1
Exhibit 4.7
FFHS&J
Draft 6/30/97
======================================================
ALLIED WASTE NORTH AMERICA, INC., as Issuer
and
THE GUARANTORS NAMED HEREIN, as Guarantors
to
FIRST BANK NATIONAL ASSOCIATION, as Trustee
SENIOR SUBORDINATED INDENTURE
Dated as of _________________, 1997
Providing for Issuance of
Senior Subordinated Debt Securities in Series
======================================================
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TABLE OF CONTENTS
Page
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Recitals ..................................................................................1
ARTICLE 1 Definitions and Other Provisions of General Application...........................2
Section 1.1. Definitions.................................................................2
Section 1.2. Compliance Certificates and Opinions.......................................14
Section 1.3. Form of Documents Delivered to Trustee.....................................14
Section 1.4. Acts of Holders............................................................15
Section 1.5. Notices, Etc., to Trustee, Company and Guarantors..........................17
Section 1.6. Notice to Holders; Waiver..................................................18
Section 1.7. Headings and Table of Contents.............................................19
Section 1.8. Successor and Assigns......................................................19
Section 1.9. Separability...............................................................19
Section 1.10. Benefits of Indenture......................................................19
Section 1.11. Incorporators, Stockholders, Officers and Directors of
the Company Exempt from Individual Liability...............................19
Section 1.12. Governing Law; Conflict with Trust Indenture Act...........................20
Section 1.13. Legal Holidays.............................................................20
Section 1.14. Moneys of Different Currencies to Be Segregated............................20
Section 1.15. Independence of Covenants..................................................21
Section 1.16. Counterparts...............................................................21
ARTICLE 2 Security and Senior Subordinated Guarantee Forms.................................21
Section 2.1. Forms Generally............................................................21
Section 2.2. Form of Trustee's Certificate of Authentication............................22
Section 2.3. Form of Senior Subordinated Guarantee......................................22
Section 2.4. Securities in Global Form..................................................26
Section 2.5. Form of Legend for Securities in Global Form...............................27
ARTICLE 3 The Securities...................................................................27
Section 3.1. Amount Unlimited; Issuable in Series.......................................27
Section 3.2. Denominations..............................................................32
Section 3.3. Execution, Authentication, Delivery and Dating.............................32
Section 3.4. Temporary Securities.......................................................36
Section 3.5. Registration, Transfer and Exchange........................................37
Section 3.6. Replacement Securities.....................................................41
3
Reconciliation and tie between Senior Subordinated
Indenture, dated as of _____________, 1997 (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)..............................................................
(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; 9.7; 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
4
Trust Indenture Act Indenture
of 0000 Xxxxxxx Xxxxxxx
(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).............................................................1.11
(b)..............................................................TIA
(c)........................................................1.11; TIA
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This reconciliation and tie section does not constitute part of the
Indenture.
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Section 3.7. Payment of Interest; Interest Rights Preserved.............................43
Section 3.8. Persons Deemed Owners......................................................46
Section 3.9. Cancellation...............................................................46
Section 3.10. Computation of Interest....................................................47
Section 3.11. CUSIP Numbers..............................................................47
Section 3.12. Currency and Manner of Payment in Respect of Securities....................47
ARTICLE 4 Satisfaction, Discharge and Defeasance...........................................48
Section 4.1. Termination of Company's Obligations Under the Indenture...................48
Section 4.2. Application of Trust Funds.................................................49
Section 4.3. Applicability of Defeasance Provisions; Company's
Option to Effect Defeasance or Covenant Defeasance.........................49
Section 4.4. Defeasance and Discharge...................................................50
Section 4.5. Covenant Defeasance........................................................50
Section 4.6. Conditions to Defeasance or Covenant Defeasance............................51
Section 4.7. Deposited Money and Government Obligations to Be
Held in Trust..............................................................53
Section 4.8. Repayment to Company.......................................................53
Section 4.9. Indemnity for Government Obligations.......................................53
Section 4.10. Reinstatement..............................................................54
ARTICLE 5 Defaults and Remedies............................................................54
Section 5.1. Events of Default..........................................................54
Section 5.2. Acceleration; Rescission and Annulment.....................................56
Section 5.3. Collection of Indebtedness and Suits for Enforcement
by Trustee.................................................................57
Section 5.4. Trustee May File Proofs of Claim...........................................57
Section 5.5. Trustee May Enforce Claims Without Possession of Securities................58
Section 5.6. Delay or Omission Not Waiver...............................................58
Section 5.7. Waiver of Past Defaults....................................................58
Section 5.8. Control by Majority........................................................58
Section 5.9. Limitation on Suits by Holders.............................................59
Section 5.10. Rights of Holders to Receive Payment.......................................60
Section 5.11. Application of Money Collected.............................................60
Section 5.12. Restoration of Rights and Remedies.........................................61
Section 5.13. Rights and Remedies Cumulative.............................................61
Section 5.14. Undertaking for Costs......................................................61
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Section 5.15. Waiver of Stay, Extension or Usury Laws....................................61
ARTICLE 6 The Trustee......................................................................62
Section 6.1. Certain Duties and Responsibilities........................................62
Section 6.2. Notice of Defaults.........................................................62
Section 6.3. Certain Rights of Trustee..................................................62
Section 6.4. Not Responsible for Recitals or Issuance of Securities.....................63
Section 6.5. May Hold Securities........................................................63
Section 6.6. Money Held in Trust........................................................64
Section 6.7. Compensation and Reimbursement.............................................64
Section 6.8. Conflicting Interests......................................................64
Section 6.9. Corporate Trustee Required; Eligibility....................................65
Section 6.10. Resignation and Removal; Appointment of Successor..........................65
Section 6.11. Acceptance of Appointment by Successor.....................................66
Section 6.12. Merger, Conversion, Consolidation or Succession to Business................68
Section 6.13. Preferential Collection of Claims Against Company..........................68
Section 6.14. Appointment of Authenticating Agent........................................68
ARTICLE 7 Consolidation, Merger or Sale of Assets by the Company...........................70
Section 7.1. Consolidation, Merger or Sale of Assets Permitted..........................70
ARTICLE 8 Supplemental Indentures..........................................................71
Section 8.1. Supplemental Indentures Without Consent of Holders.........................71
Section 8.2. Supplemental Indentures With Consent of Holders............................73
Section 8.3. Compliance with Trust Indenture Act........................................74
Section 8.4. Execution of Supplemental Indentures.......................................74
Section 8.5. Effect of Supplemental Indentures..........................................74
Section 8.6. Reference in Securities to Supplemental Indentures.........................75
Section 8.7. Notice of Supplemental Indentures..........................................75
ARTICLE 9 Covenants........................................................................75
Section 9.1. Payment of Principal, Premium, if any, and Interest........................75
Section 9.2. Maintenance of Office or Agency............................................75
Section 9.3. Money for Securities Payments to Be Held in Trust; Unclaimed Money.........77
Section 9.4. Corporate Existence........................................................78
Section 9.5. Annual Review Certificate..................................................78
Section 9.6. Waiver of Certain Covenants................................................79
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ARTICLE 10 Holders' Lists and Reports by Trustee and Company................................79
Section 10.1. Company to Furnish Trustee Names and Addresses of Holders..................79
Section 10.2. Preservation of Information, Communications to Holders.....................80
Section 10.3. Reports by Trustee.........................................................80
Section 10.4. Reports by the Company and the Guarantors..................................80
ARTICLE 11 Redemption.......................................................................81
Section 11.1. Applicability of Article...................................................81
Section 11.2. Election to Redeem; Notice to Trustee......................................81
Section 11.3. Selection of Securities to Be Redeemed.....................................82
Section 11.4. Notice of Redemption.......................................................82
Section 11.5. Deposit of Redemption Price................................................83
Section 11.6. Securities Payable on Redemption Date......................................84
Section 11.7. Securities Redeemed in Part................................................85
ARTICLE 12 Sinking Funds....................................................................85
Section 12.1. Applicability of Article...................................................85
Section 12.2. Satisfaction of Sinking Fund Payments with Securities......................85
Section 12.3. Redemption of Securities for Sinking Fund..................................86
ARTICLE 13 Meetings of Holders of Bearer Securities.........................................86
Section 13.1. Purposes for Which Meetings May Be Called..................................86
Section 13.2. Call, Notice and Place of Meetings.........................................86
Section 13.3. Persons Entitled to Vote at Meetings.......................................87
Section 13.4. Quorum; Action.............................................................87
Section 13.5. Determination of Voting Rights; Conduct and Adjournment of Meetings........88
Section 13.6. Counting Votes and Recording Action of Meetings............................89
ARTICLE 14 Conversion or Exchange of Securities.............................................90
Section 14.1. Applicability of Article...................................................90
Section 14.2. Exercise of Conversion or Exchange Privilege...............................90
Section 14.3. No Fractional Equity Securities............................................92
Section 14.4. Adjustment of Conversion or Exchange Price; Consolidation or Merger........92
Section 14.5. Notice of Certain Corporate Actions........................................93
Section 14.6. Reservation of Equity Securities...........................................94
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Section 14.7. Payment of Certain Taxes Upon Conversion or Exchange......................94
Section 14.8. Duties of Trustee Regarding Conversion or Exchange........................94
Section 14.9. Repayment of Certain Funds Upon Conversion or Exchange....................95
ARTICLE 15 Subordination of Securities and Senior Subordinated Guarantees....................95
Section 15.1. Securities Subordinate to Senior Debt.....................................95
Section 15.2. Payment Over of Proceeds Upon Dissolution, Etc............................95
Section 15.3. No Payment When Senior Debt in Default....................................97
Section 15.4. Certain Payments Permitted................................................99
Section 15.5. Subrogation to Rights of Holders of Senior Debt..........................100
Section 15.6. Provisions Solely to Define Relative Rights..............................100
Section 15.7. Trustee to Effectuate Subordination......................................101
Section 15.8. No Waiver of Subordination Provisions....................................101
Section 15.9. Notice to Trustee........................................................101
Section 15.10. Reliance on Judicial Order or Certificate of Liquidating Agent...........102
Section 15.11. Trustee Not Fiduciary for Holders of Senior Debt.........................102
Section 15.12. Rights of Trustee as Holder of Senior Debt; Preservation
of Trustee's Rights......................................................102
Section 15.13. Article Applicable to Paying Agents......................................103
Section 15.14. Defeasance of this Article 15............................................103
ARTICLE 16 Senior Subordinated Guarantee....................................................103
Section 16.1. Senior Subordinated Guarantee............................................103
Section 16.2. Execution and Delivery of Senior Subordinated Guarantees.................106
Section 16.3. Subsidiary Guarantors May Consolidate, Etc., on Certain Terms............106
Section 16.4. Release of Guarantors....................................................106
Section 16.5. Additional Guarantors....................................................107
9
SENIOR SUBORDINATED INDENTURE (the "Indenture"), dated as of
___________, 1997, between 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 BANK 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 unsecured
senior 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 Senior 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 Senior
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 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 covenanted and agreed as
follows for the equal and ratable benefit of the Holders of the Securities:
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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.
