EXHIBIT 4.6
======================================================
ALLIED WASTE NORTH AMERICA, INC., as Issuer
and
THE GUARANTORS NAMED HEREIN, as Guarantors
to
FIRST TRUST NATIONAL ASSOCIATION, as Trustee
SUBORDINATED INDENTURE
Dated as of _________________, 1998
Providing for Issuance of
Subordinated Debt Securities in Series
======================================================
Reconciliation and tie between Subordinated Indenture, dated as
of _____________, 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
(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.
TABLE OF CONTENTS
Page
Recitals ................................................................1
ARTICLE 1 Definitions and Other Provisions of General
Application...................................................2
Section 1.1. Definitions...........................................2
Section 1.2. Compliance Certificates and Opinions..................15
Section 1.3. Form of Documents Delivered to Trustee................15
Section 1.4. Acts of Holders.......................................16
Section 1.5. Notices, Etc., to Trustee, Company and
Guarantors............................................18
Section 1.6. Notice to Holders; Waiver.............................19
Section 1.7. Headings and Table of Contents........................20
Section 1.8. Successor and Assigns.................................20
Section 1.9. Separability..........................................20
Section 1.10. Benefits of Indenture.................................20
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...................................................21
Section 1.13. Legal Holidays........................................21
Section 1.14. Moneys of Different Currencies to Be
Segregated............................................22
Section 1.15. Independence of Agreements............................22
Section 1.16. Counterparts..........................................22
ARTICLE 2 Security and Subordinated Guarantee Forms.....................22
Section 2.1. Forms Generally.......................................22
Section 2.2. Form of Trustee's Certificate of
Authentication........................................23
Section 2.3. Form of Subordinated Guarantee........................23
Section 2.4. Global Securities.....................................27
Section 2.5. Form of Legend for Global
Securities............................................28
ARTICLE 3 The Securities................................................29
Section 3.1. Amount Unlimited; Issuable in Series..................29
Section 3.2. Denominations.........................................33
Section 3.3. Execution, Authentication, Delivery and
Dating................................................33
Section 3.4. Temporary Securities..................................37
Section 3.5. Registration, Transfer and Exchange...................38
Section 3.6. Replacement Securities................................43
Section 3.7. Payment of Interest; Interest Rights
Preserved.............................................44
Section 3.8. Persons Deemed Owners.................................47
Section 3.9. Cancellation..........................................48
Section 3.10. Computation of Interest...............................48
Section 3.11. CUSIP Numbers.........................................48
Section 3.12. Currency and Manner of Payment in Respect of
Securities............................................49
ARTICLE 4 Satisfaction, Discharge and Defeasance........................49
Section 4.1. Termination of Company's Obligations Under the
Indenture.............................................49
Section 4.2. Application of Trust Funds............................50
Section 4.3. Applicability of Defeasance Provisions;
Company's Option to Effect Defeasance
or Agreement Defeasance...............................51
Section 4.4. Defeasance and Discharge..............................51
Section 4.5. Agreement Defeasance..................................52
Section 4.6. Conditions to Defeasance or Agreement
Defeasance............................................52
Section 4.7. Deposited Money and Government Obligations
to Be Held in Trust...................................55
Section 4.8. Repayment to Company..................................55
Section 4.9. Indemnity for Government Obligations..................55
Section 4.10. Reinstatement.........................................56
ARTICLE 5 Defaults and Remedies.........................................56
Section 5.1. Events of Default.....................................56
Section 5.2. Acceleration; Rescission and Annulment................58
Section 5.3. Collection of Indebtedness and Suits for
Enforcement by Trustee................................60
Section 5.4. Trustee May File Proofs of Claim......................61
Section 5.5. Trustee May Enforce Claims Without Possession
of Securities.........................................61
Section 5.6. Delay or Omission Not Waiver..........................61
Section 5.7. Waiver of Past Defaults...............................62
Section 5.8. Control by Majority...................................62
Section 5.9. Limitation on Suits by Holders........................62
Section 5.10. Rights of Holders to Receive Payment..................63
Section 5.11. Application of Money Collected........................63
Section 5.12. Restoration of Rights and Remedies....................64
Section 5.13. Rights and Remedies Cumulative........................64
Section 5.14. Undertaking for Costs.................................65
Section 5.15. Waiver of Stay, Extension or Usury
Laws..................................................65
ARTICLE 6 The Trustee...................................................66
Section 6.1. Certain Duties and Responsibilities...................66
Section 6.2. Notice of Defaults....................................66
Section 6.3. Certain Rights of Trustee.............................66
Section 6.4. Not Responsible for Recitals or Issuance
of Securities.........................................67
Section 6.5. May Hold Securities...................................67
Section 6.6. Money Held in Trust...................................68
Section 6.7. Compensation and Reimbursement........................68
Section 6.8. Conflicting Interests.................................68
Section 6.9. Corporate Trustee Required;
Eligibility...........................................69
Section 6.10. Resignation and Removal; Appointment of
Successor.............................................69
Section 6.11. Acceptance of Appointment by
Successor.............................................71
Section 6.12. Merger, Conversion, Consolidation or
Succession to Business................................72
Section 6.13. Preferential Collection of Claims Against
Company...............................................72
Section 6.14. Appointment of Authenticating Agent...................72
ARTICLE 7 Consolidation, Merger or Sale of Assets by
the Company...................................................74
Section 7.1. Consolidation, Merger or Sale of Assets
Permitted.............................................74
Section 7.2. Successor Substituted.................................75
ARTICLE 8 Supplemental Indentures.......................................76
Section 8.1. Supplemental Indentures Without Consent of
Holders...............................................76
Section 8.2. Supplemental Indentures With Consent of
Holders...............................................77
Section 8.3. Compliance with Trust Indenture Act...................79
Section 8.4. Execution of Supplemental Indentures..................79
Section 8.5. Effect of Supplemental Indentures.....................79
Section 8.6. Reference in Securities to Supplemental
Indentures............................................79
Section 8.7. Notice of Supplemental Indentures.....................80
