1
EXHIBIT 4.1
Conformed Copy
ALLIED WASTE NORTH AMERICA, INC.
As Issuer
and
THE GUARANTORS NAMED HEREIN,
As Guarantors
and
ALLIED WASTE FINANCE (CANADA), LTD.
As Future Guarantor
to
FIRST BANK NATIONAL ASSOCIATION
As Trustee
----------------
Indenture
Dated as of December 1, 1996
----------------
$525,000,000
10 1/4% SENIOR SUBORDINATED NOTES DUE 2006
2
ALLIED WASTE NORTH AMERICA, INC.
Certain Sections of this Indenture relating to
Sections 310 through 318 of the
Trust Indenture Act of 1939:
Trust Indenture Indenture
Act Section Section
--------------- ---------
Section 310(a)(1) .................................... 609
(a)(2) .................................... 609
(a)(3) .................................... Not Applicable
(a)(4) .................................... Not Applicable
(b) .................................... 608
610
Section 311(a) .................................... 613
(b) .................................... 613
Section 312(a) .................................... 701
702(a)
(b) .................................... 702(b)
(c) .................................... 702(c)
Section 313(a) .................................... 703(a)
(a)(4) .................................... 101
1004
(b) .................................... 703(a)
(c) .................................... 703(a)
(d) .................................... 703(b)
Section 314(a) .................................... 704
(b) .................................... Not Applicable
(c)(1) .................................... 102
(c)(2) .................................... 102
(c)(3) .................................... Not Applicable
(d) .................................... Not Applicable
(e) .................................... 102
Section 315(a) .................................... 601
(b) .................................... 602
(c) .................................... 601
(d) .................................... 601
(e) .................................... 514
Section 316(a) .................................... 101
(a)(1)(A) .................................... 502
512
(a)(1)(B) .................................... 513
(a)(2) .................................... Not Applicable
(b) .................................... 508
(c) .................................... 104(c)
Section 317(a)(1) .................................... 503
(a)(2) .................................... 504
(b) .................................... 1003
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Note: This reconciliation and tie shall not, for any purpose, be deemed to be
a part of the Indenture.
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Trust Indenture Indenture
Act Section Section
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Section 318(a) ........................................ 107
--------------
Note: This reconciliation and tie shall not, for any purpose, be deemed to be
a part of the Indenture.
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TABLE OF CONTENTS
Page
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RECITALS OF THE COMPANY AND THE GUARANTORS............................... 1
ARTICLE ONE
Definitions and Other Provisions
of General Application
SECTION 101. Definitions............................................. 2
Acquisition............................................. 3
Acquisition Closing..................................... 3
Act..................................................... 3
Affiliate............................................... 3
Agent Member............................................ 3
Allied Canada........................................... 3
Allied Canada Debentures................................ 3
Allied Finance.......................................... 4
Allied Finance Debentures............................... 4
Allied Finance Guarantee................................ 4
Allied Insurance........................................ 4
Allied Parent........................................... 4
Applicable Procedures................................... 4
Asset Disposition....................................... 4
Authenticating Agent.................................... 5
Bank Agreement.......................................... 5
Bank Facility Capacity Increase......................... 5
Bank Facility Limit..................................... 5
Base Interest........................................... 5
Board of Directors...................................... 5
Board Resolution........................................ 6
Business Day............................................ 6
Capital Lease Obligation................................ 6
Capital Stock........................................... 6
Cedel................................................... 6
Collateral.............................................. 6
Collateral Account...................................... 6
Collateral Agreement.................................... 7
Commission.............................................. 7
Common Stock............................................ 7
Company................................................. 7
Company Order........................................... 7
Company Request......................................... 7
Comparable Treasury Issue............................... 7
Comparable Treasury Price............................... 7
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Note: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
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Consolidated EBITDA...................................... 8
Consolidated EBITDA Coverage Ratio....................... 8
Consolidated Income Tax Expense.......................... 9
Consolidated Interest Expense............................ 9
Consolidated Net Income.................................. 10
Consolidated Net Worth................................... 10
Consolidated Subsidiaries................................ 10
Consolidated Total Assets................................ 11
Corporate Trust Office................................... 11
corporation.............................................. 11
Credit Suisse Letter of Credit........................... 11
Debt..................................................... 11
Defaulted Interest....................................... 12
Depositary............................................... 12
DTC...................................................... 12
Euroclear................................................ 12
Event of Default......................................... 12
Excepted Disposition..................................... 12
Exchange Act............................................. 12
Exchange and Registration Rights Agreement............... 12
Exchange Offer........................................... 12
Exchange Registration Statement.......................... 12
Exchange Securities...................................... 13
Expiration Date.......................................... 13
Global Security.......................................... 13
Guarantors............................................... 13
Guaranty................................................. 13
Holder................................................... 13
IAI Securities........................................... 13
Increased Bank Facility Limit............................ 13
Incur.................................................... 14
Indenture................................................ 14
Independent Investment Banker............................ 14
Initial Purchasers....................................... 14
Intercompany Agreements.................................. 14
Interest Payment Date.................................... 15
Interest Rate or Currency Protection
Agreement................................................ 15
Investment............................................... 15
Xxxxxxx.................................................. 15
Lien..................................................... 15
Maturity................................................. 15
Med Track................................................ 16
Net Available Proceeds................................... 16
Net Offering Proceeds.................................... 16
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Note: This table of contents shall not, for any purpose,
be deemed to be a part of the Indenture.
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Note Purchase Agreement................................... 16
Notice of Default......................................... 16
Offer Document............................................ 17
Offer Expiration Date..................................... 17
Offer to Purchase......................................... 17
Officers' Certificate..................................... 19
Opinion of Counsel........................................ 20
Original Securities....................................... 20
Outstanding............................................... 20
Parent Guarantee.......................................... 21
pari passu................................................ 21
Paying Agent.............................................. 21
Permitted Interest Rate or Currency
Protection Agreement...................................... 21
Permitted Investment...................................... 21
Person.................................................... 23
Predecessor Security...................................... 23
Preferred Stock........................................... 23
Primary Treasury Dealer................................... 23
Public Offering........................................... 23
Purchase Amount........................................... 23
Purchase Date............................................. 23
Purchase Price............................................ 23
Redeemable Interest....................................... 24
Redemption Date........................................... 24
Redemption Price.......................................... 24
Reference Treasury Dealer................................. 24
Reference Treasury Dealer Quotations...................... 24
Registered Securities..................................... 24
Registration Default...................................... 24
Registration Default Period............................... 25
Regular Record Date....................................... 25
Regulation S.............................................. 25
Regulation S Certificate.................................. 25
Regulation S Global Security.............................. 25
Regulation S Legend....................................... 25
Regulation S Securities................................... 25
Reinvested Amounts........................................ 25
Related Person............................................ 26
Required Filing Dates..................................... 26
Restricted Global Security................................ 26
Restricted Period......................................... 26
Restricted Securities..................................... 26
Restricted Securities Certificate......................... 26
Restricted Securities Legend.............................. 26
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Note: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
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Restricted Subsidiary...................................... 26
Rule 144A.................................................. 26
Rule 144A Securities....................................... 26
Sale and Leaseback Transaction............................. 27
Secured Obligations........................................ 27
Securities................................................. 27
Securities Act............................................. 27
Securities Act Legend...................................... 27
Security Register.......................................... 27
Senior Debt................................................ 27
Senior Subordinated Guarantees............................. 28
Shelf Registration Statement............................... 28
Special Interest........................................... 28
Special Mandatory Redemption............................... 28
Special Record Date........................................ 28
Specialized Waste.......................................... 28
Stated Maturity............................................ 28
Stock Purchase Agreement................................... 28
Subsidiary................................................. 28
Subsidiary Guarantees...................................... 29
Subsidiary Guarantors...................................... 29
Successor Company.......................................... 29
Successor Security......................................... 29
Treasury Yield............................................. 29
Trust Indenture Act........................................ 29
Trustee.................................................... 30
U.S. Government Obligations................................ 30
Unpermitted Debt........................................... 30
Unrestricted Securities Certificate........................ 30
Unrestricted Subsidiary.................................... 30
Vice President............................................. 30
Voting Stock............................................... 31
Weighted Average Life to Maturity.......................... 31
Wholly Owned Restricted Subsidiary......................... 31
SECTION 102. Compliance Certificates and Opinions....................... 31
SECTION 103. Form of Documents Delivered to Trustee..................... 32
SECTION 104. Acts of Holders; Record Dates.............................. 32
SECTION 105. Notices, Etc., to Trustee, Company and
Guarantors................................................. 35
SECTION 106. Notice to Holders; Waiver.................................. 36
SECTION 107. Conflict with Trust Indenture Act.......................... 36
SECTION 108. Effect of Headings and Table of Contents................... 37
SECTION 109. Successors and Assigns..................................... 37
SECTION 110. Separability Clause........................................ 37
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Note: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
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SECTION 111. Benefits of Indenture.................................... 37
SECTION 112. Governing Law............................................ 37
SECTION 113. Legal Holidays........................................... 38
ARTICLE TWO
Security and Senior Subordinated Guarantee Forms
SECTION 201. Forms Generally; Initial Forms of Rule
144A, Regulation S and IAI Securities.................. 38
SECTION 202. Form of Face of Security................................. 39
SECTION 203. Form of Reverse of Security.............................. 43
SECTION 204. Form of Trustee's Certificate of
Authentication......................................... 49
SECTION 205. Form of Senior Subordinated Guarantee.................... 50
ARTICLE THREE
The Securities
SECTION 301. Title and Terms.......................................... 55
SECTION 302. Denominations............................................ 56
SECTION 303. Execution, Authentication, Delivery
and Dating............................................. 57
SECTION 304. Temporary Securities..................................... 58
SECTION 305. Global Securities........................................ 59
SECTION 306. Registration, Registration of Transfer and
Exchange Generally; Restrictions on
Transfer and Exchange; Securities Act
Legends.................................................. 61
(a) Registration, Registration of
Transfer and Exchange Generally.......... 61
(b) Certain Transfers and Exchanges.......... 62
(i) Restricted Global Security to
Regulation S Global Security........ 62
(ii) Regulation S Global Security to
Restricted Global Security.......... 63
(iii) Restricted Non-Global Security
to Restricted Global Security or
Regulation S Global Security........ 64
(iv) Regulation S Non-Global Security
to Restricted Global Security or
Regulation S Global Security........ 64
(v) Non-Global Security to Non-Global
Security............................ 65
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Note: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
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(vi) Exchanges between Global Security
and Non-Global Security...................... 65
(vii) Regulation S Global Security to
be Held Through Euroclear or
Cedel during Restricted Period............... 66
(c) Securities Act Legends............................ 66
SECTION 307. Mutilated, Destroyed, Lost and
Stolen Securities........................................ 67
SECTION 308. Payment of Interest; Interest
Rights Preserved......................................... 69
SECTION 309. Persons Deemed Owners...................................... 70
SECTION 310. Cancellation............................................... 70
SECTION 311. Computation of Interest.................................... 71
ARTICLE FOUR
Satisfaction and Discharge
SECTION 401. Satisfaction and Discharge of Indenture.................... 71
SECTION 402. Application of Trust Money................................. 73
ARTICLE FIVE
Remedies
SECTION 501. Events of Default.......................................... 73
SECTION 502. Acceleration of Maturity; Rescission
and Annulment............................................ 76
SECTION 503. Collection of Indebtedness and Suits
for Enforcement by Trustee............................... 77
SECTION 504. Trustee May File Proofs of Claim........................... 78
SECTION 505. Trustee May Enforce Claims
Without Possession of Securities......................... 78
SECTION 506. Application of Money Collected............................. 79
SECTION 507. Limitation on Suits........................................ 79
SECTION 508. Unconditional Right of Holders to
Receive Principal, Premium and
Interest................................................. 80
SECTION 509. Restoration of Rights and Remedies......................... 80
SECTION 510. Rights and Remedies Cumulative............................. 80
SECTION 511. Delay or Omission Not Waiver............................... 81
SECTION 512. Control by Holders......................................... 81
SECTION 513. Waiver of Past Defaults.................................... 81
SECTION 514. Undertaking for Costs...................................... 82
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Note: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
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SECTION 515. Waiver of Stay, Usury or Extension Laws.................... 82
ARTICLE SIX
The Trustee
SECTION 601. Certain Duties and Responsibilities........................ 83
SECTION 602. Notice of Defaults......................................... 83
SECTION 603. Certain Rights of Trustee.................................. 83
SECTION 604. Not Responsible for Recitals
or Issuance of Securities................................ 85
SECTION 605. May Hold Securities........................................ 85
SECTION 606. Money Held in Trust........................................ 85
SECTION 607. Compensation and Reimbursement............................. 86
SECTION 608. Disqualification; Conflicting Interests.................... 86
SECTION 609. Corporate Trustee Required; Eligibility.................... 86
SECTION 610. Resignation and Removal;
Appointment of Successor................................. 87
SECTION 611. Acceptance of Appointment by Successor..................... 88
SECTION 612. Merger, Conversion, Consolidation
or Succession to Business................................ 89
SECTION 613. Preferential Collection
of Claims Against Company................................ 89
SECTION 614. Appointment of Authenticating Agent........................ 89
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company
SECTION 701. Company to Furnish Trustee
Names and Addresses of Holders........................... 91
SECTION 702. Preservation of Information;
Communications to Holders................................ 92
SECTION 703. Reports by Trustee......................................... 92
SECTION 704. Reports by Company and Guarantors.......................... 93
SECTION 705. Officers' Certificate with Respect
to Change in Interest Rates.............................. 93
ARTICLE EIGHT
Merger, Consolidation, Etc.
SECTION 801. Mergers, Consolidations and Certain
Transfers, Leases and Acquisitions
of Assets................................................ 93
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Note: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
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SECTION 802. Successor Substituted..................................... 96
ARTICLE NINE
Supplemental Indentures
SECTION 901. Supplemental Indentures
Without Consent of Holders.............................. 96
SECTION 902. Supplemental Indentures
with Consent of Holders................................. 97
SECTION 903. Execution of Supplemental Indentures...................... 98
SECTION 904. Effect of Supplemental Indentures......................... 99
SECTION 905. Conformity with Trust Indenture Act....................... 99
SECTION 906. Reference in Securities
to Supplemental Indentures.............................. 99
ARTICLE TEN
Covenants
SECTION 1001. Payment of Principal, Premium and Interest................ 99
SECTION 1002. Maintenance of Office or Agency...........................100
SECTION 1003. Money for Security Payments
to Be Held in Trust.....................................100
SECTION 1004. Existence.................................................102
SECTION 1005. Maintenance of Properties.................................102
SECTION 1006. Payment of Taxes and Other Claims.........................102
SECTION 1007. Maintenance of Insurance..................................103
SECTION 1008. Limitation on Consolidated Debt...........................103
SECTION 1009. Limitation on Layered and Junior Debt.....................105
SECTION 1010. Limitation on Restricted Payments.........................106
SECTION 1011. Limitations Concerning Distributions by
Subsidiaries, Etc.......................................108
SECTION 1012. Limitation on Liens.......................................109
SECTION 1013. Limitation on Transactions with
Affiliates and Related Persons..........................110
SECTION 1014. Limitation on Certain Asset Dispositions..................111
SECTION 1015. Change of Control.........................................114
SECTION 1016. Provision of Financial Information........................116
SECTION 1017. Resale of Acquired Securities.............................117
SECTION 1018. Unrestricted Subsidiaries.................................117
SECTION 1019. Limitation on Sale of
Capital Stock of Subsidiaries...........................119
SECTION 1020. Restriction on Business and Incurrence of
Debt by Allied Finance..................................120
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Note: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
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SECTION 1021. Statement by Officers as to
Default; Compliance Certificates..........................120
SECTION 1022. Waiver of Certain Covenants.................................120
ARTICLE ELEVEN
Redemption of Securities
SECTION 1101. Collateral Agreement; Special Mandatory
Redemption................................................121
SECTION 1102. Redemption at the Election of
the Company...............................................122
SECTION 1103. Applicability of Article....................................122
SECTION 1104. Election to Redeem; Notice to Trustee.......................122
SECTION 1105. Selection by Trustee of Securities
to Be Redeemed............................................123
SECTION 1106. Notice of Redemption........................................123
SECTION 1107. Deposit of Redemption Price;
Liquidation of Collateral Account
and Draw on Credit Suisse
Letter of Credit..........................................124
SECTION 1108. Securities Payable on Redemption Date.......................125
SECTION 1109. Securities Redeemed in Part.................................126
ARTICLE TWELVE
Defeasance and Covenant Defeasance
SECTION 1201. Company's Option to Effect Defeasance
or Covenant Defeasance....................................126
SECTION 1202. Defeasance and Discharge....................................126
SECTION 1203. Covenant Defeasance.........................................127
SECTION 1204. Conditions to Defeasance or
Covenant Defeasance.......................................127
SECTION 1205. Deposited Money and U.S. Government
Obligations to be Held in Trust;
Other Miscellaneous Provisions............................130
SECTION 1206. Reinstatement...............................................131
ARTICLE THIRTEEN
Senior Subordinated Guarantee
SECTION 1301. Senior Subordinated Guarantee...............................131
SECTION 1302. Execution and Delivery of Senior
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Note: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
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Subordinated Guarantees...................................135
SECTION 1303. Subsidiary Guarantors May Consolidate,
Etc., on Certain Terms....................................136
SECTION 1304. Release of Guarantors.......................................136
SECTION 1305. Additional Guarantors.......................................137
ARTICLE FOURTEEN
Subordination of Securities
and Senior Subordinated Guarantees
SECTION 1401. Securities Subordinate to Senior Debt.......................138
SECTION 1402. Payment Over of Proceeds Upon
Dissolution, Etc..........................................138
SECTION 1403. No Payment When Senior Debt in Default......................140
SECTION 1404. Certain Payments Permitted..................................143
SECTION 1405. Subrogation to Rights of Holders of
Senior Debt...............................................143
SECTION 1406. Provisions Solely to Define Relative
Rights....................................................144
SECTION 1407. Trustee to Effectuate Subordination.........................145
SECTION 1408. No Waiver of Subordination Provisions.......................145
SECTION 1409. Notice to Trustee...........................................145
SECTION 1410. Reliance on Judicial Order or Certificate
of Liquidating Agent......................................146
SECTION 1411. Trustee Not Fiduciary for Holders of
Senior Debt...............................................147
SECTION 1412. Rights of Trustee as Holder of Senior
Debt; Preservation of Trustee's
Rights....................................................147
SECTION 1413. Article Applicable to Paying Agents.........................147
SECTION 1414. Defeasance of this Article Fourteen.........................147
ARTICLE FIFTEEN
Jurisdiction and Consent to Service of Process
SECTION 1501. Jurisdiction and Consent to Service of
Process...................................................148
SCHEDULE I -- List of Subsidiary Guarantors
ANNEX A -- Form of Regulation S Certificate
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Note: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
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ANNEX B -- Form of Restricted Securities Certificate
ANNEX C -- Form of Unrestricted Securities Certificate
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Note: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
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INDENTURE, dated as of December 1, 1996, among ALLIED WASTE NORTH AMERICA, INC.,
a corporation duly organized and existing under the laws of the State of
Delaware (herein called the "Company"), having its principal office at 0000 X.
Xxxxxxxxx Xxxx, Xxxxx 000, Xxxxxxxxxx, XX 00000, each of the GUARANTORS (as
hereinafter defined) Allied Waste Finance (Canada), Ltd., as future Guarantor,
and FIRST BANK NATIONAL ASSOCIATION, a national banking association, as Trustee
(herein called the "Trustee").
RECITALS OF THE COMPANY AND THE GUARANTORS
The Company has duly authorized the creation of an issue of
$525,000,000 aggregate principal amount of its 10 1/4% Senior Subordinated Notes
due 2006 (herein called the "Securities") of substantially the tenor and amount
hereinafter set forth, and to provide therefor the Company has duly authorized
the execution and delivery of this Indenture. The Securities may consist of
either or both of Original Securities or Exchange Securities, each as defined
herein. The Original Securities and the Exchange Securities shall rank pari
passu with one another.
Allied Parent owns beneficially and of record 100% of the Capital
Stock of the Company and Allied Finance; 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 Parent,
Allied Finance, the Company and the Subsidiary Guarantors are members of the
same consolidated group of companies and are engaged in related businesses and
the Guarantors will derive direct and indirect economic benefit from the
issuance of the Securities. Accordingly, each of the Guarantors has duly
authorized the execution and delivery of this Indenture to provide for its
Senior Subordinated Guarantees with respect to the Securities as set forth in
this Indenture.
All things necessary (i) to make the Securities, when executed by
the Company and authenticated and delivered hereunder and duly issued by the
Company, the valid obligations of the Company, (ii) to make the Senior
Subordinated Guarantees of each of the Guarantors, when executed by the
respective Guarantors and endorsed on the Securities executed, authenticated and
delivered hereunder, the valid obligations of the respective Guarantors, and
(iii) to make this Indenture a valid agreement of the Company and each of the
Guarantors, all in accordance with their respective terms, have been done.
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NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually agreed, for the equal and
proportionate benefit of all Holders of the Securities, as follows:
ARTICLE ONE
Definitions and Other Provisions
of General Application
SECTION 101. Definitions
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles, and, except as otherwise herein expressly provided, the term
"generally accepted accounting principles" with respect to any computation
required or permitted hereunder shall mean such accounting principles as
are generally accepted at the date of such computation;
(4) all references in this Indenture, the Securities and the Senior
Subordinated Guarantees to interest in respect of any Security shall be
deemed to include all Special Interest, if any, in respect of such
Security, unless the context otherwise requires, and express mention of
the payment of Special Interest in any provision hereof or thereof shall
not be construed as excluding reference to Special Interest in those
provisions hereof or thereof where such express mention is not made; all
references in this Indenture, the Securities and the Senior Subordinated
Guarantees to principal in respect of any Security shall be deemed to
include any Redemption Price or Purchase Price payable in respect of such
Security pursuant to any
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redemption or Offer to Purchase hereunder (and all such references to the
Stated Maturity of the principal in respect of any Security shall be
deemed to include the Redemption Date with respect to any such Redemption
Price and the Purchase Date with respect to any such Purchase Price), and
express mention of the payment of any Redemption Price or Purchase Price
in any provision hereof or thereof shall not be construed as excluding
reference to any Redemption Price or Purchase Price in those provisions
hereof or thereof where such express reference is not made);
(5) unless the context otherwise requires, any reference to
"Article", "Section" or "Annex" refers to an Article or Section of or
Annex to this Indenture; and
(6) 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.
"Acquisition" has the meaning specified in the definition of Stock
Purchase Agreement.
"Acquisition Closing" means the date of consummation of the
Acquisition pursuant to the Stock Purchase Agreement.
"Act", when used with respect to any Holder, has the meaning
specified in Section 104.
"Affiliate" of any Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such Person. For the 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 Member" means any member of, or participant in, the
Depositary.
"Allied Canada" means Allied Waste Holdings (Canada) Ltd., a
Canadian corporation and a Subsidiary of the Company.
"Allied Canada Debentures" means the Zero Coupon Junior Subordinated
Debenture of Allied Canada and the 7%
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Junior Subordinated Debenture of Allied Canada to be issued to Xxxxxxx in
connection with the Acquisition and to be subsequently transferred by Xxxxxxx to
Allied Finance in exchange for the Allied Finance Debentures.
"Allied Finance" means Allied Waste Finance (Canada) Ltd., a
Canadian corporation and a Subsidiary of Allied Parent.
"Allied Finance Debentures" means the Zero Coupon Junior
Subordinated Debenture of Allied Finance and the 7% Junior Subordinated
Debenture of Allied Finance to be issued to Xxxxxxx in exchange for the Allied
Canada Debentures issued to Xxxxxxx in connection with the Acquisition.
"Allied Finance Guarantee" has the meaning specified in Section
1305; provided that any reference herein to the "Allied Finance Guarantee" shall
be deemed to refer to the Allied Fiance Guarantee after it has been issued by
Allied Finance upon the closing of the Acquisition pursuant to the provisions of
Section 1305.
"Allied Insurance" means Allied Insurance and Indemnity Corporation,
a Vermont corporation and a Subsidiary of the Company, engaged solely in the
business of issuing insurance policies with respect to the closure and
post-closure financial assurance obligations of the Company and its Restricted
Subsidiaries.
"Allied Parent" means Allied Waste Industries, Inc., a Delaware
corporation and the owner of all of the Capital Stock of the Company.
"Applicable Procedures" means, with respect to any transfer or
transaction involving a Global Security or beneficial interest therein, the
rules and procedures of the Depositary for such Security, Euroclear and Cedel,
in each case to the extent applicable to such transaction and as in effect at
the time of such transfer or transaction.
"Asset Disposition" by any Person that is the Company or any
Restricted Subsidiary means any transfer, conveyance, sale, lease or other
disposition by such Person or any of its Restricted Subsidiaries (including a
consolidation or merger or other sale of any Restricted Subsidiary with, into or
to another Person in a transaction in which such Subsidiary ceases to be a
Restricted Subsidiary of such Person) of (i) shares of Capital Stock (other than
directors' qualifying shares) or other ownership interests of a Restricted
Subsidiary or (ii) the property or assets of such Person or any Restricted
Subsidiary
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representing a division or line of business or (iii) other assets or rights of
such Person or any Restricted Subsidiary outside of the ordinary course of
business, but excluding in each case in Clauses (i), (ii) and (iii), (x) a
disposition by a Subsidiary of such Person to such Person or a Wholly Owned
Restricted Subsidiary or by such Person to a Wholly Owned Restricted Subsidiary,
(y) the disposition of all or substantially all of the assets of the Company in
a manner permitted pursuant to the provisions of Article Eight and (z) any
disposition that constitutes a Restricted Payment or Permitted Investment that
is permitted pursuant to Section 1010.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 614 to act on behalf of the Trustee to authenticate
Securities.
"Bank Agreement" means the Credit Agreement to be entered into by
the Company pursuant to the Commitment Letter, dated September 17, 1996, as
amended by the Amendment to Commitment Letter dated as of November 25, 1996,
from Xxxxxxx Xxxxx Credit Partners L.P., Citibank, N.A., Citicorp Securities,
Inc., Citicorp USA, Inc. and Credit Suisse to the Company, or any bank credit
agreement that replaces, amends, supplements, restates or renews such Credit
Agreement.
"Bank Facility Capacity Increase" means a replacement, amendment,
supplement, restatement, renewal or other modification of the Bank Agreement
that increases the aggregate amount of borrowings permitted under the Bank
Agreement.
"Bank Facility Limit" means (x) $1,275 million less principal
payments of term loans and permanent commitment reductions with respect to
revolving loans under the Bank Agreement since the date of this Indenture or (y)
following a Bank Facility Capacity Increase, the Increased Bank Facility Limit,
less principal payment of term loans and permanent commitment reductions with
respect to revolving loans under the Bank Agreement, as so replaced, amended,
supplemented, restated, renewed or modified, since the date of such Bank
Facility Capacity Increase.
"Base Interest" means the interest that would otherwise accrue on
the Securities under the terms thereof and the Indenture, without giving effect
to any Special Interest.
"Board of Directors" means, with respect to the Company or any
Guarantor, either the board of directors of
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the Company or such Guarantor, as the case may be, or any duly authorized
committee of that board. Except as otherwise provided or unless the context
otherwise requires, each reference herein to the "Board of Directors" shall mean
the Board of Directors of the Company.