"Agent Banks" means Xxxxxxx Sachs Credit Partners L.P., Credit
Suisse First Boston and Citibank, N.A.
"Allied" means Allied Waste Industries, Inc., a Delaware
corporation.
"Allied Guarantee" means the unconditional guarantee, on a
senior subordinated basis, by Allied of the due and punctual payment of
principal (premium, if any) and interest on the Securities, as provided pursuant
to Article 16.
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"Authenticating Agent" means any authenticating agent
appointed by the Trustee pursuant to Section 6.13.
"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 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 of 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 amounts due under such lease prior to the first
date upon which such lease may be terminated by the lessee
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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 Securities Exchange Act of
1934, as amended, 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 issuable as Bearer
Securities, 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 third 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 third 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.
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"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 00 Xxxx
Xxxxxx, 0xx Xxxxx, Window 2, New York, New York 10005, Attention: Corporate
Trust Administration.
"Credit Agreement" means the Amended and Restated Credit
Agreement dated June 5, 1997 among the Company, Allied, as guarantor, Xxxxxxx
Xxxxx 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 any event which is, or after notice or passage
of time, or both, would be, an Event of Default.
"Depositary", when used with respect to the Securities of or
within any series issuable or issued in whole or in part in global form, 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 as at the
time of payment is legal tender for the payment of public and private debts.
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"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 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 (and 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.
"Government Obligations" means securities which are (i) direct
obligations of the United States or, if specified as contemplated by Section
3.1, the government which issued the currency in which the Securities of a
particular series are payable, for the payment of which its full faith and
credit is pledged or (ii) obligations of a Person controlled or supervised by
and acting as an agency or instrumentality of the United States or, if specified
as contemplated by Section 3.1, such government which issued the foreign
currency in which the Securities of a particular series are payable, the payment
of which is unconditionally guaranteed as a full faith and credit obligation by
the United States or such other government, which, in either case, are not
callable or redeemable at the option of the issuer thereof, and shall also
include a depository receipt issued by a bank or trust company as custodian with
respect to any such Government Obligation or a specific payment of interest on
or principal of any such Government Obligation held by such custodian for the
account of the holder of a depository receipt, provided that (except as required
by law) such custodian is not authorized to make any deduction from the
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amount payable to the holder of such depository receipt from any amount received
by the custodian in respect of the Government Obligation evidenced by such
depository receipt.
"Guarantors" means Allied and the Subsidiary Guarantors.
"Guaranty" by any Person means any obligation, contingent or
otherwise, of such Person guaranteeing any Debt, or dividends or distributions
on any equity security, of any other Person (the "primary obligor") in any
manner, whether directly or indirectly, and including, without limitation, any
obligation of such Person (i) to purchase or pay (or advance or supply funds for
the purchase or payment of) such Debt or to purchase (or to advance or supply
funds for the purchase of) any security for the payment of such Debt, (ii) to
purchase property, securities or services for the purpose of assuring the holder
of such Debt of the payment of such Debt or (iii) to maintain working capital,
equity capital or other financial statement condition or liquidity of the
primary obligor so as to enable the primary obligor to pay such Debt (and
"Guaranteed", "Guaranteeing" and "Guarantor" shall have meanings correlative to
the foregoing); provided, however, that the Guaranty by any Person shall not
include endorsements by such Person for collection or deposit, in either case,
in the ordinary course of business.
"Holder" means, with respect to a Bearer Security, a bearer
thereof or of an interest coupon appertaining thereto and, with respect to a
Registered Security, a Person in whose name a Security is registered on the
Register.
"Indenture" means this Subordinated Indenture as amended and
restated hereby or as amended, waived or supplemented from time to time and
shall include and incorporate by reference the forms and terms of particular
series of Securities established as contemplated hereunder.
"Indexed Security" means a Security the terms of which provide
that the principal amount thereof payable at Stated Maturity may be more or less
than the principal face amount thereof at original issuance.
"interest", when used with respect to an Original Issue
Discount Security which by its terms bears interest only after maturity, means
interest payable after maturity and, when used with respect to any other
Security, means the interest payable thereon in accordance with its terms.
"Interest Payment Date", when used with respect to any
Security, means the Stated Maturity of an installment of interest on such
Security.
"Lien" means, with respect to any property or assets, any
mortgage or deed of trust, pledge, hypothecation, assignment, deposit
arrangement, security interest, lien, charge, easement or title exception,
encumbrance, preference, priority or other security agreement or preferential
arrangement of any kind or nature whatsoever on or with respect to such
property or assets (including any conditional sale or other title retention
agreement having substantially the same economic effect as any of the
foregoing).
"Market Exchange Rate" means, unless otherwise specified with
respect to any Securities pursuant to Section 3.1, (i) for a conversion of any
currency unit into Dollars, the exchange rate between the relevant currency unit
and Dollars calculated by
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the method specified pursuant to Section 3.1 for the Securities of the relevant
series, and (ii) for a conversion of any Foreign Currency into Dollars, the
applicable exchange rate between such Foreign Currency and Dollars set forth
under the heading, "Currency Trading -- Exchange Rates" in the "Money &
Investing" section of The Wall Street Journal (or in such other section of The
Wall Street Journal in which foreign currency exchange rates may be regularly
published from time to time) as of the most recent available date, in each case
as determined by the Trustee. Unless otherwise specified with respect to any
Securities pursuant to Section 3.1, in the event of the unavailability of any of
the exchange rates provided for in the foregoing clauses (i) and (ii), the
Trustee shall use the average of the quotations from at least three major banks
acceptable to the Company in The City of New York (which may include any such
bank acting as Trustee under this Indenture), or such other quotations as the
Trustee and the Company shall deem appropriate.
"Maturity", when used with respect to any Security, means the
date on which the principal of such Security or an installment of principal
becomes due and payable as therein or herein provided, whether at the Stated
Maturity or by declaration of acceleration, call for redemption or otherwise.
"Officer" means the Chairman of the Board, the President, the
Chief Executive Officer, the Chief Operating Officer, the Chief Financial
Officer, any Vice President, the Treasurer, any Assistant Treasurer, the
Secretary or any Assistant Secretary of the Company.
"Officers' Certificate" of the Company or any Guarantor means
a certificate signed by the Chairman of the Board, a Vice Chairman of the Board,
the President or a Vice President, and by the Treasurer, an Assistant Treasurer,
the Secretary or an Assistant Secretary, of the Company or such Guarantor, as
the case may be, and delivered to the Trustee. Unless the context otherwise
requires, each reference herein to an "Officers' Certificate" shall mean an
Officers' Certificate of the Company. References herein, or in any Security or
Senior 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.
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"Outstanding", when used with respect to Securities, means, as
of the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities, or portions thereof, for whose payment or
redemption money or Government Obligations (as provided for in Section 4.6) 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
shall act as its own 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
covenant 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
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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 or any other obligor upon the Securities or any Affiliate of the
Company or of such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in 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 or any
other obligor upon the Securities or any Affiliate of the Company or of such
other obligor.
"Paying Agent" means any Person authorized by the Company to
pay the principal of, premium, if any, interest, if any, and any other payments
due on any Securities on behalf of the Company.
"Periodic Offering" means an offering of Securities of a
series from time to time the specific terms of which Securities, including,
without limitation, the rate or rates of interest or formula or formulae for
determining the rate or rates of interest thereon, if any, the Maturity thereof,
the redemption provisions, if any, and any other terms specified as contemplated
by Section 3.1, with respect thereto, are to be determined by the Company upon
the issuance of such Securities.
"Person" means any individual, corporation, partnership, joint
venture, limited liability company, association, joint-stock company, trust,
other entity, unincorporated organization or government or any agency or
political subdivision thereof.
"Place of Payment", when used with respect to the Securities
of or within any series, means the place or places where the principal of,
premium, if any, interest and any other payments due on such Securities are
payable as specified as contemplated by Sections 3.1 and 9.2.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that evidenced
by such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 3.6 in exchange for or in
lieu of a mutilated, destroyed, lost or stolen
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Security shall be deemed to evidence the same debt as the mutilated, destroyed,
lost or stolen Security.
