1
Exhibit 4.1
ALLIED WASTE NORTH AMERICA, INC., as Issuer
and
THE GUARANTORS NAMED HEREIN, as Guarantors
to
U.S. BANK TRUST NATIONAL ASSOCIATION, as Trustee
SUBORDINATED INDENTURE
Dated as of July 30, 1999
Providing for Issuance of
Senior Subordinated Debt Securities in Series
2
Reconciliation and tie between Subordinated Indenture, dated
as of July 30, 1999 (the "Indenture") and the Trust Indenture Act of 1939, as
amended.
Trust Indenture Act Indenture
of 0000 Xxxxxxx Xxxxxxx
-------------------------------------------------------------------------------
310(a)(1) ............................................... 6.9
(a)(2) .................................................. 6.9
(a)(3) .................................................. TIA
(a)(4) .................................................. Not Applicable
(a)(5) .................................................. TIA
(b) ..................................................... 6.8; 6.10; TIA
311(a) .................................................. TIA
(b) ..................................................... TIA
312(a) .................................................. 10.1
(b) ..................................................... TIA
(c) ..................................................... TIA
313(a) .................................................. 10.3; TIA
(b) ..................................................... TIA
(c) ..................................................... TIA
(d) ..................................................... TIA
314(a) .................................................. 10.4; TIA
(b) ..................................................... Not Applicable
(c)(1) .................................................. 1.2
(c)(2) .................................................. 1.2
(c)(3) .................................................. Not Applicable
(d) ..................................................... Not Applicable
(e) ..................................................... TIA
(f) ..................................................... TIA
315(a) .................................................. 6.1
(b) ..................................................... 6.2
(c) ..................................................... 6.1
(d)(1) .................................................. TIA
(d)(2) .................................................. TIA
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(d)(3) .................................................. TIA
(e) ..................................................... TIA
316(a)(last sentence) ................................... 1.1
(a)(1)(A) ............................................... 5.2; 5.8
(a)(1)(B) ............................................... 5.7
(b) ..................................................... 5.9; 5.10
(c) ..................................................... TIA
317(a)(1) ............................................... 5.3
(a)(2) .................................................. 5.4
(b) ..................................................... 9.3
318(a) .................................................. 1.12
(b) ..................................................... TIA
(c) ..................................................... 1.12; TIA
----------------
This reconciliation and tie section does not constitute part of the Indenture.
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TABLE OF CONTENTS
Page
Recitals .......................................................................................... 1
ARTICLE 1 Definitions and Other Provisions of General Application ............................... 2
Section 1.1. Definitions ............................................................... 2
Section 1.2. Compliance Certificates and Opinions ...................................... 15
Section 1.3. Form of Documents Delivered to Trustee .................................... 16
Section 1.4. Acts of Holders ........................................................... 17
Section 1.5. Notices, Etc., to Trustee, Company and Guarantors ......................... 19
Section 1.6. Notice to Holders; Waiver ................................................. 19
Section 1.7. Headings and Table of Contents ............................................ 20
Section 1.8. Successors and Assigns .................................................... 20
Section 1.9. Separability .............................................................. 21
Section 1.10. Benefits of Indenture ..................................................... 21
Section 1.11. Incorporators, Officers and Directors of the Company
Exempt from Individual Liability ........................................ 21
Section 1.12. Governing Law; Conflict with Trust Indenture Act ......................... 21
Section 1.13. Legal Holidays ........................................................... 22
Section 1.14. Moneys of Different Currencies to Be Segregated .......................... 22
Section 1.15. Independence of Agreements ............................................... 22
Section 1.16. Counterparts ............................................................. 22
ARTICLE 2 Security and Subordinated Guarantee Forms ............................................. 23
Section 2.1. Forms Generally ........................................................... 23
Section 2.2. Form of Trustee's Certificate of Authentication ........................... 23
Section 2.3. Form of Subordinated Guarantee ............................................ 24
Section 2.4. Global Securities ......................................................... 28
Section 2.5. Form of Legend for Global Securities ...................................... 29
ARTICLE 3 The Securities ........................................................................ 29
Section 3.1. Amount Unlimited; Issuable in Series ...................................... 29
Section 3.2. Denominations ............................................................. 34
Section 3.3. Execution, Authentication, Delivery and Dating ............................ 34
Section 3.4. Temporary Securities ...................................................... 38
Section 3.5. Registration, Transfer and Exchange ....................................... 39
Section 3.6. Replacement Securities .................................................... 43
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Section 3.7. Payment of Interest; Interest Rights Preserved ............................ 44
Section 3.8. Persons Deemed Owners ..................................................... 47
Section 3.9. Cancellation .............................................................. 48
Section 3.10. Computation of Interest ................................................... 48
Section 3.11. CUSIP Numbers ............................................................. 48
Section 3.12. Currency and Manner of Payment in Respect of Securities ................... 49
ARTICLE 4 Satisfaction, Discharge and Defeasance ................................................ 49
Section 4.1. Termination of Company's Obligations Under the Indenture .................. 49
Section 4.2. Application of Trust Funds ................................................ 51
Section 4.3. Applicability of Defeasance Provisions; Company's Option to Effect
Defeasance or Agreement Defeasance ................................... 51
Section 4.4. Defeasance and Discharge .................................................. 51
Section 4.5. Agreement Defeasance ...................................................... 52
Section 4.6. Conditions to Defeasance or Agreement Defeasance .......................... 53
Section 4.7. Deposited Money and Government Obligations to Be Held in Trust ............ 55
Section 4.8. Repayment to Company ...................................................... 55
Section 4.9. Indemnity for Government Obligations ...................................... 55
Section 4.10. Reinstatement ............................................................. 56
ARTICLE 5 Defaults and Remedies ................................................................. 56
Section 5.1. Events of Default ......................................................... 56
Section 5.2. Acceleration; Rescission and Annulment .................................... 58
Section 5.3. Collection of Indebtedness and Suits for Enforcement by Trustee ........... 60
Section 5.4. Trustee May File Proofs of Claim .......................................... 60
Section 5.5. Trustee May Enforce Claims Without Possession of Securities ............... 61
Section 5.6. Delay or Omission Not Waiver .............................................. 61
Section 5.7. Waiver of Past Defaults ................................................... 61
Section 5.8. Control by Majority ....................................................... 62
Section 5.9. Limitation on Suits by Holders ............................................ 62
Section 5.10. Rights of Holders to Receive Payment ...................................... 63
Section 5.11. Application of Money Collected ............................................ 63
Section 5.12. Restoration of Rights and Remedies ........................................ 64
Section 5.13. Rights and Remedies Cumulative ............................................ 64
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Section 5.14. Undertaking for Costs ..................................................... 64
Section 5.15. Waiver of Stay, Extension or Usury Laws ................................... 65
ARTICLE 6 The Trustee ........................................................................... 65
Section 6.1. Certain Duties and Responsibilities ....................................... 65
Section 6.2. Notice of Defaults ........................................................ 66
Section 6.3. Certain Rights of Trustee ................................................. 66
Section 6.4. Not Responsible for Recitals or Issuance of Securities. ................... 67
Section 6.5. May Hold Securities. ...................................................... 67
Section 6.6. Money Held in Trust. ...................................................... 67
Section 6.7. Compensation and Reimbursement. ........................................... 68
Section 6.8. Conflicting Interests. .................................................... 68
Section 6.9. Corporate Trustee Required; Eligibility. .................................. 69
Section 6.10. Resignation and Removal; Appointment of Successor. ........................ 69
Section 6.11. Acceptance of Appointment by Successor. ................................... 70
Section 6.12. Merger, Conversion, Consolidation or Succession to Business. .............. 72
Section 6.13. Preferential Collection of Claims Against Company. ........................ 72
Section 6.14. Appointment of Authenticating Agent. ...................................... 72
ARTICLE 7 Consolidation, Merger or Sale of Assets by the Company ................................ 74
Section 7.1. Consolidation, Merger or Sale of Assets Permitted ......................... 74
Section 7.2. Successor Substituted ..................................................... 75
ARTICLE 8 Supplemental Indentures ............................................................... 75
Section 8.1. Supplemental Indentures Without Consent of Holders ........................ 75
Section 8.2. Supplemental Indentures With Consent of Holders ........................... 77
Section 8.3. Compliance with Trust Indenture Act ....................................... 78
Section 8.4. Execution of Supplemental Indentures ...................................... 78
Section 8.5. Effect of Supplemental Indentures ......................................... 79
Section 8.6. Reference in Securities to Supplemental Indentures ........................ 79
Section 8.7. Notice of Supplemental Indentures ......................................... 79
ARTICLE 9 Agreements ............................................................................ 79
Section 9.1. Payment of Principal, Premium, if any, and Interest ....................... 79
Section 9.2. Maintenance of Office or Agency ........................................... 80
Section 9.3. Money for Securities Payments to Be Held in Trust; Unclaimed Money ........ 81
Section 9.4. Corporate Existence ....................................................... 83
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Section 9.5. Annual Review Certificate ................................................. 83
Section 9.6. Maintenance of Properties ................................................. 83
Section 9.7. Payments of Taxes and Other Claims ........................................ 83
Section 9.8. Waiver of Certain Agreements .............................................. 84
ARTICLE 10 Holders' Lists and Reports by Trustee and Company .................................... 84
Section 10.1. Company to Furnish Trustee Names and Addresses of Holders ................ 84
Section 10.2. Preservation of Information, Communications to Holders ................... 85
Section 10.3. Reports by Trustee ....................................................... 85
Section 10.4. Reports by the Company and the Guarantors ................................ 85
ARTICLE 11 Redemption ........................................................................... 86
Section 11.1. Applicability of Article ................................................. 86
Section 11.2. Election to Redeem; Notice to Trustee .................................... 86
Section 11.3. Selection of Securities to Be Redeemed ................................... 86
Section 11.4. Notice of Redemption ..................................................... 87
Section 11.5. Deposit of Redemption Price .............................................. 88
Section 11.6. Securities Payable on Redemption Date .................................... 89
Section 11.7. Securities Redeemed in Part .............................................. 90
ARTICLE 12 Sinking Funds ........................................................................ 90
Section 12.1. Applicability of Article ................................................. 90
Section 12.2. Satisfaction of Sinking Fund Payments with Securities .................... 90
Section 12.3. Redemption of Securities for Sinking Fund ................................ 91
ARTICLE 13 Meetings of Holders of Securities .................................................... 91
Section 13.1. Purposes for Which Meetings May Be Called ................................ 91
Section 13.2. Call, Notice and Place of Meetings ....................................... 92
Section 13.3. Persons Entitled to Vote at Meetings ..................................... 92
Section 13.4. Quorum; Action ........................................................... 92
Section 13.5. Determination of Voting Rights; Conduct and Adjournment of Meetings ...... 94
Section 13.6. Counting Votes and Recording Action of Meetings .......................... 94
ARTICLE 14 Conversion or Exchange of Securities ................................................. 95
Section 14.1. Applicability of Article ................................................. 95
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Section 14.2. Exercise of Conversion or Exchange Privilege ............................. 95
Section 14.3. No Fractional Equity Securities .......................................... 97
Section 14.4. Adjustment of Conversion or Exchange Price; Consolidation or Merger ...... 97
Section 14.5. Notice of Certain Corporate Actions ...................................... 98
Section 14.6. Reservation of Equity Securities ......................................... 99
Section 14.7. Payment of Certain Taxes Upon Conversion or Exchange ..................... 99
Section 14.8. Duties of Trustee Regarding Conversion or Exchange ....................... 100
Section 14.9. Repayment of Certain Funds Upon Conversion or Exchange ................... 100
ARTICLE 15 Subordination of Securities and Subordinated Guarantees .............................. 101
Section 15.1. Securities Subordinate to Senior Debt .................................... 101
Section 15.2. Payment Over of Proceeds Upon Dissolution, Etc. .......................... 101
Section 15.3. No Payment When Senior Debt in Default ................................... 103
Section 15.4. Certain Payments Permitted ............................................... 105
Section 15.5. Subrogation to Rights of Holders of Senior Debt .......................... 106
Section 15.6. Provisions Solely to Define Relative Rights .............................. 106
Section 15.7. Trustee to Effectuate Subordination ...................................... 106
Section 15.8. No Waiver of Subordination Provisions .................................... 107
Section 15.9. Notice to Trustee ........................................................ 107
Section 15.10. Reliance on Judicial Order or Certificate of Liquidating Agent .......... 108
Section 15.11. Trustee Not Fiduciary for Holders of Senior Debt ........................ 108
Section 15.12. Rights of Trustee as Holder of Senior Debt; Preservation of Trustee's
Rights ............................................................... 108
Section 15.13. Article Applicable to Paying Agents ..................................... 109
Section 15.14. Defeasance of this Article 15 ........................................... 109
ARTICLE 16 Subordinated Guarantee ................................................................. 109
Section 16.1. Subordinated Guarantee ................................................... 109
Section 16.2. Execution and Delivery of Subordinated Guarantees ........................ 112
Section 16.3. Subsidiary Guarantors May Consolidate, Etc., on Certain Terms ............ 113
Section 16.4. Release of Guarantors .................................................... 113
Section 16.5. Additional Guarantors .................................................... 114
ARTICLE 17 Jurisdiction and Consent to Service of Process ...................................... 114
Section 17.1. Jurisdiction and Consent to Service of Process ............................. 114
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SENIOR SUBORDINATED INDENTURE (the "Indenture"), dated as of
July 30, 1999, among ALLIED WASTE NORTH AMERICA, INC., a corporation duly
organized and existing under the laws of the State of Delaware (the "Company"),
having its principal office at 15880 North Xxxxxxxx - Xxxxxx Xxxx, Xxxxx 000,
Xxxxxxxxxx, Xxxxxxx 00000, each of the GUARANTORS (as hereinafter defined) and
U.S. BANK TRUST NATIONAL ASSOCIATION, a national banking association, as Trustee
(the "Trustee").
RECITALS
The Company has duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of its secured or
unsecured 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 Subordinated Guarantees with
respect to the Securities as set forth in this Indenture.
All things necessary (i) to make the Securities, when executed
by the Company and authenticated and delivered hereunder and duly issued by the
Company, the valid obligations of the Company, (ii) to make the Subordinated
Guarantees of each of the Guarantors, when executed by the respective Guarantors
and endorsed on the Securities executed, authenticated and delivered hereunder,
the valid obligations of the respective Guarantors, and (iii) to make this
Indenture a valid agreement of the Company and of each of the Guarantors, all in
accordance with their respective terms, have been done.
For and in consideration of the premises and the purchase of
the Securities by the Holders thereof, it is mutually agreed as follows for the
equal and ratable benefit of the Holders of the Securities or of any series
thereof:
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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 Person means any Person directly or
indirectly controlling or controlled by, or under direct or indirect common
control with such Person. For purposes of this definition, "control" when used
with respect to any Person means the power to direct the management and policies
of such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Agent" means any Paying Agent or Registrar.
"Allied" means Allied Waste Industries, Inc., a Delaware
corporation.
"Allied Guarantee" means the unconditional guarantee, on a
senior subordinated basis, by Allied of the due and punctual payment of
principal of, premium, if any, and interest on the Securities, as provided
pursuant to Article 16.
"Allied Subsidiary Guarantee" means the unconditional
guarantee, on a senior subordinated basis, by Allied of each of the Subsidiary
Guarantors' obligations under the Subsidiary Guarantees.
"Applicable Procedures" means, with respect to any transfer or
transaction involving a Global Security or beneficial interest therein, the
rules and procedures of the
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Depositary for such Security, in each case to the extent applicable to such
transaction and as in effect from time to time.
"Authenticating Agent" means any authenticating agent
appointed by the Trustee pursuant to Section 6.14.
"Authorized Newspaper" means a newspaper of general
circulation, in the official language of the country of publication or in the
English language, customarily published on each Business Day whether or not
published on Saturdays, Sundays or holidays. Whenever successive publications in
an Authorized Newspaper are required hereunder they may be made (unless
otherwise expressly provided herein) on the same or different days of the week
and in the same or different Authorized Newspapers.
"Bearer Security" means any Security issued hereunder which is
payable to bearer.
"Board of Directors" means, with respect to the Company or any
Guarantor, either the board of directors of the Company or of such Guarantor, as
the case may be, or any duly authorized committee of that board. Except as
otherwise provided or unless the context otherwise requires, each reference
herein to the "Board of Directors" shall mean the Board of Directors of the
Company.
"Board Resolution" of the Company or any Guarantor means a
copy of a resolution certified by the Secretary or an Assistant Secretary of the
Company or such Guarantor, as the case may be, to have been duly adopted by its
Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee. Except as otherwise expressly
provided or unless the context otherwise requires, each reference herein to a
"Board Resolution" shall mean a Board Resolution of the Company.
"Business Day", when used with respect to any Place of Payment
or any other particular location referred to in this Indenture or in the
Securities, means, unless otherwise specified with respect to any Securities
pursuant to Section 3.1, each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which banking institutions in that Place of Payment or
particular location are authorized or obligated by law, regulation or executive
order to close.
"Capital Lease Obligation" of any Person means the obligation
to pay rent or other payment amounts under a lease of (or other arrangements
conveying the right to use) real or personal property by such Person which is
required to be classified and accounted for as a capital lease or a liability on
a balance sheet of such Person in accordance with generally accepted accounting
principles. The stated maturity of such obligation shall be the date of the last
payment of rent or any other amount due under such lease prior to the first date
upon which such lease may be terminated by the lessee without payment of a
penalty. The principal amount of such obligation shall be the
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capitalized amount thereof that would appear on a balance sheet of such Person
in accordance with generally accepted accounting principles.
"Capital Stock" of any Person means any and all shares,
interests, participations or other equivalents, however designated, of corporate
stock or other equity participations, including partnership interests, whether
general or limited, of such Person.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Exchange Act or, if at any time
after the execution of this Indenture such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
"Company" means the Person named as the Company in the first
paragraph of this Indenture until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter means
such successor.
"Company Order" and "Company Request" mean, respectively, a
written order or request signed in the name of the Company by two Officers, one
of whom must be the Chairman of the Board, the President, the Chief Executive
Officer, the Chief Operating Officer, the Chief Financial Officer, a Vice
President, the Treasurer or the Secretary of the Company.
"consent", "waive" and "rescind", when used with respect to
the consent, waiver or rescission of or by the Holders of a specified percentage
in aggregate principal amount of Securities of any series, shall mean any of (i)
a favorable vote with respect to such consent, waiver or rescission, at any
meeting of Holders of Securities of such series duly called and held in
accordance with the provisions of Article 13, by the Holders of the applicable
percentage in aggregate principal amount of such Securities specified in the
second paragraph of Section 13.4; (ii) written consents, waivers or rescissions
of or by the Holders of such specified percentage in aggregate principal amount
of such Securities; and (iii) a combination of the favorable vote with respect
to such consent, waiver or rescission, at any meeting of Holders of Securities
of such series duly called and held in accordance with the provisions of Article
13, by the Holders of less than the applicable percentage in aggregate principal
amount of such Securities specified in the second paragraph of Section 13.4 and
written consents, waivers or rescissions of other Holders of such Securities,
where the sum of the percentage of such Holders so voting in favor and the
percentage of such Holders signing such written consents, waivers or rescissions
is equal to at least such specified percentage.
"Corporate Trust Office" means an office of the Trustee in New
York, New York at which at any particular time its corporate trust business
shall be administered, which office at the date hereof is located at 000 Xxxx
Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Corporate Trust
Administration.
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"corporation" shall mean a corporation, association,
joint-stock company or business trust.
"Credit Agreement" means the Credit Agreement, dated as of
July 21, 1999, among Allied Waste Industries, Inc., Allied Waste North America
Inc., the Lenders party thereto, The Chase Manhattan Bank, as Administrative
Agent, Collateral Agent and Collateral Trustee, Citicorp USA, Inc., as
syndication agent, and Credit Suisse First Boston and DLJ Capital Funding, Inc.,
as documentation agents, providing for the bank financing commitments totaling
$9.5 billion, consisting of $7.0 billion of senior secured facilities and $2.5
billion of senior subordinated facilities.
"currency unit" for all purposes of this Indenture shall
include any composite currency, including, without limitation, ECU.
"Debt" means (without duplication), with respect to any
Person, whether recourse is to all or a portion of the assets of such Person,
(i) every obligation of such Person for money borrowed, (ii) every obligation of
such Person evidenced by bonds, debentures, notes or other similar instruments,
including obligations Incurred in connection with the acquisition of property,
assets or businesses, (iii) every reimbursement obligation of such Person with
respect to letters of credit, bankers' acceptances or similar facilities issued
for the account of such Person, (iv) every obligation of such Person issued or
assumed as the deferred purchase price of property or services (but excluding
trade accounts payable or accrued liabilities arising in the ordinary course of
business), (v) every Capital Lease Obligation of such Person, (vi) the maximum
fixed redemption or repurchase price of Redeemable Interests of such Person at
the time of determination, (vii) every net payment obligation of such Person
under interest rate swap or similar agreements or foreign currency hedge,
exchange or similar agreements at the time of determination and (viii) every
obligation of the type referred to in Clauses (i) through (vii) of another
Person and all dividends of another Person the payment of which, in either case,
such Person has Guaranteed or for which such Person is responsible or liable,
directly or indirectly, jointly or severally, as obligor, Guarantor or
otherwise.
"Default" means, with respect to Securities of any series, any
event which is, or after notice or passage of time, or both, would be, an Event
of Default with respect to Securities of such series.
"Depositary", when used with respect to any Global Securities
means the Person designated as Depositary by the Company pursuant to Section
3.1(b) until a successor Depositary shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter shall mean or include
each Person which is then a Depositary hereunder, and if at any time there is
more than one such Person, shall be a collective reference to such Persons.
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"Designated Senior Debt" means (i) any Indebtedness
outstanding under the Credit Agreement; and (ii) after payment in full of all
Obligations under the Credit Agreement, any other Senior Debt permitted under
the Indenture the principal amount of which is $100.0 million or more and that
has been designated by Allied as "Designated Senior Debt."
"Domestic Subsidiary" means a Restricted Subsidiary organized
under the laws of the United States of America, any State thereof or the
District of Columbia.
"Dollar" means the currency of the United States that at the
time of payment is legal tender for the payment of public and private debts.
"ECU" means the European Currency Unit as defined and revised
from time to time by the Council of the European Communities.
"European Monetary System" means the European Monetary System
established by the Resolution of December 5, 1978 of the Council of the European
Communities.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended.
"Exchange Rate Certificate" means a certificate, signed by a
Responsible Officer of the Trustee, setting forth (i) the applicable Market
Exchange Rate or the applicable bid quotation and (ii) the Dollar amount of
principal of, premium, if any, and interest, if any (on an aggregate basis and
on the basis of a Security having the lowest denomination principal amount in
the relevant currency or currency unit), that would be payable with respect to a
Security of the applicable series on the basis of such Market Exchange Rate or
the applicable bid quotation.
"Foreign Currency" means any currency issued by the government
of one or more countries other than the United States or by any recognized
confederation or association of such governments.
"Global Security" shall have the meaning set forth in Section
2.3.
"Guarantors" means Allied and the Subsidiary Guarantors.
"Guaranty" or "Guarantee" by any Person means any obligation,
contingent or otherwise, of such Person guaranteeing any Debt, or dividends or
distributions on any equity security, of any other Person (the "primary
obligor") in any manner, whether directly or indirectly, and including, without
limitation, any obligation of such Person (i) to purchase or pay (or advance or
supply funds for the purchase or payment of) such Debt or to purchase (or to
advance or supply funds for the purchase of) any security for
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the payment of such Debt, (ii) to purchase property, securities or services for
the purpose of assuring the holder of such Debt of the payment of such Debt or
(iii) to maintain working capital, equity capital or other financial statement
condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Debt (and "Guaranteed" and "Guaranteeing" shall have
meanings correlative to the foregoing); provided, however, that the Guaranty by
any Person shall not include endorsements by such Person for collection or
deposit, in either case, in the ordinary course of business.
"Holder" means, with respect to a Bearer Security, a bearer
thereof or of an interest coupon appertaining thereto and, with respect to a
Registered Security, a Person in whose name a Security is registered on the
Register.
"Incur" means, with respect to any Debt of any Person, to
create, issue, incur (by conversion, exchange or otherwise), assume, Guarantee
or otherwise become liable in respect of such Debt, or the taking of any other
action which would cause such Debt, in accordance with generally accepted
accounting principles to be recorded on the balance sheet of such Person.
"Incurrence", "Incurred", "Incurrable" and "Incurring" shall have meanings
correlative to the preceding. Notwithstanding the foregoing the Debt of any
other Person becoming a Restricted Subsidiary of such Person will be deemed for
this purpose to have been Incurred by such Person at the time such other Person
becomes a Restricted Subsidiary of such Person; provided, further, that a change
in generally accepted accounting principles that results in an obligation of
such Person that exists at such time becoming Debt shall not be deemed an
Incurrence of such Debt.
"Indenture" means this instrument as originally executed and
as it may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
including, for all purposes of this instrument and any such supplemental
indenture, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this instrument and any such supplemental indenture,
respectively. The term "Indenture" shall also include the terms of particular
series of Securities established as contemplated by Section 3.1.
"Indexed Security" means a Security the terms of which provide
that the principal amount thereof payable at Stated Maturity is based, at least
in part, upon the performance or value of a specified market index, reference
security or other variable and may be more or less than the principal face
amount thereof at original issuance.
"interest", when used with respect to an Original Issue
Discount Security which by its terms bears interest only after Maturity, means
interest payable after Maturity and, when used with respect to any other
Security, means the interest payable thereon in accordance with its terms.
"Interest Payment Date", when used with respect to any
Security, means the Stated Maturity of an installment of interest on such
Security.
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"Lien" means, with respect to any property or assets, any
mortgage or deed of trust, pledge, hypothecation, assignment, deposit
arrangement, security interest, lien, charge, easement or title exception,
encumbrance, preference, priority or other security agreement or preferential
arrangement of any kind or nature whatsoever on or with respect to such property
or assets (including any conditional sale or other title retention agreement
having substantially the same economic effect as any of the foregoing).
"Market Exchange Rate" means, unless otherwise specified with
respect to any Securities pursuant to Section 3.1, (i) for a conversion of any
currency unit into Dollars, the exchange rate between the relevant currency unit
and Dollars calculated by the method specified pursuant to Section 3.1 for the
Securities of the relevant series, and (ii) for a conversion of any Foreign
Currency into Dollars, the applicable exchange rate between such Foreign
Currency and Dollars set forth under the heading, "Currency Trading -- Exchange
Rates" in the "Money & Investing" section of The Wall Street Journal (or in such
other section of The Wall Street Journal in which foreign currency exchange
rates may be regularly published from time to time) as of the most recent
available date, in each case as determined by the Trustee. Unless otherwise
specified with respect to any Securities pursuant to Section 3.1, in the event
of the unavailability of any of the exchange rates provided for in the foregoing
clauses (i) and (ii), the Trustee shall use the average of the quotations from
at least three major banks acceptable to the Company in The City of New York
(which may include any such bank acting as Trustee under this Indenture), or
such other quotations as the Trustee and the Company shall deem appropriate.
"Maturity", when used with respect to any Security, means the
date on which the principal of such Security or an installment of principal
becomes due and payable as therein or herein provided, whether at the Stated
Maturity or by declaration of acceleration, call for redemption or otherwise.
"Non-Guarantor Foreign Subsidiary" means any Restricted
Subsidiary that is not a Domestic Subsidiary.
"Officer" means the Chairman of the Board, the President, the
Chief Executive Officer, the Chief Operating Officer, the Chief Financial
Officer, any Vice President, the Treasurer, any Assistant Treasurer, the
Secretary or any Assistant Secretary of the Company.
"Officers' Certificate" of the Company or of any Guarantor
means a certificate signed by the Chairman of the Board, a Vice Chairman of the
Board, the President or a Vice President, and by the Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary, of the Company or such
Guarantor, as the case may be, and delivered to the Trustee. Unless the context
otherwise requires, each reference herein to an "Officers' Certificate" shall
mean an Officers' Certificate of the Company. References
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herein, or in any Security or Subordinated Guarantee, to any officer of a
Guarantor or other Person that is a partnership shall mean such officer of the
partnership or, if none, of a general partner of the partnership authorized
thereby to act on its behalf.
"Opinion of Counsel" means a written opinion from the general
counsel of the Company or other legal counsel who is reasonably acceptable to
the Trustee. Such counsel may be an employee of or counsel to the Company.
"Original Issue Discount Security" means any Security which
provides for an amount less than the stated principal amount thereof to be due
and payable upon declaration of acceleration of the Maturity thereof pursuant to
Section 5.2.
"Outstanding", when used with respect to Securities, means, as
of the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities, or portions thereof, for whose payment or
redemption money in the necessary amount has been theretofore deposited
with the Trustee or any Paying Agent (other than the Company or any
Guarantor) in trust or set aside and segregated in trust by the Company
or a Guarantor (if the Company or a Guarantor, as the case may be,
shall act as a Paying Agent) for the Holders of such Securities and any
interest coupons appertaining thereto, provided that, if such
Securities are to be redeemed, notice of such redemption has been duly
given pursuant to this Indenture or provisions therefor satisfactory to
the Trustee have been made;
(iii) Securities, except to the extent provided in Sections
4.4 and 4.5, with respect to which the Company has effected defeasance
and/or agreement defeasance as provided in Article 4; and
(iv) Securities which have been replaced or paid pursuant to
Section 3.6 or in exchange for or in lieu of which other Securities
have been authenticated and delivered pursuant to this Indenture, other
than any such Securities in respect of which there shall have been
presented to the Trustee proof satisfactory to it that such Securities
are held by a bona fide purchaser in whose hands such Securities are
valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, or whether
sufficient funds are available for redemption or for any other purpose, and for
the purpose of making the calculations
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required by Section 313 of the Trust Indenture Act, (w) the principal amount of
any Original Issue Discount Securities that may be counted in making such
determination or calculation and that shall be deemed to be Outstanding for such
purpose shall be equal to the amount of principal thereof that would be (or
shall have been declared to be) due and payable, at the time of such
determination, upon a declaration of acceleration of the Maturity thereof
pursuant to Section 5.2, (x) the principal amount of any Security denominated in
a Foreign Currency that may be counted in making such determination or
calculation and that shall be deemed Outstanding for such purpose shall be equal
to the Dollar equivalent, determined as of the date such Security is originally
issued by the Company as set forth in an Exchange Rate Certificate, of the
principal amount (or, in the case of an Original Issue Discount Security, the
Dollar equivalent as of such date of original issuance of the amount determined
as provided in clause (w) above) of such Security, (y) the principal amount of
any Indexed Security that may be counted in making such determination or
calculation and that shall be deemed Outstanding for such purpose shall be equal
to the principal face amount of such Indexed Security at original issuance,
unless otherwise provided with respect to such Security pursuant to Section 3.1,
and (z) Securities owned by the Company, any Guarantor or any other obligor upon
the Securities or any Affiliate of the Company, of any Guarantor or of such
other obligor shall be disregarded and deemed not to be Outstanding, except
that, in determining whether the Trustee shall be protected in making such
calculation or in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Securities which the Trustee knows to
be so owned shall be so disregarded. Securities so owned which have been pledged
in good faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect to such
Securities and that the pledgee is not the Company, any Guarantor or any other
obligor upon the Securities or any Affiliate of the Company, of any Guarantor or
of such other obligor.