"Board Resolution" of the Company or any Guarantor means a copy of a
resolution certified by the Secretary or an Assistant Secretary of the Company
or such Guarantor, as the case may be, to have been duly adopted by its Board of
Directors and to be in full force and effect on the date of such certification,
and delivered to the Trustee. Except as otherwise expressly provided or unless
the context otherwise requires, each reference herein to a "Board Resolution"
shall mean a Board Resolution of the Company.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in The City of New York
are authorized or obligated by law or executive order to close.
"Capital Lease Obligation" of any Person means the obligation to pay
rent or other payment amounts under a lease of (or other arrangements conveying
the right to use) real or personal property of such Person which is required to
be classified and accounted for as a capital lease or a liability on a balance
sheet of such Person in accordance with generally accepted accounting
principles. The stated maturity of such obligation shall be the date of the last
payment of rent or any other amount due under such lease prior to the first date
upon which such lease may be terminated by the lessee without payment of a
penalty. The principal amount of such obligation shall be the capitalized amount
thereof that would appear on a balance sheet of such Person in accordance with
generally accepted accounting principles.
"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.
"Cedel" means Cedel, S.A. (or any successor securities clearing
agency).
"Collateral" has the meaning specified in Section 1101.
"Collateral Account" has the meaning specified in Section 1101.
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21
"Collateral Agreement" means the Senior Subordinated Note Collateral
Agreement, dated as of December 5, 1996 between the Company and First Bank
National Association, as Trustee.
"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 instrument such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
"Common Stock" of any Person means Capital Stock of such Person that
does not rank prior, as to the payment of dividends or as to the distribution of
assets upon any voluntary or involuntary liquidation, dissolution or winding up
of such Person, to any other shares of Capital Stock of such Person.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Order" or "Company Request" means a written request or
order signed in the name of the Company by its Chairman of the Board, its Vice
Chairman of the Board, its President or a Vice President, and by its Treasurer,
an Assistant Treasurer, its Secretary or an Assistant Secretary, and delivered
to the Trustee.
"Comparable Treasury Issue" means, on any date, the United States
Treasury security selected by an Independent Investment Banker as having a
maturity comparable to the remaining term of the Securities on such date that
would be utilized, at the time of selection and in accordance with customary
financial practice, in pricing new issues of corporate debt securities of a
maturity comparable to the remaining term of the Securities on such date.
"Independent Investment Banker" means Xxxxxxx, Xxxxx & Co. or, if such firm is
unwilling or unable to select the Comparable Treasury Issue, an independent
investment banking institution of national standing appointed by the Trustee.
"Comparable Treasury Price" means, with respect to any Redemption
Date, (i) the average of the bid and asked prices for the Comparable Treasury
Issue (expressed in each case as a percentage of its principal amount) on the
third Business Day preceding such Redemption Date, as set forth in
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22
the daily statistical release (or any successor release) published by the
Federal Reserve Bank of New York and designated "Composite 3:30 p.m. Quotations
for U.S. Government Securities" or (ii) if such release (or any successor
release) is not published or does not contain such prices on such Business Day,
(A) the average of the Reference Treasury Dealer Quotations for such Redemption
Date, after excluding the highest and lowest such Reference Treasury Dealer
Quotations, or (B) if the Trustee obtains fewer than four such Reference
Treasury Dealer Quotations, the average of all such Quotations. "Reference
Treasury Dealer Quotations" means, with respect to each Reference Treasury
Dealer and any Redemption Date, the average, as determined by the Trustee, of
the bid and asked prices for the Comparable Treasury Issue (expressed in each
case as a percentage of its principal amount) quoted in writing to the Trustee
by such Reference Treasury Dealer at 5:00 p.m. on the third Business Day
preceding such Redemption Date.
"Consolidated EBITDA" of any Person means for any period the
Consolidated Net Income for such period increased by the sum of (i) Consolidated
Interest Expense of such Person for such period, plus (ii) Consolidated Income
Tax Expense of such Person for such period, plus (iii) the consolidated
depreciation and amortization expense deducted in determining the Consolidated
Net Income of such Person for such period; provided, however, that the
Consolidated Interest Expense, Consolidated Income Tax Expense and consolidated
depreciation and amortization expense of a Consolidated Subsidiary of such
Person shall be added to the Consolidated Net Income pursuant to the foregoing
only (x) to the extent and in the same proportion that the Consolidated Net
Income of such Consolidated Subsidiary was included in calculating the
Consolidated Net Income of such Person and (y) only to the extent that the
amount specified in Clause (x) is not subject to restrictions that prevent the
payment of dividends or the making of distributions to such Person.
"Consolidated EBITDA Coverage Ratio" of any Person means for any
period the ratio of (i) Consolidated EBITDA of such Person for such period to
(ii) the sum of (A) Consolidated Interest Expense of such Person for such period
plus (B) the annual interest expense (including the amortization of debt
discount) with respect to any Debt incurred or proposed to be Incurred by such
Person or its Consolidated Subsidiaries since the beginning of such period to
the extent not included in Clause (ii)(A), minus (C) Consolidated Interest
Expense of such Person with respect to any Debt that is no longer outstanding or
that will no longer be outstanding as a result of the transaction with respect
to
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23
which the Consolidated EBITDA Coverage Ratio is being calculated, to the extent
included within Clause (ii)(A); provided, however, that in making such
computation, the Consolidated Interest Expense of such Person attributable to
interest on any Debt bearing a floating interest rate shall be computed on a pro
forma basis as if the rate in effect on the date of computation had been the
applicable rate for the entire period; and provided further, that, in the event
such Person or any of its Consolidated Subsidiaries has made acquisitions or
dispositions of assets not in the ordinary course of business (including the
acquisition by the Company of the Subsidiaries of Allied Parent, the acquisition
by the Company of the Subsidiaries of Xxxxxxx pursuant to the Acquisition and
any other acquisitions of any other Persons by merger, consolidation or purchase
of Capital Stock) during or after such period, the computation of the
Consolidated EBITDA Coverage Ratio (and for the purpose of such computation, the
calculation of Consolidated Net Income, Consolidated Interest Expense,
Consolidated Income Tax Expense and Consolidated EBITDA) shall be made on a pro
forma basis as if the acquisitions or dispositions had taken place on the first
day of such period.
"Consolidated Income Tax Expense" of any Person means for any period
the consolidated provision for income taxes of such Person and its Consolidated
Subsidiaries for such period determined in accordance with generally accepted
accounting principles.
"Consolidated Interest Expense" of any Person means for any period
the consolidated interest expense included in a consolidated income statement
(net of interest income) of such Person and its Consolidated Subsidiaries for
such period determined in accordance with generally accepted accounting
principles, including without limitation or duplication (or, to the extent not
so included, with the addition of), (i) the portion of any rental obligation in
respect of any Capital Lease Obligation allocable to interest expense in
accordance with generally accepted accounting principles; (ii) the amortization
of Debt discounts; (iii) any payments or fees with respect to letters of credit,
bankers' acceptances or similar facilities; (iv) fees with respect to interest
rate swap or similar agreements or foreign currency hedge, exchange or similar
agreements; (v) any Preferred Stock dividends declared and paid or payable in
cash; and (vi) any interest capitalized in accordance with generally accepted
accounting principles; provided, however, that Consolidated Interest Expense
shall not include interest expense or amortization of Debt discounts relating to
the Allied Canada Debentures.
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24
"Consolidated Net Income" of any Person means for any period the
consolidated net income (or loss) of such Person and its Consolidated
Subsidiaries for such period determined in accordance with generally accepted
accounting principles; provided that there shall be excluded therefrom (i) the
net income (or loss) of any Person acquired by such Person or a Subsidiary of
such Person in a pooling-of-interests transaction for any period prior to the
date of such transaction (subject to the final proviso of the definition of
Consolidated EBITDA Coverage Ratio when Consolidated Net Income is being
computed for purposes of calculating the Consolidated EBITDA Coverage Ratio),
(ii) the net income (but not net loss) of any Consolidated Subsidiary of such
Person that is subject to restrictions that prevent the payment of dividends or
the making of distributions to such Person to the extent of such restrictions,
(iii) the net income (or loss) of any Person that is not a Consolidated
Subsidiary of such Person except to the extent of the amount of dividends or
other distributions actually paid to such Person by such other Person during
such period, (iv) gains or losses on asset dispositions by such Person or its
Consolidated Subsidiaries, (v) any net income (loss) of a Consolidated
Subsidiary that is attributable to a minority interest in such Consolidated
Subsidiary, (vi) all extraordinary gains and extraordinary losses that involve a
present or future cash payment and (vii) the tax effect of any of the items
described in Clauses (i) through (vi) above.
"Consolidated Net Worth" of any Person at any date means the
consolidated stockholders' equity of such Person and its Restricted Subsidiaries
at such date, as determined on a consolidated basis in accordance with generally
accepted accounting principles, less amounts included therein which are
attributable to Redeemable Interests of such Person; provided, however, that,
with respect to the Company and its Restricted Subsidiaries, adjustments
following the date of this Indenture to the accounting books and records of the
Company and its Restricted Subsidiaries in accordance with Accounting Principles
Board Opinions Nos. 16 and 17 (or successor opinions thereto) or otherwise
resulting from the acquisition of control of the Company by another Person shall
not be given effect to.
"Consolidated Subsidiaries" of any Person means all other Persons
that would be accounted for as consolidated Persons in such Person's financial
statements in accordance with generally accepted accounting principles as of
such date or for such period, as the case may be; provided that, for any
particular period (or portion thereof) during which any Subsidiary of such
Person was an
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25
Unrestricted Subsidiary, "Consolidated Subsidiaries" shall exclude such
Subsidiary for such period (or portion thereof) during which it was an
Unrestricted Subsidiary.
"Consolidated Total Assets" of any Person at any date means the
consolidated total assets of such Person and its Restricted Subsidiaries at such
date, as determined on a consolidated basis in accordance with generally
accepted accounting principles.
"Corporate Trust Office" means the office of the Trustee maintained
in New York, New York, at which at any particular time its corporate trust
business shall be administered.
"corporation" means a corporation, association, company, joint-stock
company or business trust.
"Credit Suisse Letter of Credit" means the irrevocable letter of
credit, dated December 5, 1996, issued by Credit Suisse in favor of the Trustee
in the amount of $27 million under the Credit Agreement, dated as of July 30,
1996, among Allied Parent, the existing credit parties named therein, Credit
Suisse and the bank lenders party thereto.
"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.
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26
"Defaulted Interest" has the meaning specified in Section 308.
"Depositary" means, with respect to any Securities, a clearing
agency that is registered as such under the Exchange Act and is designated by
the Company to act as Depositary for such Securities (or any successor
securities clearing agency so registered).
"DTC" means The Depository Trust Company, a New York corporation.
"Euroclear" means the Euroclear Clearance System
(or any successor securities clearing agency).
"Event of Default" has the meaning specified in Section 501.
"Excepted Disposition" means a transfer, conveyance, sale, lease or
other disposition by the Company or any Restricted Subsidiary of (i) the Capital
Stock or assets of Specialized Waste or (ii) any other asset of the Company or
any Restricted Subsidiary the fair market value of which does not exceed $5
million by itself or $10 million in aggregate with all other assets disposed of
in Excepted Dispositions under this Clause (ii) in any fiscal year.
"Exchange Act" means the Securities Exchange Act of 1934 (or any
successor statute), as it may be amended from time to time.
"Exchange and Registration Rights Agreement" means the Exchange and
Registration Rights Agreement, dated as of December 5, 1996, among the Company,
Allied Parent, Xxxxxxx, Xxxxx & Co., Citicorp Securities, Inc. and CS First
Boston Corporation, as representatives of the Initial Purchasers, and the
Holders from time to time as provided therein, as such agreement may be amended
from time to time.
"Exchange Offer" means an offer made by the Company pursuant to the
Exchange and Registration Rights Agreement under an effective registration
statement under the Securities Act to exchange securities substantially
identical to Outstanding Securities (except for the differences provided for
herein) for Outstanding Securities.
"Exchange Registration Statement" means a registration statement of
the Company under the Securities Act registering Exchange Securities for
distribution pursuant to the Exchange Offer.
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27
"Exchange Securities" means the Securities issued pursuant to the
Exchange Offer and their Successor Securities.
"Expiration Date" has the meaning specified in Section 104.
"Global Security" means a Security that is registered in the
Security Register in the name of a Depositary or a nominee thereof.
"Guarantors" means Allied Parent, the Subsidiary Guarantors and,
upon issuance of the Allied Finance Guarantee, Allied Finance.
"Guaranty" by any Person means any obligation, contingent or
otherwise, of such Person guaranteeing any Debt, or dividends or distributions
on any equity security, of any other Person (the "primary obligor") in any
manner, whether directly or indirectly, and including, without limitation, any
obligation of such Person (i) to purchase or pay (or advance or supply funds for
the purchase or payment of) such Debt or to purchase (or to advance or supply
funds for the purchase of) any security for the payment of such Debt, (ii) to
purchase property, securities or services for the purpose of assuring the holder
of such Debt of the payment of such Debt or (iii) to maintain working capital,
equity capital or other financial statement condition or liquidity of the
primary obligor so as to enable the primary obligor to pay such Debt (and
"Guaranteed", "Guaranteeing" and "Guarantor" shall have meanings correlative to
the foregoing); provided, however, that the Guaranty by any Person shall not
include endorsements by such Person for collection or deposit, in either case,
in the ordinary course of business.
"Holder" means a Person in whose name a Security is registered in
the Security Register.
"IAI Securities" means the Securities sold by the Initial Purchasers
in the initial offering contemplated by the Note Purchase Agreement in reliance
on an exemption from the registration requirements of the Securities Act other
than Rule 144A and Regulation S.
"Increased Bank Facility Limit" means, in connection with any Bank
Facility Capacity Increase, the amount that is the least of (i) the aggregate
amount of Debt permitted to be outstanding under the terms of the Bank
Agreement, as amended pursuant to such Bank Facility Capacity Increase, (ii) the
amount equal to three times
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Consolidated EBITDA of the Company for the most recently ended four fiscal
quarters period for which financial statements are available immediately
preceding the date of such Bank Facility Capacity Increase and (iii) the amount
equal to the sum of (x) the maximum amount of Debt that the Company would be
permitted to Incur on such date under the Consolidated EBITDA Coverage Ratio
test set forth in the first paragraph of Section 1008 on the terms contemplated
by the Bank Agreement, as amended pursuant to such Bank Facility Capacity
Increase, and (y) the aggregate amount of Debt outstanding under the Bank
Agreement on such date.
"Incur" means, with respect to any Debt of any Person, to create,
issue, incur (by conversion, exchange or otherwise), assume, Guarantee or
otherwise become liable in respect of such Debt, or the taking of any other
action which would cause such Debt, in accordance with generally accepted
accounting principles to be recorded on the balance sheet of such Person (and
"Incurrence", "Incurred", "Incurrable" and "Incurring" shall have meanings
correlative to the foregoing), provided that, the Debt of any other Person
becoming a Restricted Subsidiary of such Person will be deemed for this purpose
to have been Incurred by such Person at the time such other Person becomes a
Restricted Subsidiary of such Person; provided, further, that a change in
generally accepted accounting principles that results in an obligation of such
Person that exists at such time becoming Debt shall not be deemed an Incurrence
of such Debt.
"Indenture" means this instrument as originally executed or 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.
"Independent Investment Banker" has the meaning specified in the
definition of "Comparable Treasury Issue."
"Initial Purchasers" means Xxxxxxx, Sachs & Co., Citicorp
Securities, Inc., CS First Boston Corporation and Xxxxxxxx & Co., Inc., as
purchasers of the Securities from the Company pursuant to the Note Purchase
Agreement.
"Intercompany Agreements" means the Management Agreement between
Allied Parent and the Company dated November 15, 1996.
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29
"Interest Payment Date" means the Stated Maturity of an instalment
of interest on the Securities.
"Interest Rate or Currency Protection Agreement" of any Person means
any interest rate protection agreement (including, without limitation, interest
rate swaps, caps, floors, collars, derivative instruments and similar
agreements), and/or other types of interest hedging agreements and any currency
protection agreement (including foreign exchange contracts, currency swap
agreements or other currency hedging arrangements).
"Investment" by any Person in any other Person means (i) any direct
or indirect loan, advance or other extension of credit or capital contribution
to or for the account of such other Person (by means of any transfer of cash or
other property to any Person or any payment for property or services for the
account or use of any Person, or otherwise), (ii) any direct or indirect
purchase or other acquisition of any Capital Stock, bond, note, debenture or
other debt or equity security or evidence of Debt, or any other ownership
interest, issued by such other Person, whether or not such acquisition is from
such or any other Person, (iii) any direct or indirect payment by such Person on
a Guaranty of any obligation of or for the account of such other Person or any
direct or indirect issuance by such Person of such a Guaranty or (iv) any other
investment of cash or other property by such Person in or for the account of
such other Person.
"Xxxxxxx" means Xxxxxxx Inc., a corporation organized under the laws
of Canada.
"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).
"Maturity", when used with respect to any Security, means the date
on which the principal of such Security becomes due and payable as therein or
herein provided, whether at the Stated Maturity or by declaration of
acceleration, call for redemption or otherwise.
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"Med Track", means Xxxxxxx Med Track Medical Services, Inc., a
British Columbia corporation. Upon closing the Acquisition, the Company will own
55% of the common stock of Med Track.
"Net Available Proceeds" from any Asset Disposition by any Person
that is the Company or any Restricted Subsidiary means cash or readily
marketable cash equivalents received (including by way of sale or discounting of
a note, installment receivable or other receivable, but excluding any other
consideration received in the form of assumption by the acquiree of Debt or
other obligations relating to such properties or assets or received in any other
noncash form) therefrom by such Person, net of (i) all legal, title and
recording tax expenses, commissions and other fees and expenses Incurred and all
federal, state, provincial, foreign and local taxes required to be accrued as a
liability as a consequence of such Asset Disposition, (ii) all payments made by
such Person or its Restricted Subsidiaries on any Debt that is secured by such
assets in accordance with the terms of any Lien upon or with respect to such
assets or that must, by the terms of such Lien, or in order to obtain a
necessary consent to such Asset Disposition, or by applicable law, be repaid out
of the proceeds from such Asset Disposition, (iii) amounts provided as a reserve
by such Person or its Restricted Subsidiaries, in accordance with generally
accepted accounting principles, against liabilities under any indemnification
obligations to the buyer in such Asset Disposition (except to the extent and at
the time any such amounts are released from any such reserve, such amounts shall
constitute Net Available Proceeds) and (iv) all distributions and other payments
made to minority interest holders in Restricted Subsidiaries of such Person or
joint ventures as a result of such Asset Disposition.
"Net Offering Proceeds" of any Public Offering of securities by any
Person means the aggregate proceeds consisting of cash and cash equivalents
received by such Person from such Public Offering, net of all underwriting and
placement discounts, commissions and similar costs.
"Note Purchase Agreement" means the Purchase Agreement, dated as of
November 25, 1996, between the Company and the Initial Purchasers, as such
agreement may be amended from time to time.
"Notice of Default" means a written notice of the kind specified in
Section 501(4).
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31
"Offer Document" has the meaning specified in the definition of
"Offer to Purchase".
"Offer Expiration Date" has the meaning specified in the definition
of "Offer to Purchase".
"Offer to Purchase" means an offer, set forth in a writing (the
"Offer Document") sent by the Company by first class mail, postage prepaid, to
each Holder at his address appearing in the Security Register on the date of the
Offer Document, to purchase up to the principal amount of Securities specified
in such Offer Document at the purchase price specified in such Offer Document
(as determined pursuant to this Indenture). Unless otherwise required by
applicable law, the Offer Document shall specify an expiration date (the "Offer
Expiration Date") of the Offer to Purchase which shall be, subject to any
contrary requirements of applicable law, not less than 30 days or more than 60
days after the date of such Offer Document and a settlement date (the "Purchase
Date") for the purchase of Securities within five Business Days after the Offer
Expiration Date. The Company shall notify the Trustee in writing at least 15
Business Days (or such shorter period as is acceptable to the Trustee) prior to
the mailing of the Offer Document of the Company's obligation to make an Offer
to Purchase, and the Offer Document shall be mailed by the Company or, at the
Company's request, by the Trustee in the name and at the expense of the Company.
The Offer Document shall contain information concerning the business of the
Company and its Subsidiaries which the Company in good faith believes will
enable such Holders to make an informed decision with respect to the Offer to
Purchase (which at a minimum will include (i) the most recent annual and
quarterly financial statements and "Management's Discussion and Analysis of
Financial Condition and Results of Operations" required to be filed with the
Trustee pursuant to Section 1016 (which requirements may be satisfied by
delivery of such documents together with the Offer Document), (ii) a description
of material developments in the Company's business subsequent to the date of the
latest of such financial statements referred to in Clause (i) (including a
description of the events requiring the Company to make the Offer to Purchase),
(iii) if applicable, appropriate pro forma financial information concerning the
Offer to Purchase and the events requiring the Company to make the Offer to
Purchase and (iv) any other information required by applicable law to be
included therein. The Offer Document shall contain all instructions and
materials necessary to enable such Holder to tender Securities pursuant to the
Offer to Purchase. The Offer Document shall also state:
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32
(1) the Section of this Indenture pursuant to which the Offer to
Purchase is being made;
(2) the Offer Expiration Date and the Purchase Date;
(3) the aggregate principal amount of the Outstanding Securities
offered to be purchased by the Company pursuant to the Offer to Purchase
(including, if less than 100%, the manner by which such amount has been
determined as required by this Indenture) (the "Purchase Amount");
(4) the purchase price to be paid by the Company for each $1,000
aggregate principal amount of Securities accepted for payment (as
specified pursuant to this Indenture);
(5) that the Holder may tender all or any portion of the Securities
registered in the name of such Holder and that any portion of a Security
tendered must be tendered in an integral multiple of $1,000 principal
amount;
(6) the place or places where Securities are to be surrendered for
tender pursuant to the Offer to Purchase;
(7) that interest on any Security not tendered or tendered but not
purchased by the Company pursuant to the Offer to Purchase will continue
to accrue;
(8) that on the Purchase Date the purchase price will become due and
payable upon each Security accepted for payment pursuant to the Offer to
Purchase and that interest thereon shall cease to accrue on and after the
Purchase Date;
(9) that each Holder electing to tender a Security pursuant to the
Offer to Purchase will be required to surrender such Security at the place
or places specified in the Offer Document prior to the close of business
on the Offer Expiration Date (such Security being, if the Company or the
Trustee so requires, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Company and the Trustee
duly executed by, the Holder thereof or his attorney duly authorized in
writing and bearing appropriate signature guarantees);
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33
(10) that Holders will be entitled to withdraw all or any portion of
Securities tendered if the Company (or its Paying Agent) receives, not
later than the close of business on the Offer Expiration Date, a telegram,
telex, facsimile transmission or letter setting forth the name of the
Holder, the principal amount of the Security the Holder tendered, the
certificate number of the Security the Holder tendered and a statement
that such Holder is withdrawing all or a portion of his tender;
(11) that (a) if Securities in an aggregate principal amount less than
or equal to the Purchase Amount are duly tendered and not withdrawn
pursuant to the Offer to Purchase, the Company shall purchase all such
Securities and (b) if Securities in an aggregate principal amount in
excess of the Purchase Amount are tendered and not withdrawn pursuant to
the Offer to Purchase, the Company shall purchase Securities having an
aggregate principal amount equal to the Purchase Amount on a pro rata
basis (with such adjustments as may be deemed appropriate so that only
Securities in denominations of $1,000 or integral multiples thereof shall
be purchased); and
(12) that in the case of any Holder whose Security is purchased only
in part, the Company shall execute, and the Trustee shall authenticate and
deliver to the Holder of such Security without service charge, a new
Security or Securities, of any authorized denomination as requested by
such Holder, in an aggregate principal amount equal to and in exchange for
the unpurchased portion of the Security so tendered.
Any Offer to Purchase shall be governed by and effected in accordance with the
Offer Document for such Offer to Purchase.
"Officers' Certificate" of the Company or any Guarantor means a
certificate signed by the Chairman of the Board, a Vice Chairman of the Board,
the President or a Vice President, and by the Treasurer, an Assistant Treasurer,
the Secretary or an Assistant Secretary, of the Company or such Guarantor, as
the case may be, and delivered to the Trustee. One of the officers signing an
Officers' Certificate given pursuant to Section 1021 shall be the principal
executive, financial or accounting officer of the Company. Unless the context
otherwise requires, each reference herein to an "Officers' Certificate" shall
mean an Officers' Certificate of the Company. References herein, or in any
Security or Senior Subordinated Guarantee, to any officer of a Guarantor
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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 of counsel, who may be
counsel for the Company, and who shall be acceptable to the Trustee.
"Original Securities" means all Securities other than Exchange
Securities.
"Outstanding", when used with respect to Securities, means, as of
the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
(ii) Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee or any
Paying Agent (other than the Company 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; provided that, if such Securities are
to be redeemed, notice of such redemption has been duly given pursuant to
this Indenture or provision therefor satisfactory to the Trustee has been
made;
(iii) Securities which have been defeased pursuant to Section 1202;
and
(iv) Securities which have been paid pursuant to Section 307 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, Securities owned
by the Company or any other obligor upon the Securities or any Affiliate of the
Company or of such other obligor shall be disregarded and deemed not to be Out-
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standing, except that, in determining whether the Trustee shall be protected in
relying upon any such request, demand, authorization, direction, notice, consent
or waiver, only Securities which the Trustee knows to be so owned shall be so
disregarded. Securities so owned which have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to such Securities and that
the pledgee is not the Company or any other obligor upon the Securities or any
Affiliate of the Company or of such other obligor.
"Parent Guarantee" means the unconditional guarantee, on a senior
subordinated basis, by Allied Parent of the due and punctual payment of
principal (premium, if any) and interest on the Securities, as provided pursuant
to Article Thirteen.
"pari passu", when used with respect to the ranking of any Debt of
any Person in relation to other Debt of such Person, means that each such Debt
(a) either (i) is not subordinated in right of payment to any other Debt of such
Person or (ii) is subordinate in right of payment to the same Debt of such
Person as is the other Debt and is so subordinate to the same extent and (b) is
not subordinate in right of payment to the other Debt or to any Debt of such
Person as to which the other Debt is not so subordinate.
"Paying Agent" means any Person authorized by the Company to pay the
principal of (and premium, if any) or interest on any Securities on behalf of
the Company.
"Permitted Interest Rate or Currency Protection Agreement" of any
Person means any Interest Rate or Currency Protection Agreement entered into
with one or more financial institutions in the ordinary course of business that
is designed to protect such Person against fluctuations in interest rates or
currency exchange rates with respect to Debt Incurred and which shall have a
notional amount no greater than the payments due with respect to the Debt being
hedged thereby.