"Redeemable Interest" of any Person means any equity security
of or other ownership interest in such Person that by its terms (or by the
terms of any security into which it is convertible or for which it is
exchangeable) or otherwise (including upon the occurrence of an event) matures
or is required to be redeemed (pursuant to any sinking fund obligation or
otherwise) or is convertible into or exchangeable for Debt or is redeemable at
the option of the holder thereof, in whole or in part, at any time prior to the
final Stated Maturity of the Securities.
"Redemption Date", when used with respect to any Security to
be redeemed, means the date fixed for such redemption pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to
be redeemed, in whole or in part, means the price at which it is to be redeemed
pursuant to this Indenture.
"Registered Security" means any Security issued hereunder and
registered as to principal and interest in the Register.
"Regular Record Date" for the interest payable on any Interest
Payment Date on the Securities of or within any series means the date specified
for that purpose as contemplated by Section 3.1.
"Responsible Officer", when used with respect to the Trustee,
shall mean any vice president, the secretary, any assistant secretary, the
treasurer, any assistant treasurer, any trust officer or assistant trust
officer, or any officer of the Trustee customarily performing functions similar
to those performed by any of the above designated officers and also shall mean,
with respect to a particular corporate trust matter, any officer to whom such
matter is referred because of his knowledge of and familiarity with the
particular subject.
"Restricted Subsidiary" means, with respect to any series of
Securities, any Subsidiary of the Company which is designated by the Company as
a Restricted Subsidiary with respect to such series of Securities upon the
issuance of such series of Securities.
"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 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
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the account of such Person, (v) every Capital Lease Obligation of such Person
and (d) every 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 of the
applicable Indenture or thereafter incurred, (iii) with respect to the Company
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).
"Senior Subordinated Guarantees" means the Allied Guarantee
and the Subsidiary Guarantees.
"Special Record Date" for the payment of any Defaulted
Interest means a date fixed by the Trustee pursuant to Section 3.7.
"Stated Maturity", when used with respect to any Security or
any installment of principal thereof or interest thereon, means the date
specified in such Security or in an interest coupon representing such
installment of interest as the fixed date on which the principal of such
Security or such installment of principal or interest is due and payable.
"Subsidiary" of any Person means 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 senior subordinated basis by the respective Subsidiary Guarantors of the due
and punctual payment of principal, premium, if any, and interest on the
Securities, as provided pursuant to Article 16.
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"Subsidiary Guarantors", as of any time, means each and all of
the Restricted Subsidiaries at such time, other than Reliant Insurance Company,
which Subsidiary Guarantors as of the date of this Indenture are set forth in
Schedule I hereto.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as
amended and as in effect on the date of this Indenture, except as provided in
Section 8.3; provided, however, that if the Trust Indenture Act of 1939 is
amended after such date, "Trust Indenture Act" means, to the extent required by
any such amendment, the Trust Indenture Act of 1939 as so amended.
"Trustee" means the party named as such in the first paragraph
of this Indenture until a successor Trustee replaces it pursuant to the
applicable provisions of this Indenture, and thereafter means such successor
Trustee and if, at any time, there is more 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.
"U.S. Person" means, unless otherwise specified with respect
to the Securities of any series as contemplated by Section 3.1, a citizen,
national 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."
(b) The following terms shall have the meanings specified in
the Sections referred to opposite such term below:
Term Section
---- -------
"Act" 1.4(a)
"Bankruptcy Law" 5.1
"Common Stock" 14.1(b)(i)
"Company Securities Payment" 15.2
"covenant defeasance" 4.5
"Custodian" 5.1
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Term Section
---- -------
"Defaulted Interest" 3.7(b)
"defeasance" 4.4
"Equity Securities" 14.1(b)
"Event of Default" 5.1
"NASDAQ" 14.3
"Payment Blockage Period" 15.3
"Preferred Stock" 14.1(b)(ii)
"Register" 3.5
"Registrar" 3.5
"Senior Non-Monetary Default" 15.3
"Senior Payment Default" 15.3
"Transaction" 9.6
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 covenant provided for in this Indenture (other than pursuant to
Section 2.3, the last paragraph of Section 3.3 and Section 9.7) shall include:
(1) a statement that each individual signing such certificate
or opinion has read such condition or covenant and the definitions
herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual,
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 covenant has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 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
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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 third paragraph of Section 13.4, either in person or by
proxies duly appointed in writing, at any
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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 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, in the case of Holders of Securities of a series
issuable as Bearer Securities, 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 issuable as Bearer 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.
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(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,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Trustee at its Corporate Trust Office,
Attention: Corporate Trust Department, or at
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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
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid, to 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 once 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,
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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.
In case by reason of suspension of regular mail service or any
other cause it shall be impracticable to give such notice by mail, then such
notification as shall be made with the approval of the Trustee shall constitute
sufficient notification for every purpose hereunder.
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. Successor and Assigns. All covenants and
agreements in this Indenture by the Company or any Guarantor shall bind its
successors and assigns, whether so expressed or not.
Section 1.9. Separability. In case any provision of this
Indenture or the Securities or the Senior 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 Senior Subordinated Guarantees, expressed
or implied, shall give to any Person, other than the parties hereto and their
successors hereunder and the Holders, any benefit or any legal or equitable
right, remedy or claim under this Indenture.
Section 1.11. Incorporators, Stockholders, Officers and
Directors of the Company Exempt from Individual Liability. No recourse under or
upon any obligation, covenant 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,
stockholder, officer or director, as such, past, present or future, of the
Company or any successor Person, either directly or through the Company or any
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successor Person, whether by virtue of any constitution, statute or rule of law,
by the enforcement of any assessment or penalty, by any legal or equitable
proceeding or otherwise; it being expressly understood that all such liability
is hereby expressly waived and released as a condition of the acceptance of, and
as a part of the consideration for the execution of this Indenture and the
issuance of, the Securities and any interest coupons appertaining thereto.
Section 1.12. Governing Law; Conflict with Trust Indenture Act
. THIS INDENTURE, THE SECURITIES, THE SENIOR SUBORDINATED GUARANTEES ENDORSED
THEREON AND ANY INTEREST COUPONS APPERTAINING THERETO SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. This Indenture
is subject to the Trust Indenture Act and if any provision hereof limits,
qualifies or conflicts with the Trust Indenture Act, the Trust Indenture Act
shall control. Whether or not this Indenture is required to be qualified under
the Trust Indenture Act, the provisions of the Trust Indenture Act required to
be included in an indenture in order for such indenture to be so qualified shall
be deemed to be included in this Indenture with the same effect as if such
provisions were set forth herein and any provisions hereof which may not be
included in an indenture which is so qualified shall be deemed to be deleted or
modified to the extent such provisions would be required to be deleted or
modified in an indenture so qualified.
Section 1.13. Legal Holidays. In any case where any Interest
Payment Date, Redemption Date, sinking fund payment date, Stated Maturity or
Maturity of any Security shall not be a Business Day at any Place of Payment,
then (notwithstanding any other provision of this Indenture or of any Security
or interest coupon or any Senior 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 one currency from any moneys, funds or accounts in any
other currencies, notwithstanding any provision herein which would otherwise
permit the Trustee to commingle such amounts.
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Section 1.15. Independence of Covenants. All covenants and
agreements in this Indenture shall be given independent effect so that if a
particular action or condition is not permitted by any such covenant, the fact
that it would be permitted by an exception to, or be otherwise within the
limitations of, another covenant shall not avoid the occurrence of a Default or
an Event of Default if such action is taken or condition exists.
Section 1.16. Counterparts. This Indenture may be executed in
any number of counterparts, each of which shall be an original, but such
counterparts shall together constitute but one and the same instrument.
ARTICLE 2
SECURITY AND SENIOR SUBORDINATED GUARANTEE FORMS
Section 2.1. Forms Generally. The Securities of each series
and the interest coupons, if any, to be attached thereto and Senior 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 Senior
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 Senior
Subordinated Guarantees to be endorsed thereon, as the case may be. If temporary
Securities and Senior 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 Senior 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 Senior 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.
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The definitive Securities and interest coupons, if any, may be
printed, lithographed or engraved on steel engraved borders or may be produced
in any other manner (or, if such Securities are listed on any securities
exchange, any other manner permitted by the rules of such securities exchange),
all as determined by the officers executing such Securities and interest
coupons, if any, as evidenced by their execution of such Securities and interest
coupons, if any.
Section 2.2. Form of Trustee's Certificate of Authentication.
The Trustee's certificate of authentication shall be in substantially the
following form:
This is one of the Securities with the Senior Subordinated
Guarantees of the series described in the within-mentioned Indenture.
FIRST BANK NATIONAL ASSOCIATION,
as Trustee
By:
-----------------------------------
Authorized Signatory
Section 2.3 Form of Senior Subordinated Guarantee
SENIOR 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 senior subordinated basis to the Holder of the Security upon
which this Senior Subordinated Guarantee is endorsed, and to the Trustee on
behalf of such Holder, the due and punctual payment of the principal of (and
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.