"Parent Guarantor" means Allied.
"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.
"Permitted Junior Securities" means (i) Capital Stock and all
warrants, options or other rights to acquire Capital Stock (but excluding any
debt security that is
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convertible into, or exchangeable for, Capital Stock) of Allied or any
Guarantor; or (ii) debt securities of Allied or any Guarantor that are
subordinated to all Senior Debt (and any debt securities issued in exchange for
Senior Debt) to substantially the same extent as, or to a greater extent than,
the Securities are subordinated to Senior Debt pursuant to Article 15 of this
Indenture.
"Person" means any individual, corporation, partnership, joint
venture, limited liability company, association, joint-stock company, trust,
other entity, unincorporated organization or government or any agency or
political subdivision thereof.
"Place of Payment", when used with respect to the Securities
of or within any series, means the place or places where the principal of,
premium, if any, interest and any other payments due on such Securities are
payable as specified as contemplated by Sections 3.1 and 9.2.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that evidenced
by such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 3.6 in exchange for or in
lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security.
"Redeemable Interest" of any Person means any equity security
of or other ownership interest in such Person that: (i) by its terms, (ii) by
the terms of any security into which it is convertible or for which it is
exchangeable, or (iii) 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.
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"Responsible Officer", when used with respect to the Trustee,
shall mean any vice president, the secretary, any assistant secretary, the
treasurer, any assistant treasurer, any trust officer or assistant trust
officer, or any officer of the Trustee customarily performing functions similar
to those performed by any of the above designated officers and also shall mean,
with respect to a particular corporate trust matter, any officer to whom such
matter is referred because of his knowledge of and familiarity with the
particular subject.
"Restricted Subsidiary" means (i) at any date, a Subsidiary of
the Company that is not an Unrestricted Subsidiary as of such date and (ii) for
any period, a Subsidiary of the Company that for any portion of such period is
not an Unrestricted Subsidiary, provided that such term shall mean such
Subsidiary only for such portion of such period.
"Security" or "Securities" has the meaning stated in the first
recital of this Indenture and more particularly means a Security or Securities
of the Company issued, authenticated and delivered under this Indenture.
"Senior Debt" means (i) with respect to the Company, Debt
created pursuant to the Credit Agreement, (ii) with respect to the Company, any
Guarantor or any Restricted Subsidiary of the Company, as the case may be, (a)
every obligation of such Person for money borrowed, (b) every obligation of such
Person evidenced by bonds, debentures, notes or other similar instruments,
including obligations Incurred in connection with the acquisition of property,
assets or businesses, (c) every reimbursement obligation of such Person with
respect to letters of credit, bankers' acceptances or similar facilities issued
for the account of such Person, (v) every Capital Lease Obligation of such
Person and (d) every net payment obligation of such Person under interest rate
swap or similar agreements or foreign currency hedge, exchange or similar
agreements at the time of determination, whether Incurred on or prior to the
date hereof or thereafter Incurred, (iii) with respect to the Company, any
Guarantor or any Restricted Subsidiary of the Company, Guarantees by such person
of Senior Debt and (iv) amendments, modifications, renewals, extensions,
refinancings and refundings of any such Debt; provided, however, the following
shall not constitute Senior Debt: (A) any Debt owed to a Person when such Person
is a Subsidiary of the Company, (B) any Debt which by the terms of the
instrument creating or evidencing the same is pari passu or subordinate in right
of payment to the Securities, (C) any Debt Incurred in violation of this
Indenture or (D) any Debt which is subordinate in right of payment in any
respect to any other Debt of the Company. For purposes of this definition,
"Debt" includes any obligation to pay principal, premium, if any, interest,
penalties, reimbursement or indemnity amounts, fees and expenses (including
interest accruing on or after the filing of any petition in bankruptcy or for
reorganization relating to the Company, whether or not a claim for post-petition
interest is allowed in such proceeding).
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"Special Record Date" for the payment of any Defaulted
Interest means a date fixed by the Trustee pursuant to Section 3.7.
"Stated Maturity", when used with respect to any Security or
any installment of principal thereof or interest thereon, means the date
specified in such Security or in an interest coupon representing such
installment of interest as the fixed date on which the principal of such
Security or such installment of principal or interest is due and payable.
"Subordinated Guarantees" means the Allied Guarantee, the
Subsidiary Guarantees and the Allied Subsidiary Guarantee.
"Subsidiary" of any Person means (i) a corporation more than
50% of the combined voting power of the outstanding voting stock of which is
owned, directly or indirectly, by such Person or by one or more other
Subsidiaries of such Person or by such Person and one or more Subsidiaries
thereof, (ii) a partnership of which such Person, or one or more other
Subsidiaries thereof, directly or indirectly, is the general partner and has the
power to direct the policies, management and affairs, or (iii) any other Person
(other than a corporation) in which such Person or one or more other
Subsidiaries of such Person or such Person and one or more other Subsidiaries
thereof, directly or indirectly, has at least a majority ownership interest and
power to direct the policies, management and affair thereof.
"Subsidiary Guarantees" means the unconditional guarantees on
a senior subordinated basis by the respective Subsidiary Guarantors of the due
and punctual payment of principal of, premium, if any, and interest on the
Securities, as provided pursuant to Article 16.
"Subsidiary Guarantors", as of any time, means, in respect of
a series of Securities, each and all of the Restricted Subsidiaries at such
time, other than Reliant Insurance Company and Indemnity Corporation, Global
Indemnity Assurance, Commercial Reassurance Limited and the Non-Guarantor
Foreign Subsidiaries, which Subsidiary Guarantors as of the date of this
Indenture are set forth in Schedule I hereto.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as
amended and as in effect on the date of this Indenture, except as provided in
Section 8.3; provided, however, that if the Trust Indenture Act of 1939 is
amended after such date, "Trust Indenture Act" means, to the extent required by
any such amendment, the Trust Indenture Act of 1939 as so amended.
"Trustee" means the party named as such in the first paragraph
of this Indenture until a successor Trustee replaces it pursuant to the
applicable provisions of this Indenture, and thereafter means such successor
Trustee and if, at any time, there is more
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than one Trustee, "Trustee" as used with respect to the Securities of any series
shall mean the Trustee with respect to the Securities of that series.
"United States" means, unless otherwise specified with respect
to the Securities of any series as contemplated by Section 3.1, the United
States of America (including the States thereof and the District of Columbia),
its territories, its possessions and other areas subject to its jurisdiction.
"Unrestricted Subsidiary", with respect to any series of
Securities, shall have the meaning established in accordance with Section 3.1(b)
with respect to such series of Securities.
"U.S. Government Obligations" means securities that are (x)
direct obligations of the United States of America for the payment of which its
full faith and credit is pledged or (y) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America the payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America, and that in either case, are
not callable or redeemable at the option of the issuer thereof, and shall also
include a depository receipt issued by a bank (as defined in Section 3(a)(2) of
the Securities Act of 1933, as amended) as custodian with respect to any such
Government Obligation or a specific payment of principal of or interest on any
such Government Obligation held by such custodian for the account of the holder
of such depository receipt. Notwithstanding the foregoing, such custodian is not
authorized to make any deduction from the amount payable to the holder of such
depository receipt from any amount received by the custodian in respect of the
U.S. Government Obligation or the specific payment of principal of or interest
on the U.S. Government Obligation evidenced by such depository receipt.
"U.S. Person" means, unless otherwise specified with respect
to the Securities of any series as contemplated by Section 3.1, a citizen or
resident of the United States, a corporation, partnership or other entity
created or organized in or under the laws of the United States or any political
subdivision thereof, or an estate or trust, the income of which is subject to
United States federal income taxation regardless of its source.
"Vice President", when used with respect to the Company or any
Guarantor, means any Vice President of such Person whether or not designated by
a number or a word or words added before or after the title "Vice President."
"Wholly Owned Restricted Subsidiary" means a Restricted
Subsidiary all of the outstanding Capital Stock or other ownership interests of
which (other than directors' qualifying shares) shall at the time be owned by
the Company or by one or more Wholly Owned Restricted Subsidiaries or by the
Company and one or more Wholly Owned Restricted Subsidiaries.
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(b) The following terms shall have the meanings specified in
the Sections referred to opposite such term below:
Term Section
---- -------
"Act" 1.4(a)
"agreement defeasance" 4.5
"Common Stock" 14.1(b)(i)
"Company Payment
Blockage Period" 15.3
"Company Proceeding" 15.2
"Company Securities Payment" 15.2
"Defaulted Interest" 3.7(b)
"defeasance" 4.4
"Equity Securities" 14.1(b)
"Event of Default" 5.1
"Guarantor Payment
Blockage Period" 15.3
"Guarantor Proceeding" 15.2
"Guarantor Securities Payment" 15.2
"NASDAQ" 14.3
"Preferred Stock" 14.1(b)(ii)
"Proceeding" 15.2
"Register" 3.5
"Registrar" 3.5
"Securities Payment" 15.2
"Senior Nonmonetary Default" 15.3
"Senior Payment Default" 15.3
Section 1.2. Compliance Certificates and Opinions. Upon any
application or request by the Company to the Trustee to take any action under
any provision of this Indenture, the Company shall furnish to the Trustee such
certificates and opinions as may be required under the Trust Indenture Act
(including Section 314(c) of the Trust Indenture Act). Each such certificate or
opinion shall be given in the form of an Officers' Certificate, if to be given
by an officer or officers of the Company, or an Opinion of Counsel, if to be
given by counsel, and shall comply with the requirements of the Trust Indenture
Act and any other requirements set forth in this Indenture.
Every certificate or opinion with respect to compliance with a
condition or agreement provided for in this Indenture (other than pursuant to
Section 2.4, the last paragraph of Section 3.3 and Section 9.5) shall include:
(a) a statement that each individual signing such certificate
or opinion has read such condition or agreement and the definitions
herein relating thereto;
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(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(c) a statement that, in the opinion of each such individual,
he or she has made such examination or investigation as is necessary to
enable him or her to express an informed opinion as to whether or not
such condition or agreement has been complied with; and
(d) a statement as to whether, in the opinion of each such
individual, such condition or agreement has been complied with.
Section 1.3. Form of Documents Delivered to Trustee. In any
case where several matters are required to be certified by, or covered by an
opinion of, any specified Person, it is not necessary that all such matters be
certified by, or covered by the opinion of, only one such Person, or that they
be so certified or covered by only one document, but one such Person may certify
or give an opinion with respect to some matters and one or more other such
Persons as to other matters, and any such Person may certify or give an opinion
as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or opinion of,
or representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his or her certificate or opinion is
based are erroneous. Any such certificate or opinion or any Opinion of Counsel
may be based, insofar as it relates to factual matters, upon a certificate or
opinion of, or representations by, an officer or officers of the Company stating
that the information with respect to such factual matters is in the possession
of the Company, unless such officer or counsel knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
as to such matters are erroneous.
Any certificate, statement or opinion of an officer of the
Company or of counsel may be based, insofar as it relates to accounting matters,
upon a certificate or opinion of or representations by an accountant or firm of
accountants in the employ of the Company, unless such officer or counsel, as the
case may be, knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to the accounting matters
upon which his certificate, statement or opinion is based are erroneous.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be consolidated
and form one instrument.
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Section 1.4. Acts of Holders. (a) Any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be given or taken by Holders may be embodied in and evidenced
by one or more instruments of substantially similar tenor signed (either
physically or by means of a facsimile or an electronic transmission, provided,
in the case of an electronic transmission, that it is transmitted through the
facilities of a Depositary) by such Holders in person or by agent or proxy duly
appointed in writing. If Securities of a series are issuable as Bearer
Securities, any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders of Securities of such series may, alternatively, be embodied in and
evidenced by the record of Holders of Securities of such series voting in favor
thereof pursuant to the second paragraph of Section 13.4, either in person or by
proxies duly appointed in writing, at any meeting of Holders of Securities of
such series duly called and held in accordance with the provisions of Article
13, or a combination of such instruments and any such record. Except as herein
otherwise expressly provided, such action shall become effective when such
instrument or instruments or record or both are received (either physically or,
if the Securities are held through the facilities of a Depositary, by means of a
facsimile or an electronic transmission, provided, in the case of an electronic
transmission, that it is transmitted through the facilities of a Depositary) by
the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments and record (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the "Act" of the Holders
signing such instrument or instruments or so voting at such meeting. The Company
and the Trustee may assume that any Act of a Holder has not been modified or
revoked unless written notice to the contrary is received prior to the time that
the action to which such Act relates has become effective. Proof of execution of
any such instrument or of a writing appointing any such agent shall be
sufficient for any purpose of this Indenture and (subject to Section 315 of the
Trust Indenture Act) conclusive in favor of the Trustee and the Company, if made
in the manner provided in this Section. The record of any meeting of Holders of
Securities shall be proved in the manner provided in Section 13.6.
(b) The fact and date of the execution by any Person of any
such instrument or writing and the authority of the Person executing the same
may be proved in any manner which the Trustee deems sufficient.
(c) The ownership of Bearer Securities may be proved by the
production of such Bearer Securities or by a certificate executed by any trust
company, bank, banker or other depository, wherever situated, if such
certificate shall be deemed by the Trustee to be satisfactory, showing that at
the date therein mentioned such Person had on deposit with such trust company,
bank, banker or other depository, or exhibited to it, the Bearer Securities
therein described; or such facts may be proved by the certificate or affidavit
of the Person holding such Bearer Securities, if such certificate or affidavit
is deemed by the Trustee to be satisfactory. The Trustee and the Company may
assume that such
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ownership of any Bearer Security continues until (i) another such certificate or
affidavit bearing a later date issued in respect of the same Bearer Security is
produced, (ii) such Bearer Security is produced to the Trustee by some other
Person, (iii) such Bearer Security is surrendered in exchange for a Registered
Security or (iv) such Bearer Security is no longer Outstanding. The ownership of
Bearer Securities may also be proved in any other manner which the Trustee deems
sufficient.
(d) The ownership of Registered Securities shall be proved by
the Register.
(e) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall bind every
future Holder of the same Security and any interest coupons appertaining thereto
and the Holder of every Security or interest coupon issued upon the registration
of transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee or the Company in
reliance thereon, whether or not notation of such Act is made upon such Security
or interest coupon.
(f) If the Company shall solicit from the Holders any request,
demand, authorization, direction, notice, consent, waiver or other Act, the
Company may, at its option, by or pursuant to a Board Resolution, fix in advance
a record date for the determination of Holders of Registered Securities entitled
to give such request, demand, authorization, direction, notice, consent, waiver
or other Act, but the Company shall have no obligation to do so. Notwithstanding
Section 316(c) of the Trust Indenture Act, any such record date shall be the
record date specified in or pursuant to such Board Resolution, which shall be a
date not more than 30 days prior to the first solicitation of Holders generally
in connection therewith and no later than the date such first solicitation is
completed. If such a record date is fixed, such request, demand, authorization,
direction, notice, consent, waiver or other Act may be given before or after
such record date, but only the Holders of Registered Securities of record at the
close of business on such record date shall be deemed to be Holders for the
purposes of determining whether Holders of the requisite proportion of
Outstanding Securities have authorized or agreed or consented to such request,
demand, authorization, direction, notice, consent, waiver or other Act, and for
that purpose the Outstanding Securities shall be computed as of such record
date; provided that no such authorization, agreement or consent by the Holders
on such record date shall be deemed effective unless it shall become effective
pursuant to the provisions of this Indenture not later than six months after the
record date.
Without limiting the foregoing, a Holder entitled to give or
take any action hereunder with regard to any particular Security may do so with
regard to all or any part of the principal amount of such Security or by one or
more duly appointed agents, each of which may do so pursuant to such appointment
with regard to all or any part of the principal amount of such Security to which
such appointment relates.
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Section 1.5. Notices, Etc., to Trustee, Company and
Guarantors. Any request, demand, authorization, direction, notice, consent,
waiver or Act of Holders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with,
(a) the Trustee by any Holder or by the Company or any
Guarantor shall be sufficient for every purpose hereunder if made,
given, furnished or filed in writing to or with the Trustee at its
Corporate Trust Office, Attention: Corporate Trust Department, or at
any other address previously furnished in writing to the Holders or the
Company by the Trustee, or, with respect to notices by the Company,
transmitted by facsimile transmission (confirmed by guaranteed
overnight courier) to the following facsimile number: (000) 000-0000 or
to any other facsimile number previously furnished in writing to the
Company by the Trustee, or
(b) the Company or any Guarantor by the Trustee or by any
Holder shall be sufficient for every purpose hereunder (unless
otherwise herein expressly provided) if in writing and mailed,
first-class postage prepaid, to it addressed to it at the address of
the Company's principal office specified in the first paragraph of this
instrument or at any other address previously furnished in writing to
the Trustee by the Company or, with respect to notices by the Trustee,
transmitted by facsimile transmission (confirmed by guaranteed
overnight courier) to the following facsimile number: (000) 000-0000 or
to any other facsimile number previously furnished in writing to the
Trustee by the Company.
Section 1.6. Notice to Holders; Waiver. Where this Indenture
provides for notice to Holders of any event, (i) if any of the Securities
affected by such event are Registered Securities, such notice to the Holders
thereof shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each such Holder
affected by such event, at his or her address as it appears in the Register,
within the time prescribed for the giving of such notice, and (ii) if any of the
Securities affected by such event are Bearer Securities, notice to the Holders
thereof shall be sufficiently given (unless otherwise herein or in the terms of
such Bearer Securities expressly provided) if published twice in an Authorized
Newspaper in New York, New York, and in such other city or cities, if any, as
may be specified as contemplated by Section 3.1. Such notices shall be deemed to
have been given on the date of such mailing or publication.
In any case where notice to Holders is given by mail or by
publication, neither the failure to mail or publish such notice, nor any defect
in any notice so mailed or published, to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders of Registered
Securities or of Bearer Securities. Any notice
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mailed to a Holder in the manner herein prescribed shall be conclusively deemed
to have been received by such Holder, whether or not such Holder actually
receives such notice.
If by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice as
provided above, then such notification as shall be made with the approval of the
Trustee shall constitute a sufficient notification for every purpose hereunder.
If it is impossible or, in the opinion of the Trustee, impracticable to give any
notice by publication in the manner herein required, then such publication in
lieu thereof as shall be made with the approval of the Trustee shall constitute
a sufficient publication of such notice.
Any request, demand, authorization, direction, notice, consent
or waiver required or permitted under this Indenture shall be in the English
language, except that any published notice may be in an official language of the
country of publication.
Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall be equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
Section 1.7. Headings and Table of Contents. The Article and
Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
Section 1.8. Successors and Assigns. All agreements in this
Indenture by the parties hereto shall bind their respective successors and
assigns and inure to the benefit of their respective successors and assigns,
whether so expressed or not.
Section 1.9. Separability. In case any provision of this
Indenture or the Securities or the Subordinated Guarantees shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
Section 1.10. Benefits of Indenture. Nothing in this Indenture
or in the Securities or the Subordinated Guarantees, expressed or implied, shall
give to any Person, other than the parties hereto, any Registrar, any Paying
Agent and their successors hereunder, and the Holders and the holders of Senior
Debt, any benefit or any legal or equitable right, remedy or claim under this
Indenture.
Section 1.11. Incorporators, Officers and Directors of the
Company Exempt from Individual Liability. No recourse under or upon any
obligation or agreement of or contained in this Indenture or of or contained in
any Security or interest coupon appertaining thereto, or for any claim based
thereon or otherwise in respect
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thereof, or because of any indebtedness represented thereby, shall be had
against any incorporator, officer or director, as such, past, present or future,
of the Company or any successor Person, either directly or through the Company
or any successor Person, whether by virtue of any constitution, statute or rule
of law, by the enforcement of any assessment or penalty, by any legal or
equitable proceeding or otherwise; it being expressly understood that all such
liability is hereby expressly waived and released as a condition of the
acceptance of, and as a part of the consideration for the execution of this
Indenture and the issuance of, the Securities and any interest coupons
appertaining thereto.
Section 1.12. Governing Law; Conflict with Trust Indenture
Act. THIS INDENTURE, THE SECURITIES, THE SUBORDINATED GUARANTEES ENDORSED
THEREON AND ANY INTEREST COUPONS APPERTAINING THERETO SHALL BE DEEMED TO BE
CONTRACTS MADE AND TO BE PERFORMED ENTIRELY IN THE STATE OF NEW YORK, AND FOR
ALL PURPOSES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
SAID STATE WITHOUT REGARD TO THE CONFLICTS OF LAW RULES OF SAID STATE. This
Indenture is subject to the Trust Indenture Act and if and to the extent that
any provision hereof limits, qualifies or conflicts with the Trust Indenture
Act, the Trust Indenture Act shall control. Whether or not this Indenture is
required to be qualified under the Trust Indenture Act, the provisions of the
Trust Indenture Act required to be included in an indenture in order for such
indenture to be so qualified shall be deemed to be included in this Indenture
with the same effect as if such provisions were set forth herein and any
provisions hereof which may not be included in an indenture which is so
qualified shall be deemed to be deleted or modified to the extent such
provisions would be required to be deleted or modified in an indenture so
qualified.
Section 1.13. Legal Holidays. In any case where any Interest
Payment Date, Redemption Date, sinking fund payment date, Stated Maturity or
Maturity of any Security shall not be a Business Day at any Place of Payment,
then (notwithstanding any other provision of this Indenture or of any Security
or interest coupon or any Subordinated Guarantee other than a provision in the
Securities of any series which specifically states that such provision shall
apply in lieu of this Section), payment of principal, premium, if any, or
interest need not be made at such Place of Payment on such date, but may be made
on the next succeeding Business Day at such Place of Payment with the same force
and effect as if made on such date; provided that no interest shall accrue on
the amount so payable for the period from and after such Interest Payment Date,
Redemption Date, sinking fund payment date, Stated Maturity or Maturity, as the
case may be, if such amount is so paid on the next succeeding Business Day.
Section 1.14. Moneys of Different Currencies to Be Segregated.
The Trustee shall segregate all moneys, funds and accounts held by the Trustee
hereunder in one currency from any moneys, funds and accounts held by the
Trustee hereunder in any
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other currencies, notwithstanding any provision herein which would otherwise
permit the Trustee to commingle such amounts.
Section 1.15. Independence of Agreements. All agreements in
this Indenture shall be given independent effect so that if a particular action
or condition is not permitted by any such agreement, the fact that it would be
permitted by an exception to, or be otherwise within the limitations of, another
agreement shall not avoid the occurrence of a Default or an Event of Default if
such action is taken or condition exists.
Section 1.16. Counterparts. This Indenture may be executed in
any number of counterparts, each of which shall be an original, but such
counterparts shall together constitute but one and the same instrument.
ARTICLE 2
SECURITY AND SUBORDINATED GUARANTEE FORMS
Section 2.1. Forms Generally. The Securities of each series
and the interest coupons, if any, to be attached thereto and the Subordinated
Guarantees to be endorsed thereon shall be in substantially such form as shall
be established by or pursuant to a Board Resolution or in one or more indentures
supplemental hereto, in each case with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture, and may have such letters, numbers or other marks of identification
and such legends or endorsements placed thereon as may be required to comply
with the rules of any applicable securities exchange, organizational document,
governing instrument or law or as may, consistently herewith, be determined by
the officers executing such Securities and interest coupons, if any, or
Subordinated Guarantees to be endorsed thereon, as the case may be, as evidenced
by their execution of the Securities and interest coupons, if any, or
Subordinated Guarantees to be endorsed thereon, as the case may be. If temporary
Securities and Subordinated Guarantees of any series are issued as permitted by
Section 3.4, the form thereof also shall be established as provided in the
preceding sentence. If the forms of Securities and interest coupons, if any, and
Subordinated Guarantees of any series are established by, or by action taken
pursuant to, a Board Resolution, a copy of the Board Resolution together with an
appropriate record of any such action taken pursuant thereto, including a copy
of the approved form of Securities or interest coupons, if any, and Subordinated
Guarantees shall be delivered to the Trustee at or prior to the delivery of the
Company Order contemplated by Section 3.3 for the authentication and delivery of
such Securities.
Unless otherwise specified as contemplated by Section 3.1,
Bearer Securities shall have interest coupons attached.
The definitive Securities and interest coupons, if any, may be
printed, lithographed or engraved on steel engraved borders or may be produced
in any other
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manner (or, if such Securities are listed on any securities exchange, any other
manner permitted by the rules of such securities exchange), all as determined by
the officers executing such Securities and interest coupons, if any, as
evidenced by their execution of such Securities and interest coupons, if any.
Section 2.2. Form of Trustee's Certificate of Authentication.
The Trustee's certificate of authentication shall be in substantially the
following form:
This is one of the Securities with the Subordinated Guarantees
endorsed thereon of the series designated therein referred to in the
within-mentioned Indenture.
U.S. BANK TRUST NATIONAL ASSOCIATION,
as Trustee
By:
-------------------------------------------
Authorized Signatory
Section 2.3. Form of Subordinated Guarantee
SUBORDINATED GUARANTEE
For value received, each of the Guarantors named (or deemed
herein to be named) below hereby jointly and severally unconditionally
guarantees, on a subordinated basis to the Holder of the Security upon which
this Subordinated Guarantee is endorsed, and to the Trustee on behalf of such
Holder, the due and punctual payment of the principal of, premium, if any, and
interest on such Security when and as the same shall become due and payable,
whether at the Stated Maturity, by acceleration, call for redemption, purchase
or otherwise, according to the terms thereof and of the Indenture referred to
therein. In case of the failure of the Company punctually to make any such
payment, each of the Guarantors hereby jointly and severally agrees to cause
such payment to be made punctually when and as the same shall become due and
payable, whether at the Stated Maturity or by acceleration, call for redemption,
purchase or otherwise, and as if such payment were made by the Company. Further,
in case of the failure of any Subsidiary Guarantor punctually to make any
payment required of it hereunder, Allied agrees to cause such payment to be made
when and as the same shall become due and payable, as if such payment were made
by such Subsidiary Guarantor.
The Subordinated Guarantee of each Guarantor shall be
subordinated in right of payment to the Senior Debt of such Guarantor as
provided in the Indenture.
Each of the Guarantors hereby jointly and severally agrees
that its obligations hereunder shall be unconditional, irrespective of the
validity, regularity or enforceability of such Security or the Indenture, the
absence of any action to enforce the
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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 of such security or of the Indenture, the obtaining of any judgment
against the Company (or, with respect to the Allied Subsidiary Guarantee, any
Subsidiary Guarantor) or any action to enforce the same or any other
circumstances which might otherwise constitute a legal or equitable discharge or
defense of a Guarantor. Each of the Guarantors hereby waives the benefits of
diligence, presentment, demand of payment, any requirement that the Trustee or
any of the Holders protect, secure, perfect or insure any security interest in
or other Lien on any property subject thereto or exhaust any right or take any
action against the Company (or, with respect to the Allied Subsidiary Guarantee,
any Subsidiary Guarantor) or any other Person or any collateral, filing of
claims with a court in the event of insolvency or bankruptcy of the Company (or,
with respect to the Allied Subsidiary Guarantee, any Subsidiary Guarantor), any
right to require a proceeding first against the Company (or, with respect to the
Allied Subsidiary Guarantee, any Subsidiary Guarantor), protest or notice with
respect to such Security (or, with respect to the Allied Subsidiary Guarantee,
the Subsidiary Guarantees) or the indebtedness evidenced thereby and all demands
whatsoever, and agrees that this Subordinated Guarantee will not be discharged
except by complete performance of the obligations contained in such Security
(or, with respect to the Allied Subsidiary Guarantee, the Subsidiary Guarantees)
and in this Subordinated Guarantee. Each of the Guarantors hereby agrees that,
in the event of a default in payment of principal of, premium, if any, or
interest on such Security (or, with respect to the Allied Subsidiary Guarantee,
the Subsidiary Guarantees), whether at its Stated Maturity, by acceleration,
call for redemption, purchase or otherwise, legal proceedings may be instituted
by the Trustee on behalf of, or by, the Holder of such Security (or, with
respect to the Allied Subsidiary Guarantee, the Subsidiary Guarantees), subject
to the terms and conditions set forth in the Indenture, directly against each or
any of the Guarantors (or, with respect to the Allied Subsidiary Guarantee,
against Allied) to enforce this Subordinated Guarantee without first proceeding
against the Company (or, with respect to the Allied Subsidiary Guarantee,
against any Subsidiary Guarantor). Each Guarantor agrees that if, after the
occurrence and during the continuance of an Event of Default, the Trustee or any
of the Holders are prevented by applicable law from exercising their respective
rights to accelerate the maturity of the Securities, to collect interest on the
Securities or to enforce or exercise any other right or remedy with respect to
the Securities (or, with respect to the Allied Subsidiary Guarantee, to enforce
or
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exercise the Subsidiary Guarantees), or the Trustee or the Holders are prevented
from taking any action to realize on any collateral, such Guarantor agrees to
pay to the Trustee for the account of the Holders, upon demand therefor, the
amount that would otherwise have been due and payable had such rights and
remedies been permitted to be exercised by the Trustee or any of the Holders.
No reference herein to the Indenture and no provision of this
Subordinated Guarantee or of the Indenture shall alter or impair (i) the
Subordinated Guarantee of any Guarantor, which is absolute and unconditional, of
the due and punctual payment of the principal of, premium, if any, and interest
on the Security upon which this Subordinated Guarantee is endorsed, or (ii) the
Allied Subsidiary Guarantee, which is absolute and unconditional, of the due and
punctual performance by the Subsidiary Guarantors of their obligations under the
Subsidiary Guarantees.
Each Guarantor shall be subrogated to all rights of the Holder
of such Security against the Company (or, with respect to the Allied Subsidiary
Guarantee, any Subsidiary Guarantor) in respect of any amounts paid by such
Guarantor on account of such Security (or, with respect to the Allied Subsidiary
Guarantee, on account of the Subsidiary Guarantees) pursuant to the provisions
of its Subordinated Guarantee or the Indenture; provided, however, that such
Guarantor shall not be entitled to enforce or to receive any payments arising
out of, or based upon, such right of subrogation until the principal of,
premium, if any, and interest on this Security and all other Securities issued
under the Indenture shall have been paid in full.
