Section 14.6. Reservation of Equity Securities........................................................98
Section 14.7. Payment of Certain Taxes Upon Conversion or Exchange....................................98
Section 14.8. Duties of Trustee Regarding Conversion or Exchange......................................98
Section 14.9. Repayment of Certain Funds Upon Conversion or Exchange..................................99
ARTICLE 15
Senior Guarantee .........................................................................................99
Section 15.1. Senior Guarantee........................................................................99
Section 15.2. Execution and Delivery of Senior Guarantees............................................102
Section 15.3. Subsidiary Guarantors May Consolidate, Etc., on Certain Terms..........................103
Section 15.4. Release of Guarantors..................................................................103
Section 15.5. Additional Guarantors..................................................................104
ARTICLE 16
Jurisdiction and Consent to Service of Process...........................................................104
Section 16.1. Jurisdiction and Consent to Service of Process..........................................104
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SENIOR INDENTURE (the "Indenture"), dated as of December 23,
1998, among ALLIED WASTE NORTH AMERICA, INC., a corporation duly organized and
existing under the laws of the State of Delaware (the "Company"), having its
principal office at 00000 Xxxxx Xxxxxxxx-Xxxxxx Xxxx, Xxxxx 000, Xxxxxxxxxx,
Xxxxxxx 00000, each of the GUARANTORS (as hereinafter defined) and U.S. BANK
TRUST NATIONAL ASSOCIATION, a national banking association, as Trustee (the
"Trustee").
RECITALS
The Company has duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of its secured or
unsecured unsubordinated debentures, notes or other evidences of indebtedness
("Securities") to be issued in one or more series as herein provided.
Allied (as defined herein) owns beneficially and of record
100% of the Capital Stock of the Company; the Company, directly or indirectly,
owns beneficially and of record 100% of the Capital Stock or other ownership
interests, as the case may be, of each Subsidiary Guarantor; Allied, the Company
and the Subsidiary Guarantors are members of the same consolidated group of
companies and are engaged in related businesses and the Guarantors will derive
direct and indirect economic benefit from the issuance of the Securities.
Accordingly, each of the Guarantors has duly authorized the execution and
delivery of this Indenture to provide for its Senior Guarantees with respect to
the Securities as set forth in this Indenture.
All things necessary (i) to make the Securities, when executed
by the Company and authenticated and delivered hereunder and duly issued by the
Company, the valid obligations of the Company, (ii) to make the Senior
Guarantees of each of the Guarantors, when executed by the respective Guarantors
and endorsed on the Securities executed, authenticated and delivered hereunder,
the valid obligations of the respective Guarantors, and (iii) to make this
Indenture a valid agreement of the Company and of each of the Guarantors, all in
accordance with their respective terms, have been done.
For and in consideration of the premises and the purchase of
the Securities by the Holders thereof, it is mutually agreed as follows for the
equal and ratable benefit of the Holders of the Securities or of any series
thereof:
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.1. Definitions. (a) For all purposes of this Indenture, except as
otherwise expressly provided or unless the context otherwise requires:
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(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 as in effect in the United States of America from
time to time; provided that when two or more principles are so
generally accepted, it shall mean that set of principles consistent
with those in use by the Company; and
(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.
"Affiliate" of any specified Person means any Person directly
or indirectly controlling or controlled by, or under direct or indirect common
control with, such specified Person. For purposes of this definition, "control"
when used with respect to any specified Person means the power to direct the
management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
"Agent" means any Paying Agent or Registrar.
"Allied" means Allied Waste Industries, Inc., a Delaware
corporation.
"Allied Guarantee" means the unconditional guarantee, on a
senior basis, by Allied of the due and punctual payment of principal, premium,
if any, and interest on the Securities, as provided pursuant to Article 16.
"Allied Subsidiary Guarantee" means the unconditional
guarantee, on a senior basis, by Allied of each of the Subsidiary Guarantors'
obligations under the Subsidiary Guarantees.
"Applicable Procedures" means, with respect to any transfer or
transaction involving a Global Security or beneficial interest therein, the
rules and procedures of the Depositary for such Security, in each case to the
extent applicable to such transaction and as in effect from time to time.
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"Authenticating Agent" means any authenticating agent
appointed by the Trustee pursuant to Section 6.14.
"Authorized Newspaper" means a newspaper of general
circulation, in the official language of the country of publication or in the
English language, customarily published on each Business Day whether or not
published on Saturdays, Sundays or holidays. Whenever successive publications in
an Authorized Newspaper are required hereunder they may be made (unless
otherwise expressly provided herein) on the same or different days of the week
and in the same or different Authorized Newspapers.
"Bearer Security" means any Security issued hereunder which is
payable to bearer.
"Board of Directors" means, with respect to the Company or any
Guarantor, either the board of directors of the Company or of such Guarantor, as
the case may be, or any duly authorized committee of that board. Except as
otherwise provided or unless the context otherwise requires, each reference
herein to the "Board of Directors" shall mean the Board of Directors of the
Company.
"Board Resolution" of the Company or any Guarantor means a
copy of a resolution certified by the Secretary or an Assistant Secretary of the
Company or such Guarantor, as the case may be, to have been duly adopted by its
Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee. Except as otherwise expressly
provided or unless the context otherwise requires, each reference herein to a
"Board Resolution" shall mean a Board Resolution of the Company.
"Business Day", when used with respect to any Place of Payment
or any other particular location referred to in this Indenture or in the
Securities, means, unless otherwise specified with respect to any Securities
pursuant to Section 3.1, each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which banking institutions in that Place of Payment or
particular location are authorized or obligated by law, regulation or executive
order to close.
"Capital Lease Obligation" of any Person means the obligation
to pay rent or other payment amounts under a lease of (or other arrangements
conveying the right to use) real or personal property by such Person which is
required to be classified and accounted for as a capital lease or a liability on
a balance sheet of such Person in accordance with generally accepted accounting
principles. The stated maturity of such obligation shall be the date of the last
payment of rent or any other amount due under such lease prior to the first date
upon which such lease may be terminated by the lessee without payment of a
penalty. The principal amount of such obligation shall be the
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capitalized amount thereof that would appear on a balance sheet of such Person
in accordance with generally accepted accounting principles.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Exchange Act or, if at any time
after the execution of this Indenture such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
"Company" means the Person named as the Company in the first
paragraph of this Indenture until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter means
such successor.
"Company Order" and "Company Request" mean, respectively, a
written order or request signed in the name of the Company by two Officers, one
of whom must be the Chairman of the Board, the President, the Chief Executive
Officer, the Chief Operating Officer, the Chief Financial Officer, a Vice
President, the Treasurer or the Secretary of the Company.
"consent", "waive" and "rescind", when used with respect to
the consent, waiver or rescission of or by the Holders of a specified percentage
in aggregate principal amount of Securities of any series, shall mean any of (i)
a favorable vote with respect to such consent, waiver or rescission, at any
meeting of Holders of Securities of such series duly called and held in
accordance with the provisions of Article 13, by the Holders of the applicable
percentage in aggregate principal amount of such Securities specified in the
second paragraph of Section 13.4; (ii) written consents, waivers or rescissions
of or by the Holders of such specified percentage in aggregate principal amount
of such Securities; and (iii) a combination of the favorable vote with respect
to such consent, waiver or rescission, at any meeting of Holders of Securities
of such series duly called and held in accordance with the provisions of Article
13, by the Holders of less than the applicable percentage in aggregate principal
amount of such Securities specified in the second paragraph of Section 13.4 and
written consents, waivers or rescissions of other Holders of such Securities,
where the sum of the percentage of such Holders so voting in favor and the
percentage of such Holders signing such written consents, waivers or rescissions
is equal to at least such specified percentage.
"Corporate Trust Office" means an office of the Trustee in New
York, New York at which at any particular time its corporate trust business
shall be administered, which office at the date hereof is located at 000 Xxxx
Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Corporate Trust
Administration.
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"corporation" shall mean a corporation, association,
joint-stock company or business trust.
"currency unit" for all purposes of this Indenture shall
include any composite currency, including, without limitation, ECU.
"Debt" means (without duplication), with respect to any
Person, whether recourse is to all or a portion of the assets of such Person,
(i) every obligation of such Person for money borrowed, (ii) every obligation of
such Person evidenced by bonds, debentures, notes or other similar instruments,
including obligations Incurred in connection with the acquisition of property,
assets or businesses, (iii) every reimbursement obligation of such Person with
respect to letters of credit, bankers' acceptances or similar facilities issued
for the account of such Person, (iv) every obligation of such Person issued or
assumed as the deferred purchase price of property or services (but excluding
trade accounts payable or accrued liabilities arising in the ordinary course of
business), (v) every Capital Lease Obligation of such Person, (vi) the maximum
fixed redemption or repurchase price of Redeemable Interests of such Person at
the time of determination, (vii) every net payment obligation of such Person
under interest rate swap or similar agreements or foreign currency hedge,
exchange or similar agreements at the time of determination and (viii) every
obligation of the type referred to in Clauses (i) through (vii) of another
Person and all dividends of another Person the payment of which, in either case,
such Person has Guaranteed or for which such Person is responsible or liable,
directly or indirectly, jointly or severally, as obligor, Guarantor or
otherwise.
"Default" means, with respect to securities of any series, any
event which is, or after notice or passage of time, or both, would be, an Event
of Default with respect to Securities of such Series.
"Depositary", when used with respect to any global Securities,
means the Person designated as Depositary by the Company pursuant to Section
3.1(b) until a successor Depositary shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter shall mean or include
each Person which is then a Depositary hereunder, and if at any time there is
more than one such Person, shall be a collective reference to such Persons.
"Dollar" means the currency of the United States that at the
time of payment is legal tender for the payment of public and private debts.
"ECU" means the European Currency Unit as defined and revised
from time to time by the Council of the European Communities.
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"European Monetary System" means the European Monetary System
established by the Resolution of December 5, 1978 of the Council of the European
Communities.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended.
"Exchange Rate Certificate" means a certificate, signed by a
Responsible Officer of the Trustee, setting forth (i) the applicable Market
Exchange Rate or the applicable bid quotation and (ii) the Dollar amount of
principal of, premium, if any, and interest, if any (on an aggregate basis and
on the basis of a Security having the lowest denomination principal amount in
the relevant currency or currency unit), that would be payable with respect to a
Security of the applicable series on the basis of such Market Exchange Rate or
the applicable bid quotation.
"Foreign Currency" means any currency issued by the government
of one or more countries other than the United States or by any recognized
confederation or association of such governments.
"Global Security" shall have the meaning set forth in Section
2.3.
"Guarantors" means Allied and the Subsidiary Guarantors.
"Guaranty" or "Guarantee" by any Person means any obligation,
contingent or otherwise, of such Person guaranteeing any Debt, or dividends or
distributions on any equity security, of any other Person (the "primary
obligor") in any manner, whether directly or indirectly, and including, without
limitation, any obligation of such Person (i) to purchase or pay (or advance or
supply funds for the purchase or payment of) such Debt or to purchase (or to
advance or supply funds for the purchase of) any security for the payment of
such Debt, (ii) to purchase property, securities or services for the purpose of
assuring the holder of such Debt of the payment of such Debt or (iii) to
maintain working capital, equity capital or other financial statement condition
or liquidity of the primary obligor so as to enable the primary obligor to pay
such Debt (and "Guaranteed" "Guaranteeing" and "Guarantor" shall have meanings
correlative to the foregoing); provided, however, that the Guaranty by any
Person shall not include endorsements by such Person for collection or deposit,
in either case, in the ordinary course of business.
"Holder" means, with respect to a Bearer Security, a bearer
thereof or of an interest coupon appertaining thereto and, with respect to a
Registered Security, a Person in whose name a Security is registered on the
Register.
"Incur" means, with respect to any Debt of any Person, to
create, issue,
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incur (by conversion, exchange or otherwise), assume, Guarantee or otherwise
become liable in respect of such Debt, or the taking of any other action which
would cause such Debt, in accordance with generally accepted accounting
principles to be recorded on the balance sheet of such Person (and "Incurrence",
"Incurred", "Incurrable" and "Incurring" shall have meanings correlative to the
foregoing), provided that, the Debt of any other Person becoming a Restricted
Subsidiary of such Person will be deemed for this purpose to have been Incurred
by such Person at the time such other Person becomes a Restricted Subsidiary of
such Person; provided further, that a change in generally accepted accounting
principles that results in an obligation of such Person that exists at such time
becoming Debt shall not be deemed an Incurrence of such Debt.
"Indenture" means this instrument as originally executed and
as it may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
including, for all purposes of this instrument and any such supplemental
indenture, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this instrument and any such supplemental indenture,
respectively. The term "Indenture" shall also include the terms of particular
series of Securities established as contemplated by Section 3.1.
"Indexed Security" means a Security the terms of which provide
that the principal amount thereof payable at Stated Maturity is based, at least
in part, upon the performance or value of a specified market index, reference
security or other variable and may be more or less than the principal face
amount thereof at original issuance.
"interest", when used with respect to an Original Issue
Discount Security which by its terms bears interest only after Maturity, means
interest payable after Maturity and, when used with respect to any other
Security, means the interest payable thereon in accordance with its terms.
"Interest Payment Date", when used with respect to any
Security, means the Stated Maturity of an installment of interest on such
Security.
"Lien" means, with respect to any property or assets, any
mortgage or deed of trust, pledge, hypothecation, assignment, deposit
arrangement, security interest, lien, charge, easement or title exception,
encumbrance, preference, priority or other security agreement or preferential
arrangement of any kind or nature whatsoever on or with respect to such property
or assets (including any conditional sale or other title retention agreement
having substantially the same economic effect as any of the foregoing).
"Market Exchange Rate" means, unless otherwise specified with
respect to any Securities pursuant to Section 3.1, (i) for a conversion of any
currency unit into Dollars, the exchange rate between the relevant currency unit
and Dollars calculated by
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the method specified pursuant to Section 3.1 for the Securities of the relevant
series, and (ii) for a conversion of any Foreign Currency into Dollars, the
applicable exchange rate between such Foreign Currency and Dollars set forth
under the heading, "Currency Trading -- Exchange Rates" in the "Money &
Investing" section of The Wall Street Journal (or in such other section of The
Wall Street Journal in which foreign currency exchange rates may be regularly
published from time to time) as of the most recent available date, in each case
as determined by the Trustee. Unless otherwise specified with respect to any
Securities pursuant to Section 3.1, in the event of the unavailability of any of
the exchange rates provided for in the foregoing clauses (i) and (ii), the
Trustee shall use the average of the quotations from at least three major banks
acceptable to the Company in The City of New York (which may include any such
bank acting as Trustee under this Indenture), or such other quotations as the
Trustee and the Company shall deem appropriate.
"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.
"Officer" means the Chairman of the Board, the President, the
Chief Executive Officer, the Chief Operating Officer, the Chief Financial
Officer, any Vice President, the Treasurer, any Assistant Treasurer, the
Secretary or any Assistant Secretary of the Company.
"Officers' Certificate" of the Company or of any Guarantor
means a certificate signed by the 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 or such
Guarantor, as the case may be, and delivered to the Trustee. Unless the context
otherwise requires, each reference herein to an "Officers' Certificate" shall
mean an Officers' Certificate of the Company. References herein, or in any
Security or Senior Guarantee, to any officer of a Guarantor or other Person that
is a partnership shall mean such officer of the partnership or, if none, of a
general partner of the partnership authorized thereby to act on its behalf.
"Opinion of Counsel" means a written opinion from the general
counsel of the Company or other legal counsel who is reasonably acceptable to
the Trustee. Such counsel may be an employee of or counsel to the Company.
"Original Issue Discount Security" means any Security which
provides for an amount less than the stated principal amount thereof to be due
and payable upon declaration of acceleration of the Maturity thereof pursuant to
Section 5.2.
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"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, or portions thereof, 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 or any Guarantor) in trust
or set aside and segregated in trust by the Company or a Guarantor (if the
Company or a Guarantor, as the case may be, shall act as a Paying Agent) for the
Holders of such Securities and any interest coupons appertaining thereto,
provided that, if such Securities are to be redeemed, notice of such redemption
has been duly given pursuant to this Indenture or provisions therefor
satisfactory to the Trustee have been made;
(iii) Securities, except to the extent provided in Sections
4.4 and 4.5, with respect to which the Company has effected defeasance and/or
agreement defeasance as provided in Article 4; and
(iv) Securities which have been replaced or paid pursuant to
Section 3.6 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, or whether
sufficient funds are available for redemption or for any other purpose, and for
the purpose of making the calculations required by Section 313 of the Trust
Indenture Act, (w) the principal amount of any Original Issue Discount
Securities that may be counted in making such determination or calculation and
that shall be deemed to be Outstanding for such purpose shall be equal to the
amount of principal thereof that would be (or shall have been declared to be)
due and payable, at the time of such determination, upon a declaration of
acceleration of the Maturity thereof pursuant to Section 5.2, (x) the principal
amount of any Security denominated in a Foreign Currency that may be counted in
making such determination or calculation and that shall be deemed Outstanding
for such purpose shall be equal to the Dollar equivalent, determined as of the
date such Security is originally issued by the Company as set forth in an
Exchange Rate Certificate, of the principal amount (or, in the case of an
Original Issue Discount Security, the Dollar equivalent as of such date of
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original issuance of the amount determined as provided in clause (w) above) of
such Security, (y) the principal amount of any Indexed Security that may be
counted in making such determination or calculation and that shall be deemed
Outstanding for such purpose shall be equal to the principal face amount of such
Indexed Security at original issuance, unless otherwise provided with respect to
such Security pursuant to Section 3.1, and (z) Securities owned by the Company,
any Guarantor or any other obligor upon the Securities or any Affiliate of the
Company, of any Guarantor 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 making such calculation or in relying upon any such
request, demand, authorization, direction, notice, consent or waiver, only
Securities which the Trustee 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, any Guarantor or any other obligor upon the Securities or
any Affiliate of the Company, of any Guarantor or of such other obligor.
"Paying Agent" means any Person authorized by the Company to
pay the principal of, premium, if any, interest, if any, and any other payments
due on any Securities on behalf of the Company.
"Periodic Offering" means an offering of Securities of a
series from time to time the specific terms of which Securities, including,
without limitation, the rate or rates of interest or formula or formulae for
determining the rate or rates of interest thereon, if any, the Maturity thereof,
the redemption provisions, if any, and any other terms specified as contemplated
by Section 3.1, with respect thereto, are to be determined by the Company upon
the issuance of such Securities.
"Person" means any individual, corporation, partnership, joint
venture, limited liability company, association, joint-stock company, trust,
other entity, unincorporated organization or government or any agency or
political subdivision thereof.
"Place of Payment", when used with respect to the Securities
of or within any series, means the place or places where the principal of,
premium, if any, interest and any other payments due on such Securities are
payable as specified as contemplated by Sections 3.1 and 9.2.
"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
Security authenticated and delivered under Section 3.6 in exchange for or in
lieu of a mutilated, destroyed, lost or stolen
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Security shall be deemed to evidence the same debt as the mutilated, destroyed,
lost or stolen Security.
"Redeemable Interest" of any Person means any equity security
of or other ownership interest in such Person that by its terms (or by the terms
of any security into which it is convertible or for which it is exchangeable) or
otherwise (including upon the occurrence of an event) matures or is required to
be redeemed (pursuant to any sinking fund obligation or otherwise) or is
convertible into or exchangeable for Debt or is redeemable at the option of the
holder thereof, in whole or in part, at any time prior to the final Stated
Maturity of the Securities.
"Redemption Date", when used with respect to any Security to
be redeemed, means the date fixed for such redemption pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to
be redeemed, in whole or in part, means the price at which it is to be redeemed
pursuant to this Indenture.
"Registered Security" means any Security issued hereunder and
registered as to principal and interest in the Register.
"Regular Record Date" for the interest payable on any Interest
Payment Date on the Securities of or within any series means the date specified
for that purpose as contemplated by Section 3.1.
"Responsible Officer", when used with respect to the Trustee,
shall mean any vice president, the secretary, any assistant secretary, the
treasurer, any assistant treasurer, any trust officer or assistant trust
officer, or any officer of the Trustee customarily performing functions similar
to those performed by any of the above designated officers and also shall mean,
with respect to a particular corporate trust matter, any officer to whom such
matter is referred because of his knowledge of and familiarity with the
particular subject.
"Restricted Subsidiary" means (i) at any date, a Subsidiary of
the Company that is not an Unrestricted Subsidiary as of such date and (ii) for
any period, a Subsidiary of the Company that for any portion of such period is
not an Unrestricted Subsidiary, provided that such term shall mean such
Subsidiary only for such portion of such period.
"Security" or "Securities" has the meaning stated in the first
recital of this Indenture and more particularly means a Security or Securities
of the Company issued, authenticated and delivered under this Indenture.
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"Senior Guarantees" means the Allied Guarantee, the Subsidiary
Guarantees and the Allied Subsidiary Guarantee .
"Special Record Date" for the payment of any Defaulted
Interest means a date fixed by the Trustee pursuant to Section 3.7.
"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 or in an interest coupon representing such
installment of interest as the fixed date on which the principal of such
Security or such installment of principal or interest is due and payable.
"Subsidiary" of any Person means (i) a corporation more than
50% of the combined voting power of the outstanding Voting Stock of which is
owned, directly or indirectly, by such Person or by one or more other
Subsidiaries of such Person or by such Person and one or more subsidiaries
thereof, (ii) a partnership of which such Person, or one or more other
Subsidiaries of such Person and one or more other Subsidiaries thereof, directly
or indirectly, is the general partner and has the power to direct the policies,
management and affairs or (iii) any other Person (other than a corporation) in
which such Person or one or more other Subsidiaries of such Person or such
Person and one or more other Subsidiaries thereof, directly or indirectly, has
at least a majority ownership interest and power to direct the policies,
management and affair thereof.
"Subsidiary Guarantees" means the unconditional guarantees on
a senior basis by the respective Subsidiary Guarantors of the due and punctual
payment of principal of, premium, if any, and interest on the Securities, as
provided pursuant to Article 15.
"Subsidiary Guarantors", as of any time, means each and all of
the Restricted Subsidiaries at such time, other than Reliant Insurance Company,
which Subsidiary Guarantors as of the date of this Indenture are set forth in
Schedule I hereto.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as
amended and as in effect on the date of this Indenture, except as provided in
Section 8.3; provided, however, that if 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.
"Trustee" means the party named as such in the first paragraph
of this Indenture until a successor Trustee replaces it pursuant to the
applicable provisions of this Indenture, and thereafter means such successor
Trustee and if, at any time, there is more
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than one Trustee, "Trustee" as used with respect to the Securities of any series
shall mean the Trustee with respect to the Securities of that series.
"United States" means, unless otherwise specified with respect
to the Securities of any series as contemplated by Section 3.1, the United
States of America (including the States thereof and the District of Columbia),
its territories, its possessions and other areas subject to its jurisdiction.
"Unrestricted Subsidiary", with respect to any series of
Securities, shall have the meaning established in accordance with Section 3.1(b)
with respect to such series of Securities.
"U.S. Government Obligations" means securities that are (x)
direct obligations of the United States of America for the payment of which its
full faith and credit is pledged or (y) 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 (x) or
(y), 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 principal of or
interest on any such U.S. Government Obligation held by such custodian for the
account of the holder of such 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 principal of or interest on the U.S. Government Obligation evidenced
by such depository receipt.
"U.S. Person" means, unless otherwise specified with respect
to the Securities of any series as contemplated by Section 3.1, a citizen or
resident of the United States, a corporation, partnership or other entity
created or organized in or under the laws of the United States or any political
subdivision thereof, or an estate or trust, the income of which is subject to
United States federal income taxation regardless of its source.
"Vice President", when used with respect to the Company or any
Guarantor, means any Vice President of such Person whether or not designated by
a number or a word or words added before or after the title "Vice President."
"Wholly Owned Restricted Subsidiary" means a Restricted
Subsidiary all of the outstanding Capital Stock or other ownership interests of
which (other than directors' qualifying shares) shall at the time be owned by
the Company or by one or more Wholly
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Owned Restricted Subsidiaries or by the Company and one or more Wholly Owned
Restricted Subsidiaries.
(b) The following terms shall have the meanings specified in
the Sections referred to opposite such term below:
Term Section
---- -------
"Act" 1.4(a)
"agreement defeasance" 4.5
"Common Stock" 14.1(b)(i)
"Defaulted Interest" 3.7(b)
"defeasance" 4.4
"Equity Securities" 14.1(b)
"Event of Default" 5.1
"NASDAQ" 14.3
"Preferred Stock" 14.1(b)(ii)
"Register" 3.5
"Registrar" 3.5
Section 1.2. 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
(including Section 314(c) of 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 or officers 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 agreement provided for in this Indenture (other than pursuant to
Section 2.4, the last paragraph of Section 3.3 and Section 9.5) shall include:
(a) a statement that each individual signing such certificate
or opinion has read such condition or agreement and the definitions herein
relating thereto;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions contained in
such certificate or opinion are based;
(c) a statement that, in the opinion of each such individual,
he or she has made such examination or investigation as is necessary to enable
him or her to express an
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informed opinion as to whether or not such condition or agreement has been
complied with; and
(d) a statement as to whether, in the opinion of each such
individual, such condition or agreement has been complied with.