"Permitted Investment" means (i) Investments in the Company or any
Person that is, or as a consequence of such Investment becomes, a Wholly Owned
Restricted Subsidiary, (ii) securities either issued directly or fully
guaranteed or insured by the government of the United States of America or any
agency or instrumentality thereof having maturities of not more than one year,
(iii) time deposits and certificates of deposit, demand deposits and banker's
acceptances having maturities of not more than one year from
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the date of deposit, of any domestic commercial bank having capital and surplus
in excess of $500 million and having peer group rating of B or better (or the
equivalent thereof) by Xxxxxxxx BankWatch, Inc. or outstanding long-term debt
rated BBB or better (or the equivalent thereof) by Standard & Poor's Ratings
Group or Baa or better (or the equivalent thereof) by Xxxxx'x Investors Service,
Inc., (iv) demand deposits made in the ordinary course of business and
consistent with the Company's customary cash management policy in any domestic
office of any commercial bank organized under the laws of the United States of
America or any State thereof, (v) insured deposits issued by commercial banks of
the type described in Clause (iv) above, (vi) mutual funds whose investment
guidelines restrict such funds' investments primarily to those satisfying the
provisions of Clauses (i) through (iii) above, (vii) repurchase obligations with
a term of not more than seven days for underlying securities of the types
described in Clauses (ii) and (iii) above entered into with any bank meeting the
qualifications specified in Clause (iii) above, (viii) commercial paper (other
than commercial paper issued by an Affiliate or Related Person) rated A-1 or the
equivalent thereof by Standard & Poor's Ratings Group or P-1 or the equivalent
thereof by Xxxxx'x Investors Service, Inc., and in each case maturing within 360
days, (ix) receivables owing to the Company or a Restricted Subsidiary of the
Company if created or acquired in the ordinary course of business and payable or
dischargeable in accordance with customary trade terms, (x) any Investment
consisting of loans and advances to employees of the Company or any Restricted
Subsidiary for travel, entertainment, relocation or other expenses in the
ordinary course of business, (xi) any Investment consisting of loans and
advances by the Company or any Restricted Subsidiary to its employees, officers
and directors of the Company or Allied Parent, in connection with management
incentive plans not to exceed $5 million at any time outstanding; provided,
however, that to the extent the proceeds thereof are used to purchase Capital
Stock (other than Redeemable Interests) of Allied Parent and Allied Parent uses
the proceeds thereof to acquire Capital Stock (other than Redeemable Interests)
of the Company, such limitation on the amount of such Investments at any time
outstanding shall not apply with respect to such Investments, (xii) any
Investment consisting of a Permitted Interest Rate or Currency Protection
Agreement, (xiii) any Investment acquired by the Company or any of its
Restricted Subsidiaries (A) in exchange for any other Investment or accounts
receivable held by the Company or any such Restricted Subsidiary in connection
with or as a result of a bankruptcy, workout, reorganization or recapitalization
of the issuer of such other Investment or accounts receivable
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or (B) as a result of a foreclosure by the Company or any of its Restricted
Subsidiaries with respect to any secured Investment or other transfer of title
with respect to any secured Investment in default, (xiv) any Investment that
constitutes part of the consideration from an Asset Disposition made pursuant
to, and in compliance with, Section 1014, (xv) Investments the payment for which
consists exclusively of Capital Stock (exclusive of Redeemable Interests) of the
Company and (xvi) other Investments in an aggregate amount of not to exceed $50
million.
"Person" means any individual, corporation, partnership, joint
venture, trust, unincorporated organization or government or any agency or
political subdivision thereof.
"Predecessor Security" of any particular Security means every
Security issued before, and 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 307 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.
"Preferred Stock", as applied to the Capital Stock of any Person,
means Capital Stock of such Person of any class or classes (however designated)
that ranks prior, as to the payment of dividends or as to the distribution of
assets upon any voluntary or involuntary liquidation, dissolution or winding up
of such Person, to shares of Capital Stock of any other class of such Person.
"Primary Treasury Dealer" has the meaning specified in the
definition of "Reference Treasury Dealer."
"Public Offering" means any underwritten public offering of Common
Stock pursuant to a registration statement filed under the Securities Act.
"Purchase Amount" has the meaning specified in the definition of
"Offer to Purchase".
"Purchase Date" has the meaning specified in the definition of
"Offer to Purchase".
"Purchase Price" has the meaning specified in the definition of
"Offer to Purchase".
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"Redeemable Interest" of any Person means any equity security of or
other ownership interest in such Person that by its terms (or by the terms of
any security into which it is convertible or for which it is exchangeable) or
otherwise (including upon the occurrence of an event) matures or is required to
be redeemed (pursuant to any sinking fund obligation or otherwise) or is
convertible into or exchangeable for Debt or is redeemable at the option of the
holder thereof, in whole or in part, at any time prior to the final Stated
Maturity of the Securities.
"Redemption Date", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Reference Treasury Dealer" means each of Xxxxxxx, Sachs & Co.,
Citicorp Securities, Inc. and CS First Boston Corporation and their respective
successors; provided, however, that if any of the foregoing shall cease to be a
primary U.S. Government securities dealer in New York City (a "Primary Treasury
Dealer"), the Company shall substitute therefor another Primary Treasury Dealer.
"Reference Treasury Dealer Quotations" has the meaning specified in
the definition of "Comparable Treasury Price."
"Registered Securities" means the Exchange Securities and all other
Securities sold or otherwise disposed of pursuant to an effective registration
statement under the Securities Act, together with their respective Successor
Securities.
"Registration Default" means the occurrence of any of the following
events: (i) the Company has not filed the Exchange Registration Statement or
Shelf Registration Statement on or before the date on which such registration
statement is required to be filed pursuant to the Exchange and Registration
Rights Agreement, (ii) the Exchange Registration Statement or Shelf Registration
Statement has not become effective or been declared effective by the Commission
on or before the date on which such registration statement is required to become
or be declared effective under the requirements of the Exchange and Registration
Rights Agreement or (iii) the Exchange Offer has not been completed within 45
days after the initial effective date of the Exchange Registration Statement
relating to the Exchange
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Offer (if the Exchange Offer is then required to be made under the Exchange and
Registration Rights Agreement) or (iv) any Exchange Registration Statement or
Shelf Registration Statement required to be filed pursuant the Exchange and
Registration Rights Agreement is filed and declared effective but shall
thereafter either be withdrawn by the Company or shall become subject to an
effective stop order issued pursuant to Section 8(d) of the Securities Act
suspending the effectiveness of such registration statement (except as
specifically permitted herein) without being succeeded immediately by an
additional registration statement filed and declared effective.
"Registration Default Period" means any period during which a
Registration Default has occurred and is continuing.
"Regular Record Date" for the interest payable on any Interest
Payment Date means May 15 and November 15 (whether or not a Business Day), as
the case may be, next preceding such Interest Payment Date.
"Regulation S" means Regulation S under the Securities Act (or any
successor provision), as it may be amended from time to time.
"Regulation S Certificate" means a certificate substantially in the
form set forth in Annex A.
"Regulation S Global Security" has the meaning
specified in Section 201.
"Regulation S Legend" means a legend substantially in the form of
the legend required in the form of Security set forth in Section 202 to be
placed upon Regulation S Securities.
"Regulation S Securities" means all Securities required pursuant to
Section 306(c) to bear a Regulation S Legend. Such term includes the Regulation
S Global Security.
"Reinvested Amounts", with respect to any Asset Disposition, means
amounts invested, within one year from the later of the date of the related
Asset Disposition or the receipt of the Net Available Proceeds from such Asset
Disposition, in assets that will be used in the business of the Company or any
of its Wholly Owned Restricted Subsidiaries as such business is conducted prior
to such Asset Disposition (determined by the Board of Directors in good faith,
as evidenced by a resolution of such Board of
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Directors), and, upon consummation of such investment, are owned by the Company
or any of its Restricted Subsidiaries.
"Related Person" of any Person means, without limitation, any other
Person owning (a) 5% or more of the outstanding Common Stock of such Person or
(b) 5% or more of the Voting Stock of such Person.
"Required Filing Dates" has the meaning specified in Section 1016.
"Restricted Global Security" has the meaning specified in Section
201.
"Restricted Period" means the period of 41 consecutive days
beginning on and including the later of (i) the day on which Securities are
first offered to persons other than distributors (as defined in Regulation S) in
reliance on Regulation S and (ii) the last original issue date of the
Securities.
"Restricted Securities" means all Securities required pursuant to
Section 306(c) to bear a Restricted Securities Legend. Such term includes the
Restricted Global Security.
"Restricted Securities Certificate" means a certificate
substantially in the form set forth in Annex B.
"Restricted Securities Legend" means a legend substantially in the
form of the legend required in the form of Security set forth in Section 202 to
be placed upon a Restricted Security.
"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.
"Rule 144A" means Rule 144A under the Securities Act (or any
successor provision), as it may be amended from time to time.
"Rule 144A Securities" means the Securities purchased by the Initial
Purchasers from the Company pursuant to the Note Purchase Agreement, other than
the IAI Securities and the Regulation S Securities.
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"Sale and Leaseback Transaction" means an arrangement with any
lender or investor or to which such lender or investor is a party providing for
the leasing by a Person of any property or asset of such Person which has been
or is being sold or transferred, more than 270 days after the acquisition
thereof or the completion of construction or commencement of operation thereof,
by such Person to such lender or investor or to any person to whom funds have
been or are to be advanced by such lender or investor on the security of such
property or asset. The stated maturity of such arrangement shall be the date of
the last payment of rent or any other amount due under such arrangement prior to
the first date on which such arrangement may be terminated by the lessee without
payment of a penalty.
"Secured Obligations" has the meaning specified in Section 1101.
"Securities" has the meaning specified in the first paragraph of the
recitals to this instrument and includes the Exchange Securities.
"Securities Act" means the Securities Act of 1933 (or any successor
statute), as it may be amended from time to time.
"Securities Act Legend" means a Restricted Securities Legend or a
Regulation S Legend.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 306.
"Senior Debt" means (i) with respect to the Company, Debt created
pursuant to the Bank Agreement, (ii) with respect to the Company, any Guarantor
or any Restricted Subsidiary, Debt of such Person referred to in Clauses (i),
(ii), (iii), (v) or (vii) of the definition of Debt, whether Incurred on or
prior to the date of this Indenture or thereafter Incurred, (iii) with respect
to the Company, any Guarantor or any Restricted Subsidiary, 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 subordinated 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
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obligation to pay principal, premium (if any), interest, penalties,
reimbursement or indemnity amounts, fees and expenses (including interest
accruing on or after the filing of any petition in bankruptcy or for
reorganization relating to the Company whether or not a claim for post-petition
interest is allowed in such proceeding).
"Senior Subordinated Guarantees" means the Parent Guarantee, the
Allied Finance Guarantee and the Subsidiary Guarantees.
"Shelf Registration Statement" means a shelf registration statement
under the Securities Act filed by the Company, if required by, and meeting the
requirements of, the Exchange and Registration Rights Agreement, registering
Original Securities for resale.
"Special Interest" has the meaning specified in the form of the
Securities set forth in Section 202.
"Special Mandatory Redemption" has the meaning specified in Section
1101.
"Special Record Date" for the payment of any Defaulted Interest
means a date fixed by the Trustee pursuant to Section 308.
"Specialized Waste" means Specialized Waste Systems, Inc., a Texas
corporation. The Company owns 50% of the Common Stock and 100% of the Preferred
Stock of Specialized Waste.
"Stated Maturity", when used with respect to any Security or any
instalment of interest thereon, means the date specified in such Security as the
fixed date on which the principal of such Security or such instalment of
interest, as the case may be, is due and payable.
"Stock Purchase Agreement" means the Stock Purchase Agreement, dated
September 17, 1996, among Allied Parent, the Company, Allied Canada, Xxxxxxx and
certain of its subsidiaries for the acquisition (the "Acquisition") by Allied
Parent and certain of its Subsidiaries of substantially all of the non-hazardous
solid waste management business conducted by Xxxxxxx in the United States and
Canada.
"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
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Person or by such Person and one or more Subsidiaries thereof, (ii) a
partnership of which such Person, or one or more other Subsidiaries of such
Person or such Person and one or more other Subsidiaries thereof, directly or
indirectly, is the general partner and has the power to direct the policies,
management and affairs or (iii) any other Person (other than a corporation) in
which such Person, or one or more other Subsidiaries of such Person or such
Person and one or more other Subsidiaries thereof, directly or indirectly, has
at least a majority ownership interest and power to direct the policies,
management and affairs thereof. Except as otherwise expressly provided or unless
the context otherwise requires, references herein to "Subsidiary" shall mean a
Subsidiary of the Company.
"Subsidiary Guarantees" means the unconditional guarantees on a
senior subordinated basis by the respective Subsidiary Guarantors of the due and
punctual payment of principal, premium, if any, and interest on the Securities,
as provided pursuant to Article Thirteen.
"Subsidiary Guarantors", as of any time, means each and all of the
Restricted Subsidiaries at such time, other than Allied Insurance, which
Subsidiary Guarantors as of the date of this Indenture are set forth in Schedule
I hereto.
"Successor Company" has the meaning specified in Section 801.
"Successor Security" of any particular Security means every Security
issued after, and 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 307 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.
"Treasury Yield" means, with respect to any Redemption Date, the
rate per annum equal to the semiannual equivalent yield to maturity of the
Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue
(expressed as a percentage of its principal amount) equal to the Comparable
Treasury Price for such Redemption Date.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in
force at the date as of which this instrument was executed; provided, however,
that in the event the Trust Indenture Act of 1939 is amended after such date,
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"Trust Indenture Act" means, to the extent required by any such amendment, the
Trust Indenture Act of 1939 as so amended.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean such successor Trustee.
"U.S. Government Obligations" means securities that are (x) direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged or (y) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America the payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America, which, in either case, are
not callable or redeemable at the option of the issuer thereof, and shall also
include a depository receipt issued by a bank (as defined in Section 3(a)(2) of
the Securities Act of 1933, as amended) as custodian with respect to any such
U.S. Government Obligation or a specific payment of principal of or interest on
any such U.S. Government Obligation held by such custodian for the account of
the holder of such depository receipt, provided that (except as required by law)
such custodian is not authorized to make any deduction from the amount payable
to the holder of such depository receipt from any amount received by the
custodian in respect of the U.S. Government Obligation or the specific payment
of principal of or interest on the U.S. Government Obligation evidenced by such
depository receipt.
"Unpermitted Debt" has the meaning specified in Section 1018.
"Unrestricted Securities Certificate" means a certificate
substantially in the form set forth in Annex C.
"Unrestricted Subsidiary" means (i) at any date, a Subsidiary of the
Company that is an Unrestricted Subsidiary in accordance with the provisions of
Section 1018 and (ii) for any period, a Subsidiary of the Company that for any
portion of such period is an Unrestricted Subsidiary in accordance with the
provisions of Section 1018, provided that such term shall mean such Subsidiary
only for such portion of such period.
"Vice President", when used with respect to the Company, any
Guarantor or the Trustee, means any vice president of such Person, whether or
not designated by a
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number or a word or words added before or after the title "vice president".
"Voting Stock" of any Person means Capital Stock of such Person that
ordinarily has voting power for the election of directors (or persons performing
similar functions) of such Person, whether at all times or only so long as no
senior class of securities has such voting power by reason of any contingency.
"Weighted Average Life to Maturity" means, as of the date of
determination, with respect to any Debt, the quotient obtained by dividing (i)
the sum of the products of the number of years from the date of determination to
the dates of each successive scheduled principal payment of such Debt and the
amount of such principal by (ii) the sum of all such principal payments.
"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.
SECTION 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to
take any action under any provision of this Indenture, the Company shall furnish
to the Trustee such certificates and opinions as may be required under the Trust
Indenture Act or this Indenture. Each such certificate or opinion shall be given
in the form of an Officers' Certificate, if to be given by an officer of the
Company, or an Opinion of Counsel, if to be given by counsel, and shall comply
with the requirements of the Trust Indenture Act and any other requirement set
forth in this Indenture.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
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(3) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(4) a statement as to whether or not, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by,
or covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or opinion of,
or representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or opinion of counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. Acts of Holders; Record Dates.
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
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and evidenced by one or more instruments of substantially similar tenor signed
by such Holders in person or by agent duly appointed in writing; and, except as
herein otherwise expressly provided, such action shall become effective when
such instrument or instruments are delivered to the Trustee and, where it is
hereby expressly required, to the Company. Such instrument or instruments (and
the action embodied therein and evidenced thereby) are herein sometimes referred
to as the "Act" of the Holders signing such instrument or instruments. Proof of
execution of any such instrument or of a writing appointing any such agent shall
be sufficient for any purpose of this Indenture and (subject to Section 601)
conclusive in favor of the Trustee and the Company, if made in the manner
provided in this Section.
The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
The ownership of Securities shall be proved by the Security
Register.
Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future Holder
of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee or the
Company in reliance thereon, whether or not notation of such action is made upon
such Security.
The Company may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities entitled to give, make or take
any request, demand, authorization, direction, notice, consent, waiver or other
action provided or permitted by this Indenture to be given, made or taken by
Holders of Securities, provided that the Company may not set a record date for,
and the provisions of this paragraph shall not apply with respect to, the
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giving or making of any notice, declaration, request or direction referred to in
the next paragraph. If any record date is set pursuant to this paragraph, the
Holders of Outstanding Securities on such record date, and no other Holders,
shall be entitled to take the relevant action, whether or not such Holders
remain Holders after such record date; provided that no such action shall be
effective hereunder unless taken on or prior to the applicable Expiration Date
by Holders of the requisite principal amount of Outstanding Securities on such
record date. Nothing in this paragraph shall be construed to prevent the Company
from setting a new record date for any action for which a record date has
previously been set pursuant to this paragraph (whereupon the record date
previously set shall automatically and with no action by any Person be cancelled
and of no effect), and nothing in this paragraph shall be construed to render
ineffective any action taken by Holders of the requisite principal amount of
Outstanding Securities on the date such action is taken. Promptly after any
record date is set pursuant to this paragraph, the Company, at its own expense,
shall cause notice of such record date, the proposed action by Holders and the
applicable Expiration Date to be given to the Trustee in writing and to each
Holder of Securities in the manner set forth in Section 106.
The Trustee may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities entitled to join in the giving
or making of (i) any Notice of Default, (ii) any declaration of acceleration
referred to in Xxxxxxx 000, (xxx) any request to institute proceedings referred
to in Section 507(2) or (iv) any direction referred to in Section 512. If any
record date is set pursuant to this paragraph, the Holders of Outstanding
Securities on such record date, and no other Holders, shall be entitled to join
in such notice, declaration, request or direction, whether or not such Holders
remain Holders after such record date; provided that no such action shall be
effective hereunder unless taken on or prior to the applicable Expiration Date
by Holders of the requisite principal amount of Outstanding Securities on such
record date. Nothing in this paragraph shall be construed to prevent the Trustee
from setting a new record date for any action for which a record date has
previously been set pursuant to this paragraph (whereupon the record date
previously set shall automatically and with no action by any Person be cancelled
and of no effect), and nothing in this paragraph shall be construed to render
ineffective any action taken by Holders of the requisite principal amount of
Outstanding Securities on the date such action is taken. Promptly after any
record date is set pursuant to this paragraph, the Trustee, at the Company's
expense, shall
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cause notice of such record date, the proposed action by Holders and the
applicable Expiration Date to be given to the Company in writing and to each
Holder of Securities in the manner set forth in Section 106.
With respect to any record date set pursuant to this Section, the
party hereto which sets such record date may designate any day as the
"Expiration Date" and from time to time may change the Expiration Date to any
earlier or later day; provided that no such change shall be effective unless
notice of the proposed new Expiration Date is given to the other party hereto in
writing, and to each Holder of Securities in the manner set forth in Section
106, on or prior to the existing Expiration Date. If an Expiration Date is not
designated with respect to any record date set pursuant to this Section, the
party hereto which set such record date shall be deemed to have initially
designated the 180th day after such record date as the Expiration Date with
respect thereto, subject to its right to change the Expiration Date as provided
in this paragraph. Notwithstanding the foregoing, no Expiration Date shall be
later than the 180th day after the applicable record date.
Without limiting the foregoing, a Holder entitled hereunder to 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 such principal amount.
SECTION 105. Notices, Etc., to Trustee, Company and
Guarantors.
Any request, demand, authorization, direction, notice, consent,
waiver or Act of Holders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company 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 or any Guarantor, transmitted by
facsimile transmission (confirmed by guaranteed overnight courier) to the
following facsimile numbers: (000) 000-0000 or to any other facsimile
number
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previously furnished in writing to the Company by the Trustee, or
(2) 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 106. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event,
such notice shall be sufficiently given (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to each Holder
affected by such event, at his address as it appears in the Security Register,
not later than the latest date (if any), and not earlier than the earliest date
(if any), prescribed for the giving of such notice. In any case where notice to
Holders is given by mail, neither the failure to mail such notice, nor any
defect in any notice so mailed, to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders. Where this Indenture
provides for notice in any manner, such notice may be waived in writing by the
Person entitled to receive such notice, either before or after the event, and
such waiver shall be the equivalent of such notice. Waivers of notice by Holders
shall be filed with the Trustee, but such filing shall not be a condition
precedent to the validity of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by mail,
then such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
SECTION 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with a
provision of the Trust Indenture Act that is required under such Act to be a
part of and govern this
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Indenture, the latter provision shall control. If any provision of this
Indenture modifies or excludes any provision of the Trust Indenture Act that may
be so modified or excluded, the latter provision shall be deemed to apply to
this Indenture as so modified or to be excluded, as the case may be. Until such
time as this Indenture shall be qualified under the Trust Indenture Act, this
Indenture, the Company, the Guarantors and the Trustee shall be deemed for all
purposes hereof to be subject to and governed by the Trust Indenture Act to the
same extent as would be the case if this Indenture were so qualified on the date
hereof.
SECTION 108. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents
are for convenience only and shall not affect the construction hereof.
SECTION 109. Successors and Assigns.
All covenants and agreements in this Indenture by the Company or any
Guarantor shall bind its successors and assigns, whether so expressed or not.
SECTION 110. Separability Clause.
In case any provision in this Indenture or in the Securities or the
Senior Subordinated Guarantees shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
SECTION 111. Benefits of Indenture.
Nothing in this Indenture or in the Securities or the Senior
Subordinated Guarantees, express or implied, shall give to any Person, other
than the parties hereto and their successors hereunder, the Holders of
Securities and the holders of any Senior Debt, any benefit or any legal or
equitable right, remedy or claim under this Indenture.
SECTION 112. Governing Law.
THIS INDENTURE, THE SECURITIES AND THE SENIOR SUBORDINATED
GUARANTEES ENDORSED THEREON SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAW OF THE STATE OF NEW YORK.
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SECTION 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date,
Purchase Date or Stated Maturity of any Security shall not be a Business Day,
then (notwithstanding any other provision of this Indenture or of the Securities
or any Senior Subordinated Guarantee) payment of interest or principal (and
premium, if any) need not be made on such date, but may be made on the next
succeeding Business Day with the same force and effect as if made on the
Interest Payment Date, Redemption Date or Purchase Date or at the Stated
Maturity, provided that no interest shall accrue for the period from and after
such Interest Payment Date, Redemption Date, Purchase Date or Stated Maturity,
as the case may be.
ARTICLE TWO
Security and Senior Subordinated Guarantee Forms
SECTION 201. Forms Generally; Initial Forms of Rule 144A,
Regulation S and IAI Securities.
The Securities, the Senior Subordinated Guarantees to be endorsed
thereon and the Trustee's certificates of authentication shall be in
substantially the forms set forth in this Article, with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture, and may have such letters, numbers or other marks
of identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or as may,
consistently herewith, be determined by the officers executing such Securities
or Senior Subordinated Guarantees, as the case may be, as evidenced by their
execution thereof.
The definitive Securities and Senior Subordinated Guarantees to be
endorsed thereon shall be printed, lithographed or engraved or produced by any
combination of these methods on steel engraved borders or may be produced in any
other manner permitted by the rules of any securities exchange on which the
Securities may be listed, all as determined by the officers executing such
Securities or Senior Subordinated Guarantees, as the case may be, as evidenced
by their execution thereof.
Upon their original issuance, Rule 144A Securities shall be issued
in the form of one or more Global Securities registered in the name of DTC, as
Depositary, or its nominee and deposited with the Trustee, as custodian for DTC,
for
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credit by DTC to the respective accounts of beneficial owners of the Securities
represented thereby (or such other accounts as they may direct). Such Global
Securities, together with their Successor Securities which are Global Securities
other than the Regulation S Global Security are collectively herein called the
"Restricted Global Security".
Upon their original issuance, Regulation S Securities shall be
issued in the form of one or more Global Securities registered in the name of
DTC, as Depositary, or its nominee and deposited with the Trustee, as custodian
for DTC, for credit by DTC to the respective accounts of beneficial owners of
the Securities represented thereby (or such other accounts as they may direct),
provided that upon such deposit all such Securities shall be credited to or
through accounts maintained at DTC by or on behalf of Euroclear or Cedel. Such
Global Securities, together with their Successor Securities which are Global
Securities other than the Restricted Global Security are collectively herein
called the "Regulation S Global Security".
Upon their original issuance, IAI Securities shall not be issued in
the form of a Global Security or in any other form intended to facilitate
book-entry trading in beneficial interests in such Securities.
SECTION 202. Form of Face of Security.
[IF THE SECURITY IS A RESTRICTED SECURITY, THEN INSERT -- THIS
SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), AND MAY NOT BE OFFERED, SOLD, PLEDGED OR
OTHERWISE TRANSFERRED EXCEPT (A) BY THE INITIAL INVESTOR (1) TO A PERSON WHO THE
TRANSFEROR REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE
MEANING OF RULE 144A UNDER THE SECURITIES ACT ACQUIRING FOR ITS OWN ACCOUNT OR
FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (2) IN AN OFFSHORE TRANSACTION COMPLYING WITH RULE
903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (3) PURSUANT TO AN
EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144
THEREUNDER (IF AVAILABLE) OR (4) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT AND (B) BY SUBSEQUENT INVESTORS AS SET FORTH IN (A)
ABOVE OR TO AN INSTITUTION THAT IS AN ACCREDITED INVESTOR WITHIN THE MEANING OF
RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND,
IN EACH CASE (A) AND (B), IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF
THE STATES OF THE UNITED STATES AND OTHER JURISDICTIONS. SECURITIES OWNED BY
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AN INITIAL INVESTOR THAT IS NOT A QUALIFIED INSTITUTIONAL BUYER MAY NOT BE HELD
IN BOOK-ENTRY FORM AND MAY NOT BE TRANSFERRED WITHOUT CERTIFICATION THAT THE
TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS, AS PROVIDED IN THE INDENTURE
REFERRED TO BELOW.]
[IF THE SECURITY IS A REGULATION S SECURITY, THEN INSERT -- THIS
SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), AND MAY NOT BE OFFERED, SOLD OR DELIVERED IN THE
UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, ANY U.S. PERSON, UNLESS
THIS SECURITY IS REGISTERED UNDER THE SECURITIES ACT OR AN EXEMPTION FROM THE
REGISTRATION REQUIREMENTS THEREOF IS AVAILABLE.]
[IF THE SECURITY IS A GLOBAL SECURITY, THEN INSERT -- 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 THEREOF. THIS
SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND
NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME
OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE
LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.]
[IF THE SECURITY IS A GLOBAL SECURITY AND THE DEPOSITORY TRUST
COMPANY IS TO BE THE DEPOSITARY THEREFOR, THEN INSERT -- UNLESS THIS CERTIFICATE
IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A
NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.]
ALLIED WASTE NORTH AMERICA, INC.
10 1/4% SENIOR SUBORDINATED NOTES DUE 2006
GUARANTEED AS TO PAYMENT OF PRINCIPAL,
PREMIUM, IF ANY, AND INTEREST BY
ALLIED WASTE INDUSTRIES, INC.