The Senior 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
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enforceability of such Security or the Indenture, the absence of any action to
enforce the same, any creation, exchange, release or non-perfection of any Lien
on any collateral for, or any release or amendment or waiver of any term of any
other Guarantee of, or any consent to departure from any requirement of any
other Guarantee of, all or of any of the Securities, the election by the Trustee
or any of the Holders in any proceeding under Chapter 11 of the Bankruptcy Code
of the application of Section 1111(b)(2) of the Bankruptcy Code, any borrowing
or grant of a security interest by the Company, as debtor-in-possession, under
Section 364 of the Bankruptcy Code, the disallowance, under Section 502 of the
Bankruptcy Code, of all or any portion of the claims of the Trustee or any of
the Holders for payment of any of the Securities, any waiver or consent by the
Holder of such Security or by the Trustee or either of them with respect to any
provisions thereof or of the Indenture, the obtaining of any judgment against
the Company or 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 any other Person or any collateral, filing of claims with
a court in the event of insolvency or bankruptcy of the Company, any right to
require a proceeding first against the Company, protest or notice with respect
to such Security or the indebtedness evidenced thereby and all demands
whatsoever, and covenants that this Senior Subordinated Guarantee will not be
discharged except by complete performance of the obligations contained in such
Security and in this Senior Subordinated Guarantee. Each of the Guarantors
hereby agrees that, in the event of a default in payment of principal (or
premium, if any) or interest on such Security, whether at their 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 of the Guarantors to enforce this Senior Subordinated
Guarantee without first proceeding against the Company. 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, such Guarantor agrees to pay to the
Trustee for the account of the Holders, upon demand therefor, the amount that
would otherwise have been due and payable had such rights and remedies been
permitted to be exercised by the Trustee or any of the Holders.
No reference herein to the Indenture and no provision of this
Senior Subordinated Guarantee or of the Indenture shall alter or impair the
Senior Subordinated Guarantee of any Guarantor, which is absolute and
unconditional, of the due and punctual
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payment of the principal (and premium, if any) and interest on the Security upon
which this Senior Subordinated Guarantee is endorsed.
Each Guarantor shall be subrogated to all rights of the Holder
of such Security against the Company in respect of any amounts paid by such
Guarantor on account of such Security pursuant to the provisions of its Senior
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 (and premium, if
any) and interest on this Security and all other Securities issued under the
Indenture shall have been paid in full.
This Senior Subordinated Guarantee shall remain in full force
and effect and continue to be effective should any petition be filed by or
against the Company for liquidation or reorganization, should the Company 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, 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 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 Senior Subordinated Guarantee.
The Guarantors or any particular Guarantor shall be released
from this Senior 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, with the same
effect as if such Subsidiary Guarantor was named below and had executed and
delivered this Subsidiary Guarantee.
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All terms used in this Senior Subordinated Guarantee which are
defined in the Indenture referred to in the Security upon which this Senior
Subordinated Guarantee is endorsed shall have the meanings assigned to them in
such Indenture.
This Senior Subordinated Guarantee shall not be valid or
obligatory for any purpose until the certificate of authentication on the
Security upon which this Senior Subordinated Guarantee is endorsed shall have
been executed by the Trustee under the Indenture by manual signature.
Reference is made to Article Thirteen of the Indenture for
further provisions with respect to this Senior Subordinated Guarantee.
THIS SENIOR SUBORDINATED GUARANTEE SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, each of the Guarantors has caused this
Senior Subordinated Guarantee to be duly executed.
Allied Waste Industries, Inc.,
As Guarantor
By:
------------------------------------
[Officer]
Attest:
-------------------------
[Secretary]
[Assistant Secretary]
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Each of the Subsidiary Guarantors
Listed on Schedule I to the Indenture,
As Guarantor
By:*/
-----------------------------------
[Officer]
Attest:*
-------------------------
[Secretary]
[Assistant Secretary]
Section 2.4. Securities in Global Form. If Securities of or
within a series are issuable in whole or in part in global form, any such
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. Any
endorsement of a Security in global form 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 Security in permanent global form 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 Security in global form 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 Security in global form if such Security was never issued and sold
by the Company and the Company delivers to the Trustee the Security in global
form 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.
---------------------
*/ Signing as duly authorized officer for each such Subsidiary Guarantor.
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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 Securities in Global Form.
Any Security in global form authenticated and delivered hereunder shall bear a
legend in substantially the following form or in such other form as may be
specified in accordance with Section 3.1:
"THIS SECURITY IS IN GLOBAL FORM 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
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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
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;
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(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 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;
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(15) any deletions from, modifications of or additions to the
Events of Default set forth in Section 5.1 or covenants 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 covenant defeasance as may be
specified for the Securities and interest coupons, if any, of such
series, and whether, for the purpose of such defeasance or covenant
defeasance, the term "Government Obligations" shall include obligations
referred to in the definition of such term which are not obligations of
the United States or an agency or instrumentality of the United States;
(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 any
Securities of the series in global form 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
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provided in Section 3.5, the circumstances under which any such
exchange may occur;
(23) the designation of the Depositary;
(24) any restrictions on the registration, transfer or
exchange of the Securities;
(25) if the Securities of the series may be issued or
delivered (whether upon original issuance or upon exchange of a
temporary Security of such series or otherwise), or any installment of
principal or interest is payable, only upon receipt of certain
certificates or other documents or satisfaction of other conditions in
addition to those specified in this Indenture, the form and terms of
such certificates, documents or conditions;
(26) the terms and conditions of any right to convert or
exchange Securities of the series into or for Equity Securities of the
Company or other securities or property of the Company;
(27) the relative degree, if any, to which the Securities of
the series shall be senior to or be subordinated to other series of
Securities in right of payment, whether such other series of Securities
are Outstanding or not; and
(28) whether the Securities are secured or unsecured, and if
secured, the Security and related terms in connection therewith;
(29) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture) 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) 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.
(d) 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
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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, 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 Company's seal shall be reproduced on the Securities. 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 Senior 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 Senior
Subordinated Guarantees endorsed thereon, and the Trustee in accordance with
such Company Order shall authenticate and deliver such Securities with such
Senior 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
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delivered to the Trustee prior to the time of the first authentication of
Securities of such series.
If the form or terms of the Securities with the Senior
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 Senior Subordinated Guarantees endorsed thereon and accepting the
additional responsibilities under this Indenture in relation to such Securities
with Senior 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 Senior 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 Senior
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 Senior 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 Senior 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
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(4) that such Securities, together with any
interest coupons appertaining thereto, when issued by the Company
and the Guarantors and 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, enforceable
against the Company and the Guarantors in accordance with their
terms, subject to (i) bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and other similar laws of
general applicability relating to or affecting the enforcement of
creditors' rights and to general equity principles (regardless of
whether enforcement is sought in a proceeding in equity or at
law) and except further as enforcement thereof may be limited by
(A) requirements that a claim with respect to any Securities or
Senior 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 Senior Subordinated Guarantees
endorsed thereon of a series offered in a Periodic Offering, the Trustee may
rely, as to the
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authorization by the Company of any of such Securities and by the Guarantors of
any of such Senior 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 in global form,
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 Securities with Senior Subordinated
Guarantees endorsed thereon in global form 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 Security or
Securities in global form, (ii) shall be registered, if a Registered Security,
in the name of the Depositary for such Security or Securities in global form 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 Securities Exchange Act of 1934 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 Securities with Senior Subordinated
Guarantees endorsed thereon issued in global form.
Each Registered Security shall be dated the date of its
authentication and each Bearer Security shall be dated as of the date specified
pursuant to Section 3.1.
No Security or interest coupon appertaining thereto or Senior
Subordinated Guarantee endorsed thereon shall be entitled to any benefits under
this Indenture or be valid or obligatory for any purpose until authenticated by
the manual signature of one of the authorized signatories of the Trustee or an
Authenticating Agent and no interest coupon or Senior Subordinated Guarantee
shall be valid until the Security to which it appertains has been so
authenticated. Such signature upon any Security with Senior Subordinated
Guarantees endorsed thereon shall be conclusive evidence, and the only evidence,
that such Security and Senior Subordinated Guarantee has been duly authenticated
and delivered under this Indenture and is entitled to the benefits of 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.
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Notwithstanding the foregoing, if any Security shall have been
authenticated and delivered hereunder but never issued and sold by the Company,
and the Company shall deliver such Security to the Trustee for cancellation as
provided in Section 3.9 together with a written statement (which need not comply
with Section 1.2 hereof and need not be accompanied by an Officers' Certificate
or an Opinion of Counsel) stating that such Security has never been issued and
sold by the Company, for all purposes of this Indenture such Security shall be
deemed never to have been authenticated and delivered hereunder and shall not be
entitled to the benefits of this Indenture.
Section 3.4. Temporary Securities. Pending the preparation of
definitive Securities of any series, the Company and the Guarantors may execute
and, upon Company Order, the Trustee shall authenticate and deliver temporary
Securities with Senior 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 Senior
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 Senior Subordinated
Guarantees may determine, as conclusively evidenced by their execution of such
Securities and interest coupons, if any and such Senior Subordinated Guarantees.
In the case of Securities of any series, such temporary Securities may be in
global form, representing all or a portion of the Outstanding Securities of such
series.
Except in the case of temporary Securities in global form,
each of which shall be exchanged in accordance with the provisions thereof, if
temporary Securities of any series are issued, the Company and the Guarantors
will cause definitive Securities with Senior 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 Senior 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 only outside the United States. Until
so exchanged, the temporary Securities of any series shall in all respects be
entitled to the
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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.
Upon surrender for registration of transfer of any Registered
Security of any series at the office or agency maintained pursuant to Section
9.2 in a Place of Payment for that series, the Company and the Guarantors shall
execute, and the Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Registered Securities with
Senior 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 shall execute, and the Trustee shall authenticate and
deliver, the Registered Securities 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
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46
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 Security in global form
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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)(23) shall no longer be effective with respect to the Securities
of such series and the Company and the Guarantors shall execute, and the
Trustee, upon receipt of a Company Order for the authentication and delivery of
certificated Securities with Senior Subordinated Guarantees endorsed thereon of
such series of like tenor, shall authenticate and deliver, Securities with
Senior 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 Security or Securities of such
series of like tenor in global form in exchange for such Security or Securities
in global form.