ARTICLE 9 Agreements....................................................80
Section 9.1. Payment of Principal, Premium, if any,
and Interest..........................................80
Section 9.2. Maintenance of Office or Agency.......................80
Section 9.3. Money for Securities Payments to Be Held
in Trust; Unclaimed Money.............................82
Section 9.4. Corporate Existence...................................83
Section 9.5. Annual Review Certificate.............................83
Section 9.6. Maintenance of Properties.............................84
Section 9.7. Payments of Taxes and Other Claims....................84
Section 9.8. Waiver of Certain Agreements..........................84
ARTICLE 10 Holders' Lists and Reports by Trustee and
Company......................................................85
Section 10.1. Company to Furnish Trustee Names and
Addresses of Holders..................................85
Section 10.2. Preservation of Information, Communications
to Holders............................................85
Section 10.3. Reports by Trustee....................................86
Section 10.4. Reports by the Company and the Guarantors.............86
ARTICLE 11 Redemption...................................................86
Section 11.1. Applicability of Article..............................86
Section 11.2. Election to Redeem; Notice to Trustee.................87
Section 11.3. Selection of Securities to Be Redeemed................87
Section 11.4. Notice of Redemption..................................88
Section 11.5. Deposit of Redemption Price...........................89
Section 11.6. Securities Payable on Redemption Date.................89
Section 11.7. Securities Redeemed in Part...........................90
ARTICLE 12 Sinking Funds................................................91
Section 12.1. Applicability of Article..............................91
Section 12.2. Satisfaction of Sinking Fund Payments with
Securities............................................91
Section 12.3. Redemption of Securities for Sinking Fund.............92
ARTICLE 13 Meetings of Holders of Securities............................92
Section 13.1. Purposes for Which Meetings May Be
Called................................................92
Section 13.2. Call, Notice and Place of Meetings....................92
Section 13.3. Persons Entitled to Vote at Meetings..................93
Section 13.4. Quorum; Action........................................93
Section 13.5. Determination of Voting Rights; Conduct
and Adjournment of Meetings...........................94
Section 13.6. Counting Votes and Recording Action of
Meetings..............................................95
ARTICLE 14 Conversion or Exchange of Securities.........................96
Section 14.1. Applicability of Article..............................96
Section 14.2. Exercise of Conversion or Exchange
Privilege.............................................96
Section 14.3. No Fractional Equity Securities.......................97
Section 14.4. Adjustment of Conversion or Exchange
Price; Consolidation or Merger........................98
Section 14.5. Notice of Certain Corporate Actions...................99
Section 14.6. Reservation of Equity Securities......................100
Section 14.7. Payment of Certain Taxes Upon Conversion
or Exchange...........................................100
Section 14.8. Duties of Trustee Regarding Conversion
or Exchange...........................................101
Section 14.9. Repayment of Certain Funds Upon Conversion
or Exchange...........................................101
ARTICLE 15 Subordination of Securities and Subordinated
Guarantees...................................................102
Section 15.1. Securities Subordinate to Senior Debt.................102
Section 15.2. Payment Over of Proceeds Upon Dissolution,
Etc...................................................102
Section 15.3. No Payment When Senior Debt in Default................104
Section 15.4. Certain Payments Permitted............................106
Section 15.5. Subrogation to Rights of Holders of Senior
Debt..................................................106
Section 15.6. Provisions Solely to Define Relative Rights...........107
Section 15.7. Trustee to Effectuate Subordination...................107
Section 15.8. No Waiver of Subordination Provisions.................107
Section 15.9. Notice to Trustee.....................................108
Section 15.10. Reliance on Judicial Order or Certificate
of Liquidating Agent..................................109
Section 15.11. Trustee Not Fiduciary for Holders of Senior
Debt..................................................109
Section 15.12. Rights of Trustee as Holder of Senior Debt;
Preservation of Trustee's Rights......................109
Section 15.13. Article Applicable to Paying Agents...................109
Section 15.14. Defeasance of this Article 15.........................110
ARTICLE 16 Subordinated Guarantee.......................................110
Section 16.1. Subordinated Guarantee................................110
Section 16.2. Execution and Delivery of Subordinated
Guarantees............................................113
Section 16.3. Subsidiary Guarantors May Consolidate, Etc.,
on Certain Terms......................................114
Section 16.4. Release of Guarantors.................................114
Section 16.5. Additional Guarantors.................................115
ARTICLE 17 Jurisdiction and Consent to Service of Process...............115
Section 17.1. Jurisdiction and Consent to Service of
Process...............................................115
SUBORDINATED INDENTURE (the "Indenture"), dated as of
___________, 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 15880 North Xxxxxxxx - Xxxxxx
Xxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000, each of the GUARANTORS (as
hereinafter defined) and FIRST 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 subordinated 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
Subordinated 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
Subordinated 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:
(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
subordinated basis, by Allied of the due and punctual payment of principal
of, premium, if any, and interest on the Securities, as provided pursuant
to Article 16.
"Allied Subsidiary Guarantee" means the unconditional guarantee,
on a subordinated 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.
"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 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.
"corporation" shall mean a corporation, association, joint-stock
company or business trust.
"Credit Agreement" means the Amended and Restated Credit
Agreement dated June 5, 1997 among the Company, Allied and the subsidiary
guarantors named therein, as guarantors, Xxxxxxx Sachs Credit Partners
L.P., Credit Suisse First Boston, Citibank, N.A. and the other Lenders
referred to therein.
"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.
"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.
"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 Government Obligation or a
specific payment of principal of or interest on any such 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 Government Obligation or the specific payment
of principal of or interest on the Government Obligation evidenced by such
depository receipt.
"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" and
"Guaranteeing" 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, 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 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 Subordinated 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.
"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
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 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.