AND CERTAIN SUBSIDIARIES OF
ALLIED WASTE NORTH AMERICA, INC.
[If Restricted Global Security - CUSIP No. 00000XXX0]
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[If Regulation S Security - CUSIP No. X00000XX0]
[If Regulation S Global Security - ISIN No. USU01971AA53]
[If IAI Security - CUSIP No. 00000XXX0]
No. __________ $________
Allied Waste North America, Inc., a corporation duly organized and
existing under the laws of Delaware (herein called the "Company", which term
includes any successor Person under the Indenture hereinafter referred to), for
value received, hereby promises to pay to __________________, or registered
assigns, the principal sum of ______________ Dollars [IF THE SECURITY IS A
GLOBAL SECURITY, THEN INSERT -- , or such other principal amount (which, when
taken together with the principal amounts of all other Outstanding Securities,
shall not exceed $525,000,000 in the aggregate at any time) as may be set forth
in the records of the Trustee hereinafter referred to in accordance with the
Indenture,] on December 1, 2006 and to pay interest thereon from December 5,
1996 or from the most recent Interest Payment Date to which interest has been
paid or duly provided for, semi-annually on June 1 and December 1 in each year,
commencing June 1, 1997, at the rate of 10.25% per annum, until the principal
hereof is paid or made available for payment; provided that any amount of
principal of (and premium, if any) and interest on this Security which is
overdue shall bear interest (to the extent that payment thereof shall be legally
enforceable) at the rate of 12.25% per annum, from the date such amount is due
to the day it is paid or made available for payment, and such overdue interest
shall be payable on demand [IF THE SECURITY IS AN ORIGINAL SECURITY, THEN INSERT
-- ; provided further that, if any Registration Default occurs under the
Exchange and Registration Rights Agreement, as liquidated damages for such
Registration Default, special interest ("Special Interest"), in addition to the
Base Interest, shall accrue during the Registration Default Period for such
Registration Default at a per annum rate of 0.25% for the first 90 days of such
Registration Default Period, at a per annum rate of 0.50% for the second 90 days
of such Registration Default Period, at a per annum rate of 0.75% for the third
90 days of such Registration Default Period and at a per annum rate of 1.0%
thereafter for the remaining portion of such Registration Default Period].
The interest so payable, and punctually paid or duly provided for,
on any Interest Payment Date will, as provided in such Indenture, be paid to the
Person in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest, which shall be the May 15 or
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November 15 (whether or not a Business Day), as the case may be, next preceding
such Interest Payment Date [IF THE SECURITY IS AN ORIGINAL SECURITY, THEN INSERT
--, provided that any accrued and unpaid interest (including Special Interest)
on this Security upon the issuance of an Exchange Security in exchange for this
Security shall cease to be payable to the Holder hereof and shall be payable on
the next Interest Payment Date for such Exchange Security to the Holder thereof
on the related Regular Record Date]. Any such interest not so punctually paid or
duly provided for will forthwith cease to be payable to the Holder on the
relevant Regular Record Date and may either be paid to the Person in whose name
this Security (or one or more Predecessor Securities) is registered at the close
of business on a Special Record Date for the payment of such Defaulted Interest
to be fixed by the Trustee, notice whereof shall be given to Holders of
Securities not less than 10 days prior to such Special Record Date, or be paid
at any time in any other lawful manner not inconsistent with the requirements of
any securities exchange on which the Securities may be listed, and upon such
notice as may be required by such exchange, all as more fully provided in said
Indenture. Interest on this Security shall be computed on the basis set forth in
the Indenture.
Payment of the principal of (and premium, if any) and interest on
this Security will be made at the office or agency of the Company in the Borough
of Manhattan, The City of New York, New York, maintained for such purpose and at
any other office or agency maintained by the Company for such purpose, in such
coin or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts; provided, however, that at
the option of the Company payment of interest may be made by check mailed to the
address of the Person entitled thereto as such address shall appear in the
Security Register; provided further that all payments of the principal (and
premium, if any) and interest on Securities, the Holders of which have given
wire transfer instructions to the Company or its agent at least 10 Business Days
prior to the applicable payment date will be required to be made by wire
transfer of immediately available funds to the accounts specified by such
Holders in such instructions.
Reference is hereby made to the further provisions of this Security
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse
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hereof by manual signature, this Security shall not be entitled to any benefit
under the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be
duly executed under its corporate seal.
Dated:
ALLIED WASTE NORTH AMERICA, INC.
[SEAL]
By___________________________________
Attest:
___________________________________
SECTION 203. Form of Reverse of Security.
This Security is one of a duly authorized issue of Securities of the
Company designated as its 10 1/4% Senior Subordinated Notes Due 2006 (herein
called the "Securities"), limited in aggregate principal amount to $525,000,000,
issued and to be issued under an Indenture, dated as of December 1, 1996 (herein
called the "Indenture", which term shall have the meaning assigned to it in such
instrument), among the Company, the Guarantors named therein and First Bank
National Association, as Trustee (herein called the "Trustee", which term
includes any successor trustee under the Indenture), to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of the
respective rights, limitations of rights, duties and immunities thereunder of
the Company, the Guarantors, the Trustee, the holders of the Senior Debt and the
Holders of the Securities and of the terms upon which the Securities, with the
Senior Subordinated Guarantees endorsed thereon, are, and are to be,
authenticated and delivered.
The Securities are subject to redemption upon not less than 30 nor
more than 60 days' notice by mail, to each Holder of Securities to be redeemed
at such Holder's address appearing in the Security Register, in amounts of
$1,000 or
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an integral multiple of $1,000, at any time on or after December 1, 2001 and
prior to maturity, as a whole or in part, at the election of the Company, at the
following Redemption Prices (expressed as percentages of the principal amount)
if redeemed during the 12-month period beginning December 1, of the years
indicated,
Year Redemption Price
---- ----------------
2001 105.1250%
2002 103.4167%
2003 101.7083%
and thereafter at a Redemption Price equal to 100% of the principal amount,
together in the case of any such redemption with accrued but unpaid interest
(including Special Interest) to but excluding the Redemption Date, but interest
installments whose Stated Maturity is on or prior to such Redemption Date will
be payable to the Holders of such Securities, or one or more Predecessor
Securities, of record at the close of business on the relevant Regular Record
Dates referred to on the face hereof.
The Securities are further subject to redemption, prior to December
1, 2001, at the option of the Company, in whole or in part, at any time, upon
not less than 30 nor more than 60 days' notice by mail to each Holder of
Securities to be redeemed at such Holder's address appearing in the Security
Register, in amounts of $1,000 or an integral multiple of $1,000, at a
Redemption Price equal to the greater of (i) 100% of their principal amount or
(ii) the sum of the present value of the remaining scheduled payments of
principal and interest thereon discounted to maturity on a semiannual basis
(assuming a 360-day year consisting of twelve 30-day months) at the Treasury
Yield plus 75 basis points, plus in each case accrued interest (including
Special Interest) to but excluding the Redemption Date, but interest
installments whose Stated Maturity is on or prior to such Redemption Date will
be payable to the Holders of such Securities, or one or more Predecessor
Securities, of record at the close of business on the relevant Regular Record
Dates referred to on the face hereof.
The Securities are further subject to redemption, at any time, or
from time to time, prior to the date that is 180 days after the Acquisition
Closing, in an amount up to $100 million in aggregate principal amount, at the
option of the Company, from the net proceeds of one or more Asset Dispositions
by the Company or its Subsidiaries, at a Redemption Price equal to 110.25% of
the principal amount
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thereof, together with accrued but unpaid interest (including Special Interest)
to the Redemption Date provided that the notice of redemption is mailed within
30 days following the closing of the corresponding Asset Disposition. Such
redemption shall occur upon not less than 30 nor more than 60 days' notice by
mail to each Holder of Securities to be redeemed at such Holder's address
appearing in the Security Register, in amounts of $1,000 or an integral multiple
of $1,000. Interest installments whose Stated Maturity is on or prior to such
Redemption Date will be payable to the Holders of such Securities, or one or
more Predecessor Securities, of record at the close of business on the relevant
Regular Record Dates referred to on the face hereof.
The Securities are further subject to redemption at any time or from
time to time, prior to December 1, 1999, in an amount up to 331/3% in aggregate
principal amount of Securities originally issued under the Indenture, at the
option of the Company, from the net proceeds of one or more Public Offerings of
Capital Stock (other than Redeemable Interests) of Allied Parent, at a
Redemption Price equal to 110.25% of the principal amount thereof, together with
accrued but unpaid interest (including Special Interest) to the Redemption Date,
provided that the notice of redemption with respect to any such redemption is
mailed within 30 days following the closing of the corresponding Public
Offering. Such redemption shall occur upon not less than 30 nor more than 60
days notice by mail to each Holder of Securities to be redeemed at such Holder's
address appearing in the Security Register, in amounts of $1,000 or an integral
multiple of $1,000. Interest installments whose Stated Maturity is on or prior
to such Redemption Date will be payable to the Holders of such Securities, or
one or more Predecessor Securities, of record at the close of business on the
relevant Regular Record Dates referred to on the face hereof.
The Securities are further subject to a Special Mandatory Redemption
at 100.5% of the principal amount of the Securities, together with accrued but
unpaid interest (including Special Interest) to the Redemption Date, in the
event (a) the Company has concluded, in its sole judgment, that the Acquisition
will not be consummated on or prior to March 5, 1997, as certified to the
Trustee pursuant to the requirements of the Collateral Agreement or (b) for any
other reason, funds are not released from the Collateral Account pursuant to
Section 4.2 of the Collateral Agreement for purposes of funding the Acquisition.
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60
The Securities do not have the benefit of any sinking fund
obligations.
The Indenture provides that, subject to certain conditions, if (i)
certain Net Available Proceeds are available to the Company as a result of Asset
Dispositions or (ii) a Change of Control occurs, the Company shall be required
to make an Offer to Purchase for all or a specified portion of the Securities.
In the event of redemption or purchase pursuant to an Offer to
Purchase of this Security in part only, a new Security or Securities of like
tenor for the unredeemed or unpurchased portion hereof will be issued in the
name of the Holder hereof upon the cancellation hereof.
If an Event of Default shall occur and be continuing, the principal
of all the Securities may be declared due and payable in the manner and with the
effect provided in the Indenture.
The Indenture contains provisions for defeasance at any time of (i)
the entire indebtedness of this Security or (ii) certain restrictive covenants
and Events of Default with respect to this Security, in each case upon
compliance with certain conditions set forth therein.
As provided in the Indenture and subject to certain limitations
therein set forth, the obligations of the Company under the Indenture and this
Security are Guaranteed, jointly and severally on a senior subordinated basis,
pursuant to Senior Subordinated Guarantees endorsed hereon as provided in the
Indenture. Each Holder, by holding this Security, agrees to all of the terms and
provisions of said Senior Subordinated Guarantees. The Indenture provides that a
Guarantor shall be released from its Senior Subordinated Guarantee upon
compliance with certain conditions.
The Securities and the Senior Subordinated Guarantees shall be
subordinated in right of payment to Senior Debt of the Company and the
Guarantors, respectively, as provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the Guarantors and the rights of the Holders of the Securities under
the Indenture at any time by the Company, the Guarantors and the Trustee with
the consent of the Holders of a majority in aggregate principal amount of the
Securities at the time
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Outstanding. The Indenture also contains provisions permitting the Holders of
specified percentages in aggregate principal amount of the Securities at the
time Outstanding, on behalf of the Holders of all the Securities, to waive
compliance by the Company with certain provisions of the Indenture and certain
past defaults under the Indenture and their consequences. Any such consent or
waiver by the Holder of this Security shall be conclusive and binding upon such
Holder and upon all future Holders of this Security and of any Security issued
upon the registration of transfer hereof or in exchange herefor or in lieu
hereof, whether or not notation of such consent or waiver is made upon this
Security.
As provided in and subject to the provisions of the Indenture, the
Holder of this Security shall not have the right to institute any proceeding
with respect to the Indenture or for the appointment of a receiver or trustee or
for any other remedy thereunder, unless such Holder shall have previously given
the Trustee written notice of a continuing Event of Default with respect to the
Securities, the Holders of not less than 25% in principal amount of the
Securities at the time Outstanding shall have made written request to the
Trustee to institute proceedings in respect of such Event of Default as Trustee
and offered the Trustee reasonable indemnity and the Trustee shall not have
received from the Holders of a majority in principal amount of Securities at the
time Outstanding a direction inconsistent with such request and shall have
failed to institute any such proceeding for 60 days after receipt of such
notice, request and offer of indemnity. The foregoing shall not apply to certain
suits described in the Indenture, including any suit instituted by the Holder of
this Security for the enforcement of any payment of principal hereof or any
premium or interest hereon on or after the respective due dates expressed herein
(or, in the case of redemption, on or after the Redemption Date or, in the case
of any purchase of this Security required to be made pursuant to an Offer to
Purchase, on the Purchase Date).
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of (and
premium, if any) and interest on this Security at the times, place and rate, and
in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at
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the office or agency of the Company in the Borough of Manhattan, The City of New
York, duly endorsed by, or accompanied by a written instrument of transfer in
form satisfactory to the Company and the Security Registrar duly executed by,
the Holder hereof or his attorney duly authorized in writing, and thereupon one
or more new Securities, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
The Securities are issuable only in registered form without coupons
in denominations of $1,000 and any integral multiple thereof. As provided in the
Indenture and subject to certain limitations therein set forth, Securities are
exchangeable for a like aggregate principal amount of Securities of a different
authorized denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Company, the Guarantors, the Trustee and any agent of the Company,
the Guarantors or the Trustee may treat the Person in whose name this Security
is registered as the owner hereof for all purposes, whether or not this Security
be overdue, and neither the Company, any Guarantor, the Trustee nor any such
agent shall be affected by notice to the contrary.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
The Indenture, this Security and the Senior Subordinated Guarantees
endorsed hereon shall be governed by and construed in accordance with the laws
of the State of New York.
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OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased in its entirety
by the Company pursuant to Section 1014 or 1015 of the Indenture, check the box:
/ /
If you want to elect to have only a part of this Security purchased
by the Company pursuant to Section 1014 or 1015 of the Indenture, state the
amount: $___________
Dated:______________ Your Signature:____________________________________
(Sign exactly as name
appears on the other
side of this Security)
Signature Guarantee:____________________________________________________________
Notice: Signature(s) must be guaranteed by an "eligible
guarantor institution" meeting the requirements of the
Trustee, which requirements will include membership or
participation in STAMP or such other "signature
guarantee program" as may be determined by the Trustee
in addition to, or in substitution for STAMP, all in
accordance with the Securities Exchange Act of 1934, as
amended.
SECTION 204. Form of Trustee's Certificate of
Authentication.
This is one of the Securities with the Senior Subordinated
Guarantees referred to in the within-mentioned Indenture.
___________________________,
as Trustee
By ___________________________
Authorized Signature
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SECTION 205. Form of Senior Subordinated Guarantee.
SENIOR SUBORDINATED GUARANTEE
For value received, each of the Guarantors named (or deemed herein
to be named) below hereby jointly and severally unconditionally guarantees, on a
senior subordinated basis to the Holder of the Security upon which this Senior
Subordinated Guarantee is endorsed, and to the Trustee on behalf of such Holder,
the due and punctual payment of the principal of (and premium, if any) and
interest on such Security when and as the same shall become due and payable,
whether at the Stated Maturity, by acceleration, call for redemption, purchase
or otherwise, according to the terms thereof and of the Indenture referred to
therein. In case of the failure of the Company punctually to make any such
payment, each of the Guarantors hereby jointly and severally agrees to cause
such payment to be made punctually when and as the same shall become due and
payable, whether at the Stated Maturity or by acceleration, call for redemption,
purchase or otherwise, and as if such payment were made by the Company.
The Senior Subordinated Guarantee of each Guarantor shall be
subordinated in right of payment to the Senior Debt of such Guarantor as
provided in the Indenture.
Each of the Guarantors hereby jointly and severally agrees that its
obligations hereunder shall be unconditional, irrespective of the validity,
regularity or enforceability of such Security or the Indenture, the absence of
any action to enforce the same, any creation, exchange, release or
non-perfection of any Lien on any collateral for, or any release or amendment or
waiver of any term of any other Guarantee of, or any consent to departure from
any requirement of any other Guarantee of, all or of any of the Securities, the
election by the Trustee or any of the Holders in any proceeding under Chapter 11
of the Bankruptcy Code of the application of Section 1111(b)(2) of the
Bankruptcy Code, any borrowing or grant of a security interest by the Company,
as debtor-in-possession, under Section 364 of the Bankruptcy Code, the
disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of
the claims of the Trustee or any of the Holders for payment of any of the
Securities, any waiver or consent by the Holder of such Security or by the
Trustee or either of them with respect to any provisions thereof or of the
Indenture, the obtaining of any judgment against the Company (or, with respect
to the Allied Finance Guarantee, Allied Parent) or any action to enforce the
same or any other circumstances which might otherwise constitute a legal or
equitable
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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 Finance
Guarantee, Allied Parent) or any other Person or any collateral, filing of
claims with a court in the event of insolvency or bankruptcy of the Company, any
right to require a proceeding first against the Company (or, with respect to the
Allied Finance Guarantee, Allied Parent), protest or notice with respect to such
Security or the indebtedness evidenced thereby and all demands whatsoever, and
covenants that this Senior Subordinated Guarantee will not be discharged except
by complete performance of the obligations contained in such Security and in
this Senior Subordinated Guarantee. Each of the Guarantors hereby agrees that,
in the event of a default in payment of principal (or premium, if any) or
interest on such Security, whether at their Stated Maturity, by acceleration,
call for redemption, purchase or otherwise, legal proceedings may be instituted
by the Trustee on behalf of, or by, the Holder of such Security, subject to the
terms and conditions set forth in the Indenture, directly against each of the
Guarantors to enforce this Senior Subordinated Guarantee without first
proceeding against the Company. Each Guarantor agrees that if, after the
occurrence and during the continuance of an Event of Default, the Trustee or any
of the Holders are prevented by applicable law from exercising their respective
rights to accelerate the maturity of the Securities, to collect interest on the
Securities, or to enforce or exercise any other right or remedy with respect to
the Securities (or with respect to the Allied Finance Guarantee, the Guarantee
of Allied Parent), such Guarantor agrees to pay to the Trustee for the account
of the Holders, upon demand therefor, the amount that would otherwise have been
due and payable had such rights and remedies been permitted to be exercised by
the Trustee or any of the Holders.
No reference herein to the Indenture and no provision of this Senior
Subordinated Guarantee or of the Indenture shall alter or impair the Senior
Subordinated Guarantee of any Guarantor, which is absolute and unconditional, of
the due and punctual payment of the principal (and premium, if any) and interest
on the Security upon which this Senior Subordinated Guarantee is endorsed.
Each Guarantor shall be subrogated to all rights of the Holder of
such Security against the Company (or, with respect to the Allied Finance
Guarantee, against Allied
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Parent) in respect of any amounts paid by such Guarantor on account of such
Security (or with respect to the Allied Finance Guarantee, on account of the
Guarantee of Allied Parent) pursuant to the provisions of its Senior
Subordinated Guarantee or the Indenture; provided, however, that such Guarantor
shall not be entitled to enforce or to receive any payments arising out of, or
based upon, such right of subrogation until the principal of (and premium, if
any) and interest on this Security and all other Securities issued under the
Indenture shall have been paid in full.
This Senior Subordinated Guarantee shall remain in full force and
effect and continue to be effective should any petition be filed by or against
the Company (or with respect to the Allied Finance Guarantee, Allied Parent) for
liquidation or reorganization, should the Company (or with respect to the Allied
Finance Guarantee, Allied Parent) 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 (or with respect to the Allied Finance
Guarantee, Allied Parent's) assets, and shall, to the fullest extent permitted
by law, continue to be effective or be reinstated, as the case may be, if at any
time payment and performance of the Securities is, pursuant to applicable law,
rescinded or reduced in amount, or must otherwise be restored or returned by any
obligee on the Securities (or with respect to the Allied Finance Guarantee, on
the Guarantee of Allied Parent), whether as a "voidable preference," "fraudulent
transfer" or otherwise, all as though such payment or performance had not been
made. In the event that any payment, or any part thereof, is rescinded, reduced,
restored or returned, the Securities shall, to the fullest extent permitted by
law, be reinstated and deemed reduced only by such amount paid and not so
rescinded, reduced, restored or returned.
The Guarantors shall have the right to seek contribution from any
non-paying Guarantor so long as the exercise of such right does not impair the
rights of the Holders under this Senior Subordinated Guarantee.
The Guarantors or any particular Guarantor shall be released from
this Senior Subordinated Guarantee upon the terms and subject to certain
conditions provided in the Indenture.
By delivery of a supplemental indenture to the Trustee in accordance
with the terms of the Indenture, each Person that becomes a Subsidiary Guarantor
after the date of the Indenture will be deemed to have executed and delivered
this Subsidiary Guarantee for the benefit of the Holder of
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the Security upon which this Subsidiary Guarantee is endorsed, with the same
effect as if such Subsidiary Guarantor was named below and had executed and
delivered this Subsidiary Guarantee.
All terms used in this Senior Subordinated Guarantee which are
defined in the Indenture referred to in the Security upon which this Senior
Subordinated Guarantee is endorsed shall have the meanings assigned to them in
such Indenture.
This Senior Subordinated Guarantee shall not be valid or obligatory
for any purpose until the certificate of authentication on the Security upon
which this Senior Subordinated Guarantee is endorsed shall have been executed by
the Trustee under the Indenture by manual signature.
Reference is made to Article Thirteen of the Indenture for further
provisions with respect to this Senior Subordinated Guarantee.
THIS SENIOR SUBORDINATED GUARANTEE SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK.
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IN WITNESS WHEREOF, each of the Guarantors has caused this Senior
Subordinated Guarantee to be duly executed.
Allied Waste Industries, Inc.,
As Guarantor
By: _________________________
[Officer]
Attest:
__________________________
[Secretary]
[Assistant Secretary]
Each of the Subsidiary Guarantors
Listed on Schedule I to the
Indenture,
As Guarantor
By:* _________________________
[Officer]
Attest:*
_________________________
[Secretary]
[Assistant Secretary]
--------
* Signing as duly authorized officer for each such Subsidiary Guarantor.
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ARTICLE THREE
The Securities
SECTION 301. Title and Terms.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is limited to $525,000,000,
except for Securities authenticated and delivered upon registration of transfer
of, or in exchange for, or in lieu of, other Securities pursuant to Section 303,
304, 305, 306, 307, 906, 1109 or in connection with an Offer to Purchase
pursuant to Section 1014 or 1015. The Company may issue Exchange Securities from
time to time pursuant to an Exchange Offer, in each case pursuant to a Board
Resolution and subject to Section 303, in authorized denominations in exchange
for a like principal amount of Original Securities. Upon any such exchange the
Original Securities shall be cancelled in accordance with Section 310 and shall
no longer be deemed Outstanding for any purpose. In no event shall the aggregate
principal amount of Original Securities and Exchange Securities Outstanding
exceed $525,000,000.
The Securities shall be known and designated as the "10 1/4% Senior
Subordinated Notes Due 2006" of the Company. Their Stated Maturity shall be
December 1, 2006 and they shall bear interest at the rate of 10.25% per annum
(the "Base Interest"), from December 5, 1996 or from the most recent Interest
Payment Date to which interest has been paid or duly provided for, as the case
may be, payable semi-annually on June 1 and December 1, commencing June 1, 1997,
until the principal thereof is paid or made available for payment; provided,
however, with respect to Original Securities, that if a Registration Default
occurs, as liquidated damages for such Registration Default, Special Interest,
in addition to the Base Interest, shall accrue during the Registration Default
Period for such Registration Default at a per annum rate of 0.25% for the first
90 days of such Registration Default Period, at a per annum rate of 0.50% for
the second 90 days of such Registration Default Period, at a per annum rate of
0.75% for the third 90 days of such Registration Default Period and at a per
annum rate of 1.0% thereafter for the remaining portion of such Registration
Default Period. The Company shall provide written notice to the Trustee of any
Registration Default and of the end of the Registration Default Period for such
Registration Default. Accrued Special Interest, if any, shall be paid in cash in
arrears semi-annually on June 1 and December 1 in each year.
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The principal of (and premium, if any) and interest on the
Securities shall be payable at the office or agency of the Company in the
Borough of Manhattan, The City of New York, New York, maintained for such
purpose and at any other office or agency maintained by the Company for such
purpose; provided, however, that at the option of the Company payment of
interest may be made by check mailed to the address of the Person entitled
thereto as such address shall appear in the Security Register; provided further
that all payments of the principal (and premium, if any) and interest on
Securities, the Holders of which have given wire transfer instructions to the
Company or its agent at least 10 Business Days prior to the applicable payment
date will be required to be made by wire transfer of immediately available funds
to the accounts specified by such Holders in such instructions.
The Securities shall be subject to redemption as provided in Article
Eleven.
The Securities shall be subject to repurchase by the Company
pursuant to an Offer to Purchase as provided in Sections 1014 and 1015.
The Securities shall not have the benefit of any sinking fund
obligations.
The Securities shall be subject to defeasance at the option of the
Company as provided in Article Twelve.
The Securities shall be Guaranteed by the Guarantors as provided in
Article Thirteen.
The Securities and each of the Senior Subordinated Guarantees shall
be subordinated in right of payment to Senior Debt of the Company and each of
the Guarantors, respectively, as provided in Article Fourteen.
Unless the context otherwise requires, the Original Securities and
the Exchange Securities shall constitute one series for all purposes under the
Indenture, including with respect to any amendment, waiver, acceleration or
other Act of Holders, redemption or Offer to Purchase.
SECTION 302. Denominations.
The Securities shall be issuable only in registered form without
coupons, and only in denominations of $1,000 and, any integral multiple thereof.
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SECTION 303. Execution, Authentication, Delivery
and Dating.
The Securities shall be executed on behalf of the Company by its
Chairman of the Board, its Vice Chairman of the Board, Chief Executive Officer,
its President or one of its Vice Presidents, under its corporate seal reproduced
thereon attested by its Secretary or one of its Assistant Secretaries. The
signature of any of these officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery
of this Indenture, the Company may deliver Securities executed by the Company
and having endorsed (by attachment or imprint) thereon the Senior Subordinated
Guarantees executed as provided in Section 1302 by the Guarantors to the Trustee
for authentication, together with a Company Order for the authentication and
delivery of such Securities with such Senior Subordinated Guarantees endorsed
thereon; and the Trustee in accordance with such Company Order shall
authenticate and deliver such Securities with such Senior Subordinated
Guarantees endorsed thereon as in this Indenture provided and not otherwise.