Section 1.3. 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 his or her certificate or opinion is
based are erroneous. Any such certificate or opinion or any Opinion of Counsel
may be based, insofar as it relates to factual matters, upon a certificate or
opinion of, or representations by, an officer or officers of the Company stating
that the information with respect to such factual matters is in the possession
of the Company, unless such officer or counsel knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
as to such matters are erroneous.
Any certificate, statement or opinion of an officer of the
Company or of counsel may be based, insofar as it relates to accounting matters,
upon a certificate or opinion of or representations by an accountant or firm of
accountants in the employ of the Company, unless such officer or counsel, as the
case may be, knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to the accounting matters
upon which his certificate, statement or opinion is based 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 1.4. Acts of Holders. (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 (either
physically or by means of a facsimile or an
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electronic transmission, provided, in the case of an electronic transmission,
that it is transmitted through the facilities of a Depositary) by such Holders
in person or by agent or proxy duly appointed in writing. If Securities of a
series are issuable as Bearer Securities, any request, demand, authorization,
direction, notice, consent, waiver or other action provided by this Indenture to
be given or taken by Holders of Securities of such series may, alternatively, be
embodied in and evidenced by the record of Holders of Securities of such series
voting in favor thereof pursuant to the second paragraph of Section 13.4, either
in person or by proxies duly appointed in writing, at any meeting of Holders of
Securities of such series duly called and held in accordance with the provisions
of Article 13, or a combination of such instruments and any such record. Except
as herein otherwise expressly provided, such action shall become effective when
such instrument or instruments or record or both are received (either physically
or, if the Securities are held through the facilities of a Depositary, by means
of a facsimile or an electronic transmission, provided, in the case of an
electronic transmission, that it is transmitted through the facilities of a
Depositary) by the Trustee and, where it is hereby expressly required, to the
Company. Such instrument or instruments and record (and the action embodied
therein and evidenced thereby) are herein sometimes referred to as the "Act" of
the Holders signing such instrument or instruments or so voting at such meeting.
The Company and the Trustee may assume that any Act of a Holder has not been
modified or revoked unless written notice to the contrary is received prior to
the time that the action to which such Act relates has become effective. 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
315 of the Trust Indenture Act) conclusive in favor of the Trustee and the
Company, if made in the manner provided in this Section. The record of any
meeting of Holders of Securities shall be proved in the manner provided in
Section 13.6.
(b) The fact and date of the execution by any Person of any
such instrument or writing and the authority of the Person executing the same
may be proved in any manner which the Trustee deems sufficient.
(c) The ownership of Bearer Securities may be proved by the
production of such Bearer Securities or by a certificate executed by any trust
company, bank, banker or other depository, wherever situated, if such
certificate shall be deemed by the Trustee to be satisfactory, showing that at
the date therein mentioned such Person had on deposit with such trust company,
bank, banker or other depository, or exhibited to it, the Bearer Securities
therein described; or such facts may be proved by the certificate or affidavit
of the Person holding such Bearer Securities, if such certificate or affidavit
is deemed by the Trustee to be satisfactory. The Trustee and the Company may
assume that such ownership of any Bearer Security continues until (i) another
such certificate or affidavit bearing a later date issued in respect of the same
Bearer Security is produced, (ii) such Bearer Security is produced to the
Trustee by some other Person, (iii) such Bearer
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Security is surrendered in exchange for a Registered Security or (iv) such
Bearer Security is no longer Outstanding. The ownership of Bearer Securities may
also be proved in any other manner which the Trustee deems sufficient.
(d) The ownership of Registered Securities shall be proved by the
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 any interest coupons appertaining thereto and the
Holder of every Security or interest coupon 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 Act is made upon such Security
or interest coupon.
(f) If the Company shall solicit from the Holders any request, demand,
authorization, direction, notice, consent, waiver or other Act, the Company may,
at its option, by or pursuant to a Board Resolution, fix in advance a record
date for the determination of Holders of Registered Securities entitled to give
such request, demand, authorization, direction, notice, consent, waiver or other
Act, but the Company shall have no obligation to do so. Notwithstanding Section
316(c) of the Trust Indenture Act, any such record date shall be the record date
specified in or pursuant to such Board Resolution, which shall be a date not
more than 30 days prior to the first solicitation of Holders generally in
connection therewith and no later than the date such first solicitation is
completed. If such a record date is fixed, such request, demand, authorization,
direction, notice, consent, waiver or other Act may be given before or after
such record date, but only the Holders of Registered Securities of record at the
close of business on such record date shall be deemed to be Holders for the
purposes of determining whether Holders of the requisite proportion of
Outstanding Securities have authorized or agreed or consented to such request,
demand, authorization, direction, notice, consent, waiver or other Act, and for
that purpose the Outstanding Securities shall be computed as of such record
date; provided that no such authorization, agreement or consent by the Holders
on such record date shall be deemed effective unless it shall become effective
pursuant to the provisions of this Indenture not later than six months after the
record date.
Without limiting the foregoing, a Holder entitled to give or take any
action hereunder with regard to any particular Security may do so with regard to
all or any part of the principal amount of such Security or by one or more duly
appointed agents, each of which may do so pursuant to such appointment with
regard to all or any part of the principal amount of such Security to which such
appointment relates.
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Section 1.5. Notices, Etc., to Trustee, Company and Guarantors. 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,
(a) the Trustee by any Holder or by the Company or any Guarantor 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 at any other address previously furnished in
writing to the Holders or the Company by the Trustee, or, with respect to
notices by the Company, transmitted by facsimile transmission (confirmed by
guaranteed overnight courier) to the following facsimile number: (000) 000-0000
or to any other facsimile number previously furnished in writing to the Company
by the Trustee, or
(b) the Company or any Guarantor 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 it addressed
to it at the address of the Company's 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 or, with respect to notices by the
Trustee, transmitted by facsimile transmission (confirmed by guaranteed
overnight courier) to the following facsimile number: (000) 000-0000 or to any
other facsimile number previously furnished in writing to the Trustee by the
Company.
Section 1.6. Notice to Holders; Waiver. Where this Indenture provides
for notice to Holders of any event, (i) if any of the Securities affected by
such event are Registered Securities, such notice to the Holders thereof shall
be sufficiently given (unless otherwise herein expressly provided) if in writing
and mailed, first-class postage prepaid, to each such Holder affected by such
event, at his or her address as it appears in the Register, within the time
prescribed for the giving of such notice, and (ii) if any of the Securities
affected by such event are Bearer Securities, notice to the Holders thereof
shall be sufficiently given (unless otherwise herein or in the terms of such
Bearer Securities expressly provided) if published twice in an Authorized
Newspaper in New York, New York, and in such other city or cities, if any, as
may be specified as contemplated by Section 3.1. Such notices shall be deemed to
have been given on the date of such mailing or publication.
In any case where notice to Holders is given by mail or by publication,
neither the failure to mail or publish such notice, nor any defect in any notice
so mailed or published, to any particular Holder shall affect the sufficiency of
such notice with respect to other Holders of Registered Securities or of Bearer
Securities. Any notice mailed to a
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Holder in the manner herein prescribed shall be conclusively deemed to have been
received by such Holder, whether or not such Holder actually receives such
notice.
If by reason of the suspension of regular mail service or by reason of
any other cause it shall be impracticable to give such notice as provided above,
then such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder. If it is
impossible or, in the opinion of the Trustee, impracticable to give any notice
by publication in the manner herein required, then such publication in lieu
thereof as shall be made with the approval of the Trustee shall constitute a
sufficient publication of such notice.
Any request, demand, authorization, direction, notice, consent or
waiver required or permitted under this Indenture shall be in the English
language, except that any published notice may be in an official language of the
country of publication.
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 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.
Section 1.7. 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 1.8. Successors and Assigns. All agreements in this Indenture
by the parties hereto shall bind their respective successors and assigns and
inure to the benefit of their respective successors and assigns, whether so
expressed or not.
Section 1.9. Separability. In case any provision of this Indenture or
the Securities or the Senior Guarantees 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 1.10. Benefits of Indenture. Nothing in this Indenture or in
the Securities or the Senior Guarantees, expressed or implied, shall give to any
Person, other than the parties hereto, any Registrar, any Paying Agent, and
their successors hereunder and the Holders, any benefit or any legal or
equitable right, remedy or claim under this Indenture.
Section 1.11. Incorporators, Officers and Directors of the Company
Exempt from Individual Liability. No recourse under or upon any obligation or
agreement of or contained in this Indenture or of or contained in any Security
or interest
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29
coupon appertaining thereto, or for any claim based thereon or otherwise in
respect thereof, or because of any indebtedness represented thereby, shall be
had against any incorporator, officer or director, as such, past, present or
future, of the Company or any successor Person, either directly or through the
Company or any successor Person, whether by virtue of any constitution, statute
or rule of law, by the enforcement of any assessment or penalty, by any legal or
equitable proceeding or otherwise; it being expressly understood that all such
liability is hereby expressly waived and released as a condition of the
acceptance of, and as a part of the consideration for the execution of this
Indenture and the issuance of, the Securities and any interest coupons
appertaining thereto.
Section 1.12. Governing Law; Conflict with Trust Indenture Act. THIS
INDENTURE, THE SECURITIES, THE SENIOR GUARANTEES ENDORSED THEREON AND ANY
INTEREST COUPONS APPERTAINING THERETO SHALL BE DEEMED TO BE CONTRACTS MADE AND
TO BE PERFORMED ENTIRELY IN THE STATE OF NEW YORK, AND FOR ALL PURPOSES SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF SAID STATE WITHOUT
REGARD TO THE CONFLICTS OF LAW RULES OF SAID STATE. This Indenture is subject to
the Trust Indenture Act and if and to the extent that any provision hereof
limits, qualifies or conflicts with the Trust Indenture Act, the Trust Indenture
Act shall control. Whether or not this Indenture is required to be qualified
under the Trust Indenture Act, the provisions of the Trust Indenture Act
required to be included in an indenture in order for such indenture to be so
qualified shall be deemed to be included in this Indenture with the same effect
as if such provisions were set forth herein and any provisions hereof which may
not be included in an indenture which is so qualified shall be deemed to be
deleted or modified to the extent such provisions would be required to be
deleted or modified in an indenture so qualified.
Section 1.13. Legal Holidays. In any case where any Interest Payment
Date, Redemption Date, sinking fund payment date, Stated Maturity or 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 any Security or
interest coupon or any Senior Guarantee other than a provision in the Securities
of any series which specifically states that such provision shall apply in lieu
of this Section), payment of principal, premium, if any, or interest 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 and effect
as if made on such date; provided that no interest shall accrue on the amount so
payable for the period from and after such Interest Payment Date, Redemption
Date, sinking fund payment date, Stated Maturity or Maturity, as the case may
be, if such amount is so paid on the next succeeding Business Day.
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Section 1.14. Moneys of Different Currencies to Be Segregated. The
Trustee shall segregate all moneys, funds and accounts held by the Trustee
hereunder in one currency from any moneys, funds and accounts held by the
Trustee hereunder in any other currencies, notwithstanding any provision herein
which would otherwise permit the Trustee to commingle such amounts.
Section 1.15. Independence of Agreements. All agreements in this
Indenture shall be given independent effect so that if a particular action or
condition is not permitted by any such agreement, the fact that it would be
permitted by an exception to, or be otherwise within the limitations of, another
agreement shall not avoid the occurrence of a Default or an Event of Default if
such action is taken or condition exists.
Section 1.16. Counterparts. This Indenture may be executed in any
number of counterparts, each of which shall be an original, but such
counterparts shall together constitute but one and the same instrument.
ARTICLE 2
SECURITY AND SENIOR GUARANTEE FORMS
Section 2.1. Forms Generally. The Securities of each series and the
interest coupons, if any, to be attached thereto and the Senior Guarantees to be
endorsed thereon shall be in substantially such 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
applicable securities exchange, organizational document, governing instrument or
law or as may, consistently herewith, be determined by the officers executing
such Securities and interest coupons, if any, or Senior Guarantees to be
endorsed thereon, as the case may be, as evidenced by their execution of the
Securities and interest coupons, if any, or Senior Guarantees to be endorsed
thereon, as the case may be. If temporary Securities and Senior Guarantees of
any series are issued as permitted by Section 3.4, the form thereof also shall
be established as provided in the preceding sentence. If the forms of Securities
and interest coupons, if any, and Senior Guarantees of any series are
established by, or by action taken pursuant to, a Board Resolution, a copy of
the Board Resolution together with an appropriate record of any such action
taken pursuant thereto, including a copy of the approved form of Securities or
interest coupons, if any, and Senior Guarantees shall be delivered to the
Trustee at or prior to the delivery of the Company Order contemplated by Section
3.3 for the authentication and delivery of such Securities.
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Unless otherwise specified as contemplated by Section 3.1, Bearer
Securities shall have interest coupons attached.
The definitive Securities and interest coupons, if any, may be printed,
lithographed or engraved on steel engraved borders or may be produced in any
other manner (or, if such Securities are listed on any securities exchange, any
other manner permitted by the rules of such securities exchange), all as
determined by the officers executing such Securities and interest coupons, if
any, as evidenced by their execution of such Securities and interest coupons, if
any.
Section 2.2. Form of Trustee's Certificate of Authentication. The
Trustee's certificate of authentication shall be in substantially the following
form:
This is one of the Securities with the Senior Guarantees endorsed
thereon of the series designated therein referred to in the within-mentioned
Indenture.
U.S. BANK TRUST NATIONAL ASSOCIATION,
as Trustee
By:
Authorized Signatory
Section 2.3 Form of Senior Guarantee.
SENIOR GUARANTEE
For value received, each of the Guarantors named (or deemed herein to
be named) below hereby jointly and severally unconditionally guarantees, on a
senior basis to the Holder of the Security upon which this Senior Guarantee is
endorsed, and to the Trustee on behalf of such Holder, the due and punctual
payment of the principal of, premium, if any, and interest on such Security when
and as the same shall become due and payable, whether at the Stated Maturity, by
acceleration, call for redemption, purchase or otherwise, according to the terms
thereof and of the Indenture referred to therein. In case of the failure of the
Company punctually to make any such payment, each of the Guarantors hereby
jointly and severally agrees to cause such payment to be made punctually when
and as the same shall become due and payable, whether at the Stated Maturity or
by acceleration, call for redemption, purchase or otherwise, and as if such
payment were made by the Company. Further, in the case of the failure of any
Subsidiary Guarantor punctually to make any payment required of it hereunder,
Allied agrees to cause such payment to be made when and as the same shall become
due and payable, as if such payment were made by such Subsidiary Guarantor.
Each of the Guarantors hereby jointly and severally agrees that its
obligations hereunder shall be unconditional, irrespective of the validity,
regularity or
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enforceability of such Security or the Indenture, the absence of any action to
enforce the same, any creation, exchange, release or non-perfection of any Lien
on any collateral for, or any release or amendment or waiver of any term of any
other Guarantee of, or any consent to departure from any requirement of any
other Guarantee of, all or of any of the Securities, the election by the Trustee
or any of the Holders in any proceeding under Chapter 11 of the Bankruptcy Code
of the application of Section 1111(b)(2) of the Bankruptcy Code, any borrowing
or grant of a security interest by the Company, as debtor-in-possession, under
Section 364 of the Bankruptcy Code, the disallowance, under Section 502 of the
Bankruptcy Code, of all or any portion of the claims of the Trustee or any of
the Holders for payment of any of the Securities, any waiver or consent by the
Holder of such Security or by the Trustee or either of them with respect to any
provisions thereof or of the Indenture, the obtaining of any judgment against
the Company (or with respect to the Allied Subsidiary Guarantee, any Subsidiary
Guarantor) or any action to enforce the same or any other circumstances which
might otherwise constitute a legal or equitable discharge or defense of a
Guarantor. Each of the Guarantors hereby waives the benefits of diligence,
presentment, demand of payment, any requirement that the Trustee or any of the
Holders protect, secure, perfect or insure any security interest in or other
Lien on any property subject thereto or exhaust any right or take any action
against the Company (or, with respect to the Allied Subsidiary Guarantee, any
Subsidiary Guarantor) or any other Person or any collateral, filing of claims
with a court in the event of insolvency or bankruptcy of the Company (or, with
respect to the Allied Subsidiary Guarantee, any Subsidiary Guarantor), any right
to require a proceeding first against the Company (or, with respect to the
Allied Subsidiary Guarantee, any Subsidiary Guarantor), protest or notice with
respect to such Security (or, with respect to the Allied Subsidiary Guarantee,
the Subsidiary Guarantees) or the indebtedness evidenced thereby and all demands
whatsoever, and agrees that this Senior Guarantee will not be discharged except
by complete performance of the obligations contained in such Security (or, with
respect to the Allied Subsidiary Guarantee, the Subsidiary Guarantees) and in
this Senior Guarantee. Each of the Guarantors hereby agrees that, in the event
of a default in payment of principal of, premium, if any, or interest on such
Security (or, with respect to the Allied Subsidiary Guarantee, the Subsidiary
Guarantees) whether at its Stated Maturity, by acceleration, call for
redemption, purchase or otherwise, legal proceedings may be instituted by the
Trustee on behalf of, or by, the Holder of such Security (or, with respect to
the Allied Subsidiary Guarantee, the Subsidiary Guarantees), subject to the
terms and conditions set forth in the Indenture, directly against each or any of
the Guarantors (or, with respect to the Allied Subsidiary Guarantee, against
Allied) to enforce this Senior Guarantee without first proceeding against the
Company (or, with respect to the Allied Subsidiary Guarantee, against any
Subsidiary Guarantor). Each Guarantor agrees that if, after the occurrence and
during the continuance of an Event of Default, the Trustee or any of the Holders
are prevented by applicable law from exercising their respective rights to
accelerate the maturity of the Securities, to collect interest on the
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Securities or to enforce or exercise any other right or remedy with respect to
the Securities (or, with respect to the Allied Subsidiary Guarantee, to enforce
or exercise the Subsidiary Guarantees), or the Trustee or the Holders are
prevented from taking any action to realize on any collateral, such Guarantor
agrees to pay to the Trustee for the account of the Holders, upon demand
therefor, the amount that would otherwise have been due and payable had such
rights and remedies been permitted to be exercised by the Trustee or any of the
Holders.
No reference herein to the Indenture and no provision of this Senior
Guarantee or of the Indenture shall alter or impair (i) the Senior Guarantee of
any Guarantor, which is absolute and unconditional, of the due and punctual
payment of the principal of, premium, if any, and interest on the Security upon
which this Senior Guarantee is endorsed, or (ii) the Allied Subsidiary
Guarantee, which is absolute and unconditional, of the due and punctual
performance by the Subsidiary Guarantors of their obligations under the
Subsidiary Guarantees.
Each Guarantor shall be subrogated to all rights of the Holder of such
Security against the Company (or, with respect to the Allied Subsidiary
Guarantee, any Subsidiary Guarantor) in respect of any amounts paid by such
Guarantor on account of such Security (or, with respect to the Allied Subsidiary
Guarantee, on account of the Subsidiary Guarantees) pursuant to the provisions
of its Senior Guarantee or the Indenture; provided, however, that such Guarantor
shall not be entitled to enforce or to receive any payments arising out of, or
based upon, such right of subrogation until the principal of, premium, if any,
and interest on this Security and all other Securities issued under the
Indenture shall have been paid in full.
This Senior Guarantee shall remain in full force and effect and
continue to be effective should any petition be filed by or against the Company
(or, with respect to the Allied Subsidiary Guarantee, any Subsidiary Guarantor)
for liquidation or reorganization, should the Company (or, with respect to the
Allied Subsidiary Guarantee, any Subsidiary Guarantor) become insolvent or make
an assignment for the benefit of creditors or should a receiver or trustee be
appointed for all or any significant part of the Company's assets (or with
respect to the Allied Subsidiary Guarantee, the assets of any Subsidiary
Guarantor) and shall, to the fullest extent permitted by law, continue to be
effective or be reinstated, as the case may be, if at any time payment and
performance of the Securities (or, with respect to the Allied Subsidiary
Guarantee, any Subsidiary Guarantee) is, pursuant to applicable law, rescinded
or reduced in amount, or must otherwise be restored or returned by any obligee
on the Securities, whether as a "voidable preference," "fraudulent transfer" or
otherwise, all as though such payment or performance had not been made. In the
event that any payment, or any part thereof, is rescinded, reduced, restored or
returned, the Securities shall, to the fullest extent
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permitted by law, be reinstated and deemed reduced only by such amount
paid and not so rescinded, reduced, restored or returned.
The Guarantors shall have the right to seek contribution from any
non-paying Guarantor so long as the exercise of such right does not impair the
rights of the Holders under this Senior Guarantee.
The Guarantors or any particular Guarantor shall be released from this
Senior Guarantee upon the terms and subject to certain conditions provided in
the Indenture.
By delivery of a supplemental indenture to the Trustee in accordance
with the terms of the Indenture, each Person that becomes a Subsidiary Guarantor
after the date of the Indenture will be deemed to have executed and delivered
this Subsidiary Guarantee for the benefit of the Holder of the Security upon
which this Subsidiary Guarantee is endorsed, and Allied will be deemed to have
guaranteed the Subsidiary Guarantee of such Person, with the same effect as if
such Subsidiary Guarantor was named below and had executed and delivered this
Subsidiary Guarantee.
All terms used in this Senior Guarantee which are defined in the
Indenture referred to in the Security upon which this Senior Guarantee is
endorsed shall have the meanings assigned to them in such Indenture.
This Senior Guarantee shall not be valid or obligatory for any purpose
until the certificate of authentication on the Security upon which this Senior
Guarantee is endorsed shall have been executed by the Trustee under the
Indenture by manual signature.
Reference is made to Article Fifteen of the Indenture for further
provisions with respect to this Senior Guarantee.
THIS SENIOR GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK.
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IN WITNESS WHEREOF, each of the Guarantors has caused this Senior
Guarantee to be duly executed.
Allied Waste Industries, Inc., As
Guarantor of the Securities and as
Guarantor of the obligations of the
Subsidiary Guarantors under
the Subsidiary Guarantees
By: _________________________
[Officer]
Attest:
_________________________
[Secretary]
[Assistant Secretary]
Each of the Subsidiary Guarantors
Listed on Schedule I to the
Indenture, As Guarantor of
the Securities
By:*/ _________________________
[Officer]
Attest:*
_________________________
[Secretary]
[Assistant Secretary]
Section 2.4. Global Securities. If Securities of or within a series are
issuable in whole or in part in global form (each, a "Global Security"), any
such Global Security may provide that it shall represent the aggregate or
specified amount of Outstanding Securities from time to time endorsed thereon
and may also provide that the aggregate amount of Outstanding Securities
represented thereby may from time to time be reduced or increased to reflect
exchanges for certificated securities. Any endorsement of a Global Security to
reflect the amount, or any increase or decrease in the amount, or changes in the
rights of Holders, of Outstanding Securities represented thereby, shall be made
in such manner and by such Person or Persons as shall be specified therein or in
the Company Order to be delivered to the Trustee pursuant to Section 3.3 or 3.4.
Subject to
*/ Signing as duly authorized officer for each such Subsidiary Guarantor.
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the provisions of Section 3.3, Section 3.4, if applicable, and Section 3.5, the
Trustee shall deliver and redeliver any Global Security in the manner and upon
instructions given by the Global Person or Persons specified therein or in the
applicable Company Order. Any instructions by the Company with respect to
endorsement or delivery or redelivery of a Global Security shall be in writing
but need not comply with Section 1.2 hereof and need not be accompanied by an
Officers' Certificate or an Opinion of Counsel.
The provisions of the last paragraph of Section 3.3 shall apply to any
Global Security if such Security was never issued and sold by the Company and
the Company delivers to the Trustee the Global Security together with written
instructions (which need not comply with Section 1.2 hereof and need not be
accompanied by an Officers' Certificate or an Opinion of Counsel) with regard to
the reduction in the principal amount of Securities represented thereby,
together with the written statement contemplated by the last paragraph of
Section 3.3.
Notwithstanding the provisions of Section 2.1 and 3.7, unless otherwise
specified as contemplated by Section 3.1, payment of principal of, premium, if
any, and interest on any Registered Security in permanent global form shall be
made to the registered holder thereof.
Section 2.5. Form of Legend for Global Securities. Any Security global
form authenticated and delivered hereunder shall bear a legend in substantially
the following form or in such other form as may be specified in accordance with
Section 3.1:
"THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE OF A DEPOSITARY. UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART
FOR SECURITIES IN CERTIFICATED FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT
AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF
THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE
DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH
SUCCESSOR DEPOSITARY."
ARTICLE 3
THE SECURITIES
Section 3.1. Amount Unlimited; Issuable in Series. (a) The aggregate
principal amount of Securities which may be authenticated and delivered under
this Indenture is unlimited. The Securities may be issued from time to time in
one or more series.