This Subordinated Guarantee shall remain in full force and
effect and continue to be effective should any petition be filed by or against
the Company (or, with respect to the Allied Subsidiary Guarantee, any Subsidiary
Guarantor) for liquidation or reorganization, should the Company (or, with
respect to the Allied Subsidiary Guarantee, any Subsidiary Guarantor) become
insolvent or make an assignment for the benefit of creditors or should a
receiver or trustee be appointed for all or any significant part of the
Company's assets (or, with respect to the Allied Subsidiary Guarantee, the
assets of any Subsidiary Guarantors), and shall, to the fullest extent permitted
by law, continue to be effective or be reinstated, as the case may be, if at any
time payment and performance of the Securities (or, with respect to the Allied
Subsidiary Guarantee, any Subsidiary Guarantee) is, pursuant to applicable law,
rescinded or reduced in amount, or must otherwise be restored or returned by any
obligee on the Securities, whether as a "voidable preference," "fraudulent
transfer" or otherwise, all as though such payment or performance had not been
made. In the event that any payment, or any part thereof, is rescinded, reduced,
restored or returned, the Securities shall, to the fullest extent permitted by
law, be reinstated and deemed reduced only by such amount paid and not so
rescinded, reduced, restored or returned.
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The Guarantors shall have the right to seek contribution from
any non-paying Guarantor so long as the exercise of such right does not impair
the rights of the Holders under this Subordinated Guarantee.
The Guarantors or any particular Guarantor shall be released
from this Subordinated Guarantee upon the terms and subject to certain
conditions provided in the Indenture.
By delivery of a supplemental indenture to the Trustee in
accordance with the terms of the Indenture, each Person that becomes a
Subsidiary Guarantor after the date of the Indenture will be deemed to have
executed and delivered this Subsidiary Guarantee for the benefit of the Holder
of the Security upon which this Subsidiary Guarantee is endorsed, and Allied
will be deemed to have guaranteed the Subsidiary Guarantee of such Person with
the same effect as if such Subsidiary Guarantor was named below and had executed
and delivered this Subsidiary Guarantee.
All terms used in this Subordinated Guarantee which are
defined in the Indenture referred to in the Security upon which this
Subordinated Guarantee is endorsed shall have the meanings assigned to them in
such Indenture.
This Subordinated Guarantee shall not be valid or obligatory
for any purpose until the certificate of authentication on the Security upon
which this Subordinated Guarantee is endorsed shall have been executed by the
Trustee under the Indenture by manual signature.
Reference is made to Article Sixteen of the Indenture for
further provisions with respect to this Subordinated Guarantee.
THIS SUBORDINATED GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, each of the Guarantors has caused this
Subordinated Guarantee to be duly executed.
Allied Waste Industries, Inc.,
As Guarantor of the Securities and as Guarantor of
the obligations of the Subsidiary Guarantors under
the Subsidiary Guarantees
By: _________________________
[Officer]
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Each of the Subsidiary Guarantors
Listed on Schedule I to the Indenture,
As Guarantor of the Securities
By:*/ _________________________
[Officer]
Section 2.4. Global Securities. If Securities of or within a
series are issuable in whole or in part in global form (each, a "Global
Security"), any such Global Security may provide that it shall represent the
aggregate or specified amount of Outstanding Securities from time to time
endorsed thereon and may also provide that the aggregate amount of Outstanding
Securities represented thereby may from time to time be reduced or increased to
reflect exchanges for certificated securities. Any endorsement of a Global
Security to reflect the amount, or any increase or decrease in the amount, or
changes in the rights of Holders, of Outstanding Securities represented thereby,
shall be made in such manner and by such Person or Persons as shall be specified
therein or in the Company Order to be delivered to the Trustee pursuant to
Section 3.3 or 3.4. Subject to the provisions of Section 3.3, Section 3.4, if
applicable, and Section 3.5, the Trustee shall deliver and redeliver any Global
Security in the manner and upon instructions given by the Person or Persons
specified therein or in the applicable Company Order. Any instructions by the
Company with respect to endorsement or delivery or redelivery of a Global
Security shall be in writing but need not comply with Section 1.2 hereof and
need not be accompanied by an Officers' Certificate or an Opinion of Counsel.
The provisions of the last paragraph of Section 3.3 shall
apply to any Global Security if such Security was never issued and sold by the
Company and the Company delivers to the Trustee the Global Security together
with written instructions (which need not comply with Section 1.2 hereof and
need not be accompanied by an Officers' Certificate or an Opinion of Counsel)
with regard to the reduction in the principal amount of Securities represented
thereby, together with the written statement contemplated by the last paragraph
of Section 3.3.
Notwithstanding the provisions of Section 2.1 and 3.7, unless
otherwise specified as contemplated by Section 3.1, payment of principal of,
premium, if any, and interest on any Registered Security in permanent global
form shall be made to the registered holder thereof.
-------------
*/ Signing as duly authorized officer for each such Subsidiary Guarantor.
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Section 2.5. Form of Legend for Global Securities. Any
Security global form authenticated and delivered hereunder shall bear a legend
in substantially the following form or in such other form as may be specified in
accordance with Section 3.1:
"THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A
DEPOSITARY OR A NOMINEE OF A DEPOSITARY. UNLESS AND UNTIL IT IS
EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN CERTIFICATED FORM, THIS
SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO
A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE
DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR
ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH
SUCCESSOR DEPOSITARY."
ARTICLE 3
THE SECURITIES
Section 3.1. Amount Unlimited; Issuable in Series. (a) The
aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited. The Securities may be issued from
time to time in one or more series.
(b) The following matters shall be established with respect to
each series of Securities issued hereunder (i) by a Board Resolution, (ii) by
action taken pursuant to a Board Resolution and (subject to Section 3.3) set
forth, or determined in the manner provided, in an Officers' Certificate or
(iii) in one or more indentures supplemental hereto:
(1) the title of the Securities of the series (which title
shall distinguish the Securities of the series from all other series of
Securities);
(2) any limit upon the aggregate principal amount of the
Securities of the series which may be authenticated and delivered under
this Indenture (which limit shall not pertain to Securities
authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, other Securities of the series pursuant to
Section 3.4, 3.5, 3.6, 8.6 or 11.7 or any Securities that, pursuant to
Section 3.3, are deemed never to have been authenticated and delivered
hereunder);
(3) the date or dates on which the principal of and premium,
if any, on the Securities of the series is payable or the method or
methods of determination thereof;
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(4) the rate or rates at which the Securities of the series
shall bear interest, if any, or the method or methods of calculating
such rate or rates of interest, the date or dates from which such
interest shall accrue or the method or methods by which such date or
dates shall be determined, the Interest Payment Dates on which any such
interest shall be payable, the right, if any, of the Company to defer
or extend an Interest Payment Date and, with respect to Registered
Securities, the Regular Record Date, if any, for the interest payable
on any Registered Security on any Interest Payment Date, and the basis
upon which interest shall be calculated if other than that of a 360-day
year of twelve 30-day months;
(5) the place or places where the principal of, premium, if
any, and interest, if any, on Securities of the series shall be
payable, any Registered Securities of the series may be surrendered for
registration of transfer, Securities of the series may be surrendered
for exchange and notices and demands to or upon the Company in respect
of the Securities of the series and this Indenture may be served and
(in the case of Bearer Securities) where notices to Holders pursuant to
Section 1.6 will be published;
(6) the period or periods within which, the price or prices at
which, the currency or currencies (including currency unit or units) in
which, and the other terms and conditions upon which, Securities of the
series may be redeemed, in whole or in part, at the option of the
Company and, if other than as provided in Section 11.3, the manner in
which the particular Securities of such series (if less than all
Securities of such series are to be redeemed) are to be selected for
redemption;
(7) the obligation, if any, of the Company to redeem or
purchase Securities of the series pursuant to any sinking fund or
analogous provisions or upon the happening of a specified event or at
the option of a Holder thereof and the period or periods within which,
the price or prices at which, the currency or currencies (including
currency unit or units) in which, and the other terms and conditions
upon which, Securities of the series shall be redeemed or purchased, in
whole or in part, pursuant to such obligation;
(8) if other than denominations of $1,000 and any integral
multiple thereof, if Registered Securities, and if other than
denominations of $5,000 and any integral multiple thereof, if Bearer
Securities, the denominations in which Securities of the series shall
be issuable;
(9) if other than Dollars, the currency or currencies
(including currency unit or units) in which the principal of, premium,
if any, and interest, if any, on the Securities of the series shall be
payable, or in which the Securities of the series
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shall be denominated, and the particular provisions applicable thereto
in accordance with, in addition to, or in lieu of the provisions of
Section 3.12;
(10) if the payments of principal of, premium, if any, or
interest, if any, on the Securities of the series are to be made, at
the election of the Company or a Holder, in a currency or currencies
(including currency unit or units) other than that in which such
Securities are denominated or designated to be payable, the currency or
currencies (including currency unit or units) in which such payments
are to be made, the terms and conditions of such payments and the
manner in which the exchange rate with respect to such payments shall
be determined, and the particular provisions applicable thereto in lieu
of the provisions of Section 3.12;
(11) if the amount of payments of principal of, premium, if
any, and interest, if any, on the Securities of the series shall be
determined with reference to an index, formula or other method (which
index, formula or method may be based, without limitation, on a
currency or currencies (including currency unit or units) other than
that in which the Securities of the series are denominated or
designated to be payable), the index, formula or other method by which
such amounts shall be determined and any special voting or defeasance
provisions in connection therewith;
(12) if other than the entire principal amount thereof, the
portion of the principal amount of such Securities of the series which
shall be payable upon declaration of acceleration thereof pursuant to
Section 5.2 or the method by which such portion shall be determined;
(13) if other than as provided in Section 3.7, the Person to
whom any interest on any Registered Security of the series shall be
payable and the manner in which, or the Person to whom, any interest on
any Bearer Securities of the series shall be payable;
(14) provisions, if any, granting special rights to the
Holders of Securities of the series upon the occurrence of such events
as may be specified;
(15) any deletions from, modifications of or additions to the
Events of Default set forth in Section 5.1 or agreements of the Company
set forth in Article 9 pertaining to the Securities of the series;
(16) under what circumstances, if any, and with what
procedures and documentation the Company will pay additional amounts on
the Securities and interest coupons, if any, of that series held by a
Person who is not a U.S. Person (including any modification of the
definition of such term) in respect of taxes, assessments or similar
charges withheld or deducted and, if so, whether the
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Company will have the option to redeem such Securities rather than pay
such additional amounts (and the terms of any such option);
(17) whether Securities of the series shall be issuable as
Registered Securities or Bearer Securities (with or without interest
coupons), or both, and any restrictions applicable to the offering,
sale, transfer or delivery of Bearer Securities and, if other than as
provided in Section 3.5, the terms upon which Bearer Securities of a
series may be exchanged for Registered Securities of the same series
and vice versa;
(18) the date as of which any Bearer Securities of the series
and any temporary Global Security representing Outstanding Securities
of the series shall be dated if other than the date of original
issuance of the first Security of the series to be issued;
(19) the forms of the Securities and interest coupons, if any,
of the series;
(20) if other than as provided in Section 2.3, the forms of
the Subordinated Guarantees applicable to such series and the event or
events upon which the Subordinated Guarantees may be released for such
Subordinated Guarantees;
(21) the applicability, if any, to the Securities and interest
coupons, if any, of or within the series of Sections 4.4 and 4.5, or
such other means of defeasance or agreement defeasance as may be
specified for the Securities and interest coupons, if any, of such
series;
(22) if other than the Trustee, the identity of the Registrar
and any Paying Agent;
(23) if the Securities of the series shall be issued in whole
or in part in global form, (i) the Depositary for Global Securities
(ii) whether beneficial owners of interests in the Global Securities
may exchange such interests for certificated Securities of such series,
to be registered in the names of or to be held by such beneficial
owners or their nominees and to be of like tenor of any authorized form
and denomination, and (iii) if other than as provided in Section 3.5,
the circumstances under which any such exchange may occur;
(24) any restrictions on the registration, transfer or
exchange of the Securities;
(25) if the Securities of the series may be issued or
delivered (whether upon original issuance or upon exchange of a
temporary Security of such series or otherwise), or any installment of
principal or interest is payable, only upon receipt
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of certain certificates or other documents or satisfaction of other
conditions in addition to those specified in this Indenture, the form
and terms of such certificates, documents or conditions;
(26) the terms and conditions of any right to convert or
exchange Securities of the series into or for Equity Securities of the
Company, including provisions for the payment of interest on Securities
being converted or exchanged as contemplated by Section 3.7(d) and
Section 14.2;
(27) whether the Securities are secured or unsecured, and if
secured, the security and related terms in connection therewith;
(28) the definition of "Unrestricted Subsidiary" to be used
for such series; and
(29) any other terms of the series including any terms which
may be required by or advisable under United States laws or regulations
or advisable (as determined by the Company) in connection with the
marketing of Securities of the series.
(c) Subject to Section 1.12 and any controlling provision of
the Trust Indenture Act, in the event of any inconsistency between the terms of
this Indenture and the terms applicable to a series of Securities established in
the manner permitted by Section 3.1(b), the (i) Board Resolution, (ii) Officers'
Certificate or (iii) supplemental indenture setting forth such conflicting term
shall prevail.
(d) All Securities of any one series and interest coupons, if
any, appertaining thereto shall be substantially identical except as to
denomination and except as may otherwise be provided (i) by a Board Resolution,
(ii) by action taken pursuant to a Board Resolution and (subject to Section 3.3)
set forth, or determined in the manner provided, in the related Officers'
Certificate or (iii) in an indenture supplemental hereto. All Securities of any
one series need not be issued at the same time and, unless otherwise provided, a
series may be reopened, without the consent of the Holders, for issuances of
additional Securities of such series.
(e) If any of the terms of the Securities of any series are
established by action taken pursuant to a Board Resolution, a copy of such Board
Resolution shall be delivered to the Trustee at or prior to the delivery of the
Officers' Certificate setting forth, or providing the manner for determining,
the terms of the Securities of such series, and an appropriate record of any
action taken pursuant thereto in connection with the issuance of any Securities
of such series shall be delivered to the Trustee prior to the authentication and
delivery thereof.
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Section 3.2. Denominations. Unless otherwise provided as
contemplated by Section 3.1(b), any Registered Securities of a series
denominated in Dollars shall be issuable in denominations of U.S. $1,000 and any
integral multiple thereof and any Bearer Securities of a series denominated in
Dollars shall be issuable in the denomination of U.S. $5,000 and any integral
multiple thereof. Securities denominated in a Foreign Currency shall be issuable
in such denominations as are established with respect to such Securities in or
pursuant to this Indenture.
Section 3.3. Execution, Authentication, Delivery and Dating.
Securities shall be executed on behalf of the Company by the Chairman of the
Board, the President, the Chief Executive Officer, the Chief Operating Officer,
the Chief Financial Officer, the Treasurer, or any Vice President of the
Company, and need not be attested. The signatures of any of these officers on
the Securities may be manual or facsimile. The interest coupons, if any, of
Bearer Securities shall bear the facsimile signature of the Chairman of the
Board, the President, the Chief Executive Officer, the Chief Operating Officer,
the Chief Financial Officer, the Treasurer, or any Vice President of the
Company, and need not be attested.
Securities and interest coupons bearing the manual or
facsimile signatures of individuals who were at any time Officers of the Company
shall bind the Company, notwithstanding that such individuals or any of them
have ceased to be Officers prior to the authentication and delivery of such
Securities or were not Officers at the date of such Securities.
At any time and from time to time, the Company may deliver
Securities, together with any interest coupons appertaining thereto, of any
series executed by the Company and having endorsed (by attachment or imprint)
thereon the Subordinated Guarantees executed as provided in Section 16.2 by the
Guarantors to the Trustee for authentication, together with a Company Order for
the authentication and delivery of such Securities with such Subordinated
Guarantees endorsed thereon, and the Trustee in accordance with such Company
Order shall authenticate and deliver such Securities with such Subordinated
Guarantees endorsed thereon to or upon the order of the Company (as set forth in
such Company Order); provided, however, that, in the case of Securities of a
series offered in a Periodic Offering, the Trustee shall authenticate and
deliver such Securities from time to time in accordance with such other
procedures (including, without limitation, the receipt by the Trustee of oral or
electronic instructions from the Company or its duly authorized agents, promptly
confirmed in writing) acceptable to the Trustee as may be specified by or
pursuant to a Company Order delivered to the Trustee prior to the time of the
first authentication of Securities of such series.
If the form or terms of the Securities with the Subordinated
Guarantees endorsed thereon of a series have been established by or pursuant to
one or more Board Resolutions or one or more indentures supplemental hereto as
permitted by Sections 2.1
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and 3.1, in authenticating such Securities with Subordinated Guarantees endorsed
thereon and accepting the additional responsibilities under this Indenture in
relation to such Securities with Subordinated Guarantees endorsed thereon, the
Trustee shall be entitled to receive, and (subject to section 315(a) through (d)
of the Trust Indenture Act) shall be fully protected in relying upon,
(i) an Opinion of Counsel stating:
(1) if the form or forms of such Securities and any interest
coupons with Subordinated Guarantees endorsed thereon have been
established by or pursuant to a Board Resolution as permitted by
Section 2.1, that such forms have been established in conformity with
the provisions of this Indenture;
(2) if the terms of such Securities and any interest coupons
have been, or, in the case of Securities of a series with Subordinated
Guarantees endorsed thereon offered in a Periodic Offering, will be,
established by or pursuant to a Board Resolution as permitted by
Section 3.1, that such terms have been, or, in the case of Securities
of a series with Subordinated Guarantees endorsed thereon offered in a
Periodic Offering, will be, established in conformity with the
provisions of this Indenture, subject, in the case of Securities with
Subordinated Guarantees endorsed thereon offered in a Periodic
Offering, to any conditions specified in such Opinion of Counsel;
(3) if the form or terms of such Securities have been
established in an indenture supplemental hereto, that such supplemental
indenture has been duly authorized, executed and delivered by the
Company and the Guarantors and, when duly authorized, executed and
delivered by the Trustee, will constitute a legal, valid and binding
obligation enforceable against the Company and the Guarantors in
accordance with its terms, subject to (i) bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and other similar laws
of general applicability relating to or affecting the enforcement of
creditors' rights and to general principles of equity (regardless of
whether enforcement is sought in a proceeding in equity or at law), and
(ii) such other reasonable exceptions as may be specified in such
Opinion of Counsel; and
(4) that such Securities, together with any interest coupons
appertaining thereto, and the Subordinated Guarantees when issued by
the Company and the Guarantors and (in the case of the Securities)
authenticated and delivered by the Trustee in the manner and subject to
any conditions specified in such Opinion of Counsel, will constitute
valid and legally binding obligations of the Company and the
Guarantors, respectively, enforceable against the Company and the
Guarantors in accordance with their terms, subject to (i) bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and other
similar laws of general applicability
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relating to or affecting the enforcement of creditors' rights and to
general equity principles (regardless of whether enforcement is sought
in a proceeding in equity or at law) and except further as enforcement
thereof may be limited by (A) requirements that a claim with respect to
any Securities or Subordinated Guarantees denominated other than in
Dollars (or a Foreign Currency or currency unit judgment in respect of
such claim) be converted into Dollars at a rate of exchange prevailing
on a date determined pursuant to applicable law or (B) governmental
authority to limit, delay or prohibit the making of payments in Foreign
Currencies or currency units or payments outside the United States, and
(ii) such other reasonable exceptions as may be specified in such
Opinion of Counsel; and
(ii) an Officers' Certificate stating that all conditions
precedent provided for in this Indenture relating to the issuance of
such Securities have been complied with and that, to the knowledge of
the signers of such certificate, no Event of Default with respect to
such Securities shall have occurred and be continuing.
Notwithstanding that such form or terms have been so
established, the Trustee shall have the right to decline to authenticate such
Securities if, in the opinion of the Trustee (after consultation with counsel),
the issue of such Securities pursuant to this Indenture will materially
adversely affect the Trustee's own rights, duties or immunities under this
Indenture or otherwise or if the Trustee determines that such authentication may
not lawfully be made.
Notwithstanding the provisions of Section 3.1 and of the two
preceding paragraphs, if all of the Securities of any series are not to be
issued at one time, it shall not be necessary to deliver the Officers'
Certificate otherwise required pursuant to Section 3.1 or the Company Order and
Opinion of Counsel otherwise required pursuant to the two preceding paragraphs
in connection with the authentication of each Security of such series if such
documents, with appropriate modifications to cover such future issuances, are
delivered at or prior to the authentication upon original issuance of the first
Security of such series to be issued.
With respect to Securities with Subordinated Guarantees
endorsed thereon of a series offered in a Periodic Offering, the Trustee may
rely, as to the authorization by the Company of any of such Securities and by
the Guarantors of any such Subordinated Guarantees endorsed thereon, the form
and terms thereof and the legality, validity, binding effect and enforceability
thereof, upon the Opinion of Counsel and the other documents delivered pursuant
to Sections 2.1 and 3.1 and this Section, as applicable, in connection with the
first authentication of Securities of such series.
If the Company shall establish pursuant to Section 3.1 that
the Securities of a series are to be issued in whole or in part as Global
Securities then the Company and
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the Guarantors shall execute and the Trustee shall, in accordance with this
Section and the Company Order with respect to such series, authenticate and
deliver one or more Global Securities with Subordinated Guarantees endorsed
thereon that (i) shall represent and shall be denominated in an amount equal to
the aggregate principal amount of the Outstanding Securities of such series to
be represented by such Global Security or Securities, (ii) shall be registered,
if a Registered Security, in the name of the Depositary for such Global Security
or Securities or the nominee of such Depositary, (iii) shall be delivered by the
Trustee to such Depositary or pursuant to such Depositary's instruction and (iv)
shall bear the legend set forth in Section 2.5.
Each Depositary designated pursuant to Section 3.1 for a
Registered Security in global form must, at the time of its designation and at
all times while it serves as Depositary, be a clearing agency registered under
the Exchange Act and any other applicable statute or regulation. If requested by
the Company, the Trustee shall enter into an agreement with a Depositary
governing the respective duties and rights of such Depositary and the Trustee
with regard to Global Securities with Subordinated Guarantees endorsed thereon.
Each Registered Security shall be dated the date of its
authentication and each Bearer Security shall be dated as of the date specified
pursuant to Section 3.1.
No Security or interest coupon appertaining thereto or
Subordinated Guarantee endorsed thereon shall be entitled to any benefits under
this Indenture or be valid or obligatory for any purpose until such Security has
been authenticated by the manual signature of one of the authorized signatories
of the Trustee or an Authenticating Agent. Such signature upon any Security with
Subordinated Guarantees endorsed thereon shall be conclusive evidence, and the
only evidence, that such Security has been duly authenticated and delivered
under this Indenture and is entitled to the benefits of this Indenture and that
each Subordinated Guarantee endorsed thereon has been duly endorsed thereon and
delivered under this Indenture. Except as permitted by Section 3.6 or 3.7, the
Trustee shall not authenticate and deliver any Bearer Security unless all
appurtenant interest coupons for interest then matured have been detached and
cancelled.
Notwithstanding the foregoing, if any Security shall have been
authenticated and delivered hereunder but never issued and sold by the Company,
and the Company shall deliver such Security to the Trustee for cancellation as
provided in Section 3.9 together with a written statement (which need not comply
with Section 1.2 hereof and need not be accompanied by an Officers' Certificate
or an Opinion of Counsel) stating that such Security has never been issued and
sold by the Company, for all purposes of this Indenture such Security shall be
deemed never to have been authenticated and delivered hereunder and shall not be
entitled to the benefits of this Indenture.
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Section 3.4. Temporary Securities. Pending the preparation of
definitive Securities of any series, the Company and the Guarantors may execute
and, upon Company Order, the Trustee shall authenticate and deliver temporary
Securities with Subordinated Guarantees endorsed thereon of such series which
are printed, lithographed, typewritten, mimeographed or otherwise produced, in
any authorized denomination, substantially of the tenor and form, with or
without interest coupons, of the definitive Securities with Subordinated
Guarantees endorsed thereon in lieu of which they are issued and with such
appropriate insertions, omissions, substitutions and other variations as the
officers executing such Securities and such Subordinated Guarantees may
determine, as conclusively evidenced by their execution of such Securities and
interest coupons, if any and such Subordinated Guarantees. In the case of
Securities of any series, such temporary Securities may be in Global Securities,
representing all or a portion of the Outstanding Securities of such series.
Except in the case of temporary Global Securities, each of
which shall be exchanged in accordance with the provisions thereof, if temporary
Securities of any series are issued, the Company and the Guarantors will cause
definitive Securities with Subordinated Guarantees endorsed thereon of such
series to be prepared without unreasonable delay. After preparation of
definitive Securities of such series, the temporary Securities of such series
shall be exchangeable for definitive Securities of such series upon surrender of
the temporary Securities of such series at the office or agency of the Company
pursuant to Section 9.2 in a Place of Payment for such series, without charge to
the Holder. Upon surrender for cancellation of any one or more temporary
Securities of any series (accompanied by any unmatured interest coupons
appertaining thereto), the Company and the Guarantors shall execute and the
Trustee shall authenticate and deliver in exchange therefor a like principal
amount of definitive Securities with Subordinated Guarantees endorsed thereon of
the same series of authorized denominations and of like tenor; provided,
however, that no definitive Bearer Security shall be delivered in exchange for a
temporary Registered Security; and provided, further, that no definitive Bearer
Security shall be delivered in exchange for a temporary Bearer Security unless
such delivery shall occur outside the United States. Until so exchanged, the
temporary Securities of any series shall in all respects be entitled to the same
benefits under this Indenture as definitive Securities of such series except as
otherwise specified as contemplated by Section 3.1.
Section 3.5. Registration, Transfer and Exchange. The Company
shall cause to be kept at the Corporate Trust Office of the Trustee or in any
office or agency to be maintained by the Company in accordance with Section 9.2
in a Place of Payment a register (the "Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Registered Securities and the registration of transfers of
Registered Securities. The Register shall be in written form or any other form
capable of being converted into written form within a reasonable time.
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The Trustee is hereby initially appointed "Registrar" for the purpose of
registering Registered Securities and transfers of Registered Securities as
herein provided.
Each Global Security authenticated under this Indenture shall
be registered in the name of the Depositary or a nominee thereof and delivered
to such Depositary or nominee thereof or to a successor of such Depositary or
nominee thereof, and each such Global Security shall constitute a single
Security for all purposes of this Indenture.
Upon surrender for registration of transfer of any Registered
Security of any series at the office or agency maintained pursuant to Section
9.2 in a Place of Payment for that series, the Company and the Guarantors shall
execute, and the Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Registered Securities with
Subordinated Guarantees endorsed thereon of the same series, of any authorized
denominations and of a like aggregate principal amount and tenor and containing
identical terms and provisions.
Bearer Securities (except for any temporary global Bearer
Securities) or any interest coupons appertaining thereto (except for interest
coupons attached to any temporary global Bearer Security) shall be transferable
by delivery.
At the option of the Holder, Registered Securities of any
series (except a Registered Security in global form) may be exchanged for other
Registered Securities of the same series, of any authorized denominations, of a
like aggregate principal amount and tenor and containing identical terms and
provisions, upon surrender of the Registered Securities to be exchanged at such
office or agency. Whenever any Registered Securities are so surrendered for
exchange, the Company and the Guarantors shall execute, and the Trustee shall
authenticate and deliver, the Registered Securities with Subordinated Guarantees
endorsed thereon which the Holder making the exchange is entitled to receive.
Unless otherwise specified as contemplated by Section 3.1, Bearer Securities may
not be issued in exchange for Registered Securities.
Unless otherwise specified as contemplated by Section 3.1, at
the option of the Holder, Bearer Securities of such series may be exchanged for
Registered Securities (if the Securities of such series are issuable in
registered form) or Bearer Securities (if Bearer Securities of such series are
issuable in more than one denomination and such exchanges are permitted by such
series) of the same series, of any authorized denominations, of like aggregate
principal amount and tenor and containing identical terms and conditions, upon
surrender of the Bearer Securities to be exchanged at any such office or agency,
with all unmatured interest coupons and all matured interest coupons in default
thereto appertaining. If the Holder of a Bearer Security is unable to produce
any such unmatured interest coupon or coupons or matured interest coupon or
coupons in default, such exchange may be effected if the Bearer Securities are
accompanied by payment in funds acceptable to the Company and the Trustee in an
amount equal to the
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face amount of such missing interest coupon or coupons, or the surrender of such
missing interest coupon or interest coupons may be waived by the Company, the
Guarantors and the Trustee if there be furnished to them such security or
indemnity as they may require to save each of them and any Paying Agent
harmless. If thereafter the Holder of such Security shall surrender to any
Paying Agent any such missing interest coupon in respect of which such a payment
shall have been made, such Holder shall be entitled to receive the amount of
such payment; provided, however, that, except as otherwise provided in Section
9.2, interest represented by interest coupons shall be payable only upon
presentation and surrender of those interest coupons at an office or agency
located outside the United States. Notwithstanding the foregoing, in case any
Bearer Security of any series is surrendered at any such office or agency in
exchange for a Registered Security of the same series after the close of
business at such office or agency on (i) any Regular Record Date and before the
opening of business at such office or agency on the relevant Interest Payment
Date, or (ii) any Special Record Date and before the opening of business at such
office or agency on the related date for payment of Defaulted Interest, such
Bearer Security shall be surrendered without the interest coupon relating to
such Interest Payment Date or proposed date of payment, as the case may be (or,
if such interest coupon is so surrendered with such Bearer Security, such
interest coupon shall be returned to the Person so surrendering the Bearer
Security), and interest or Defaulted Interest, as the case may be, will not be
payable on such Interest Payment Date or proposed date for payment, as the case
may be, in respect of the Registered Security issued in exchange for such Bearer
Security, but will be payable only to the Holder of such interest coupon, when
due in accordance with the provisions of this Indenture.
Notwithstanding anything herein to the contrary, the exchange
of Bearer Securities for Registered Securities shall be subject to applicable
laws and regulations in effect at the time of exchange. Neither the Company, the
Guarantors, the Trustee nor the Registrar shall exchange any Bearer Securities
for Registered Securities if it has received an Opinion of Counsel that as a
result of such exchange the Company would suffer adverse consequences under the
United States Federal income tax laws and regulations then in effect and the
Company has delivered to the Trustee a Company Order directing the Trustee not
to make such exchanges thereafter, unless and until the Trustee receives a
subsequent Company Order to the contrary. The Company shall deliver copies of
such Company Order to the Registrar.
Notwithstanding any other provision of this Section, unless
and until it is exchanged in whole or in part for Securities in certificated
form, a Global Security representing all or a portion of the Securities of a
series may not be transferred except as a whole by the Depositary for such
series to a nominee of such Depositary or by a nominee of such Depositary to
such Depositary or another nominee of such Depositary or by such Depositary or
any such nominee to a successor Depositary for such series or a nominee of such
successor Depositary.