The Company may at any time in its sole discretion determine
that Securities issued in global form shall no longer be represented by such a
Security or Securities in global form. In such event the Company and the
Guarantors shall execute, and the Trustee, upon receipt of a Company Order for
the authentication and delivery of certificated Securities with Senior
Subordinated Guarantees endorsed thereon of such series of like tenor, shall
authenticate and deliver, Securities with Senior 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 Security or Securities of such series of like tenor in
global form in exchange for such Security or Securities in global form.
If specified by the Company pursuant to Section 3.1 with
respect to a series of Securities, the Depositary for such series may surrender
a Security in global form 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,
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(i) to each Person specified by such Depositary a new
certificated Security or Securities with Senior 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 Security in global form; and
(ii) to such Depositary a new Security with Senior
Subordinated Guarantees endorsed thereon in global form of like tenor in a
denomination equal to the difference, if any, between the principal amount of
the surrendered Security in global form and the aggregate principal amount of
certificated Securities delivered to Holders thereof.
Upon the exchange of a Security with Senior Subordinated
Guarantees endorsed thereon in global form for Securities with Senior
Subordinated Guarantees endorsed thereon in certificated form, such Security
with Senior Subordinated Guarantees endorsed thereon in global form shall be
cancelled by the Trustee. Unless expressly provided with respect to the
Securities with Senior Subordinated Guarantees endorsed thereon of any series
that such Security with Senior Subordinated Guarantees endorsed thereon may be
exchanged for Bearer Securities, Securities with Senior Subordinated Guarantees
endorsed thereon in certificated form issued in exchange for a Security with
Senior Subordinated Guarantees endorsed thereon in global form pursuant to this
Section shall be registered in such names and in such authorized denominations
as the Depositary for such Security with Senior Subordinated Guarantees endorsed
thereon in global form, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee in writing. The Trustee
shall deliver such Securities with Senior Subordinated Guarantees endorsed
thereon to the Persons in whose names such Securities with Senior 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 Senior Subordinated Guarantees endorsed thereon
which the Holder making the exchange is entitled to receive.
All Securities with Senior Subordinated Guarantees endorsed
thereon issued upon any registration of transfer or upon any exchange of
Securities with Senior Subordinated Guarantees thereon shall be the valid
obligations of the Company and the Guarantors, evidencing the same debt, and
entitled to the same benefits under this Indenture, as the Securities with
Senior 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
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49
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 and the Guarantors
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 or 11.7 not
involving any transfer.
The Company and the Guarantors shall not be required (i) to
issue, register the transfer of, or exchange any Securities with Senior
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 Senior 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 Senior 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 Senior
Subordinated Guarantees endorsed thereon, if such surrendered Security was a
Registered Security, or a replacement Bearer Security with Senior 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
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Security with a destroyed, lost or stolen interest coupon and (ii) such security
or indemnity as may be required by them to save each of them and any agent of
either of them harmless, then, in the absence of notice to the Company or the
Trustee that such Security or interest coupon has been acquired by a bona fide
purchaser, the Company and the Guarantors shall execute and the Trustee shall
authenticate and deliver in lieu of any such destroyed, lost or stolen Security
or in exchange for the Security to which a destroyed, lost or stolen interest
coupon appertains (with all appurtenant interest coupons not destroyed, lost or
stolen), a replacement Registered Security with Senior Subordinated Guarantees
endorsed thereon, if such Holder's claim appertains to a Registered Security, or
a replacement Bearer Security with Senior 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 with interest coupons corresponding to the
interest coupons, if any, appertaining to the destroyed, lost or stolen
Security.
In case any such mutilated, destroyed, lost or stolen Security
or interest coupon has become or is about to become due and payable, the Company
and the Guarantors in their discretion may, instead of issuing a new Security or
interest coupon with Senior 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 Senior 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
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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 bear 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.
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(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 on the relevant Regular Record Date by virtue
of their having been such Holders, 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
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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) Subject to the provisions of Section 14.2, 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 a Stated Maturity or by declaration of acceleration,
call for redemption, or otherwise, prior to such Interest Payment Date),
interest whose Stated Maturity is on such Interest Payment Date shall be payable
on such Interest Payment Date notwithstanding such conversion or exchange and
such interest (whether or not punctually paid or duly provided for) shall be
paid to the Person in whose name that Registered Security (or any one or more
Predecessor Securities) is registered at the close of business on such Regular
Record Date. Except as otherwise expressly provided in the immediately preceding
sentence, in the case of any Security which is converted or exchanged, interest
whose Stated Maturity is after the date of conversion or exchange of such
Security shall not be payable.
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Section 3.8. Persons Deemed Owners. Unless otherwise provided
as contemplated by Section 3.1, prior to due presentment of any Registered
Security for registration of transfer, the Company, the Guarantors, the Trustee
and any agent of the Company, any Guarantor or the Trustee may treat the Person
in whose name such Registered Security is registered as the owner of such
Registered Security for the purpose of receiving payment of principal of,
premium, if any, and (subject to Section 3.7) interest on such Registered
Security and for all other purposes whatsoever, whether or not such Registered
Security be overdue, and neither the Company, the Guarantors, 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 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 Security in global form, or for maintaining,
supervising or reviewing any records relating to such beneficial ownership
interests. No holder of any beneficial interest in any Security in global form,
held on its behalf by or through a Depositary, shall have any rights under this
Indenture with respect to such Security in global form, 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 Security in global
form for all purposes whatsoever. With respect to any Security in global form,
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 Security in global form or
impair, as between such Depositary and owners of beneficial interests in such
Security in global form, the operation of customary practices governing the
exercise of the rights of such Depositary (or its nominee) as Holder of such
Security in global form.
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
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with the Senior 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
Senior 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 Senior 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.
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ARTICLE 4
SATISFACTION, DISCHARGE AND DEFEASANCE
Section 4.1. Termination of Company's Obligations Under the
Indenture. (a) 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
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(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 6.13 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, the last paragraph of Section 9.3
and Section 10.1 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 Covenant Defeasance. Except as otherwise
specified as contemplated by Section 3.1 for the Securities of any series, the
provisions of Sections 4.3 through 4.9 inclusive, with such modifications
thereto as may be specified pursuant to
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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 Section 4.7 and the other Sections of
this Indenture referred to in clause (ii) of this Section, and to have satisfied
all its other obligations under such Securities and any interest coupons
appertaining thereto and this Indenture insofar as such Securities and any
interest coupons appertaining thereto are concerned (and the Trustee, upon
payment of all amounts due it under Section 6.7, at the expense of the Company,
shall on a Company Order execute proper instruments acknowledging the same) and
(ii) the Guarantors shall be released from all of their obligations under their
Senior Subordinated Guarantees and under Article 16 of this Indenture, except
the following which shall survive until otherwise terminated or discharged
hereunder: (i) 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; (ii)
the Company's obligations with respect to such Securities under Sections 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); (iii) the Company's obligations with respect to a conversion or
exchange of such Securities; (iv) the rights, powers, trusts, duties and
immunities of the Trustee hereunder and (v) 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 covenant 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. Covenant Defeasance. On and after the date on
which the conditions set forth in Section 4.6 (other than Section 4.6(c)) are
satisfied with respect to the Securities of or within any series, (i) the
Company shall be released from its obligations under Sections 7.1 and 9.4 and,
if specified pursuant to Section 3.1, its obligations under any other covenant,
with respect to such Securities and any interest coupons appertaining thereto
and (ii) the occurrence of any event specified in Sections 5.1(3) or 5.1(7)
(with respect to any of the obligations described in clause (i) above) or
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5.1(4) shall be deemed not to be or result in a Default or Event of Default
(hereinafter, "covenant 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 or 9.4, such other covenant specified
pursuant to Section 3.1, or Section 5.1(4), but shall continue to be deemed
"Outstanding" for all other purposes hereunder. For this purpose, such covenant
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 covenant, whether directly or indirectly, by reason of any
reference elsewhere herein to any such Section or such other covenant or by
reason of reference in any such Section or such other covenant 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(3), 5.1(4) or
5.1(7) 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 Covenant Defeasance.
The following shall be the conditions to application of Section 4.4 or Section
4.5 to any Securities of or within a series and any interest coupons
appertaining thereto:
(a) The Company shall have deposited or caused to be deposited
irrevocably with the Trustee (or another trustee satisfying the
requirements of Section 6.9 who shall agree to comply with, and shall
be entitled to the benefits of, 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 payments referred to in clauses
(x) and (y) of this Section 4.6(a), specifically pledged as security
for, and dedicated solely to, the benefit of the Holders of such
Securities and any interest coupons appertaining thereto, with written
instructions to the Trustee as to the application thereof, (A) money in
an amount (in such currency, currencies or currency unit or units in
which such Securities and any interest coupons appertaining thereto are
then specified as payable at Maturity), or (B) if Securities of such
series are not subject to repayment at the option of Holders,
Government Obligations which through the payment of interest and
principal in respect thereof in accordance with their terms will
provide, not later than one day before the due date of any payment
referred to in clause (x) or (y) of this Section 4.6(a), 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 or a nationally recognized investment banking firm
expressed in a written certification thereof delivered to the Trustee,
to pay and discharge, and which shall be applied
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by the Trustee to pay and discharge, (x) the principal of, premium, if
any, and interest, if any, on such Securities and any interest coupons
appertaining thereto on the Maturity of such principal or installment
of principal or 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 such
Securities and any interest coupons appertaining thereto. Before such a
deposit the Company may make arrangements satisfactory to the Trustee
for the redemption of Securities at a future date or dates in
accordance with Article 11 which shall be given effect in applying the
foregoing.