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(b) The following matters shall be established with respect to each
series of Securities issued hereunder (i) by a Board Resolution, (ii) by action
taken pursuant to a Board Resolution and (subject to Section 3.3) set forth, or
determined in the manner provided, in an Officers' Certificate or (iii) in one
or more indentures supplemental hereto:
(1) the title of the Securities of the series (which title shall
distinguish the Securities of the series from all other series of
Securities);
(2) any limit upon the aggregate principal amount of the Securities of
the series which may be authenticated and delivered under this Indenture
(which limit shall not pertain to 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 3.4, 3.5, 3.6, 8.6 or 11.7 or
any Securities that, pursuant to Section 3.3, are deemed never to have been
authenticated and delivered hereunder);
(3) the date or dates on which the principal of and premium, if any, on
the Securities of the series is payable or the method or methods of
determination thereof;
(4) the rate or rates at which the Securities of the series shall bear
interest, if any, or the method or methods of calculating such rate or rates
of interest, the date or dates from which such interest shall accrue or the
method or methods by which such date or dates shall be determined, the
Interest Payment Dates on which any such interest shall be payable, the
right, if any, of the Company to defer or extend an Interest Payment Date
and, with respect to Registered Securities, the Regular Record Date, if any,
for the interest payable on any Registered Security on any Interest Payment
Date, and the basis upon which interest shall be calculated if other than
that of a 360-day year of twelve 30-day months;
(5) the place or places where the principal of, premium, if any, and
interest, if any, on Securities of the series shall be payable, any
Registered Securities of the series may be surrendered for registration of
transfer, Securities of the series may be surrendered for exchange and
notices and demands to or upon the Company in respect of the Securities of
the series and this Indenture may be served and (in the case of Bearer
Securities) where notices to Holders pursuant to Section 1.6 will be
published;
(6) the period or periods within which, the price or prices at which,
the currency or currencies (including currency unit or units) in which, and
the other terms and conditions upon which, Securities of the series may be
redeemed, in
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whole or in part, at the option of the Company and, if other than as
provided in Section 11.3, the manner in which the particular Securities of
such series (if less than all Securities of such series are to be redeemed)
are to be selected for redemption;
(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 upon the happening of a specified event or at the option of a
Holder thereof and the period or periods within which, the price or prices
at which, the currency or currencies (including currency unit or units) in
which, and the other 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 $1,000 and any integral multiple
thereof, if Registered Securities, and if other than denominations of $5,000
and any integral multiple thereof, if Bearer Securities, the denominations
in which Securities of the series shall be issuable;
(9) if other than Dollars, the currency or currencies (including
currency unit or units) in which the principal of, premium, if any, and
interest, if any, on the Securities of the series shall be payable, or in
which the Securities of the series shall be denominated, and the particular
provisions applicable thereto in accordance with, in addition to, or in lieu
of the provisions of Section 3.12;
(10) if the payments of principal of, premium, if any, or interest, if
any, on the Securities of the series are to be made, at the election of the
Company or a Holder, in a currency or currencies (including currency unit or
units) other than that in which such Securities are denominated or
designated to be payable, the currency or currencies (including currency
unit or units) in which such payments are to be made, the terms and
conditions of such payments and the manner in which the exchange rate with
respect to such payments shall be determined, and the particular provisions
applicable thereto in lieu of the provisions of Section 3.12;
(11) if the amount of payments of principal of, premium, if any, and
interest, if any, on the Securities of the series shall be determined with
reference to an index, formula or other method (which index, formula or
method may be based, without limitation, on a currency or currencies
(including currency unit or units) other than that in which the Securities
of the series are denominated or designated to be payable), the index,
formula or other method by which such amounts shall be determined and any
special voting or defeasance provisions in connection therewith;
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(12) if other than the entire principal amount thereof, the portion of
the principal amount of such Securities of the series which shall be payable
upon declaration of acceleration thereof pursuant to Section 5.2 or the
method by which such portion shall be determined;
(13) if other than as provided in Section 3.7, the Person to whom any
interest on any Registered Security of the series shall be payable and the
manner in which, or the Person to whom, any interest on any Bearer
Securities of the series shall be payable;
(14) provisions, if any, granting special rights to the Holders of
Securities of the series upon the occurrence of such events as may be
specified;
(15) any deletions from, modifications of or additions to the Events of
Default set forth in Section 5.1 or agreements of the Company set forth in
Article 9 pertaining to the Securities of the series;
(16) under what circumstances, if any, and with what procedures and
documentation the Company will pay additional amounts on the Securities and
interest coupons, if any, of that series held by a Person who is not a U.S.
Person (including any modification of the definition of such term) in
respect of taxes, assessments or similar charges withheld or deducted and,
if so, whether the Company will have the option to redeem such Securities
rather than pay such additional amounts (and the terms of any such option);
(17) whether Securities of the series shall be issuable as Registered
Securities or Bearer Securities (with or without interest coupons), or both,
and any restrictions applicable to the offering, sale, transfer or delivery
of Bearer Securities and, if other than as provided in Section 3.5, the
terms upon which Bearer Securities of a series may be exchanged for
Registered Securities of the same series and vice versa;
(18) the date as of which any Bearer Securities of the series and any
temporary Global Security representing Outstanding Securities of the series
shall be dated if other than the date of original issuance of the first
Security of the series to be issued;
(19) the forms of the Securities and interest coupons, if any, of the
series;
(20) if other than as provided in Section 2.3, the forms of the Senior
Guarantees applicable to such series and the event or events upon which the
Senior Guarantees may be released for such Senior Guarantees.
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(21) the applicability, if any, to the Securities and interest coupons,
if any, of or within the series of Sections 4.4 and 4.5, or such other means
of defeasance or agreement defeasance as may be specified for the Securities
and interest coupons, if any, of such series;
(22) if other than the Trustee, the identity of the Registrar and any
Paying Agent;
(23) if the Securities of the series shall be issued in whole or in
part in global form, (i) the Depositary for Global Securities, (ii) whether
beneficial owners of interests in the Global Securities may exchange such
interests for certificated Securities of such series, to be registered in
the names of or to be held by such beneficial owners or their nominees and
to be of like tenor of any authorized form and denomination, and (iii) if
other than as provided in Section 3.5, the circumstances under which any
such exchange may occur;
(24) any restrictions on the registration, transfer or exchange of the
Securities;
(25) if the Securities of the series may be issued or delivered
(whether upon original issuance or upon exchange of a temporary Security of
such series or otherwise), or any installment of principal or interest is
payable, only upon receipt of certain certificates or other documents or
satisfaction of other conditions in addition to those specified in this
Indenture, the form and terms of such certificates, documents or conditions;
(26) the terms and conditions of any right to convert or exchange
Securities of the series into or for Equity Securities of the Company,
including provisions for the payment of interest on Securities being
converted or exchanged as contemplated by Section 3.7(d) and Section 14.2;
(27) whether the Securities are secured or unsecured, and if secured,
the security and related terms in connection therewith;
(28) the definition of "Unrestricted Subsidiary" to be used for such
series; and
(29) any other terms of the series including any terms which may be
required by or advisable under United States laws or regulations or
advisable (as determined by the Company) in connection with the marketing of
Securities of the series.
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(c) Subject to Section 1.12 and any controlling provision of the Trust
Indenture Act, in the event of any inconsistency between the terms of this
Indenture and the terms applicable to a series of Securities established in the
manner permitted by Section 3.1(b), the (i) Board Resolution, (ii) Officers'
Certificate or (iii) supplemental indenture setting forth such conflicting term
shall prevail.
(d) All Securities of any one series and interest coupons, if any,
appertaining thereto shall be substantially identical except as to denomination
and except as may otherwise be provided (i) by a Board Resolution, (ii) by
action taken pursuant to a Board Resolution and (subject to Section 3.3) set
forth, or determined in the manner provided, in the related Officers'
Certificate or (iii) in an indenture supplemental hereto. All Securities of any
one series need not be issued at the same time and, unless otherwise provided, a
series may be reopened, without the consent of the Holders, for issuances of
additional Securities of such series.
(e) If any of the terms of the Securities of any series are established
by action taken pursuant to a Board Resolution, a copy of such Board Resolution
shall be delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth, or providing the manner for determining, the terms of
the Securities of such series, and an appropriate record of any action taken
pursuant thereto in connection with the issuance of any Securities of such
series shall be delivered to the Trustee prior to the authentication and
delivery thereof.
Section 3.2. Denominations. Unless otherwise provided as contemplated
by Section 3.1(b), any Registered Securities of a series denominated in Dollars
shall be issuable in denominations of U.S. $1,000 and any integral multiple
thereof and any Bearer Securities of a series denominated in Dollars shall be
issuable in the denomination of U.S. $5,000 and any integral multiple thereof.
Securities denominated in a Foreign Currency shall be issuable in such
denominations as are established with respect to such Securities in or pursuant
to this Indenture.
Section 3.3. Execution, Authentication, Delivery and Dating. Securities
shall be executed on behalf of the Company by the Chairman of the Board, the
President, the Chief Executive Officer, the Chief Operating Officer, the Chief
Financial Officer, the Treasurer or any Vice President of the Company, and need
not be attested. The signatures of any of these officers on the Securities may
be manual or facsimile. The interest coupons, if any, of Bearer Securities shall
bear the facsimile signature of the Chairman of the Board, the President, the
Chief Executive Officer, the Chief Operating Officer, the Chief Financial
Officer, the Treasurer or any Vice President of the Company, and need not be
attested.
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Securities and interest coupons bearing the manual or facsimile
signatures of individuals who were at any time Officers of the Company shall
bind the Company, notwithstanding that such individuals or any of them have
ceased to be Officers prior to the authentication and delivery of such
Securities or were not Officers at the date of such Securities.
At any time and from time to time, the Company may deliver Securities,
together with any interest coupons appertaining thereto, of any series executed
by the Company and having endorsed (by attachment or imprint) thereon the Senior
Guarantees executed as provided in Section 16.2 by the Guarantors to the Trustee
for authentication, together with a Company Order for the authentication and
delivery of such Securities with such Senior Guarantees endorsed thereon, and
the Trustee in accordance with such Company Order shall authenticate and deliver
such Securities with such Senior Guarantees endorsed thereon to or upon the
order of the Company (as set forth in such Company Order); provided, however,
that, in the case of Securities of a series offered in a Periodic Offering, the
Trustee shall authenticate and deliver such Securities from time to time in
accordance with such other procedures (including, without limitation, the
receipt by the Trustee of oral or electronic instructions from the Company or
its duly authorized agents, promptly confirmed in writing) acceptable to the
Trustee as may be specified by or pursuant to a Company Order delivered to the
Trustee prior to the time of the first authentication of Securities of such
series.
If the form or terms of the Securities with the Senior Guarantees
endorsed thereon of a series have been established by or pursuant to one or more
Board Resolutions or one or more indentures supplemental hereto as permitted by
Sections 2.1 and 3.1, in authenticating such Securities with the Senior
Guarantees endorsed thereon and accepting the additional responsibilities under
this Indenture in relation to such Securities with the Senior Guarantees
endorsed thereon, the Trustee shall be entitled to receive, and (subject to
section 315(a) through (d) of the Trust Indenture Act) shall be fully protected
in relying upon,
(i) an Opinion of Counsel stating:
(1) if the form or forms of such Securities and any interest coupons
with Senior Guarantees endorsed thereon have been established by or pursuant
to a Board Resolution as permitted by Section 2.1, that such forms have been
established in conformity with the provisions of this Indenture;
(2) if the terms of such Securities and any interest coupons with
Senior Guarantees endorsed thereon have been, or, in the case of Securities
of a series with Senior Guarantees endorsed thereon offered in a Periodic
Offering, will be, established by or pursuant to a Board Resolution as
permitted by Section 3.1, that
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such terms have been, or, in the case of Securities of a series with
Senior Guarantees endorsed thereon offered in a Periodic Offering, will be,
established in conformity with the provisions of this Indenture, subject, in
the case of Securities with Senior Guarantees endorsed thereon offered in a
Periodic Offering, to any conditions specified in such Opinion of Counsel;
(3) if the form or terms of such Securities have been established in an
indenture supplemental hereto, that such supplemental indenture has been
duly authorized, executed and delivered by the Company and the Guarantors
and, when duly authorized, executed and delivered by the Trustee, will
constitute a legal, valid and binding obligation enforceable against the
Company and the Guarantors in accordance with its terms, subject to (i)
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
other similar laws of general applicability relating to or affecting the
enforcement of creditors' rights and to general principles of equity
(regardless of whether enforcement is sought in a proceeding in equity or at
law), and (ii) such other reasonable exceptions as may be specified in such
Opinion of Counsel; and
(4) that such Securities, together with any interest coupons
appertaining thereto, and the Senior Guarantees when issued by the Company
and the Guarantors and (in the case of the Securities) authenticated and
delivered by the Trustee in the manner and subject to any conditions
specified in such Opinion of Counsel, will constitute valid and legally
binding obligations of the Company and the Guarantors, respectively,
enforceable against the Company and the Guarantors in accordance with their
terms, subject to (i) bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and other similar laws of general applicability
relating to or affecting the enforcement of creditors' rights and to general
equity principles (regardless of whether enforcement is sought in a
proceeding in equity or at law) and except further as enforcement thereof
may be limited by (A) requirements that a claim with respect to any
Securities or Senior Guarantees denominated other than in Dollars (or a
Foreign Currency or currency unit judgment in respect of such claim) be
converted into Dollars at a rate of exchange prevailing on a date determined
pursuant to applicable law or (B) governmental authority to limit, delay or
prohibit the making of payments in Foreign Currencies or currency units or
payments outside the United States, and (ii) such other reasonable
exceptions as may be specified in such Opinion of Counsel; and
(ii) an Officers' Certificate stating that all conditions precedent
provided for in this Indenture relating to the issuance of such Securities have
been complied with and that, to the knowledge of the signers of such
certificate, no Event of Default with respect to such Securities shall have
occurred and be continuing.
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Notwithstanding that such form or terms have been so established, the
Trustee shall have the right to decline to authenticate such Securities if, in
the opinion of the Trustee (after consultation with counsel), the issue of such
Securities pursuant to this Indenture will materially adversely affect the
Trustee's own rights, duties or immunities under this Indenture or otherwise or
if the Trustee determines that such authentication may not lawfully be made.
Notwithstanding the provisions of Section 3.1 and of the two preceding
paragraphs, if all of the Securities of any series are not to be issued at one
time, it shall not be necessary to deliver the Officers' Certificate otherwise
required pursuant to Section 3.1 or the Company Order and Opinion of Counsel
otherwise required pursuant to the two preceding paragraphs in connection with
the authentication of each Security of such series if such documents, with
appropriate modifications to cover such future issuances, are delivered at or
prior to the authentication upon original issuance of the first Security of such
series to be issued.
With respect to Securities with Senior Guarantees endorsed thereon of a
series offered in a Periodic Offering, the Trustee may rely, as to the
authorization by the Company of any of such Securities and by the Guarantors of
any such Senior Guarantees endorsed thereon, the form and terms thereof and the
legality, validity, binding effect and enforceability thereof, upon the Opinion
of Counsel and the other documents delivered pursuant to Sections 2.1 and 3.1
and this Section, as applicable, in connection with the first authentication of
Securities of such series.
If the Company shall establish pursuant to Section 3.1 that the
Securities of a series are to be issued in whole or in part as Global
Securities, then the Company and the Guarantors shall execute and the Trustee
shall, in accordance with this Section and the Company Order with respect to
such series, authenticate and deliver one or more Global Securities with Senior
Guarantees endorsed thereon that (i) shall represent and shall be denominated in
an amount equal to the aggregate principal amount of the Outstanding Securities
of such series to be represented by such Global Security or Securities, (ii)
shall be registered, if a Registered Security, in the name of the Depositary for
such Global Security or Securities or the nominee of such Depositary, (iii)
shall be delivered by the Trustee to such Depositary or pursuant to such
Depositary's instruction and (iv) shall bear the legend set forth in Section
2.5.
Each Depositary designated pursuant to Section 3.1 for a Registered
Security in global form must, at the time of its designation and at all times
while it serves as Depositary, be a clearing agency registered under the
Exchange Act and any other applicable statute or regulation. If requested by the
Company, the Trustee shall enter into an agreement with a Depositary governing
the respective duties and rights of such
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Depositary and the Trustee with regard to Global Securities with Senior
Guarantees endorsed thereon.
Each Registered Security shall be dated the date of its authentication
and each Bearer Security shall be dated as of the date specified pursuant to
Section 3.1.
No Security or interest coupon appertaining thereto or Senior
Guarantees endorsed thereon shall be entitled to any benefits under this
Indenture or be valid or obligatory for any purpose until such Security has been
authenticated by the manual signature of one of the authorized signatories of
the Trustee or an Authenticating Agent. Such signature upon any Security with
Senior Guarantees endorsed thereon shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered under
this Indenture and is entitled to the benefits of this Indenture and that each
Senior Guarantee endorsed thereon has been duly endorsed thereon and delivered
under this Indenture. Except as permitted by Section 3.6 or 3.7, the Trustee
shall not authenticate and deliver any Bearer Security unless all appurtenant
interest coupons for interest then matured have been detached and cancelled.
Notwithstanding the foregoing, if any Security shall have been
authenticated and delivered hereunder but never issued and sold by the Company,
and the Company shall deliver such Security to the Trustee for cancellation as
provided in Section 3.9 together with a written statement (which need not comply
with Section 1.2 hereof and need not be accompanied by an Officers' Certificate
or an Opinion of Counsel) stating that such Security has never been issued and
sold by the Company, for all purposes of this Indenture such Security shall be
deemed never to have been authenticated and delivered hereunder and shall not be
entitled to the benefits of this Indenture.
Section 3.4. Temporary Securities. Pending the preparation of
definitive Securities of any series, the Company and the Guarantors may execute
and, upon Company Order, the Trustee shall authenticate and deliver temporary
Securities with Senior Guarantees endorsed thereon of such series which are
printed, lithographed, typewritten, mimeographed or otherwise produced, in any
authorized denomination, substantially of the tenor and form, with or without
interest coupons, of the definitive Securities with Senior Guarantees endorsed
thereon in lieu of which they are issued and with such appropriate insertions,
omissions, substitutions and other variations as the officers executing such
Securities and such Senior Guarantees may determine, as conclusively evidenced
by their execution of such Securities and interest coupons, if any, and such
Senior Guarantees. In the case of Securities of any series, such temporary
Securities may be Global Securities, representing all or a portion of the
Outstanding Securities of such series.
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Except in the case of temporary Global Securities, each of which shall
be exchanged in accordance with the provisions thereof, if temporary Securities
of any series are issued, the Company and the Guarantors will cause definitive
Securities with Senior Guarantees endorsed thereon of such series to be prepared
without unreasonable delay. After 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 pursuant to Section 9.2 in
a Place of Payment for such series, without charge to the Holder. Upon surrender
for cancellation of any one or more temporary Securities of any series
(accompanied by any unmatured interest coupons appertaining thereto), the
Company and the Guarantors shall execute and the Trustee shall authenticate and
deliver in exchange therefor a like principal amount of definitive Securities
with Senior Guarantees endorsed thereon of the same series of authorized
denominations and of like tenor; provided, however, that no definitive Bearer
Security shall be delivered in exchange for a temporary Registered Security; and
provided further, that no definitive Bearer Security shall be delivered in
exchange for a temporary Bearer Security unless such delivery shall occur
outside the United States. 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 except as otherwise specified
as contemplated by Section 3.1.
Section 3.5. Registration, Transfer and Exchange. The Company shall
cause to be kept at the Corporate Trust Office of the Trustee or in any office
or agency to be maintained by the Company in accordance with Section 9.2 in a
Place of Payment a register (the "Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Registered Securities and the registration of transfers of
Registered Securities. The Register shall be in written form or any other form
capable of being converted into written form within a reasonable time. The
Trustee is hereby initially appointed "Registrar" for the purpose of registering
Registered Securities and transfers of Registered Securities as herein provided.
Each Global Security authenticated under this Indenture shall be
registered in the name of the Depositary or a nominee thereof and delivered to
such Depositary or nominee thereof or to a successor of such Depositary or
nominee thereof, and each such Global Security shall constitute a single
Security for all purposes of this Indenture.
Upon surrender for registration of transfer of any Registered Security
of any series at the office or agency maintained pursuant to Section 9.2 in a
Place of Payment for that series, the Company and the Guarantors shall execute,
and the Trustee shall authenticate and deliver, in the name of the designated
transferee or transferees, one or more new Registered Securities with Senior
Guarantees endorsed thereon of the same series, of any authorized denominations
and of a like aggregate principal amount and tenor and containing identical
terms and provisions.
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Bearer Securities (except for any temporary global Bearer Securities)
or any interest coupons appertaining thereto (except for interest coupons
attached to any temporary global Bearer Security) shall be transferable by
delivery.
At the option of the Holder, Registered Securities of any series
(except a Registered Security in global form) may be exchanged for other
Registered Securities of the same series, of any authorized denominations, of a
like aggregate principal amount and tenor and containing identical terms and
provisions, upon surrender of the Registered Securities to be exchanged at such
office or agency. Whenever any Registered Securities are so surrendered for
exchange, the Company and the Guarantors shall execute, and the Trustee shall
authenticate and deliver, the Registered Securities with Senior Guarantees
endorsed thereon which the Holder making the exchange is entitled to receive.
Unless otherwise specified as contemplated by Section 3.1, Bearer Securities may
not be issued in exchange for Registered Securities.
Unless otherwise specified as contemplated by Section 3.1, at the
option of the Holder, Bearer Securities of such series may be exchanged for
Registered Securities (if the Securities of such series are issuable in
registered form) or Bearer Securities (if Bearer Securities of such series are
issuable in more than one denomination and such exchanges are permitted by such
series) of the same series, of any authorized denominations, of like aggregate
principal amount and tenor and containing identical terms and conditions, upon
surrender of the Bearer Securities to be exchanged at any such office or agency,
with all unmatured interest coupons and all matured interest coupons in default
thereto appertaining. If the Holder of a Bearer Security is unable to produce
any such unmatured interest coupon or coupons or matured interest coupon or
coupons in default, such exchange may be effected if the Bearer Securities are
accompanied by payment in funds acceptable to the Company and the Trustee in an
amount equal to the face amount of such missing interest coupon or coupons, or
the surrender of such missing interest coupon or interest coupons may be waived
by the Company, the Guarantors and the Trustee if there be furnished to them
such security or indemnity as they may require to save each of them and any
Paying Agent harmless. If thereafter the Holder of such Security shall surrender
to any Paying Agent any such missing interest coupon in respect of which such a
payment shall have been made, such Holder shall be entitled to receive the
amount of such payment; provided, however, that, except as otherwise provided in
Section 9.2, interest represented by interest coupons shall be payable only upon
presentation and surrender of those interest coupons at an office or agency
located outside the United States. Notwithstanding the foregoing, in case any
Bearer Security of any series is surrendered at any such office or agency in
exchange for a Registered Security of the same series after the close of
business at such office or agency on (i) any Regular Record Date and before the
opening of business at such office or agency on the relevant Interest Payment
Date, or (ii) any Special Record Date and before the opening of business at such
office or agency on the related date for payment of Defaulted Interest, such
Bearer
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Security shall be surrendered without the interest coupon relating to such
Interest Payment Date or proposed date of payment, as the case may be (or, if
such interest coupon is so surrendered with such Bearer Security, such interest
coupon shall be returned to the Person so surrendering the Bearer Security), and
interest or Defaulted Interest, as the case may be, will not be payable on such
Interest Payment Date or proposed date for payment, as the case may be, in
respect of the Registered Security issued in exchange for such Bearer Security,
but will be payable only to the Holder of such interest coupon, when due in
accordance with the provisions of this Indenture.
Notwithstanding anything herein to the contrary, the exchange of Bearer
Securities for Registered Securities shall be subject to applicable laws and
regulations in effect at the time of exchange. Neither the Company, the
Guarantors, the Trustee nor the Registrar shall exchange any Bearer Securities
for Registered Securities if it has received an Opinion of Counsel that as a
result of such exchange the Company would suffer adverse consequences under the
United States Federal income tax laws and regulations then in effect and the
Company has delivered to the Trustee a Company Order directing the Trustee not
to make such exchanges thereafter, unless and until the Trustee receives a
subsequent Company Order to the contrary. The Company shall deliver copies of
such Company Order to the Registrar.
Notwithstanding any other provision of this Section, unless and until
it is exchanged in whole or in part for Securities in certificated form, a
Global Security representing all or a portion of the Securities of a series may
not be transferred except as a whole by the Depositary for such series to a
nominee of such Depositary or by a nominee of such Depositary to such Depositary
or another nominee of such Depositary or by such Depositary or any such nominee
to a successor Depositary for such series or a nominee of such successor
Depositary.
If at any time the Depositary for the Securities of a series notifies
the Company that it is unwilling or unable to continue as Depositary for the
Securities of such series or if at any time the Depositary for the Securities of
such series shall no longer be eligible under Section 3.3, the Company shall
appoint a successor Depositary with respect to the Securities of such series. If
a successor Depositary for the Securities of such series is not appointed by the
Company prior to the resignation of the Depositary and, in any event, within 90
days after the Company receives such notice or becomes aware of such
ineligibility, the Company's designation of the Depositary pursuant to Section
3.1(b)(22) shall no longer be effective with respect to the Securities of such
series and the Company and the Guarantors shall execute, and the Trustee, upon
receipt of a Company Order for the authentication and delivery of certificated
Securities with Senior Guarantees endorsed thereon of such series of like tenor,
shall authenticate and deliver, Securities with Senior Guarantees endorsed
thereon of such series of like tenor in certificated form, in authorized
denominations and in an aggregate principal amount equal
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to the principal amount of the Global Security or Securities of such series of
like tenor in exchange for such Global Security or Securities in global form.
The Company may at any time in its sole discretion determine that
Global Securities shall no longer be represented by such a Global Security or
Securities. In such event the Company and the Guarantors shall execute, and the
Trustee, upon receipt of a Company Order for the authentication and delivery of
certificated Securities with Senior Guarantees endorsed thereon of such series
of like tenor, shall authenticate and deliver, Securities with Senior Guarantees
endorsed thereon of such series of like tenor in certificated form, in
authorized denominations and in an aggregate principal amount equal to the
principal amount of the Global Security or Securities of such series of like
tenor in exchange for such Security or Securities in global form.