"Senior Debt" means (i) with respect to the Company, Debt created
pursuant to the Credit Agreement, (ii) with respect to the Company, any
Guarantor or any Restricted Subsidiary of the Company, as the case may be,
(a) every obligation of such Person for money borrowed, (b) 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, (c) every reimbursement
obligation of such Person with respect to letters of credit, bankers'
acceptances or similar facilities issued for the account of such Person,
(v) every Capital Lease Obligation of such Person and (d) 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, whether Incurred on or prior to the date hereof or
thereafter Incurred, (iii) with respect to the Company, any Guarantor or
any Restricted Subsidiary of the Company, Guarantees by such person of
Senior Debt and (iv) amendments, modifications, renewals, extensions,
refinancings and refundings of any such Debt; provided, however, the
following shall not constitute Senior Debt: (A) any Debt owed to a Person
when such Person is a Subsidiary of the Company, (B) any Debt which by the
terms of the instrument creating or evidencing the same is pari passu or
subordinate in right of payment to the Securities, (C) any Debt Incurred in
violation of this Indenture or (D) any Debt which is subordinate in right
of payment in any respect to any other Debt of the Company. For purposes of
this definition, "Debt" includes any obligation to pay principal, premium,
if any, interest, penalties, reimbursement or indemnity amounts, fees and
expenses (including interest accruing on or after the filing of any
petition in bankruptcy or for reorganization relating to the Company,
whether or not a claim for post-petition interest is allowed in such
proceeding).
"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.
"Subordinated Guarantees" means the Allied Guarantee, the
Subsidiary Guarantees and the Allied Subsidiary Guarantee.
"Subsidiary" of any Person means any Person of which at least a
majority of the outstanding voting securities having ordinary voting power
for the election of directors or other governing body, or other ownership
interests ordinarily constituting a majority voting interest, is owned or
controlled, directly or indirectly, by such Person or by one or more
Subsidiaries of such Person, or by such Person and one or more Subsidiaries
of such Person.
"Subsidiary Guarantees" means the unconditional guarantees on a
subordinated 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 16.
"Subsidiary Guarantors", as of any time, means, in respect of a
series of Securities, 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 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. 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 Owned Restricted
Subsidiaries or by the Company and one or more Wholly Owned 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)
"Company Payment
Blockage Period" 15.3
"Company Securities Payment" 15.2
"Defaulted Interest" 3.7(b)
"defeasance" 4.4
"Equity Securities" 14.1(b)
"Event of Default" 5.1
"Guarantor Payment
Blockage Period" 15.3
"NASDAQ" 14.3
"Preferred Stock" 14.1(b)(ii)
"Register" 3.5
"Registrar" 3.5
"Senior Nonmonetary Default" 15.3
"Senior Payment Default" 15.3
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 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 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 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.
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
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 Subordinated 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 Subordinated 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 and the
holders of Senior Debt, 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 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 SUBORDINATED 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 Subordinated 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.
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 SUBORDINATED GUARANTEE FORMS
Section 2.1. Forms Generally. The Securities of each series and
the interest coupons, if any, to be attached thereto and the Subordinated
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 Subordinated Guarantees to be
endorsed thereon, as the case may be, as evidenced by their execution of
the Securities and interest coupons, if any, or Subordinated Guarantees to
be endorsed thereon, as the case may be. If temporary Securities and
Subordinated 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 Subordinated 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 Subordinated 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.
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 Subordinated Guarantees
endorsed thereon of the series designated therein referred to in the
within-mentioned Indenture.
FIRST TRUST NATIONAL ASSOCIATION,
as Trustee
By:
------------------------------
Authorized Signatory
Section 2.3. Form of Subordinated Guarantee
SUBORDINATED GUARANTEE
For value received, each of the Guarantors named (or deemed
herein to be named) below hereby jointly and severally unconditionally
guarantees, on a subordinated basis to the Holder of the Security upon
which this Subordinated 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 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.
The Subordinated Guarantee of each Guarantor shall be
subordinated in right of payment to the Senior Debt of such Guarantor as
provided in the Indenture.
Each of the Guarantors hereby jointly and severally agrees that
its obligations hereunder shall be unconditional, irrespective of the
validity, regularity or 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 Subordinated 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
Subordinated 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,
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 Subordinated
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, with
respect to the Allied Subsidiary Guarantee, the Subsidiary Guarantees), 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
Subordinated Guarantee or of the Indenture shall alter or impair (i) the
Subordinated 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 Subordinated
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 Subordinated 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 Subordinated 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 Guarantors), 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.
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 Subordinated Guarantee.
The Guarantors or any particular Guarantor shall be released from
this Subordinated 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 Subordinated Guarantee which are defined
in the Indenture referred to in the Security upon which this Subordinated
Guarantee is endorsed shall have the meanings assigned to them in such
Indenture.
This Subordinated Guarantee shall not be valid or obligatory for
any purpose until the certificate of authentication on the Security upon
which this Subordinated Guarantee is endorsed shall have been executed by
the Trustee under the Indenture by manual signature.
Reference is made to Article Sixteen of the Indenture for further
provisions with respect to this Subordinated Guarantee.
THIS SUBORDINATED GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, each of the Guarantors has caused this
Subordinated 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]
--------------------
*/ Signing as duly authorized officer for each such Subsidiary
Guarantor.
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 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 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 Global
Security 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.
(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 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;
(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) 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;
(21) if other than the Trustee, the identity of the Registrar and
any Paying Agent;
(22) if the Securities of the series shall be issued in whole or
in part in global form, (i) the Depositary for such 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;
(23) any restrictions on the registration, transfer or exchange
of the Securities;
(24) 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;
(25) 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;
(26) whether the Securities are secured or unsecured, and if
secured, the security and related terms in connection therewith;
(27) the definition of "Unrestricted Subsidiary" to be used for
such series; and
(28) 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.
(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 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 or any Vice President of the Company,
and need not be attested.
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 Subordinated 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 Subordinated Guarantees endorsed thereon, and the Trustee in
accordance with such Company Order shall authenticate and deliver such
Securities with such Subordinated 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 Subordinated
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 Subordinated Guarantees endorsed thereon and accepting
the additional responsibilities under this Indenture in relation to such
Securities with Subordinated 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 Subordinated 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 have
been, or, in the case of Securities of a series with Subordinated
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 such terms have been, or, in the case of Securities
of a series with Subordinated 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
Subordinated 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 Subordinated 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
Subordinated 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.