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If at any time the Depositary for the Securities of a series
notifies the Company that it is unwilling or unable to continue as Depositary
for the Securities of such series or if at any time the Depositary for the
Securities of such series shall no longer be eligible under Section 3.3, the
Company shall appoint a successor Depositary with respect to the Securities of
such series. If a successor Depositary for the Securities of such series is not
appointed by the Company prior to the resignation of the Depositary and, in any
event, within 90 days after the Company receives such notice or becomes aware of
such ineligibility, the Company's designation of the Depositary pursuant to
Section 3.1(b)(22) shall no longer be effective with respect to the Securities
of such series and the Company and the Guarantors shall execute, and the
Trustee, upon receipt of a Company Order for the authentication and delivery of
certificated Securities with Subordinated Guarantees endorsed thereon of such
series of like tenor, shall authenticate and deliver, Securities with
Subordinated Guarantees endorsed thereon of such series of like tenor in
certificated form, in authorized denominations and in an aggregate principal
amount equal to the principal amount of the Global Security or Securities of
such series of like tenor in exchange for such Global Security or Securities in
global form.
The Company may at any time in its sole discretion determine
that Global Securities shall no longer be represented by such a Global Security
or Securities. In such event the Company and the Guarantors shall execute, and
the Trustee, upon receipt of a Company Order for the authentication and delivery
of certificated Securities with Subordinated Guarantees endorsed thereon of such
series of like tenor, shall authenticate and deliver, Securities with
Subordinated Guarantees endorsed thereon of such series of like tenor in
certificated form, in authorized denominations and in an aggregate principal
amount equal to the principal amount of the Global Security or Securities of
such series of like tenor in exchange for such Global Security or Securities in
global form.
If specified by the Company pursuant to Section 3.1 with
respect to a series of Securities, the Depositary for such series may surrender
a Global Security of such series in exchange in whole or in part for Securities
of such series in certificated form on such terms as are acceptable to the
Company, the Guarantors and such Depositary. Thereupon, the Company and the
Guarantors shall execute, and the Trustee shall authenticate and deliver,
without service charge,
(i) to each Person specified by such Depositary a new
certificated Security or Securities with Subordinated Guarantees
endorsed thereon of the same series of like tenor, of any authorized
denomination as requested by such Person in aggregate principal amount
equal to and in exchange for such Person's beneficial interest in the
Global Security; and
(ii) to such Depositary a new Global Security with
Subordinated Guarantees endorsed thereon of like tenor in a
denomination equal to the difference, if any, between the principal
amount of the surrendered Global
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Security and the aggregate principal amount of certificated Securities
delivered to Holders thereof.
Upon the exchange of a Global Security with Subordinated
Guarantees endorsed thereon for Securities with Subordinated Guarantees endorsed
thereon in certificated form, such Global Security with Subordinated Guarantees
endorsed thereon shall be cancelled by the Trustee. Unless expressly provided
with respect to the Securities of any series that such Security may be exchanged
for Bearer Securities, Securities with Subordinated Guarantees endorsed thereon
in certificated form issued in exchange for a Global Security with Subordinated
Guarantees endorsed thereon pursuant to this Section shall be registered in such
names and in such authorized denominations as the Depositary for such Global
Security with Subordinated Guarantees endorsed thereon pursuant to instructions
from its direct or indirect participants or otherwise, shall instruct the
Trustee in writing. The Trustee shall deliver such Securities with Subordinated
Guarantees endorsed thereon to the Persons in whose names such Securities with
Subordinated Guarantees endorsed thereon are so registered.
Whenever any Securities are surrendered for exchange, the
Company and the Guarantors shall execute, and the Trustee shall authenticate and
deliver, the Securities with Subordinated Guarantees endorsed thereon which the
Holder making the exchange is entitled to receive.
All Securities with Subordinated Guarantees endorsed thereon
issued upon any registration of transfer or upon any exchange of Securities with
Subordinated Guarantees endorsed thereon shall be the valid obligations of the
Company and the Guarantors, evidencing the same debt, and entitled to the same
benefits under this Indenture, as the Securities with Subordinated Guarantees
endorsed thereon surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for
registration of transfer or for exchange shall (if so required by the Company,
the Guarantors, the Registrar or the Trustee) be duly endorsed, or be
accompanied by a written instrument of transfer in form satisfactory to the
Company, the Guarantors, the Registrar and the Trustee duly executed by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of
transfer or for any exchange of Securities, but the Company may require payment
of a sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any registration or transfer or exchange of
Securities, other than exchanges pursuant to Section 3.4, 8.6 or 11.7 not
involving any transfer.
The Company and the Guarantors shall not be required (i) to
issue, register the transfer of, or exchange any Securities with Subordinated
Guarantees endorsed thereon for a period beginning at the opening of business 15
days before any selection for
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redemption of Securities of like tenor and of the series of which such Security
is a part and ending at the close of business on the earliest date on which the
relevant notice of redemption is deemed to have been given to all Holders of
Securities of like tenor and of such series to be redeemed; (ii) to register the
transfer of or exchange any Registered Security with Subordinated Guarantees
endorsed thereon so selected for redemption, in whole or in part, except the
unredeemed portion of any Security being redeemed in part; or (iii) to exchange
any Bearer Security with Subordinated Guarantees endorsed thereon so selected
for redemption, except that such a Bearer Security may be exchanged for a
Registered Security of that series and like tenor; provided that such Registered
Security shall be simultaneously surrendered for redemption.
The foregoing provisions relating to registration, transfer
and exchange may be modified, supplemented or superseded with respect to any
series of Securities by a Board Resolution or in one or more indentures
supplemental hereto.
Section 3.6. Replacement Securities. If a mutilated Security
or a Security with a mutilated interest coupon appertaining to it is surrendered
to the Trustee, together with, in proper cases, such security or indemnity as
may be required by the Company, the Guarantors or the Trustee to save each of
them harmless, the Company and the Guarantors shall execute and the Trustee
shall authenticate and deliver a replacement Registered Security with
Subordinated Guarantees endorsed thereon, if such surrendered Security was a
Registered Security, or a replacement Bearer Security with Subordinated
Guarantees endorsed thereon with interest coupons corresponding to the interest
coupons appertaining to the surrendered Security, if such surrendered Security
was a Bearer Security, of the same series and date of maturity.
If there shall be delivered to the Company, the Guarantors and
the Trustee (i) evidence to their satisfaction of the destruction, loss or theft
of any Security or interest coupon and (ii) such security or indemnity as may be
required by them to save each of them and any agent of any of them harmless,
then, in the absence of notice to the Company or the Trustee that such Security
or interest coupon has been acquired by a bona fide purchaser, the Company and
the Guarantors shall execute and the Trustee shall authenticate and deliver in
lieu of any such destroyed, lost or stolen Security or in exchange for the
Security to which a destroyed, lost or stolen interest coupon appertains (with
all appurtenant interest coupons not destroyed, lost or stolen), a replacement
Registered Security with Subordinated Guarantees endorsed thereon, if such
Holder's claim appertains to a Registered Security with Subordinated Guarantees
endorsed thereon, or a replacement Bearer Security with Subordinated Guarantees
endorsed thereon with interest coupons corresponding to the interest coupons
appertaining to the destroyed, lost or stolen Bearer Security or the Bearer
Security to which such lost, destroyed or stolen interest coupon appertains, if
such Holder's claim appertains to a Bearer Security, of the same series and
principal amount, containing identical terms and provisions and bearing a number
not contemporaneously outstanding.
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In case any such mutilated, destroyed, lost or stolen Security
or interest coupon has become or is about to become due and payable, the Company
and the Guarantors in their discretion may, instead of issuing a new Security or
interest coupon with Subordinated Guarantees endorsed thereon, pay such Security
or interest coupon; provided, however, that payment of principal of and any
premium or interest on Bearer Securities shall, except as otherwise provided in
Section 9.2, be payable only at an office or agency located outside the United
States and, unless otherwise specified as contemplated by Section 3.1, any
interest on Bearer Securities shall be payable only upon presentation and
surrender of the interest coupons appertaining thereto.
Upon the issuance of any new Security under this Section, the
Company and the Guarantors may require the payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in relation thereto and
any other expenses (including the fees and expenses of the Trustee, its agents
and counsel) connected therewith.
Every new Security with Subordinated Guarantees endorsed
thereon of any series with its interest coupons, if any, issued pursuant to this
Section in lieu of any destroyed, lost or stolen Security, or in exchange for a
Security to which a destroyed, lost or stolen interest coupon appertains, shall
constitute an original additional contractual obligation of the Company and the
relevant Guarantor, whether or not the destroyed, lost or stolen Security and
its interest coupon, if any, or the destroyed, lost or stolen interest coupon,
shall be at any time enforceable by anyone, and shall be entitled to all the
benefits of this Indenture equally and proportionately with any and all other
Securities of that series and their interest coupons, if any, duly issued
hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Securities or
interest coupons.
Section 3.7. Payment of Interest; Interest Rights Preserved.
(a) Unless otherwise provided as contemplated by Section 3.1, interest, if any,
on any Registered Security which is payable, and is punctually paid or duly
provided for, on any Interest Payment Date shall be paid to the Person in whose
name that Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest at the office or
agency maintained for such purpose pursuant to Section 9.2; provided, however,
that at the option of the Company, interest on any series of Registered
Securities that bears interest may be paid (i) by check mailed to the address of
the Person entitled thereto as it shall appear on the Register of Holders of
Securities of such series or (ii) at the expense of the Company, by wire
transfer to an account maintained by the Person entitled thereto as specified in
the Register of Holders of Securities of such series.
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Unless otherwise provided as contemplated by Section 3.1, (i)
interest, if any, on Bearer Securities shall be paid only against presentation
and surrender of the interest coupons for such interest installments as are
evidenced thereby as they mature and (ii) original issue discount, if any, on
Bearer Securities shall be paid only against presentation and surrender of such
Securities; in either case at the office of a Paying Agent located outside the
United States, unless the Company shall have otherwise instructed the Trustee in
writing, provided that any such instruction for payment in the United States
does not cause any Bearer Security to be treated as a "registration-required
obligation" under United States laws and regulations. The interest, if any, on
any temporary Bearer Security shall be paid, as to any installment of interest
evidenced by an interest coupon attached thereto only upon presentation and
surrender of such interest coupon and, as to other installments of interest,
only upon presentation of such Security for notation thereon of the payment of
such interest. If at the time a payment of principal of or interest, if any, on
a Bearer Security or interest coupon shall become due, the payment of the full
amount so payable at the office or offices of all the Paying Agents outside the
United States is illegal or effectively precluded because of the imposition of
exchange controls or other similar restrictions on the payment of such amount in
Dollars, then the Company may instruct the Trustee in writing to make such
payments at a Paying Agent located in the United States, provided that provision
for such payment in the United States would not cause such Bearer Security to be
treated as a "registration-required obligation" under United States laws and
regulations.
(b) Unless otherwise provided as contemplated by Section 3.1,
any interest on Securities of any series which is payable, but is not punctually
paid or duly provided for, on any Interest Payment Date in the case of
Registered Securities and upon presentation and surrender of the applicable
interest coupon in accordance with the second paragraph of Section 3.7(a) in the
case of Bearer Securities (herein called "Defaulted Interest"), shall forthwith
cease to be payable to the Holders of Registered Securities on the relevant
Regular Record Date by virtue of their having been such Holders, or to the
Holders of Bearer Securities by virtue of their having presented the applicable
interest coupon on such Interest Payment Date, and such Defaulted Interest may
be paid by the Company, at its election in each case, as provided in clause (1)
or (2) below:
(1) In the case of Registered Securities, the Company may
elect to make payment of such Defaulted Interest to the Persons in
whose names such Registered Securities (or their respective Predecessor
Securities) are registered at the close of business on a Special Record
Date for the payment of such Defaulted Interest, which shall be fixed
in the following manner. The Company shall notify the Trustee in
writing of the amount of Defaulted Interest proposed to be paid on each
such Registered Security and the date of the proposed payment, and
shall deposit with the Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements
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satisfactory to the Trustee for such deposit prior to the date of the
proposed payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this
clause (1) provided. Thereupon the Trustee shall fix a Special Record
Date for the payment of such Defaulted Interest which shall be not more
than 15 days and not less than 10 days prior to the date of the
proposed payment and not less than 10 days after the receipt by the
Trustee of the notice of the proposed payment. The Trustee shall
promptly notify the Company of such Special Record Date and, in the
name and at the expense of the Company, shall cause notice of the
proposed payment of such Defaulted Interest and the Special Record Date
therefor to be mailed, first-class postage prepaid, to each Holder of
such Registered Securities at his or her address as it appears in the
Register, not less than 10 days prior to such Special Record Date.
Notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor having been so mailed, such Defaulted
Interest shall be paid to the Persons in whose names such Registered
Securities (or their respective Predecessor Securities) are registered
at the close of business on such Special Record Date and shall no
longer be payable pursuant to the following clause (2).
(2)(x) In the case of Registered Securities, the Company may
make payment of such Defaulted Interest to the Persons in whose names
such Registered Securities (or their respective Predecessor Securities)
are registered at the close of business on a specified date in any
other lawful manner not inconsistent with the requirements of any
securities exchange on which such Registered Securities may be listed,
and upon such notice as may be required by such exchange, if, after
notice given by the Company to the Trustee of the proposed payment
pursuant to this clause (2)(x), such manner of payment shall be deemed
practicable by the Trustee; or (y) unless otherwise provided as
contemplated by Section 3.1, in the case of Bearer Securities, the
Company may make payment of Defaulted Interest on such Bearer
Securities in any lawful manner not inconsistent with the requirements
of any securities exchange on which such Bearer Securities may be
listed, and upon such notice as may be required by such exchange, if,
after notice given by the Company to the Trustee of the proposed
payment pursuant to this clause (2)(y), such manner of payment shall be
deemed practicable by the Trustee.
(c) Subject to the foregoing provisions of this Section and
Section 3.5, each Security delivered under this Indenture upon registration of
transfer of or in exchange for or in lieu of any other Security shall carry the
rights to interest accrued and unpaid, and to accrue, which were carried by such
other Security.
(d) In the case of any Registered Security which is converted
or exchanged after any Regular Record Date and on or prior to the next
succeeding Interest Payment Date (other than any Security the principal of (or
premium, if any on) which shall become due and payable, whether at Stated
Maturity or by declaration of
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acceleration, call for redemption, or otherwise, prior to such Interest Payment
Date), interest whose Stated Maturity is on such Interest Payment Date shall be
payable on such Interest Payment Date notwithstanding such conversion or
exchange and such interest (whether or not punctually paid or duly provided for)
shall be paid to the Person in whose name that Registered Security (or any one
or more Predecessor Securities) is registered at the close of business on such
Regular Record Date, unless otherwise provided with respect to Securities of
that series pursuant to Section 3.1(b).
Section 3.8. Persons Deemed Owners. Unless otherwise provided
as contemplated by Section 3.1, prior to due presentment of any Registered
Security for registration of transfer, the Company, the Guarantors, the Trustee
and any agent of the Company, any Guarantor or the Trustee may treat the Person
in whose name such Registered Security is registered as the owner of such
Registered Security for the purpose of receiving payment of principal of,
premium, if any, and (subject to Section 3.7) interest on such Registered
Security and for all other purposes whatsoever, whether or not such Registered
Security be overdue, and neither the Company, any Guarantor, the Trustee nor any
agent of the Company, any Guarantor or the Trustee shall be affected by notice
to the contrary.
Unless otherwise provided as contemplated by Section 3.1, the
Company, the Guarantors, the Trustee and any agent of the Company, any Guarantor
or the Trustee may treat the bearer of any Bearer Security and the bearer of any
interest coupon as the absolute owner of such Bearer Security or interest coupon
for the purpose of receiving payment thereof or on account thereof and for all
other purposes whatsoever, whether or not such Bearer Security or interest
coupon be overdue, and neither the Company, the Guarantors, the Trustee nor any
agent of the Company, any Guarantor or the Trustee shall be affected by notice
to the contrary.
None of the Company, the Guarantors, the Trustee or any agent
of the Company, any Guarantor or the Trustee shall have any responsibility or
liability for any aspect of the records relating to or payments made on account
of beneficial ownership interests of a Global Security, or for maintaining,
supervising or reviewing any records relating to such beneficial ownership
interests. No holder of any beneficial interest in any Global Security, held on
its behalf by or through a Depositary, shall have any rights under this
Indenture with respect to such Global Security, and such Depositary may be
treated by the Company, the Guarantors, the Trustee and any agent of the
Company, any Guarantor or the Trustee as the owner of such Global Security for
all purposes whatsoever. With respect to any Global Security, nothing herein
shall prevent the Company, the Guarantors or the Trustee, or any agent of the
Company, any Guarantor or the Trustee, from giving effect to any written
certification, proxy or other authorization furnished by any Depositary (or its
nominee), as a Holder, with respect to such Global Security or impair, as
between such Depositary and owners of beneficial interests in such
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Global Security, the operation of customary practices governing the exercise of
the rights of such Depositary (or its nominee) as Holder of such Global
Security.
Section 3.9. Cancellation. All Securities and interest coupons
appertaining thereto, if any, surrendered for payment, redemption, conversion,
registration of transfer or exchange or for credit against any sinking fund
payment shall, if surrendered to any Person other than the Trustee, be delivered
to the Trustee and, together with the Subordinated Guarantees endorsed thereon,
shall be promptly cancelled by it. The Company may at any time deliver to the
Trustee for cancellation any Securities, together with interest coupons
appertaining thereto, if any, previously authenticated and delivered hereunder
which the Company may have acquired in any manner whatsoever, and may deliver to
the Trustee (or to any other Person for delivery to the Trustee) for
cancellation any Securities, together with interest coupons appertaining
thereto, if any, previously authenticated hereunder which the Company has not
issued and sold, and all Securities and interest coupons so delivered shall,
together with the Subordinated Guarantees endorsed thereon, be promptly
cancelled by the Trustee. No Securities shall be authenticated in lieu of or in
exchange for any Securities cancelled as provided in this Section 3.9, except as
expressly permitted by this Indenture. All cancelled Securities and interest
coupons held by the Trustee shall, together with the Subordinated Guarantees
endorsed thereon, be disposed of in accordance with its customary procedures,
and the Trustee shall thereafter deliver to the Company a certificate with
respect to such disposition.
Section 3.10. Computation of Interest. Except as otherwise
specified as contemplated by Section 3.1, interest on the Securities of each
series shall be computed on the basis of a 360-day year of twelve 30-day months.
Section 3.11. CUSIP Numbers. The Company in issuing the
Securities may use "CUSIP" numbers (if then generally in use and in addition to
the other identification numbers printed on the Securities), and, in such case,
the Trustee shall use "CUSIP" numbers in notices of redemption as a convenience
to Holders; provided that any such notice may state that no representation is
made as to the correctness of such numbers either as printed on the Securities
or as contained in any notice of a redemption and that reliance may be placed
only on the other identification numbers printed on the Securities, and any such
redemption shall not be affected by any defect in or omission of such numbers.
Section 3.12. Currency and Manner of Payment in Respect of
Securities. Unless otherwise specified with respect to any Securities pursuant
to Section 3.1, payment of the principal of, premium, if any, and interest, if
any, on any Security of such series will be made in the currency or currencies
or currency unit or units in which such Security is payable. The provisions of
this Section 3.12 may be modified or superseded pursuant to Section 3.1 with
respect to any Securities.
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ARTICLE 4
SATISFACTION, DISCHARGE AND DEFEASANCE
Section 4.1. Termination of Company's Obligations Under the
Indenture. This Indenture shall upon a Company Request cease to be of further
effect with respect to Securities of or within any series and any interest
coupons appertaining thereto (except as to (i) rights of registration, transfer
or exchange of such Securities, (ii) rights of replacement of such Securities
which may have been lost, stolen or mutilated as herein expressly provided for,
(iii) rights of holders of Securities to receive payments of principal thereof
and interest thereon, upon the Stated Maturity thereof (but not upon
acceleration), and rights of the Holders to receive mandatory sinking fund
payments, if any, (iv) rights of holders of Securities to convert or exchange
Securities, (v) rights, obligations, duties and immunities of the Trustee
hereunder, (vi) any rights of the Holders of Securities of such series as
beneficiaries hereof with respect to the property so deposited with the Trustee
payable to all or any of them, and (vii) the obligations of the Company under
Section 9.2) and the Trustee, upon payment of all amounts due it under Section
6.7, at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture with respect to such
Securities and any interest coupons appertaining thereto when
(1) either (A) all such Securities previously authenticated
and delivered and all interest coupons appertaining thereto (other than
(i) such interest coupons appertaining to Bearer Securities surrendered
in exchange for Registered Securities and maturing after such exchange,
surrender of which is not required or has been waived as provided in
Section 3.5, (ii) such Securities and interest coupons which have been
destroyed, lost or stolen and which have been replaced or paid as
provided in Section 3.6, (iii) such interest coupons appertaining to
Bearer Securities called for redemption and maturing after the relevant
Redemption Date, surrender of which has been waived as provided in
Section 11.6 and (iv) such Securities and interest coupons for whose
payment money in the currency or currencies or currency unit or units
in which such Securities are payable has theretofore been deposited in
trust or segregated and held in trust by the Company and thereafter
repaid to the Company or discharged from such trust, as provided in
Section 9.3) have been delivered to the Trustee for cancellation; or
(B) all Securities of such series and, in the case of (i) or (ii)
below, any interest coupons appertaining thereto not theretofore
delivered to the Trustee for cancellation:
(i) have become due and payable, or
(ii) will become due and payable at their Stated
Maturity within one year, or
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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 6.14 and, if money shall have been deposited with the
Trustee pursuant to subclause (B) of clause (1) of this Section, the obligations
of the Trustee under Section 4.2, Section 9.2 and the last paragraph of Section
9.3 shall survive.
Section 4.2. Application of Trust Funds. Subject to the
provisions of the last paragraph of Section 9.3, all money deposited with the
Trustee pursuant to Section 4.1 shall be held in trust and applied by it, in
accordance with the provisions of the Securities, the interest coupons
appertaining thereto, if any, and this Indenture, to the payment, either
directly or through any Paying Agent (including the Company acting as its own
Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of
the principal, premium, if any and any interest for whose payment such money has
been deposited with or received by the Trustee, but such money need not be
segregated from other funds except as otherwise provided herein and except to
the extent required by law.
Section 4.3. Applicability of Defeasance Provisions; Company's
Option to Effect Defeasance or Agreement Defeasance. Except as otherwise
specified as contemplated by Section 3.1 for the Securities of any series, the
provisions of Sections 4.4 through 4.9 inclusive, with such modifications
thereto as may be specified pursuant to
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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 Sections 4.7 and 4.9 and the other
Sections of this Indenture referred to in clause (ii) (B) of this Section, and
to have satisfied all its other obligations under such Securities and any
interest coupons appertaining thereto and this Indenture insofar as such
Securities and any interest coupons appertaining thereto are concerned (and the
Trustee, upon payment of all amounts due it under Section 6.7, at the expense of
the Company, shall on a Company Order execute proper instruments acknowledging
the same) and (ii) the Guarantors shall be released from all of their
obligations under their Subordinated Guarantees and under Article 16 of this
Indenture, except the following which shall survive until otherwise terminated
or discharged hereunder: (A) the rights of Holders of such Securities and any
interest coupons appertaining thereto to receive, solely from the trust funds
described in Section 4.6(a) and as more fully set forth in such Section,
payments in respect of the principal of, premium, if any, and interest, if any,
on such Securities or any interest coupons appertaining thereto when such
payments are due; (B) the Company's obligations with respect to such Securities
under Sections 3.4, 3.5, 3.6, 9.2 and 9.3 and with respect to the payment of
additional amounts, if any, payable with respect to such Securities as specified
pursuant to Section 3.1(b)(16); (C) the Company's obligations with respect to a
conversion or exchange of such Securities; (D) the rights, powers, trusts,
duties and immunities of the Trustee hereunder and (E) this Article 4. Subject
to compliance with this Article 4, the Company may defease the Securities of any
series and any interest coupons appertaining thereto under this Section 4.4
notwithstanding a prior agreement defeasance (as defined herein) under Section
4.5 with respect to such Securities and any interest coupons appertaining
thereto. Following a defeasance, payment of such Securities may not be
accelerated because of an Event of Default.
Section 4.5. Agreement Defeasance. On and after the date on
which the conditions set forth in Section 4.6 are satisfied with respect to the
Securities of or within any series, (i) the Company shall be released from its
obligations under Section 7.1 and, if specified pursuant to Section 3.1, its
obligations under any other agreement, with respect to such Securities and any
interest coupons appertaining thereto, (ii) the occurrence of any event
specified in Section 5.1(d) or 5.1(i) (in each case, with respect to any of the
obligations described in clause (i) above) or 5.1(e) shall be deemed not to be
or result in a Default or Event of Default (hereinafter, "agreement
defeasance"),
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and such Securities and any interest coupons appertaining thereto shall
thereafter be deemed to be not "Outstanding" for the purposes of any request,
demand, authorization, direction, notice, waiver, consent or declaration or Act
of Holders (and the consequences of any thereof) in connection with Section 7.1,
such other agreement specified pursuant to Section 3.1, or Section 5.1(d) or
5.1(i) (in each case, with respect to any of the obligations described in clause
(i) above) or 5.1(e), but shall continue to be deemed "Outstanding" for all
other purposes hereunder and (iii) the provisions of Article Fifteen shall cease
to be effective as to such Securities to the extent provided therein. For this
purpose, such agreement defeasance means that, with respect to such Securities
and any interest coupons appertaining thereto, the Company may omit to comply
with and shall have no liability in respect of any term, condition or limitation
set forth in any such Section or such other agreement, whether directly or
indirectly, by reason of any reference elsewhere herein to any such Section or
such other agreement or by reason of reference in any such Section or such other
agreement to any other provision herein or in any other document and such
omission to comply shall not constitute a Default or an Event of Default under
Section 5.1(d), 5.1(e) or 5.1(i) or otherwise, as the case may be, but, except
as specified above, the remainder of this Indenture and such Securities and any
interest coupons appertaining thereto shall be unaffected thereby.
Section 4.6. Conditions to Defeasance or Agreement Defeasance.
The following shall be the conditions to application of either Section 4.4 or
Section 4.5 to the then Outstanding Securities of or within a series:
(a) The Company shall irrevocably have deposited or caused to
be deposited with the Trustee (or another trustee satisfying the
requirements of Section 6.9 who shall agree to comply with the
provisions of Sections 4.3 through 4.9 inclusive and the last paragraph
of Section 9.3 applicable to the Trustee, for purposes of such sections
also a "Trustee") as trust funds in trust for the purpose of making the
following payments, specifically pledged as security for, and dedicated
solely to, the benefit of the Holders of such Securities and any
interest coupons appertaining thereto, (A) money in an amount, or (B)
U.S. Government Obligations which through the scheduled payment of
principal and interest in respect thereof in accordance with their
terms will provide, not later than one day before the due date of any
payment, money in an amount, or (C) a combination thereof, in an amount
sufficient in the opinion of a nationally recognized firm of
independent certified public accountants expressed in a written opinion
with respect thereto delivered to the Trustee, to pay and discharge,
and which shall be applied by the Trustee (or other qualifying trustee)
to pay and discharge, (x) the principal of, premium, if any, and each
installment of interest, if any, on the outstanding Securities and any
interest coupons appertaining thereto on the Stated Maturity of such
principal or installment of interest and (y) any mandatory sinking fund
payments applicable to such Securities on the day on which such
payments are due and payable in accordance with the terms of this
Indenture and of such
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Securities and any interest coupons appertaining thereto.
(b) In the case of an election under Section 4.4, the Company
shall have delivered to the Trustee an Opinion of Counsel stating that
(x) the Company has received from, or there has been published by, the
Internal Revenue Service a ruling, or (y) since the date of this
Indenture there has been a change in the applicable Federal income tax
law, in either case to the effect that, and based thereon such opinion
shall confirm that, the Holders of the Outstanding Securities and any
interest coupons appertaining thereto will not recognize gain or loss
for Federal income tax purposes as a result of such deposit, defeasance
and discharge and will be subject to Federal income tax on the same
amount, in the same manner and at the same times as would have been the
case if such deposit, defeasance and discharge had not occurred.
(c) In the case of an election under Section 4.5, the Company
shall have delivered to the Trustee an Opinion of Counsel to the effect
that the Holders of the Outstanding Securities and any interest coupons
appertaining thereto will not recognize gain or loss for Federal income
tax purposes as a result of such deposit and agreement defeasance and
will be subject to Federal income tax on the same amount, in the same
manner and at the same times as would have been the case if such
deposit and agreement defeasance had not occurred.
(d) The Company shall have delivered to the Trustee an
Officer's Certificate to the effect that the Securities, if then listed
on any securities exchange or approved for trading in any automated
quotation system, will not be delisted or disapproved for such trading
as a result of such deposit.
(e) The Company shall have delivered to the Trustee an
Officers' Certificate stating that the deposit was not made by the
Company with the intent of preferring the Holders over any other
creditors of the Company or with the intent of defeating, hindering,
delaying or defrauding any other creditors of the Company.
(f) No Event of Default or event which with notice or lapse of
time or both would become an Event of Default shall have occurred and
be continuing on the date of such deposit or, insofar as subsections
5.1(g) and (h) are concerned, at any time during the period ending on
the 91st day after the date of such deposit (it being understood that
this condition shall not be deemed satisfied until the expiration of
such period).
(g) Such defeasance or agreement defeasance shall not cause
the Trustee to have a conflicting interest within the meaning of the
Trust Indenture Act (assuming all Securities are in default within the
meaning of such Act).
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(h) Such defeasance or agreement defeasance shall not result
in a breach or violation of, or constitute a default under, any other
agreement or instrument to which the Company is a party or by which it
is bound.
(i) The Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for relating to either the defeasance
under Section 4.4 or the agreement defeasance under Section 4.5 (as the
case may be) have been complied with.
(j) The Company has delivered to the Trustee an Opinion of
Counsel to the effect that such defeasance or agreement defeasance
shall not result in the trust arising from such deposit constituting an
investment company as defined in the Investment Company Act of 1940, as
amended from time to time, or such trust shall be registered under such
act or exempt from registration thereunder.
(k) Such defeasance or agreement defeasance shall be effected
in compliance with any additional or substitute terms, conditions or
limitations which may be imposed on the Company in connection therewith
as contemplated by Section 3.1.
Section 4.7. Deposited Money and U.S. Government Obligations
to Be Held in Trust. Subject to the provisions of the last paragraph of Section
9.3, all money and U.S. Government Obligations (or other property as may be
provided pursuant to Section 3.1) (including the proceeds thereof) deposited
with the Trustee pursuant to Section 4.6 in respect of any Securities of any
series and any interest coupons appertaining thereto shall be held in trust and
applied by the Trustee, in accordance with the provisions of such Securities and
any interest coupons appertaining thereto and this Indenture, to the payment,
either directly or through any Paying Agent (including the Company acting as its
own Paying Agent) as the Trustee may determine, to the Holders of such
Securities and any interest coupons appertaining thereto of all sums due and to
become due thereon in respect of principal, premium, if any, and interest, if
any, but such money need not be segregated from other funds except as provided
herein and except to the extent required by law.