If specified by the Company pursuant to Section 3.1 with respect to a
series of Securities, the Depositary for such series may surrender a Global
Security of such series in exchange in whole or in part for Securities of such
series in certificated form on such terms as are acceptable to the Company, the
Guarantors and such Depositary. Thereupon, the Company and the Guarantors shall
execute, and the Trustee shall authenticate and deliver, without service charge,
(i) to each Person specified by such Depositary a new certificated
Security or Securities with Senior Guarantees endorsed thereon of the same
series of like tenor, of any authorized denomination as requested by such
Person in aggregate principal amount equal to and in exchange for such
Person's beneficial interest in the Global Security; and
(ii) to such Depositary a new Global Security with Senior Guarantees
endorsed thereon of like tenor in a denomination equal to the difference, if
any, between the principal amount of the surrendered Global Security and the
aggregate principal amount of certificated Securities delivered to Holders
thereof.
Upon the exchange of a Global Security with Senior Guarantees endorsed
thereon for Securities with Senior Guarantees endorsed thereon in certificated
form, such Global Security with Senior Guarantees endorsed thereon shall be
cancelled by the Trustee. Unless expressly provided with respect to the
Securities of any series that such Security may be exchanged for Bearer
Securities, Securities with Senior Guarantees endorsed thereon in certificated
form issued in exchange for a Global Security with Senior Guarantees endorsed
thereon pursuant to this Section shall be registered in such names and in such
authorized denominations as the Depositary for such Global Security with Senior
Guarantees endorsed thereon, pursuant to instructions from its direct or
indirect participants or otherwise, shall instruct the Trustee in writing. The
Trustee shall
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deliver such Securities with Senior Guarantees endorsed thereon to the Persons
in whose names such Securities with Senior Guarantees endorsed thereon are so
registered.
Whenever any Securities are surrendered for exchange, the Company and
the Guarantors shall execute, and the Trustee shall authenticate and deliver,
the Securities with Senior Guarantees endorsed thereon which the Holder making
the exchange is entitled to receive.
All Securities with Senior Guarantees endorsed thereon issued upon any
registration of transfer or upon any exchange of Securities with Senior
Guarantees endorsed thereon shall be the valid obligations of the Company and
the Guarantors, evidencing the same debt, and entitled to the same benefits
under this Indenture, as the Securities with Senior Guarantees endorsed thereon
surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company, the Guarantors,
the Registrar or the Trustee) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Company, the Guarantors, the
Registrar and the Trustee duly executed by the Holder thereof or his attorney
duly authorized in writing.
No service charge shall be made for any registration of transfer or for
any 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 or transfer or exchange of Securities, other
than exchanges pursuant to Section 3.4, 8.6 or 11.7 not involving any transfer.
The Company and the Guarantors shall not be required (i) to issue,
register the transfer of, or exchange any Securities with Senior Guarantees
endorsed thereon for a period beginning at the opening of business 15 days
before any selection for redemption of Securities of like tenor and of the
series of which such Security is a part and ending at the close of business on
the earliest date on which the relevant notice of redemption is deemed to have
been given to all Holders of Securities of like tenor and of such series to be
redeemed; (ii) to register the transfer of or exchange any Registered Security
with Senior Guarantees endorsed thereon so selected for redemption, in whole or
in part, except the unredeemed portion of any Security being redeemed in part;
or (iii) to exchange any Bearer Security with Senior Guarantees endorsed thereon
so selected for redemption, except that such a Bearer Security may be exchanged
for a Registered Security of that series and like tenor; provided that such
Registered Security shall be simultaneously surrendered for redemption.
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The foregoing provisions relating to registration, transfer and
exchange may be modified, supplemented or superseded with respect to any series
of Securities by a Board Resolution or in one or more indentures supplemental
hereto.
Section 3.6. Replacement Securities. If a mutilated Security or a
Security with a mutilated interest coupon appertaining to it is surrendered to
the Trustee, together with, in proper cases, such security or indemnity as may
be required by the Company, the Guarantors or the Trustee to save each of them
harmless, the Company and the Guarantors shall execute and the Trustee shall
authenticate and deliver a replacement Registered Security with Senior
Guarantees endorsed thereon, if such surrendered Security was a Registered
Security, or a replacement Bearer Security with Senior Guarantees endorsed
thereon with interest coupons corresponding to the interest coupons appertaining
to the surrendered Security, if such surrendered Security was a Bearer Security,
of the same series and date of maturity.
If there shall be delivered to the Company, the Guarantors and the
Trustee (i) evidence to their satisfaction of the destruction, loss or theft of
any Security or interest coupon and (ii) such security or indemnity as may be
required by them to save each of them and any agent of any of them harmless,
then, in the absence of notice to the Company or the Trustee that such Security
or interest coupon has been acquired by a bona fide purchaser, the Company and
the Guarantors shall execute and the Trustee shall authenticate and deliver in
lieu of any such destroyed, lost or stolen Security or in exchange for the
Security to which a destroyed, lost or stolen interest coupon appertains (with
all appurtenant interest coupons not destroyed, lost or stolen), a replacement
Registered Security with Senior Guarantees endorsed thereon, if such Holder's
claim appertains to a Registered Security with Senior Guarantees endorsed
thereon, or a replacement Bearer Security with Senior Guarantees endorsed
thereon with interest coupons corresponding to the interest coupons appertaining
to the destroyed, lost or stolen Bearer Security or the Bearer Security to which
such lost, destroyed or stolen interest coupon appertains, if such Holder's
claim appertains to a Bearer Security, of the same series and principal amount,
containing identical terms and provisions and bearing a number not
contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security or
interest coupon has become or is about to become due and payable, the Company
and the Guarantors in their discretion may, instead of issuing a new Security or
interest coupon with Senior Guarantees endorsed thereon, pay such Security or
interest coupon; provided, however, that payment of principal of and any premium
or interest on Bearer Securities shall, except as otherwise provided in Section
9.2, be payable only at an office or agency located outside the United States
and, unless otherwise specified as contemplated by Section 3.1, any interest on
Bearer Securities shall be payable only upon presentation and surrender of the
interest coupons appertaining thereto.
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Upon the issuance of any new Security under this Section, the
Company and the Guarantors 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, its agents
and counsel) connected therewith.
Every new Security with Senior Guarantees endorsed thereon of
any series with its interest coupons, if any, issued pursuant to this Section in
lieu of any destroyed, lost or stolen Security, or in exchange for a Security to
which a destroyed, lost or stolen interest coupon appertains, shall constitute
an original additional contractual obligation of the Company and the relevant
Guarantor, whether or not the destroyed, lost or stolen Security and its
interest coupon, if any, or the destroyed, lost or stolen interest coupon, 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 and their interest coupons, if any, 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 or
interest coupons.
Section 3.7. Payment of Interest; Interest Rights Preserved.
(a) Unless otherwise provided as contemplated by Section 3.1, interest, if any,
on any Registered 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 at the office or
agency maintained for such purpose pursuant to Section 9.2; provided, however,
that at the option of the Company, interest on any series of Registered
Securities that bears interest may be paid (i) by check mailed to the address of
the Person entitled thereto as it shall appear on the Register of Holders of
Securities of such series or (ii) at the expense of the Company, by wire
transfer to an account maintained by the Person entitled thereto as specified in
the Register of Holders of Securities of such series.
Unless otherwise provided as contemplated by Section 3.1, (i)
interest, if any, on Bearer Securities shall be paid only against presentation
and surrender of the interest coupons for such interest installments as are
evidenced thereby as they mature and (ii) original issue discount, if any, on
Bearer Securities shall be paid only against presentation and surrender of such
Securities; in either case at the office of a Paying Agent located outside the
United States, unless the Company shall have otherwise instructed the Trustee in
writing, provided that any such instruction for payment in the United States
does not cause any Bearer Security to be treated as a "registration-required
obligation" under United States laws and regulations. The interest, if any, on
any
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temporary Bearer Security shall be paid, as to any installment of interest
evidenced by an interest coupon attached thereto only upon presentation and
surrender of such interest coupon and, as to other installments of interest,
only upon presentation of such Security for notation thereon of the payment of
such interest. If at the time a payment of principal of or interest, if any, on
a Bearer Security or interest coupon shall become due, the payment of the full
amount so payable at the office or offices of all the Paying Agents outside the
United States is illegal or effectively precluded because of the imposition of
exchange controls or other similar restrictions on the payment of such amount in
Dollars, then the Company may instruct the Trustee in writing to make such
payments at a Paying Agent located in the United States, provided that provision
for such payment in the United States would not cause such Bearer Security to be
treated as a "registration-required obligation" under United States laws and
regulations.
(b) Unless otherwise provided as contemplated by Section 3.1,
any interest on Securities of any series which is payable, but is not punctually
paid or duly provided for, on any Interest Payment Date in the case of
Registered Securities and upon presentation and surrender of the applicable
interest coupon in accordance with the second paragraph of Section 3.7(a) in the
case of Bearer Securities (herein called "Defaulted Interest"), shall forthwith
cease to be payable to the Holders of Registered Securities on the relevant
Regular Record Date by virtue of their having been such Holders, or to the
Holders of Bearer Securities by virtue of their having presented the applicable
interest coupon on such Interest Payment Date, 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) In the case of Registered Securities, the Company may
elect to make payment of such Defaulted Interest to the Persons in
whose names such Registered Securities (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
such Registered Security and the date of the proposed payment, and
shall deposit with the Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect of 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 (1) provided. Thereupon
the Trustee shall fix a Special Record Date for the payment of such
Defaulted Interest which shall be not more than 15 days and not less
than 10 days prior to the date of the proposed payment and not less
than 10 days after the receipt by the 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
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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 such Registered
Securities at his or her address as it appears in the 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 such Registered Securities (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)(x) In the case of Registered Securities, the Company may
make payment of such Defaulted Interest to the Persons in whose names
such Registered Securities (or their respective Predecessor Securities)
are registered at the close of business on a specified date in any
other lawful manner not inconsistent with the requirements of any
securities exchange on which such Registered 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 (2)(x), such manner of payment shall be deemed
practicable by the Trustee; or (y) unless otherwise provided as
contemplated by Section 3.1, in the case of Bearer Securities, the
Company may make payment of Defaulted Interest on such Bearer
Securities in any lawful manner not inconsistent with the requirements
of any securities exchange on which such Bearer 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 (2)(y), such manner of payment shall be
deemed practicable by the Trustee.
(c) Subject to the foregoing provisions of this Section and
Section 3.5, 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.
(d) In the case of any Registered Security of a series which
is converted or exchanged after any Regular Record Date and on or prior to the
next succeeding Interest Payment Date (other than any Security the principal of
(or premium, if any, on) which shall become due and payable, whether at a Stated
Maturity or by declaration of acceleration, call for redemption, or otherwise,
prior to such Interest Payment Date), interest whose Stated Maturity is on such
Interest Payment Date shall be payable on such Interest Payment Date
notwithstanding such conversion or exchange and such interest (whether or not
punctually paid or duly provided for) shall be paid to the Person in whose name
that Registered Security (or any one or more Predecessor Securities) is
registered at the close of business on such Regular Record Date, unless
otherwise provided with respect to Securities of that series pursuant to Section
3.1(b).
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Section 3.8. Persons Deemed Owners. Unless otherwise provided
as contemplated by Section 3.1, prior to due presentment of any Registered
Security for registration of transfer, the Company, the Guarantors, the Trustee
and any agent of the Company, any Guarantor or the Trustee may treat the Person
in whose name such Registered Security is registered as the owner of such
Registered Security for the purpose of receiving payment of principal of,
premium, if any, and (subject to Section 3.7) interest on such Registered
Security and for all other purposes whatsoever, whether or not such Registered
Security be overdue, and neither the Company, any Guarantor, the Trustee nor any
agent of the Company, any Guarantor or the Trustee shall be affected by notice
to the contrary.
Unless otherwise provided as contemplated by Section 3.1, the
Company, the Guarantors, the Trustee and any agent of the Company, any Guarantor
or the Trustee may treat the bearer of any Bearer Security and the bearer of any
interest coupon as the absolute owner of such Bearer Security or interest coupon
for the purpose of receiving payment thereof or on account thereof and for all
other purposes whatsoever, whether or not such Bearer Security or interest
coupon be overdue, and neither the Company, the Guarantors, the Trustee nor any
agent of the Company, any Guarantor or the Trustee shall be affected by notice
to the contrary.
None of the Company, the Guarantors, the Trustee or any agent
of the Company, any Guarantor or the Trustee shall have any responsibility or
liability for any aspect of the records relating to or payments made on account
of beneficial ownership interests of a Global Security, or for maintaining,
supervising or reviewing any records relating to such beneficial ownership
interests. No holder of any beneficial interest in any Global Security, held on
its behalf by or through a Depositary, shall have any rights under this
Indenture with respect to such Global Security, and such Depositary may be
treated by the Company, the Guarantors, the Trustee and any agent of the
Company, any Guarantor or the Trustee as the owner of such Global Security for
all purposes whatsoever. With respect to any Global Security, nothing herein
shall prevent the Company, the Guarantors or the Trustee, or any agent of the
Company, any Guarantor or the Trustee, from giving effect to any written
certification, proxy or other authorization furnished by any Depositary (or its
nominee), as a Holder, with respect to such Global Security or impair, as
between such Depositary and owners of beneficial interests in such Global
Security, the operation of customary practices governing the exercise of the
rights of such Depositary (or its nominee) as Holder of such Global Security.
Section 3.9. Cancellation. All Securities and interest coupons
appertaining thereto, if any, surrendered for payment, redemption, conversion,
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, together with the Senior Guarantees endorsed thereon, shall
be promptly cancelled by it. The Company may at any
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time deliver to the Trustee for cancellation any Securities, together with
interest coupons appertaining thereto, if any, 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, together with interest coupons
appertaining thereto, if any, previously authenticated hereunder which the
Company has not issued and sold, and all Securities and interest coupons so
delivered shall, together with the Senior Guarantees endorsed thereon, 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 3.9,
except as expressly permitted by this Indenture. All cancelled Securities and
interest coupons held by the Trustee shall, together with the Senior Guarantees
endorsed thereon, be disposed of in accordance with its customary procedures,
and the Trustee shall thereafter deliver to the Company a certificate with
respect to such disposition.
Section 3.10. Computation of Interest. Except as otherwise
specified as contemplated by Section 3.1, interest on the Securities of each
series shall be computed on the basis of a 360-day year of twelve 30-day months.
Section 3.11. CUSIP Numbers. The Company in issuing the
Securities may use "CUSIP" numbers (if then generally in use and in addition to
the other identification numbers printed on the Securities), and, in such case,
the Trustee shall use "CUSIP" numbers in notices of redemption as a convenience
to Holders; provided that any such notice may state that no representation is
made as to the correctness of such numbers either as printed on the Securities
or as contained in any notice of a redemption and that reliance may be placed
only on the other identification numbers printed on the Securities, and any such
redemption shall not be affected by any defect in or omission of such numbers.
Section 3.12. Currency and Manner of Payment in Respect of
Securities. Unless otherwise specified with respect to any Securities pursuant
to Section 3.1, payment of the principal of, premium, if any, and interest, if
any, on any Security of such series will be made in the currency or currencies
or currency unit or units in which such Security is payable. The provisions of
this Section 3.12 may be modified or superseded pursuant to Section 3.1 with
respect to any Securities.
ARTICLE 4
SATISFACTION, DISCHARGE AND DEFEASANCE
Section 4.1. Termination of Company's Obligations Under the
Indenture. This Indenture shall upon a Company Request cease to be of further
effect with respect to Securities of or within any series and any interest
coupons appertaining thereto (except as to (i) rights of registration, transfer
or exchange of such Securities, (ii) rights of
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replacement of such Securities which may have been lost, stolen or mutilated as
herein expressly provided for, (iii) rights of holders of Securities to receive
payments of principal thereof and interest thereon, upon the Stated Maturity
thereof (but not upon acceleration), and rights of the Holders to receive
mandatory sinking fund payments, if any, (iv) rights of holders of Securities to
convert or exchange Securities, (v) rights, obligations, duties and immunities
of the Trustee hereunder, (vi) any rights of the Holders of Securities of such
series as beneficiaries hereof with respect to the property so deposited with
the Trustee payable to all or any of them, and (vii) the obligations of the
Company under Section 9.2) and the Trustee, upon payment of all amounts due it
under Section 6.7, at the expense of the Company, shall execute proper
instruments acknowledging satisfaction and discharge of this Indenture with
respect to such Securities and any interest coupons appertaining thereto when
(1) either (A) all such Securities previously authenticated
and delivered and all interest coupons appertaining thereto (other than
(i) such interest coupons appertaining to Bearer Securities surrendered
in exchange for Registered Securities and maturing after such exchange,
surrender of which is not required or has been waived as provided in
Section 3.5, (ii) such Securities and interest coupons which have been
destroyed, lost or stolen and which have been replaced or paid as
provided in Section 3.6, (iii) such interest coupons appertaining to
Bearer Securities called for redemption and maturing after the relevant
Redemption Date, surrender of which has been waived as provided in
Section 11.6 and (iv) such Securities and interest coupons for whose
payment money in the currency or currencies or currency unit or units
in which such Securities are payable has 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 9.3) have been delivered to the Trustee for cancellation; or
(B) all Securities of such series and, in the case of (i) or
(ii) below, any interest coupons appertaining thereto 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,
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and the Company, in the case of (i), (ii) or (iii) above, has
irrevocably deposited or caused to be deposited with the
Trustee as trust funds in trust for the purpose an amount in
the currency or currencies or currency unit or units in which
the Securities of such series are payable, sufficient to pay
and discharge the entire indebtedness on such Securities and
such interest coupons not theretofore delivered to the Trustee
for cancellation, for principal, premium, if any, and
interest, with respect thereto, 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 the Guarantors; 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 as to such series have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the obligation
of the Company to the Trustee and any predecessor Trustee under Section 6.7, the
obligations of the Company to any Authenticating Agent under Section 6.14 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 4.2,
Section 9.2 and the last paragraph of Section 9.3 shall survive.
Section 4.2. Application of Trust Funds. Subject to the
provisions of the last paragraph of Section 9.3, all money deposited with the
Trustee pursuant to Section 4.1 shall be held in trust and applied by it, in
accordance with the provisions of the Securities, the interest coupons
appertaining thereto, if any, and this Indenture, to the payment, either
directly or through any Paying Agent (including the Company acting as its own
Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of
the principal, premium, if any and any interest for whose payment such money has
been deposited with or received by the Trustee, but such money need not be
segregated from other funds except as otherwise provided herein and except to
the extent required by law.
Section 4.3. Applicability of Defeasance Provisions; Company's
Option to Effect Defeasance or Agreement Defeasance. Except as otherwise
specified as contemplated by Section 3.1 for the Securities of any series, the
provisions of Sections 4.4 through 4.9 inclusive, with such modifications
thereto as may be specified pursuant to Section 3.1 with respect to any series
of Securities, shall be applicable to the Securities and any interest coupons
appertaining thereto.
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Section 4.4. Defeasance and Discharge. On and after the date
on which the conditions set forth in Section 4.6 are satisfied with respect to
the Securities of or within any series, the Company shall be deemed to have paid
and been discharged from its obligations with respect to such Securities and any
interest coupons appertaining thereto (hereinafter "defeasance"). For this
purpose, such defeasance means that (i) the Company shall be deemed to have paid
and discharged the entire indebtedness represented by such Securities and any
interest coupons appertaining thereto which shall thereafter be deemed to be
"Outstanding" only for the purposes of Sections 4.7 and 4.9 and the other
Sections of this Indenture referred to in clause (ii)(B) of this Section, and to
have satisfied all its other obligations under such Securities and any interest
coupons appertaining thereto and this Indenture insofar as such Securities and
any interest coupons appertaining thereto are concerned (and the Trustee, upon
payment of all amounts due it under Section 6.7, at the expense of the Company,
shall on a Company Order execute proper instruments acknowledging the same) and
(ii) the Guarantors shall be released from all of their obligations under their
Senior Guarantees and under Article 16 of this Indenture, except the following
which shall survive until otherwise terminated or discharged hereunder: (A) the
rights of Holders of such Securities and any interest coupons appertaining
thereto to receive, solely from the trust funds described in Section 4.6(a) and
as more fully set forth in such Section, payments in respect of the principal
of, premium, if any, and interest, if any, on such Securities or any interest
coupons appertaining thereto when such payments are due; (B) the Company's
obligations with respect to such Securities under Sections 3.4, 3.5, 3.6, 9.2
and 9.3 and with respect to the payment of additional amounts, if any, payable
with respect to such Securities as specified pursuant to Section 3.1(b)(16); (C)
the Company's obligations with respect to a conversion or exchange of such
Securities; (D) the rights, powers, trusts, duties and immunities of the Trustee
hereunder and (E) this Article 4. Subject to compliance with this Article 4, the
Company may defease the Securities of any series and any interest coupons
appertaining thereto under this Section 4.4 notwithstanding a prior agreement
defeasance (as defined herein) under Section 4.5 with respect to such Securities
and any interest coupons appertaining thereto. Following a defeasance, payment
of such Securities may not be accelerated because of an Event of Default.
Section 4.5. Agreement Defeasance. On and after the date on
which the conditions set forth in Section 4.6 are satisfied with respect to the
Securities of or within any series, (i) the Company shall be released from its
obligations under Section 7.1 and, if specified pursuant to Section 3.1, its
obligations under any other agreement, with respect to such Securities and any
interest coupons appertaining thereto and (ii) the occurrence of any event
specified in Section 5.1(d) or 5.1(i) (in each case, with respect to any of the
obligations described in clause (i) above) or 5.1(e) shall be deemed not to be
or result in a Default or Event of Default (hereinafter, "agreement
defeasance"), and such Securities and any interest coupons appertaining thereto
shall thereafter be deemed to be not
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"Outstanding" for the purposes of any request, demand, authorization, direction,
notice, waiver, consent or declaration or Act of Holders (and the consequences
of any thereof) in connection with Section 7.1, such other agreement specified
pursuant to Section 3.1, or Section 5.1(d) or 5.1(i) (in each case, with respect
to any of the obligations described in clause (i) above) or 5.1(e), but shall
continue to be deemed "Outstanding" for all other purposes hereunder. For this
purpose, such agreement defeasance means that, with respect to such Securities
and any interest coupons appertaining thereto, the Company may omit to comply
with and shall have no liability in respect of any term, condition or limitation
set forth in any such Section or such other agreement, whether directly or
indirectly, by reason of any reference elsewhere herein to any such Section or
such other agreement or by reason of reference in any such Section or such other
agreement to any other provision herein or in any other document and such
omission to comply shall not constitute a Default or an Event of Default under
Section 5.1(d), 5.1(e) or 5.1(i) or otherwise, as the case may be, but, except
as specified above, the remainder of this Indenture and such Securities and any
interest coupons appertaining thereto shall be unaffected thereby.
Section 4.6. Conditions to Defeasance or Agreement Defeasance.
The following shall be the conditions to application of either Section 4.4 or
Section 4.5 to the then Outstanding Securities of or within a series:
(a) The Company shall irrevocably have deposited or caused to
be deposited with the Trustee (or another trustee satisfying the requirements of
Section 6.9 who shall agree to comply with the provisions of Sections 4.3
through 4.9 inclusive and the last paragraph of Section 9.3 applicable to the
Trustee, for purposes of such sections also a "Trustee") as trust funds in trust
for the purpose of making the following payments, specifically pledged as
security for, and dedicated solely to, the benefit of the Holders of such
Securities and any interest coupons appertaining thereto, (A) money in an
amount, or (B) U.S. Government Obligations which through the scheduled payment
of principal and interest in respect thereof in accordance with their terms will
provide, not later than one day before the due date of any payment, money in an
amount, or (C) a combination thereof, in an amount sufficient in the opinion of
a nationally recognized firm of independent certified public accountants
expressed in a written opinion with respect thereto delivered to the Trustee, to
pay and discharge, and which shall be applied by the Trustee (or other
qualifying trustee) to pay and discharge, (x) the principal of, premium, if any,
and each installment of interest, if any, on the outstanding Securities and any
interest coupons appertaining thereto on the Stated Maturity of such principal
or installment of interest and (y) any mandatory sinking fund payments
applicable to such Securities on the day on which such payments are due and
payable in accordance with the terms of this Indenture and of such Securities
and any interest coupons appertaining thereto.
(b) In the case of an election under Section 4.4, the Company
shall have
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delivered to the Trustee an Opinion of Counsel stating that (x) the Company has
received from, or there has been published by, the Internal Revenue Service a
ruling, or (y) since the date of this Indenture there has been a change in the
applicable Federal income tax law, in either case to the effect that, and based
thereon such opinion shall confirm that, the Holders of the Outstanding
Securities and any interest coupons appertaining thereto will not recognize 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, in
the same manner and at the same times as would have been the case if such
deposit, defeasance and discharge had not occurred.
(c) In the case of an election under Section 4.5, the Company
shall have delivered to the Trustee an Opinion of Counsel to the effect that the
Holders of the Outstanding Securities and any interest coupons appertaining
thereto will not recognize gain or loss for Federal income tax purposes as a
result of such deposit and agreement defeasance and will be subject to Federal
income tax on the same amount, in the same manner and at the same times as would
have been the case if such deposit and agreement defeasance had not occurred.