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 Subordinated 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 Subordinated 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 Subordinated 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 Depositary
and the Trustee with regard to Global Securities with Subordinated
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
Subordinated Guarantee 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 Subordinated 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 Subordinated 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 Subordinated 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 Subordinated 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 Subordinated Guarantees may determine, as conclusively
evidenced by their execution of such Securities and interest coupons, if
any and such Subordinated Guarantees. In the case of Securities of any
series, such temporary Securities may be in Global Securities, representing
all or a portion of the Outstanding Securities of such series.
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 Subordinated 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
Subordinated 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 Subordinated 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.
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 Subordinated 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
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 Subordinated Guarantees endorsed thereon of
such series of like tenor, shall authenticate and deliver, Securities with
Subordinated 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 Global
Security or Securities.
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 Subordinated Guarantees endorsed
thereon of such series of like tenor, shall authenticate and deliver,
Securities with Subordinated 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
Global Security or Securities.
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 Subordinated 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 Subordinated
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 Subordinated
Guarantees endorsed thereon for Securities with Subordinated Guarantees
endorsed thereon in certificated form, such Global Security with
Subordinated 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
Subordinated Guarantees endorsed thereon in certificated form issued in
exchange for a Global Security with Subordinated 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 Subordinated Guarantees endorsed thereon pursuant to instructions from
its direct or indirect participants or otherwise, shall instruct the
Trustee in writing. The Trustee shall deliver such Securities with
Subordinated Guarantees endorsed thereon to the Persons in whose names such
Securities with Subordinated 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 Subordinated Guarantees endorsed thereon which
the Holder making the exchange is entitled to receive.
All Securities with Subordinated Guarantees endorsed thereon
issued upon any registration of transfer or upon any exchange of Securities
with Subordinated 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 Subordinated 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
Subordinated 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
Subordinated 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
Subordinated 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.
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 Subordinated Guarantees endorsed thereon, if such surrendered Security
was a Registered Security, or a replacement Bearer Security with
Subordinated 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 Subordinated Guarantees endorsed thereon, if such Holder's claim
appertains to a Registered Security with Subordinated Guarantees endorsed
thereon, or a replacement Bearer Security with Subordinated 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 Subordinated 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.
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 Subordinated 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 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 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 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
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).
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 Subordinated
Guarantees endorsed thereon, shall be promptly cancelled by it. The Company
may at any 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
Subordinated 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 Subordinated
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
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,
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.
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 Subordinated 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, (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
"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 and (iii) the provisions of Article Fifteen shall
cease to be effective as to such Securities to the extent provided therein.
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) 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 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) At the time of such deposit: (A) no default in the payment of
all or a portion of principal of, premium, if any, or interest on any
Senior Debt of the Company shall have occurred and be continuing, and
no event of default with respect to any Senior Debt of the Company
shall have occurred and be continuing and shall have resulted in such
Senior Debt becoming or being declared due and payable prior to the
date on which it would otherwise have become due and payable and (B)
no other event of default with respect to any Senior Debt of the
Company shall have occurred and be continuing permitting (after notice
or the lapse of time, or both) the holders of such Senior Debt (or a
trustee on behalf of the holders thereof) to declare such Senior Debt
due and payable prior to the date on which it would otherwise have
become due and payable, or, in the case of either Clause (A) or Clause
(B) above, each such default or event of default shall have been cured
or waived or shall have ceased to exist.
(f) 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).
(g) 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).
(h) 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.
(i) 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.
(j) Such defeasance or agreement defeasance shall not result in
the trust arising from such deposit constituting an investment company
as defined in the Investment Company Act of 1940, as amended from time
to time, or such trust shall be registered under such act or exempt
from registration thereunder.
(k) 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 Government Obligations to Be
Held in Trust. Subject to the provisions of the last paragraph of Section
9.3, all money and 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 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.
Section 4.9. Indemnity for Government Obligations. The Company
shall pay, and shall indemnify the Trustee against, any tax, fee or other
charge imposed on or assessed against 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 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
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 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 occasioned by the provisions of Article 15 or 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 the principal of (or 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 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 $25 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 $25
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
(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, provided that the payment of principal and interest on such
Securities shall remain subordinated to the extent provided in Article 15.
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 and payable without any declaration or
act on the part of the Trustee or any Holder of such Securities, provided
that the payment of principal and interest on such Securities shall remain
subordinated to the extent provided in Article 15.
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
(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.
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 Subordinated 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, 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.
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.
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 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 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 Subordinated 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 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
Subordinated 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
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 Subordinated 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 Subordinated 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 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:
(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 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 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 Subordinated
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
Subordinated 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 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 Trustee's certificate of authentication, an
alternative certificate of authentication in the following form:
This is one of the Securities with the Subordinated 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, and shall not permit any Restricted Subsidiary
to, consolidate with or merge into any Person, in the case of a Restricted
Subsidiary, in a transaction in which such Restricted Subsidiary remains a
Restricted Subsidiary, unless such Restricted Subsidiary consolidates with
or merges into a Wholly Owned Restricted Subsidiary; (b) shall not permit
any Person other than a Wholly Owned Restricted Subsidiary to consolidate
with or merge into (i) the Company or (ii) any Restricted Subsidiary in a
transaction in which such Restricted Subsidiary remains a Restricted
Subsidiary; (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; and (d) shall not, and shall not
permit any Restricted Subsidiary to, in one or a series of transactions,
acquire Capital Stock of or other ownership interests in any other Person
such that such other Person becomes a Restricted Subsidiary; unless in any
such transaction (or series) contemplated by Clause (a), (b), (c) or (d)
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 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
or any Guarantor 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
(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 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; or
(m) to add new Subsidiary Guarantors pursuant to Section 16.5.
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 upon 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 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);
(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;
(e) modify the provisions in Article 15 of this Indenture with
respect to the subordination of Outstanding Securities of any series in a
manner adverse to the Holders thereof; or
(f) 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
Sections 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 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 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 Subordinated
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 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 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.
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 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, 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 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.
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.
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;
(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 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 Subordinated Guarantee of each
Guarantor executed by each such Guarantor and endorsed thereon) of the same
series, having the same form, terms 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 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 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.