At any time and from time to time after the execution and delivery
of this Indenture and after the effectiveness of a registration statement under
the Securities Act with respect thereto, the Company may deliver Exchange
Securities executed by the Company, and having endorsed thereon the Senior
Subordinated Guarantees executed under Section 1302 by the Guarantors, to the
Trustee for authentication, together with a Company Order for the authentication
and delivery of such Exchange Securities and a like principal amount of Original
Securities for cancellation in accordance with Section 310 of this Indenture,
and the Trustee in accordance with the Company Order shall authenticate and
deliver such Securities, with the Senior Subordinated Guarantees endorsed
thereon. Prior to authenticating such Exchange Securities, and accepting any
additional responsibilities under this Indenture in relation to such Securities,
the Trustee shall be entitled to receive, if requested, and (subject to Section
601) shall be
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fully protected in relying upon, an Opinion of Counsel stating in substance
(a) that all conditions hereunder precedent to the authentication
and delivery of such Exchange Securities with the Senior Subordinated
Guarantees of the Guarantors endorsed thereon have been complied with and
that such Exchange Securities and the Senior Subordinated Guarantees of
the Guarantors endorsed thereon, when such Securities have been duly
authenticated and delivered by the Trustee (and subject to any other
conditions specified in such Opinion of Counsel), have been duly issued
and delivered and will constitute valid and legally binding obligations of
the Company and the Guarantors, respectively, enforceable in accordance
with their terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles; and
(b) that the issuance of the Exchange Securities in exchange for
Original Securities has been effected in compliance with the Securities
Act.
Each Security shall be dated the date of its authentication.
No Security or Senior Subordinated Guarantee endorsed thereon shall
be entitled to any benefit under this Indenture or be valid or obligatory for
any purpose unless there appears on such Security a certificate of
authentication substantially in the form provided for herein executed by the
Trustee by manual signature, and such certificate upon any Security shall be
conclusive evidence, and the only evidence, that such Security has been duly
authenticated and delivered hereunder and that each Senior Subordinated
Guarantee endorsed thereon has been duly endorsed thereon and delivered
hereunder.
SECTION 304. Temporary Securities.
Pending the preparation of definitive Securities and Senior
Subordinated Guarantees, the Company may execute, and upon Company Order the
Trustee shall authenticate and deliver, temporary Securities with temporary
Senior Subordinated Guarantees endorsed thereon, which Securities and Senior
Subordinated Guarantees are printed, lithographed, typewritten, mimeographed or
otherwise produced, in any authorized denomination, substantially of the tenor
of the definitive Securities and Senior
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Subordinated Guarantees, respectively, in lieu of which they are issued and with
such appropriate insertions, omissions, substitutions and other variations as
the officers executing such Securities and Senior Subordinated Guarantees may
determine, as evidenced by their execution thereof.
If temporary Securities are issued, the Company will cause
definitive Securities and Senior Subordinated Guarantees to be prepared without
unreasonable delay. After the preparation of definitive Securities and Senior
Subordinated Guarantees, the temporary Securities shall be exchangeable for
definitive Securities with definitive Senior Subordinated Guarantees endorsed
thereon, upon surrender of the temporary Securities at any office or agency of
the Company designated pursuant to Section 1002, without charge to the Holder.
Upon surrender for cancellation of any one or more temporary Securities the
Company shall execute and the Trustee shall authenticate and deliver in exchange
therefor a like principal amount of definitive Securities of authorized
denominations having endorsed thereon definitive Senior Subordinated Guarantees
executed by the Guarantors. Until so exchanged the temporary Securities and
Senior Subordinated Guarantees shall in all respects be entitled to the same
benefits under this Indenture as definitive Securities and Senior Subordinated
Guarantees, respectively.
SECTION 305. Global Securities.
(a) Each Global Security authenticated under this Indenture shall be
registered in the name of the Depositary designated by the Company for such
Global Security or a nominee thereof and delivered to such Depositary or a
nominee thereof or custodian therefor, and each such Global Security shall
constitute a single Security for all purposes of this Indenture.
(b) Notwithstanding any other provision in this Indenture, no Global
Security may be exchanged in whole or in part for Securities registered, and no
transfer of a Global Security in whole or in part may be registered, in the name
of any Person other than the Depositary for such Global Security or a nominee
thereof unless (i) such Depositary (A) has notified the Company that it is
unwilling or unable to continue as Depositary for such Global Security or (B)
has ceased to be a clearing agency registered as such under the Exchange Act,
and in either case the Company fails to appoint a successor Depositary, (ii) the
Company executes and delivers to the Trustee a Company Order stating that it
elects to cause the issuance of the Securities in certificated form and that all
Global Securities shall be
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exchanged in whole for Securities that are not Global Securities (in which case
such exchange shall be effected by the Trustee) or (iii) there shall have
occurred and be continuing an Event of Default with respect to such Global
Security.
(c) If any Global Security is to be exchanged for other Securities
or cancelled in whole, it shall be surrendered by or on behalf of the Depositary
or its nominee to the Trustee, as Security Registrar, for exchange or
cancellation as provided in this Article Three. If any Global Security is to be
exchanged for other Securities or cancelled in part, or if another Security is
to be exchanged in whole or in part for a beneficial interest in any Global
Security, then either (i) such Global Security shall be so surrendered for
exchange or cancellation as provided in this Article Three or (ii) the principal
amount thereof shall be reduced or increased by an amount equal to the portion
thereof to be so exchanged or cancelled, or equal to the principal amount of
such other Security to be so exchanged for a beneficial interest therein, as the
case may be, by means of an appropriate adjustment made on the records of the
Trustee, as Security Registrar, whereupon the Trustee, in accordance with the
Applicable Procedures, shall instruct the Depositary or its authorized
representative to make a corresponding adjustment to its records. Upon any such
surrender or adjustment of a Global Security, the Trustee shall, subject to
Section 306(c) and as otherwise provided in this Article Three, authenticate and
deliver any Securities issuable in exchange for such Global Security (or any
portion thereof) to or upon the order of, and registered in such names as may be
directed by, the Depositary or its authorized representative. Upon the request
of the Trustee in connection with the occurrence of any of the events specified
in the preceding paragraph, the Company shall promptly make available to the
Trustee a reasonable supply of Securities that are not in the form of Global
Securities. The Trustee shall be entitled to rely upon any order, direction or
request of the Depositary or its authorized representative which is given or
made pursuant to this Article Three if such order, direction or request is given
or made in accordance with the Applicable Procedures.
(d) Every Security authenticated and delivered upon registration of
transfer of, or in exchange for or in lieu of, a Global Security or any portion
thereof, whether pursuant to this Article Three or otherwise, shall be
authenticated and delivered in the form of, and shall be, a Global Security,
unless such Security is registered in the name of a Person other than the
Depositary for such Global Security or a nominee thereof.
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(e) The Depositary or its nominee, as registered owner of a Global
Security, shall be the Holder of such Global Security for all purposes under the
Indenture, the Securities and the Senior Subordinated Guarantees, and owners of
beneficial interests in a Global Security shall hold such interests pursuant to
the Applicable Procedures. Accordingly, any such owner's beneficial interest in
a Global Security will be shown only on, and the transfer of such interest shall
be effected only through, records maintained by the Depositary or its nominee or
its Agent Members.
SECTION 306. Registration, Registration of Transfer and
Exchange Generally; Restrictions on Transfer
and Exchange; Securities Act Legends.
(a) Registration, Registration of Transfer and Exchange Generally.
The Company shall cause to be kept at the Corporate Trust Office of the Trustee
a register (the register maintained in such office and in any other office or
agency of the Company designated pursuant to Section 1002 being herein sometimes
collectively referred to as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Securities and of transfers and exchanges of Securities. The
Trustee is hereby appointed "Security Registrar" for the purpose of registering
Securities and transfers and exchanges of Securities as herein provided. Such
Security Register shall distinguish between Original Securities and Exchange
Securities.
Upon surrender for registration of transfer of any Security at an
office or agency of the Company designated pursuant to Section 1002 for such
purpose, the Company shall execute, and the Trustee shall authenticate and
deliver, in the name of the designated transferee or transferees, one or more
new Securities of any authorized denominations, of a like aggregate principal
amount and bearing such restrictive legends as may be required by this
Indenture, each such new Security having endorsed thereon the Senior
Subordinated Guarantee executed by each Guarantor.
At the option of the Holder, and subject to the other provisions of
this Section 306, Securities may be exchanged for other Securities of any
authorized denominations, of a like aggregate principal amount, each such new
Security having endorsed thereon the Senior Subordinated Guarantee executed by
each Guarantor, upon surrender of the Securities to be exchanged at any such
office or agency. Whenever any Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate
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and deliver, the Securities which the Holder making the exchange is entitled to
receive.
All Securities and the Senior Subordinated Guarantees endorsed
thereon issued upon any registration of transfer or exchange of Securities shall
be the valid obligations of the Company and the respective Guarantors,
evidencing the same debt, and (except for the differences between Original
Securities and Exchange Securities provided for herein) entitled to the same
benefits under this Indenture, as the Securities and Senior Subordinated
Guarantees endorsed thereon, respectively, surrendered upon such registration of
transfer or exchange.
Every Security presented or surrendered for registration of transfer
or for exchange shall (if so required by the Company or the Security Registrar)
be duly endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 303, 304, 305, 306, 906, 1014, 1015 or 1109 not
involving any transfer.
The Company shall not be required (i) to issue, register the
transfer of or exchange any Security during a period beginning at the opening of
business 15 days before the day of the mailing of a notice of redemption of
Securities selected for redemption under Section 1105 and ending at the close of
business on the day of such mailing, or (ii) to register the transfer of or
exchange any Security so selected for redemption in whole or in part, except the
unredeemed portion of any Security being redeemed in part.
(b) Certain Transfers and Exchanges. Notwithstanding any other
provision of this Indenture or the Securities, transfers and exchanges of
Securities and beneficial interests in a Global Security of the kinds specified
in this Section 306(b) shall be made only in accordance with this Section
306(b).
(i) Restricted Global Security to Regulation S Global Security.
If the owner of a beneficial interest in the Restricted Global Security
wishes at any time to transfer such interest to a Person who wishes to
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acquire the same in the form of a beneficial interest in the Regulation S
Global Security, such transfer may be effected only in accordance with the
provisions of this Clause (b)(i) and Clause (b)(vii) below and subject to
the Applicable Procedures. Upon receipt by the Trustee, as Security
Registrar, of (A) an order given by the Depositary or its authorized
representative directing that a beneficial interest in the Regulation S
Global Security in a specified principal amount be credited to a specified
Agent Member's account and that a beneficial interest in the Restricted
Global Security in an equal principal amount be debited from another
specified Agent Member's account and (B) a Regulation S Certificate,
satisfactory to the Trustee and duly executed by the owner of such
beneficial interest in the Restricted Global Security or his attorney duly
authorized in writing, then the Trustee, as Security Registrar but subject
to Clause (b)(vii) below, shall reduce the principal amount of the
Restricted Global Security and increase the principal amount of the
Regulation S Global Security by such specified principal amount as
provided in Section 305(c).
(ii) Regulation S Global Security to Restricted Global Security.
If the owner of a beneficial interest in the Regulation S Global Security
wishes at any time to transfer such interest to a Person who wishes to
acquire the same in the form of a beneficial interest in the Restricted
Global Security, such transfer may be effected only in accordance with
this Clause (b)(ii) and subject to the Applicable Procedures. Upon receipt
by the Trustee, as Security Registrar, of (A) an order given by the
Depositary or its authorized representative directing that a beneficial
interest in the Restricted Global Security in a specified principal amount
be credited to a specified Agent Member's account and that a beneficial
interest in the Regulation S Global Security in an equal principal amount
be debited from another specified Agent Member's account and (B) if such
transfer is to occur during the Restricted Period, a Restricted Securities
Certificate, satisfactory to the Trustee and duly executed by the owner of
such beneficial interest in the Regulation S Global Security or his
attorney duly authorized in writing, then the Trustee, as Security
Registrar, shall reduce the principal amount of the Regulation S Global
Security and increase the principal amount of the Restricted Global
Security by such specified principal amount as provided in Section 305(c).
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(iii) Restricted Non-Global Security to Restricted Global Security
or Regulation S Global Security. If the Holder of a Restricted Security
(other than a Global Security) wishes at any time to transfer all or any
portion of such Security to a Person who wishes to take delivery thereof
in the form of a beneficial interest in the Restricted Global Security or
the Regulation S Global Security, such transfer may be effected only in
accordance with the provisions of this Clause (b)(iii) and Clause (b)(vii)
below and subject to the Applicable Procedures. Upon receipt by the
Trustee, as Security Registrar, of (A) such Restricted Security as
provided in Section 306(a) and instructions satisfactory to the Trustee
directing that a beneficial interest in the Restricted Global Security or
Regulation S Global Security in a specified principal amount not greater
than the principal amount of such Security be credited to a specified
Agent Member's account and (B) a Restricted Securities Certificate, if the
specified account is to be credited with a beneficial interest in the
Restricted Global Security, or a Regulation S Certificate, if the
specified account is to be credited with a beneficial interest in the
Regulation S Global Security, in either case satisfactory to the Trustee
and duly executed by such Holder or his attorney duly authorized in
writing, then the Trustee, as Security Registrar but subject to Clause
(b)(vii) below, shall cancel such Restricted Security (and issue a new
Restricted Security in respect of any untransferred portion thereof) as
provided in Section 306(a) and increase the principal amount of the
Restricted Global Security or the Regulation S Global Security, as the
case may be, by the specified principal amount as provided in Section
305(c).
(iv) Regulation S Non-Global Security to Restricted Global
Security or Regulation S Global Security. If the Holder of a Regulation S
Security (other than a Global Security) wishes at any time to transfer all
or any portion of such Restricted Security to a Person who wishes to take
delivery thereof in the form of a beneficial interest in the Restricted
Global Security or the Regulation S Global Security, such transfer may be
effected only in accordance with this Clause (b)(iv) and Clause (b)(vii)
below and subject to the Applicable Procedures. Upon receipt by the
Trustee, as Security Registrar, of (A) such Restricted Security as
provided in Section 306(a) and instructions satisfactory to the Trustee
directing that a beneficial interest in the Restricted Global Security or
Regula-
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tion S Global Security in a specified principal amount not greater than
the principal amount of such Security be credited to a specified Agent
Member's account and (B) if the transfer is to occur during the Restricted
Period and the specified account is to be credited with a beneficial
interest in the Restricted Global Security, a Restricted Securities
Certificate satisfactory to the Trustee and duly executed by such Holder
or his attorney duly authorized in writing, then the Trustee, as Security
Registrar but subject to Clause (b)(vii) below, shall cancel such
Restricted Security (and issue a new Restricted Security in respect of any
untransferred portion thereof) as provided in Section 306(a) and increase
the principal amount of the Restricted Global Security or the Regulation S
Global Security, as the case may be, by the specified principal amount as
provided in Section 305(c).
(v) Non-Global Security to Non-Global Security. A Security that
is not a Global Security may be transferred, in whole or in part, to a
Person who takes delivery in the form of another Security that is not a
Global Security as provided in Section 306(a), provided that, if the
Security to be transferred in whole or in part is a Restricted Security,
or is a Regulation S Security and the transfer is to occur during the
Restricted Period, then the Trustee shall have received (A) a Restricted
Securities Certificate, satisfactory to the Trustee and duly executed by
the transferor Holder or his attorney duly authorized in writing, in which
case the transferee Holder shall take delivery in the form of a Restricted
Security, or (B) a Regulation S Certificate, satisfactory to the Trustee
and duly executed by the transferor Holder or his attorney duly authorized
in writing, in which case the transferee Holder shall take delivery in the
form of a Regulation S Security (subject in every case to Section 306(c)).
(vi) Exchanges between Global Security and Non-Global Security.
A beneficial interest in a Global Security may be exchanged for a Security
that is not a Global Security as provided in Section 305, provided that,
if such interest is a beneficial interest in the Restricted Global
Security, or if such interest is a beneficial interest in the Regulation S
Global Security and such exchange is to occur during the Restricted
Period, then such interest shall be exchanged for a Restricted Security
(subject in each case to Section 306(c)). A Security that is not a Global
Security may be exchanged for a beneficial interest in
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a Global Security only if (A) such exchange occurs in connection with a
transfer effected in accordance with Clause (b)(iii) or (iv) above or (B)
such Security is a Regulation S Security and such exchange occurs after
the Restricted Period.
(vii) Regulation S Global Security to be Held Through Euroclear or
Cedel during Restricted Period. The Company shall use its best efforts to
cause the Depositary to ensure that, until the expiration of the
Restricted Period, beneficial interests in the Regulation S Global
Security may be held only in or through accounts maintained at the
Depositary by Euroclear or Cedel (or by Agent Members acting for the
account thereof), and no person shall be entitled to effect any transfer
or exchange that would result in any such interest being held otherwise
than in or through such an account; provided that this Clause (b)(vii)
shall not prohibit any transfer or exchange of such an interest in
accordance with Clause (b)(ii) or (vi) above.
(c) Securities Act Legends. Rule 144A Securities, IAI Securities and
their respective Successor Securities shall bear a Restricted Securities Legend,
and Regulation S Securities and their Successor Securities shall bear a
Regulation S Legend, subject to the following:
(i) subject to the following Clauses of this Section 306(c), a
Security or any portion thereof which is exchanged, upon transfer or
otherwise, for a Global Security or any portion thereof shall bear the
Securities Act Legend borne by such Global Security while represented
thereby;
(ii) subject to the following Clauses of this Section 306(c), a
new Security which is not a Global Security and is issued in exchange for
another Security (including a Global Security) or any portion thereof,
upon transfer or otherwise, shall bear the Securities Act Legend borne by
such other Security, provided that, if such new Security is required
pursuant to Section 306(b)(v) or (vi) to be issued in the form of a
Restricted Security, it shall bear a Restricted Securities Legend and, if
such new Security is so required to be issued in the form of a Regulation
S Security, it shall bear a Regulation S Legend;
(iii) Registered Securities shall not bear a Securities Act
Legend;
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(iv) at any time after the Securities may be freely transferred
without registration under the Securities Act or without being subject to
transfer restrictions pursuant to the Securities Act, a new Security which
does not bear a Securities Act Legend may be issued in exchange for or in
lieu of a Security (other than a Global Security) or any portion thereof
which bears such a legend if the Trustee has received an Unrestricted
Securities Certificate, satisfactory to the Trustee and duly executed by
the Holder of such legended Security or his attorney duly authorized in
writing, and after such date and receipt of such certificate, the Trustee
shall authenticate and deliver such a new Security in exchange for or in
lieu of such other Security as provided in this Article Three;
(v) a new Security which does not bear a Securities Act Legend
may be issued in exchange for or in lieu of a Security (other than a
Global Security) or any portion thereof which bears such a legend if, in
the Company's judgment, placing such a legend upon such new Security is
not necessary to ensure compliance with the registration requirements of
the Securities Act, and the Trustee, at the direction of the Company,
shall authenticate and deliver such a new Security as provided in this
Article Three; and
(vi) notwithstanding the foregoing provisions of this Section
306(c), a Successor Security of a Security that does not bear a particular
form of Securities Act Legend shall not bear such form of legend unless
the Company has reasonable cause to believe that such Successor Security
is a "restricted security" within the meaning of Rule 144, in which case
the Trustee, at the direction of the Company, shall authenticate and
deliver a new Security bearing a Restricted Securities Legend in exchange
for such Successor Security as provided in this Article Three.
SECTION 307. Mutilated, Destroyed, Lost and
Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of like tenor and principal amount, having endorsed
thereon the Senior Subordinated Guarantees executed by the Guarantors and
bearing a number not contemporaneously outstanding.
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If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any Security
and (ii) such security or indemnity as may be required by either of them to save
each of them, each Guarantor and any agent of any of them harmless, then, in the
absence of notice to the Company or the Trustee that such Security has been
acquired by a bona fide purchaser, the Company shall execute and upon its
request the Trustee shall authenticate and deliver, in lieu of any such
destroyed, lost or stolen Security, a new Security of like tenor and principal
amount, having endorsed thereon the Senior Subordinated Guarantees executed by
the Guarantors and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security issued pursuant to this Section in lieu of any
mutilated, destroyed, lost or stolen Security, and each Senior Subordinated
Guarantee endorsed thereon, shall constitute an original additional contractual
obligation of the Company and the relevant Guarantor, respectively, whether or
not the mutilated, destroyed, lost or stolen Security shall be at any time
enforceable by anyone, and shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Securities and
Senior Subordinated Guarantees, respectively, duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies of any Holder with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Securities.
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SECTION 308. Payment of Interest; Interest
Rights Preserved.
Interest on any Security which is payable, and is punctually paid or
duly provided for, on any Interest Payment Date shall be paid to the Person in
whose name that Security (or one or more Predecessor Securities) is registered
at the close of business on the Regular Record Date for such interest.
Any interest on any Security which is payable, but is not punctually
paid or duly provided for, on any Interest Payment Date (herein called
"Defaulted Interest") shall forthwith cease to be payable to the Holder on the
relevant Regular Record Date by virtue of having been such Holder, and such
Defaulted Interest may be paid by the Company, at its election in each case, as
provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest
to the Persons in whose names the Securities (or their respective
Predecessor Securities) are registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest, which
shall be fixed in the following manner. The Company shall notify the
Trustee in writing of the amount of Defaulted Interest proposed to be paid
on each Security and the date of the proposed payment, and at the same
time the Company shall deposit with the Trustee an amount of money equal
to the aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements satisfactory to the Trustee for such
deposit prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons entitled to
such Defaulted Interest as in this Clause 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 Securities at
such Holder's address as it appears in the Security Register, not less
than 10 days prior to such Special Record Date. Notice of the proposed
payment of such Defaulted Interest and the
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Special Record Date therefor having been so mailed, such Defaulted
Interest shall be paid to the Persons in whose names the 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) The Company may make payment of any Defaulted Interest in any
other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities may be listed, and upon such
notice as may be required by such exchange, if, after notice given by the
Company to the Trustee of the proposed payment pursuant to this Clause,
such manner of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
SECTION 309. Persons Deemed Owners.
Prior to due presentment of a 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 Security is
registered as the owner of such Security for the purpose of receiving payment of
principal of (and premium, if any) and (subject to Section 308) interest on such
Security and for all other purposes whatsoever, whether or not such Security be
overdue, and neither the Company, the Guarantors, the Trustee nor any agent of
the Company, any Guarantor or the Trustee shall be affected by notice to the
contrary.
SECTION 310. Cancellation.
All Securities surrendered for payment, redemption, repurchase
pursuant to any Offer to Purchase, registration of transfer or exchange shall,
if surrendered to any Person other than the Trustee, be delivered to the Trustee
and, together with the Senior Subordinated Guarantees endorsed thereon, shall be
promptly cancelled by it. The Company may at any time deliver to the Trustee for
cancellation any Securities previously authenticated and delivered hereunder
which the Company may have acquired in any manner whatsoever, and all Securities
so delivered shall, together with the Senior Subordinated Guarantees endorsed
thereon, be promptly cancelled by the Trustee. No
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Securities shall be authenticated in lieu of or in exchange for any Securities
cancelled as provided in this Section, except as expressly permitted by this
Indenture. All cancelled Securities held by the Trustee, together with the
Senior Subordinated Guarantees endorsed thereon, shall be disposed of by the
Trustee and the Trustee will certify as to such disposal to the reasonable
satisfaction of the Company.
SECTION 311. Computation of Interest.
Interest on the Securities shall be computed on the basis of a
360-day year of twelve 30-day months provided, however, that any Special
Interest on Original Securities and any interest on overdue principal of (and
premium, if any) and interest on any Securities, shall be computed on the basis
of a 365-day or 366-day year, as the case may be, and the number of days
actually elapsed during the relevant Registration Default Period or the period
of default in the payment of such overdue principal (and premium, if any) or
interest.
Solely for purposes of disclosure under the Interest Act (Canada),
if and to the extent it may be applicable, and only for such purposes, when
interest under this Indenture is calculated using a rate based on a year of 360
days, such rate, when expressed as an annual rate, is equivalent to (x) the
applicable rate based on a year of 360 days, (y) multiplied by the actual number
of days in the calendar year in which the period for which such interest is
payable (or compounded) ends, and (z) divided by 360. Nothing contained in this
paragraph shall in any way affect the amount of interest payable hereunder or
the manner in which interest shall accrue or shall be payable hereunder.
ARTICLE FOUR
Satisfaction and Discharge
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall cease to be of further effect (except as to any
surviving rights of registration of transfer or exchange of Securities herein
expressly provided for), and the Trustee, on demand of and at the expense of the
Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when
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(1) either
(A) all Securities theretofore authenticated and delivered
(other than (i) Securities which have been destroyed, lost or stolen
and which have been replaced or paid as provided in Section 307 and
(ii) Securities for whose payment money 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 1003) have been delivered to the Trustee for
cancellation; or
(B) all such Securities not theretofore delivered to the
Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated
Maturity within one year, or
(iii) are to be called for redemption within one year
under arrangements satisfactory to the Trustee for the giving
of notice of redemption by the Trustee in the name, and at the
expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above, has
deposited or caused to be deposited with the Trustee as trust funds
in trust for the purpose an amount sufficient to pay and discharge
the entire indebtedness on such Securities not theretofore delivered
to the Trustee for cancellation, for principal (and premium, if any)
and interest to the date of such deposit (in the case of Securities
which have become due and payable) or to the Stated Maturity or
Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company and 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 have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee
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under Section 607, the obligations of the Trustee to any Authenticating Agent
under Section 614 and, if money shall have been deposited with the Trustee
pursuant to subclause (B) of Clause (1) of this Section, the obligations of the
Trustee under Section 402 and the last paragraph of Section 1003 shall survive.
SECTION 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003, all
money deposited with the Trustee pursuant to Section 401 shall be held in trust
and applied by it, in accordance with the provisions of the Securities 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 (and premium, if
any) and interest for whose payment such money has been deposited with the
Trustee.
ARTICLE FIVE
Remedies
SECTION 501. Events of Default.
"Event of Default", wherever used herein, means any one of the
following events (whatever the reason for such Event of Default and whether it
shall be voluntary or involuntary or be effected by operation of law or pursuant
to any judgment, decree or order of any court or any order, rule or regulation
of any administrative or governmental body):
(1) default in the payment of any interest upon any Security when it
becomes due and payable, and continuance of such default for a period of
30 days; or
(2) default in the payment of the principal of (or premium, if any,
on) any Security at its Maturity (whether or not such payment is
prohibited by Article Fourteen); or
(3) failure to perform or comply with the provisions of Sections
801, 1014 and 1015; or
(4) default in the performance, or breach, of any covenant or
warranty of the Company or any Guarantor in this Indenture (other than a
covenant or warranty a default in whose performance or whose breach is
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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 106, 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 a written notice
specifying such default or breach and requiring it to be remedied and
stating that such notice is a "Notice of Default" hereunder; or
(5) a default or defaults under the terms of any bond(s),
debenture(s), note(s) or other evidence(s) of, or obligations
constituting, Debt by the Company, any Guarantor or any Restricted
Subsidiary, or under any mortgage(s), indenture(s), agreement(s) or
instrument(s) under which there may be issued or by which there may be
secured or evidenced, any Debt of the Company, any Guarantor or any
Restricted Subsidiary with a principal amount then outstanding,
individually or in the aggregate, in excess of $25 million, whether such
Debt now exists or is hereafter Incurred, which default or defaults
constitute a failure to pay any portion of the principal or similar amount
of such Debt when due and payable after the expiration of any applicable
grace period with respect thereto or will have resulted 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
(6) a final judgment or final judgments (not subject to appeal) for
the payment of money are entered against the Company, Allied Parent,
Allied Finance or any Restricted Subsidiary in an aggregate amount in
excess of $25 million by a court or courts of competent jurisdiction,
which judgments remain unstayed, undischarged or unbonded for a period of
60 days after the entry of such Judgment or Judgments; or
(7) the entry by a court having jurisdiction in the premises of (A)
a decree or order for relief in respect of the Company, Allied Parent,
Allied Finance or any Restricted Subsidiary in an involuntary case or
proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or (B) a decree or order adjudging the
Company, Allied Parent, Allied Finance 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 Parent, Allied Finance or any
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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 Parent,
Allied Finance or any Restricted Subsidiary or of any substantial part of
the property of the Company, Allied Parent, Allied Finance or any
Restricted Subsidiary, or ordering the winding up or liquidation of the
affairs of the Company, Allied Parent, Allied Finance 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
(8) the commencement by the Company, Allied Parent, Allied Finance
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 Parent,
Allied Finance or any Restricted Subsidiary to the entry of a decree or
order for relief in respect of the Company, Allied Parent, Allied Finance
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 Parent, Allied Finance or
any Restricted Subsidiary or the filing by the Company, Allied Parent,
Allied Finance 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 Parent, Allied Finance 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
Parent, Allied Finance or any Restricted Subsidiary or of any substantial
part of the property of the Company, Allied Parent, Allied Finance or any
Restricted Subsidiary, or the making by the Company, Allied Parent, Allied
Finance or any Restricted Subsidiary of an assignment for the benefit of
creditors, or the admission by the Company, Allied Parent, Allied Finance
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 Parent, Allied Finance or any Restricted Subsidiary in
furtherance of any such action.