(d) The Company shall have delivered to the Trustee an
Officer's Certificate to the effect that the Securities, if then listed on any
securities exchange or approved for trading in any automated quotation system,
will not be delisted or disapproved for such trading as a result of such
deposit.
(e) No Event of Default or event which with notice or lapse
of time or both would become an Event of Default shall have occurred and be
continuing on the date of such deposit or, insofar as subsections 5.1(g) and (h)
are concerned, at any time during the period ending on the 91st day after the
date of such deposit (it being understood that this condition shall not be
deemed satisfied until the expiration of such period).
(f) Such defeasance or agreement defeasance shall not cause
the Trustee to have a conflicting interest within the meaning of the Trust
Indenture Act (assuming all Securities are in default within the meaning of such
Act).
(g) Such defeasance or agreement defeasance shall 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.
(h) The Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for relating to either the defeasance under
Section 4.4 or the agreement defeasance under Section 4.5 (as the case may be)
have been complied with.
(i) The Company has delivered to the Trustee an Opinion of
Counsel to the
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effect that such defeasance or agreement defeasance shall not result in the
trust arising from such deposit or the Trustee constituting an investment
company as defined in the Investment Company Act of 1940, as amended from time
to time, or such trust shall be registered under such act or exempt from
registration thereunder.
(j) Such defeasance or agreement defeasance shall be effected
in compliance with any additional or substitute terms, conditions or limitations
which may be imposed on the Company in connection therewith as contemplated by
Section 3.1.
Section 4.7. Deposited Money and U.S. Government Obligations
to Be Held in Trust. Subject to the provisions of the last paragraph of Section
9.3, all money and U.S. Government Obligations (or other property as may be
provided pursuant to Section 3.1) (including the proceeds thereof) deposited
with the Trustee pursuant to Section 4.6 in respect of any Securities of any
series and any interest coupons appertaining thereto shall be held in trust and
applied by the Trustee, in accordance with the provisions of such Securities and
any interest coupons appertaining thereto and this Indenture, to the payment,
either directly or through any Paying Agent (including the Company acting as its
own Paying Agent) as the Trustee may determine, to the Holders of such
Securities and any interest coupons appertaining thereto of all sums due and to
become due thereon in respect of principal, premium, if any, and interest, if
any, but such money need not be segregated from other funds except as provided
herein and except to the extent required by law.
Section 4.8. Repayment to Company. Subject to the delivery by
the Company of any written certification required by the last paragraph of this
Section 4.8, the Trustee (and any Paying Agent) shall promptly pay to the
Company upon Company Request any excess money or securities held by them at any
time.
The provisions of the last paragraph of Section 9.3 shall
apply to any money or securities held by the Trustee or any Paying Agent under
this Article 4 that remain unclaimed for two years after the Maturity of any
series of Securities for which money or securities have been deposited pursuant
to Section 4.6(a).
Anything in this Article to the contrary notwithstanding, 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 4.6 with respect to any Securities which, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, are in excess of the amount
thereof which would then be required to be deposited to effect the defeasance or
agreement defeasance, as the case may be, with respect to such Securities.
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Section 4.9. Indemnity for U.S. Government Obligations. 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 this Article or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is for
the account of the Holders of the Outstanding Securities.
Section 4.10. Reinstatement. If the Trustee (or Paying Agent)
is unable to apply any money or U.S. Government Obligations in accordance with
Section 4.6 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 the Securities shall be
revived and reinstated, with present and prospective effect, as though no
deposit had occurred pursuant to Section 4.6, until such time as the Trustee (or
Paying Agent) is permitted to apply all such money or U.S. Government
Obligations in accordance with Section 4.6; provided, however, that if the
Company makes any payment to the Trustee (or Paying Agent) of principal of,
premium, if any, or interest on any Security following the reinstatement of its
obligations, the Trustee (or Paying Agent) shall promptly pay any such amount to
the Holders of the Securities and the Company shall be subrogated to the rights
of the Holders of such Securities to receive such payment from the money and
U.S. Government Obligations held by the Trustee (or Paying Agent).
ARTICLE 5
DEFAULTS AND REMEDIES
Section 5.1. Events of Default. An "Event of Default," with
respect to the 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):
(a) default in the payment of interest on any Security of that
series or any interest coupon appertaining thereto or any additional amount
payable with respect to any Security of that series as specified pursuant to
Section 3.1(b)(16) when the same becomes due and payable and such default
continues for a period of 30 days; or
(b) default in the payment of any installment of the principal
of or any premium on any Security of that series when the same becomes due and
payable at its Maturity; or
(c) default in the deposit of any sinking fund payment, when
and as due by the terms of a Security of that series; or
(d) default in the performance, or breach, of any agreement or
warranty
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of the Company or any Guarantor in this Indenture (other than an agreement or
warranty a default in whose performance or whose breach is elsewhere in this
Section specifically dealt with) or the Securities, and continuance of such
default or breach for a period of 60 days after there has been given, in the
manner provided in Section 1.6, to the Company by the Trustee or to the Company
and the Trustee by the Holders of at least 10% in principal amount of the
Outstanding Securities of the series, a written notice specifying such default
or breach and requiring it to be remedied and stating that such notice is a
"Notice of Default" hereunder; or
(e) a default or defaults under the terms of any bond(s),
debenture(s), note(s) or other evidence(s) of, or obligations constituting, Debt
by the Company, any Guarantor or any Restricted Subsidiary, or under any
mortgage(s), indenture(s), agreement(s) or instrument(s) under which there may
be issued or by which there may be secured or evidenced, any Debt of the
Company, any Guarantor or any Restricted Subsidiary with a principal amount then
outstanding, individually or in the aggregate, in excess of $50 million, whether
such Debt now exists or is hereafter Incurred, which default or defaults
constitute a failure to pay any portion of the principal or similar amount of
such Debt when due and payable after the expiration of any applicable grace
period with respect thereto or results in such Debt becoming or being declared
due and payable prior to the date on which it would otherwise have become due
and payable; or
(f) a final judgment or final judgments (not subject to
appeal) for the payment of money are entered against the Company, Allied or any
Restricted Subsidiary in an aggregate amount in excess of $50 million by a court
or courts of competent jurisdiction, which judgments remain unstayed,
undischarged or unbonded for a period of 60 days after the entry of such
judgment or judgments; or
(g) the entry by a court having jurisdiction in the premises
of (A) a decree or order for relief in respect of the Company, Allied or any
Restricted Subsidiary in an involuntary case or proceeding under any applicable
Federal or state bankruptcy, insolvency, reorganization or other similar law or
(B) a decree or order adjudging the Company, Allied or any Restricted Subsidiary
a bankrupt or insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjustment or composition of or in respect of the
Company, Allied or any Restricted Subsidiary under any applicable Federal or
state law, or appointing a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company, Allied or any Restricted
Subsidiary or of any substantial part of the property of the Company, Allied or
any Restricted Subsidiary, or ordering the winding up or liquidation of the
affairs of the Company, Allied or any Restricted Subsidiary, and the continuance
of any such decree or order for relief or any such other decree or order
unstayed and in effect for a period of 60 consecutive days; or
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(h) the commencement by the Company, Allied or any Restricted
Subsidiary of a voluntary case or proceeding under any applicable Federal or
state bankruptcy, insolvency, reorganization or other similar law or of any
other case or proceeding to be adjudicated a bankrupt or insolvent, or the
consent by the Company, Allied or any Restricted Subsidiary to the entry of a
decree or order for relief in respect of the Company, Allied or any Restricted
Subsidiary in an involuntary case or proceeding under any applicable Federal or
state bankruptcy, insolvency, reorganization or other similar law or to the
commencement of any bankruptcy or insolvency case or proceeding against the
Company, Allied or any Restricted Subsidiary or the filing by the Company,
Allied or any Restricted Subsidiary of a petition or answer or consent seeking
reorganization or relief under any applicable Federal or state law, or the
consent by the Company, Allied or any Restricted Subsidiary to the filing of
such a petition or to the appointment of or taking possession by a custodian,
receiver, liquidator, assignee, trustee, sequestrator or similar official of the
Company, Allied or any Restricted Subsidiary or of any substantial part of the
property of the Company, Allied or any Restricted Subsidiary, or the making by
the Company, Allied or any Restricted Subsidiary of an assignment for the
benefit of creditors, or the admission by the Company, Allied or any Restricted
Subsidiary in writing of its inability to pay its debts generally as they become
due, or the taking of corporate action by the Company, Allied or any Restricted
Subsidiary in furtherance of any such action; or
(i) any other Event of Default provided as contemplated by
Section 3.1 with respect to Securities of that series.
Section 5.2. Acceleration; Rescission and Annulment. If an
Event of Default with respect to the Securities of any series at the time
Outstanding (other than an Event of Default specified in clause (g) or (h) of
Section 5.1) occurs and is continuing, the Trustee or the Holders of at least
25% in aggregate principal amount of all of the Outstanding Securities of that
series, by written notice received by the Company (and, if given by the Holders,
received by the Trustee), may declare the principal (or, if the Securities of
that series are Original Issue Discount Securities or Indexed Securities, such
portion of the principal amount as may be specified in the terms of that series)
of, premium, if any, and accrued interest, if any, on all the Securities of that
series to be due and payable and upon any such declaration such principal (or,
in the case of Original Issue Discount Securities or Indexed Securities, such
specified amount), premium, if any, and interest, if any, shall be immediately
due and payable. If an Event of Default specified in clause (g) or (h) of
Section 5.1 with respect to the Securities of any series at the time Outstanding
occurs and is continuing, then the principal (or, if the Securities of that
series are Original Issue Discount Securities or Indexed Securities, such
portion of the principal amount as may be specified in the terms of that series)
of, premium, if any, and accrued interest, if any, on all the Securities of that
series shall be immediately due
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and payable without any declaration or act on the part of the Trustee or any
Holder of such Securities.
At any time after such a declaration of acceleration has been
made and before a judgment or decree for payment of the money due has been
obtained by the Trustee as hereinafter in this Article provided, the Holders of
not less than a majority in aggregate 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 or any of the Guarantors 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 borne by the Securities of that series,
(C) to the extent that payment of such interest is
lawful, interest upon overdue interest at the rate provided
therefor in the Securities of that series, and
(D) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel;
and
(2) all Events of Default, other than the nonpayment of the
principal of Securities of that series which have become due solely by such
declaration of acceleration, have been cured or waived as provided in Section
5.7.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Section 5.3. Collection of Indebtedness and Suits for
Enforcement by Trustee. The Company agrees that if
(a) default is made in the payment of any interest on any
Security or interest coupon, if any, when such interest becomes due and
payable and such default continues for a period of 30 days, or
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(b) 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 or interest coupons, if any, the whole amount then
due and payable on such Securities for principal, premium, if any, and interest
and, to the extent that payment of such interest shall be legally enforceable,
interest on any overdue principal, premium, if any, and on any overdue interest,
at the rate or rates prescribed therefor in such Securities or interest coupons,
if any, and, in addition thereto, such further amount as shall be sufficient to
cover the costs and expenses of collection, including all amounts due the
Trustee, its agents and counsel under Section 6.7.
If the Company or any Guarantor fails to pay such amounts
forthwith upon such demand, the Trustee, in its own name and as trustee of an
express trust, may institute a judicial proceeding for the collection of the
sums so due and unpaid and may prosecute such proceeding to judgment or final
decree, and may enforce the same against the Company, any Guarantor, or any
other obligor upon the Securities and collect the moneys adjudged or decreed to
be payable in the manner provided by law out of the property of the Company, any
Guarantor or any other obligor upon the 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 agreement in this Indenture or in aid of the exercise of any
power granted herein, or to secure any other proper remedy, subject, however, to
Section 5.8.
Section 5.4. Trustee May File Proofs of Claim. In case of any
judicial proceeding relative to the Company (or any Guarantor or any other
obligor upon the Securities), its property or its creditors (or of any Guarantor
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 6.7.
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No provision of this Indenture shall be deemed to authorize
the Trustee to authorize or consent to or accept or adopt on behalf of any
Holder of a Security or interest coupon any plan of reorganization, arrangement,
adjustment or composition affecting the Securities or the rights of any Holder
of a Security or interest coupon thereof or to authorize the Trustee to vote in
respect of the claim of any Holder of a Security or interest coupon 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 5.5. Trustee May Enforce Claims Without Possession of
Securities. All rights of action and claims under this Indenture or the
Securities or any Senior Guarantee may be prosecuted and enforced by the Trustee
without the possession of any of the Securities or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the Trustee
shall be brought in its own name as trustee of an express trust, and any
recovery of judgment shall, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, be for the ratable benefit of the Holders of the Securities in
respect of which such judgment has been recovered.
Section 5.6. Delay or Omission Not Waiver. No delay or
omission by the Trustee or any Holder of any Securities to exercise any right or
remedy accruing upon an Event of Default shall impair any such right or remedy
or constitute a waiver of or acquiescence in any such Event of Default.
Section 5.7. Waiver of Past Defaults. The Holders of not less
than a majority in aggregate principal amount of Outstanding Securities of any
series by written notice to the Trustee may waive on behalf of the Holders of
all Securities of such series and any interest coupons appertaining thereto a
past Default or Event of Default with respect to that series and its
consequences except a Default or Event of Default (i) in the payment of the
principal of, premium, if any, or interest on any Security of such series or any
interest coupon appertaining thereto or (ii) in respect of an agreement or
provision hereof which pursuant to Article 8 cannot be amended or modified
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 5.8. Control by Majority. The Holders of not less than
a majority in aggregate principal amount of the Outstanding Securities of each
series affected (with each such series voting as a class) shall have the right
to direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee or exercising any trust or power conferred on it with
respect to Securities of that series; provided, however,
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that (i) the Trustee may refuse to follow any direction that conflicts with any
governmental rule or law or this Indenture, (ii) the Trustee may refuse to
follow any direction that is unduly prejudicial to the rights of the Holders of
Securities of such series not consenting, or that would in the good faith
judgment of the Trustee have a substantial likelihood of involving the Trustee
in personal liability without adequate indemnity having been offered therefor
and (iii) subject to Section 6.1, the Trustee may take any other action deemed
proper by the Trustee which is not inconsistent with such direction.
Section 5.9. Limitation on Suits by Holders. No Holder of any
Security of any series or any interest coupons appertaining thereto shall have
any right to institute any proceeding, judicial or otherwise, with respect to
this Indenture, or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless:
(a) the Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the Securities
of that series;
(b) the Holders of at least 25% in aggregate principal amount
of the Outstanding Securities of that series have made a written
request to the Trustee to institute proceedings in respect of such
Event of Default in its own name as Trustee hereunder;
(c) such Holder or Holders have offered to the Trustee
indemnity satisfactory to the Trustee against any loss, liability or
expense to be, or which may be, incurred by the Trustee in pursuing the
remedy;
(d) the Trustee for 60 days after its receipt of such notice,
request and the offer of indemnity has failed to institute any such
proceedings; and
(e) during such 60-day period, the Holders of a majority in
aggregate principal amount of the Outstanding Securities of that series
have not given to the Trustee a direction inconsistent with such
written request;
provided, however, that the limitations contained in (a)
through (e) of this Section do not apply to any suit by a Holder of any
Security for enforcement of payment of the principal of (and premium,
if any) or interest on such Security on or after the respective due
date expressed in such Security.
No one or more Holders of Securities of a series shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such
Holders.
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Section 5.10. Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, but subject to Section
9.2, each of the right of any Holder of a Security or interest coupon to receive
payment of principal of, premium, if any, and, subject to Sections 3.5 and 3.7,
interest on the Security, on or after the respective due dates expressed in the
Security (or, in case of redemption or a required repurchase by the Company
under the terms of the relevant Securities, on the Redemption Dates or specified
repurchase dates), the right of any Holder of an interest coupon to receive
payment of interest due as provided in such interest coupon, or to bring suit
for the enforcement of any such payment on or after such respective dates, and
the right, if any, to convert or exchange such Security in accordance with
Article 14, is unconditional and shall not be impaired or affected without the
consent of such Holder.
Section 5.11. Application of Money Collected. If the Trustee
collects any money pursuant to this Article, it shall pay out the money in the
following order, at the date or dates fixed by the Trustee and, in case of the
distribution of such money on account of principal, premium, if any, or
interest, upon presentation of the Securities and interest coupons, if any, and
the notation thereon of the payment if only partially paid and upon surrender
thereof if fully paid:
First: to the Trustee for amounts due under Section 6.7;
Second: to Holders of Securities and interest coupons in
respect of which or for the benefit of which such money has been
collected for amounts due and unpaid on such Securities for principal
of, premium, if any, and interest, ratably, without preference or
priority of any kind, according to the amounts due and payable on such
Securities for principal, premium, if any, and interest, respectively;
and
Third: the balance, if any, to the Company.
The Holders of each series of Securities denominated in ECU,
any other currency unit or a Foreign Currency and any matured interest coupons
relating thereto shall be entitled to receive a ratable portion of the amount
determined by the Trustee by converting the principal amount Outstanding of such
series of Securities and matured but unpaid interest on such series of
Securities in the currency in which such series of Securities is denominated
into Dollars at the Market Exchange Rate as of the date of declaration of
acceleration of Maturity of the Securities (or, if the default consists of a
failure to pay the principal of such Securities on the Stated Maturity thereof,
as of the Stated Maturity date).
The Trustee may fix a record date and payment date for any
payment to Holders pursuant to this Section 5.11. At least 15 days before such
record date, the
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Trustee shall mail to each Holder and the Company a notice that states the
record date, the payment date and the amount to be paid.
Section 5.12. Restoration of Rights and Remedies. If the
Trustee or any Holder has instituted any proceeding to enforce any right or
remedy under this Indenture and such proceeding has been discontinued or
abandoned for any reason, or has been determined adversely to the Trustee or to
such Holder, then and in every such case, subject to any determination in such
proceeding, the Company, the Trustee and the Holders shall be restored severally
and respectively to their former positions hereunder and thereafter all rights
and remedies of the Trustee and the Holders shall continue as though no such
proceeding had been instituted.
Section 5.13. 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 3.6, no
right or remedy herein conferred upon or reserved to the Trustee or 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 5.14. Undertaking for Costs. In any suit for the
enforcement of any right or remedy under this Indenture, or in any suit against
the Trustee for any action taken, suffered or omitted by it as Trustee, a court
may require any party litigant in such suit to file an undertaking to pay the
costs of such suit, and may assess costs against any such party litigant, in the
manner and to the extent provided in the Trust Indenture Act; provided, however,
that neither this Section nor the Trust Indenture Act shall be deemed to
authorize any court to require such an undertaking or to make such an assessment
in any suit instituted by the Company or any Guarantor, any Guarantor, the
Trustee or any Holder, or group of Holders, holding in the aggregate at least
10% in principal amount of the Outstanding Securities of the relevant series or
in any suit instituted by any Holder for the enforcement of principal of,
premium, if any, or interest on any Security on or after the respective Stated
Maturities expressed in such Security (or, in the case of redemption or any
required repurchase by the Company, on or after the Redemption Date or specified
repurchase date).
Section 5.15. Waiver of Stay, Extension or Usury Laws. Each of
the Company and the Guarantors agrees (to the extent that it may lawfully do so)
that it will not at any time insist upon, or plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay or extension law or any
usury or other law wherever enacted, now or at any time hereafter in force,
which would prohibit or forgive the
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Company from paying all or any portion of the principal of, and premium, if any,
or interest on the Securities contemplated herein or in the Securities or which
may affect the agreements or the performance of this Indenture or prohibit or
forgive any Guarantor from performance under its Senior Guarantee; and each of
the Company and the Guarantors (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law, and agrees that it
will not hinder, delay or impede the execution of any power herein granted to
the Trustee, but will suffer and permit the execution of every such power as
though no such law had been enacted.
ARTICLE 6
THE TRUSTEE
Section 6.1. Certain Duties and Responsibilities. The duties
and responsibilities of the Trustee shall be as provided by the Trust Indenture
Act. 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.
Section 6.2. 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 5.1(d) with respect to Securities of such
series, no such notice to Holders shall be given until at least 30 days after
the occurrence thereof.
Section 6.3. Certain Rights of Trustee. Subject to the
provisions of Section 6.1:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, 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
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resolution of the Board of Directors shall 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;
(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; and
(h) except with respect to Section 9.1, the Trustee shall have
no duty to inquire as to the performance by the Company or any
Guarantor of the agreements set forth in Article 9 beyond its good
faith review of any certificates or other notices received by it from
the Company or any Guarantor.
Section 6.4. Not Responsible for Recitals or Issuance of
Securities. The recitals contained herein and in the Securities and in the
Senior Guarantees endorsed thereon, except the Trustee's certificates of
authentication, shall be taken as the statements of the Company or the
Guarantors, as the case may be, and neither the Trustee nor any
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Authenticating Agent assumes any responsibility for their correctness. The
Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Securities or the Senior Guarantees endorsed thereon.
Neither the Trustee nor any Authenticating Agent shall be accountable for the
use or application by the Company of Securities or the proceeds thereof.
Section 6.5. May Hold Securities. The Trustee, any
Authenticating Agent, any Paying Agent, any Security Registrar or any other
agent of the Company, any Guarantor or the Trustee, in its individual or any
other capacity, may become the owner or pledgee of Securities and, subject to
the definition of "Outstanding" set forth in Section 1.1 and subject to Sections
6.8 and 6.13, may otherwise deal with the Company, any Guarantor and any other
obligor upon the Securities and the Senior Guarantees with the same rights it
would have if it were not Trustee, Authenticating Agent, Paying Agent, Security
Registrar or such other agent.
Section 6.6. 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 or by the provisions of this Indenture. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed with the Company or any Guarantor, as the case may be.
Section 6.7. Compensation and Reimbursement. The Company
agrees
(a) 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);
(b) 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
(c) to indemnify the Trustee for, and to hold it 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 itself against any claim
or liability in connection with the exercise or performance of any of
its powers or duties hereunder.
Section 6.8. Conflicting Interests. If the Trustee has or
shall acquire a conflicting interest within the meaning of the Trust Indenture
Act, the Trustee shall either
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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. To
the extent permitted by such Act, the Trustee shall not be deemed to have a
conflicting interest by virtue of being a trustee under this Indenture with
respect to Securities of more than one series or a trustee under (i) the
Indenture dated as of May 15, 1997 between Allied and the Trustee relating to
the Allied's 11.30% Senior Discount Notes Due 2007, (ii) the Indenture dated as
of December 1, 1996 by and among the Company, Allied, as guarantor, the
Subsidiary Guarantors named therein and the Trustee relating to the Company's 10
1/4% Senior Subordinated Notes due 2006, or (iii) any other indenture specified
in (A) a Board Resolution, (B) an action taken pursuant to a Board Resolution
and (subject to Section 3.3) set forth in an Officers' Certificate or (C) one or
more indentures supplemental hereto.
Section 6.9. 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, has a combined
capital and surplus of at least $25,000,000 and has its Corporate Trust Office
located in the Borough of Manhattan, The City of New York. If such Person
publishes reports of condition at least annually, pursuant to law or to the
requirements of its 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 6.10. Resignation and Removal; Appointment of
Successor. 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 6.11.
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 6.11 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.
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.
If at any time:
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(a) the Trustee shall fail to comply with Section 6.8 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
(b) the Trustee shall cease to be eligible under Section 6.9
and shall fail to resign after written request therefor by the Company
or by any such Holder, or
(c) 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, (1) the Company by a Board Resolution may remove the
Trustee with respect to all Securities, or (2) subject to Section 5.14, any
Holder who has been a bona fide Holder of a Security for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees.
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 6.11. 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
6.11, 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 6.11, any Holder who has been a bona fide Holder of a
Security of such series for at least six months may, on behalf of himself 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. 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
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Securities of such series in the manner provided in Section 1.6. Each notice
shall include the name of the successor Trustee with respect to the Securities
of such series and the address of its Corporate Trust Office.
Section 6.11. Acceptance of Appointment by Successor. 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, the Guarantors 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.
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 Guarantors 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
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, (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, any Guarantor or any
successor Trustee, such retiring Trustee shall duly assign, transfer and deliver
to such successor Trustee all property and money held by such
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retiring Trustee hereunder with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates.
Upon request of any such successor Trustee, the Company and
the Guarantors 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 the first or second preceding paragraph, as the
case may be.
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 6.12. 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 6.13. Preferential Collection of Claims Against
Company. If and when the Trustee shall be or become a creditor of the Company or
any Guarantor (or any other obligor upon the Securities or the Senior Guarantees
endorsed thereon), the Trustee shall be subject to the provisions of the Trust
Indenture Act regarding the collection of claims against the Company (or any
Guarantor or any such other obligor).
Section 6.14. 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 3.6, and Securities so authenticated and the Senior Guarantees endorsed
thereon 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
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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, 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 give notice of such
appointment in the manner provided in Section 1.6 to all Holders of Securities
of the series with respect to which such Authenticating Agent will serve. 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 6.7.
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
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Trustee's certificate of authentication, an alternative certificate of
authentication in the following form:
This is one of the Securities with the Senior Guarantees
endorsed thereon of the series designated therein referred to in the
within-mentioned Indenture.