Section 4.8. Repayment to Company. Subject to the delivery by
the Company of any written certification required by the last paragraph of this
Section 4.8, the Trustee (and any Paying Agent) shall promptly pay to the
Company upon Company Request any excess money or securities held by them at any
time.
The provisions of the last paragraph of Section 9.3 shall
apply to any money or securities held by the Trustee or any Paying Agent under
this Article 4 that remain unclaimed for two years after the Maturity of any
series of Securities for which money or securities have been deposited pursuant
to Section 4.6(a).
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Anything in this Article to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or U.S. Government Obligations held by it as provided in
Section 4.6 with respect to any Securities which, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, are in excess of the amount
thereof which would then be required to be deposited to effect the defeasance or
agreement defeasance, as the case may be, with respect to such Securities.
Section 4.9. Indemnity for U.S. Government Obligations. The
Company shall pay, and shall indemnify the Trustee against, any tax, fee or
other charge imposed on or assessed against U.S. Government Obligations
deposited pursuant to this Article or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is for
the account of the Holders of the Outstanding Securities.
Section 4.10. Reinstatement. If the Trustee (or Paying Agent)
is unable to apply any money or U.S. Government Obligations in accordance with
Section 4.6 by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application, then
the Company's obligations under this Indenture and the Securities shall be
revived and reinstated, with present and prospective effect, as though no
deposit had occurred pursuant to Section 4.6, until such time as the Trustee (or
Paying Agent) is permitted to apply all such money or U.S. Government
Obligations in accordance with Section 4.6; provided, however, that if the
Company makes any payment to the Trustee (or Paying Agent) of principal of,
premium, if any, or interest on any Security following the reinstatement of its
obligations, the Trustee (or Paying Agent) shall promptly pay any such amount to
the Holders of the Securities and the Company shall be subrogated to the rights
of the Holders of such Securities to receive such payment from the money and
U.S. Government Obligations held by the Trustee (or Paying Agent).
ARTICLE 5
DEFAULTS AND REMEDIES
Section 5.1. Events of Default. An "Event of Default," with
respect to the Securities of any series, means any one of the following events
(whatever the reason for such Event of Default and whether it shall be
occasioned by the provisions of Article 15 or be voluntary or involuntary or be
effected by operation of law or pursuant to any judgment, decree or order of any
court or any order, rule or regulation of any administrative or governmental
body):
(a) default in the payment of interest on any Security of that
series or any interest coupon appertaining thereto or any additional
amount payable with
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respect to any Security of that series as specified pursuant to Section
3.1(b)(16) when the same becomes due and payable and such default
continues for a period of 30 days; or
(b) default in the payment of any installment of the principal
of or any premium on any Security of that series when the same becomes
due and payable; or
(c) default in the deposit of any sinking fund payment, when
and as due by the terms of a Security of that series; or
(d) default in the performance, or breach, of any agreement or
warranty of the Company or any Guarantor in this Indenture (other than
an agreement or warranty a default in whose performance or whose breach
is elsewhere in this Section specifically dealt with) or the
Securities, and continuance of such default or breach for a period of
60 days after there has been given, in the manner provided in Section
1.6, to the Company by the Trustee or to the Company and the Trustee by
the Holders of at least 10% in principal amount of the Outstanding
Securities of the series, a written notice specifying such default or
breach and requiring it to be remedied and stating that such notice is
a "Notice of Default" hereunder; or
(e) a default or defaults under the terms of any bond(s),
debenture(s), note(s) or other evidence(s) of, or obligations
constituting, Debt by the Company, any Guarantor or any Restricted
Subsidiary, or under any mortgage(s), indenture(s), agreement(s) or
instrument(s) under which there may be issued or existing or by which
there may be secured or evidenced, any Debt of the Company, any
Guarantor or any Restricted Subsidiary with a principal or similar
amount then outstanding, individually or in the aggregate, in excess of
$50 million, whether such Debt now exists or is hereafter Incurred,
which default or defaults constitute a failure to pay any portion of
the principal or similar amount of such Debt when due and payable after
the expiration of any applicable grace period with respect thereto or
results in such Debt becoming or being declared due and payable prior
to the date on which it would otherwise have become due and payable; or
(f) the rendering of a final judgment or final judgments (not
subject to appeal) for the payment of money against the Company, Allied
or any Restricted Subsidiary in an aggregate amount in excess of $50
million by a court or courts of competent jurisdiction, which judgments
remain unstayed, undischarged or unbonded for a period of 60 days after
such rendering; or
(g) the entry by a court having jurisdiction in the premises
of (A) a decree or order for relief in respect of the Company, Allied
or any Restricted
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Subsidiary in an involuntary case or proceeding under any applicable
Federal or state bankruptcy, insolvency, reorganization or other
similar law or (B) a decree or order adjudging the Company, Allied or
any Restricted Subsidiary a bankrupt or insolvent, or approving as
properly filed a petition seeking reorganization, arrangement,
adjustment or composition of or in respect of the Company, Allied or
any Restricted Subsidiary under any applicable Federal or state law, or
appointing a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company, Allied or any
Restricted Subsidiary or of any substantial part of the property of the
Company, Allied or any Restricted Subsidiary, or ordering the winding
up or liquidation of the affairs of the Company, Allied or any
Restricted Subsidiary, and the continuance of any such decree or order
for relief or any such other decree or order unstayed and in effect for
a period of 60 consecutive days; or
(h) the commencement by the Company, Allied or any Restricted
Subsidiary of a voluntary case or proceeding under any applicable
Federal or state bankruptcy, insolvency, reorganization or other
similar law or of any other case or proceeding to be adjudicated a
bankrupt or insolvent, or the consent by the Company, Allied or any
Restricted Subsidiary to the entry of a decree or order for relief in
respect of the Company, Allied or any Restricted Subsidiary in an
involuntary case or proceeding under any applicable Federal or state
bankruptcy, insolvency, reorganization or other similar law or to the
commencement of any bankruptcy or insolvency case or proceeding against
the Company, Allied or any Restricted Subsidiary or the filing by the
Company, Allied or any Restricted Subsidiary of a petition or answer or
consent seeking reorganization or relief under any applicable Federal
or state law, or the consent by the Company, Allied or any Restricted
Subsidiary to the filing of such a petition or to the appointment of or
taking possession by a custodian, receiver, liquidator, assignee,
trustee, sequestrator or similar official of the Company, Allied or any
Restricted Subsidiary or of any substantial part of the property of the
Company, Allied or any Restricted Subsidiary, or the making by the
Company, Allied or any Restricted Subsidiary of an assignment for the
benefit of creditors, or the admission by the Company, Allied or any
Restricted Subsidiary in writing of its inability to pay its debts
generally as they become due, or the taking of corporate action by the
Company, Allied or any Restricted Subsidiary in furtherance of any such
action; or
(i) any other Event of Default provided as contemplated by
Section 3.1 with respect to Securities of that series.
Section 5.2. Acceleration; Rescission and Annulment. If an
Event of Default with respect to the Securities of any series at the time
Outstanding (other than an Event of Default specified in clause (g) or (h) of
Section 5.1) occurs and is continuing, the Trustee or the Holders of at least
25% in aggregate principal amount of all of the
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Outstanding Securities of that series, by written notice received by the Company
(and, if given by the Holders, received by the Trustee), may declare the
principal (or, if the Securities of that series are Original Issue Discount
Securities or Indexed Securities, such portion of the principal amount as may be
specified in the terms of that series) of, premium, if any, and accrued
interest, if any, on all the Securities of that series to be due and payable and
upon any such declaration such principal (or, in the case of Original Issue
Discount Securities or Indexed Securities, such specified amount), premium, if
any, and interest, if any, shall be immediately due and payable. If an Event of
Default specified in clause (g) or (h) of Section 5.1 with respect to the
Securities of any series at the time Outstanding occurs and is continuing, then
the principal (or, if the Securities of that series are Original Issue Discount
Securities or Indexed Securities, such portion of the principal amount as may be
specified in the terms of that series) of, premium, if any, and accrued
interest, if any, on all the Securities of that series shall be immediately due
and payable without any declaration or act on the part of the Trustee or any
Holder of such Securities.
At any time after such a declaration of acceleration has been
made and before a judgment or decree for payment of the money due has been
obtained by the Trustee as hereinafter in this Article provided, the Holders of
not less than a majority in aggregate principal amount of the Outstanding
Securities of that series, by written notice to the Company and the Trustee, may
rescind and annul such declaration and its consequences if
(1) the Company or any of the Guarantors has paid or
deposited with the Trustee a sum sufficient to pay
(A) all overdue interest on all Securities of that
series,
(B) the principal of and premium, if any, on any
Securities of that series which have become due otherwise than
by such declaration of acceleration and any interest thereon
at the rate borne by the Securities of that series,
(C) to the extent that payment of such interest is
lawful, interest upon overdue interest at the rate provided
therefor in the Securities of that series, and
(D) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel;
and
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(2) all Events of Default, other than the nonpayment of the
principal of Securities of that series which have become due solely by
such declaration of acceleration, have been cured or waived as provided
in Section 5.7.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Section 5.3. Collection of Indebtedness and Suits for
Enforcement by Trustee. The Company agrees that if
(a) default is made in the payment of any interest on any
Security or interest coupon, if any, when such interest becomes due and
payable and such default continues for a period of 30 days, or
(b) default is made in the payment of the principal of or
premium, if any, on any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities or interest coupons, if any, the whole amount then
due and payable on such Securities for principal, premium, if any, and interest
and, to the extent that payment of such interest shall be legally enforceable,
interest on any overdue principal, premium, if any, and on any overdue interest,
at the rate or rates prescribed therefor in such Securities or interest coupons,
if any, and, in addition thereto, such further amount as shall be sufficient to
cover the costs and expenses of collection, including all amounts due the
Trustee, its agents and counsel under Section 6.7.
If the Company or any Guarantor fails to pay such amounts
forthwith upon such demand, the Trustee, in its own name and as trustee of an
express trust, may institute a judicial proceeding for the collection of the
sums so due and unpaid and may prosecute such proceeding to judgment or final
decree, and may enforce the same against the Company, any Guarantor or any other
obligor upon the Securities and collect the moneys adjudged or decreed to be
payable in the manner provided by law out of the property of the Company, any
Guarantor or any other obligor upon the Securities, wherever situated.
If an Event of Default with respect to Securities of any
series occurs and is continuing, the Trustee may in its discretion proceed to
protect and enforce its rights and the rights of the Holders of Securities of
such series by such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any such rights, whether for the specific
enforcement of any agreement in this Indenture or in aid of the exercise of any
power granted herein, or to secure any other proper remedy, subject, however, to
Section 5.8.
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Section 5.4. Trustee May File Proofs of Claim. In case of any
judicial proceeding relative to the Company (or any Guarantor or any other
obligor upon the Securities), its property or its creditors (or of any Guarantor
or its creditors), the Trustee shall be entitled and empowered, by intervention
in such proceeding or otherwise, to take any and all actions authorized under
the Trust Indenture Act in order to have claims of the Holders and the Trustee
allowed in any such proceeding. In particular, the Trustee shall be authorized
to collect and receive any moneys or other property payable or deliverable on
any such claims and to distribute the same; and any custodian, receiver,
assignee, trustee, liquidator, sequestrator or other similar official in any
such judicial proceeding is hereby authorized by each Holder to make such
payments to the Trustee and, in the event that the Trustee shall consent to the
making of such payments directly to the Holders, to pay to the Trustee any
amount due it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 6.7.
No provision of this Indenture shall be deemed to authorize
the Trustee to authorize or consent to or accept or adopt on behalf of any
Holder of a Security or interest coupon any plan of reorganization, arrangement,
adjustment or composition affecting the Securities or the rights of any Holder
of a Security or interest coupon thereof or to authorize the Trustee to vote in
respect of the claim of any Holder of a Security or interest coupon in any such
proceeding; provided, however, that the Trustee may, on behalf of the Holders,
vote for the election of a trustee in bankruptcy or similar official and be a
member of a creditors' or other similar committee.
Section 5.5. Trustee May Enforce Claims Without Possession of
Securities. All rights of action and claims under this Indenture or the
Securities or any Subordinated Guarantee may be prosecuted and enforced by the
Trustee without the possession of any of the Securities or the production
thereof in any proceeding relating thereto, and any such proceeding instituted
by the Trustee shall be brought in its own name as trustee of an express trust,
and any recovery of judgment shall, after provision for the payment of the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, be for the ratable benefit of the Holders of the
Securities in respect of which such judgment has been recovered.
Section 5.6. Delay or Omission Not Waiver. No delay or
omission by the Trustee or any Holder of any Securities to exercise any right or
remedy accruing upon an Event of Default shall impair any such right or remedy
or constitute a waiver of or acquiescence in any such Event of Default.
Section 5.7. Waiver of Past Defaults. The Holders of not less
than a majority in aggregate principal amount of Outstanding Securities of any
series by written notice to the Trustee may waive on behalf of the Holders of
all Securities of such series and any interest coupons appertaining thereto a
past Default or Event of Default with
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respect to that series and its consequences except a Default or Event of Default
(i) in the payment of the principal of, premium, if any, or interest on any
Security of such series or any interest coupon appertaining thereto or (ii) in
respect of an agreement or provision hereof which pursuant to Article 8 cannot
be amended or modified without the consent of the Holder of each Outstanding
Security of such series affected. Upon any such waiver, such Default shall cease
to exist, and any Event of Default arising therefrom shall be deemed to have
been cured, for every purpose of this Indenture but no such waiver shall extend
to any subsequent or other default or impair any right consequent thereon.
Section 5.8. Control by Majority. The Holders of not less than
a majority in aggregate principal amount of the Outstanding Securities of each
series affected (with each such series voting as a class) shall have the right
to direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee or exercising any trust or power conferred on it with
respect to Securities of that series; provided, however, that (i) the Trustee
may refuse to follow any direction that conflicts with any governmental rule or
law or this Indenture, (ii) the Trustee may refuse to follow any direction that
is unduly prejudicial to the rights of the Holders of Securities of such series
not consenting, or that would in the good faith judgment of the Trustee have a
substantial likelihood of involving the Trustee in personal liability without
adequate indemnity having been offered therefor and (iii) subject to Section
6.1, the Trustee may take any other action deemed proper by the Trustee which is
not inconsistent with such direction.
Section 5.9. Limitation on Suits by Holders. No Holder of any
Security of any series or any interest coupons appertaining thereto shall have
any right to institute any proceeding, judicial or otherwise, with respect to
this Indenture, or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless:
(a) the Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the Securities
of that series;
(b) the Holders of at least 25% in aggregate principal amount
of the Outstanding Securities of that series have made a written
request to the Trustee to institute proceedings in respect of such
Event of Default in its own name as Trustee hereunder;
(c) such Holder or Holders have offered to the Trustee
indemnity satisfactory to the Trustee against any loss, liability or
expense to be, or which may be, incurred by the Trustee in pursuing the
remedy;
(d) the Trustee for 60 days after its receipt of such notice,
request and the offer of indemnity has failed to institute any such
proceedings; and
(e) during such 60-day period, the Holders of a majority in
aggregate
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principal amount of the Outstanding Securities of that series have not
given to the Trustee a direction inconsistent with such written
request;
provided, however, that the limitations contained in (a) through (e) of this
Section do not apply to any suit by a Holder of any Security for enforcement of
payment of the principal of (and premium, if any) or interest on such Security
on or after the respective due date expressed in such Security.
No one or more Holders of Securities of a series shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such
Holders.
Section 5.10. Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, but subject to Section
9.2, each of the right of any Holder of a Security or interest coupon to receive
payment of principal of, premium, if any, and, subject to Sections 3.5 and 3.7,
interest on the Security, on or after the respective due dates expressed in the
Security (or, in case of redemption or a required repurchase by the Company
under the terms of the relevant Securities, on the Redemption Dates or specified
repurchase dates), the right of any Holder of an interest coupon to receive
payment of interest due as provided in such interest coupon, or to bring suit
for the enforcement of any such payment on or after such respective dates, and
the right, if any, to convert or exchange such Security in accordance with
Article 14, is unconditional and shall not be impaired or affected without the
consent of such Holder.
Section 5.11. Application of Money Collected. If the Trustee
collects any money pursuant to this Article, it shall pay out the money in the
following order, at the date or dates fixed by the Trustee and, in case of the
distribution of such money on account of principal, premium, if any, or
interest, upon presentation of the Securities and interest coupons, if any, and
the notation thereon of the payment if only partially paid and upon surrender
thereof if fully paid:
First: to the Trustee for amounts due under Section 6.7;
Second: to Holders of Securities and interest coupons in
respect of which or for the benefit of which such money has been
collected for amounts due and unpaid on such Securities for principal
of, premium, if any, and interest, ratably, without preference or
priority of any kind, according to the amounts due and payable on such
Securities for principal, premium, if any, and interest, respectively;
and
Third: the balance, if any, to the Company.
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The Holders of each series of Securities denominated in ECU,
any other currency unit or a Foreign Currency and any matured interest coupons
relating thereto shall be entitled to receive a ratable portion of the amount
determined by the Trustee by converting the principal amount Outstanding of such
series of Securities and matured but unpaid interest on such series of
Securities in the currency in which such series of Securities is denominated
into Dollars at the Market Exchange Rate as of the date of declaration of
acceleration of Maturity of the Securities (or, if the default consists of a
failure to pay the principal of such Securities on the Stated Maturity thereof,
as of the Stated Maturity date).
The Trustee may fix a record date and payment date for any
payment to Holders pursuant to this Section 5.11. At least 15 days before such
record date, the Trustee shall mail to each Holder and the Company a notice that
states the record date, the payment date and the amount to be paid.
Section 5.12. Restoration of Rights and Remedies. If the
Trustee or any Holder has instituted any proceeding to enforce any right or
remedy under this Indenture and such proceeding has been discontinued or
abandoned for any reason, or has been determined adversely to the Trustee or to
such Holder, then and in every such case, subject to any determination in such
proceeding, the Company, the Trustee and the Holders shall be restored severally
and respectively to their former positions hereunder and thereafter all rights
and remedies of the Trustee and the Holders shall continue as though no such
proceeding had been instituted.
Section 5.13. Rights and Remedies Cumulative. Except as
otherwise provided with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities in the last paragraph of Section 3.6, no
right or remedy herein conferred upon or reserved to the Trustee or the Holders
is intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at law
or in equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
Section 5.14. Undertaking for Costs. In any suit for the
enforcement of any right or remedy under this Indenture, or in any suit against
the Trustee for any action taken, suffered or omitted by it as Trustee, a court
may require any party litigant in such suit to file an undertaking to pay the
costs of such suit, and may assess costs against any such party litigant, in the
manner and to the extent provided in the Trust Indenture Act; provided, however,
that neither this Section nor the Trust Indenture Act shall be deemed to
authorize any court to require such an undertaking or to make such an assessment
in any suit instituted by the Company or any Guarantor, any Guarantor, the
Trustee or any Holder, or group of Holders, holding in the aggregate at least
10% in principal amount of
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the Outstanding Securities of the relevant series or in any suit instituted by
any Holder for the enforcement of principal of, premium, if any, or interest on
any Security on or after the respective Stated Maturities expressed in such
Security (or, in the case of redemption or any required repurchase by the
Company, on or after the Redemption Date or specified repurchase date).
Section 5.15. Waiver of Stay, Extension or Usury Laws. Each of
the Company and the Guarantors agrees (to the extent that it may lawfully do so)
that it will not at any time insist upon, or plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay or extension law or any
usury or other law wherever enacted, now or at any time hereafter in force,
which would prohibit or forgive the Company from paying all or any portion of
the principal of, and premium, if any, or interest on the Securities
contemplated herein or in the Securities or which may affect the agreements or
the performance of this Indenture or prohibit or forgive any Guarantor from
performance under its Subordinated Guarantee; and each of the Company and the
Guarantors (to the extent that it may lawfully do so) hereby expressly waives
all benefit or advantage of any such law, and agrees that it will not hinder,
delay or impede the execution of any power herein granted to the Trustee, but
will suffer and permit the execution of every such power as though no such law
had been enacted.
ARTICLE 6
THE TRUSTEE
Section 6.1. Certain Duties and Responsibilities. The duties
and responsibilities of the Trustee shall be as provided by the Trust Indenture
Act. Notwithstanding the foregoing, no provision of this Indenture shall require
the Trustee to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the exercise
of any of its rights or powers, if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against such risk
or liability is not reasonably assured to it. Whether or not therein expressly
so provided, every provision of this Indenture relating to the conduct or
affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section.
Section 6.2. Notice of Defaults. If a Default occurs hereunder
with respect to Securities of any series, the Trustee shall give the Holders of
Securities of such series notice of such Default as and to the extent provided
by the Trust Indenture Act; provided, however, that in the case of any Default
of the character specified in Section 5.1(d) with respect to Securities of such
series, no such notice to Holders shall be given until at least 30 days after
the occurrence thereof.
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Section 6.3. Certain Rights of Trustee. Subject to the
provisions of Section 6.1:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document believed by it
to be genuine and to have been signed or presented by the proper party or
parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order, and any
resolution of the Board of Directors shall be sufficiently evidenced by a Board
Resolution;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad faith on
its part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless such Holders
shall have offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which might be incurred by it in compliance with
such request or direction;
(f) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document, but
the Trustee, in its discretion, may make such further inquiry or investigation
into such facts or matters as it may see fit, and, if the Trustee shall
determine to make such further inquiry or investigation, it shall be entitled to
examine the books, records and premises of the Company, personally or by agent
or attorney;
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys and the Trustee shall not be responsible for any misconduct
or negligence on the part of any agent or attorney appointed with due care by it
hereunder; and
(h) except with respect to Section 9.1, the Trustee shall have
no duty to
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inquire as to the performance by the Company or any Guarantor of the agreements
set forth in Article 9 beyond its good faith review of any certificates or other
notices received by it from the Company or any Guarantor.
Section 6.4. Not Responsible for Recitals or Issuance of
Securities. The recitals contained herein and in the Securities and in the
Subordinated Guarantees endorsed thereon, except the Trustee's certificates of
authentication, shall be taken as the statements of the Company or the
Guarantors, as the case may be, and neither the Trustee nor any Authenticating
Agent assumes any responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Securities or the Subordinated Guarantees endorsed thereon. Neither the Trustee
nor any Authenticating Agent shall be accountable for the use or application by
the Company of Securities or the proceeds thereof.
Section 6.5. May Hold Securities. The Trustee, any
Authenticating Agent, any Paying Agent, any Security Registrar or any other
agent of the Company, any Guarantor or the Trustee, in its individual or any
other capacity, may become the owner or pledgee of Securities and, subject to
the definition of "Outstanding" set forth in Section 1.1, and subject to
Sections 6.8 and 6.13, may otherwise deal with the Company, any Guarantor and
any other obligor upon the Securities and the Subordinated Guarantees with the
same rights it would have if it were not Trustee, Authenticating Agent, Paying
Agent, Security Registrar or such other agent.
Section 6.6. Money Held in Trust. Money held by the Trustee in
trust hereunder need not be segregated from other funds except to the extent
required by law or by the provisions of this Indenture. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed with the Company or any Guarantor, as the case may be.
Section 6.7. Compensation and Reimbursement. The Company
agrees
(a) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which compensation shall
not be limited by any provision of law in regard to the compensation of a
trustee of an express trust);
(b) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance with
any provision of this Indenture (including the reasonable compensation and the
expenses and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad faith;
and
(c) to indemnify the Trustee for, and to hold it harmless
against, any loss, liability or expense incurred without negligence or bad faith
on its part, arising out
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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 December 23, 1998 between the
Company, the Guarantors named therein and the Trustee relating to senior
unsecured debt securities which may be issued thereunder, (ii) the First
Supplemental Indenture, dated as of December 23, 1998 between the Company, the
Guarantors named therein and the Trustee relating to the Company's 7 3/8% Senior
Notes Due 2004, (iii) the Second Supplemental Indenture dated as of December 23,
1998 between the Company, the Guarantors named therein and the Trustee relating
to the Company's 7 5/8% Senior Notes Due 2006, (iv) the Third Supplemental
Indenture dated as of December 23, 1998 between the Company, the Guarantors
named therein and the Trustee relating to the Company's 7 7/8% Senior Notes Due
2009, (v) the Fourth Supplemental Indenture dated as of July 30, 1999 between
the Company, the Guarantors named therein and the Trustee relating to each of
the Company's outstanding series of notes in clauses (ii) through (iv) above, or
(vi) any other indenture specified in (A) a Board Resolution, (B) an action
taken pursuant to a Board Resolution and (subject to Section 3.3) set forth in
an Officers' Certificate or (C) one or more indentures supplemental hereto.
Section 6.9. Corporate Trustee Required; Eligibility. There
shall at all times be a Trustee hereunder which shall be a Person that is
eligible pursuant to the Trust Indenture Act to act as such, has a combined
capital and surplus of at least $25,000,000 and has its Corporate Trust Office
located in the Borough of Manhattan, The City of New York or be a part of a bank
holding company with a combined capital and surplus of at least $100,000,000 as
set forth in is most recent published annual report of condition. 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
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to this Article shall become effective until the acceptance of appointment by
the successor Trustee in accordance with the applicable requirements of Section
6.11.
The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to the
Company. If the instrument of acceptance by a successor Trustee required by
Section 6.11 shall not have been delivered to the Trustee within 30 days after
the giving of such notice of resignation, the resigning Trustee may petition any
court of competent jurisdiction for the appointment of a successor Trustee with
respect to the Securities of such series.
The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal amount
of the Outstanding Securities of such series, delivered to the Trustee and to
the Company.
If at any time:
(a) the Trustee shall fail to comply with Section 6.8 after
written request therefor by the Company or by any Holder who has been a
bona fide Holder of a Security for at least six months, or
(b) the Trustee shall cease to be eligible under Section 6.9
and shall fail to resign after written request therefor by the Company
or by any such Holder, or
(c) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (1) the Company by a Board Resolution may remove the
Trustee with respect to all Securities, or (2) subject to Section 5.14, any
Holder who has been a bona fide Holder of a Security for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees.
If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, with
respect to the Securities of one or more series, the Company, by a Board
Resolution, shall promptly appoint a successor Trustee or Trustees with respect
to the Securities of that or those series (it being understood that any such
successor Trustee may be appointed with respect to the Securities of one or more
or all of such series and that at any time there shall be only one Trustee with
respect to the Securities of any particular series) and shall comply with the
applicable requirements of Section 6.11. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with
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respect to the Securities of any series shall be appointed by Act of the Holders
of a majority in principal amount of the Outstanding Securities of such series
delivered to the Company and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of such appointment in accordance
with the applicable requirements of Section 6.11, become the successor Trustee
with respect to the Securities of such series and to that extent supersede the
successor Trustee appointed by the Company. If no successor Trustee with respect
to the Securities of any series shall have been so appointed by the Company or
the Holders and accepted appointment in the manner required by Section 6.11, any
Holder who has been a bona fide Holder of a Security of such series for at least
six months may, on behalf of himself and all others similarly situated, petition
any court of competent jurisdiction for the appointment of a successor Trustee
with respect to the Securities of such series. The Company shall give notice of
each resignation and each removal of the Trustee with respect to the Securities
of any series and each appointment of a successor Trustee with respect to the
Securities of any series to all Holders of Securities of such series in the
manner provided in Section 1.6. Each notice shall include the name of the
successor Trustee with respect to the Securities of such series and the address
of its Corporate Trust Office.
Section 6.11. Acceptance of Appointment by Successor. In case
of the appointment hereunder of a successor Trustee with respect to all
Securities, every such successor Trustee so appointed shall execute, acknowledge
and deliver to the Company, the Guarantors and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on the request
of the Company or the successor Trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the retiring Trustee and
shall duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder.
In case of the appointment hereunder of a successor Trustee
with respect to the Securities of one or more (but not all) series, the Company,
the Guarantors the retiring Trustee and each successor Trustee with respect to
the Securities of one or more series shall execute and deliver an indenture
supplemental hereto wherein each successor Trustee shall accept such appointment
and which (1) shall contain such provisions as shall be necessary or desirable
to transfer and confirm to, and to vest in, each successor Trustee all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates, (2) if the retiring Trustee is not retiring with respect to all
Securities, shall contain such provisions as shall be deemed necessary or
desirable to confirm that all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series as to
which the retiring Trustee is not retiring shall continue to be vested in the
retiring Trustee, and (3) shall add to or change any of the provisions of this
Indenture
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as shall be necessary to provide for or facilitate the administration of the
trusts hereunder by more than one Trustee, it being understood that nothing
herein or in such supplemental indenture shall constitute such Trustees
co-trustees of the same trust and that each such Trustee shall be trustee of a
trust or trusts hereunder separate and apart from any trust or trusts hereunder
administered by any other such Trustee; and upon the execution and delivery of
such supplemental indenture the resignation or removal of the retiring Trustee
shall become effective to the extent provided therein and each such successor
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee with respect
to the Securities of that or those series to which the appointment of such
successor Trustee relates; but, on request of the Company, any Guarantor or any
successor Trustee, such retiring Trustee shall duly assign, transfer and deliver
to such successor Trustee all property and money held by such retiring Trustee
hereunder with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates.
Upon request of any such successor Trustee, the Company and
the Guarantors shall execute any and all instruments for more fully and
certainly vesting in and confirming to such successor Trustee all such rights,
powers and trusts referred to in the first or second preceding paragraph, as the
case may be.
No successor Trustee shall accept its appointment unless at
the time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
Section 6.12. Merger, Conversion, Consolidation or Succession
to Business. Any corporation into which the Trustee may be merged or converted
or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to all or substantially all the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.
Section 6.13. Preferential Collection of Claims Against
Company. If and when the Trustee shall be or become a creditor of the Company or
any Guarantor (or any other obligor upon the Securities or the Subordinated
Guarantees endorsed thereon), the Trustee shall be subject to the provisions of
the Trust Indenture Act regarding the collection of claims against the Company
(or any Guarantor or any such other obligor).
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Section 6.14. Appointment of Authenticating Agent. The Trustee
may appoint an Authenticating Agent or Agents with respect to one or more series
of Securities which shall be authorized to act on behalf of the Trustee to
authenticate Securities of such series issued upon original issue and upon
exchange, registration of transfer or partial redemption thereof or pursuant to
Section 3.6, and Securities so authenticated and the Subordinated Guarantees
endorsed thereon shall be entitled to the benefits of this Indenture and shall
be valid and obligatory for all purposes as if authenticated by the Trustee
hereunder. Wherever reference is made in this Indenture to the authentication
and delivery of Securities by the Trustee or the Trustee's certificate of
authentication, such reference shall be deemed to include authentication and
delivery on behalf of the Trustee by an Authenticating Agent and a certificate
of authentication executed on behalf of the Trustee by an Authenticating Agent.