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SECTION 502. Acceleration of Maturity; Rescission
and Annulment.
If an Event of Default (other than an Event of Default specified in
Section 501(7) or (8)) occurs and is continuing, then and in every such case the
Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Securities may declare the principal of all the Securities to be due
and payable immediately, by a notice in writing to the Company (and to the
Trustee if given by the Holders), and upon any such declaration such principal
and any accrued interest shall become immediately due and payable. If an Event
of Default specified in Section 501(7) or (8) occurs and is continuing, the
principal of and any accrued interest on the Securities then Outstanding shall
automatically, and without any declaration or other action on the part of the
Trustee or any Holder, become immediately due and payable.
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 a
majority in principal amount of the Outstanding Securities, 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,
(B) the principal of (and premium, if any, on) any Securities
which have become due otherwise than by such declaration of
acceleration (including any Securities required to have been
purchased on the Purchase Date pursuant to an Offer to Purchase made
by the Company) and any interest thereon at the rate borne by the
Securities,
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate provided therefor in the
Securities, and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel;
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and
(2) all Events of Default, other than the non-payment of the
principal of Securities which have become due solely by such declaration
of acceleration, have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 503. Collection of Indebtedness and Suits
for Enforcement by Trustee.
The Company covenants that if
(1) default is made in the payment of any interest on any Security
when such interest becomes due and payable and such default continues for
a period of 30 days, or
(2) default is made in the payment of the principal of (or premium,
if any, on) any Security at the Maturity thereof or, with respect to any
Security required to have been purchased pursuant to an Offer to Purchase
made by the Company, at the Purchase Date thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal (and premium, if any) and interest, and, to the extent
that payment of such interest shall be legally enforceable, interest on any
principal (and premium, if any) and interest that is overdue, at the rate
provided therefor in the Securities, and, in addition thereto, such further
amount as shall be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel.
If an Event of Default occurs and is continuing, the Trustee may in
its discretion proceed to protect and enforce its rights and the rights of the
Holders by such appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
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SECTION 504. Trustee May File Proofs of Claim.
In case of any judicial proceeding relative to the Company, any
Guarantor or any other obligor upon the Securities or the property of the
Company 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, including participation as a member, voting or
otherwise, of any committee of creditors, authorized under the Trust Indenture
Act in order to have claims of the Holders and the Trustee allowed in any such
proceeding. In particular, the Trustee shall be authorized to collect and
receive any moneys or other property payable or deliverable on any such claims
and to distribute the same; and any custodian, receiver, assignee, trustee,
liquidator, sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Holder to make such payments to the
Trustee and, in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any amount due it for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 607.
Notwithstanding the foregoing, no provision of this Indenture shall
be deemed to authorize the Trustee to authorize or consent to or accept or adopt
on behalf of any Holder any plan of reorganization, arrangement, adjustment or
composition affecting the Securities or the rights of any Holder thereof or to
authorize the Trustee to vote in respect of the claim of any Holder in any such
proceeding; provided, however, that the Trustee may, on behalf of such Holders,
vote for the election of a trustee in bankruptcy or similar official and be a
member of a creditors' or other such committee.
SECTION 505. Trustee May Enforce Claims
Without Possession of Securities.
All rights of action and claims under this Indenture or the
Securities or any Senior 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.
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SECTION 506. Application of Money Collected.
Subject to Article Fourteen, any money collected by the Trustee
pursuant to this Article, the Collateral Agreement or the Credit Suisse Letter
of Credit, in each case shall be applied in the following order, at the date or
dates fixed by the Trustee and, in case of the distribution of such money on
account of principal (or premium, if any) or interest, upon presentation of the
Securities and the notation thereon of the payment if only partially paid and
upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the
Trustee under Section 607; and
SECOND: To the payment of the amounts then due and unpaid for
principal of (and premium, if any) and interest on the Securities in
respect of which or for the benefit of which such money has been
collected, ratably, without preference or priority of any kind, according
to the amounts due and payable on such Securities for principal (and
premium, if any) and interest, respectively.
SECTION 507. Limitation on Suits.
No Holder of any Security shall have any right to institute any
proceeding, judicial or otherwise, with respect to this Indenture, or for the
appointment of a receiver or trustee, or for any other remedy hereunder, unless
(1) such Holder has previously given written notice to the Trustee
of a continuing Event of Default;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default in its own name
as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
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(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Securities;
it being understood and intended that no one or more Holders shall have any
right in any manner whatever by virtue of, or by availing of, any provision of
this Indenture to affect, disturb or prejudice the rights of any other Holders,
or to obtain or to seek to obtain priority or preference over any other Holders
or to enforce any right under this Indenture, except in the manner herein
provided and for the equal and ratable benefit of all the Holders.
SECTION 508. Unconditional Right of Holders to
Receive Principal, Premium and
Interest.
Notwithstanding any other provision in this Indenture, but subject
to the provisions of Article Fourteen, the Holder of any Security shall have the
right, which is absolute and unconditional, to receive payment of the principal
of (and premium, if any) and (subject to Section 308) interest on such Security
on the respective Stated Maturities expressed in such Security (or, in the case
of redemption or repurchase, on the Redemption Date or the Purchase Date, as the
case may be) and to institute suit for the enforcement of any such payment, and
such rights shall not be impaired without the consent of such Holder.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the 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 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities in the last paragraph
of Section 307, no right or remedy herein conferred upon or reserved to the
Trustee or to the Holders is intended to be exclusive of any
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other right or remedy, and every right and remedy shall, to the extent permitted
by law, be cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity or otherwise. The
assertion or employment of any right or remedy hereunder, or otherwise, shall
not prevent the concurrent assertion or employment of any other appropriate
right or remedy.
SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Security
to exercise any right or remedy accruing upon any Event of Default shall impair
any such right or remedy or constitute a waiver of any such Event of Default or
an acquiescence therein. Every right and remedy given by this Article or by law
to the Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Holders, as the case
may be.
SECTION 512. Control by Holders.
The Holders of a majority in principal amount of the Outstanding
Securities shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or exercising
any trust or power conferred on the Trustee, provided that
(1) such direction shall not be in conflict with any rule of law or
with this Indenture, and
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
SECTION 513. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Securities may on behalf of the Holders of all the Securities waive
any past default hereunder and its consequences, except a default
(1) in the payment of the principal of (or premium, if any) or
interest on any Security (including any Security which is required to have
been purchased pursuant to an Offer to Purchase made by the Company), or
(2) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended
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without the consent of the Holder of each Outstanding Security affected.
Upon any such waiver, such default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
SECTION 514. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken, suffered or
omitted by it as Trustee, a court may require any party litigant in such suit to
file an undertaking to pay the costs of such suit, and may assess costs against
any such party litigant, in the manner and to the extent provided in the Trust
Indenture Act; provided, that neither this Section nor the Trust Indenture Act
shall be deemed to authorize any court to require such an undertaking or to make
such an assessment in any suit instituted by the Company, any Guarantor, the
Trustee or any Holder, or group of Holders, holding in the aggregate at least
10% in principal amount of the Outstanding Securities or in any suit instituted
by any Holder for the enforcement of principal of (and 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, on or after the Redemption Date
or, in the case of any purchase required to be made pursuant to an Offer to
Purchase, on or after the Purchase Date).
SECTION 515. Waiver of Stay, Usury or Extension Laws.
Each of the Company and the Guarantors covenants (to the extent that
it may lawfully do so) that it will not at any time insist upon, or plead, or in
any manner whatsoever claim or take the benefit or advantage of, any stay, usury
or extension law wherever enacted, now or at any time hereafter in force, which
may affect the covenants or the performance of this Indenture; and each of the
Company and the Guarantors (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law and covenants that it
will not hinder, delay or impede the execution of any power herein granted to
the Trustee, but will suffer and permit the execution of every such power as
though no such law had been enacted.
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ARTICLE SIX
The Trustee
SECTION 601. Certain Duties and Responsibilities.
The duties and responsibilities of the Trustee shall be as provided
by the Trust Indenture Act, and shall include taking such actions and exercising
such rights with respect to the Collateral (pursuant to the Collateral Agreement
and making such drawings under the Credit Suisse Letter of Credit as may be
necessary to protect and enforce the rights of the Holders under the Securities
and this Indenture and as otherwise required by the other provisions of this
Indenture. Notwithstanding the foregoing, no provision of this Indenture or the
Collateral Agreement 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 thereunder, 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 herein or therein expressly so provided, every
provision of this Indenture and the Collateral Agreement 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 602. Notice of Defaults.
The Trustee shall give the Holders notice of any default hereunder
as and to the extent provided by the Trust Indenture Act; provided, however,
that in the case of any default of the character specified in Section 501(4), no
such notice to Holders shall be given until at least 30 days after the
occurrence thereof. For the purpose of this Section, the term "default" means
any event which is, or after notice or lapse of time or both would become, an
Event of Default.
SECTION 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness
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or other paper or document believed by it to be genuine and to have been
signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall
be sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors may be sufficiently evidenced by a
Board Resolution;
(c) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may, in the absence of
bad faith on its part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless such
Holders shall have offered to the Trustee reasonable security or indemnity
against the costs, expenses and liabilities which might be incurred by it
in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as it may see fit,
and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and
premises of the Company, personally or by agent or attorney;
(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
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negligence on the part of any agent or attorney appointed with due care by
it hereunder; and
(h) Except with respect to Section 1001, the Trustee shall have no
duty to inquire as to the performance by the Company or any Guarantor of
the covenants set forth n Article Ten beyond its good faith review of any
certificates or other notices received by it from the Company or any
Guarantor.
SECTION 604. Not Responsible for Recitals
or Issuance of Securities.
The recitals contained herein and in the Securities and the Senior
Subordinated Guarantees endorsed thereon, except the Trustee's certificates of
authentication, shall be taken as the statements of the Company or the
Guarantors, as the case may be, and the Trustee assumes no responsibility for
their correctness. The Trustee makes no representations as to the validity or
sufficiency of this Indenture, the Securities or the Senior Subordinated
Guarantees endorsed thereon. The Trustee shall not be accountable for the use or
application by the Company of Securities or the proceeds thereof.
SECTION 605. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any
Security Registrar or any other agent of the Company, any Guarantor or the
Trustee, in its individual or any other capacity, may become the owner or
pledgee of Securities and, subject to Sections 608 and 613, may otherwise deal
with the Company, any Guarantor and any other obligor upon the Securities and
the Senior Subordinated Guarantees with the same rights it would have if it were
not Trustee, Authenticating Agent, Paying Agent, Security Registrar or such
other agent.
SECTION 606. Money Held in Trust.
Subject to the requirements of the Collateral Agreement with respect
to the Collateral, money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law. The Trustee
shall be under no liability for interest on any money received by it hereunder
except as otherwise agreed with the Company or any Guarantor, as the case may
be.
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SECTION 607. Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time reasonable compensation
for all services rendered by it hereunder and under the Collateral
Agreement (which compensation shall not be limited by any provision of law
in regard to the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision
of this Indenture and the Collateral Agreement (including the reasonable
compensation and the expenses and disbursements of its agents and
counsel), except any such expense, disbursement or advance as may be
attributable to its negligence or bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless against,
any loss, liability or expense incurred without negligence or bad faith on
its part, arising out of or in connection with the acceptance or
administration of this trust and the trust contemplated by the Collateral
Agreement, 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 608. Disqualification; Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within
the meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture.
SECTION 609. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be a
Person that is eligible pursuant to the Trust Indenture Act to act as such, has
a combined capital and surplus of at least $50 million and has its Corporate
Trust Office located in the Borough of Manhattan, The City of New York. If such
Person publishes reports of condition at least annually, pursuant to law or to
the requirements of its supervising or examining authority, then for the
purposes of this Section, the combined capital and surplus
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of such Person shall be deemed to be its combined capital and surplus as set
forth in its most recent report of condition so published. If at any time the
Trustee shall cease to be eligible in accordance with the provisions of this
Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
SECTION 610. Resignation and Removal;
Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee under Section 611.
(b) The Trustee may resign at any time by giving written notice
thereof to the Company. If an instrument of acceptance by a successor Trustee
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.
(c) The Trustee may be removed at any time by Act of the Holders of
a majority in principal amount of the Outstanding Securities, delivered to the
Trustee and the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608 after written
request therefor by the Company or by any Holder who has been a bona fide
Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 609 and
shall fail to resign after written request therefor by the Company or by
any such Holder, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee, or (ii) subject to Section 514, any Holder who has been a bona fide
Holder of a Security for
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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 and
the appointment of a successor Trustee.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, the
Company, by a Board Resolution, shall promptly appoint a successor Trustee. If,
within one year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee shall be appointed by Act of the
Holders of a majority in principal amount of the Outstanding Securities
delivered to the Company and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of such appointment, become the
successor Trustee and supersede the successor Trustee appointed by the Company.
If no successor Trustee shall have been so appointed by the Company or the
Holders and accepted appointment in the manner hereinafter provided, 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 appointment of a successor Trustee.
(f) The Company shall give notice of each resignation and each
removal of the Trustee and each appointment of a successor Trustee to all
Holders in the manner provided in Section 106. Each notice shall include the
name of the successor Trustee and the address of its Corporate Trust Office.
SECTION 611. Acceptance of Appointment by Successor.
Every successor Trustee appointed hereunder 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
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. Upon request of any
such successor Trustee, the Company and the Guarantors shall execute any and all
instruments for more fully and certainly
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vesting in and confirming to such successor Trustee all such
rights, powers and trusts.
No successor Trustee shall accept its appointment unless at the time
of such acceptance such successor Trustee shall be qualified and eligible under
this Article.
SECTION 612. Merger, Conversion, Consolidation
or Succession to Business.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such Securities.
SECTION 613. Preferential Collection
of Claims Against Company.
If and when the Trustee shall be or become a creditor of the
Company, any Guarantor or any other obligor upon the Securities or any Senior
Subordinated Guarantee, the Trustee shall be subject to the provisions of the
Trust Indenture Act regarding the collection of claims against the Company, any
Guarantor or any such other obligor.
SECTION 614. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents which
shall be authorized to act on behalf of the Trustee to authenticate Securities
issued upon original issue and upon exchange, registration of transfer, partial
redemption or partial purchase or pursuant to Section 307, and Securities so
authenticated, and the Senior Subordinated Guarantees endorsed thereon, shall be
entitled to the benefits of this Indenture and shall be valid and obligatory for
all purposes as if such Securities had been 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
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authentication, such reference shall be deemed to include authentication and
delivery on behalf of the Trustee by an Authenticating Agent and a certificate
of authentication executed on behalf of the Trustee by an Authenticating Agent.
Each Authenticating Agent shall be acceptable to the Company and shall at all
times be a corporation organized and doing business under the laws of the United
States of America, any State thereof or the District of Columbia, authorized
under such laws to act as Authenticating Agent, having a combined capital and
surplus of not less than $50 million 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 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 the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall mail written notice of
such appointment first-class postage prepaid, to each Holder of Securities at
such Holder's address as it appears in the Security Register. Any successor
Authenticating Agent upon acceptance of its appointment hereunder shall become
vested with all the rights, powers and duties of its predecessor
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hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Trustee agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section, and the
Trustee shall be entitled to be reimbursed for such payments, subject to the
provisions of Section 607.
If an appointment is made pursuant to this Section, the Securities
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 described in the within-mentioned
Indenture.
______________________________,
As Trustee
By___________________________,
As Authenticating Agent
By___________________________
Authorized Officer
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company
SECTION 701. Company to Furnish Trustee
Names and Addresses of Holders.
The Company will furnish or cause to be furnished
to the Trustee
(a) semi-annually, not more than 15 days after each Regular Record
Date, a list, in such form as the Trustee may reasonably require, of the
names and addresses of the Holders as of such Regular Record Date, and
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(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a
list of similar form and content as of a date not more than 15 days prior
to the time such list is furnished;
excluding from any such list names and addresses received by the Trustee in its
capacity as Security Registrar.
SECTION 702. Preservation of Information;
Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders contained in the most
recent list furnished to the Trustee as provided in Section 701 and the names
and addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished.
(b) The rights of Holders to communicate with other Holders with
respect to their rights under this Indenture or under the Securities, and the
corresponding rights and duties of the Trustee, shall be as provided by the
Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding the same,
agrees with the Company, the Guarantors 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 any disclosure of information as to names and
addresses of Holders made pursuant to the Trust Indenture Act.
SECTION 703. Reports by Trustee.
(a) The Trustee shall transmit to Holders such reports concerning
the Trustee and its actions under this Indenture as may be required pursuant to
the Trust Indenture Act at the times and in the manner provided pursuant
thereto.
(b) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange upon
which the Securities are listed, with the Commission and with the Company. The
Company will notify the Trustee when the Securities are listed on any stock
exchange.
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SECTION 704. Reports by Company and Guarantors.
The Company and each of the Guarantors shall file with the Trustee
and the Commission, and transmit to Holders, such information, documents and
other reports, and such summaries thereof, as may be required pursuant to the
Trust Indenture Act at the times and in the manner provided pursuant to such
Act; provided that any such information, documents or reports required to be
filed with the Commission pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934 shall be filed with the Trustee within 15 days after the
same is so required to be filed with the Commission.
SECTION 705. Officers' Certificate with Respect to Change
in Interest Rates.
Within five days after the day on which any Special Interest begins
accruing, and within five days after any Special Interest ceases to accrue, the
Company shall deliver an Officers' Certificate to the Trustee stating the
interest rate thereupon in effect for the Unregistered Securities (if any are
Outstanding) and the date on which such rate became effective.
ARTICLE EIGHT
Merger, Consolidation, Etc.
SECTION 801. Mergers, Consolidations and Certain
Transfers, Leases and Acquisitions of Assets.
The Company (a) shall not, and shall not permit any Restricted
Subsidiary to, consolidate with or merge into any Person, in the case of a
Restricted Subsidiary, in a transaction in which such Restricted Subsidiary
remains a Restricted Subsidiary, unless such Restricted Subsidiary consolidates
with or merges into a Wholly Owned Restricted Subsidiary; (b) shall not permit
any Person other than a Wholly Owned Restricted Subsidiary to consolidate with
or merge into (i) the Company or (ii) any Restricted Subsidiary in a transaction
in which such Restricted Subsidiary remains a Restricted Subsidiary; (c) shall
not, directly or indirectly, in one or a series of transactions, transfer,
convey, sell, lease or otherwise dispose of all or substantially all of the
properties and assets of the Company and its Subsidiaries on a consolidated
basis; and (d) shall not, and shall not permit any Restricted Subsidiary to, in
one or a series of transactions, (i) acquire Capital Stock of or other ownership
interests in any other Person such that such
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other Person becomes a Restricted Subsidiary (excluding the Acquisition and
other transactions with an aggregate purchase price of not more than $50 million
with respect to the consummation of which, as of the date of this Indenture, the
Company has entered into a letter of intent, option or other contract) or (ii)
directly or indirectly, purchase, lease or otherwise acquire all or
substantially all of the properties and assets of any Person or any existing
business (whether existing as a separate entity, subsidiary, division, unit or
otherwise) of any Person (excluding the Acquisition and other transactions with
an aggregate purchase price of not more than $50 million with respect to the
consummation of which, as of the date of this Indenture, the Company has entered
into a letter of intent, option or other contract); unless, in any such
transaction (or series) contemplated by Clause (a), (b), (c) or (d) above:
(1) immediately before and after giving effect to such transaction
(or series) and treating any Debt Incurred by the Company or a Subsidiary
of the Company as a result of such transaction (or series) as having been
Incurred by the Company or such Subsidiary at the time of such transaction
(or series), no Event of Default, and no event which, after notice or
lapse of time, or both, would become an Event of Default, shall have
occurred and be continuing;
(2) in case the Company shall consolidate with or merge into another
Person or shall directly or indirectly, in one or a series of
transactions, transfer, convey, sell, lease or otherwise dispose of all or
substantially all of its properties and assets as an entirety, the Person
formed by such consolidation or into which the Company is merged or the
Person which acquires by transfer, conveyance, sale, lease or other
disposition all or substantially all of the properties and assets of the
Company and its Subsidiaries on a consolidated basis (for purposes of this
Article Eight, 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 (and premium, if any) and interest on all the Securities and the
performance of every covenant of this Indenture on the part of the Company
to be performed or observed;
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(3) immediately after giving effect to such transaction (or series),
the Consolidated Net Worth of the Company or, if applicable, the Successor
Company shall be equal to or greater than 90% of the Consolidated Net
Worth of the Company immediately prior to such transaction (or series);
(4) either (x) the Company or, if applicable, the Successor Company
would, at the time of such transaction (or series) and after giving pro
forma effect thereto as if such transaction (or series) had occurred at
the beginning of the most recently ended four full fiscal quarter period
for which internal financial statements are available immediately
preceding the date of such transaction (or series), have been permitted to
Incur at least $1.00 of additional Debt pursuant to the Consolidated
EBITDA Coverage Ratio test set forth in the first paragraph of Section
1008 or (y) the Consolidated EBITDA Coverage Ratio of the Company or, if
applicable, the Successor Company for the most recently ended four full
fiscal quarter period for which internal financial statements are
available immediately preceding consummation of such transaction (or
series) calculated on a pro forma basis as if such transaction (or series)
had occurred at the beginning of such four full fiscal quarter period,
would be no less than such Consolidated EBITDA Coverage Ratio, calculated
without giving effect to such transaction or series or any other
transactions (or series) that is subject to the provisions of this Section
and that occurred after the later of the Acquisition Closing and the date
that is twelve months before the date of such transaction (or series);
(5) if, as a result of any such transaction (or series), property
and assets of the Company or any Restricted Subsidiary of the Company
would become subject to a Lien which would not be permitted by Section
1012, the Company or, if applicable, the Successor Company, as the case
may be, will have taken such steps as necessary effectively to secure the
Securities equally and ratably with (or prior to, as provided in Section
1012) Debt secured by such Lien; and
(6) unless such transaction (or series) is referred to in Clause
(b)(ii) or Clause (d) above and involves an aggregate purchase price of
less than $50 million, the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that such
transaction (or series) and, if a
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supplemental indenture is required in connection with such transaction (or
series), such supplemental indenture comply with this Article and that all
conditions precedent herein provided for relating to such transaction (or
series) have been complied with, and, with respect to such Officers'
Certificate, setting forth in reasonable detail the calculations referred
to in Clauses (3) and (4) above.
SECTION 802. 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 801, the Successor Company shall succeed to, and be substituted
for, and may exercise every right and power of, the Company under this Indenture
with the same effect as if such Successor Company had been named as the Company
herein, and thereafter, except in the case of a lease, the predecessor Person
shall be relieved of all obligations and covenants under this Indenture and the
Securities.
ARTICLE NINE
Supplemental Indentures
SECTION 901. Supplemental Indentures
Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by
a Board Resolution of the Company, the Guarantors, when authorized by respective
Board Resolutions of the Guarantors, and the Trustee, at any time and from time
to time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company and
the assumption by any such successor of the covenants of the Company
herein and in the Securities; or
(2) to add to the covenants of the Company for the benefit of the
Holders, or to surrender any right or power herein conferred upon the
Company; or
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(3) to secure the Securities pursuant to the requirements of Section
1012 or otherwise; or
(4) to comply with any requirements of the Commission in order to
effect qualification of this Indenture under the Trust Indenture Act in
connection with the issuance of the Exchange Securities and thereafter
maintain the qualification of this Indenture under the Trust Indenture
Act; or
(5) 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 that such action pursuant to this Clause (5)
shall not adversely affect the interests of the Holders in any material
respect; or
(6) to add new Subsidiary Guarantors pursuant to Section 1305; or
(7) to add to, change or eliminate any of the provisions of this
Indenture to permit or facilitate the issuance of Global Securities and
matters related thereto, provided that such action pursuant to this Clause
(7) shall not adversely affect the interests of the Holders in any
material respect.
SECTION 902. Supplemental Indentures
with Consent of Holders.
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities, by Act of said Holders delivered
to the Company and the Trustee, the Company, when authorized by a Board
Resolution of the Company, the Guarantors, when authorized by the respective
Board Resolutions of the Guarantors, and the Trustee may enter into an indenture
or indentures supplemental hereto for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Indenture or
of modifying in any manner the rights of the Holders under this Indenture;
provided, however, that no such supplemental indenture shall, without the
consent of the Holder of each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any
installment of interest on, any Security, or reduce the principal amount
thereof or the rate of interest thereon or any premium payable upon the
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redemption thereof, or change the place of payment where, or the coin or
currency in which, any Security or any premium or interest thereon is
payable, or impair the right to institute suit for the enforcement of any
such payment on or after the Stated Maturity thereof (or, in the case of
redemption, on or after the Redemption Date or, in the case of an Offer to
Purchase which has been made, on or after the applicable Purchase Date),
or
(2) reduce the percentage in principal amount of the Outstanding
Securities, the consent of whose Holders is required for any such
supplemental indenture, or the consent of whose Holders is required for
any waiver (of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences) provided for in this
Indenture, or
(3) modify any of the provisions of this Section , Section 513 or
Section 1021 except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Outstanding Security affected
thereby, or
(4) modify any of the provisions of Article Fourteen of this
Indenture in a manner adverse to the Holders, or
(5) modify Sections 1014 and 1015 of this Indenture in a manner
adverse to the Holders thereof in any material respect, or
(6) following the mailing to a Holder of an Offer Document with
respect to an Offer to Purchase, modify the provisions of this Indenture
with respect to such Offer to Purchase in a manner adverse to such Holder
in any material respect.
It shall not be necessary for any Act of Holders under this Section
to approve the particular form of any proposed supplemental indenture, but it
shall be sufficient if such Act shall approve the substance thereof.
SECTION 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 601) shall be fully protected in
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relying upon, an Opinion of Counsel stating that the execution of such
supplemental indenture is authorized or permitted by this Indenture. The Trustee
may, but shall not be obligated to, enter into any such supplemental indenture
which affects the Trustee's own rights, duties or immunities under this
Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act.
SECTION 906. Reference in Securities to Supplemental Indentures.
Securities 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 so modified as to conform, in the opinion of the Trustee and 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.
ARTICLE TEN
Covenants
SECTION 1001. Payment of Principal, Premium and Interest.