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 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 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 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 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 Holders of Bearer Securities as provided in Section 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:
(a) Allied shall declare a dividend (or any other distribution)
on any class of such Equity Securities payable (i) 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 Holders 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.
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 agreements 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 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
SUBORDINATION OF SECURITIES AND SUBORDINATED GUARANTEES
Section 15.1. Securities Subordinate to Senior Debt. The Company
agrees, and each Holder of a Security, by his acceptance thereof, likewise
agrees, that, to the extent and in the manner hereinafter set forth in this
Article (subject to the provisions of Article 4), (i) the payment of the
principal of, premium, if any, and interest on the Securities and any other
obligations in respect of the Securities (including any obligation to
repurchase Securities) are hereby expressly made subordinate and subject in
right of payment to the prior payment in full of all Senior Debt of the
Company, and (ii) the payment of each Guarantor's obligations in respect of
its Subordinated Guarantee is hereby expressly made subordinate and subject
in right of payment to the prior payment in full of all the obligations of
such Guarantor under all Senior Debt of such Guarantor.
Section 15.2. Payment Over of Proceeds Upon Dissolution, Etc. In
the event of (a) any insolvency or bankruptcy case or proceeding, or any
receivership, liquidation, reorganization or other similar case or
proceeding in connection therewith, relative to the Company or to its
creditors, as such, or to its assets, or (b) any liquidation, dissolution
or other winding up of the Company, whether voluntary or involuntary and
whether or not involving insolvency or bankruptcy, or (c) any assignment
for the benefit of creditors or any other marshaling of assets and
liabilities of the Company, then and in any such event specified in (a),
(b) or (c) above (each such event, if any, herein sometimes referred to as
a "Company Proceeding") the holders of all Senior Debt of the Company shall
first be entitled to receive payment in full of all amounts due or to
become due on or in respect of all such Senior Debt, or provision shall be
made for such payment in cash or cash equivalents or otherwise in a manner
satisfactory to the holders of such Senior Debt, before the Holders of the
Securities are entitled to receive any payment or distribution of any kind
or character from the Company, whether in cash, property or securities
(including any payment or distribution which may be payable or deliverable
by reason of the payment of any other Debt of the Company subordinated to
the payment of the Securities on account of principal of, premium, if any,
or interest on or other obligations in respect of the Securities or on
account of any purchase or redemption or other acquisition of Securities by
the Company or Allied or any Subsidiary of the Company (all such payments,
distributions, purchases and acquisitions herein referred to, individually
and collectively, as a "Company Securities Payment"), and to that end the
holders of Senior Debt of the Company shall be entitled to receive, for
application to the payment thereof, any Company Securities Payment which
may be payable or deliverable in respect of the Securities in any such
Company Proceeding.
In the event of (a) any insolvency or bankruptcy case or
proceeding, or any receivership, liquidation, reorganization or other
similar case or proceeding in connection therewith, relative to any
Guarantor or to its creditors, as such, or to its assets, or (b) any
liquidation, dissolution or other winding up of any Guarantor, whether
voluntary or involuntary and whether or not involving insolvency or
bankruptcy, or (c) any assignment for the benefit of creditors or any other
marshaling of assets and liabilities of any Guarantor, then and in any such
event specified in (a), (b) or (c) above (each such event, if any, herein
sometimes referred to as a "Guarantor Proceeding"; the Company Proceeding
and the Guarantor Proceeding each may be referred to as a "Proceeding") the
holders of all Senior Debt of such Guarantor shall first be entitled to
receive payment in full of all amounts due or to become due on or in
respect of all such Senior Debt, or provision shall be made for such
payment in cash or cash equivalents or otherwise in a manner satisfactory
to the holders of such Senior Debt, before the Holders of the Securities
are entitled to receive any payment or distribution of any kind or
character from such Guarantor, whether in cash, property or securities
(including any payment or distribution which may be payable or deliverable
by reason of the payment of any other Debt of such Guarantor subordinated
to the payment of its Subordinated Guarantee by such Guarantor) on account
of its Subordinated Guarantee (all such payments and distributions herein
referred to, individually and collectively, as a "Guarantor Securities
Payment"; any of the Company Securities Payment and the Guarantor
Securities Payment each may be referred to as a "Securities Payment"), and
to that end the holders of Senior Debt of such Guarantor shall be entitled
to receive, for application to the payment thereof, any Guarantor
Securities Payment which may be payable or deliverable in respect of the
Subordinated Guarantee by such Guarantor in any such Guarantor Proceeding.
In the event that, notwithstanding the foregoing provisions of
this Section, the Trustee or the Holder of any Security shall have received
any Securities Payment before all Senior Debt of the Company or the
Guarantor, as applicable, is paid in full or payment thereof provided for
in cash or cash equivalents or otherwise in a manner satisfactory to the
holders of such Senior Debt, then and in such event such Securities Payment
shall be paid over or delivered forthwith to the holders of Senior Debt for
application to the payment of such Senior Debt remaining unpaid, to the
extent necessary to pay such Senior Debt in full, after giving effect to
any concurrent payment or distribution to or for the holders of such Senior
Debt.
The consolidation of the Company or any Guarantor with, or the
merger of the Company or any Guarantor with, another Person or the
liquidation or dissolution of the Company or any Guarantor following the
conveyance or transfer of all or substantially all of its properties and
assets as an entirety to another Person upon the terms and conditions set
forth in Article 7 shall not be deemed a Proceeding for the purposes of
this Section if the Person formed by such consolidation or with which the
Company or any Guarantor merges or the Person which acquires by conveyance
or transfer such properties and assets as an entirety, as the case may be,
shall, as a part of such consolidation, merger, conveyance or transfer,
comply with the conditions set forth in Article 7.
Section 15.3. No Payment When Senior Debt in Default. In the
event that any Company Senior Payment Default (as defined below) shall have
occurred and be continuing, then no Company Securities Payment shall be
made unless and until such Company Senior Payment Default shall have been
cured or waived or shall have ceased to exist or all amounts then due and
payable in respect of Senior Debt of the Company shall have been paid in
full, or provision shall have been made for such payment in cash or
otherwise in a manner satisfactory to the holders of such Senior Debt.