Each Authenticating Agent shall be acceptable to the Company and shall at all
times be a corporation organized and doing business under the laws of the United
States of America, any State thereof or the District of Columbia, authorized
under such laws to act as Authenticating Agent, having a combined capital and
surplus of not less than $25,000,000 and subject to supervision or examination
by Federal or State authority. If such Authenticating Agent publishes reports of
condition at least annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such Authenticating Agent shall be deemed to be
its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time an Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section, such Authenticating
Agent shall resign immediately in the manner and with the effect specified in
this Section.
Any corporation into which an Authenticating Agent may be
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any corporation succeeding to the
corporate agency or corporate trust business of an Authenticating Agent, shall
continue to be an Authenticating Agent, provided such corporation shall be
otherwise eligible under this Section, without the execution or filing of any
paper or any further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving
written notice thereof to the Trustee and to the Company. The Trustee may at any
time terminate the agency of an Authenticating Agent by giving written notice
thereof to such Authenticating Agent and to the Company. Upon receiving such a
notice of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall give notice of such
appointment in the manner provided in Section 1.6 to all Holders of Securities
of the series with respect to which such Authenticating Agent will serve. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall
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become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Trustee agrees to pay to each Authenticating Agent from
time to time reasonable compensation for its services under this Section, and
the Trustee shall be entitled to be reimbursed for such payments, subject to the
provisions of Section 6.7.
If an appointment with respect to one or more series is made
pursuant to this Section, the Securities of such series may have endorsed
thereon, in addition to the Trustee's certificate of authentication, an
alternative certificate of authentication in the following form:
This is one of the Securities with the Subordinated Guarantees
endorsed thereon of the series designated therein referred to in the
within-mentioned Indenture.
,
-------------------------------
As Trustee
By: ,
-------------------------------
As Authenticating Agent
By:
-------------------------------
Authorized Signatory
ARTICLE 7
CONSOLIDATION, MERGER OR SALE OF ASSETS BY THE COMPANY
Section 7.1. Consolidation, Merger or Sale of Assets
Permitted. The Company (a) shall not consolidate with or merge into any Person;
(b) shall not permit any Person other than a Restricted Subsidiary to
consolidate with or merge into the Company or (c) shall not, directly or
indirectly, in one or a series of transactions, transfer, convey, sell, lease or
otherwise dispose of all or substantially all of the properties and assets of
the Company and its Subsidiaries on a consolidated basis; unless in any such
transaction (or series) contemplated by Clause (a), (b) or (c) above:
(a) in case the Company shall consolidate with or merge into
another Person or shall directly or indirectly, in one or a series of
transactions, transfer, convey, sell, lease or otherwise dispose of all
or substantially all of its properties and assets as an entirety, the
Person formed by such consolidation or into which the Company is merged
or the Person which acquires by transfer, conveyance,
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sale, lease or other disposition all or substantially all of the
properties and assets of the Company and its Subsidiaries on a
consolidated basis (for purposes of this Article 7, a "Successor
Company") shall be a corporation, partnership, limited liability
company or trust, shall be organized and validly existing under the
laws of the United States of America, any State thereof or the District
of Columbia and shall expressly assume by an indenture supplemental
hereto executed and delivered to the Trustee, in form satisfactory to
the Trustee, the due and punctual payment of the principal of, premium,
if any, and interest on all the Securities and the performance of every
agreement of this Indenture on the part of the Company to be performed
or observed;
(b) immediately after giving effect to such consolidation,
merger, sale, transfer, lease or other disposition, no Default or Event
of Default shall have occurred and be continuing; and
(c) with respect to any series of Securities, the Company
satisfies such other conditions, if any, established with respect to
such series of Securities pursuant to and in accordance with Section
3.1.
The Company shall deliver to the Trustee prior to the proposed
consolidation, merger, sale, transfer, lease or other disposition an Officers'
Certificate to the foregoing effect and an Opinion of Counsel stating that the
proposed consolidation, merger, sale, transfer, lease or other disposition and
such supplemental indenture comply with this Indenture and that all conditions
precedent to the consummation of such transaction under this Section 7.1 have
been met.
Section 7.2 Successor Substituted
Upon any consolidation of the Company with, or merger of the
Company into, any other Person or any transfer, conveyance, sale, lease or other
disposition of all or substantially all of the properties and assets of the
Company and its Subsidiaries on a consolidated basis, in each case in accordance
with Section 7.1, the Successor Company shall succeed to, and be substituted
for, and may exercise every right and power of, the Company under this Indenture
and under the Securities and any interest coupons appertaining thereto with the
same effect as if such Successor Company had been named as the Company herein,
and thereafter, except in the case of a lease, the predecessor Person (if still
in existence) shall be relieved of all obligations and agreements under this
Indenture and the Securities and any interest coupons appertaining thereto.
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ARTICLE 8
SUPPLEMENTAL INDENTURES
Section 8.1. Supplemental Indentures Without Consent of
Holders. Without the consent of any Holders, the Company, the Guarantors and the
Trustee, at any time and from time to time, may enter into indentures
supplemental hereto, in form reasonably satisfactory to the Trustee, for any of
the following purposes:
(a) to evidence the succession of another Person to the
Company or any Guarantor and the assumption by any such successor of the
agreements and obligations of the Company or any Guarantor herein and in the
Securities and any interest coupons appertaining thereto; or
(b) to add to the agreements of the Company for the benefit of
the Holders of all or any series of Securities (and if such agreements are to be
for the benefit of less than all series of Securities, stating that such
agreements are expressly being included solely for the benefit of such series)
or to surrender any right or power herein conferred upon the Company; or
(c) to add any additional Events of Default with respect to
all or any series of Securities; or
(d) to add to or change any of the provisions of this
Indenture to such extent as shall be necessary to facilitate the issuance or
administration of Bearer Securities (including, without limitation, to provide
that Bearer Securities may be registrable as to principal only) or to facilitate
the issuance or administration of Global Securities; or
(e) to change or eliminate any of the provisions of this
Indenture in respect of one or more series of Securities, provided that any such
change or elimination shall become effective only when there is no Security
Outstanding of any series created prior to the execution of such supplemental
indenture which is entitled to the benefit of such provision; or
(f) to secure any series of Securities; or
(g) to establish the form or terms of Securities of any series
as permitted by Sections 2.1 and 3.1; or
(h) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or more
series and to add to or change any of the provisions of this Indenture as shall
be necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, pursuant to
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the requirements of Section 6.11; or
(i) if allowed without penalty under applicable laws and
regulations, to permit payment in the United States (including any of the States
thereof and the District of Columbia), its territories, its possessions and
other areas subject to its jurisdiction of principal of, premium, if any, or
interest, if any, on Bearer Securities or interest coupons, if any; or
(j) to cure any ambiguity, to correct or supplement any
provision herein which may be inconsistent with any other provision herein or to
make any other provisions with respect to matters or questions arising under
this Indenture which shall not be inconsistent with the provisions of this
Indenture, provided such action shall not adversely affect in any material
respect the interests of the Holders of Securities of any series; or
(k) to make provision not adverse to the Holders of
Outstanding Securities of any series with respect to any conversion or exchange
rights of Holders pursuant to the requirements of Article 14, including
providing for the conversion or exchange of the Securities into any Equity
Securities of Allied; or
(l) to modify, eliminate or add to the provisions of this
Indenture to such extent as shall be necessary to effect the qualification of
this Indenture under the Trust Indenture Act or under any similar federal
statute subsequently enacted, and to add to this Indenture such other provisions
as may be expressly required under the Trust Indenture Act; or
(m) to add new Subsidiary Guarantors pursuant to Section 16.5.
Section 8.2. Supplemental Indentures With Consent of Holders.
With the consent of the Holders of not less than a majority of the aggregate
principal amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company, the
Company, the Guarantors and the Trustee may enter into an indenture or
indentures supplemental hereto to add any provisions to or to change in any
manner or eliminate any provisions of this Indenture or of any other indenture
supplemental hereto or to modify in any manner the rights of the Holders of
Securities of such series; provided, however, that without the consent of the
Holder of each Outstanding Security affected thereby, an amendment under this
Section may not:
(a) change the Stated Maturity of the principal of, or
premium, if any, on, or any installment of principal of or premium, if any, or
interest on, any Security, or reduce the principal amount thereof or the rate of
interest thereon or any premium payable upon the redemption thereof or upon any
required repurchase by the Company, or change the manner in which the amount of
any principal thereof or premium, if any, or interest thereon is determined or
reduce the amount of the principal of any Original Issue
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Discount Security or Indexed Security that would be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 5.2, or
change the currency or currency unit in which any Securities or any premium or
the interest thereon is payable, or change the place of payment of principal of,
or premium, if any, or interest on, or any installment of principal of, or
premium, if any, or interest on, any Security, or impair the right to institute
suit for the enforcement of any such payment on or after the Stated Maturity
thereof (or, in the case of redemption or any required repurchase of Securities
by the Company, on or after the Redemption Date or specified repurchase date);
(b) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of whose Holders is required
for any such supplemental indenture, or the consent of whose Holders is required
for any waiver (of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences) provided for in this
Indenture, or reduce the requirements of Section 13.4 for quorum or voting;
(c) change any obligation of the Company to maintain an office
or agency in the places and for the purposes specified in Section 9.2;
(d) make any change that adversely affects any right to
convert or exchange any Security to which the provisions of Article 14 are
applicable or, except as provided in this Indenture, decrease the conversion or
exchange rate or increase the conversion or exchange price of any such Security;
(e) modify the provisions in Article 15 of this Indenture with
respect to the subordination of Outstanding Securities of any series in a manner
adverse to the Holders thereof; or
(f) make any change in this Section 8.2, Section 5.7 or
Section 9.6 except to increase any percentage or to provide that certain other
provisions of this Indenture cannot be modified or waived with the consent of
the Holders of each Outstanding Security affected thereby; provided, however,
that this clause shall not be deemed to require the consent of any Holder of a
Security or coupon with respect to changes in the references to "the Trustee"
and concomitant changes in this Section and Section 9.6 or the deletion of this
proviso, in accordance with the requirements of Sections 6.11 and 8.1(h).
A supplemental indenture which changes or eliminates any
agreement or other provision of this Indenture which has expressly been included
solely for the benefit of one or more particular series of Securities, or which
modifies the rights of the Holders of Securities of such series with respect to
such agreement or other provision, shall be deemed not to affect the rights
under this Indenture of the Holders of Securities of any other series.
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It is not necessary under this Section 8.2 for the Holders to
consent to the particular form of any proposed supplemental indenture, but it is
sufficient if they consent to the substance thereof.
Section 8.3. Compliance with Trust Indenture Act. Every
amendment to this Indenture or the Securities of one or more series shall be set
forth in a supplemental indenture that complies with the Trust Indenture Act as
then in effect.
Section 8.4. Execution of Supplemental Indentures. In
executing, or accepting the additional trusts created by, any supplemental
indenture permitted by this Article or the modification thereby of the trusts
created by this Indenture, the Trustee shall be entitled to receive, and
(subject to Section 6.1) shall be fully protected in relying upon, an Officers'
Certificate and an Opinion of Counsel stating that the execution of such
supplemental indenture is authorized or permitted by this Indenture. The Trustee
may, but shall not be obligated to, enter into any such supplemental indenture
which affects the Trustee's own rights, duties or immunities under this
Indenture or otherwise.
Section 8.5. Effect of Supplemental Indentures. Upon the
execution of any supplemental indenture under this Article, this Indenture shall
be modified in accordance therewith, and such supplemental indenture shall form
a part of this Indenture for all purposes; and every Holder of Securities
theretofore or thereafter authenticated and delivered hereunder and of any
interest coupon appertaining thereto shall be bound thereby.
Section 8.6. Reference in Securities to Supplemental
Indentures. Securities, including any interest coupons, of any series
authenticated and delivered after the execution of any supplemental indenture
pursuant to this Article may, and shall if required by the Trustee, bear a
notation in form approved by the Trustee as to any matter provided for in such
supplemental indenture. If the Company shall so determine, new Securities
including any interest coupons of any series so modified as to conform, in the
opinion of the Company, to any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered by the Trustee in
exchange for Outstanding Securities including any interest coupons of such
series.
Section 8.7. Notice of Supplemental Indentures. Promptly after
the execution by the Company and the Trustee of any supplemental indenture
pursuant to the provisions of Section 8.2, the Company shall give notice thereof
to the Holders of each Outstanding Security affected, in the manner provided for
in Section 1.6, setting forth in general terms the substance of such
supplemental indenture. Any failure of the Company to give such notice, or any
defect therein, shall not, however, in any way impair or affect the validity of
any such supplemental indenture.
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ARTICLE 9
AGREEMENTS
Section 9.1. Payment of Principal, Premium, if any, and
Interest. The Company agrees for the benefit of the Holders of each series of
Securities that it will duly and punctually pay the principal of, premium, if
any, and interest, together with additional amounts, if any, on the Securities
of that series in accordance with the terms of the Securities of such series,
any interest coupons appertaining thereto and this Indenture; provided, however,
that amounts properly withheld under the Internal Revenue Code of 1986, as
amended, by any Person from a payment to any Holder of Securities, after having
requested such Holder to provide applicable information that would allow such
Person to make such payment without withholding, shall be considered as having
been paid by the Company to such Holder for purposes of this Indenture. An
installment of principal, premium, if any, or interest shall be considered paid
on the date it is due if there shall have been sent to the Trustee or Paying
Agent by wire transfer, received by no later than the close of business on such
due date, or if the Trustee or Paying Agent otherwise holds, on that date money
designated for and sufficient to pay the installment.
Section 9.2. Maintenance of Office or Agency. Unless otherwise
specified as contemplated by Section 3.1, if Securities of a series are issued
as Registered Securities, the Company will maintain in each Place of Payment for
that series of Securities an office or agency where Securities of that series
may be presented or surrendered for payment, where Securities of that series may
be surrendered for registration of transfer or exchange or conversion and where
notices and demands to or upon the Company or any Guarantor in respect of the
Securities or the Subordinated Guarantees of that series and this Indenture may
be served. Unless otherwise specified as contemplated by Section 3.1, if
Securities of a series are issuable as Bearer Securities, the Company will
maintain (i) subject to any laws or regulations applicable thereto, an office or
agency in a Place of Payment for that series which is located outside the United
States where Securities of that series and related interest coupons may be
presented and surrendered for payment; provided, however, that if the Securities
of that series are listed on The International Stock Exchange of the United
Kingdom and the Republic of Ireland Limited, the Luxembourg Stock Exchange or
any other stock exchange located outside the United States and such stock
exchange shall so require, the Company will maintain a Paying Agent for the
Securities of that series in London, Luxembourg or any other required city
located outside the United States, as the case may be, so long as the Securities
of that series are listed on such exchange, and (ii) subject to any laws or
regulations applicable thereto, an office or agency in a Place of Payment for
that series which is located outside the United States, where Securities of that
series may be surrendered for exchange and where notices and demands to or upon
the Company in respect of the Securities of that series and this Indenture may
be served. The Company will give prompt written notice to the Trustee of the
location, and any change in the
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location, of any such office or agency. If at any time the Company shall fail to
maintain any such required office or agency or shall fail to furnish the Trustee
with the address thereof, such presentations, surrenders, notices and demands
may be made or served at the Corporate Trust Office of the Trustee, and the
Company and each Guarantor hereby appoints the Trustee as its agent to receive
all such presentations, surrenders, notices and demands.
Unless otherwise specified as contemplated by Section 3.1, no
payment of principal, premium or interest on Bearer Securities shall be made at
any office or agency of the Company in the United States, by check mailed to any
address in the United States, by transfer to an account located in the United
States or upon presentation or surrender in the United States of a Bearer
Security or interest coupon for payment, even if the payment would be credited
to an account located outside the United States; provided, however, that, if the
Securities of a series are denominated and payable in Dollars, payment of
principal of and any premium or interest on any such Bearer Security shall be
made at the office of the Company's Paying Agent in the Borough of Manhattan,
The City of New York, if (but only if) payment in Dollars of the full amount of
such principal, premium or interest, as the case may be, at all offices or
agencies outside the United States maintained for the purpose by the Company in
accordance with this Indenture is illegal or effectively precluded by exchange
controls or other similar restrictions.
Unless otherwise specified as contemplated by Section 3.1, the
Company may also from time to time designate one or more other offices or
agencies where the Securities (including any interest coupons, if any) of one or
more series may be presented or surrendered for any or all such purposes and may
from time to time rescind such designations; provided, however, that no such
designation or rescission shall in any manner relieve the Company of its
obligation to maintain an office or agency in each Place of Payment for
Securities (including any interest coupons, if any) of any series for such
purposes. The Company will give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location of any such other
office or agency.
Unless otherwise specified as contemplated by Section 3.1, the
Trustee shall initially serve as Paying Agent.
Section 9.3. Money for Securities Payments to Be Held in
Trust; Unclaimed Money. If the Company shall at any time act as its own Paying
Agent with respect to any series of Securities and any interest coupons
appertaining thereto, it will, on or before each due date of the principal of,
premium, if any, or interest on any of the Securities of that series, segregate
and hold in trust for the benefit of the Persons entitled thereto a sum
sufficient to pay the principal, premium, if any, or interest so becoming due
until such sums shall be paid to such Persons or otherwise disposed of as herein
provided and will promptly notify the Trustee in writing of its action or
failure so to act.
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Whenever the Company shall have one or more Paying Agents for
any series of Securities and any interest coupons appertaining thereto, it will,
prior to each due date of the principal of or any premium or interest on any
Securities of that series, deposit with a Paying Agent a sum sufficient to pay
such amount, such sum to be held as provided by the Trust Indenture Act, and
(unless such Paying Agent is the Trustee) the Company will promptly notify the
Trustee of its action or failure so to act.
The Company will cause each Paying Agent for any series of
Securities other than the Trustee to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee, subject to
the provisions of this Section, that such Paying Agent will:
(a) comply with the provisions of the Trust Indenture Act
applicable to it as a Paying Agent;
(b) hold all sums held by it for the payment of the principal
of, premium, if any, or interest on Securities of that series in trust for the
benefit of the Persons entitled thereto until such sums shall be paid to such
Persons or otherwise disposed of as herein provided;
(c) give the Trustee notice of any default by the Company (or
any other obligor upon the Securities of that series) in the making of any
payment of principal, premium, if any, or interest on the Securities of that
series; and
(d) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the Trustee all sums
so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the terms set forth in this Indenture; and, upon such payment by any Paying
Agent to the Trustee, such Paying Agent shall be released from all further
liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of any principal of or
premium or interest on any Security of any series and remaining unclaimed for
two years after such principal, premium, if any, or interest has become due and
payable shall be paid to the Company on Company Request, or (if then held by the
Company) shall be discharged from such trust; and the Holder of such Security
and interest coupon, if any, shall thereafter, as an unsecured general creditor,
look only to the Company for payment thereof, and all liability of the Trustee
or such Paying Agent with respect to such trust money, and all liability of the
Company as trustee thereof, shall thereupon cease; provided, however, that
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the Trustee or such Paying Agent, before being required to make any such
repayment, may in the name and at the expense of the Company cause to be
published once, in an Authorized Newspaper in each Place of Payment with respect
to such series, or cause to be mailed to such Holder, notice that such money
remains unclaimed and that, after a date specified therein, which shall not be
less than 30 days from the date of such publication, any unclaimed balance of
such money then remaining will be repaid to the Company.
Section 9.4. Corporate Existence. Subject to Article 7, the
Company will at all times do or cause to be done all things necessary to
preserve and keep in full force and effect its corporate existence and its
rights and franchises; provided that nothing in this Section 9.4 shall prevent
the abandonment or termination of any right or franchise of the Company if it
shall be determined that such abandonment or termination is desirable in the
conduct of the business of the Company.
Section 9.5. Annual Review Certificate. The Company agrees to
deliver to the Trustee, within 90 days after the end of each fiscal year of the
Company, a certificate from the principal executive officer, principal financial
officer, treasurer or principal accounting officer of the Company stating that a
review of the activities of the Company during such year and of performance
under this Indenture has been made under his or her supervision and to the best
of his or her knowledge, based on such review, each of the Company and the
Guarantors has fulfilled all of its obligations under this Indenture throughout
such year, or, if there has been a default in the fulfillment of any such
obligation, specifying each such default known to him or her and the nature and
status thereof. For purposes of this Section 9.5, such compliance shall be
determined without regard to any period of grace or requirement of notice
provided under this Indenture.
The Company shall deliver to the Trustee, as soon as possible
and in any event within 30 days after the Company becomes aware of the
occurrence of an Event of Default or an event which, with notice or the lapse of
time or both, would constitute an Event of Default, an Officers' Certificate
setting forth the details of such Event of Default or Default, and the action
which the Company proposes to take with respect thereto.
Section 9.6. Maintenance of Properties. The Company will cause
all properties used or useful in the conduct of its business or the business of
any Subsidiary to be maintained and kept in good condition, repair and working
order, normal wear and tear excepted, and supplied with all necessary equipment
and will cause to be made all necessary repairs, renewals, replacements,
betterments and improvements thereof, all as in the judgment of the Company may
be necessary so that the business carried on in connection therewith may be
properly and advantageously conducted at all times; provided, however, that
nothing in this Section 9.6 shall prevent the Company from discontinuing the
operation or maintenance of any of such properties, or disposing of any of them,
if such discontinuance or disposition is, in the judgment of the Company,
desirable in the conduct of its business or the business of any Subsidiary.
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Section 9.7. Payments of Taxes and Other Claims. The Company
will pay or discharge or cause to be paid or discharged, before the same shall
become delinquent, (1) all taxes, assessments and governmental charges levied or
imposed upon the Company or any Subsidiary or upon the income, profits or
property of the Company or any Subsidiary, and (2) all lawful claims for labor,
materials and supplies which, if unpaid, might by law become a material lien
upon the property of the Company or any Subsidiary; provided, however, that the
Company shall not be required to pay or discharge or cause to be paid or
discharged any such tax, assessment, charge or claim whose amount, applicability
or validity is being contested in good faith by appropriate proceedings.
Section 9.8. Waiver of Certain Agreements. Except as otherwise
specified as contemplated by Section 3.1 for Securities of such series, the
Company or any Guarantor may, with respect to the Securities of any series, omit
in any particular instance to comply with any term, provision or condition set
forth in any agreement provided pursuant to Section 3.1(b)(15), 8.1(b) or 8.1(g)
for the benefit of the Holders of such series if before the time for such
compliance the Holders of at least a majority in principal amount of the
Outstanding Securities of such series shall, by act of such Holders in
accordance with Section 1.4, either waive such compliance in such instance or
generally waive compliance with such term, provision or condition, but no such
waiver shall extend to or affect such term, provision or condition except to the
extent so expressly waived, and, until such waiver shall become effective, the
obligations of the Company and each of the Guarantors and the duties of the
Trustee in respect of any such term, provision or condition shall remain in full
force and effect.
ARTICLE 10
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 10.1. Company to Furnish Trustee Names and Addresses
of Holders. The Company will furnish or cause to be furnished to the Trustee:
(a) semi-annually, not more than 15 days after each Regular
Record Date for any series, a list, in such form as the Trustee may
reasonably require, of the names and addresses of the Holders of
Registered Securities of such series as of such Regular Record Date;
and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a
list of similar form and content for any or all series as of a date not
more than 15 days prior to the time such list is furnished;
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excluding from any such list names and addresses possessed by the Trustee in its
capacity as Registrar.
Section 10.2. Preservation of Information, Communications to
Holders. (a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders of Registered Securities
contained in the most recent list furnished to the Trustee as provided in
Section 10.1 and the names and addresses of Holders of Registered Securities
received by the Trustee in its capacity as Registrar. The Trustee may destroy
any list furnished to it as provided in Section 10.1 upon receipt of a new list
so furnished.
(b) The rights of Holders of Securities to communicate with
other Holders with respect to their rights under this Indenture or under the
Securities, and the corresponding rights and privileges of the Trustee, shall be
as provided in the Trust Indenture Act.
(c) Every Holder of Securities and interest coupons
appertaining thereto, by receiving and holding the same, agrees with the Company
and the Trustee that neither the Company, the Guarantors nor the Trustee nor any
agent of any of them shall be held accountable by reason of the disclosure of
information as to the names and addresses of the Holders of Securities made
pursuant to the Trust Indenture Act.
Section 10.3. Reports by Trustee. (a) The Trustee shall
transmit to Holders of Securities such reports concerning the Trustee and its
actions under this Indenture as may be required pursuant to the Trust Indenture
Act, at the times and in the manner provided pursuant thereto.
(b) Reports so required to be transmitted at stated intervals
of not more than 12 months shall be transmitted no later than July 15 in each
calendar year, commencing with the first July 15 after the first issuance of
Securities under this Indenture.
(c) A copy of each such report shall, at the time of such
transmission to Holders of Securities, be filed by the Trustee with each stock
exchange upon which the Securities of any series may then be listed and also
with the Commission. The Company will notify the Trustee whenever the Securities
of any series are listed on any stock exchange.
Section 10.4. Reports by the Company and the Guarantors. The
Company and each of the Guarantors shall file with the Trustee and the
Commission, and transmit to the Holders, such information, documents and other
reports, and such summaries thereof, as may be required pursuant to the Trust
Indenture Act at the times and in the manner provided pursuant to such Act;
provided that any such information, documents or reports required to be filed
with the Commission pursuant to Section 13 or
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15(d) of the Exchange Act shall be filed with the Trustee within 15 days after
the same is so required to be filed with the Commission. Notwithstanding
anything contrary herein, the Trustee shall have no duty to review such
documents for purposes of determining compliance with any provisions of this
Indenture.
ARTICLE 11
REDEMPTION
Section 11.1. Applicability of Article. Securities (including
interest coupons, if any) of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified as contemplated by Section 3.1 for Securities of any series)
in accordance with this Article.
Section 11.2. Election to Redeem; Notice to Trustee. The
election of the Company to redeem any Securities, including interest coupons, if
any, that, at the time of such election, may be redeemed at the option of the
Company, shall be evidenced by a Board Resolution. In the case of any such
redemption at the election of the Company of less than all the Securities or
interest coupons, if any, of any series, the Company shall, at least 45 days
prior to the Redemption Date fixed by the Company (unless a shorter notice shall
be satisfactory to the Trustee), notify the Trustee of such Redemption Date, of
the principal amount of Securities of such series to be redeemed and, if
applicable, of the tenor of the Securities to be redeemed. In the case of any
redemption of Securities (i) prior to the expiration of any restriction on such
redemption provided in the terms of such Securities or elsewhere in this
Indenture or (ii) pursuant to an election of the Company which is subject to a
condition specified in the terms of such Securities, the Company shall furnish
the Trustee with an Officers' Certificate evidencing compliance with such
restriction or condition.
Section 11.3. Selection of Securities to Be Redeemed. Unless
otherwise specified as contemplated by Section 3.1, if less than all the
Securities (including interest coupons, if any) of a series with the same terms
are to be redeemed, the Trustee, not more than 60 days prior to the Redemption
Date, shall select the Securities of the series to be redeemed in such manner as
the Trustee shall deem fair and appropriate. The Trustee shall make the
selection from Securities of the series that are Outstanding and that have not
previously been called for redemption and may provide for the selection for
redemption of portions (equal to the minimum authorized denomination for
Securities, including interest coupons, if any, of that series or any integral
multiple thereof) of the principal amount of Securities, including interest
coupons, if any, of such series of a denomination larger than the minimum
authorized denomination for Securities of that series, provided that the
unredeemed portion of the principal amount of any Security shall be in an
authorized denomination (which shall not be less than the minimum authorized
denomination) for such Security. The Trustee shall promptly notify the Company
in
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writing of the Securities selected by the Trustee for redemption and, in the
case of any Securities selected for partial redemption, the principal amount
thereof to be redeemed. If the Company shall so direct, Securities registered in
the name of the Company, any Guarantor, any Affiliate or any Subsidiary of the
Company or any Guarantor shall not be included in the Securities selected for
redemption.
For purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities (including
interest coupons, if any) shall relate, in the case of any Securities (including
interest coupons, if any) redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities (including interest coupons,
if any) which has been or is to be redeemed.
If any Security that is convertible or exchangeable is
selected for partial redemption and is converted or exchanged in part before
termination of the conversion or exchange right with respect to the portion of
the Security so selected, the converted or exchanged portion of such Security
shall be deemed (so far as applicable) to be the portion selected for
redemption. Securities which have been converted or exchanged during a selection
of Securities to be redeemed shall be treated by the Trustee as Outstanding for
the purposes of such selection.
Section 11.4. Notice of Redemption. Unless otherwise specified
as contemplated by Section 3.1, notice of redemption shall be given in the
manner provided in Section 1.6 not less than 30 days nor more than 60 days prior
to the Redemption Date to the Holders of the Securities to be redeemed.
All notices of redemption shall state:
(a) the Redemption Date;
(b) the Redemption Price;
(c) if less than all the Outstanding Securities of a series
are to be redeemed, the identification (and, in the case of partial redemption,
the principal amounts) of the particular Security or Securities to be redeemed;
(d) the Place or Places of Payment where such Securities,
together in the case of Bearer Securities with all interest coupons appertaining
thereto, if any, maturing on or after the Redemption Date, are to be surrendered
for payment of the Redemption Price;
(e) that Securities of the series called for redemption and
all unmatured interest coupons, if any, appertaining thereto must be surrendered
to the Paying Agent to collect the Redemption Price;
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(f) that, on the Redemption Date, the Redemption Price will
become due and payable upon each such Security, or the portion thereof, to be
redeemed and, if applicable, that interest thereon will cease to accrue on and
after said date;
(g) that the redemption is from a sinking fund, if such is the
case;
(h) that, unless otherwise specified in such notice, Bearer
Securities of any series, if any, surrendered for redemption must be accompanied
by all interest coupons maturing subsequent to the Redemption Date or the amount
of any such missing interest coupon or interest coupons will be deducted from
the Redemption Price, unless security or indemnity satisfactory to the Company,
the Trustee and any Paying Agent is furnished;
(i) the CUSIP number, if any, of the Securities;
(j) if applicable, the conversion or exchange price, the date
on which the right to convert or exchange the Securities (or portions thereof to
be redeemed) will terminate and the place or places where such Securities may be
surrendered for conversion or exchange; and
(k) the procedures that a Holder must follow to surrender the
Securities so to be redeemed.
Notice of redemption of Securities to be redeemed shall be
given by the Company or, at the Company's request, by the Trustee in the name
and at the expense of the Company.
Section 11.5. Deposit of Redemption Price. On or prior to any
Redemption Date, the Company shall deposit with the Trustee or with a Paying
Agent (or, if the Company is acting as its own Paying Agent, segregate and hold
in trust as provided in Section 9.3) an amount of money in the currency or
currencies (including currency unit or units) in which the Securities of such
series are payable (except as otherwise specified pursuant to Section 3.1 for
the Securities of such series) sufficient to pay on the Redemption Date the
Redemption Price of, and (unless the Redemption Date shall be an Interest
Payment Date) interest accrued to the Redemption Date on, all Securities or
portions thereof which are to be redeemed on that date.