The Company will duly and punctually pay the principal of (and
premium, if any) and interest on the Securities in accordance with the terms of
the Securities and this Indenture.
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SECTION 1002. Maintenance of Office or Agency.
The Company will maintain in the Borough of Manhattan, The City of
New York, an office or agency where Securities may be presented or surrendered
for payment, where Securities may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Company or any Guarantor
in respect of the Securities, the Senior Subordinated Guarantees and this
Indenture may be served. The Company will give prompt written notice to the
Trustee of the location, and any change in the location, of such office or
agency. If at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, and the Company and each Guarantor hereby
appoints the Trustee as its agent to receive all such presentations, surrenders,
notices and demands.
The Company may also from time to time designate one or more other
offices or agencies (in or outside the Borough of Manhattan, The City of New
York) where the Securities 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 the Borough of Manhattan,
The City of New York, for such purposes. The Company will give prompt written
notice to the Trustee of any such designation or rescission and of any change in
the location of any such other office or agency.
SECTION 1003. Money for Security Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent, it
will, on or before each due date of the principal of (and premium, if any) or
interest on any of the Securities, segregate and hold in trust for the benefit
of the Persons entitled thereto a sum sufficient to pay the principal (and
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 of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents, it will,
prior to each due date of the principal of (and premium, if any) or interest on
any Securities, deposit with a Paying Agent a sum sufficient to pay such amount,
such sum to be held as provided by the Trust Indenture Act,
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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 other than the Trustee to
execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this Section , that
such Paying Agent will (i) comply with the provisions of the Trust Indenture Act
applicable to it as a Paying Agent (or, until such time as this Indenture shall
be qualified under the Trust Indenture Act, which would be applicable to it as
Paying Agent if the Indenture were so qualified) and (ii) during the continuance
of any default by the Company (or any other obligor upon the Securities) in the
making of any payment in respect of the Securities, upon the written request of
the Trustee, forthwith pay to the Trustee all sums held in trust by such Paying
Agent as such.
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 same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Subject to any applicable abandoned property laws, any money
deposited with the Trustee or any Paying Agent, or then held by the Company, in
trust for the payment of the principal of (and premium, if any) or interest on
any Security and remaining unclaimed for two years after such principal (and
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 shall thereafter, as an
unsecured general creditor, look only to the Company for payment thereof, and
all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease; provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company cause to
be published once, in a newspaper published in the English language, customarily
published on each Business Day and of general circulation in The City of New
York, notice that such money remains unclaimed and that, after a date specified
therein, which shall not be less than 30 days from the
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date of such publication, any unclaimed balance of such money then remaining
will be repaid to the Company.
SECTION 1004. Existence.
Subject to Article Eight, the Company will do or cause to be done
all things necessary to preserve and keep in full force and effect its
existence, rights (charter and statutory) and franchises; provided, however,
that the Company shall not be required to preserve any such right or franchise
if the Board of Directors of the Company shall determine that the preservation
thereof is no longer desirable in the conduct of the business of the Company and
that the loss thereof is not disadvantageous in any material respect to the
Holders.
SECTION 1005. Maintenance of Properties.
The Company will cause substantially all properties used or useful
in the conduct of its business or the business of any Restricted Subsidiary to
be maintained and kept in good working order reasonable 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,
including, without limitation, maintaining and operating its solid waste
landfills in substantial compliance with applicable federal, state, provincial
and local regulations, all as in the judgment of the Company may be necessary so
that the business carried on in connection therewith may be properly and
advantageously conducted at all times; provided, however, that nothing in this
Section shall prevent the Company or any Restricted Subsidiary from
discontinuing the operation or maintenance of any of such properties if such
discontinuance is, in the judgment of the Company, desirable in the conduct of
its business or the business of any Restricted Subsidiary and not
disadvantageous in any material respect to the Holders.
SECTION 1006. Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or discharged
(1) all taxes, assessments and governmental charges levied or imposed upon the
Company or any of its Subsidiaries or upon the income, profits or property of
the Company or any of its Subsidiaries, and (2) all lawful claims for labor,
materials and supplies which, if unpaid, might by law become a lien upon the
property of the Company or any of its Restricted Subsidiaries; provided,
however, that the Company shall not be required to pay or discharge or cause to
be paid or
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discharged any such tax, assessment, charge or claim whose amount, applicability
or validity is being contested in good faith by appropriate proceedings.
SECTION 1007. Maintenance of Insurance.
The Company shall, and the Company shall cause its Restricted
Subsidiaries to, keep at all times all of their properties which are of an
insurable nature insured against loss or damage, to provide required financial
assurances to governmental agencies under applicable environmental regulations
relating to its landfill and collection operations and to maintain liability
insurance, with insurers believed by the Company to be responsible, in each case
to the extent, in the judgment of the Company, to do so comports with good
business practice.
SECTION 1008. Limitation on Consolidated Debt.
The Company shall not Incur any Debt and shall not permit Restricted
Subsidiaries to Incur any Debt or issue Preferred Stock unless, immediately
after giving effect to the Incurrence of such Debt or issuance of such Preferred
Stock and the receipt and application of the proceeds thereof, the Consolidated
EBITDA Coverage Ratio of the Company for the four full fiscal quarters next
preceding the Incurrence of such Debt or issuance of such Preferred Stock,
calculated on a pro forma basis as if such Debt had been Incurred or such
Preferred Stock had been issued and the proceeds thereof had been received and
so applied at the beginning of the four full fiscal quarters, would be greater
than 2.0 to 1.0 if such Incurrence is on or prior to December 31, 1999 and 2.25
to 1.0 if thereafter.
Without regard to the foregoing limitations, the Company or any
Restricted Subsidiary of the Company may Incur the following Debt:
(i) Debt under the Bank Agreement in an aggregate principal amount
at any one time outstanding not to exceed the Bank Facility Limit then in
effect;
(ii) Debt evidenced by the Securities;
(iii) Debt evidenced by the Allied Canada Debentures;
(iv) Debt owed by the Company to any Restricted Subsidiary or Debt
owed by a Restricted Subsidiary to the Company or to a Restricted
Subsidiary; provided, however, that in the event that either (x) the
Company
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or the Restricted Subsidiary to which such Debt is owed transfers or
otherwise disposes of such Debt to a Person other than the Company or
another Restricted Subsidiary or (y) such Restricted Subsidiary ceases to
be a Restricted Subsidiary, the provisions of this Clause (iv) shall no
longer be applicable to such Debt and such Debt shall be deemed to have
been Incurred at the time of such transfer or other disposition or at the
time such Restricted Subsidiary ceases to be a Restricted Subsidiary;
(v) Debt outstanding on the date of this Indenture;
(vi) Debt Incurred in connection with an acquisition, merger or
consolidation transaction permitted under Article Eight of this Indenture,
which Debt (A) was issued by a Person prior to the time such Person
becomes a Restricted Subsidiary in such transaction (including by way of
merger or consolidation with the Company or another Restricted Subsidiary)
and was not issued in contemplation of such transaction or (B) is issued
by the Company or a Restricted Subsidiary to a seller in connection with
such transaction, in an amount in aggregate for all such Debt issued
pursuant to this Clause (vi) not to exceed $50 million at any one time
outstanding;
(vii) Debt consisting of Permitted Interest Rate or Currency
Protection Agreements;
(viii) Debt Incurred to renew, extend, refund or otherwise refinance any
Debt of the Company permitted in Clauses (i) through (vi) above; provided,
however, that in each case the principal amount of the Debt so Incurred
does not exceed the principal amount of the Debt so renewed, extended,
refunded or otherwise refinanced thereby; provided further, that Debt the
proceeds of which are used to refinance or refund Debt which is pari passu
to the Securities or Debt which is subordinate in right of payment to the
Securities shall only be permitted if (A) in the case of any refinancing
or refunding of Debt which is pari passu to the Securities, the
refinancing or refunding Debt is made pari passu to the Securities or
subordinate in right of payment to the Securities and, in the case of any
refinancing or refunding of Debt which is subordinate in right of payment
to the Securities, the refinancing or refunding Debt is made subordinate
in right of payment to the Securities to substantially the same extent as
or a greater extent than the Securities are
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subordinated to Senior Debt of the Company pursuant to the provisions of
Article Fourteen and (B) such refinancing or refunding Debt (x) does not
have a final Stated Maturity earlier than the final Stated Maturity of the
refinanced Debt or permit redemption or other retirement of such Debt
(including pursuant to an offer to purchase by the Company) at the option
of the holder thereof prior to the final Stated Maturity of the Debt being
refinanced or refunded, other than a redemption or other retirement at the
option of the holder of such Debt on terms and in circumstances that are
substantially similar to those on and in which the Debt being refinanced
may be redeemed or otherwise retired and (y) does not have a Weighted
Average Life less than the Weighted Average Life of the Debt being
refinanced; and
(ix) Debt not otherwise permitted to be Incurred pursuant to Clauses
(i) through (viii) above, which in aggregate amount, together with the
aggregate amount of all other Debt previously Incurred pursuant to this
Clause (ix) and then outstanding, does not exceed 5% of the Consolidated
Total Assets of the Company at the time of such Incurrence.
Notwithstanding the foregoing, the Company shall not permit Allied
Insurance to Incur any Debt other than reimbursement obligations with respect to
letters of credit and other financial assurance obligations issued to enable
Allied Insurance to issue insurance policies for the benefit of the Company and
its Restricted Subsidiaries.
SECTION 1009. Limitation on Layered and Junior Debt.
So long as any of the Securities are Outstanding, (i) the Company
shall not Incur or suffer to exist any Debt that is by its terms subordinate in
right of payment to any other Debt of the Company unless such Debt is also pari
passu with, or subordinate by its terms in right of payment to, the Securities
and (ii) Allied Parent shall not, and the Company shall not permit any
Subsidiary Guarantor to, Incur or suffer to exist any Debt that is by its terms
subordinate in right of payment to any other Debt of Allied Parent or the
Subsidiary Guarantor, as the case may be, unless such Debt is also pari passu
with or subordinate by its terms in right of payment to the Senior Subordinated
Guarantees of Allied Parent or the Subsidiary Guarantor, as the case may be.
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SECTION 1010. Limitation on Restricted Payments.
The Company shall not, and shall not permit any Restricted
Subsidiary to, directly or indirectly, (i) declare or pay any dividend, or make
any distribution, of any kind or character (whether in cash, property or
securities) in respect of any class of its Capital Stock or to the holders of
any class of its Capital Stock (excluding any dividends or distributions (u) to
the extent payable in shares of the Capital Stock of the Company (other than
Redeemable Interests) or in options, warrants or other rights to acquire the
Capital Stock of the Company (other than Redeemable Interests), (v) dividends or
distributions by a Restricted Subsidiary to the Company or another Wholly Owned
Restricted Subsidiary and (w) the payment of pro rata dividends by a Restricted
Subsidiary to holders of both minority and majority interests in such Restricted
Subsidiary); (ii) purchase, redeem or otherwise acquire or retire for value (a)
any Capital Stock of the Company or any Capital Stock of or other ownership
interests in any Subsidiary or any Affiliate or Related Person of the Company or
(b) any options, warrants or other rights to purchase or acquire, or any
securities convertible or exchangeable into, shares of Capital Stock of the
Company or any Capital Stock of or other ownership interests in any Subsidiary
or any Affiliate or Related Person of the Company (excluding, in each case of
(a) and (b), the purchase redemption or other acquisition or retirement by any
Restricted Subsidiary of any of its Capital Stock, other ownership interests or
options, warrants or rights to purchase such Capital Stock or other ownership
interests, in each case, owned by the Company or a Wholly Owned Restricted
Subsidiary); (iii) make, directly or indirectly, any Investment in any Person
that is not a Permitted Investment; or (iv) redeem, defease (whether legal,
covenant or other defeasance), repurchase, retire or otherwise acquire or retire
for value, prior to any scheduled maturity, repayment or sinking fund payment,
Debt of the Company (other than the Securities) that is pari passu with or
subordinate in right of payment to the Securities (each of the transactions
described in Clauses (i) through (iv) being referred to herein as a "Restricted
Payment"), if at the time thereof:
(1) an Event of Default, or an event that with the lapse of time or
the giving of notice, or both, would constitute an Event of Default, shall
have occurred and be continuing,
(2) the Company would, at the time of such Restricted Payment and
after giving pro forma effect thereto as if such Restricted Payment had
been made at
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the beginning of the Company's most recently ended four full fiscal
quarter period for which internal financial statements are available
immediately preceding the date of such Restricted Payment, not have been
permitted to Incur at least $1.00 of additional Debt pursuant to the
Consolidated EBITDA Coverage Ratio test set forth in the first paragraph
of Section 1008, or
(3) upon giving effect to such Restricted Payment, the aggregate of
all Restricted Payments (excluding Restricted Payments permitted by
Clauses (ii) and (iii) of the next succeeding paragraph) from the date of
this Indenture (the amount so expended, if other than in cash, determined
in good faith by the Board of Directors) exceeds the sum, without
duplication, of:
(a) 50% of the Consolidated Net Income (or, in case
Consolidated Net Income shall be negative, less 100% of such
deficit) of the Company for the period (taken as one accounting
period) from the beginning of its first fiscal quarter commencing
after the date of this Indenture through the end of the Company's
most recently ended fiscal quarter for which internal financial
statements are available at the time of such Restricted Payment;
(b) 100% of the aggregate net cash proceeds from the issuance
or sale to Allied Parent of Capital Stock (other than Redeemable
Interests) of the Company and options, warrants or other rights to
acquire Capital Stock (other than Redeemable Interests and Debt
convertible into Capital Stock) of the Company and the principal
amount of Debt and Redeemable Interests of the Company that has been
converted into or exchanged for Capital Stock (other than Redeemable
Interests) of the Company after the date of this Indenture; provided
that any such net proceeds received by the Company from an employee
stock ownership plan financed by loans from the Company or a
Subsidiary of the Company shall be included only to the extent such
loans have been repaid with cash on or prior to the date of
determination;
(c) 50% of any dividends received by the Company or a Wholly
Owned Restricted Subsidiary after the date of this Indenture from an
Unrestricted Subsidiary of the Company; and
(d) $10 million.
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The foregoing provisions of this Section 1010 shall not be violated
by reason of (i) the payment of any dividend within 60 days after declaration
thereof if at the declaration date such payment would have complied with the
foregoing provisions; (ii) any refinancing or refunding of Debt permitted
pursuant to Clause (viii) of the second paragraph of Section 1008; and (iii) the
purchase, redemption or other acquisition or retirement for value of any Capital
Stock of the Company or any options, warrants or rights to purchase or acquire
shares of Capital Stock of the Company in exchange for, or out of the net cash
proceeds of, the substantially concurrent issuance or sale (other than to a
Restricted Subsidiary of the Company) of Capital Stock (other than Redeemable
Interests) of the Company; provided that the amount of any such net cash
proceeds that are utilized for any such purchase, redemption or other
acquisition or retirement for value shall be excluded from Clause (3)(b) in the
foregoing paragraph.
Upon the designation of any Restricted Subsidiary as an Unrestricted
Subsidiary, an amount equal to the greater of the book value and the fair market
value of all assets of such Restricted Subsidiary at the end of the Company's
most recently ended fiscal quarter for which internal financial statements are
available prior to such designation will be deemed to be a Restricted Payment at
the time of such designation for purposes of calculating the aggregate amount of
Restricted Payments (including the Restricted Payment resulting from such
designation) permitted under the second preceding paragraph.
SECTION 1011. Limitations Concerning Distributions by Subsidiaries, Etc.
The Company shall not, and shall not permit any Restricted
Subsidiary to, suffer to exist any consensual encumbrance or restriction on the
ability of such Restricted Subsidiary (i) to pay, directly or indirectly,
dividends or make any other distributions in respect of its Capital Stock or
other ownership interests or pay any Debt or other obligation owed to the
Company or any other Restricted Subsidiary; (ii) to make, directly or
indirectly, loans or advances to the Company or any other Restricted Subsidiary;
or (iii) to sell, lease or transfer any of its property or assets to the Company
or any Wholly Owned Restricted Subsidiary, except, in any such case (i), (ii) or
(iii), any encumbrance or restriction:
(a) pursuant to the Securities, this Indenture, the Senior
Subordinated Guarantees or any other agreement in effect on the date of
this Indenture,
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(b) pursuant to the Bank Agreement, including any Guarantees of or
Liens securing the Senior Debt Incurred thereunder,
(c) pursuant to an agreement relating to any Debt Incurred by such
Subsidiary prior to and outstanding on the date on which such Subsidiary
became a Subsidiary of the Company (including by reason of a merger or
consolidation with another Subsidiary of the Company), provided that such
Debt was not Incurred in anticipation of becoming a Subsidiary,
(d) pursuant to an agreement which has been entered into for the
pending sale or disposition of all or substantially all of the Capital
Stock, other ownership interests or assets of such Subsidiary, provided
that such restriction terminates upon consummation or abandonment of such
disposition and upon termination of such agreement,
(e) pursuant to customary non-assignment provisions in leases or
purchase agreements entered into in the ordinary course of business,
(f) pursuant to purchase money obligations for property acquired in
the ordinary course of business or liens in connection therewith permitted
to be Incurred under Section 1012 that impose restrictions of the nature
described in Clause (iii) above on the property so acquired or
(g) pursuant to an agreement effecting a renewal, extension,
refinancing or refunding of Debt Incurred pursuant to an agreement
referred to in Clause (a) or (b) above; provided, however, that the
provisions relating to such encumbrance or restriction contained in such
renewal, extension, refinancing or refunding agreement are no more
restrictive in any material respect than the provisions contained in the
agreement being renewed, extended, refinanced or refunded, as determined
in good faith by the Board of Directors.
SECTION 1012. Limitation on Liens.
Allied Parent shall not, and the Company shall not, and shall not
permit any Restricted Subsidiary to, Incur any Lien on any property or assets of
Allied Parent, the Company or any such Restricted Subsidiary, now owned or
hereafter acquired, to secure any Debt that is pari passu or subordinate in
right of payment to the Securities or the Senior Subordinated Guarantees without
making, or causing
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such Restricted Subsidiary to make, effective provision for securing the
Securities or the Senior Subordinated Guarantees, as the case may be (and, if
the Company shall so determine, any other Debt of the Company or of such
Subsidiary that is not pari passu or subordinate in right of payment to the
Securities or the Senior Subordinated Guarantees), (i) in the case of Debt that
is pari passu with the Securities or the Senior Subordinated Guarantees, as the
case may be, pari passu with such Debt and (ii) in the case of Debt that is
subordinated in right of payment to the Securities or the Senior Subordinated
Guarantees, as the case may be, prior to such Debt, as to such property for as
long as such Debt shall be so secured.
SECTION 1013. Limitation on Transactions with Affiliates and Related Persons.
The Company shall not, and shall not permit any Restricted
Subsidiary of the Company to, directly or indirectly, enter into any transaction
(or series of related transactions) (including the purchase, sale, lease or
exchange of property, the rendering of any service or the making of any loan or
advance) after the date of this Indenture with any Affiliate or Related Person
unless:
(i) such Affiliate or Related Person is (both before and after such
transaction) (a) Allied Parent or a Wholly Owned Restricted Subsidiary of
the Company or (b) another Restricted Subsidiary of the Company, the
minority interests in which are not held by any Affiliate or Related
Person; or
(ii) where the total consideration given or to be provided by the
Company or such Restricted Subsidiary in or pursuant to such transaction
(or series) (including cash, the fair value of non-cash property and the
assumption of Debt) (a) will be no more than $1 million, the Chief
Executive Officer, the Chief Operating Officer or the Chief Financial
Officer certifies in an Officers' Certificate that the terms of the
transaction (or series) are in the best interests of the Company or such
Restricted Subsidiary and are no less favorable to the Company or such
Restricted Subsidiary than those that could be obtained in a comparable
arm's-length transaction with an entity that is not an Affiliate or
Related Person, (b) will be in excess of $1 million but no more than $5
million, a majority of the disinterested members of the Board of Directors
determines in its good faith judgment, as evidenced by a Board Resolution,
that the terms of the transaction are in the best interests of the Company
or
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such Restricted Subsidiary and are no less favorable to the Company or
such Restricted Subsidiary than those that could be obtained in a
comparable arm's-length transaction with an entity that is not an
Affiliate or a Related Person; or (c) will be in excess of $5 million, a
nationally recognized investment banking firm (which may not be an
Affiliate or Related Person of the Company), in a written opinion
delivered to the Board of Directors prior to consummation of such
transaction (or series) that the terms of the transaction (or series) are
in the best interests of the Company or such Restricted Subsidiary and are
no less favorable to the Company or such Restricted Subsidiary than those
that could be obtained in a comparable arm's-length transaction with an
entity that is not an Affiliate or Related Person;
provided, however, that the foregoing restriction shall not apply to the
Intercompany Agreements as in effect on the date of this Indenture or the
transactions contemplated thereby.
SECTION 1014. Limitation on Certain Asset Dispositions.
(a) The Company shall not make, and shall not permit any Restricted
Subsidiary to make, any Asset Disposition in one or more related transactions
unless:
(i) the Company (or such Restricted Subsidiary, as the case may be)
receives consideration at the time of such disposition at least equal to
the fair market value of the shares or the assets disposed of, as
determined in good faith by the Board of Directors of the Company and
evidenced by a Board Resolution for any transaction (or series of
transactions) involving in excess of $1 million and not involving solely a
sale of equipment or other assets specifically contemplated by the
Company's capital expenditure budget previously approved by the Board of
Directors;
(ii) at least 75% of the consideration received by the Company (or
such Subsidiary) for such disposition consists of (u) cash or readily
marketable cash equivalents, (v) the assumption of Debt or other
liabilities reflected on the consolidated balance sheet of the Company and
its Restricted Subsidiaries in accordance with generally accepted
accounting principles (excluding Debt or any other liabilities subordinate
in right of payment to the Securities) and release of the Company and its
Restricted Subsidiaries from all liability in respect of the Debt or other
liabilities
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assumed, (w) assets used in, or stock or other ownership interests in a
Person that upon the consummation of such Asset Disposition becomes a
Restricted Subsidiary and will be principally engaged in, the business of
the Company or any of its Wholly-Owned Restricted Subsidiaries as such
business is conducted immediately prior to such Assets Disposition or (x)
any combination thereof, and
(iii) 100% of the Net Available Proceeds from such Asset Disposition
(including from the sale of any marketable cash equivalents received
therein), less any Reinvested Amounts, are applied by the Company (or a
Restricted Subsidiary) (A) first, within one year from the later of the
date of such Asset Disposition or the receipt of such Net Available
Proceeds, to repayment (in whole or in part) of Senior Debt of the Company
or its Restricted Subsidiaries then outstanding under any agreements or
instruments which would require such application or which would prohibit
payments pursuant to Clause (B) following; (B) second, to the extent Net
Available Proceeds are not required to be applied to Senior Debt as
specified in Clause (A), to purchases of Outstanding Securities pursuant
to an Offer to Purchase (to the extent such an offer is not prohibited by
the terms of any Senior Debt then outstanding) at a purchase price equal
to 100% of their principal amount plus accrued interest to the date of
purchase (provided, however, that installments of interest whose Stated
Maturity is on or prior to the Purchase Date will be payable to the
Holders of such Securities registered as such at the close of business on
the relevant Regular Record Dates according to their terms and as set
forth in Section 308); and (C) third, to the extent of any remaining Net
Available Proceeds following completion of such Offer to Purchase, to any
other use as determined by the Company which is not otherwise prohibited
by this Indenture.
Notwithstanding the foregoing, the Company shall not be required to
comply with the requirements of Clause (iii) of the preceding paragraph (i) if
the Net Available Proceeds (less Reinvested Amounts) available for use to make
an Offer to Purchase, together with all Net Available Proceeds (less Reinvested
Amounts) from prior Asset Dispositions which were available for use to make an
Offer to Purchase but pursuant to this paragraph were not so used, are less than
$50 million or (ii) to the extent the Company elects to redeem the Securities
with the Net Available Proceeds pursuant to the fourth paragraph on the reverse
of the form of Security set forth in Section 203.
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Notwithstanding the foregoing, if any Restricted Subsidiary in which
a Reinvested Amount is invested becomes an Unrestricted Subsidiary thereafter,
then such change in status shall be deemed to be an Asset Disposition with Net
Available Proceeds of cash in an amount equal to such Reinvested Amount, and
such an amount of cash shall be applied pursuant to Clause (iii) above (subject
to this paragraph).
Notwithstanding the foregoing, the Company shall not be required to
comply with the requirements described in Clause (ii) above of the third
preceding paragraph if the Asset Disposition is an Excepted Disposition.
(b) The Company shall mail the Offer Document for an Offer to
Purchase required pursuant to Section 1014(a) within 30 days after the date
which is one year after the later of the date of consummation of the Asset
Disposition referred to in Section 1014(a) or the receipt of the Net Available
Proceeds from such Asset Disposition. The aggregate principal amount of the
Securities to be offered to be purchased pursuant to the Offer to Purchase shall
equal the Net Available Proceeds required to be made available therefor pursuant
to Clause (iii)(B) of Section 1014(a) (rounded down to the next lowest integral
multiple of $1,000). Each Holder shall be entitled to tender all or any portion
of the Securities owned by such Holder pursuant to the Offer to Purchase,
subject to the requirement that any portion of a Security tendered must be
tendered in an integral multiple of $1,000 principal amount.
The Company shall not be entitled to any credit against its
obligations under this Section 1014 for the principal amount of any Securities
acquired or redeemed by the Company otherwise than pursuant to the Offer to
Purchase pursuant to this Section 1014.
(c) Not later than the date of the Offer Document with respect to an
Offer to Purchase pursuant to this Section 1014, the Company shall deliver to
the Trustee an Officers' Certificate as to (i) the Purchase Amount, (ii) the
allocation of the Net Available Proceeds from the Asset Disposition pursuant to
which such Offer to Purchase is being made, including, with respect to
Reinvested Amounts, the assets acquired and a statement that such assets will be
used in the business of the Company and any of its Wholly Owned Restricted
Subsidiaries as such business was conducted prior to such Asset Disposition, and
(iii) the compliance of such allocation with the provisions of Section 1014 (a)
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The Company and the Trustee shall perform their respective
obligations specified in the Offer Document for the Offer to Purchase. On or
prior to the Purchase Date, the Company shall (i) accept for payment (on a pro
rata basis, if necessary) Securities or portions thereof tendered pursuant to
the Offer to Purchase, (ii) deposit with the Paying Agent (or, if the Company is
acting as its own Paying Agent, segregate and hold in trust as provided in
Section 1003) money sufficient to pay the purchase price of all Securities or
portions thereof so accepted and (iii) deliver or cause to be delivered to the
Trustee all Securities so accepted together with an Officers' Certificate
stating the Securities or portions thereof accepted for payment by the Company.
The Paying Agent (or the Company, if so acting) shall promptly mail or deliver
to Holders of Securities so accepted payment in an amount equal to the Purchase
Price for each $1,000 principal amount of Securities so accepted, and the
Company shall promptly execute a new Security or Securities equal in principal
amount to any unpurchased portion of the Security surrendered, and the
Guarantors shall promptly execute their Senior Subordinated Guarantees to be
endorsed thereon, and thereafter the Trustee shall promptly authenticate and
mail or deliver to such Holders such new Security or Securities. Any Security
not accepted for payment shall be promptly mailed or delivered by the Company to
the Holder thereof. The Company shall publicly announce the results of the Offer
to Purchase on or as soon as practicable after the Purchase Date.