(b) No Default or Event of Default with respect to the
Securities of that series shall have occurred or be continuing on the
date of such a deposit or shall occur as a result of such a deposit or,
insofar as Sections 5.1(5) and (6) are concerned, shall occur 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).
(c) In the case of an election under Section 4.4, the Company
shall have delivered to the Trustee an Officers' Certificate and an
Opinion of Counsel to the effect that (i) the Company has received
from, or there has been published by, the Internal Revenue Service a
ruling, or (ii) since the date of execution of this Indenture, there
has been a change in the applicable U.S. Federal income tax law, in
either case to the effect that, and based thereon such opinion shall
confirm that, the Holders of such Securities and any interest coupons
appertaining thereto will not recognize income, gain or loss for U.S.
Federal income tax purposes as a result of such defeasance and will be
subject to U.S. Federal income tax on the same amount and in the same
manner and at the same times, as would have been the case if such
deposit, defeasance and discharge had not occurred.
(d) In the case of an election under Section 4.5, the Company
shall have delivered to the Trustee an Officers' Certificate and an
Opinion of Counsel to the effect that the Holders of such Securities
and any interest coupons appertaining thereto will not recognize
income, gain or loss for U.S. Federal income tax purposes as a result
of such covenant defeasance and will be subject to U.S. Federal income
tax on the same amount and in the same manner and at the same times, as
would have been the case if such deposit and covenant defeasance had
not occurred.
(e) The Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent to the defeasance under Section 4.4 or the
covenant defeasance under Section 4.5 (as the case may be) have been
complied with.
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(f) Such defeasance or covenant 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.
(g) At the time of such deposit: (A) no Default in the payment
of principal of (or premium, if any) or interest on any Senior Debt
shall have occurred and be continuing or (B) no other Event of Default
with respect to any Senior Debt 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, 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.
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. 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).
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 and any other amount received on such
Government Obligations.
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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, 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" occurs
with respect to the Securities of any series if (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(1) default in the payment of 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;
(2) default in the payment of any installment of the principal
of or any premium on any Security of that series when the same becomes
due and payable at its Maturity;
(3) failure by the Company or each Guarantor to comply with
any of its agreements or covenants in, or any of the provisions of,
this Indenture with respect to any Security of that series (other than
an agreement, covenant or provision for which non-compliance is
elsewhere in this Section specifically dealt with), and such
non-compliance continues for a period of 90 days after there has been
given, by registered or certified mail, return receipt requested, to
the Company by the Trustee or to the Company and the Trustee by the
Holders of at least 25% in
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aggregate 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;
(4) default by the Company or any Guarantor under any
mortgage, indenture or instrument under which there may be issued, or
by which there may be secured or evidenced, any Debt (including this
Indenture) having an aggregate principal amount outstanding of at least
$25,000,000, whether such Debt now exists or shall hereafter be
created, and, as a result of such default, such Debt shall become due
and payable, whether by acceleration or otherwise, and such
acceleration shall not be rescinded, annulled or cured within a period
of 30 days after there has been given, by registered or certified mail,
return receipt requested, to the Company by the Trustee or to the
Company and the Trustee by the Holders of at least 25% in aggregate
principal amount of the Outstanding Securities of that series a written
notice specifying such default and requiring it to be remedied and
stating that such notice is a "Notice of Default" hereunder (it being
understood however, that the Trustee shall not be deemed to have
knowledge of such default under such agreement or instrument unless a
Responsible Officer of the Trustee shall have received written notice
thereof from the Company, from any Holder, from the holder of any such
Debt or from the trustee under any such agreement or other instrument);
provided, however, that if such default under such mortgage, indenture
or instrument is remedied or cured by the Company or waived by the
holders of such Debt, then the Event of Default hereunder by reason
thereof shall be deemed likewise to have been thereupon remedied, cured
or waived without further action upon the part of either the Trustee or
any of such Holders;
(5) the Company or any Guarantor pursuant to or within the
meaning of any Bankruptcy Law (A) commences a voluntary case, (B)
consents to the entry of an order for relief against it in an
involuntary case, (C) consents to the appointment of a Custodian of it
or for all or substantially all of its property, (D) makes a general
assignment for the benefit of its creditors or (E) admits in writing
its inability generally to pay its debts as they become due;
(6) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that (A) is for relief against the
Company or any Guarantor in an involuntary case, (B) appoints a
Custodian of the Company or any Guarantor or for all or substantially
all of its property, or (C) orders the liquidation of the Company or
any Guarantor, and such order or decree remains unstayed and in effect
for 90 days; or
(7) there occurs any other Event of Default provided as
contemplated by Section 3.1 with respect to Securities of that series.
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The term "Bankruptcy Law" means Xxxxx 00, Xxxxxx Xxxxxx
Bankruptcy Code of 1978, as amended, or any similar United States federal or
state law relating to bankruptcy, insolvency, receivership, reorganization or
relief of debtors or any amendment to, successor to or change in any such law.
The term "Custodian" means any receiver, trustee, assignee, liquidator,
custodian, sequestrator or similar official under any Bankruptcy Law.
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 (5) or (6) 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 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)
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
(5) or (6) 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 and accrued interest, if any, on all the Securities of
that series shall ipso facto 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 with
respect to Securities of any series has been made and before a judgment or
decree for payment of the money due has been obtained by the Trustee as
hereinafter in this Article provided, the Holders of a majority in aggregate
principal amount of the Outstanding Securities of that series, by written notice
to the Trustee, may rescind and annul such declaration and its consequences if
all existing Defaults and Events of Default with respect to Securities of that
series, other than the non-payment of the principal of Securities of that series
which have become due solely by such declaration of acceleration, have been
cured or waived as provided in Section 5.7. No such rescission shall affect any
subsequent default or impair any right consequent thereon.
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Section 5.3. Collection of Indebtedness and Suits for
Enforcement by Trustee. The Company covenants that if
(1) default is made in the payment of any interest on any
Security or interest coupon, if any, when such interest becomes due and
payable and such default continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or
premium, if any, on) any Security at the Maturity thereof, the Company
will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities 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 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 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 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 covenant or 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,
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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 the Senior Subordinated Guarantees 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.
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 (i) a Default or Event of Default 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 a covenant 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
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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:
(1) the Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the Securities
of that series;
(2) the Holders of 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;
(3) 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;
(4) 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
(5) 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 shall have any right in any manner
whatever by virtue of, or by availing of, any provision of this Indenture to
affect, disturb or prejudice the rights of any other of such Holders, or to
obtain or to seek to obtain priority or preference over any other of such
Holders or to enforce any right under this Indenture, except in the manner
herein provided and for the equal and ratable benefit of all of such Holders.
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Section 5.10. Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, but subject to Section
9.2, 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, on the Redemption 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, 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.
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.
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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.
Section 5.15. Waiver of Stay, Extension or Usury Laws. Each of
the Company and the Guarantors covenants (to the extent that it may lawfully do
so) that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay or extension law
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 covenants or
the performance of this Indenture; 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 covenants that it will not hinder, delay or
impede the execution of any power herein granted to the Trustee, but will suffer
and permit the execution of every such power as though no such law had been
enacted.
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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(3) with respect to Securities of such
series, no such notice to Holders shall be given until at least 30 days after
the occurrence thereof. For the purpose of this Section, the term "default"
means any event which is, or after notice or lapse of time or both would become,
an Event of Default with respect to Securities of such series.
Section 6.3. Certain Rights of Trustee. Subject to the
provisions of Section 6.1:
(1) 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;
(2) 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;
(3) 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;
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(4) 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;
(5) 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;
(6) 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;
(7) 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
(8) 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 covenants set forth in Article 9 beyond its good faith
review of any certificates or other notices received by it from the
Company or any Guarantor.
Section 6.4. Not Responsible for Recitals or Issuance of
Securities. The recitals contained herein and in the Securities and in the
Senior 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 Senior 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
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Guarantor or the Trustee, in its individual or any other capacity, may become
the owner or pledgee of Securities and, subject to Sections 6.8 and 6.13, may
otherwise deal with the Company, any Guarantor and any other obligor upon the
Securities and the Senior 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. 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
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of its
agents and counsel), except any such expense, disbursement or advance
as may be attributable to its negligence or bad faith; and
(3) to indemnify the Trustee 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, (iii) the Indenture
dated as of _______ __, 1997 between
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Allied and the Trustee relating to Allied's senior debt securities, (iv) the
Indenture dated as of _______ __, 1997 by and among Allied and the Trustee
relating to Allied's senior subordinated debt securities and (v) the Indenture
dated as of _______ __, 1997 by and among the Company, Allied, as guarantor, the
Subsidiary Guarantors named therein and the Trustee relating to the Company's
senior debt securities.
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 $50,000,000 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:
(1) 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
(2) 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
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(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (A) the Company by a Board Resolution
may remove the Trustee with respect to all Securities, or (B) 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,
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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.