Unless any Security by its terms prohibits any redemption
obligation from being satisfied by delivering and crediting Securities
(including Securities redeemed otherwise than through a sinking fund), the
Company may deliver such Securities to the Trustee for crediting of an amount
equal to the then applicable Redemption Price for such Securities against such
payment obligation in accordance with the terms of such Securities and this
Indenture.
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Section 11.6. Securities Payable on Redemption Date. Notice of
redemption having been given as aforesaid, the Securities so to be redeemed
shall, on the Redemption Date, become due and payable at the Redemption Price
therein specified, and from and after such date (unless the Company shall
default in the payment of the Redemption Price and accrued interest) such
Securities shall cease to bear interest and the interest coupons for any such
interest appertaining to any Bearer Security so to be redeemed, except to the
extent provided below, shall be void. Except as provided in the next succeeding
paragraph, upon surrender of any such Security, including interest coupons, if
any, for redemption in accordance with said notice, such Security shall be paid
by the Company at the Redemption Price, together with accrued interest to the
Redemption Date; provided, however, that installments of interest on Bearer
Securities whose Stated Maturity is on or prior to the Redemption Date shall be
payable only at an office or agency located outside the United States and its
possessions (except as otherwise provided in Section 9.2) and, unless otherwise
specified as contemplated by Section 3.1, only upon presentation and surrender
of interest coupons for such interest; and provided, further, that, unless
otherwise specified as contemplated by Section 3.1, installments of interest on
Registered Securities that are due and payable on Interest Payment Dates that
are on or prior to the Redemption Date shall be payable to the Holders of such
Securities, or one or more Predecessor Securities, registered as such at the
close of business on the relevant Regular Record Dates according to their terms
and the provisions of Section 3.7.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant interest coupons maturing after the Redemption
Date, such Bearer Security may be paid after deducting from the Redemption Price
an amount equal to the face amount of all such missing interest coupons, or the
surrender of such missing interest coupon or interest coupons may be waived by
the Company and the Trustee if there be furnished to them such security or
indemnity as they may require to save each of them and any Paying Agent
harmless. If thereafter the Holder of such Bearer Security shall surrender to
the Trustee or any Paying Agent any such missing interest coupon in respect of
which a deduction shall have been made from the Redemption Price, such Holder
shall be entitled to receive the amount so deducted; provided, however, that
interest represented by interest coupons shall be payable only at an office or
agency located outside of the United States (except as otherwise provided
pursuant to Section 9.2) and, unless otherwise specified as contemplated by
Section 3.1, only upon presentation and surrender of those interest coupons.
If any Security called for redemption shall not be so paid
upon surrender thereof for redemption, the principal and premium, if any, shall,
until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Security.
Section 11.7. Securities Redeemed in Part. Upon surrender of a
Security that is redeemed in part at any Place of Payment therefor (with, if the
Company
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or the Trustee so requires, due endorsement by, or a written instrument of
transfer in form satisfactory to the Company and the Trustee duly executed by,
the Holder thereof or his or her attorney duly authorized in writing), the
Company shall execute and the Trustee shall authenticate and deliver to the
Holder of that Security, without service charge, a new Security or Securities
(each with a Subordinated Guarantee of each Guarantor executed by each such
Guarantor and endorsed thereon) of the same series, having the same form, terms
and Stated Maturity, in any authorized denomination equal in aggregate principal
amount to the unredeemed portion of the principal amount of the Security
surrendered.
ARTICLE 12
SINKING FUNDS
Section 12.1. Applicability of Article. The provisions of this
Article shall be applicable to any sinking fund for the retirement of Securities
of a series except as otherwise specified as contemplated by Section 3.1 for
Securities of such series.
The minimum amount of any sinking fund payment provided for by
the terms of Securities of any series is herein referred to as a "mandatory
sinking fund payment," and any payment in excess of such minimum amount provided
for by the terms of Securities of any series is herein referred to as an
"optional sinking fund payment." If provided for by the terms of Securities of
any series, the cash amount of any sinking fund payment may be subject to
reduction as provided in Section 12.2. Each sinking fund payment shall be
applied to the redemption of Securities of any series as provided for by the
terms of Securities of such series.
Section 12.2. Satisfaction of Sinking Fund Payments with
Securities. The Company (i) may deliver Outstanding Securities of a series
(other than any previously called for redemption) together, in the case of
Bearer Securities of such series, with all unmatured interest coupons
appertaining thereto and (ii) may apply as a credit Securities of a series which
have been (x) redeemed either at the election of the Company pursuant to the
terms of such Securities or through the application of permitted optional
sinking fund payments pursuant to the terms of such Securities, (y) converted or
exchanged pursuant to Article 14 or (z) previously delivered to the Trustee and
cancelled without reissuance pursuant to Section 3.9, in each case in
satisfaction of all or any part of any sinking fund payment with respect to the
Securities of such series required to be made pursuant to the terms of such
Securities as provided for by the terms of such series; provided that such
Securities have not been previously so credited. Such Securities shall be
received and credited for such purpose by the Trustee at the Redemption Price
specified in such Securities for redemption through operation of the sinking
fund and the amount of such sinking fund payment shall be reduced accordingly.
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Section 12.3. Redemption of Securities for Sinking Fund. Not
less than 45 days prior to each sinking fund payment date for any series of
Securities, the Company will deliver to the Trustee an Officers' Certificate
specifying the amount of the next ensuing sinking fund payment for that series
pursuant to the terms of that series, the portion thereof, if any, which is to
be satisfied by payment of cash and the portion thereof, if any, which is to be
satisfied by delivering and crediting Securities of that series pursuant to
Section 12.2 and stating the basis for such credit and that such Securities have
not been previously so credited, and will also deliver to the Trustee any
Securities to be so delivered. Not less than 30 days before each such sinking
fund payment date the Trustee shall select the Securities to be redeemed upon
such sinking fund payment date in the manner specified in Section 11.3 and cause
notice of the redemption thereof to be given in the name of and at the expense
of the Company in the manner provided in Section 11.4. Such notice having been
duly given, the redemption of such Securities shall be made upon the terms and
in the manner stated in Sections 11.6 and 11.7.
ARTICLE 13
MEETINGS OF HOLDERS OF SECURITIES
Section 13.1. Purposes for Which Meetings May Be Called. A
meeting of Holders of Securities of any series may be called at any time and
from time to time pursuant to this Article to make, give or take any request,
demand, authorization, direction, notice, consent, election, waiver or other
action provided by this Indenture to be made, given or taken by Holders of
Securities of such series.
Section 13.2. Call, Notice and Place of Meetings. (a) The
Trustee may at any time call a meeting of Holders of Securities of any series
for any purpose specified in Section 13.1, to be held at such time and at such
place in The City of New York or in such other place as may be acceptable to the
Company. Notice of every meeting of Holders of Securities, setting forth the
time and the place of such meeting and in general terms the action proposed to
be taken at such meeting, shall be given, in the manner provided in Section 1.6,
not less than 20 nor more than 180 days prior to the date fixed for the meeting.
(b) In case at any time the Company, pursuant to a Board
Resolution, shall have requested the Trustee to call a meeting of the Holders of
Securities of any series for any purpose specified in Section 13.1, by written
request setting forth in reasonable detail the action proposed to be taken at
the meeting, and the Trustee shall not have made the first publication of the
notice of such meeting within 20 days after receipt of such request or shall not
thereafter proceed to cause the meeting to be held as provided herein, then the
Company may determine the time and the place in The City of New York or such
other place as may be acceptable to the Company for such meeting and may call
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such meeting for such purposes by giving notice thereof as provided in paragraph
(a) of this Section 13.2.
Section 13.3. Persons Entitled to Vote at Meetings. To be
entitled to vote at any meeting of Holders of Securities of any series, a Person
shall be (a) a Holder of one or more Outstanding Securities of such series, or
(b) a Person appointed by an instrument in writing as proxy for a Holder or
Holders of one or more Outstanding Securities of such series by such Holder or
Holders. The only Persons who shall be entitled to be present or to speak at any
meeting of Holders shall be the Persons entitled to vote at such meeting and
their counsel, any representatives of the Trustee and its counsel and any
representatives of the Company and its counsel.
Section 13.4. Quorum; Action. The Persons entitled to vote a
majority in principal amount of the Outstanding Securities of a series shall
constitute a quorum for a meeting of Holders of Securities of such series;
provided, however, that if any action is to be taken at such meeting with
respect to a consent or waiver which this Indenture expressly provides may be
given by the Holders of not less than a specified percentage in principal amount
of the Outstanding Securities of a series, the Persons entitled to vote such
specified percentage in principal amount of the Outstanding Securities of such
series shall constitute a quorum. In the absence of a quorum within 30 minutes
after the time appointed for any such meeting, the meeting may be adjourned for
a period of not less than 10 days as determined by the chairman of the meeting
prior to the adjournment of such meeting. In the absence of a quorum at the
reconvening of any such adjourned meeting, such adjourned meeting may be further
adjourned for a period of not less than 10 days; at the reconvening of any
meeting adjourned or further adjourned for lack of a quorum, the persons
entitled to vote 25% in aggregate principal amount of the then Outstanding
Securities of the relevant series shall constitute a quorum for the taking of
any action set forth in the notice of the original meeting. Notice of the
reconvening of any adjourned meeting shall be given as provided in Section
13.2(b), except that such notice need be given only once not less than five days
prior to the date on which the meeting is scheduled to be reconvened.
Except as limited by the proviso to Section 8.2, any
resolution presented to a meeting or adjourned meeting duly reconvened at which
a quorum is present as aforesaid may be adopted by the affirmative vote of the
Holders of a majority in principal amount of the Outstanding Securities of that
series; provided, however, that, except as limited by the proviso to Section
8.2, any resolution with respect to any request, demand, authorization,
direction, notice, consent, waiver or other action which this Indenture
expressly provides may be made, given or taken by the Holders of a specified
percentage, which is less than a majority, in principal amount of the
Outstanding Securities of a series may be adopted at a meeting or an adjourned
meeting duly reconvened and at which a quorum is present as aforesaid by the
affirmative vote of the Holders of such specified percentage in principal amount
of the Outstanding Securities of that series.
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Any resolution passed or decision taken at any meeting of
Holders of Securities of any series duly held in accordance with this Section
13.4 shall be binding on all the Holders of Securities of such series and the
related coupons, whether or not present or represented at the meeting.
Notwithstanding the foregoing provisions of this Sections
13.4, if any action is to be taken at a meeting of Holders of Securities of any
series with respect to any request, demand, authorization, direction, notice,
consent, waiver or other action that this Indenture expressly provides may be
made, given or taken by the Holders of a specified percentage in principal
amount of all Outstanding Securities affected thereby, or of the Holders of such
series and one or more additional series:
(1) there shall be no minimum quorum requirement for such
meeting and
(2) the principal amount of the Outstanding Securities of such
series that vote in favor of such request, demand, authorization,
direction, notice, consent, waiver or other action shall be taken into
account in determining whether such request, demand, authorization,
direction, notice, consent, waiver or other action has been made, given
or taken under this Indenture.
Section 13.5. Determination of Voting Rights; Conduct and
Adjournment of Meetings. (a) Notwithstanding any other provisions of this
Indenture, the Trustee may make such reasonable regulations as it may deem
advisable for any meeting of Holders of Securities of any series in regard to
proof of the holding of Securities of such series and of the appointment of
proxies and in regard to the appointment and duties of inspectors of votes, the
submission and examination of proxies, certificates and other evidence of the
right to vote, and such other matters concerning the conduct of the meeting as
it shall deem appropriate. Except as otherwise permitted or required by any such
regulations, the holding of Securities shall be proved in the manner specified
in Section 1.4 and the appointment of any proxy shall be provided in the manner
specified in Section 1.4 or by having the signature of the Person executing the
proxy witnessed or guaranteed by any trust company, bank or banker authorized by
Section 1.4 to certify to the holding of Bearer Securities. Such regulations may
provide that written instruments appointing proxies, regular on their face, may
be presumed valid and genuine without the proof specified in Section 1.4 or
other proof.
(b) The Trustee shall, by an instrument in writing, appoint a
temporary chairman (which may be a Responsible Officer of the Trustee) of the
meeting, unless the meeting shall have been called by the Company as provided in
Section 13.2(b), in which case the Company shall in like manner appoint a
temporary chairman. A permanent chairman and a permanent secretary of the
meeting shall be elected by vote of the Persons
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entitled to vote a majority in principal amount of the Outstanding Securities of
such series represented at the meeting.
(c) At any meeting each Holder of a Security of such series or
proxy shall be entitled to one vote for each U.S. $1,000 principal amount of
Securities held or represented by him or her; provided, however, that no vote
shall be cast or counted at any meeting in respect of any Security challenged as
not Outstanding and ruled by the chairman of the meeting to be not Outstanding.
The chairman of the meeting shall have no right to vote, except as a Holder of a
Security or proxy.
(d) Any meeting of Holders of Securities of a series duly
called pursuant to Section 13.2 at which a quorum is present may be adjourned
from time to time by Persons entitled to vote a majority in principal amount of
the Outstanding Securities of such series represented at the meeting, and the
meeting may be held as so adjourned without further notice.
Section 13.6. Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of Holders of Securities
of any series shall be by written ballots on which shall be subscribed the
signatures of the Holders of Securities of such series or of their
representatives by proxy and the principal amounts and serial numbers of the
Outstanding Securities held or represented by them. The permanent chairman of
the meeting shall appoint an inspector of votes who shall count all votes cast
at the meeting for or against any resolution and who shall make and file with
the secretary of the meeting its verified written reports in duplicate of all
votes cast at the meeting. A record of the proceedings of each meeting of
Holders of Securities shall be prepared by the applicable secretary of the
meeting and there shall be attached to said record the original report of the
inspector of votes on any vote by ballot taken thereat and affidavits by one or
more Persons having knowledge of the facts, setting forth a copy of the notice
of the meeting and showing that said notice was given as provided in Section
13.2 and, if applicable, Section 13.4. At least two copies of such record shall
be signed and verified by the affidavits of the permanent chairman and secretary
of the meeting and one copy thereof shall be delivered to the Company and the
other to the Trustee to be preserved by the Trustee, the latter to have attached
thereto the ballots voted at the meeting. Any record so signed and verified
shall be conclusive evidence of the matters therein stated.
ARTICLE 14
CONVERSION OR EXCHANGE OF SECURITIES
Section 14.1. Applicability of Article. (a) The provisions of
this Article 14 shall be applicable to the Securities of any series which are
convertible or exchangeable into Equity Securities of Allied, and to the
issuance of such Equity
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Securities upon the conversion or exchange of such Securities, except as
otherwise specified as contemplated by Section 3.1 for the Securities of such
series.
(b) The term "Equity Securities" shall mean all or any of the
following, authorized from time to time: (i) Allied's Common Stock, $.01 par
value (the "Common Stock"), (ii) Allied's Preferred Stock, $.10 par value (the
"Preferred Stock"), and (iii) any other equity securities of Allied.
Section 14.2. Exercise of Conversion or Exchange Privilege.
(a) In order to exercise a conversion or exchange privilege, the Holder of a
Security of a series with such privilege shall surrender such Security,
together, in the case of any Bearer Security, with all unmatured interest
coupons and any matured interest coupons in default appertaining thereto, to the
Company at the office or agency maintained for that purpose pursuant to Section
9.2, accompanied by written notice to Allied and the Company that the Holder
elects to convert or exchange such Security or a specified portion thereof. Such
notice shall also state, if different from the name and address of such Holder,
the name or names (with address) in which the certificate or certificates for
Equity Securities which shall be issuable on such conversion or exchange shall
be issued. Registered Securities surrendered for conversion or exchange shall
(if so required by Allied, the Company or the Trustee) be duly endorsed by or
accompanied by instruments of transfer in forms satisfactory to Allied, the
Company and the Trustee duly executed by the registered Holder or its attorney
duly authorized in writing.
(b) As promptly as practicable after the receipt of such
notice and of any payment required pursuant to a Board Resolution establishing
the terms of any series of Securities and, subject to Section 3.3, set forth, or
determined in the manner provided, in an Officers' Certificate, or established
in one or more indentures supplemental hereto setting forth the terms of such
series of Security, and the surrender of such Security in accordance with such
reasonable regulations as Allied and the Company may prescribe, Allied shall
issue and shall deliver, at the office or agency at which such Security is
surrendered, to such Holder or on its written order, a certificate or
certificates for the number of Equity Securities issuable upon the conversion or
exchange of such Security (or specified portion thereof), in accordance with the
provisions of such Board Resolution, Officers' Certificate or supplemental
indenture, and cash as provided therein in respect of any fractional share of
such Equity Security otherwise issuable upon such conversion or exchange.
(c) Such conversion or exchange shall be deemed to have been
effected immediately prior to the close of business on the date on which such
notice and such payment, if required, shall have been received in proper order
for conversion or exchange by Allied and the Company and such Security shall
have been surrendered as aforesaid and at such time the rights of the Holder of
such Security as such Security Holder shall cease and the person or persons in
whose name or names any certificate or certificates for
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Equity Securities of Allied shall be issuable upon such conversion or exchange
shall be deemed to have become the Holder or Holders of record of the Equity
Securities represented thereby. Except as set forth above and subject to
paragraph (d) of Section 3.7, no payment or adjustment shall be made upon any
conversion or exchange on account of any interest accrued on the Securities
surrendered for conversion or exchange, or on account of any dividends on the
Equity Securities of Allied issued upon such conversion or exchange if the
record date for the payment of such dividends occurs prior to or on the date on
which such conversion or exchange shall be deemed to have been effected.
In the case of any Security which is converted or exchanged in
part only, upon such conversion or exchange the Company shall execute and the
Trustee shall authenticate and deliver to or on the order of the Holder thereof,
at the expense of the Company, a new Security or Securities of the same series,
of authorized denominations, in aggregate principal amount equal to the
unconverted or unexchanged portion of such Security.
Any requirements for notice, surrender or delivery of
Securities pursuant to this Article Fourteen shall, with respect to any Global
Security, be subject to any Applicable Procedures.
Section 14.3. No Fractional Equity Securities. No fractional
Equity Security of Allied shall be issued upon conversions or exchanges of
Securities of any series. If more than one Security shall be surrendered for
conversion or exchange at one time by the same Holder, the number of full shares
of the Equity Security which shall be issuable upon conversion or exchange shall
be computed on the basis of the aggregate principal amount of the Securities (or
specified portions thereof to the extent permitted hereby) so surrendered. If,
except for the provisions of this Section 14.3, any Holder of a Security or
Securities would be entitled to a fractional share of any Equity Security of
Allied upon the conversion or exchange of such Security or Securities, or
specified portions thereof, Allied or the Company shall pay to such Holder an
amount in cash equal to the current market value of such fractional share
computed, (i) if such Equity Security is listed or admitted to unlisted trading
privileges on a national securities exchange, on the basis of the last reported
sale price regular way on the principal exchange where such Equity Security is
listed or admitted, on the last trading day prior to the date of conversion or
exchange upon which such a sale shall have been effected, (ii) if such Equity
Security is not at the time so listed or admitted on a national securities
exchange but is quoted on the National Market System of the National Association
of Securities Dealers, Inc. ("NASDAQ"), on the basis of the average of the last
bid and asked prices of such Equity Security on NASDAQ on the last trading day
prior to the date of conversion or exchange, (iii) if such Equity Security is
not at the time so listed or admitted to unlisted trading privileges on a
national securities exchange or quoted on NASDAQ, on the basis of the average of
the last bid and asked prices of such Equity Security in the
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over-the-counter market, on the last trading day prior to the date of
conversion or exchange, as reported by the National Quotation Bureau
Incorporated or similar organization if the National Quotation Bureau
Incorporated is no longer reporting such information, or (iv) in accordance with
the terms of the supplemental indenture or Board Resolutions setting the terms
of the Securities of such series. For purposes of this Section, "trading day"
shall mean each Monday, Tuesday, Wednesday, Thursday and Friday other than any
day on which the applicable Equity Security is not traded or quoted on a
national securities exchange, or if the applicable Equity Security is not traded
or quoted on a national securities exchange, on NASDAQ or the principal exchange
or market on which the applicable Equity Security is traded or quoted.
Section 14.4. Adjustment of Conversion or Exchange Price;
Consolidation or Merger. The conversion or exchange price of Securities of any
series that is convertible or exchangeable into an Equity Security of Allied
shall be adjusted for any stock dividends, stock splits, reclassifications,
combinations or similar transactions, and the securities, assets or other
property into or for which such Securities may be converted or exchanged as a
result of any consolidation, merger, combination or similar transaction shall be
determined, in accordance with the terms of the supplemental indenture or Board
Resolutions setting the terms of the Securities of such series.
Whenever the conversion or exchange price is adjusted, Allied
and the Company shall compute the adjusted conversion or exchange price in
accordance with the terms of the applicable Board Resolution or supplemental
indenture and shall prepare an Officers' Certificate setting forth the adjusted
conversion or exchange price and showing in reasonable detail the facts upon
which such adjustment is based. Whenever the securities, assets or other
property into or for which Securities of any series may be converted or
exchanged are changed as a result of any consolidation, merger or similar
transaction, Allied and the Company shall determine the nature and amount of
such securities, assets or other property in accordance with the terms of the
applicable Board Resolution or supplemental indenture and shall prepare an
Officer's Certificate describing such securities, assets or other property and
stating the amount of such securities, assets or other property into or for
which such Securities have become convertible or exchangeable. Such certificates
shall forthwith be filed at each office or agency maintained for the purpose of
conversion or exchange of Securities pursuant to Section 9.2 and, if different,
with the Trustee. Allied and the Company shall forthwith cause a notice setting
forth the adjusted conversion or exchange price or describing such securities,
assets or other property, as applicable, to be mailed, first class postage
prepaid, to each Holder of Registered Securities of such series at its address
appearing on the Register and to any conversion or exchange agent other than the
Trustee and shall give notice to Holders of Bearer Securities as provided in
Section 1.6.
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Section 14.5. Notice of Certain Corporate Actions. If any
series of Securities which are directly or indirectly convertible or
exchangeable for any Equity Securities are Outstanding, in case:
(a) Allied shall declare a dividend (or any other
distribution) on any class of such Equity Securities payable (i)
otherwise than exclusively in cash out of its retained earnings, or
(ii) exclusively in cash out of its retained earnings in an amount
that, under the terms of such Securities, would require an adjustment
in the exchange or conversion price of such Securities; or
(b) Allied shall authorize the granting to the holders of any
class of such Equity Securities of rights, options or warrants to
subscribe for or purchase any shares of capital stock of any class or
of any other rights; or
(c) of any reclassification of any class of such Equity
Securities (other than a subdivision or combination of its outstanding
shares of such Equity Securities), or of any consolidation or merger to
which the Company is a party and for which approval of any shareholders
of the Company is required, or of the sale of all or substantially all
of the assets of Allied; or
(d) of the voluntary or involuntary dissolution, liquidation
or winding up of Allied; or
(e) the Company or any Subsidiary of the Company shall
commence a tender or exchange offer for all or a portion of the
Company's outstanding shares of such Equity Securities (or shall amend
any such tender or exchange offer);
then Allied and the Company shall cause to be filed with the Trustee, and shall
cause to be mailed to all Holders at their addresses as they shall appear in the
Register and shall give notice to the Holder of Bearer Securities as provided in
Section 1.6, at least 20 days (or 10 days in any case specified in clause (a) or
(b) above) prior to the applicable record date hereinafter specified, a notice
stating (i) the date on which a record is to be taken for the purpose of such
dividend, distribution, rights, options or warrants, or, if a record is not to
be taken, the date as of which the Holders of such Equity Securities of record
to be entitled to such dividend, distribution, rights, options or warrants are
to be determined, or (ii) the date on which such reclassification,
consolidation, merger, share exchange, sale, dissolution, liquidation or winding
up is expected to become effective, and the date as of which it is expected that
holders of such Equity Securities of record shall be entitled to exchange such
Equity Securities for securities, cash or other property deliverable upon such
reclassification, consolidation, merger, share exchange, sale, dissolution,
liquidation or winding up or (iii) the date on which such tender or exchange
offer commenced, the date on which such tender or exchange offer is scheduled to
expire unless extended, the consideration offered and the other material terms
thereof (or the material terms of any amendment thereto). If at any time the
Trustee shall not be the conversion or exchange
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agent, a copy of such notice shall also forthwith be filed by Allied and the
Company with the Trustee.
Section 14.6. Reservation of Equity Securities. Allied shall
at all times reserve and keep available, free from preemptive rights, out of its
authorized but unissued Equity Securities, solely for the purpose of effecting
the conversion or exchange of Securities, the full number of Equity Securities
of Allied then issuable upon the conversion or exchange of all Outstanding
Securities of any series that has conversion or exchange rights.
Section 14.7. Payment of Certain Taxes Upon Conversion or
Exchange. Allied and the Company will pay any and all taxes that may be payable
in respect of the issue or delivery of Allied's Equity Securities on conversion
or exchange of Securities pursuant hereto. Allied and the Company shall not,
however, be required to pay any tax which may be payable in respect of any
transfer involved in the issue and delivery of its Equity Securities in a name
other than that of the Holder of the Security or Securities to be converted or
exchanged, and no such issue or delivery shall be made unless and until the
Person requesting such issue has paid to Allied and the Company the amount of
any such tax, or has established, to the satisfaction of Allied and the Company,
that such tax has been paid.
Section 14.8. Duties of Trustee Regarding Conversion or
Exchange. Neither the Trustee nor any conversion or exchange agent shall at any
time be under any duty or responsibility to any Holder of Securities of any
series that is convertible or exchangeable into Equity Securities of Allied to
determine whether any facts exist which may require any adjustment of the
conversion or exchange price, or with respect to the nature or extent of any
such adjustment when made, or with respect to the method employed, whether
herein or in any supplemental indenture, any resolutions of the Board of
Directors or written instrument executed by one or more officers of Allied and
the Company provided to be employed in making the same. Neither the Trustee nor
any conversion or exchange agent shall be accountable with respect to the
validity or value (or the kind or amount) of any Equity Securities of Allied, or
of any securities or property, which may at any time be issued or delivered upon
the conversion or exchange of any Securities and neither the Trustee nor any
conversion or exchange agent makes any representation with respect thereto.
Subject to the provisions of Section 6.1, neither the Trustee nor any conversion
or exchange agent shall be responsible for any failure of Allied or the Company
to issue, transfer or deliver any of Allied's Equity Securities or stock
certificates or other securities or property upon the surrender of any Security
for the purpose of conversion or exchange or to comply with any of the 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.
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Section 14.9. Repayment of Certain Funds Upon Conversion or
Exchange. Any funds which at any time have been deposited by the Company or on
its behalf with the Trustee or any Paying Agent for the purpose of paying the
principal of, premium, if any, and interest, if any, on any of the Securities
(including funds deposited for redemption pursuant to Article 11 or for any
sinking fund referred to in Article 12 hereof) and which shall not be required
for such purposes because of the conversion or exchange of such Securities as
provided in this Article 14 shall after such conversion or exchange be repaid to
the Company by the Trustee upon the Company's written request by Company
Request.
ARTICLE 15
SUBORDINATION OF SECURITIES AND SUBORDINATED GUARANTEES
Section 15.1. Securities Subordinate to Senior Debt. Unless
otherwise specified as contemplated by Section 3.1, the Company agrees, and each
Holder of a Security, by his acceptance thereof, likewise agrees, that, to the
extent and in the manner hereinafter set forth in this Article 15 (subject to
the provisions of Article 4), (i) the payment of the principal of, premium, if
any, and interest on the Securities and any other obligations in respect of the
Securities are hereby expressly made subordinate and subject in right of payment
to the prior payment in full of all Senior Debt of the Company, and (ii) the
payment of each Guarantor's obligations in respect of its Subordinated Guarantee
is hereby expressly made subordinate and subject in right of payment to the
prior payment in full of all the obligations of such Guarantor under all Senior
Debt of such Guarantor.
Section 15.2. Payment Over of Proceeds Upon Dissolution, Etc.
In the event of (a) any insolvency or bankruptcy case or proceeding, or any
receivership, liquidation, reorganization or other similar case or proceeding in
connection therewith, relative to the Company or to its creditors, as such, or
to its assets, or (b) any liquidation, dissolution or other winding up of the
Company, whether voluntary or involuntary and whether or not involving
insolvency or bankruptcy, or (c) any assignment for the benefit of creditors or
any other marshaling of assets and liabilities of the Company, then and in any
such event specified in (a), (b) or (c) above (each such event, if any, herein
sometimes referred to as a "Company Proceeding") the holders of all Senior Debt
of the Company shall first be entitled to receive payment in full of all amounts
due or to become due on or in respect of all such Senior Debt, or provision
shall be made for such payment in cash or cash equivalents or otherwise in a
manner satisfactory to the holders of such Senior Debt, before the Holders of
the Securities are entitled to receive any payment or distribution of any kind
or character from the Company, whether in cash, property or securities
(including any payment or distribution which may be payable or deliverable by
reason of the payment of any other Debt of the Company subordinated to the
payment of the Securities on account of principal of, premium, if any, or
interest on or other
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obligations in respect of the Securities or on account of any purchase or
redemption or other acquisition of Securities by the Company or Allied or any
Subsidiary of the Company (all such payments, distributions, purchases and
acquisitions herein referred to, individually and collectively, as a "Company
Securities Payment"), and to that end the holders of Senior Debt of the Company
shall be entitled to receive, for application to the payment thereof, any
Company Securities Payment which may be payable or deliverable in respect of the
Securities in any such Company Proceeding. Notwithstanding the foregoing,
Holders may receive and retain Permitted Junior Securities and payments made
from the trust pursuant to Article 4.
In the event of (a) any insolvency or bankruptcy case or
proceeding, or any receivership, liquidation, reorganization or other similar
case or proceeding in connection therewith, relative to any Guarantor or to its
creditors, as such, or to its assets, or (b) any liquidation, dissolution or
other winding up of any Guarantor, whether voluntary or involuntary and whether
or not involving insolvency or bankruptcy, or (c) any assignment for the benefit
of creditors or any other marshaling of assets and liabilities of any Guarantor,
then and in any such event specified in (a), (b) or (c) above (each such event,
if any, herein sometimes referred to as a "Guarantor Proceeding"; the Company
Proceeding and the Guarantor Proceeding each may be referred to as a
"Proceeding") the holders of all Senior Debt of such Guarantor shall first be
entitled to receive payment in full of all amounts due or to become due on or in
respect of all such Senior Debt, or provision shall be made for such payment in
cash or cash equivalents or otherwise in a manner satisfactory to the holders of
such Senior Debt, before the Holders of the Securities are entitled to receive
any payment or distribution of any kind or character from such Guarantor,
whether in cash, property or securities (including any payment or distribution
which may be payable or deliverable by reason of the payment of any other Debt
of such Guarantor subordinated to the payment of its Subordinated Guarantee by
such Guarantor) on account of its Subordinated Guarantee (all such payments and
distributions herein referred to, individually and collectively, as a "Guarantor
Securities Payment"; any of the Company Securities Payment and the Guarantor
Securities Payment each may be referred to as a "Securities Payment"), and to
that end the holders of Senior Debt of such Guarantor shall be entitled to
receive, for application to the payment thereof, any Guarantor Securities
Payment which may be payable or deliverable in respect of the Subordinated
Guarantee by such Guarantor in any such Guarantor Proceeding. Notwithstanding
the foregoing, Holders may receive and retain Permitted Junior Securities and
payments made from the trust pursuant to Article 4.