----------------------------------,
As Trustee
By:
-------------------------------,
As Authenticating Agent
By:
--------------------------------
Authorized Signatory
ARTICLE 7
CONSOLIDATION, MERGER OR SALE OF ASSETS BY THE COMPANY
Section 7.1. Consolidation, Merger or Sale of Assets
Permitted. The Company (a) shall not consolidate with or merge into any Person;
(b) shall not permit any Person other than a Restricted Subsidiary to
consolidate with or merge into the Company or; (c) shall not, directly or
indirectly, in one or a series of transactions, transfer, convey, sell, lease or
otherwise dispose of all or substantially all of the properties and assets of
the Company and its Subsidiaries on a consolidated basis; unless in any such
transaction (or series) contemplated by Clause (a), (b) or (c) above:
(a) in case the Company shall consolidate with or merge into
another Person or shall directly or indirectly, in one or a series of
transactions, transfer, convey, sell, lease or otherwise dispose of all
or substantially all of its properties and assets as an entirety, the
Person formed by such consolidation or into which the Company is merged
or the Person which acquires by transfer, conveyance, sale, lease or
other disposition all or substantially all of the properties and assets
of the Company and its Subsidiaries on a consolidated basis (for
purposes of this Article 7, a "Successor Company") shall be a
corporation, partnership, limited liability company or trust, shall be
organized and validly existing under the laws of the United States of
America, any State thereof or the District of Columbia and shall
expressly assume by an indenture supplemental hereto executed and
delivered to the Trustee, in form satisfactory to the Trustee, the due
and punctual payment of the principal of, premium, if any, and interest
on all the Securities and
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the performance of every agreement of this Indenture on the part of the
Company to be performed or observed;
(b) immediately after giving effect to such consolidation,
merger, sale, transfer, lease or other disposition, no Default or Event
of Default shall have occurred and be continuing; and
(c) with respect to any series of Securities, the Company
satisfies such other conditions, if any, established with respect to
such series of Securities pursuant to and in accordance with Section
3.1.
The Company shall deliver to the Trustee prior to the proposed
consolidation, merger, sale, transfer, lease or other disposition an Officers'
Certificate to the foregoing effect and an Opinion of Counsel stating that the
proposed consolidation, merger, sale, transfer, lease or other disposition and
such supplemental indenture comply with this Indenture and that all conditions
precedent to the consummation of such transaction under this Section 7.1 have
been met.
Section 7.2. Successor Substituted.
Upon any consolidation of the Company with, or merger of the
Company into, any other Person or any transfer, conveyance, sale, lease or other
disposition of all or substantially all of the properties and assets of the
Company and its Subsidiaries on a consolidated basis, in each case in accordance
with Section 7.1, the Successor Company shall succeed to, and be substituted
for, and may exercise every right and power of, the Company under this Indenture
and under the Securities and any interest coupons appertaining thereto with the
same effect as if such Successor Company had been named as the Company herein,
and thereafter, except in the case of a lease, the predecessor Person (if still
in existence) shall be relieved of all obligations and agreements under this
Indenture and the Securities and any interest coupons appertaining thereto.
ARTICLE 8
SUPPLEMENTAL INDENTURES
Section 8.1. Supplemental Indentures Without Consent of
Holders. Without the consent of any Holders, the Company, the Guarantors and the
Trustee, at any time and from time to time, may enter into indentures
supplemental hereto, in form reasonably satisfactory to the Trustee, for any of
the following purposes:
(a) to evidence the succession of another Person to the
Company and the assumption by any such successor of the agreements and
obligations of the Company or any Guarantor herein and in the
Securities and any interest coupons appertaining thereto; or
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(b) to add to the agreements of the Company for the benefit of
the Holders of all or any series of Securities (and if such agreements
are to be for the benefit of less than all series of Securities,
stating that such agreements are expressly being included solely for
the benefit of such series) or to surrender any right or power herein
conferred upon the Company; or
(c) to add any additional Events of Default with respect to
all or any series of Securities; or
(d) to add to or change any of the provisions of this
Indenture to such extent as shall be necessary to facilitate the
issuance or administration of Bearer Securities (including, without
limitation, to provide that Bearer Securities may be registrable as to
principal only) or to facilitate the issuance or administration of
Global Securities; or
(e) to change or eliminate any of the provisions of this
Indenture in respect of one or more series of Securities, provided that
any such change or elimination shall become effective only when there
is no Security Outstanding of any series created prior to the execution
of such supplemental indenture which is entitled to the benefit of such
provision; or
(f) to secure any series of Securities; or
(g) to establish the form or terms of Securities of any series
as permitted by Sections 2.1 and 3.1; or
(h) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one
or more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee,
pursuant to the requirements of Section 6.11; or
(i) if allowed without penalty under applicable laws and
regulations, to permit payment in the United States (including any of
the States thereof and the District of Columbia), its territories, its
possessions and other areas subject to its jurisdiction of principal
of, premium, if any, or interest, if any, on Bearer Securities or
interest coupons, if any; or
(j) 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 which shall not be inconsistent
with the provisions of this Indenture, provided such action
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shall not adversely affect in any material respect the interests of the
Holders of Securities of any series; or
(k) to make provision not adverse to the Holders of
Outstanding Securities of any series with respect to any conversion or
exchange rights of Holders pursuant to the requirements of Article 14,
including providing for the conversion or exchange of the Securities
into any Equity Securities of Allied; or
(l) to modify, eliminate or add to the provisions of this
Indenture to such extent as shall be necessary to effect the
qualification of this Indenture under the Trust Indenture Act or under
any similar federal statute subsequently enacted, and to add to this
Indenture such other provisions as may be expressly required under the
Trust Indenture Act.
Section 8.2. Supplemental Indentures With Consent of Holders.
With the consent of the Holders of not less than a majority of the aggregate
principal amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company, the
Company, the Guarantors and the Trustee may enter into an indenture or
indentures supplemental hereto to add any provisions to or to change in any
manner or eliminate any provisions of this Indenture or of any other indenture
supplemental hereto or to modify in any manner the rights of the Holders of
Securities of such series; provided, however, that without the consent of the
Holder of each Outstanding Security affected thereby, an amendment under this
Section may not:
(a) change the Stated Maturity of the principal of, or
premium, if any, on, or any installment of principal of or premium, if
any, 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 any required repurchase by the Company, or change
the manner in which the amount of any principal thereof or premium, if
any, or interest thereon is determined or reduce the amount of the
principal of any Original Issue Discount Security or Indexed Security
that would be due and payable upon a declaration of acceleration of the
Maturity thereof pursuant to Section 5.2, or change the currency or
currency unit in which any Securities or any premium or the interest
thereon is payable, or change the place of payment of principal of, or
premium, if any, or interest on, or any installment of principal of, or
premium, if any, or interest on, any Security, 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 or any required
repurchase of Securities by the Company, on or after the Redemption
Date or specified repurchase date);
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(b) 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 reduce the
requirements of Section 13.4 for quorum or voting;
(c) change any obligation of the Company to maintain an office
or agency in the places and for the purposes specified in Section 9.2;
(d) make any change that adversely affects any right to
convert or exchange any Security to which the provisions of Article 14
are applicable or, except as provided in this Indenture, decrease the
conversion or exchange rate or increase the conversion or exchange
price of any such Security; or
(e) make any change in this Section 8.2, Section 5.7 or
Section 9.6 except to increase any percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived
with the consent of the Holders of each Outstanding Security affected
thereby; provided, however, that this clause shall not be deemed to
require the consent of any Holder of a Security or coupon with respect
to changes in the references to "the Trustee" and concomitant changes
in this Section and Section 9.6 or the deletion of this proviso, in
accordance with the requirements of Section 6.11 and 8.1(h).
A supplemental indenture which changes or eliminates any
agreement 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 agreement or other provision, shall be deemed not to affect the rights
under this Indenture of the Holders of Securities of any other series.
It is not necessary under this Section 8.2 for the Holders to
consent to the particular form of any proposed supplemental indenture, but it is
sufficient if they consent to the substance thereof.
Section 8.3. Compliance with Trust Indenture Act. Every
amendment to this Indenture or the Securities of one or more series shall be set
forth in a supplemental indenture that complies with the Trust Indenture Act as
then in effect.
Section 8.4. Execution of Supplemental Indentures. In
executing, or accepting the additional trusts created by, any supplemental
indenture permitted by this Article or the modification thereby of the trusts
created by this Indenture, the Trustee shall be entitled to receive, and
(subject to Section 6.1) shall be fully protected in relying
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upon, an Officers' Certificate and 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 8.5. 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 and of any
interest coupon appertaining thereto shall be bound thereby.
Section 8.6. Reference in Securities to Supplemental
Indentures. Securities, including any interest coupons, 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
including any interest coupons of any series so modified as to conform, in the
opinion of the Company, to any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered by the Trustee in
exchange for Outstanding Securities including any interest coupons of such
series.
Section 8.7. Notice of Supplemental Indentures. Promptly after
the execution by the Company and the Trustee of any supplemental indenture
pursuant to the provisions of Section 8.2, the Company shall give notice thereof
to the Holders of each Outstanding Security affected, in the manner provided for
in Section 1.6, setting forth in general terms the substance of such
supplemental indenture. Any failure of the Company to give such notice, or any
defect therein, shall not, however, in any way impair or affect the validity of
any such supplemental indenture.
ARTICLE 9
AGREEMENTS
Section 9.1. Payment of Principal, Premium, if any, and
Interest. The Company agrees for the benefit of the Holders of each series of
Securities that it will duly and punctually pay the principal of, premium, if
any, and interest, together with additional amounts, if any, on the Securities
of that series in accordance with the terms of the Securities of such series,
any interest coupons appertaining thereto and this Indenture; provided, however,
that amounts properly withheld under the Internal Revenue Code of 1986, as
amended, by any Person from a payment to any Holder of Securities, after having
requested such Holder to provide applicable information that would allow such
Person to make such payment without withholding, shall be considered as having
been
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paid by the Company to such Holder for purposes of this Indenture. An
installment of principal, premium, if any, or interest shall be considered paid
on the date it is due if there shall have been sent to the Trustee or Paying
Agent by wire transfer, received by no later than the close of business on such
due date, or if the Trustee or Paying Agent otherwise holds, on that date money
designated for and sufficient to pay the installment.
Section 9.2. Maintenance of Office or Agency. Unless otherwise
specified as contemplated by Section 3.1, if Securities of a series are issued
as Registered Securities, the Company will maintain in each Place of Payment for
that 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 or conversion and where
notices and demands to or upon the Company or any Guarantor in respect of the
Securities or the Senior Guarantees of that series and this Indenture may be
served. Unless otherwise specified as contemplated by Section 3.1, if Securities
of a series are issuable as Bearer Securities, the Company will maintain (i)
subject to any laws or regulations applicable thereto, an office or agency in a
Place of Payment for that series which is located outside the United States
where Securities of that series and related interest coupons may be presented
and surrendered for payment; provided, however, that if the Securities of that
series are listed on The International Stock Exchange of the United Kingdom and
the Republic of Ireland Limited, the Luxembourg Stock Exchange or any other
stock exchange located outside the United States and such stock exchange shall
so require, the Company will maintain a Paying Agent for the Securities of that
series in London, Luxembourg or any other required city located outside the
United States, as the case may be, so long as the Securities of that series are
listed on such exchange, and (ii) subject to any laws or regulations applicable
thereto, an office or agency in a Place of Payment for that series which is
located outside the United States, where Securities of that series may be
surrendered for 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 any 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 and each Guarantor hereby appoints the Trustee as its
agent to receive all such presentations, surrenders, notices and demands.
Unless otherwise specified as contemplated by Section 3.1, no
payment of principal, premium or interest on Bearer Securities shall be made at
any office or agency of the Company in the United States, by check mailed to any
address in the United States, by transfer to an account located in the United
States or upon presentation or surrender in the United States of a Bearer
Security or interest coupon for payment, even if the payment
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would be credited to an account located outside the United States; provided,
however, that, if the Securities of a series are denominated and payable in
Dollars, payment of principal of and any premium or interest on any such Bearer
Security shall be made at the office of the Company's Paying Agent in the
Borough of Manhattan, The City of New York, if (but only if) payment in Dollars
of the full amount of such principal, premium or interest, as the case may be,
at all offices or agencies outside the United States maintained for the purpose
by the Company in accordance with this Indenture is illegal or effectively
precluded by exchange controls or other similar restrictions.
Unless otherwise specified as contemplated by Section 3.1, the
Company may also from time to time designate one or more other offices or
agencies where the Securities (including any interest coupons, if any) 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 (including any interest coupons, if any) 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.
Unless otherwise specified as contemplated by Section 3.1, the
Trustee shall initially serve as Paying Agent.
Section 9.3. Money for Securities Payments to Be Held in
Trust; Unclaimed Money. If the Company shall at any time act as its own Paying
Agent with respect to any series of Securities and any interest coupons
appertaining thereto, it will, on or before each due date of the principal of,
premium, if any, 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, premium, if any, or 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 in writing of its action or
failure so to act.
Whenever the Company shall have one or more Paying Agents for
any series of Securities and any interest coupons appertaining thereto, it will,
prior to each due date of the principal of or any premium or interest on 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
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Paying Agent shall agree with the Trustee, subject to the provisions of this
Section, that such Paying Agent will:
(a) comply with the provisions of the Trust Indenture Act
applicable to it as a Paying Agent;
(b) hold all sums held by it for the payment of the principal
of, premium, if any, or interest on Securities of that series in trust
for the benefit of the Persons entitled thereto until such sums shall
be paid to such Persons or otherwise disposed of as herein provided;
(c) give the Trustee notice of any default by the Company (or
any other obligor upon the Securities of that series) in the making of
any payment of principal, premium, if any, or interest on the
Securities of that series; and
(d) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the Trustee
all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
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 terms set forth in this Indenture; 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 any principal of or
premium or interest on any Security of any series and remaining unclaimed for
two years after such principal, premium, if any, 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
and interest coupon, if any, shall thereafter, as an unsecured general creditor,
look only to the Company for 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 in the name and at the expense of the Company cause to be published once, in
an Authorized Newspaper in each Place of Payment with respect to such series, or
cause to be mailed to such Holder, 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.
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Section 9.4. Corporate Existence. Subject to Article 7, the
Company will at all times do or cause to be done all things necessary to
preserve and keep in full force and effect its corporate existence and its
rights and franchises; provided that nothing in this Section 9.4 shall prevent
the abandonment or termination of any right or franchise of the Company if it
shall be determined that such abandonment or termination is desirable in the
conduct of the business of the Company.
Section 9.5. Annual Review Certificate. The Company agrees to
deliver to the Trustee, within 90 days after the end of each fiscal year of the
Company, a certificate from the principal executive officer, principal financial
officer, treasurer or principal accounting officer of the Company stating that a
review of the activities of the Company during such year and of performance
under this Indenture has been made under his or her supervision and to the best
of his or her knowledge, based on such review, each of the Company and the
Guarantors has fulfilled all of its obligations under this Indenture throughout
such year, or, if there has been a default in the fulfillment of any such
obligation, specifying each such default known to him or her and the nature and
status thereof. For purposes of this Section 9.5, such compliance shall be
determined without regard to any period of grace or requirement of notice
provided under this Indenture.
The Company shall deliver to the Trustee, as soon as possible
and in any event within 30 days after the Company becomes aware of the
occurrence of an Event of Default or an event which, with notice or the lapse of
time or both, would constitute an Event of Default, an Officers' Certificate
setting forth the details of such Event of Default or Default, and the action
which the Company proposes to take with respect thereto.
Section 9.6. Maintenance of Properties. The Company will cause
all properties used or useful in the conduct of its business or the business of
any Subsidiary to be maintained and kept in good condition, repair and working
order, normal wear and tear excepted, 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 9.6 shall prevent the Company from discontinuing the
operation or maintenance of any of such properties, or disposing of any of them,
if such discontinuance or disposition is, in the judgment of the Company,
desirable in the conduct of its business or the business of any Subsidiary.
Section 9.7. Payments 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,
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might by law become a material 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 9.8. Waiver of Certain Agreements. Except as otherwise
specified as contemplated by Section 3.1 for Securities of such series, the
Company or any Guarantor may, with respect to the Securities of any series, omit
in any particular instance to comply with any term, provision or condition set
forth in any agreement provided pursuant to Section 3.1(b)(15), 8.1(b) or 8.1(g)
for the benefit of the Holders of such 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 in
accordance with Section 1.4, 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 each of the Guarantors and the duties of the
Trustee in respect of any such term, provision or condition shall remain in full
force and effect.
ARTICLE 10
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 10.1. 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 more than 15 days after each Regular
Record Date for any series, a list, in such form as the Trustee may reasonably
require, of the names and addresses of the Holders of Registered Securities of
such series as of such Regular Record Date; 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 for any or all series as of a date not more than 15
days prior to the time such list is furnished;
excluding from any such list names and addresses possessed by the Trustee in its
capacity as Registrar.
Section 10.2. 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 of Registered Securities
contained in the most recent list
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furnished to the Trustee as provided in Section 10.1 and the names and addresses
of Holders of Registered Securities received by the Trustee in its capacity as
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 10.1 upon receipt of a new list so furnished.
(b) The rights of Holders of Securities 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 in the Trust Indenture Act.
(c) Every Holder of Securities and interest coupons
appertaining thereto, by receiving and holding the same, agrees with the Company
and the Trustee that neither the Company, the Guarantors nor the Trustee nor any
agent of any of them shall be held accountable by reason of the disclosure of
information as to the names and addresses of the Holders of Securities made
pursuant to the Trust Indenture Act.
Section 10.3. Reports by Trustee. (a) The Trustee shall
transmit to Holders of Securities 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.
(b) Reports so required to be transmitted at stated intervals
of not more than 12 months shall be transmitted no later than July 15 in each
calendar year, commencing with the first July 15 after the first issuance of
Securities under this Indenture.
(c) A copy of each such report shall, at the time of such
transmission to Holders of Securities, be filed by the Trustee with each stock
exchange upon which the Securities of any series may then be listed and also
with the Commission. The Company will notify the Trustee whenever the Securities
of any series are listed on any stock exchange.
Section 10.4. Reports by the Company and the Guarantors. The
Company and each of the Guarantors shall file with the Trustee and the
Commission, and transmit to the 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. Notwithstanding anything contrary herein, the Trustee shall
have no duty to review such documents for purposes of determining compliance
with any provisions of this Indenture.
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ARTICLE 11
REDEMPTION
Section 11.1. Applicability of Article. Securities (including
interest coupons, if any) 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 3.1 for Securities of any series)
in accordance with this Article.
Section 11.2. Election to Redeem; Notice to Trustee. The election of
the Company to redeem any Securities, including interest coupons, if any, that,
at the time of such election, may be redeemed at the option of the Company,
shall be evidenced by a Board Resolution. In the case of any such redemption at
the election of the Company of less than all the Securities or interest coupons,
if any, of any series, the Company shall, at least 45 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 (i) prior to the expiration of any restriction on such redemption
provided in the terms of such Securities or elsewhere in this Indenture or (ii)
pursuant to an election of the Company which is subject to a condition specified
in the terms of such Securities, the Company shall furnish the Trustee with an
Officers' Certificate evidencing compliance with such restriction or condition.
Section 11.3. Selection of Securities to Be Redeemed. Unless
otherwise specified as contemplated by Section 3.1, if less than all the
Securities (including interest coupons, if any) of a series with the same terms
are to be redeemed, the Trustee, not more than 60 days prior to the Redemption
Date, shall select the Securities of the series to be redeemed in such manner as
the Trustee shall deem fair and appropriate. The Trustee shall make the
selection from Securities of the series that are Outstanding and that have not
previously been called for redemption and may provide for the selection for
redemption of portions (equal to the minimum authorized denomination for
Securities, including interest coupons, if any, of that series or any integral
multiple thereof) of the principal amount of Securities, including interest
coupons, if any, of such series of a denomination larger than the minimum
authorized denomination for Securities of that series, provided, that the
unredeemed portion of the principal amount of any Security shall be in an
authorized denomination (which shall not be less than the minimum authorized
denomination) for such Security. The Trustee shall promptly notify the Company
in writing of the Securities selected by the Trustee for redemption and, in the
case of any Securities selected for partial redemption, the principal amount
thereof to be redeemed. If the Company shall so direct, Securities registered in
the name of the Company, any Guarantor, any Affiliate or any Subsidiary of the
Company or any Guarantor shall not be included in the Securities selected for
redemption.
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For purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities (including
interest coupons, if any) shall relate, in the case of any Securities (including
interest coupons, if any) redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities (including interest coupons,
if any) which has been or is to be redeemed.
If any Security that is convertible or exchangeable is selected for
partial redemption and is converted or exchanged in part before termination of
the conversion or exchange right with respect to the portion of the Security so
selected, the converted or exchanged portion of such Security shall be deemed
(so far as applicable) to be the portion selected for redemption. Securities
which have been converted or exchanged during a selection of Securities to be
redeemed shall be treated by the Trustee as Outstanding for the purposes of such
selection.
Section 11.4. Notice of Redemption. Unless otherwise specified as
contemplated by Section 3.1, notice of redemption shall be given in the manner
provided in Section 1.6 not less than 30 days nor more than 60 days prior to the
Redemption Date to the Holders of the Securities to be redeemed.
All notices of redemption shall state:
(a) the Redemption Date;
(b) the Redemption Price;
(c) if less than all the Outstanding Securities of a series are to
be redeemed, the identification (and, in the case of partial redemption,
the principal amounts) of the particular Security or Securities to be
redeemed;
(d) the Place or Places of Payment where such Securities, together
in the case of Bearer Securities with all interest coupons appertaining
thereto, if any, maturing on or after the Redemption Date, are to be
surrendered for payment of the Redemption Price;
(e) that Securities of the series called for redemption and all
unmatured interest coupons, if any, appertaining thereto must be
surrendered to the Paying Agent to collect the Redemption Price;
(f) that, on the Redemption Date, the Redemption Price will become
due and payable upon each such Security, or the portion thereof, to be
redeemed and, if applicable, that interest thereon will cease to accrue on
and after said date;
(g) that the redemption is from a sinking fund, if such is the case;
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(h) that, unless otherwise specified in such notice, Bearer
Securities of any series, if any, surrendered for redemption must be
accompanied by all interest coupons maturing subsequent to the Redemption
Date or the amount of any such missing interest coupon or interest coupons
will be deducted from the Redemption Price, unless security or indemnity
satisfactory to the Company, the Trustee and any Paying Agent is
furnished;
(i) the CUSIP number, if any, of the Securities;
(j) if applicable, the conversion or exchange price, the date on
which the right to convert or exchange the Securities (or portions thereof
to be redeemed) will terminate and the place or places where such
Securities may be surrendered for conversion or exchange; and
(k) the procedures that a Holder must follow to surrender the
Securities so to be redeemed.
Notice of redemption of Securities to be redeemed 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.
Section 11.5. Deposit of Redemption Price. On or 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 9.3) an amount of money in the currency or
currencies (including currency unit or units) in which the Securities of such
series are payable (except as otherwise specified pursuant to Section 3.1 for
the Securities of such series) sufficient to pay on the Redemption Date the
Redemption Price of, and (unless the Redemption Date shall be an Interest
Payment Date) interest accrued to the Redemption Date on, all Securities or
portions thereof which are to be redeemed on that date.
Unless any Security by its terms prohibits any redemption obligation
from being satisfied by delivering and crediting Securities (including
Securities redeemed otherwise than through a sinking fund), the Company may
deliver such Securities to the Trustee for crediting of an amount equal to the
then applicable Redemption Price for such Securities against such payment
obligation in accordance with the terms of such Securities and this Indenture.
Section 11.6. 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 and the interest coupons for any such
interest appertaining to any Bearer Security so to be
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redeemed, except to the extent provided below, shall be void. Except as provided
in the next succeeding paragraph, upon surrender of any such Security, including
interest coupons, if any, 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 installments of
interest on Bearer Securities whose Stated Maturity is on or prior to the
Redemption Date shall be payable only at an office or agency located outside the
United States and its possessions (except as otherwise provided in Section 9.2)
and, unless otherwise specified as contemplated by Section 3.1, only upon
presentation and surrender of interest coupons for such interest; and provided
further, that, unless otherwise specified as contemplated by Section 3.1,
installments of interest on Registered Securities that are due and payable on
Interest Payment Dates that are 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 Regular
Record Dates according to their terms and the provisions of Section 3.7.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant interest coupons maturing after the Redemption
Date, such Bearer Security may be paid after deducting from the Redemption Price
an amount equal to the face amount of all such missing interest coupons, or the
surrender of such missing interest coupon or interest coupons may be waived by
the Company and the Trustee if there be furnished to them such security or
indemnity as they may require to save each of them and any Paying Agent
harmless. If thereafter the Holder of such Bearer Security shall surrender to
the Trustee or any Paying Agent any such missing interest coupon in respect of
which a deduction shall have been made from the Redemption Price, such Holder
shall be entitled to receive the amount so deducted; provided, however, that
interest represented by interest coupons shall be payable only at an office or
agency located outside of the United States (except as otherwise provided
pursuant to Section 9.2) and, unless otherwise specified as contemplated by
Section 3.1, only upon presentation and surrender of those interest coupons.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal and premium, if any, shall,
until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Security.
Section 11.7. Securities Redeemed in Part. Upon surrender of a
Security that is redeemed in part at any 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 his or her attorney duly authorized in writing), the
Company shall execute and the Trustee shall authenticate and deliver to the
Holder of that Security, without service charge, a new Security or Securities
(each with a Senior Guarantee of each Guarantor executed by each such Guarantor
and endorsed thereon) of the same series, having the same form, terms
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and Stated Maturity, in any authorized denomination equal in aggregate principal
amount to the unredeemed portion of the principal amount of the Security
surrendered.