"Company Senior Payment Default" means (i) any default in the payment of
principal of, premium, if any, or interest on any Senior Debt of the
Company and (ii) any event of default with respect to Senior Debt of the
Company which has resulted in such Senior Debt becoming or being declared
due and payable prior to the date on which it would otherwise have become
due and payable.
In the event that any Guarantor Senior Payment Default (as
defined below) with respect to any Guarantor shall have occurred and be
continuing, then no Guarantor Securities Payment shall be made by such
Guarantor unless and until such Guarantor Senior Payment Default shall have
been cured or waived or shall have ceased to exist or all amounts then due
and payable in respect of the Senior Debt of such Guarantor shall have been
paid in full, or provision shall have been made for such payment in cash or
otherwise in a manner satisfactory to the holders of Senior Debt of such
Guarantor. "Guarantor Senior Payment Default" means, with respect to any
Guarantor, (i) any default in the payment of principal of, premium, if any,
or interest on any Senior Debt of such Guarantor and (ii) any event of
default with respect to Senior Debt of such Guarantor which has resulted in
such Senior Debt becoming or being declared due and payable prior to the
date on which it would otherwise have become due and payable. Any Company
Senior Payment Default or Guarantor Senior Payment Default may be referred
to herein as a "Senior Payment Default".
In the event that any Company Senior Nonmonetary Default (as
defined below) shall have occurred and be continuing, then, upon the
receipt by the Company and the Trustee of written notice of such Company
Senior Nonmonetary Default from the Agent Banks under the Credit Agreement
(or if such Credit Agreement has been terminated, from any holder of Senior
Debt of the Company with a principal amount in excess of $50,000,000), no
Company Securities Payment shall be made during the period (the "Company
Payment Blockage Period") commencing on the date of such receipt of such
written notice and ending on the earlier of (i) the date on which such
Company Senior Nonmonetary Default shall have been cured or waived or shall
have ceased to exist and any acceleration of Senior Debt of the Company
shall have been rescinded or annulled or the Senior Debt of the Company to
which such Company Senior Nonmonetary Default relates shall have been
discharged or (ii) the 179th day after the date of such receipt of such
written notice. No more than one Company Payment Blockage Period may be
commenced with respect to the Securities during any consecutive 360-day
period. For all purposes of this paragraph, no Senior Nonmonetary Default
that existed or was continuing on the date of commencement of any Company
Payment Blockage Period shall be, or can be, made the basis for the
commencement of a subsequent Company Payment Blockage Period whether or not
within a period of 360 consecutive days by holders of Senior Debt of the
Company or their representatives unless such Company Senior Nonmonetary
Default shall have been cured for a period of not less than 90 consecutive
days. "Company Senior Nonmonetary Default" means the occurrence or
existence and continuance of any event of default, or of any event which,
after notice or lapse of time (or both), would become an event of default,
under the terms of any instrument pursuant to which any Senior Debt of the
Company is outstanding, permitting (after notice or lapse of time or both)
one or more holders of such Senior Debt (or a trustee or agent on behalf of
the holders thereof) to declare such Senior Debt due and payable prior to
the date on which it would otherwise become due and payable, other than a
Company Senior Payment Default.
In the event that a Guarantor Senior Nonmonetary Default (as
defined below) with respect to any Guarantor shall have occurred and be
continuing, then, upon the receipt by such Guarantor and the Trustee of
written notice of such Guarantor Senior Nonmonetary Default from a holder
of Senior Debt of such Guarantor with a principal amount in excess of $50
million, no Guarantor Securities Payment shall be made by such Guarantor
during the period (a "Guarantor Payment Blockage Period") commencing on the
date of such receipt of such written notice and ending on the earlier of
(i) the date on which such Guarantor Senior Nonmonetary Default shall have
been cured or waived or shall have ceased to exist and any acceleration of
Senior Debt of such Guarantor shall have been rescinded or annulled or the
Senior Debt of such Guarantor to which such Guarantor Senior Nonmonetary
Default relates shall have been discharged or (ii) the 179th day after the
date of such receipt of such written notice. No more than one Guarantor
Payment Blockage Period may be commenced with respect to the Securities
during any 360-day period. For all purposes of this paragraph, no Guarantor
Senior Nonmonetary Default with respect to a Guarantor that existed or was
continuing on the date of commencement of any Guarantor Payment Blockage
Period with respect to such Guarantor shall be, or be made, the basis for
the commencement of a subsequent Guarantor Payment Blockage Period with
respect to such Guarantor whether or not within a period of 360 consecutive
days by holders of Senior Debt of such Guarantor or their representatives
unless such Guarantor Senior Nonmonetary Default shall have been cured for
a period of not less than 90 consecutive days. A "Guarantor Senior
Nonmonetary Default" means, with respect to any Guarantor, the occurrence
or existence and continuance of any event of default, or of any event
which, after notice or lapse of time (or both), would become an event of
default, under the terms of any instrument pursuant to which any Senior
Debt of such Guarantor is outstanding, permitting (after notice or lapse of
time or both) one or more holders of such Senior Debt (or a trustee or
agent on behalf of the holders thereof) to declare such Senior Debt due and
payable prior to the date on which it would otherwise become due and
payable, other than a Guarantor Senior Payment Default. Any Company Senior
Nonmonetary Default or Guarantor Senior Nonmonetary Default may be referred
to herein as a "Senior Nonmonetary Default".
In the event that, notwithstanding the foregoing, the Company or
any Guarantor shall make any Company Securities Payment or Guarantor
Securities Payment, as the case may be, to the Trustee or any Holder
prohibited by the foregoing provisions of this Section, then and in such
event such Securities Payment shall be paid over and delivered forthwith to
the holders of the Senior Debt of the Company or the Guarantor, as the case
may be.
The provisions of this Section shall not apply to any Securities
Payment with respect to which Section 15.2 would be applicable.
Section 15.4. Certain Payments Permitted. Nothing contained in
this Article or elsewhere in this Indenture or in any of the Securities or
the Subordinated Guarantees endorsed thereon shall prevent the Company or
any Guarantor, at any time except during the pendency of any Proceeding
referred to in Section 15.2 or under the conditions described in Section
15.3, from making Securities Payments.