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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,
any Guarantor (or any other obligor upon the Securities or the Senior
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 Senior 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 $50,000,000 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
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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:
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This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
____________________________,
As Trustee
By:_________________________,
As Authenticating Agent
By:_________________________
Authorized Officer
ARTICLE 7
CONSOLIDATION, MERGER OR SALE OF ASSETS BY THE COMPANY
Section 7.1. Consolidation, Merger or Sale of Assets
Permitted. Neither the Company nor any Guarantor shall not consolidate with or
merge into, or sell, transfer, lease or otherwise dispose of its properties and
assets as, or substantially as, an entirety to, any Person unless:
(1) (A) the Company or the Guarantor, as the case may be,
will be the surviving entity or (B) the Person formed by or surviving
any such consolidation or merger (if other than the Company or the
Guarantor, as the case may be), or to which such sale, transfer, lease
or other disposition shall have been made, is an entity organized and
existing under the laws of the United States, any State thereof or the
District of Columbia;
(2) the Person formed by or surviving any such consolidation
or merger (if other than the Company or the Guarantor, as the case may
be), or to which such sale, transfer, lease or other disposition shall
have been made, expressly assumes by supplemental indenture all the
obligations of the Company or the Guarantor, as the case may be under
the Securities and this Indenture, and the Securities and this
Indenture will remain in full force and effect as so supplemented;
(3) immediately after giving effect to such consolidation,
merger, sale, transfer, lease or other disposition, no Default or Event
of Default exists; and
(4) 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 or the Guarantor, as the case may be 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
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with this Indenture and that all conditions precedent to the consummation of
such transaction under this Section 7.1 have been met.
Upon any consolidation of the Company or the Guarantor, as
the case may be, with, or merger of the Company or the Guarantor, as the case
may be, into, any other Person or any sale, transfer, lease or other disposition
of properties and assets of the Company or the Guarantor, as the case may be,
as, or substantially as, an entirety in accordance with this Section 7.1, the
successor Person FORMED by such consolidation or into which the Company or the
Guarantor, as the case may be, is merged or to which such sale, transfer, lease
or other disposition is made shall succeed to and be substituted for, and may
exercise every right and power of, the Company or the Guarantor, as the case may
be, hereunder and under the Securities and any interest coupons appertaining
thereto with the same effect as if such successor Person had been named
hereunder and thereunder and thereafter, except in the case of a lease, the
predecessor Person shall be relieved of all obligations and covenants under this
Indenture and the Securities.
ARTICLE 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:
(1) to evidence the succession of another Person to the
Company and the assumption by any such successor of the covenants and
obligations of the Company herein and in the Securities and any
interest coupons appertaining thereto; or
(2) to add to the covenants of the Company for the benefit of
the Holders of all or any series of Securities (and if such covenants
are to be for the benefit of less than all series of Securities,
stating that such covenants are expressly being included solely for the
benefit of such series) or to surrender any right or power herein
conferred upon the Company; or
(3) to add any additional Events of Default with respect to
all or any series of Securities; or
(4) 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
Securities in global form; or
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(5) 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
(6) to secure the Securities; or
(7) to establish the form or terms of Securities of any series
as permitted by Sections 2.1 and 3.1; or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one
or more series 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
(9) 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,
premium, if any, or interest, if any, on Bearer Securities or interest
coupons, if any; or
(10) to correct or supplement any provision herein which may
be inconsistent with any other provision herein or to make any other
provisions with respect to matters or questions arising under this
Indenture, provided such action shall not adversely affect in any
material respect the interests of the Holders of Securities of any
series; or
(11) 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 or property of the Company; or
(12) to cure any ambiguity, correct any mistake or comply with
any mandatory provision of law; or
(13) to modify the provisions in Article 15 of this Indenture
with respect to the subordination of Outstanding Securities of any
series in a manner not adverse to the Holders thereof;
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(14) 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
(15) 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 all series adversely affected
by such supplemental indenture (voting as one class), 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 such Securities; provided, however, that without the consent of the
Holder of each Outstanding Security affected thereby, an amendment under this
Section may not:
(1) 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 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, on or after the
Redemption Date);
(2) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of whose Holders is
required for any such supplemental indenture, or the consent of whose
Holders is required for any waiver (of compliance with certain
provisions of this Indenture or certain defaults hereunder and their
consequences) provided for in this Indenture, or reduce the
requirements of Section 13.4 for quorum or voting;
(3) change any obligation of the Company to maintain an office
or agency in the places and for the purposes specified in Section 9.2;
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(4) 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;
(5) 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
(6) make any change in this Section 8.2 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.
A supplemental indenture which changes or eliminates any
covenant or other provision of this Indenture which has expressly been included
solely for the benefit of one or more particular series of Securities, or which
modifies the rights of the Holders of Securities of such series with respect to
such covenant or other 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
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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
COVENANTS
Section 9.1. Payment of Principal, Premium, if any, and
Interest. The Company covenants and agrees for the benefit of the Holders of
each series of Securities that it will duly and punctually pay the principal of,
premium, if any, and interest, 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, 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
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Securities, the Company will maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that series may be presented
or surrendered for payment, where Securities of that series may be surrendered
for registration of transfer or exchange and where notices and demands to or
upon the Company or any Guarantor in respect of the Securities or the Senior
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
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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:
(1) 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;
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(2) 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
(3) 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 covenants
and agrees to deliver to the Trustee, within 120 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
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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.
Section 9.6. Waiver of Certain Covenants. 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 covenant provided pursuant to Section 3.1(15), 8.1(2) or 8.1(7) 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, a list, in such form as the Trustee may reasonably
require, of the names and addresses of the Holders of Registered
Securities of each 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 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.
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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 either 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 [__________] in
each calendar year, commencing with the first [__________]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. (a)
The Company and each of the Guarantors shall file with the Trustee, within 15
days after the Company is required to file the same with the Commission, copies
of the annual reports and of the information, documents and other reports (or
copies of such portions of any of the foregoing as the Commission may from time
to time by rules and regulations prescribe) which the Company may be required to
file with the Commission pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934, as amended; or, if the
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Company is not required to file information, documents or reports pursuant to
either of such sections, then to file with the Trustee and the Commission, in
accordance with rules and regulations prescribed from time to time by the
Commission, such of the supplementary and periodic information, documents and
reports which may be required pursuant to Section 13 of the Securities Exchange
Act of 1934, as amended, in respect of a security listed and registered on a
national securities exchange as may be prescribed from time to time in such
rules and regulations.
(b) The Company shall file with the Trustee and the
Commission, in accordance with the rules and regulations prescribed from time to
time by the Commission, such additional information, documents and reports with
respect to compliance by the Company with the conditions and covenants provided
for in this Indenture, as may be required from time to time by such rules and
regulations.
(c) The Company shall transmit by mail to all Holders of
Securities, within 30 days after the filing thereof with the Trustee, in the
manner and to the extent provided in Section 313(c) of the Trust Indenture Act,
such summaries of any information, documents and reports required to be filed by
the Company pursuant to Sections 10.4(a) and (b), as may be required by rules
and regulations prescribed from time to time by the Commission.
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 or pursuant to 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
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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 45 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. 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 Affiliate or any
Subsidiary thereof 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.
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:
(1) the Redemption Date;
(2) the Redemption Price;
(3) 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;
(4) the Place or Places of Payment where such Securities,
together in the case of Bearer Securities with all interest coupons
appertaining thereto, if any,
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maturing after the Redemption Date, are to be surrendered for payment
of the Redemption Price;
(5) 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;
(6) 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;
(7) that the redemption is from a sinking fund, if such is the
case;
(8) 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;
(9) the CUSIP number, if any, of the Securities;
(10) 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
(11) 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.
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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.
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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 required, due endorsement by, or a written instrument
of transfer in form satisfactory to the Company and the Trustee duly executed
by, the Holder thereof or his or her attorney duly authorized in writing), the
Company shall execute and the Trustee shall authenticate and deliver to the
Holder of that Security, without service charge, a new Security or Securities
(each with a Senior 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
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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 BEARER SECURITIES
Section 13.1. Purposes for Which Meetings May Be Called. A
meeting of Holders of Securities of any series issuable as Bearer Securities 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
issuable as Bearer Securities 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 21 nor more than 180 days prior to
the date fixed for the meeting.
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(b) In case at any time the Company, pursuant to a Board
Resolution, or the Holders of at least 33 1/3% in principal amount of the
Outstanding Securities of any series shall have requested the Trustee to call a
meeting of the Holders of Securities of such 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 21 days after receipt of
such request or shall not thereafter proceed to cause the meeting to be held as
provided herein, then the Company or the Holders of Securities of such series in
the amount specified, as the case may be, 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.
Section 13.3. Persons Entitled to Vote at Meetings. To be
entitled to vote at any meeting of Holders of Securities of any series issuable
as Bearer Securities, 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 the applicable
series shall constitute a quorum. In the absence of a quorum within 30 minutes
of the time appointed for any such meeting, the meeting shall, if convened at
the request of Holders of Securities of such series, be dissolved. In any other
case 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 any such adjourned meeting, such
adjourned meeting may be further adjourned for a period not less than 10 days as
determined by the chairman of the meeting prior to the adjournment of such
adjourned meeting. Notice of the reconvening of any such adjourned meeting shall
be given as provided in Section 13.2(a), 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.
At the reconvening of any meeting adjourned for a lack of a
quorum pursuant to the preceding paragraph, the Persons entitled to vote 25% in
principal amount of the Outstanding Securities of the applicable series at the
time shall constitute a quorum for the taking of any action set forth in the
notice of the original meeting. Notice of the reconvening of a meeting adjourned
for lack of a quorum shall state expressly the percentage of the principal
amount of the Outstanding Securities of such series which shall constitute a
quorum.
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At a meeting or an adjourned meeting duly reconvened and at
which a quorum is present as aforesaid, any resolution and all matters (except
as limited by the proviso to Section 8.2) shall be effectively passed and
decided if passed or decided by the Persons entitled to vote not less than the
lesser of (i) a majority in principal amount of Outstanding Securities of the
applicable series and (ii) 66 2/3% in principal amount of Outstanding Securities
of such series represented and voting at such meeting; provided, however, that
any resolution with respect to any request, demand, authorization, direction,
notice, consent, election, waiver or other Act 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
lesser of (i) the Holders of such specified percentage in principal amount of
the Outstanding Securities of such series and (ii) a majority in principal
amount of Outstanding Securities of such series represented and voting at such
meeting or adjourned meeting.