In the event that, notwithstanding the foregoing provisions of
this Section, the Trustee or the Holder of any Security shall have received any
Securities Payment before all Senior Debt of the Company or the Guarantor, as
applicable, is paid in full or payment thereof provided for in cash or cash
equivalents or otherwise in a manner satisfactory to the holders of such Senior
Debt, then and in such event such Securities Payment shall be paid over or
delivered forthwith to the holders of Senior Debt for
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application to the payment of such Senior Debt remaining unpaid, to the extent
necessary to pay such Senior Debt in full, after giving effect to any concurrent
payment or distribution to or for the holders of such Senior Debt.
The consolidation of the Company or any Guarantor with, or the
merger of the Company or any Guarantor with, another Person or the liquidation
or dissolution of the Company or any Guarantor following the conveyance or
transfer of all or substantially all of its properties and assets as an entirety
to another Person upon the terms and conditions set forth in Article 7 shall not
be deemed a Proceeding for the purposes of this Section if the Person formed by
such consolidation or with which the Company or any Guarantor merges or the
Person which acquires by conveyance or transfer such properties and assets as an
entirety, as the case may be, shall, as a part of such consolidation, merger,
conveyance or transfer, comply with the conditions set forth in Article 7.
Section 15.3. No Payment When Senior Debt in Default. In the
event that any Company Senior Payment Default (as defined below) shall have
occurred and be continuing, then no Company Securities Payment shall be made
unless and until such Company Senior Payment Default shall have been cured or
waived or shall have ceased to exist or all amounts then due and payable in
respect of Senior Debt of the Company shall have been paid in full, or provision
shall have been made for such payment in cash or otherwise in a manner
satisfactory to the holders of such Senior Debt. Notwithstanding the foregoing,
Holders may receive and retain Permitted Junior Securities and payments made
from the trust pursuant to Article 4. "Company Senior Payment Default" means (i)
any default in the payment of principal of, premium, if any, or interest on any
Designated Senior Debt of the Company and (ii) any event of default with respect
to Designated Senior Debt of the Company which has resulted in such Designated
Senior Debt becoming or being declared due and payable prior to the date on
which it would otherwise have become due and payable.
In the event that any Guarantor Senior Payment Default (as
defined below) with respect to any Guarantor shall have occurred and be
continuing, then no Guarantor Securities Payment shall be made by such Guarantor
unless and until such Guarantor Senior Payment Default shall have been cured or
waived or shall have ceased to exist or all amounts then due and payable in
respect of the Senior Debt of such Guarantor shall have been paid in full, or
provision shall have been made for such payment in cash or otherwise in a manner
satisfactory to the holders of Senior Debt of such Guarantor. Notwithstanding
the foregoing, Holders may receive and retain Permitted Junior Securities and
payments made from the trust pursuant to Article 4. "Guarantor Senior Payment
Default" means, with respect to any Guarantor, (i) any default in the payment of
principal of, premium, if any, or interest on any Designated Senior Debt of such
Guarantor and (ii) any event of default with respect to Designated Senior Debt
of such Guarantor which has resulted in such Designated Senior Debt becoming or
being declared
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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 (the "Payment Blockage Notice") of
such Company Senior Nonmonetary Default from any holder of Designated Senior
Debt, 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 Designated Senior Debt of the Company
shall have been rescinded or annulled or the Designated 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. If the Trustee receives any Payment Blockage Notice, no subsequent
Payment Blockage Notice shall be effective for purposes of this Section 15.3
unless and until (A) at least 360 days shall have elapsed since the
effectiveness of the immediately prior Payment Blockage Notice and (B) all
scheduled payments of principal, premium, if any, and interest (including
Special Interest) on the Securities that have come due have been paid in full in
cash. For all purposes of this paragraph, no Senior Nonmonetary Default that
existed or was continuing on the date of commencement of any Company Payment
Blockage Period shall be, or can be, made the basis for the commencement of a
subsequent Company Payment Blockage Period whether or not within a period of 360
consecutive days by holders of Designated 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 Designated Senior Debt of the Company is outstanding,
permitting (after notice or lapse of time or both) one or more holders of such
Designated Senior Debt (or a trustee or agent on behalf of the holders thereof)
to declare such Designated Senior Debt due and payable prior to the date on
which it would otherwise become due and payable, other than a Company Senior
Payment Default. Notwithstanding the foregoing, Holders may receive and retain
Permitted Junior Securities and payments made from the trust pursuant to Article
4.
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 Designated
Senior Debt, 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
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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 Designated Senior Debt of such Guarantor shall have been
rescinded or annulled or the Designated 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. If the
Trustee receives any Payment Blockage Notice, no subsequent Payment Blockage
Notice shall be effective for purposes of this Section 15.3 unless and until (A)
at least 360 days shall have elapsed since the effectiveness of the immediately
prior Payment Blockage Notice and (B) all scheduled payments of principal,
premium, if any, and interest (including Special Interest) on the Securities
that have come due have been paid in full in cash. 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 Designated 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 Designated Senior Debt of such
Guarantor is outstanding, permitting (after notice or lapse of time or both) one
or more holders of such Designated Senior Debt (or a trustee or agent on behalf
of the holders thereof) to declare such Designated Senior Debt due and payable
prior to the date on which it would otherwise become due and payable, other than
a Guarantor Senior Payment Default. Any Company Senior Nonmonetary Default or
Guarantor Senior Nonmonetary Default may be referred to herein as a "Senior
Nonmonetary Default". Notwithstanding the foregoing, Holders may receive and
retain Permitted Junior Securities and payments made from the trust pursuant to
Article 4.
In the event that, notwithstanding the foregoing, the Company
or any Guarantor shall make any Company Securities Payment or Guarantor
Securities Payment, as the case may be, to the Trustee or any Holder prohibited
by the foregoing provisions of this Section, then and in such event such
Securities Payment shall be paid over and delivered forthwith to the holders of
the Senior Debt of the Company or the Guarantor, as the case may be.
The provisions of this Section shall not apply to any
Securities Payment with respect to which Section 15.2 would be applicable.
Section 15.4. Certain Payments Permitted. Nothing contained in
this Article or elsewhere in this Indenture or in any of the Securities or the
Subordinated
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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.
After all Senior Debt is paid in full and until the Securities are paid in full,
Holders of Securities shall be subrogated (equally and ratably with all other
Indebtedness pari passu with the Securities) to the rights of holders of Senior
Debt to receive distributions applicable to Senior Debt to the extent that
distributions otherwise payable to the Holders of Securities have been applied
to the payment of Senior Debt. A distribution made under this Article 15 to
holders of Senior Debt that otherwise would have been made to Holders of
Securities is not, as between the Company and Holders, a payment by the Company
on the Securities.
Section 15.6. Provisions Solely to Define Relative Rights. The
provisions of this Article are and are intended solely for the purpose of
defining the relative rights of the Holders on the one hand and the holders of
Senior Debt on the other hand. Nothing contained in this Article or elsewhere in
this Indenture or in the Securities is intended to or shall (a) impair, as among
the Company or any Guarantor, as applicable, its creditors other than holders of
Senior Debt and the Holders of the Securities with the Guarantees endorsed
thereon, the obligation of the Company or any Guarantor, as applicable, which is
absolute and unconditional (and which, subject to the rights under this Article
of the holders of Senior Debt, is intended to rank equally with all other
general obligations of the Company), to pay to the Holders of the Securities the
principal of, premium, if any, and interest on the Securities as and when the
same shall become due and payable in accordance with their terms; or (b) affect
the relative rights against the Company or any Guarantor, as applicable, of the
Holders of the Securities and creditors of the Company or any Guarantor, as
applicable, other than the holders of Senior Debt; or (c) prevent the Trustee or
the Holder of any Security from exercising all remedies otherwise permitted by
applicable law upon default under this Indenture, subject to the rights, if any,
under this Article of the holders of Senior Debt to receive cash, property and
securities otherwise payable or deliverable to the Trustee or such Holder.
If the Company or any Guarantor fails because of this Article
15 to pay principal of, premium, if any, or interest on a Security on the due
date, the failure is still a default or event of default under this Indenture.
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. If the Trustee does not file a
proper proof of claim or proof of debt in the form required in any proceeding
referred to in Section 5.4 hereof at least 30 days before the expiration of
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the time to file such claim, the Agent banks under the Credit Agreement are
hereby authorized to file an appropriate claim for and on behalf of the Holders
of the Securities.
Section 15.8. No Waiver of Subordination Provisions. No right
of any present or future holder of any Senior Debt to enforce subordination as
herein provided shall at any time in any way be prejudiced or impaired by any
act or failure to act on the part of the Company or any Guarantor or by any act
or failure to act, in good faith, by any such holder, or by any noncompliance by
the Company or any Guarantor with the terms, provisions and agreements of this
Indenture, regardless of any knowledge thereof any such holder may have or be
otherwise charged with.
Without in any way limiting the generality of the foregoing
paragraph, the holders of Senior Debt may, at any time and from time to time,
without the consent of or notice to the Trustee or the Holders of the
Securities, without incurring responsibility to the Holders of the Securities
and without impairing or releasing the subordination provided in this Article or
the obligations hereunder of the Holders of the Securities to the holders of
Senior Debt, do any one or more of the following: (i) change the manner, place
or terms of payment or extend the time of payment of, or renew or alter or
increase, Senior Debt, or otherwise amend or supplement in any manner Senior
Debt or any instrument evidencing the same or any agreement under which Senior
Debt is outstanding; (ii) sell, exchange, release or otherwise deal with any
property pledged, mortgaged or otherwise securing Senior Debt; (iii) release any
Person liable in any manner for the collection of Senior Debt; and (iv) exercise
or refrain from exercising any rights against the Company, the Guarantors and
any other Person.
Section 15.9. Notice to Trustee. The Company shall give prompt
written notice to the Trustee of any fact known to the Company which would
prohibit the making of any payment to or by the Trustee in respect of the
Securities or any of the Subordinated Guarantees. Notwithstanding the provisions
of this Article or any other provision of this Indenture, the Trustee shall not
be charged with knowledge of the existence of any facts which would prohibit the
making of any payment to or by the Trustee in respect of the Securities or any
of the Subordinated Guarantees and the Trustee may continue to make payments on
the Securities, unless the Trustee shall have received at its Corporate Trust
Office at least five Business Days prior to the date of such payment written
notice of facts that would cause the payment obligations with respect to the
Securities to violate this Article from the Company or a holder of Senior Debt
or from any trustee therefor; and, prior to the receipt of any such written
notice, the Trustee, subject to the provisions of Section 6.1, shall be entitled
in all respects to assume that no such facts exist, provided that nothing in
this Section 15.9 shall impair the subordination provisions of this Article
Fifteen.
Subject to the provisions of Section 6.1, the Trustee shall be
entitled to rely on the delivery to it of a written notice by a Person
representing himself to be a holder of
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Senior Debt (or a trustee, representative or agent therefor) to establish that
such notice has been given by a holder of Senior Debt (or a trustee,
representative or agent therefor). In the event that the Trustee determines in
good faith that further evidence is required with respect to the right of any
Person as a holder of Senior Debt to participate in any payment or distribution
pursuant to this Article, the Trustee may request such Person to furnish
evidence to the reasonable satisfaction of the Trustee as to the amount of
Senior Debt held by such Person, the extent to which such Person is entitled to
participate in such payment or distribution and any other facts pertinent to the
rights of such Person under this Article, and if such evidence is not furnished,
the Trustee may defer any payment to such Person pending judicial determination
as to the right of such Person to receive such payment.
Section 15.10. Reliance on Judicial Order or Certificate of
Liquidating Agent. Upon any payment or distribution of assets or securities of
the Company or any Guarantor referred to in this Article, the Trustee, subject
to the provisions of Section 6.1, and the Holders of the Securities shall be
entitled to rely upon any order or decree entered by any court of competent
jurisdiction in which such proceeding is pending, or a certificate of the
trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee for
the benefit of creditors, agent or other Person making such payment or
distribution, delivered to the Trustee or to the Holders of Securities, for the
purpose of ascertaining the Persons entitled to participate in such payment or
distribution, the holders of the Senior Debt and other indebtedness of the
Company or any Guarantor, as the case may be, the amount thereof or payable
thereon, the amount or amounts paid or distributed thereon and all other facts
pertinent thereto or to this Article.
Section 15.11. Trustee Not Fiduciary for Holders of Senior
Debt. The Trustee shall not be deemed to owe any fiduciary duty to the holders
of Senior Debt and shall not be liable to any such holders if it shall in good
faith mistakenly pay over or distribute to Holders of Securities or to the
Company or any Guarantor or to any other Person cash, property or securities to
which any holders of Senior Debt shall be entitled by virtue of this Article or
otherwise.
Section 15.12. Rights of Trustee as Holder of Senior Debt;
Preservation of Trustee's Rights. The Trustee in its individual capacity shall
be entitled to all the rights set forth in this Article with respect to any
Senior Debt which may at any time be held by it, to the same extent as any other
holder of Senior Debt, and nothing in this Indenture shall deprive the Trustee
of any of its rights as such holder.
Nothing in this Article shall apply to claims of, or payments
to, the Trustee under or pursuant to Section 6.7.
Section 15.13. Article Applicable to Paying Agents. In case at
any time any Paying Agent other than the Trustee shall have been appointed by
the Company and
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be then acting hereunder, the term "Trustee" as used in this Article shall in
such case (unless the context otherwise requires) be construed as extending to
and including such Paying Agent within its meaning as fully for all intents and
purposes as if such Paying Agent were named in this Article in addition to or in
place of the Trustee; provided, however, that Section 15.12 shall not apply to
the Company, any Guarantor or any Affiliate of the Company or of any Guarantor
if it or such Affiliate acts as Paying Agent.
Section 15.14. Defeasance of this Article 15. The
subordination of the Securities and the Subordinated Guarantees provided by this
Article 15 is expressly made subject to the provisions for defeasance or
agreement defeasance in Article 4 and, anything herein to the contrary
notwithstanding, upon the effectiveness of any such defeasance or agreement
defeasance, the Securities then Outstanding and the Subordinated Guarantees
relating thereto shall thereupon cease to be subordinated pursuant to this
Article 15.
ARTICLE 16
SUBORDINATED GUARANTEE
Section 16.1. Subordinated Guarantee. Unless otherwise
specified as contemplated by Section 3.1, each of Allied and the Subsidiary
Guarantors hereby jointly and severally unconditionally guarantees on a
subordinated basis to each Holder of a Security authenticated and delivered by
the Trustee, and to the Trustee on behalf of such Holder, the due and punctual
payment of the principal of, premium, if any, and interest on such Security when
and as the same shall become due and payable, whether at the Stated Maturity or
by acceleration, call for redemption, purchase or otherwise, in accordance with
the terms of such Security and of this Indenture. In case of the failure of the
Company punctually to make any such payment, each of Allied and the Subsidiary
Guarantors hereby jointly and severally agrees to cause such payment to be made
punctually when and as the same shall become due and payable, whether at the
Stated Maturity or by acceleration, call for redemption, purchase or otherwise,
and as if such payment were made by the Company. Further, in the case of the
failure of any Subsidiary Guarantor punctually to make any payment required of
it hereunder, Allied agrees to cause such payment to be made when and as the
same shall become due and payable, as if such payment were made by such
Subsidiary Guarantor.
Unless otherwise specified as contemplated by Section 3.1,
each of the Guarantors hereby jointly and severally agrees that its obligations
hereunder shall be unconditional, irrespective of the validity, regularity or
enforceability of any Security or this Indenture, the absence of any action to
enforce the same, any creation, exchange, release or nonperfection of any Lien
on any collateral for, or any release or amendment or waiver of any term of any
other Guarantee of, or any consent to departure from any requirement of any
other Guarantee, of all or any of the Securities, the election by the
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Trustee or any of the Holders in any proceeding under Chapter 11 of Title 11 of
the United States Code (the "Bankruptcy Code") of the application of Section
1111(b)(2) of the Bankruptcy Code, any borrowing or grant of a security interest
by the Company, as debtor in possession, under Section 364 of the Bankruptcy
Code, the disallowance, under Section 502 of the Bankruptcy Code, of all or any
portion of the claims of the Trustee or any of the Holders for payment of any of
the Securities, any waiver or consent by the Holder of any Security or by the
Trustee with respect to any provisions thereof or of this Indenture, the
obtaining of any judgment against the Company (or, with respect to the Allied
Subsidiary Guarantee, any Subsidiary Guarantor) or any action to enforce the
same or any other circumstances which might otherwise constitute a legal or
equitable discharge or defense of a guarantor. Each of the Guarantors hereby
waives the benefits of diligence, presentment, demand of payment, any
requirement that the Trustee or any of the Holders protect, secure, perfect or
insure any security interest in or other Lien on any property subject thereto or
exhaust any right or take any action against the Company (or, with respect to
the Allied Subsidiary Guarantee, any Subsidiary Guarantor) or any other Person
or any collateral, filing of claims with a court in the event of insolvency or
bankruptcy of the Company (or, with respect to the Allied Subsidiary Guarantee,
any Subsidiary Guarantor), any right to require a proceeding first against the
Company (or, with respect to the Allied Subsidiary Guarantee, any Subsidiary
Guarantor), protest or notice with respect to any Security (or, with respect to
the Allied Subsidiary Guarantee, the Subsidiary Guarantees) or the indebtedness
evidenced thereby and all demands whatsoever, and agrees that this Subordinated
Guarantee will not be discharged in respect of any Security (or, with respect to
the Allied Subsidiary Guarantee, the Subsidiary Guarantees) except by complete
performance of the obligations contained in such Security (or, with respect to
the Allied Subsidiary Guarantee, the Subsidiary Guarantees) and in this
Subordinated Guarantee. Each of the Guarantors hereby agrees that, in the event
of a default in payment of principal of, premium, if any, or interest on any
Security (or, with respect to the Allied Subsidiary Guarantee, the Subsidiary
Guarantees), whether at its Stated Maturity or by acceleration, call for
redemption, purchase or otherwise, legal proceedings may be instituted by the
Trustee on behalf of, or by, the Holder of such Security subject to the terms
and conditions set forth in this Indenture, directly against each or any of the
Guarantors (or, with respect to the Allied Subsidiary Guarantee, against Allied)
to enforce its Subordinated Guarantee without first proceeding against the
Company (or, with respect to the Allied Subsidiary Guarantee, against any
Subsidiary Guarantor). Each Guarantor agrees that if, after the occurrence and
during the continuance of an Event of Default, the Trustee or any of the Holders
are prevented by applicable law from exercising their respective rights to
accelerate the maturity of the Securities, to collect interest on the Securities
or to enforce or exercise any other right or remedy with respect to the
Securities (or, with respect to the Allied Subsidiary Guarantee, to enforce or
exercise the Subsidiary Guarantees), or the Trustee or the Holders are prevented
from taking any action to realize on any collateral, such Guarantor agrees to
pay to the Trustee for the account of the Holders, upon demand therefor, the
amount that would
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otherwise have been due and payable had such rights and remedies been permitted
to be exercised by the Trustee or any of the Holders.
No provision of any Subordinated Guarantee or Security or of
the Indenture shall alter or impair (i) the Subordinated Guarantee of any
Guarantor, which is absolute and unconditional, of the due and punctual payment
of the principal of, premium, if any, and interest on the Security upon which
such Subordinated Guarantee is endorsed, or (ii) the Allied Subsidiary
Guarantee, which is absolute and unconditional, of the due and punctual
performance by the Subsidiary Guarantors of their obligations under the
Subsidiary Guarantees.
Each Guarantor shall be subrogated to all rights of the
Holders of the Securities upon which its Subordinated Guarantee is endorsed
against the Company (or, with respect to the Allied Subsidiary Guarantee, any
Subsidiary Guarantor) in respect of any amounts paid by such Guarantor on
account of such Security (or, with respect to the Allied Subsidiary Guarantee,
the Subsidiary Guarantees) pursuant to the provisions of its Subordinated
Guarantee or this Indenture; provided, however, that no Guarantor shall be
entitled to enforce or to receive any payments arising out of, or based upon,
such right of subrogation until the principal of, premium, if any, and interest
on all Securities issued hereunder shall have been paid in full.
Each Subordinated Guarantee shall remain in full force and
effect and continue to be effective should any petition be filed by or against
the Company (or, with respect to the Allied Subsidiary Guarantee, any Subsidiary
Guarantor) for liquidation or reorganization, should the Company (or, with
respect to the Allied Subsidiary Guarantee, any Subsidiary Guarantor) become
insolvent or make an assignment for the benefit of creditors or should a
receiver or trustee be appointed for all or any significant part of the assets
of the Company (or, with respect to the Allied Subsidiary Guarantee, the assets
of any Subsidiary Guarantor) and shall, to the fullest extent permitted by law,
continue to be effective or be reinstated, as the case may be, if at any time
payment and performance of the Securities (or, with respect to the Allied
Subsidiary Guarantee, any Subsidiary Guarantor) is, pursuant to applicable law,
rescinded or reduced in amount, or must otherwise be restored or returned by any
obligee on the Securities, whether as a "voidable preference," "fraudulent
transfer" or otherwise, all as though such payment or performance had not been
made. In the event that any payment, or any part thereof, is rescinded, reduced,
restored or returned, the Securities shall, to the fullest extent permitted by
law, be reinstated and deemed reduced only by such amount paid and not so
rescinded, reduced, restored or returned.
No officer, director, employer or incorporator, past, present
or future, of any Guarantor, as such, shall have any personal liability under
any Subordinated Guarantee by reason of his, her or its status as such officer,
director, employer or incorporator.
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To the extent that any Subsidiary Guarantor shall be required
to pay any amounts on account of the Securities pursuant to its Subordinated
Guarantee in excess of the greater of (i) the amount of the economic benefit
actually received by such Subsidiary Guarantor from the issuance of the
Securities and (ii) an amount calculated as the product of (A) the aggregate
amount payable by the Subsidiary Guarantors on account of the Securities
pursuant to their Subordinated Guarantees times (B) the proportion (expressed as
a fraction) that such Subsidiary Guarantor's net worth at the date enforcement
of its Subordinated Guarantee is sought bears to the aggregate net worth of all
Subsidiary Guarantors at such date, then such Subsidiary Guarantor shall be
reimbursed by the other Subsidiary Guarantors for the amount of such excess, pro
rata, based upon the respective net worth of such other Subsidiary Guarantors at
the date enforcement of its Subordinated Guarantees is sought. This paragraph is
intended only to define the relative rights of the Subsidiary Guarantors as
among themselves, and nothing set forth in this paragraph is intended to or
shall impair the joint and several obligations of the Guarantors under their
respective Subordinated Guarantees.
The Guarantors shall have the right to seek contribution from
any nonpaying Guarantor so long as the exercise or such right does not impair
the rights of the Holders under any Subordinated Guarantee.
Section 16.2. Execution and Delivery of Subordinated
Guarantees. The Subordinated Guarantees to be endorsed on the Securities shall
include the terms of the Subordinated Guarantee set forth in Section 16.1 and
any other terms that may be set forth in the form established pursuant to
Section 2.3 and Section 3.1. Each of the Guarantors hereby agrees to execute its
Subordinated Guarantee, in a form established pursuant to Section 2.3 and
Section 3.1, to be endorsed on each Security authenticated and delivered by the
Trustee.
The Subordinated Guarantee shall be executed on behalf of each
respective Guarantor by any one of such Guarantor's Chairman of the Board, Vice
Chairman of the Board, President or Vice Presidents, attested by its Secretary
or Assistant Secretary. The signature of any or all of these officers on the
Subordinated Guarantee may be manual or facsimile and may be pursuant to a duly
executed power of attorney.
A Subordinated Guarantee bearing the manual or facsimile
signatures of individuals who were at any time the proper officers of a
Guarantor shall bind such Guarantor, notwithstanding that such individuals or
any of them have ceased to hold such offices prior to the authentication and
delivery of the Security on which such Subordinated Guarantee is endorsed or did
not hold such offices at the date of such Subordinated Guarantee.
The delivery of any Security by the Trustee, after the
authentication thereof hereunder, shall constitute due delivery of the
Subordinated Guarantee endorsed thereon
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on behalf of the Guarantors. Each of the Guarantors hereby jointly and severally
agrees that its Subordinated Guarantee set forth in Section 16.1 shall remain in
full force and effect notwithstanding any failure to endorse a Subordinated
Guarantee on any Security.
Section 16.3. Subsidiary Guarantors May Consolidate, Etc., on
Certain Terms. Nothing contained in this Indenture or in any of the Securities
shall prevent any consolidation or merger of a Subsidiary Guarantor with or into
the Company or a Guarantor or shall prevent any sale or conveyance of the
property of a Subsidiary Guarantor as an entirety or substantially as an
entirety to the Company or a Guarantor.
Section 16.4. Release of Guarantors. (a) Concurrently with any
consolidation or merger of a Subsidiary Guarantor or any sale or conveyance of
the property of a Subsidiary Guarantor as an entirety or substantially as an
entirety, in each case as permitted by Section 16.3, and upon delivery by the
Company to the Trustee of an Officers' Certificate and an Opinion of Counsel to
the effect that such consolidation, merger, sale or conveyance was made in
accordance with Section 16.3, the Trustee shall execute any documents reasonably
required in order to evidence the release of such Subsidiary Guarantor from its
obligations under its Subsidiary Guarantees endorsed on the Securities and under
this Article 16. Any Subsidiary Guarantor not released from its obligations
under its Subsidiary Guarantees endorsed on the Securities and under this
Article 16 shall remain liable for the full amount of principal of, premium, if
any, and interest on the Securities and for the other obligations of a
Subsidiary Guarantor under its Subsidiary Guarantees endorsed on the Securities
and under this Article 16.
(b) Concurrently with the defeasance of the Securities under
Section 4.4 or the agreement defeasance of the Securities under Section 4.5, the
Guarantors shall be released from all of their obligations under their
Subordinated Guarantees endorsed on the Securities and under this Article 16.
(c) Upon the consummation of any transaction (whether
involving a sale or other disposition of securities, a merger or otherwise)
whereby any Subsidiary Guarantor ceases to be a Restricted Subsidiary and which
transaction is otherwise in compliance with the provisions of this Indenture,
such Subsidiary Guarantor shall automatically be released from all obligations
under its Subsidiary Guarantees endorsed on the Securities and under this
Article 16.
(d) The Subsidiary Guarantors shall be released from all of
their obligations under the Subsidiary Guarantees endorsed on the Securities of
any series and under this Section 16 upon the occurrence of such other event or
events as may be established with respect to such series in accordance with
Section 3.1.
Section 16.5. Additional Guarantors. Unless otherwise
specified as contemplated by Section 3.1, the Company shall cause each Person
that becomes a Restricted Subsidiary after the date of this Indenture, upon
becoming a Restricted
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Subsidiary, to become a Subsidiary Guarantor with respect to the Securities. Any
such Person shall become a Subsidiary Guarantor by executing and delivering to
the Trustee (a) a supplemental indenture, in form and substance satisfactory to
the Trustee, which subjects such Person to the provisions of this Indenture as a
Subsidiary Guarantor and (b) an Opinion of Counsel to the effect that such
supplemental indenture has been duly authorized and executed by such Person and
constitutes the legal, valid, binding and enforceable obligation of such Person
(subject to such customary exceptions concerning creditors' rights and equitable
principles as may be acceptable to the Trustee in its discretion).
ARTICLE 17
JURISDICTION AND CONSENT TO SERVICE OF PROCESS
Section 17.1. Jurisdiction and Consent to Service of Process.
(a) Each of the Company and the Guarantors hereby irrevocably and
unconditionally submits, for itself and its property, to the nonexclusive
jurisdiction of any New York State court or Federal court of the United States
of America sitting in New York City, and any appellate court from any thereof,
in any action or proceeding arising out of or relating to the Securities, the
Subordinated Guarantees, this Indenture, or for recognition or enforcement of
any judgment, and each of such Persons hereby irrevocably and unconditionally
agrees that all claims in respect of any such action or proceeding may be heard
and determined in such New York State or, to the extent permitted by law, in
such Federal court. Each of the Company and the Guarantors agrees that a final
judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Article 17 shall affect any right that any
Holder or the Trustee may otherwise have to bring any action or proceeding
relating to the Securities, the Subordinated Guarantees, this Indenture
Agreement against the Company, any Guarantor or their respective properties in
the courts of any jurisdiction.
(b) Each of the Company and the Guarantors hereby irrevocably
and unconditionally waives, to the fullest extent it may legally and effectively
do so, any objection which it may now or hereafter have to the laying of venue
of any suit, action or proceeding arising out of or relating to the Securities,
the Subordinated Guarantees or this Indenture in any New York State or Federal
court. Each of the Company and the Guarantors hereby irrevocably waives, to the
fullest extent permitted by law, the defense of an inconvenient forum to the
maintenance of such action or proceeding in any such court.
(c) Each of the Company and the Guarantors irrevocably
consents to service of process in the manner provided for notices in Section
1.5. Nothing in this Agreement will affect the right of any Holder or the
Trustee to serve process in any other
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manner permitted by law.
This instrument may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.
ALLIED WASTE NORTH AMERICA, INC.
By: /s/ G. Xxxxxx Xxxxxxxx, Xx.
---------------------------------
Name: G. Xxxxxx Xxxxxxxx, Xx.
Title: Treasurer
ALLIED WASTE INDUSTRIES,
INC., for purposes of
Article 16 and as Guarantor
of the Securities and as
Guarantor of the
obligations of the
Subsidiary Guarantors under
the Subsidiary Guarantees
By: /s/ G. Xxxxxx Xxxxxxxx, Xx.
---------------------------------
Name: G. Xxxxxx Xxxxxxxx, Xx.
Title: Treasurer
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Each of the Subsidiary Guarantors
listed on Schedule I hereto,
as Guarantor
By*: /s/ G. Xxxxxx Xxxxxxxx, Xx.
---------------------------------
Name: G. Xxxxxx Xxxxxxxx, Xx.
Title: Treasurer
U.S. BANK TRUST NATIONAL ASSOCIATION
By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Assistant Vice President
* Signing as duly authorized officer for each such Subsidiary Guarantor.
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