Section 15.5. Subrogation to Rights of Holders of Senior Debt.
Subject to the payment in full in cash of all amounts due or to become due
on or in respect of Senior Debt of the Company or a Guarantor, as the case
may be, or the provision for such payment in cash or cash equivalents or
otherwise in a manner satisfactory to the holders of such Senior Debt, the
Holders of the Securities shall be subrogated to the rights of the holders
of such Senior Debt to receive payments and distributions of cash, property
and securities applicable to such Senior Debt until the principal of,
premium, if any, and interest on the Securities or the obligation under
such Guarantor's Subordinated Guarantee, as the case may be, shall be paid
in full. For purposes of such subrogation, no payments or distributions to
the holders of the Senior Debt of the Company or a Guarantor of any cash,
property or securities to which the Holders of the Securities or the
Trustee would be entitled except for the provisions of this Article, and no
payments over pursuant to the provisions of this Article to the holders of
Senior Debt of the Company or such Guarantor, as the case may be, by
Holders of the Securities or the Trustee, shall, as among the Company or
such Guarantor, as the case may be, its creditors other than holders of
Senior Debt and the Holders of the Securities, be deemed to be a payment or
distribution by the Company or such Guarantor, as applicable, to or on
account of the Senior Debt of the Company or such Guarantor, as the case
may be.
Section 15.6. Provisions Solely to Define Relative Rights. The
provisions of this Article are and are intended solely for the purpose of
defining the relative rights of the Holders on the one hand and the holders
of Senior Debt on the other hand. Nothing contained in this Article or
elsewhere in this Indenture or in the Securities is intended to or shall
(a) impair, as among the Company or any Guarantor, as applicable, its
creditors other than holders of Senior Debt and the Holders of the
Securities with the Guarantees endorsed thereon, the obligation of the
Company or any Guarantor, as applicable, which is absolute and
unconditional (and which, subject to the rights under this Article of the
holders of Senior Debt, is intended to rank equally with all other general
obligations of the Company), to pay to the Holders of the Securities the
principal of, premium, if any, and interest on the Securities as and when
the same shall become due and payable in accordance with their terms; or
(b) affect the relative rights against the Company or any Guarantor, as
applicable, of the Holders of the Securities and creditors of the Company
or any Guarantor, as applicable, other than the holders of Senior Debt; or
(c) prevent the Trustee or the Holder of any Security from exercising all
remedies otherwise permitted by applicable law upon default under this
Indenture, subject to the rights, if any, under this Article of the holders
of Senior Debt to receive cash, property and securities otherwise payable
or deliverable to the Trustee or such Holder.
Section 15.7. Trustee to Effectuate Subordination. Each Holder of
a Security by his acceptance thereof authorizes and directs the Trustee on
his behalf to take such action as may be necessary or appropriate to
effectuate the subordination provided in this Article and appoints the
Trustee his attorney-in-fact for any and all such purposes.
Section 15.8. No Waiver of Subordination Provisions. No right of
any present or future holder of any Senior Debt to enforce subordination as
herein provided shall at any time in any way be prejudiced or impaired by
any act or failure to act on the part of the Company or any Guarantor or by
any act or failure to act, in good faith, by any such holder, or by any
noncompliance by the Company or any Guarantor with the terms, provisions
and agreements of this Indenture, regardless of any knowledge thereof any
such holder may have or be otherwise charged with.
Without in any way limiting the generality of the foregoing
paragraph, the holders of Senior Debt may, at any time and from time to
time, without the consent of or notice to the Trustee or the Holders of the
Securities, without incurring responsibility to the Holders of the
Securities and without impairing or releasing the subordination provided in
this Article or the obligations hereunder of the Holders of the Securities
to the holders of Senior Debt, do any one or more of the following: (i)
change the manner, place or terms of payment or extend the time of payment
of, or renew or alter or increase, Senior Debt, or otherwise amend or
supplement in any manner Senior Debt or any instrument evidencing the same
or any agreement under which Senior Debt is outstanding; (ii) sell,
exchange, release or otherwise deal with any property pledged, mortgaged or
otherwise securing Senior Debt; (iii) release any Person liable in any
manner for the collection of Senior Debt; and (iv) exercise or refrain from
exercising any rights against the Company, the Guarantors and any other
Person.
Section 15.9. Notice to Trustee. The Company shall give prompt
written notice to the Trustee of any fact known to the Company which would
prohibit the making of any payment to or by the Trustee in respect of the
Securities or any of the Subordinated Guarantees. Notwithstanding the
provisions of this Article or any other provision of this Indenture, the
Trustee shall not be charged with knowledge of the existence of any facts
which would prohibit the making of any payment to or by the Trustee in
respect of the Securities or any of the Subordinated Guarantees, unless and
until the Trustee shall have received written notice thereof from the
Company or a holder of Senior Debt or from any trustee therefor; and, prior
to the receipt of any such written notice, the Trustee, subject to the
provisions of Section 6.1, shall be entitled in all respects to assume that
no such facts exist, provided that nothing in this Section 15.9 shall
impair the subordination provisions of this Article Fifteen.
Subject to the provisions of Section 6.1, the Trustee shall be
entitled to rely on the delivery to it of a written notice by a Person
representing himself to be a holder of Senior Debt (or a trustee,
representative or agent therefor) to establish that such notice has been
given by a holder of Senior Debt (or a trustee, representative or agent
therefor). In the event that the Trustee determines in good faith that
further evidence is required with respect to the right of any Person as a
holder of Senior Debt to participate in any payment or distribution
pursuant to this Article, the Trustee may request such Person to furnish
evidence to the reasonable satisfaction of the Trustee as to the amount of
Senior Debt held by such Person, the extent to which such Person is
entitled to participate in such payment or distribution and any other facts
pertinent to the rights of such Person under this Article, and if such
evidence is not furnished, the Trustee may defer any payment to such Person
pending judicial determination as to the right of such Person to receive
such payment.