Any resolution passed or decisions taken at any meeting of
Holders of Securities of any series issuable as Bearer Securities duly held in
accordance with this Section shall be binding on all the Holders of Securities
of such series and interest coupons, whether or not present or represented at
the meeting.
In the event that any meeting shall be adjourned for lack of a
quorum or that, at any meeting at which a quorum is present, any proposed
resolution or decision shall not be passed or taken because the Holders of the
percentage of Outstanding Securities of any series issuable as Bearer Securities
needed to approve such resolution or decision did not vote in favor of such
resolution or decision, the principal amount of Outstanding Securities of such
series represented at such meeting and voting in favor of such resolution or
decision may be counted for purposes of calculating whether the consent of the
Holders of the percentage of Outstanding Securities of such series needed in
order to make, give or take any request, demand, authorization, direction,
notice, consent, election, waiver or other action has been obtained, and such
vote shall constitute the consent thereto of such Holders.
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 issuable as
Bearer Securities 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 of a
series issuable as Bearer
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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 or by Holders
of Securities of a series as provided in Section 13.2(b), in which case the
Company or the Holders of Securities of such series calling the meeting, as the
case may be, 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 or proxy shall be
entitled to one vote for each U.S. $5,000 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 issuable
as Bearer Securities 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 issuable as Bearer Securities 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 report 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
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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) For purposes of this Article 14, 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) Registered Securities so surrendered for conversion or
exchange during the period from the close of business on any Regular Record Date
to the opening of business on the corresponding Interest Payment Date (excluding
Securities or portions thereof called for redemption during such period) shall
also be accompanied by payment
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in funds acceptable to the Company of an amount equal to the interest payable on
such Interest Payment Date on the principal amount of such Security then being
converted or exchanged, and such interest shall be payable to such registered
Holder on such Interest Payment Date notwithstanding the conversion or exchange
of such Security, subject to the provisions of Section 3.7 relating to the
payment of Defaulted Interest by the Company.
(c) As promptly as practicable after the receipt of such
notice and of any payment required pursuant to a Board Resolution 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.
(d) 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.
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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 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 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, reclassification,
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.
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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.
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 otherwise
than in cash out of its retained earnings (other than a dividend for
which approval of any stockholder of Allied is required); 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 (other than any such grant for which approval of
any stockholder of Allied is required); or
(c) of any reclassification of any class of such Equity
Securities (other than a subdivision or combination of its outstanding
Equity Securities, or of any consolidation, merger or share exchange to
which Allied is a party and for which approval of any stockholder of
Allied 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;
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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, at least 15 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. 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, 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
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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 its Equity Securities or stock certificates
or other securities or property upon the surrender of any Security for the
purpose of conversion or exchange or to comply with any of the covenants of
Allied and the Company contained in this Article 14 or in the applicable
supplemental indenture, resolutions of the Board of Directors or written
instrument executed by one or more duly authorized officers of Allied and the
Company.
Section 14.9. Repayment of Certain Funds Upon Conversion or
Exchange. Any funds which at any time have been deposited by the Company or on
its behalf with the Trustee or any Paying Agent for the purpose of paying the
principal of, and premium, if any, and interest, if any, on any of the
Securities (including funds deposited 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 SENIOR SUBORDINATED GUARANTEES
Section 15.1. Securities Subordinate to Senior Debt. The
Company covenants and agrees, and each Holder of a Security, by his acceptance
thereof, likewise covenants and 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 (and 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 Senior 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,
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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 (or premium, if any) or interest on or other obligations
in respect of the Securities or on account of any purchase 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 Senior Subordinated
Guarantee by such Guarantor) on account of its Senior Subordinated Guarantee
(all such payments and distributions herein referred to, individually and
collectively, as a "Guarantor
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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 Senior
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 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 into, 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 into which the Company or any Guarantor is merged 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 (or 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.
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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 (or 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 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
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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 of the Company
Senior Nonmonetary Default and the Guarantor Senior Nonmonetary Defaults 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.
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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
Senior 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 (and premium, if any) and
interest on the Securities or the obligation under such Guarantor's Senior
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
with the Guarantees endorsed thereon the principal of (and 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 with
the Guarantees endorsed thereon and creditors of the Company or any
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Guarantor, as applicable, other than the holders of Senior Debt; or (c) prevent
the Trustee or the Holder of any Security with the Guarantees endorsed thereon
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 covenants 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 Senior 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 Senior 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
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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 Fourteen.
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
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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 or any Affiliate of the Company if it or such
Affiliate acts as Paying Agent.
Section 15.14. Defeasance of this Article 15. The
subordination of the Securities and the Senior Subordinated Guarantees provided
by this Article 15 is expressly made subject to the provisions for defeasance or
covenant defeasance in Article 4 and, anything herein to the contrary
notwithstanding, upon the effectiveness of any such defeasance or covenant
defeasance, the Securities then Outstanding and the Senior Subordinated
Guarantees relating thereto shall thereupon cease to be subordinated pursuant to
this Article 15.
ARTICLE 16
SENIOR SUBORDINATED GUARANTEE
Section 16.1. Senior Subordinated Guarantee. Each of Allied
and the Subsidiary Guarantors hereby jointly and severally unconditionally
guarantees 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 (and 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.
Each of the Guarantors hereby jointly and severally agrees
that its obligations hereunder shall be unconditional, irrespective of the
validity, regularity or
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enforceability of 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 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 any other Person or any collateral,
filing of claims with a court in the event of insolvency or bankruptcy of the
Company, any right to require a proceeding first against the Company, protest or
notice with respect to any Security or the indebtedness evidenced thereby and
all demands whatsoever, and covenants, that this Senior Subordinated Guarantee
will not be discharged in respect of any Security except by complete performance
of the obligations contained in such Security and in this Senior Subordinated
Guarantee. Each of the Guarantors hereby agrees that, in the event of a default
in payment of principal (or premium, if any) or interest on any Security,
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 of the Guarantors to enforce its
Senior Subordinated Guarantee without first proceeding against the Company. 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 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.
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No provision of any Senior Subordinated Guarantee or Security
or of the Indenture shall alter or impair the Senior Subordinated Guarantee of
any Guarantor, which is absolute and unconditional, of the due and punctual
payment of the principal (and premium, if any) and interest on the Security upon
which such Senior Subordinated Guarantee is endorsed.
Each Guarantor shall be subrogated to all rights of the
Holders of the Securities upon which its Senior Subordinated Guarantee is
endorsed against the Company in respect of any amounts paid by such Guarantor on
account of such Security pursuant to the provisions of its Senior 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 (and premium, if any) and
interest on all Securities issued hereunder shall have been paid in full.
Each Senior Subordinated Guarantee shall remain in full force
and effect and continue to be effective should any petition be filed by or
against the Company for liquidation or reorganization, should the Company 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 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 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 stockholder, officer, director, employer or incorporator,
past, present or future, of any Guarantor, as such, shall have any personal
liability under any Senior Subordinated Guarantee by reason of his, her or its
status as such stockholder, officer, director, employer or incorporator.
To the extent that any Subsidiary Guarantor shall be required
to pay any amounts on account of the Securities pursuant to its Senior
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 Senior Subordinated Guarantees times (B) the
proportion (expressed as a fraction) that such Subsidiary Guarantor's net worth
at the date enforcement of its Senior Subordinated Guarantee is sought bears to
the aggregate net
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worth of all Subsidiary Guarantors at such date, then such Subsidiary Guarantor
shall be reimbursed by the other Subsidiary Guarantors for the amount of such
excess, pro rata, based upon the respective net worth of such other Subsidiary
Guarantors at the date enforcement of its Senior 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 Senior 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 Senior Subordinated Guarantee.
Section 16.2. Execution and Delivery of Senior Subordinated
Guarantees. The Senior Subordinated Guarantees to be endorsed on the Securities
shall include the terms of the Senior 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
Senior Subordinated Guarantee, in a form established pursuant to Section 2.3, to
be endorsed on each Security authenticated and delivered by the Trustee.
The Senior 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 Senior Subordinated Guarantee may be manual or facsimile and may be
pursuant to a duly executed power of attorney.
A Senior 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 Senior Subordinated Guarantee is endorsed
or did not hold such offices at the date of such Senior Subordinated Guarantee.
The delivery of any Security by the Trustee, after the
authentication thereof hereunder, shall constitute due delivery of the Senior
Subordinated Guarantee endorsed thereon on behalf of the Guarantors. Each of the
Guarantors hereby jointly and severally agrees that its Senior Subordinated
Guarantee set forth in Section 16.1 shall remain in full force and effect
notwithstanding any failure to endorse a Senior Subordinated Guarantee on any
Security.
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Section 16.3. Subsidiary Guarantors May Consolidate, Etc., on
Certain Terms. Except as may be provided in Section 16.4 and in Articles 7 and
9, 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 (and 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 covenant defeasance of the Securities under Section 4.5, the
Guarantors shall be released from all of their obligations under their Senior
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 [(other than Med Track)], 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).
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IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.
ALLIED WASTE NORTH AMERICA, INC.
By: ____________________________
Name:
Title:
[Seal]
Attest:
_______________________________
Name:
Title:
FIRST BANK NATIONAL ASSOCIATION
By: ___________________________
Name:
Title:
[Seal]
Attest:
_______________________________
Name:
Title:
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