ARTICLE 12
SINKING FUNDS
Section 12.1. Applicability of Article. The provisions of this
Article shall be applicable to any sinking fund for the retirement of Securities
of a series except as otherwise specified as contemplated by Section 3.1 for
Securities of such series.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory sinking
fund payment," and any payment in excess of such minimum amount provided for by
the terms of Securities of any series is herein referred to as an "optional
sinking fund payment." If provided for by the terms of Securities of any series,
the cash amount of any sinking fund payment may be subject to reduction as
provided in Section 12.2. Each sinking fund payment shall be applied to the
redemption of Securities of any series as provided for by the terms of
Securities of such series.
Section 12.2. Satisfaction of Sinking Fund Payments with Securities.
The Company (i) may deliver Outstanding Securities of a series (other than any
previously called for redemption) together, in the case of Bearer Securities of
such series, with all unmatured interest coupons appertaining thereto and (ii)
may apply as a credit Securities of a series which have been (x) redeemed either
at the election of the Company pursuant to the terms of such Securities or
through the application of permitted optional sinking fund payments pursuant to
the terms of such Securities, (y) converted or exchanged pursuant to Article 14
or (z) previously delivered to the Trustee and cancelled without reissuance
pursuant to Section 3.9, in each case in satisfaction of all or any part of any
sinking fund payment with respect to the Securities of such series required to
be made pursuant to the terms of such Securities as provided for by the terms of
such series; provided that such Securities have not been previously so credited.
Such Securities shall be received and credited for such purpose by the Trustee
at the Redemption Price specified in such Securities for redemption through
operation of the sinking fund and the amount of such sinking fund payment shall
be reduced accordingly.
Section 12.3. Redemption of Securities for Sinking Fund. Not less
than 45 days prior to each sinking fund payment date for any series of
Securities, the Company will deliver to the Trustee an Officers' Certificate
specifying the amount of the next ensuing sinking fund payment for that series
pursuant to the terms of that series, the portion thereof, if any, which is to
be satisfied by payment of cash and the portion thereof, if any, which is to be
satisfied by delivering and crediting Securities of that series pursuant to
Section 12.2 and stating the basis for such credit and that such Securities have
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not been previously so credited, and will also deliver to the Trustee any
Securities to be so delivered. Not less than 30 days before each such sinking
fund payment date the Trustee shall select the Securities to be redeemed upon
such sinking fund payment date in the manner specified in Section 11.3 and cause
notice of the redemption thereof to be given in the name of and at the expense
of the Company in the manner provided in Section 11.4. Such notice having been
duly given, the redemption of such Securities shall be made upon the terms and
in the manner stated in Sections 11.6 and 11.7.
ARTICLE 13
MEETINGS OF HOLDERS OF SECURITIES
Section 13.1. Purposes for Which Meetings May Be Called. A
meeting of Holders of Securities of any series may be called at any time and
from time to time pursuant to this Article to make, give or take any request,
demand, authorization, direction, notice, consent, election, waiver or other
action provided by this Indenture to be made, given or taken by Holders of
Securities of such series.
Section 13.2. Call, Notice and Place of Meetings. (a) The Trustee
may at any time call a meeting of Holders of Securities of any series for any
purpose specified in Section 13.1, to be held at such time and at such place in
The City of New York or in such other place as may be acceptable to the Company.
Notice of every meeting of Holders of Securities, setting forth the time and the
place of such meeting and in general terms the action proposed to be taken at
such meeting, shall be given, in the manner provided in Section 1.6, not less
than 20 nor more than 180 days prior to the date fixed for the meeting.
(b) In case at any time the Company, pursuant to a Board Resolution,
shall have requested the Trustee to call a meeting of the Holders of Securities
of any series for any purpose specified in Section 13.1, by written request
setting forth in reasonable detail the action proposed to be taken at the
meeting, and the Trustee shall not have made the first publication of the notice
of such meeting within 20 days after receipt of such request or shall not
thereafter proceed to cause the meeting to be held as provided herein, then the
Company may determine the time and the place in The City of New York or such
other place as may be acceptable to the Company for such meeting and may call
such meeting for such purposes by giving notice thereof as provided in paragraph
(a) of this Section 13.2.
Section 13.3. Persons Entitled to Vote at Meetings. To be entitled
to vote at any meeting of Holders of Securities of any series, a Person shall be
(a) a Holder of one or more Outstanding Securities of such series, or (b) a
Person appointed by an instrument in writing as proxy for a Holder or Holders of
one or more Outstanding Securities of such series by such Holder or Holders. The
only Persons who shall be entitled to be present or
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to speak at any meeting of Holders shall be the Persons entitled to vote at such
meeting and their counsel, any representatives of the Trustee and its counsel
and any representatives of the Company and its counsel.
Section 13.4. Quorum; Action. The Persons entitled to vote a
majority in principal amount of the Outstanding Securities of a series shall
constitute a quorum for a meeting of Holders of Securities of such series;
provided, however, that if any action is to be taken at such meeting with
respect to a consent or waiver which this Indenture expressly provides may be
given by the Holders of not less than a specified percentage in principal amount
of the Outstanding Securities of a series, the Persons entitled to vote such
specified percentage in principal amount of the Outstanding Securities of such
series shall constitute a quorum. In the absence of a quorum within 30 minutes
after the time appointed for any such meeting, the meeting may be adjourned for
a period of not less than 10 days as determined by the chairman of the meeting
prior to the adjournment of such meeting. In the absence of a quorum at the
reconvening of any such adjourned meeting, such adjourned meeting may be further
adjourned for a period of not less than 10 days; at the reconvening of any
meeting adjourned or further adjourned for lack of a quorum, the persons
entitled to vote 25% in aggregate principal amount of the then Outstanding
Securities of the relevant series shall constitute a quorum for the taking of
any action set forth in the notice of the original meeting. Notice of the
reconvening of any adjourned meeting shall be given as provided in Section
13.2(b), except that such notice need be given only once not less than five days
prior to the date on which the meeting is scheduled to be reconvened.
Except as limited by the proviso to Section 8.2, any resolution
presented to a meeting or adjourned meeting duly reconvened at which a quorum is
present as aforesaid may be adopted by the affirmative vote of the Holders of a
majority in principal amount of the Outstanding Securities of that series,
provided, however, that, except as limited by the proviso to Section 8.2, any
resolution with respect to any request, demand, authorization, direction,
notice, consent, waiver or other action which this Indenture expressly provides
may be made, given or taken by the Holders of a specified percentage, which is
less than a majority, in principal amount of the Outstanding Securities of a
series may be adopted at a meeting or an adjourned meeting duly reconvened and
at which a quorum is present as aforesaid by the affirmative vote of the Holders
of such specified percentage in principal amount of the Outstanding Securities
of that series.
Any resolution passed or decision taken at any meeting of Holders of
Securities of any series duly held in accordance with this Section 13.4 shall be
binding on all the Holders of Securities of such series and the related coupons,
whether or not present or represented at the meeting.
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Notwithstanding the foregoing provisions of this Sections 13.4, if
any action is to be taken at a meeting of Holders of Securities of any series
with respect to any request, demand, authorization, direction, notice, consent,
waiver or other action that this Indenture expressly provides may be made, given
or taken by the Holders of a specified percentage in principal amount of all
Outstanding Securities affected thereby, or of the Holders of such series and
one or more additional series:
(1) there shall be no minimum quorum requirement for such meeting
and
(2) the principal amount of the Outstanding Securities of such
series that vote in favor of such request, demand, authorization, direction,
notice, consent, waiver or other action shall be taken into account in
determining whether such request, demand, authorization, direction, notice,
consent, waiver or other action has been made, given or taken under this
Indenture.
Section 13.5. Determination of Voting Rights; Conduct and
Adjournment of Meetings. (a) Notwithstanding any other provisions of this
Indenture, the Trustee may make such reasonable regulations as it may deem
advisable for any meeting of Holders of Securities of any series in regard to
proof of the holding of Securities of such series and of the appointment of
proxies and in regard to the appointment and duties of inspectors of votes, the
submission and examination of proxies, certificates and other evidence of the
right to vote, and such other matters concerning the conduct of the meeting as
it shall deem appropriate. Except as otherwise permitted or required by any such
regulations, the holding of Securities shall be proved in the manner specified
in Section 1.4 and the appointment of any proxy shall be provided in the manner
specified in Section 1.4 or by having the signature of the Person executing the
proxy witnessed or guaranteed by any trust company, bank or banker authorized by
Section 1.4 to certify to the holding of Bearer Securities. Such regulations may
provide that written instruments appointing proxies, regular on their face, may
be presumed valid and genuine without the proof specified in Section 1.4 or
other proof.
(b) The Trustee shall, by an instrument in writing, appoint a
temporary chairman (which may be a Responsible Officer of the Trustee) of the
meeting, unless the meeting shall have been called by the Company as provided in
Section 13.2(b), in which case the Company shall in like manner appoint a
temporary chairman. A permanent chairman and a permanent secretary of the
meeting shall be elected by vote of the Persons entitled to vote a majority in
principal amount of the Outstanding Securities of such series represented at the
meeting.
(c) At any meeting each Holder of a Security of such series or proxy
shall be entitled to one vote for each U.S. $1,000 principal amount of
Securities held or
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represented by him or her; provided, however, that no vote shall be cast or
counted at any meeting in respect of any Security challenged as not Outstanding
and ruled by the chairman of the meeting to be not Outstanding. The chairman of
the meeting shall have no right to vote, except as a Holder of a Security or
proxy.
(d) Any meeting of Holders of Securities of a series duly called
pursuant to Section 13.2 at which a quorum is present may be adjourned from time
to time by Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the meeting, and the
meeting may be held as so adjourned without further notice.
Section 13.6. Counting Votes and Recording Action of Meetings. The
vote upon any resolution submitted to any meeting of Holders of Securities of
any series shall be by written ballots on which shall be subscribed the
signatures of the Holders of Securities of such series or of their
representatives by proxy and the principal amounts and serial numbers of the
Outstanding Securities held or represented by them. The permanent chairman of
the meeting shall appoint an inspector of votes who shall count all votes cast
at the meeting for or against any resolution and who shall make and file with
the secretary of the meeting its verified written reports in duplicate of all
votes cast at the meeting. A record of the proceedings of each meeting of
Holders of Securities shall be prepared by the applicable secretary of the
meeting and there shall be attached to said record the original report of the
inspector of votes on any vote by ballot taken thereat and affidavits by one or
more Persons having knowledge of the facts, setting forth a copy of the notice
of the meeting and showing that said notice was given as provided in Section
13.2 and, if applicable, Section 13.4. At least two copies of such record shall
be signed and verified by the affidavits of the permanent chairman and secretary
of the meeting and one copy thereof shall be delivered to the Company and the
other to the Trustee to be preserved by the Trustee, the latter to have attached
thereto the ballots voted at the meeting. Any record so signed and verified
shall be conclusive evidence of the matters therein stated.
ARTICLE 14
CONVERSION OR EXCHANGE OF SECURITIES
Section 14.1. Applicability of Article. (a) The provisions
of this Article 14 shall be applicable to the Securities of any series which are
convertible or exchangeable into Equity Securities of Allied, and to the
issuance of such Equity Securities upon the conversion or exchange of such
Securities, except as otherwise specified as contemplated by Section 3.1 for the
Securities of such series.
(b) The term "Equity Securities" shall mean all or any of the
following, authorized from time to time: (i) Allied's Common Stock, $.01 par
value (the "Common
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Stock"), (ii) Allied's Preferred Stock, $.10 par value (the "Preferred Stock"),
and (iii) any other equity securities of Allied.
Section 14.2. Exercise of Conversion or Exchange Privilege. (a) In
order to exercise a conversion or exchange privilege, the Holder of a Security
of a series with such privilege shall surrender such Security, together, in the
case of any Bearer Security, with all unmatured interest coupons and any matured
interest coupons in default appertaining thereto, to the Company at the office
or agency maintained for that purpose pursuant to Section 9.2, accompanied by
written notice to Allied and the Company that the Holder elects to convert or
exchange such Security or a specified portion thereof. Such notice shall also
state, if different from the name and address of such Holder, the name or names
(with address) in which the certificate or certificates for Equity Securities
which shall be issuable on such conversion or exchange shall be issued.
Registered Securities surrendered for conversion or exchange shall (if so
required by Allied, the Company or the Trustee) be duly endorsed by or
accompanied by instruments of transfer in forms satisfactory to Allied, the
Company and the Trustee duly executed by the registered Holder or its attorney
duly authorized in writing.
(b) As promptly as practicable after the receipt of such notice and
of any payment required pursuant to a Board Resolution establishing the terms of
any series of Securities and, subject to Section 3.3, set forth, or determined
in the manner provided, in an Officers' Certificate, or established in one or
more indentures supplemental hereto setting forth the terms of such series of
Security, and the surrender of such Security in accordance with such reasonable
regulations as Allied and the Company may prescribe, Allied shall issue and
shall deliver, at the office or agency at which such Security is surrendered, to
such Holder or on its written order, a certificate or certificates for the
number of Equity Securities issuable upon the conversion or exchange of such
Security (or specified portion thereof), in accordance with the provisions of
such Board Resolution, Officers' Certificate or supplemental indenture, and cash
as provided therein in respect of any fractional share of such Equity Security
otherwise issuable upon such conversion or exchange.
(c) Such conversion or exchange shall be deemed to have been
effected immediately prior to the close of business on the date on which such
notice and such payment, if required, shall have been received in proper order
for conversion or exchange by Allied and the Company and such Security shall
have been surrendered as aforesaid and at such time the rights of the Holder of
such Security as such Security Holder shall cease and the person or persons in
whose name or names any certificate or certificates for Equity Securities of
Allied shall be issuable upon such conversion or exchange shall be deemed to
have become the Holder or Holders of record of the Equity Securities represented
thereby. Except as set forth above and subject to paragraph (d) of Section 3.7,
no payment or adjustment shall be made upon any conversion or exchange on
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account of any interest accrued on the Securities surrendered for conversion or
exchange, or on account of any dividends on the Equity Securities of Allied
issued upon such conversion or exchange if the record date for the payment of
such dividends occurs prior to or on the date on which such conversion or
exchange shall be deemed to have been effected.
In the case of any Security which is converted or exchanged in part
only, upon such conversion or exchange the Company shall execute and the Trustee
shall authenticate and deliver to or on the order of the Holder thereof, at the
expense of the Company, a new Security or Securities of the same series, of
authorized denominations, in aggregate principal amount equal to the unconverted
or unexchanged portion of such Security.
Any requirements for notice, surrender or delivery of Securities
pursuant to this Article Fourteen shall, with respect to any Global Security, be
subject to any Applicable Procedures.
Section 14.3. No Fractional Equity Securities. No fractional Equity
Security of Allied shall be issued upon conversions or exchanges of Securities
of any series. If more than one Security shall be surrendered for conversion or
exchange at one time by the same Holder, the number of full shares of the Equity
Security which shall be issuable upon conversion or exchange shall be computed
on the basis of the aggregate principal amount of the Securities (or specified
portions thereof to the extent permitted hereby) so surrendered. If, except for
the provisions of this Section 14.3, any Holder of a Security or Securities
would be entitled to a fractional share of any Equity Security of Allied upon
the conversion or exchange of such Security or Securities, or specified portions
thereof, Allied or the Company shall pay to such Holder an amount in cash equal
to the current market value of such fractional share computed, (i) if such
Equity Security is listed or admitted to unlisted trading privileges on a
national securities exchange, on the basis of the last reported sale price
regular way on the principal exchange where such Equity Security is listed or
admitted, on the last trading day prior to the date of conversion or exchange
upon which such a sale shall have been effected, (ii) if such Equity Security is
not at the time so listed or admitted on a national securities exchange but is
quoted on the National Market System of the National Association of Securities
Dealers, Inc. ("NASDAQ"), on the basis of the average of the last bid and asked
prices of such Equity Security on NASDAQ on the last trading day prior to the
date of conversion or exchange, (iii) if such Equity Security is not at the time
so listed or admitted to unlisted trading privileges on a national securities
exchange or quoted on NASDAQ, on the basis of the average of the last bid and
asked prices of such Equity Security in the over-the-counter market, on the last
trading day prior to the date of conversion or exchange, as reported by the
National Quotation Bureau Incorporated or similar organization if the National
Quotation Bureau Incorporated is no longer reporting
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such information, or (iv) in accordance with the terms of the supplemental
indenture or Board Resolutions setting the terms of the Securities of such
series. For purposes of this Section, "trading day" shall mean each Monday,
Tuesday, Wednesday, Thursday and Friday other than any day on which the
applicable Equity Security is not traded or quoted on a national securities
exchange, or if the applicable Equity Security is not traded or quoted on a
national securities exchange, on NASDAQ or the principal exchange or market on
which the applicable Equity Security is traded or quoted.
Section 14.4. Adjustment of Conversion or Exchange Price;
Consolidation or Merger. The conversion or exchange price of Securities of any
series that is convertible or exchangeable into an Equity Security of Allied
shall be adjusted for any stock dividends, stock splits, reclassifications,
combinations or similar transactions, and the securities, assets or other
property into or for which such Securities may be converted or exchanged as a
result of any consolidation, merger, combination or similar transaction shall be
determined, in accordance with the terms of the supplemental indenture or Board
Resolutions setting the terms of the Securities of such series.
Whenever the conversion or exchange price is adjusted, Allied and
the Company shall compute the adjusted conversion or exchange price in
accordance with the terms of the applicable Board Resolution or supplemental
indenture and shall prepare an Officers' Certificate setting forth the adjusted
conversion or exchange price and showing in reasonable detail the facts upon
which such adjustment is based. Whenever the securities, assets or other
property into or for which Securities of any series may be converted or
exchanged are changed as a result of any consolidation, merger or similar
transaction, Allied and the Company shall determine the nature and amount of
such securities, assets or other property in accordance with the terms of the
applicable Board Resolution or supplemental indenture and shall prepare an
Officer's Certificate describing such securities, assets or other property and
stating the amount of such securities, assets or other property into or for
which such Securities have become convertible or exchangeable. Such certificates
shall forthwith be filed at each office or agency maintained for the purpose of
conversion or exchange of Securities pursuant to Section 9.2 and, if different,
with the Trustee Allied and the Company shall forthwith cause a notice setting
forth the adjusted conversion or exchange price or describing such securities,
assets or other property, as applicable, to be mailed, first class postage
prepaid, to each Holder of Registered Securities of such series at its address
appearing on the Register and to any conversion or exchange agent other than the
Trustee and shall give notice to the Holder of Bearer Securities as provided in
1.6.
Section 14.5. Notice of Certain Corporate Actions. If any series of
Securities which are directly or indirectly convertible or exchangeable for any
Equity Securities are Outstanding, in case:
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(a) Allied shall declare a dividend (or any other distribution) on
any class of such Equity Securities (i) payable otherwise than exclusively in
cash out of its retained earnings, or (ii) exclusively in cash out of its
retained earnings in an amount that, under the terms of such Securities, would
require an adjustment in the exchange or conversion price of such Securities; or
(b) Allied shall authorize the granting to the holders of any class
of such Equity Securities of rights, options or warrants to subscribe for or
purchase any shares of capital stock of any class or of any other rights; or
(c) of any reclassification of any class of such Equity Securities
(other than a subdivision or combination of its outstanding shares of such
Equity Securities), or of any consolidation or merger to which the Company is a
party and for which approval of any shareholders of the Company is required, or
of the sale of all or substantially all of the assets of Allied; or
(d) of the voluntary or involuntary dissolution, liquidation or
winding up of Allied; or
(e) the Company or any Subsidiary of the Company shall commence a
tender or exchange offer for all or a portion of the Company's outstanding
shares of such Equity Securities (or shall amend any such tender or exchange
offer);
then Allied and the Company shall cause to be filed with the Trustee, and shall
cause to be mailed to all Holders at their addresses as they shall appear in the
Register and shall give notice to the Holder of Bearer Securities as provided in
Section 1.6., at least 20 days (or 10 days in any case specified in clause (a)
or (b) above) prior to the applicable record date hereinafter specified, a
notice stating (i) the date on which a record is to be taken for the purpose of
such dividend, distribution, rights, options or warrants, or, if a record is not
to be taken, the date as of which the Holders of such Equity Securities of
record to be entitled to such dividend, distribution, rights, options or
warrants are to be determined, or (ii) the date on which such reclassification,
consolidation, merger, share exchange, sale, dissolution, liquidation or winding
up is expected to become effective, and the date as of which it is expected that
holders of such Equity Securities of record shall be entitled to exchange such
Equity Securities for securities, cash or other property deliverable upon such
reclassification, consolidation, merger, share exchange, sale, dissolution,
liquidation or winding up or (iii) the date on which such tender or exchange
offer commenced, the date on which such tender or exchange offer is scheduled to
expire unless extended, the consideration offered and the other material terms
thereof (or the material terms of any amendment thereto). If at any time the
Trustee shall not be the conversion or exchange agent, a copy of such notice
shall also forthwith be filed by Allied and the Company with the Trustee.
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Section 14.6. Reservation of Equity Securities. Allied shall at all
times reserve and keep available, free from preemptive rights, out of its
authorized but unissued Equity Securities, solely for the purpose of effecting
the conversion or exchange of Securities, the full number of Equity Securities
of Allied then issuable upon the conversion or exchange of all Outstanding
Securities of any series that has conversion or exchange rights.
Section 14.7. Payment of Certain Taxes Upon Conversion or Exchange.
Allied and the Company will pay any and all taxes that may be payable in respect
of the issue or delivery of Allied's Equity Securities on conversion or exchange
of Securities pursuant hereto. Allied and the Company shall not, however, be
required to pay any tax which may be payable in respect of any transfer involved
in the issue and delivery of its Equity Securities in a name other than that of
the Holder of the Security or Securities to be converted or exchanged, and no
such issue or delivery shall be made unless and until the Person requesting such
issue has paid to Allied and the Company the amount of any such tax, or has
established, to the satisfaction of Allied and the Company, that such tax has
been paid.
Section 14.8. Duties of Trustee Regarding Conversion or Exchange.
Neither the Trustee nor any conversion or exchange agent shall at any time be
under any duty or responsibility to any Holder of Securities of any series that
is convertible or exchangeable into Equity Securities of Allied to determine
whether any facts exist which may require any adjustment of the conversion or
exchange price, or with respect to the nature or extent of any such adjustment
when made, or with respect to the method employed, whether herein or in any
supplemental indenture, any resolutions of the Board of Directors or written
instrument executed by one or more officers of Allied and the Company provided
to be employed in making the same. Neither the Trustee nor any conversion or
exchange agent shall be accountable with respect to the validity or value (or
the kind or amount) of any Equity Securities of Allied, or of any securities or
property, which may at any time be issued or delivered upon the conversion or
exchange of any Securities and neither the Trustee nor any conversion or
exchange agent makes any representation with respect thereto. Subject to the
provisions of Section 6.1, neither the Trustee nor any conversion or exchange
agent shall be responsible for any failure of Allied or the Company to issue,
transfer or deliver any of Allied's Equity Securities or stock certificates or
other securities or property upon the surrender of any Security for the purpose
of conversion or exchange or to comply with any of the covenants of Allied and
the Company contained in this Article 14 or in the applicable supplemental
indenture, resolutions of the Board of Directors or written instrument executed
by one or more duly authorized officers of Allied and the Company.
Section 14.9. Repayment of Certain Funds Upon Conversion or
Exchange. Any funds which at any time have been deposited by the Company or on
its
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behalf with the Trustee or any Paying Agent for the purpose of paying the
principal of, premium, if any, and interest, if any, on any of the Securities
(including funds deposited for redemption pursuant to Article 11 or for any
sinking fund referred to in Article 12 hereof) and which shall not be required
for such purposes because of the conversion or exchange of such Securities as
provided in this Article 14 shall after such conversion or exchange be repaid to
the Company by the Trustee upon the Company's written request by Company
Request.
ARTICLE 15
SENIOR GUARANTEE
Section 15.1. Senior Guarantee. Unless otherwise specified as
contemplated by Section 3.1, Each of Allied and the Subsidiary Guarantors hereby
jointly and severally unconditionally guarantees on a senior basis to each
Holder of a Security authenticated and delivered by the Trustee, and to the
Trustee on behalf of such Holder, the due and punctual payment of the principal
of, premium, if any, and interest on such Security when and as the same shall
become due and payable, whether at the Stated Maturity or by acceleration, call
for redemption, purchase or otherwise, in accordance with the terms of such
Security and of this Indenture. In case of the failure of the Company punctually
to make any such payment, each of Allied and the Subsidiary Guarantors hereby
jointly and severally agrees to cause such payment to be made punctually when
and as the same shall become due and payable, whether at the Stated Maturity or
by acceleration, call for redemption, purchase or otherwise, and as if such
payment were made by the Company. Further, in the case of the failure of any
Subsidiary Guarantor punctually to make any payment required of it hereunder,
Allied agrees to cause such payment to be made when and as the same shall become
due and payable, as if such payment were made by such Subsidiary Guarantor.