Section 15.10. Reliance on Judicial Order or Certificate of
Liquidating Agent. Upon any payment or distribution of assets or securities
of the Company or any Guarantor referred to in this Article, the Trustee,
subject to the provisions of Section 6.1, and the Holders of the Securities
shall be entitled to rely upon any order or decree entered by any court of
competent jurisdiction in which such proceeding is pending, or a
certificate of the trustee in bankruptcy, receiver, liquidating trustee,
custodian, assignee for the benefit of creditors, agent or other Person
making such payment or distribution, delivered to the Trustee or to the
Holders of Securities, for the purpose of ascertaining the Persons entitled
to participate in such payment or distribution, the holders of the Senior
Debt and other indebtedness of the Company or any Guarantor, as the case
may be, the amount thereof or payable thereon, the amount or amounts paid
or distributed thereon and all other facts pertinent thereto or to this
Article.
Section 15.11. Trustee Not Fiduciary for Holders of Senior Debt.
The Trustee shall not be deemed to owe any fiduciary duty to the holders of
Senior Debt and shall not be liable to any such holders if it shall in good
faith mistakenly pay over or distribute to Holders of Securities or to the
Company or any Guarantor or to any other Person cash, property or
securities to which any holders of Senior Debt shall be entitled by virtue
of this Article or otherwise.
Section 15.12. Rights of Trustee as Holder of Senior Debt;
Preservation of Trustee's Rights. The Trustee in its individual capacity
shall be entitled to all the rights set forth in this Article with respect
to any Senior Debt which may at any time be held by it, to the same extent
as any other holder of Senior Debt, and nothing in this Indenture shall
deprive the Trustee of any of its rights as such holder.
Nothing in this Article shall apply to claims of, or payments to,
the Trustee under or pursuant to Section 6.7.
Section 15.13. Article Applicable to Paying Agents. In case at
any time any Paying Agent other than the Trustee shall have been appointed
by the Company and be then acting hereunder, the term "Trustee" as used in
this Article shall in such case (unless the context otherwise requires) be
construed as extending to and including such Paying Agent within its
meaning as fully for all intents and purposes as if such Paying Agent were
named in this Article in addition to or in place of the Trustee; provided,
however, that Section 15.12 shall not apply to the Company, any Guarantor
or any Affiliate of the Company or of any Guarantor if it or such Affiliate
acts as Paying Agent.
Section 15.14. Defeasance of this Article 15. The subordination
of the Securities and the Subordinated Guarantees provided by this Article
15 is expressly made subject to the provisions for defeasance or agreement
defeasance in Article 4 and, anything herein to the contrary
notwithstanding, upon the effectiveness of any such defeasance or agreement
defeasance, the Securities then Outstanding and the Subordinated Guarantees
relating thereto shall thereupon cease to be subordinated pursuant to this
Article 15.
ARTICLE 16
SUBORDINATED GUARANTEE
Section 16.1. Subordinated Guarantee. Each of Allied and the
Subsidiary Guarantors hereby jointly and severally unconditionally
guarantees on a subordinated 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.
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 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 Subordinated 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 Subordinated 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
Guarantees), 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 Subordinated 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 Subordinated Guarantee or Security or of the
Indenture shall alter or impair (i) the Subordinated 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 such Subordinated 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 Subordinated 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, the Subsidiary Guarantees) pursuant to the provisions of its
Subordinated 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 Subordinated 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 Guarantor) 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 Subordinated 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 Subordinated
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 of (A) the
aggregate amount payable by the Subsidiary Guarantors on account of the
Securities pursuant to their Subordinated Guarantees times (B) the
proportion (expressed as a fraction) that such Subsidiary Guarantor's net
worth at the date enforcement of its Subordinated 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 Subordinated 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 Subordinated 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 Subordinated Guarantee.
Section 16.2. Execution and Delivery of Subordinated Guarantees.
The Subordinated Guarantees to be endorsed on the Securities shall include
the terms of the Subordinated Guarantee set forth in Section 16.1 and any
other terms that may be set forth in the form established pursuant to
Section 2.3. Each of the Guarantors hereby agrees to execute its
Subordinated Guarantee, in a form established pursuant to Section 2.3, to
be endorsed on each Security authenticated and delivered by the Trustee.
The Subordinated 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 or Vice Presidents, attested by its
Secretary or Assistant Secretary. The signature of any or all of these
officers on the Subordinated Guarantee may be manual or facsimile and may
be pursuant to a duly executed power of attorney.
A Subordinated 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 Subordinated Guarantee is
endorsed or did not hold such offices at the date of such Subordinated
Guarantee.
The delivery of any Security by the Trustee, after the
authentication thereof hereunder, shall constitute due delivery of the
Subordinated Guarantee endorsed thereon on behalf of the Guarantors. Each
of the Guarantors hereby jointly and severally agrees that its Subordinated
Guarantee set forth in Section 16.1 shall remain in full force and effect
notwithstanding any failure to endorse a Subordinated Guarantee on any
Security.
Section 16.3. 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 16.4. 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 16.3, 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 16.3, 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 16. Any
Subsidiary Guarantor not released from its obligations under its Subsidiary
Guarantees endorsed on the Securities and under this Article 16 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 16.
(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 Subordinated Guarantees endorsed on the Securities and under this
Article 16.
(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 16.
Section 16.5. Additional Guarantors. 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 (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 17
JURISDICTION AND CONSENT TO SERVICE OF PROCESS
Section 17.1. 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 Subordinated 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 17 shall affect any right that any Holder or the Trustee may
otherwise have to bring any action or proceeding relating to the
Securities, the Subordinated 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 Subordinated 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.
--------------------
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.
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:
-----------------------------
Name:
Title:
Attest:
-------------------------------
Name:
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:
-----------------------------
Name:
Title:
Attest:
-------------------------------
Name:
Title:
Each of the Subsidiary Guarantors
listed on Schedule I hereto, as
Guarantor
By*:
-----------------------------
Name:
Title:
Attest*:
-------------------------------
Name:
Title:
FIRST TRUST NATIONAL ASSOCIATION
By:
-----------------------------
Name:
Title:
Attest:
-------------------------------
Name:
Title:
* Signing as duly authorized officer for each such Subsidiary Guarantor.