Unless otherwise specified as contemplated by Section 3.1, each of
the Guarantors hereby jointly and severally agrees that its obligations
hereunder shall be unconditional, irrespective of the validity, regularity or
enforceability of any Security or this Indenture, the absence of any action to
enforce the same, any creation, exchange, release or nonperfection of any Lien
on any collateral for, or any release or amendment or waiver of any term of any
other Guarantee of, or any consent to departure from any requirement of any
other Guarantee, of all or any of the Securities, the election by the Trustee or
any of the Holders in any proceeding under Chapter 11 of Title 11 of the United
States Code (the "Bankruptcy Code") of the application of Section 1111(b)(2) of
the Bankruptcy Code, any borrowing or grant of a security interest by the
Company, as debtor in possession, under Section 364 of the Bankruptcy Code, the
disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of
the claims of the Trustee or any of the Holders for payment of any of the
Securities, any waiver or consent by the
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Holder of any Security or by the Trustee with respect to any provisions thereof
or of this Indenture, the obtaining of any judgment against the Company (or with
respect to the Allied Subsidiary Guarantee, any Subsidiary Guarantor) or any
action to enforce the same or any other circumstances which might otherwise
constitute a legal or equitable discharge or defense of a guarantor. Each of the
Guarantors hereby waives the benefits of diligence, presentment, demand of
payment, any requirement that the Trustee or any of the Holders protect, secure,
perfect or insure any security interest in or other Lien on any property subject
thereto or exhaust any right or take any action against the Company (or, with
respect to the Allied Subsidiary Guarantee, any Subsidiary Guarantor) or any
other Person or any collateral, filing of claims with a court in the event of
insolvency or bankruptcy of the Company (or, with respect to the Allied
Subsidiary Guarantee, any Subsidiary Guarantor), any right to require a
proceeding first against the Company (or, with respect to the Allied Subsidiary
Guarantee, any Subsidiary Guarantor), protest or notice with respect to any
Security (or, with respect to the Allied Subsidiary Guarantee, the Subsidiary
Guarantees) or the indebtedness evidenced thereby and all demands whatsoever,
and agrees that this Senior Guarantee will not be discharged in respect of any
Security (or, with respect to the Allied Subsidiary Guarantee, the Subsidiary
Guarantees) except by complete performance of the obligations contained in such
Security (or, with respect to the Allied Subsidiary Guarantee, the Subsidiary
Guarantees) and in this Senior Guarantee. Each of the Guarantors hereby agrees
that, in the event of a default in payment of principal of, premium, if any, or
interest on any Security (or, with respect to the Allied Subsidiary Guarantee,
the Subsidiary Guarantee), whether at its Stated Maturity or by acceleration,
call for redemption, purchase or otherwise, legal proceedings may be instituted
by the Trustee on behalf of, or by, the Holder of such Security subject to the
terms and conditions set forth in this Indenture, directly against each or any
of the Guarantors (or, with respect to the Allied Subsidiary Guarantee, against
Allied) to enforce its Senior Guarantee without first proceeding against the
Company (or, with respect to the Allied Subsidiary Guarantee, against any
Subsidiary Guarantor). Each Guarantor agrees that if, after the occurrence and
during the continuance of an Event of Default, the Trustee or any of the Holders
are prevented by applicable law from exercising their respective rights to
accelerate the maturity of the Securities, to collect interest on the Securities
or to enforce or exercise any other right or remedy with respect to the
Securities (or, with respect to the Allied Subsidiary Guarantee, to enforce or
exercise the Subsidiary Guarantees), or the Trustee or the Holders are prevented
from taking any action to realize on any collateral, such Guarantor agrees to
pay to the Trustee for the account of the Holders, upon demand therefor, the
amount that would otherwise have been due and payable had such rights and
remedies been permitted to be exercised by the Trustee or any of the Holders.
No provision of any Senior Guarantee or Security or of the Indenture
shall alter or impair (i) the Senior Guarantee of any Guarantor, which is
absolute and
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unconditional, of the due and punctual payment of the principal of, premium, if
any, and interest on the Security upon which such Senior Guarantee is endorsed,
or (ii) the Allied Subsidiary Guarantee, which is absolute and unconditional, of
the due and punctual performance by the Subsidiary Guarantors of their
obligations under the Subsidiary Guarantees.
Each Guarantor shall be subrogated to all rights of the Holders of
the Securities upon which its Senior Guarantee is endorsed against the Company
(or, with respect to the Allied Subsidiary Guarantee, any Subsidiary Guarantor)
in respect of any amounts paid by such Guarantor on account of such Security
(or, with respect to the Allied Subsidiary Guarantee, on account of the
Subsidiary Guarantees) pursuant to the provisions of its Senior Guarantee or
this Indenture; provided, however, that no Guarantor shall be entitled to
enforce or to receive any payments arising out of, or based upon, such right of
subrogation until the principal of, premium, if any, and interest on all
Securities issued hereunder shall have been paid in full.
Each Senior Guarantee shall remain in full force and effect and
continue to be effective should any petition be filed by or against the Company
(or, with respect to the Allied Subsidiary Guarantee, any Subsidiary Guarantor)
for liquidation or reorganization, should the Company (or, with respect to the
Allied Subsidiary Guarantee, any Subsidiary Guarantor) become insolvent or make
an assignment for the benefit of creditors or should a receiver or trustee be
appointed for all or any significant part of the assets of the Company (or, with
respect to the Allied Subsidiary Guarantee, the assets of any Subsidiary
Guarantor) and shall, to the fullest extent permitted by law, continue to be
effective or be reinstated, as the case may be, if at any time payment and
performance of the Securities (or, with respect to the Allied Subsidiary
Guarantee, any Subsidiary Guarantee) is, pursuant to applicable law, rescinded
or reduced in amount, or must otherwise be restored or returned by any obligee
on the Securities, whether as a "voidable preference," "fraudulent transfer" or
otherwise, all as though such payment or performance had not been made. In the
event that any payment, or any part thereof, is rescinded, reduced, restored or
returned, the Securities shall, to the fullest extent permitted by law, be
reinstated and deemed reduced only by such amount paid and not so rescinded,
reduced, restored or returned.
No officer, director, employer or incorporator, past, present or
future, of any Guarantor, as such, shall have any personal liability under any
Senior Guarantee by reason of his, her or its status as such officer, director,
employer or incorporator.
To the extent that any Subsidiary Guarantor shall be required to pay
any amounts on account of the Securities pursuant to its Senior Guarantee in
excess of the greater of (i) the amount of the economic benefit actually
received by such Subsidiary Guarantor from the issuance of the Securities and
(ii) an amount calculated as the product
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of (A) the aggregate amount payable by the Subsidiary Guarantors on account of
the Securities pursuant to their Senior Guarantees times (B) the proportion
(expressed as a fraction) that such Subsidiary Guarantor's net worth at the date
enforcement of its Senior Guarantee is sought bears to the aggregate net worth
of all Subsidiary Guarantors at such date, then such Subsidiary Guarantor shall
be reimbursed by the other Subsidiary Guarantors for the amount of such excess,
pro rata, based upon the respective net worth of such other Subsidiary
Guarantors at the date enforcement of its Senior Guarantees is sought. This
paragraph is intended only to define the relative rights of the Subsidiary
Guarantors as among themselves, and nothing set forth in this paragraph is
intended to or shall impair the joint and several obligations of the Guarantors
under their respective Senior Guarantees.
The Guarantors shall have the right to seek contribution from any
nonpaying Guarantor so long as the exercise or such right does not impair the
rights of the Holders under any Senior Guarantee.
Section 15.2. Execution and Delivery of Senior Guarantees. The
Senior Guarantees to be endorsed on the Securities shall include the terms of
the Senior Guarantee set forth in Section 15.1 and any other terms that may be
set forth in the form established pursuant to Section 2.3 and Section 3.1. Each
of the Guarantors hereby agrees to execute its Senior Guarantee, in a form
established pursuant to Section 2.3 and Section 3.1, to be endorsed on each
Security authenticated and delivered by the Trustee.
The Senior Guarantee shall be executed on behalf of each respective
Guarantor by any one of such Guarantor's Chairman of the Board, Vice Chairman of
the Board, President, Treasurer or Vice Presidents, attested by its Secretary or
Assistant Secretary. The signature of any or all of these officers on the Senior
Guarantee may be manual or facsimile and may be pursuant to a duly executed
power of attorney.
A Senior Guarantee bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of a Guarantor shall bind
such Guarantor, notwithstanding that such individuals or any of them have ceased
to hold such offices prior to the authentication and delivery of the Security on
which such Senior Guarantee is endorsed or did not hold such offices at the date
of such Senior Guarantee.
The delivery of any Security by the Trustee, after the
authentication thereof hereunder, shall constitute due delivery of the Senior
Guarantee endorsed thereon on behalf of the Guarantors. Each of the Guarantors
hereby jointly and severally agrees that its Senior Guarantee set forth in
Section 15.1 shall remain in full force and effect notwithstanding any failure
to endorse a Senior Guarantee on any Security.
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Section 15.3. Subsidiary Guarantors May Consolidate, Etc., on
Certain Terms. Nothing contained in this Indenture or in any of the Securities
shall prevent any consolidation or merger of a Subsidiary Guarantor with or into
the Company or a Guarantor or shall prevent any sale or conveyance of the
property of a Subsidiary Guarantor as an entirety or substantially as an
entirety to the Company or a Guarantor.
Section 15.4. Release of Guarantors. (a) Concurrently with any
consolidation or merger of a Subsidiary Guarantor or any sale or conveyance of
the property of a Subsidiary Guarantor as an entirety or substantially as an
entirety, in each case as permitted by Section 15.3, and upon delivery by the
Company to the Trustee of an Officers' Certificate and an Opinion of Counsel to
the effect that such consolidation, merger, sale or conveyance was made in
accordance with Section 15.3, the Trustee shall execute any documents reasonably
required in order to evidence the release of such Subsidiary Guarantor from its
obligations under its Subsidiary Guarantees endorsed on the Securities and under
this Article 15. Any Subsidiary Guarantor not released from its obligations
under its Subsidiary Guarantees endorsed on the Securities and under this
Article 15 shall remain liable for the full amount of principal of, premium, if
any, and interest on the Securities and for the other obligations of a
Subsidiary Guarantor under its Subsidiary Guarantees endorsed on the Securities
and under this Article 15.
(b) Concurrently with the defeasance of the Securities under Section
4.4 or the agreement defeasance of the Securities under Section 4.5, the
Guarantors shall be released from all of their obligations under their Senior
Guarantees endorsed on the Securities and under this Article 15.
(c) Upon the consummation of any transaction (whether involving a
sale or other disposition of securities, a merger or otherwise) whereby any
Subsidiary Guarantor ceases to be a Restricted Subsidiary and which transaction
is otherwise in compliance with the provisions of this Indenture, such
Subsidiary Guarantor shall automatically be released from all obligations under
its Subsidiary Guarantees endorsed on the Securities and under this Article 15.
(d) The Guarantors shall be released from all of their obligations
under the Senior Guarantees endorsed on the Securities of any series and under
this Section 15 upon the occurrence of such other event or events as may be
established with respect to such series in accordance with Section 3.1.
Section 15.5. Additional Guarantors. Unless otherwise specified as
contemplated by Section 3.1, the Company shall cause each Person that becomes a
Restricted Subsidiary after the date of this Indenture, upon becoming a
Restricted Subsidiary, to become a Subsidiary Guarantor with respect to the
Securities. Any such Person shall become a Subsidiary Guarantor by executing and
delivering to the Trustee
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(a) a supplemental indenture, in form and substance satisfactory to the Trustee,
which subjects such Person to the provisions of this Indenture as a Subsidiary
Guarantor and (b) an Opinion of Counsel to the effect that such supplemental
indenture has been duly authorized and executed by such Person and constitutes
the legal, valid, binding and enforceable obligation of such Person (subject to
such customary exceptions concerning creditors' rights and equitable principles
as may be acceptable to the Trustee in its discretion).
ARTICLE 16
JURISDICTION AND CONSENT TO SERVICE OF PROCESS
Section 16.1. Jurisdiction and Consent to Service of Process.
(a) Each of the Company and the Guarantors hereby irrevocably and
unconditionally submits, for itself and its property, to the nonexclusive
jurisdiction of any New York State court or Federal court of the United States
of America sitting in New York City, and any appellate court from any thereof,
in any action or proceeding arising out of or relating to the Securities, the
Senior Guarantees, this Indenture, or for recognition or enforcement of any
judgment, and each of such Persons hereby irrevocably and unconditionally agrees
that all claims in respect of any such action or proceeding may be heard and
determined in such New York State or, to the extent permitted by law, in such
Federal court. Each of the Company and the Guarantors agrees that a final
judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Article 16 shall affect any right that any
Holder or the Trustee may otherwise have to bring any action or proceeding
relating to the Securities, the Senior Guarantees, this Indenture Agreement
against the Company, any Guarantor or their respective properties in the courts
of any jurisdiction.
(b) Each of the Company and the Guarantors hereby irrevocably and
unconditionally waives, to the fullest extent it may legally and effectively do
so, any objection which it may now or hereafter have to the laying of venue of
any suit, action or proceeding arising out of or relating to the Securities, the
Senior Guarantees or this Indenture in any New York State or Federal court. Each
of the Company and the Guarantors hereby irrevocably waives, to the fullest
extent permitted by law, the defense of an inconvenient forum to the maintenance
of such action or proceeding in any such court.
(c) Each of the Company and the Guarantors irrevocably consents to
service of process in the manner provided for notices in Section 1.5 Nothing in
this Agreement will affect the right of any Holder or the Trustee to serve
process in any other manner permitted by law.
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--------------------
This instrument may be executed in any number of counterparts, each
of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
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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.
ALLIED WASTE NORTH AMERICA, INC.
By: /s/ G. Xxxxxx Xxxxxxxx, Xx.
----------------------------------
Name: G. Xxxxxx Xxxxxxxx, Xx.
Title:
Attest:
/s/ Xxxxxx Xxxxx
----------------------------------
Name: Xxxxxx Xxxxx
Title:
ALLIED WASTE INDUSTRIES, INC.
for purposes of Article 14 and as
Guarantor of the Securities and as
Guarantor of the obligations of the
Subsidiary Guarantors under the
Subsidiary Guarantees
By: /s/ G. Xxxxxx Xxxxxxxx, Xx.
----------------------------------
Name: G. Xxxxxx Xxxxxxxx, Xx.
Title:
Attest:
/s/ Xxxxxx X. Xxxx
----------------------------------
Name: Xxxxxx X. Xxxx
Title:
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Each of the Subsidiary Guarantors Listed
on Schedule I hereto, as Guarantor of the
Securities
By*: /s/ G. Xxxxxx Xxxxxxxx, Xx.
----------------------------------
Name: G. Xxxxxx Xxxxxxxx, Xx.
Title:
Attest*:
/s/ Xxxxxx Xxxxx
--------------------------
Name: Xxxxxx Xxxxx
Title:
U.S. BANK TRUST NATIONAL ASSOCIATION
By: /s/ Xxxxxxx X. Xxxxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Assistant Vice President
----------
* Signing as duly authorized officer for each such Subsidiary Guarantor.
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SCHEDULE I
Subsidiary Guarantors
NAME OF SUBSIDIARY GUARANTOR STATE OF ORGANIZATION
-----------------------------------------------------------------------------
A-1 Service, Inc. Iowa
Aaro Waste Paper Company Michigan
AAWI, Inc. Texas
Able Sanitation, Inc. Michigan
Xxxxxx Landfill, Inc. Michigan
ADS, Inc. Oklahoma
ADS of Illinois, Inc. Illinois
Affordable Dumpsters, Inc Illinois
Alabama Recycling Services, Inc. Alabama
Alaska Street Associates, Inc. Washington
Allied Acquisition Pennsylvania, Inc. Pennsylvania
Allied Acquisition Two, Inc. Massachusetts
Allied Cartage, Inc. Massachusetts
Allied Gas Recovery Systems, L.L.C. Delaware
Allied Nova Scotia, Inc. Delaware
Allied Services, LLC Delaware
Allied Waste Company, Inc. Delaware
Allied Waste Industries (Arizona), Inc. Arizona
Allied Waste Industries of New York, Inc. New York
Allied Waste Landfill Holdings, Inc. Delaware
Allied Waste North America, Inc. Delaware
Allied Waste of California, Inc. California
Allied Waste of Long Island, Inc. New York
Allied Waste of New Jersey, LLC Delaware
Allied Waste Rural Sanitation, Inc. Delaware
Allied Waste Services, Inc. Massachusetts
Allied Waste Systems, Inc. Delaware
Allied Waste Systems, Inc. Ohio
Allied Waste Systems Holdings, Inc. Delaware
Allied Waste Transportation, Inc. Delaware
Americal Co. Michigan
American Disposal Services, Inc. Delaware
American Disposal Services of Illinois, Inc. Delaware
American Disposal Services of Kansas, Inc. Kansas
American Disposal Services of Missouri, Inc. Oklahoma
American Disposal Services of New Jersey, Inc. Delaware
American Disposal Services of West Virginia, Inc. Delaware
American Disposal Transfer Services of Illinois, Inc. Delaware
American Transfer Company, Inc. New York
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116
Delta Container Corporation California
Delta Paper Stock Co. California
Denver Regional Landfill, Inc. Colorado
Xxxxxxxx, Inc. Michigan
Xxxxxxxx Recycling, Inc. Michigan
Xxxxxxxx Sanitary Service, Inc. Nebraska
Draw Acquisition Company Eighteen Delaware
Draw Acquisition Company Twenty Two Delaware
Draw Acquisition Company Twenty Three Delaware
Draw Enterprises II, Inc. Illinois
Draw Enterprises Real Estate, Inc. Illinois
Draw Enterprises Real Estate, L.P. Illinois
Xxxxxx Disposal Service, Inc. Michigan
Eagle Industries Leasing, Inc. Michigan
East Coast Waste Systems, Inc. Massachusetts
ECDC Environmental of Humbolt County, Inc. Delaware
ECDC Environmental, L.C. Utah
ECDC Holdings, Inc. Delaware
Xxxxx County Landfill TX, LLC Delaware
Xxxxx County Landfill TX, L.P. Delaware
Xxxxx Xxxxx Landfill MO, LLC Delaware
Elmhurst Disposal Company Illinois
Enviro Carting Inc. New York
Environmental Development Corporation Delaware
Environmental Reclamation Company Illinois
Enviro Recycling, Inc. New York
Envotech-Illinois, L.L.C. Delaware
Environtech, Inc. Delaware
Evergreen Scavenger Service, Inc. Delaware
Evergreen Scavenger Service, L.L.C. Delaware
Xxxx X. Xxxxxxx Trucking Co., Inc. Illinois
Fort Worth Landfill TX, LP Delaware
Forward, Inc. California
X. Xxx Xxxxx Disposal Inc. Michigan
Xxxxxxxx Brothers, Inc. New Jersey
Xxxxxxxx Recycling and Transfer Station Co., Inc. New Jersey
Xxxx Recycling Services, Inc. Indiana
General Refuse Rolloff Corp. Delaware
Georgia Recycling Services, Inc. Delaware
Golden Eagle Disposals, Inc. New York
Golden Waste Disposal, Inc. Georgia
Great Lakes Disposal Services, Inc. Delaware
Great Midwestern Recovery Systems, Inc. Illinois
Great Plains Landfill OK, LLC Delaware
Harland's Sanitary Landfill, Inc. Michigan
A-3
117
Hawkeye Disposal Services, Inc. Iowa
Illiana Disposal Partnership Indiana
Illinois Bulk Handlers, Inc. Illinois
Illinois Landfill, Inc. Illinois
Illinois Recycling Services, Inc. Illinois
Independent Trucking Company California
Indiana Recycling Service, Incorporated Indiana
Industrial Services of Illinois, Inc. Illinois
Xxxxxx Waste Disposal, Inc. Illinois
Jefferson City Landfill, LLC Delaware
Xxx Xx Xxxx & Sons, Inc. New Jersey
Key Waste Indiana Partnership Indiana
Xxxxxxx Waste Systems (Dallas) Inc. Delaware
Xxxxxxx Waste Systems (Kansas City) Inc. Missouri
Xxxxxxx Waste Systems (Texas) Inc. Texas
Lake Shore Distributions, Inc. Illinois
Lathrop Sunrise Sanitation Corporation California
Xxx County Landfill SC, LLC Delaware
Xxx County Landfill, Inc. Illinois
Lemons Landfill, LLC Delaware
Liberty Waste Holdings, Inc. Delaware
Liberty Waste Services Limited, L.L.C. Delaware
Liberty Waste Services of Illinois, L.L.C. Illinois
Liberty Waste Services of McCook, L.L.C. Delaware
Loop Express, Inc. Illinois
Loop Recycling, Inc. Illinois
Loop Transfer, Incorporated Illinois
Xxxxx Xxxxx & Son, Inc., Sanitation Contractors New Jersey
Manumit of Florida, Inc. Florida
Mars Road TX, LP Delaware
MCM Sanitation, Inc. New York
Medical Disposal Services, Inc. Illinois
Mesquite Landfill TX, LP Delaware
Metropolitan Disposal, Inc. Massachusetts
Mississippi Waste Paper Company Mississippi
MJS Associates, Inc. Washington
Monarch Disposal, Inc. Illinois
NationsWaste, Inc. Delaware
Xxxxxx County Landfill Partnership Indiana
Nimishillen Industrial Park, Inc. Ohio
Northeast Landfill, LLC Delaware
Northeast Sanitary Landfill, Inc. South Carolina
Northwest Recycling, Inc. Illinois
Oakland Heights Development, Inc. Michigan
Oklahoma City Landfill, LLC Oklahoma
A-4
118
Oklahoma Refuse, Inc. Oklahoma
Organized Sanitary Collectors and Recyclers, Inc. Nebraska
Oscar's Collection System of Fremont, Inc. Nebraska
Otay Landfill, Inc. California
Ottawa County Landfill, Inc. Delaware
Packerton Land Company, L.L.C. Delaware
Packman, Inc. Kansas
Palomar Transfer Station, Inc. California
Paper Fibres Company Washington
Paper Fibers, Inc. Washington
Pinal County Landfill Corporation Arizona
Pinecrest Landfill OK, LLC Delaware
Pine Hill Farms Landfill TX, LP Delaware
Pittsburg County Landfill, Inc. Oklahoma
Pleasant Oaks Landfill TX, LP Delaware
Price & Sons Recycling Company Xxxxxxx
X. 18, Inc. Illinois
Rabanco Intermodal/B.C., Inc. Washington
Rabanco, Ltd. Washington
Rabanco Recycling, Inc. Washington
Rabanco Regional Landfill Company Xxxxxxxxxx
Xxxxxx Landfill, Inc. California
RCS, Inc. Illinois
X.X. Xxxxxx Enterprises, Inc. Ohio
X.X. Xxxxxx Refuse Service, Inc. Ohio
Recycling Associates, Inc. New York
Reliable Rubbish Disposal, Inc. Massachusetts
Resource Recovery, Inc. Kansas
Ridgeline Trucking, Inc. Illinois
Xxxx Bros. Waste & Recycling Co. Ohio
Royal Holdings, Inc. Michigan
Xxxxxx Landfill, Inc. Illinois
Rural Sanitation Service, Inc. of North Carolina South Carolina
S & L, Inc. Washington
S & S Environmental, Inc. Michigan
S & S Recycling, Inc. Georgia
San Marcos NCRRF, Inc. California
Sanitary Disposal Services, Inc. Michigan
Sanitran, Inc. New York
Saugus Disposal, Inc. Massachusetts
Sauk Trail Development, Inc. Michigan
Selas Enterprises LTD New York
Show-Me Landfill, LLC Delaware
Shred-All Recycling, Inc. Illinois
South Chicago Disposal, Inc. of Indiana Indiana
A-5
119
Southeast Landfill, LLC Delaware
Southwest Waste, Inc. Missouri
SSWI, Inc. Washington
Standard Disposal Services, Inc. Michigan
Standard Disposal Services of Florida, Inc. Florida
Standard Environmental Services, Inc. Michigan
Standard Waste, Inc. Delaware
Xxxxx Recycling Center, Inc. Ohio
Xxxxxxx Trash & Recycling Services, Inc. Missouri
Streator Area Landfill, Inc. Illinois
Suburban Transfer, Inc. Illinois
Suburban Warehouse, Inc. Illinois
Sunrise Sanitation Service, Inc. California
Sunset Disposal, Inc. Kansas
Sunset Disposal Services, Inc. California
Sycamore Landfill, Inc. California
Tates Transfer Systems, Inc. Missouri
T & G Container, Inc. Indiana
Xxx Xxxxxxx'x Disposal Service, Inc. New Jersey
Top Disposal Service, Inc. Illinois
Tricil (N.Y.) Inc. New York
Tri-State Recycling Services, Inc. Illinois
Tri-State Refuse Equipment Sales & Service, Inc. Ohio
Turkey Creek Landfill TX, LP Delaware
Turnpike Leasing, Inc. Massachusetts
United Waste Control Corp. Washington
United Waste Systems of Central Michigan, Inc. Michigan
Upper Rock Island County Landfill, Inc. Illinois
USA Waste of Illinois, Inc. Illinois
Xxxxxx Disposal Service, Inc. Massachusetts
Xxxxxx Xxxxx'x Waste Systems, Inc. New York
Waste Associates, Inc. Washington
Wastehaul, Inc. Indiana
Waste Reclaiming Services, Inc. Illinois
Xxxxx County Landfill IL, Inc. Delaware
WJR Environmental, Inc. Washington
Xxxxxxxx County Landfill, Inc. Ohio
World Sanitation Corporation New York
A-6