(d) Notwithstanding the foregoing, this Section 1014 shall not apply
to any Asset Disposition which constitutes a transfer, conveyance, sale, lease
or other disposition of all or substantially all of the properties and assets of
the Company and its Subsidiaries subject to Section 801.
SECTION 1015. Change of Control.
(a) Upon the occurrence of a Change of Control, each Holder of a
Security shall have the right, subject to the provisions of Article Fourteen, to
have such Security repurchased by the Company on the terms and conditions set
forth in this Section 1015 and this Indenture. The Company shall, within 30 days
following the date the Company becomes aware of the consummation of a
transaction that results in a Change of Control, mail an Offer Document with
respect to an Offer to Purchase all Outstanding Securities at a purchase price
equal to 101% of their aggregate principal amount plus accrued interest to the
Purchase Date (provided, however, that installments of interest whose Stated
Maturity is on or
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prior to the Purchase 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 as
set forth in Section 308). Each Holder shall be entitled to tender all or any
portion of the Securities owned by such Holder pursuant to the Offer to
Purchase, subject to the requirement that any portion of a Security tendered
must be tendered in an integral multiple of $1,000 principal amount.
(b) The Company and the Trustee shall perform their respective
obligations specified in the Offer Document for the Offer to Purchase. Prior to
the Purchase Date, the Company shall (i) accept for payment Securities or
portions thereof tendered pursuant to the Offer to Purchase, (ii) deposit with
the Paying Agent (or, if the Company is acting as its own Paying Agent,
segregate and hold in trust as provided in Section 1003) money sufficient to pay
the Purchase Price of all Securities or portions thereof so accepted and (iii)
deliver or cause to be delivered to the Trustee all Securities so accepted
together with an Officers' Certificate stating the Securities or portions
thereof accepted for payment by the Company. The Paying Agent (or the Company if
so acting) shall promptly mail or deliver to Holders of Securities so accepted
payment in an amount equal to the Purchase Price for each $1,000 of Securities
so accepted, and the Company shall promptly execute a new Security or Securities
equal in principal amount to any unpurchased portion of the Security surrendered
as requested by the Holder, and the Guarantors shall promptly execute their
Senior Subordinated Guarantees to be endorsed thereon, and thereafter the
Trustee shall promptly authenticate and mail or deliver to such Holders such new
Security or Securities. Any Security not accepted for payment shall be promptly
mailed or delivered by the Company to the Holder thereof. The Company shall
publicly announce the results of the Offer to Purchase on or as soon as
practicable after the Purchase Date.
(c) A "Change of Control" shall be deemed to have occurred in the
event that, after the date of this Indenture, (i) any Person, or any Persons
acting together that would constitute a "group" (a "Group", which term also
includes each member thereof) for purposes of Section 13(d) under the Exchange
Act or any successor provision, together with any Affiliates or Related Persons
thereof, shall beneficially own (within the meaning of Rule 13d-3 of the
Exchange Act or any successor provision) 50% or more of the total voting power
of all classes of Voting Stock of Allied Parent; (ii) any Person or Group,
together with any Affiliates or Related Persons thereof, shall succeed in
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having sufficient of its nominees elected to the Board of Directors of Allied
Parent such that such nominees, when added to any existing director remaining on
the Board of Directors of Allied Parent after such election who is an Affiliate
or Related Person of such Person or Group, shall constitute a majority of the
Board of Directors of Allied Parent; (iii) there occurs any transaction or
series of related transactions, and the beneficial owners of the Voting Stock of
Allied Parent immediately prior to such transaction (or series) do not,
immediately after such transaction (or series), beneficially own Voting Stock
representing more than 50% of the total voting power of all classes of Voting
Stock of Allied Parent (or in the case of a transaction (or series) in which
another entity becomes a successor to Allied Parent, of the successor entity);
or (iv) the Company ceases to be a Subsidiary of Allied Parent.
SECTION 1016. Provision of Financial Information.
(a) So long as any of the Securities are Outstanding, and in
addition to and without limitation of the Company's obligations pursuant to
Section 704, whether or not the Company is required to be subject to Section
13(a) or 15(d) of the Exchange Act, or any successor provisions, the Company
(unless not permitted by the Commission to do so) shall file with the Commission
the annual reports, quarterly reports and other documents which the Company
would have been required to file with the Commission pursuant to such Section
13(a) or 15(d) or any successor provisions if the Company were so required, such
documents to be filed with the Commission on or prior to the respective dates
(the "Required Filing Dates") by which the Company would have been required so
to file such documents if the Company were so required. The Company shall also
in any event (a) within 15 days of each Required Filing Date (i) transmit by
mail to all Holders, as their names and addresses appear in the Security
Register, without cost to such Holders, and (ii) file with the Trustee, copies
of the annual reports, quarterly reports and other documents which the Company
files with the Commission pursuant to such Section 13(a) or 15(d) or any
successor provisions thereto or would have been required to file with the
Commission pursuant to such Section 13(a) or 15(d) or any successor provisions
thereto if the Company were required to comply with such Sections or successor
provisions and (b) if filing such documents by the Company with the Commission
is not permitted under the Exchange Act, promptly upon written request supply
copies of such documents to any prospective Holder. Notwithstanding the
foregoing, the Trustee shall have no duty to review such documents for purposes
of
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determining compliance with any provisions of this Indenture.
(b) If the Company at any time is not subject to the reporting
requirements of Section 13 or Section 15(d) of the Exchange Act (or any
successor provisions) while any Securities constitute Restricted Securities, it
will take all actions necessary to permit resales of the Restricted Securities
and the Senior Subordinated Guarantees endorsed thereon to be made pursuant to
Rule 144A, including furnishing to any holder of such a security (or a
beneficial interest therein), or to any prospective purchaser designated by such
holder, upon the request of such holder, such financial and other information as
may be required to be delivered under paragraph (d)(4) of Rule 144A to permit
such resales and that information that would be required if the Company were
subject to the informational requirements of Sections 13 or 15(d) of the
Exchange Act.
SECTION 1017. Resale of Acquired Securities.
The Company shall not, and shall cause its Affiliates not to, resell
or otherwise dispose of any Securities acquired by them, whether pursuant to
Section 1014 or 1015, in the open market or otherwise, and shall, and shall
cause its Affiliates to, surrender all such Securities acquired to the Trustee
for cancellation.
SECTION 1018. Unrestricted Subsidiaries.
The Company at any time may designate any Person that is a
Subsidiary, or after the date of this Indenture becomes a Subsidiary, of the
Company as an "Unrestricted Subsidiary", whereupon (and until such Person ceases
to be an Unrestricted Subsidiary) such Person and each other Person that is then
or thereafter becomes a Subsidiary of such Person shall be deemed to be an
Unrestricted Subsidiary for all purposes of this Indenture. In addition, the
Company may at any time terminate the status of any Subsidiary as an
Unrestricted Subsidiary, whereupon such Subsidiary and each other Subsidiary of
the Company (if any) of which such Subsidiary is a Subsidiary shall be a
Restricted Subsidiary for all purposes of this Indenture. Each such designation
or termination shall be evidenced by a Board Resolution and shall be effective
upon the later of (i) the date specified therein and (ii) the delivery by the
Company to the Trustee of such Board Resolution and an Officer's Certificate
stating that the requirements of this Section 1018 will have been satisfied upon
effectiveness of such designation or termination.
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Notwithstanding the foregoing, no change in the status of a
Subsidiary of the Company from a Restricted Subsidiary to an Unrestricted
Subsidiary or from an Unrestricted Subsidiary to a Restricted Subsidiary shall
be effective, and no Person may otherwise become a Restricted Subsidiary, if:
(a) the Consolidated EBITDA Coverage Ratio for the four full fiscal
quarters of the Company next preceding the effective date of such
purported change or other event, calculated on a pro forma basis as if
such change or other event had been effective at the beginning of such
period, would not exceed 2.0 to 1.0 if such purported change is to occur
on or prior to December 31, 1999 and 2.25 to 1.0 if thereafter,
(b) in the case of any change in status of such a Subsidiary from a
Restricted Subsidiary to an Unrestricted Subsidiary, the Restricted
Payment resulting from such change would violate Clause (3) of the first
paragraph of Section 1010, or
(c) such change or other event would otherwise result (after the
giving of notice or the lapse of time, or both) in an Event of Default.
In addition and notwithstanding the foregoing, no Restricted
Subsidiary of the Company may become an Unrestricted Subsidiary, and the status
of any Unrestricted Subsidiary as an Unrestricted Subsidiary shall be deemed to
have been immediately terminated (whereupon such Subsidiary and each other
Subsidiary of the Company (if any) of which such Subsidiary is a Subsidiary will
be a Restricted Subsidiary) at any time when:
(i) such Subsidiary (A) has outstanding Debt that is Unpermitted
Debt or (B) owns or holds any Capital Stock of or other ownership
interests in, or a Lien on any property of, the Company or any of its
Restricted Subsidiaries;
(ii) the Company or any other Restricted Subsidiary (A) provides
credit support for, or a Guaranty of, any Debt of such Subsidiary
(including any undertaking, agreement or instrument evidencing such Debt)
or (B) is directly or indirectly liable for any Debt of such Subsidiary;
or
(iii) such Subsidiary fails to notify in writing the holders of its
Debt for borrowed money that such Debt
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is without recourse to the property and assets of the Company and its
Restricted Subsidiaries.
Any termination of the status of an Unrestricted Subsidiary as an Unrestricted
Subsidiary pursuant to the preceding sentence shall be deemed to result in a
breach of this Section 1018 in any circumstance in which the Company would not
have been permitted to change the status of such Unrestricted Subsidiary to the
status of a Restricted Subsidiary pursuant to the provisions of the preceding
paragraph. "Unpermitted Debt" means any Debt of a Subsidiary of the Company if
(x) a default thereunder (or under any instrument or agreement pursuant to or by
which such Debt is issued, secured or evidenced), or any right that the holders
thereof may have to take enforcement action against such Subsidiary or its
property or other assets, would permit (whether or not after the giving of
notice or the lapse of time or both) the holders of any Debt of the Company or
any other Restricted Subsidiary of the Company to declare the same due and
payable prior to the date on which it otherwise would have become due and
payable or otherwise to take any enforcement action against the Company or any
such other Restricted Subsidiary or (y) such Debt is secured by a Lien on any
property of the Company or any of its other Restricted Subsidiaries.
Each Person that is or becomes a Subsidiary of the Company shall be
deemed to be a Restricted Subsidiary for all purposes of this Indenture at all
times when it is a Subsidiary of the Company that is not an Unrestricted
Subsidiary. Each Person that is or becomes a Wholly Owned Subsidiary of the
Company shall be deemed to be a Wholly Owned Restricted Subsidiary at all times
when it is a Wholly Owned Subsidiary of the Company that is not an Unrestricted
Subsidiary.
SECTION 1019. Limitation on Sale of
Capital Stock of Subsidiaries.
The Company shall not, and shall not permit any Restricted
Subsidiary to, issue, transfer, convey, sell, lease or otherwise dispose of any
shares of Capital Stock of or other ownership interests in a Restricted
Subsidiary, or options, warrants or other rights to acquire, or securities
convertible into or exchangeable for, such Capital Stock or other ownership
interests, to any Person (other than the Company or a Wholly Owned Restricted
Subsidiary) except in a transaction that consists of a transfer, conveyance,
sale, lease or other disposition of all the Capital Stock of and other ownership
interests in such Restricted Subsidiary owned by the Company and any Subsidiary
of the Company, and
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that is in accordance with the provisions of Section 1014 to the extent such
provisions apply.
SECTION 1020. Restriction on Business and Incurrence of
Debt by Allied Finance.
Allied Finance shall not, and Allied Parent shall not permit Allied
Finance to, engage in any activities, transactions or business, including,
without limitation, the Incurrence of any Debt, provided that the foregoing
shall not prohibit Allied Finance from (i) issuing upon the Acquisition Closing
the Allied Finance Debentures to Xxxxxxx in exchange for the Allied Canada
Debentures pursuant to the Debenture Exchange Agreement to be entered into by
Allied Finance and Xxxxxxx in the form attached as Exhibit M to the Stock
Purchase Agreement, (ii) holding the Allied Canada Debentures and (iii) engaging
in any other activities and transactions that are directly related to its status
as an obligor under the Allied Finance Debentures or its status as a holder of
the Allied Canada Debentures.
SECTION 1021. Statement by Officers as to
Default; Compliance Certificates.
(a) The Company will deliver to the Trustee, within 90 days after
the end of each fiscal year of the Company ending after the date of this
Indenture an Officers' Certificate, stating whether or not to the best knowledge
of the signers thereof the Company or any Guarantor is in default in the
performance and observance of any of the terms, provisions and conditions of
this Indenture (without regard to any period of grace or requirement of notice
provided hereunder) and, if the Company or any Guarantor shall be in default,
specifying all such defaults and the nature and status thereof of which they may
have knowledge.
(b) 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 1022. Waiver of Certain Covenants.
The Company or any Guarantor may omit in any particular instance to
comply with any covenant or condition set forth in Section 801 and Sections 1004
through 1021, inclusive, if before the time for such compliance the
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Holders of at least a majority in principal amount of the Outstanding Securities
shall, by Act of such Holders, either waive such compliance in such instance or
generally waive compliance with such covenant or condition, but no such waiver
shall extend to or affect such covenant 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 covenant or condition shall remain in full force and effect;
provided, however, with respect to an Offer to Purchase as to which an Offer
Document has been mailed, no such waiver may be made or shall be effective
against any Holder tendering Securities pursuant to such Offer to Purchase, and
the Company may not omit to comply with the terms of such Offer Document as to
such Holder, unless such Holder shall have waived such requirement.
ARTICLE ELEVEN
Redemption of Securities
SECTION 1101. Collateral Agreement; Special Mandatory
Redemption.
Pursuant to the Collateral Agreement, the net proceeds of the
Offering initially will be invested in securities that are the direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged and such securities will be deposited in a
segregated collateral trust account with the Trustee (the "Collateral Account").
Pursuant to the Collateral Agreement, the due and punctual payment and
performance of all obligations and indebtedness of the Company, whether now or
hereafter existing, under the Securities and this Indenture, including, without
limitation, Special Interest and interest accrued thereon after the commencement
of a bankruptcy, reorganization or similar proceeding involving the Company to
the extent permitted by applicable law (collectively, the "Secured Obligations")
will be secured by a first priority lien in favor of the Trustee on the
Collateral Account, the securities and any other assets in the Collateral
Account and all other assets constituting Collateral under the Collateral
Agreement (the "Collateral"), subject to the release of such lien and the
release of such Collateral to the Company upon the satisfaction of the
conditions precedent specified in Section 4.2 of the Collateral Agreement for
such release.
In the event (a) the Company has concluded, in its sole judgment,
that the Acquisition will not be consummated
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on or prior to March 5, 1997, as certified to the Trustee pursuant to the
requirements of the Collateral Agreement, or (b) for any other reason, funds are
not released from the Collateral Account pursuant to Section 4.2 of the
Collateral Agreement for purposes of funding the Acquisition, the Company shall
redeem all Outstanding Securities at a Redemption Price of 100.5% of the
principal amount of the Securities plus accrued and unpaid interest (including
Special Interest) to the Redemption Date (the "Special Mandatory Redemption").
Notwithstanding any other provision in this Indenture, the Special Mandatory
Redemption, and any payments by the Company or the Trustee to the Holders of the
Securities pursuant thereto, shall not be subject to the provisions of Article
Fourteen.
SECTION 1102. Redemption at the Election of the Company.
Subject to Article Fourteen, the Securities may be redeemed at the
election of the Company, at the times and the Redemption Prices and subject to
the conditions and other requirements specified in the form of Security
hereinbefore set forth.
SECTION 1103. Applicability of Article.
Redemption of Securities, either at the election of the Company or
mandatory, as permitted or required by any provision of the Securities and this
Indenture, shall be made in accordance with such provision and the applicable
provisions of this Article.
SECTION 1104. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities pursuant to
Section 1102 shall be evidenced by a Board Resolution. In case of any redemption
at the election of the Company of less than all the Securities, the Company
shall, at least 60 days prior to the Redemption Date fixed by the Company
(unless a shorter notice shall be satisfactory to the Trustee), notify the
Trustee of such Redemption Date and of the principal amount of Securities to be
redeemed. In addition, in case of any redemption at the election of the Company
pursuant to Section 1102, the Company shall, at least 60 days prior to the
Redemption Date (unless a shorter notice shall be satisfactory to the Trustee),
furnish the Trustee with an Officers' Certificate evidencing compliance with
Section 1102 (after giving effect to such proposed redemption).
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SECTION 1105. Selection by Trustee of Securities
to Be Redeemed.
If less than all the Securities are to be redeemed, the particular
Securities to be redeemed shall be selected not more than 60 days prior to the
Redemption Date by the Trustee, from the Outstanding Securities not previously
called for redemption, by such method as the Trustee shall deem fair and
appropriate and which may provide for the selection for redemption of portions
(equal to $1,000 or any integral multiple thereof) of the principal amount of
Securities of a denomination larger than $1,000.
The Trustee shall promptly notify the Company and each Security
Registrar in writing of the Securities selected for redemption and, in the case
of any Securities selected for partial redemption, the principal amount thereof
to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which has been or is to be
redeemed.
SECTION 1106. Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than 30 (7 in the case of the Special Mandatory
Redemption) nor more than 60 (10 in the case of the Special Mandatory
Redemption) days prior to the Redemption Date, to each Holder of Securities to
be redeemed, at his address appearing in the Security Register.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) whether the redemption is being made pursuant to Section 1101 or
1102 and, if being made pursuant to Section 1102, a brief statement
setting forth the Company's right to effect such redemption and the
Company's basis therefor,
(4) if less than all the Outstanding Securities are to be redeemed,
the identification (and, in the case of partial redemption of any
Securities, the
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principal amounts) of the particular Securities to be redeemed,
(5) that on the Redemption Date the Redemption Price will become due
and payable upon each such Security to be redeemed and that interest
thereon will cease to accrue on and after said date,
(6) the place or places where such Securities are to be surrendered
for payment of the Redemption Price,
(7) that in the case that a Security is only redeemed in part, the
Company shall execute and the Trustee shall authenticate and deliver to
the Holder of such Security without service charge, a new Security or
Securities in an aggregate amount equal to the unredeemed portion of the
Security, with the Senior Subordinated Guarantees duly endorsed thereon,
and
(8) if the redemption is being made pursuant to Section 1102, the
aggregate principal amount of all Securities that will have been redeemed
pursuant to Section 1102 through and including the Redemption Date for
which such notice is being given.
Notice of redemption of Securities to be redeemed pursuant to this
Article Eleven shall be given by the Company; provided that notice of redemption
shall be given by the Trustee in the name and at the expense of the Company in
the case of the Special Mandatory Redemption or in other cases where the Company
has so requested.
SECTION 1107. Deposit of Redemption Price;
Liquidation of Collateral Account
and Draw on Credit Suisse
Letter of Credit.
(a) In the case of redemption pursuant to Section 1102, prior to any
Redemption Date, the Company shall deposit with the Trustee or with a Paying
Agent (or, if the Company is acting as its own Paying Agent, segregate and hold
in trust as provided in Section 1003) an amount of money sufficient to pay the
Redemption Price of, and (except if the Redemption Date shall be an Interest
Payment Date) accrued interest on, all the Securities which are to be redeemed
on that date.
(b) In the event of a Special Mandatory Redemption pursuant to
Section 1101, the Trustee shall pay the Holders on the Redemption Date pursuant
to Section 1108 (i) first, out of amounts available from the Collateral Account
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and (ii) second, in the event that the amount by which by the aggregate amount
payable to Holders pursuant to the Special Mandatory Redemption exceeds the
amount available from the Collateral Account, from a drawing by the Trustee on
the Credit Suisse Letter of Credit in the amount of such excess. In the event
the aggregate amount payable to Holders pursuant to the Special Mandatory
Redemption exceeds the aggregate amount available from the Collateral Account
and from the Credit Suisse Letter of Credit, prior to any Redemption Date for
such Special Mandatory Redemption, the Company shall deposit with the Trustee or
with a Paying Agent (or, if the Company is acting as its own Paying Agent,
segregate and hold in trust as provided in Section 1003) an amount of money
sufficient to pay such excess. Notwithstanding any other provision of this
Indenture, all payments to be made to the Holders pursuant to the Special
Mandatory Redemption from the Collateral Account and from drawings under the
Credit Suisse Letter of Credit shall be made directly by the Trustee as set
forth above, and no such payment shall be made through the Company or a Paying
Agent.
SECTION 1108. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities
so to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest. Upon surrender of any
such Security for redemption in accordance with said notice, such Security shall
be paid by the Company or Paying Agent or, in the case of the Special Mandatory
Redemption, the Trustee, at the Redemption Price, together with accrued interest
to the Redemption Date; provided, however, that installments of interest whose
Stated Maturity is on or prior to the Redemption Date shall be payable to the
Holders of such Securities, or one or more Predecessor Securities, registered as
such at the close of business on the relevant Regular Record Dates according to
their terms and the provisions of Section 308.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal of (and premium, if any) and
interest on such Security shall be deemed overdue and shall, until paid, bear
interest from the Redemption Date at the rate provided by the Security.
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SECTION 1109. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be
surrendered at an office or agency of the Company designated for that purpose
pursuant to Section 1002 (with, if the Company or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to the
Company and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing), and the Company shall execute, and the Trustee
shall authenticate and deliver to the Holder of such Security without service
charge, a new Security or Securities (each with a Senior Subordinated Guarantee
of each Guarantor executed by each such Guarantor and endorsed thereon), of any
authorized denomination as requested by such Holder, in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Security so surrendered.
ARTICLE TWELVE
Defeasance and Covenant Defeasance
SECTION 1201. Company's Option to Effect Defeasance
or Covenant Defeasance.
The Company may at its option by Board Resolution, at any time after
the Exchange Offer has been consummated (or, if applicable, the Shelf
Registration Statement has been declared or otherwise become effective) in
accordance with the Exchange and Registration Rights Agreement, elect to have
either Section 1202 or Section 1203 applied to the Outstanding Securities upon
compliance with the conditions set forth below in this Article Twelve.
SECTION 1202. Defeasance and Discharge.
Upon the Company's exercise of the option provided in Section 1201
applicable to this Section, the Company shall be deemed to have been discharged
from its obligations with respect to the Outstanding Securities and the
provisions of Article Fourteen shall cease to be effective, on and after the
date the conditions set forth below are satisfied (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 the Outstanding
Securities and to have satisfied all its other obligations under such Securities
and this Indenture insofar as such Securities are concerned (and the Trustee, at
the expense of the Company, shall execute proper instruments acknowledging the
same) and (ii) the Guarantors shall be released from all of their
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obligations under their Senior Subordinated Guarantees and under Article
Thirteen of this Indenture, except for the following which shall survive until
otherwise terminated or discharged hereunder: (A) the rights of Holders of such
Securities to receive, solely from the trust fund described in Section 1204 and
as more fully set forth in such Section, payments in respect of the principal
of (and premium, if any) and interest on such Securities when such payments are
due, (B) the Company's obligations with respect to such Securities under
Sections 304, 305, 306, 307, 1002, 1003 and 1016, (C) the rights, powers,
trusts, duties and immunities of the Trustee hereunder and (D) this Article
Twelve. Subject to compliance with this Article Twelve the Company may exercise
its option under this Section 1202 notwithstanding the prior exercise of its
option under Section 1203.
SECTION 1203. Covenant Defeasance.
Upon the Company's exercise of the option provided in Section 1201
applicable to this Section, (i) the Company shall be released from its
obligations under Sections 1005 through 1015, inclusive, Sections 1017, 1018 and
1019 and Clauses (3), (4) and (5) of Section 801, (ii) the occurrence of an
event specified in Section 501(3) (with respect to Section 801, only Clauses
(1), (3), (4) and (5) thereof), 501(4) (with respect to any of Sections 1005
through 1015, inclusive, and Sections 1017, 1018 and 1019), 501(5) and 501(6)
shall not be deemed to be an Event of Default and (iii) the provisions of
Article Thirteen hereof shall cease to be effective on and after the date the
conditions set forth below are satisfied (hereinafter, "covenant defeasance").
For this purpose, such covenant defeasance means that 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, Clause or Article, whether directly
or indirectly by reason of any reference elsewhere herein to any such Section,
Clause or Article or by reason of any reference in any such Section , Clause or
Article to any other provision herein or in any other document; but the
remainder of this Indenture and such Securities shall be unaffected thereby.
SECTION 1204. Conditions to Defeasance or
Covenant Defeasance.
The following shall be the conditions to application of either
Section 1202 or Section 1203 to the then Outstanding Securities:
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(1) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements
of Section 609 who shall agree to comply with the provisions of this
Article Twelve applicable to it) 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,
(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 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, the principal of (premium, if any) and each installment of
interest on the Securities on the Stated Maturity of such principal or
installment of interest in accordance with the terms of this Indenture and
of such Securities.
(2) In the case of an election under Section 1202, 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 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.
(3) In the case of an election under Section 1203, the Company shall
have delivered to the Trustee an Opinion of Counsel to the effect that the
Holders of the Outstanding Securities will not recognize gain or loss for
Federal income tax purposes as a result of such deposit and covenant
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 covenant defeasance had not occurred.
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(4) 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.
(5) At the time of such deposit: (A) no default in the payment of
all or a portion of principal of (or premium, if any) or interest on any
Senior Debt of the Company shall have occurred and be continuing, and no
event of default with respect to any Senior Debt of the Company shall have
occurred and be continuing and shall have resulted in such Senior Debt
becoming or being declared due and payable prior to the date on which it
would otherwise have become due and payable and (B) no other event of
default with respect to any Senior Debt of the Company shall have occurred
and be continuing permitting (after notice or the lapse of time, or both)
the holders of such Senior Debt (or a trustee on behalf of the holders
thereof) to declare such Senior Debt due and payable prior to the date on
which it would otherwise have become due and payable, or, in the case of
either Clause (A) or Clause (B) above, each such default or event of
default shall have been cured or waived or shall have ceased to exist.
(6) 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 501(7)
and (8) 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).
(7) Such defeasance or covenant 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).
(8) Such defeasance or covenant 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.
(9) 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
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Section 1202 or the covenant defeasance under Section 1203 (as the case
may be) have been complied with.
(10) Such defeasance or covenant 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 qualified under such act or exempt from
regulation thereunder.
SECTION 1205. Deposited Money and U.S. Government
Obligations to be Held in Trust;
Other Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section 1003, all
money and U.S. Government Obligations (including the proceeds thereof) deposited
with the Trustee (or other qualifying trustee--collectively, for purposes of
this Section 1205, the "Trustee") pursuant to Section 1204 in respect of the
Securities shall be held in trust and applied by the Trustee, in accordance with
the provisions of such Securities 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,
of all sums due and to become due thereon in respect of principal (and premium,
if any) and interest, but such money need not be segregated from other funds
except to the extent required by law. Money so held in trust shall not be
subject to the provisions of Article Fourteen.
The Company shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to Section 1204 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.
Anything in this Article Twelve to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request and be relieved of all liability with respect to any money or U.S.
Government Obligations held by it as provided in Section 1204 which, in the
opinion of a nationally recognized firm of independent public accountants
expressed in a written opinion with respect thereto delivered to the Trustee,
are in excess of the amount thereof which would then be required to be deposited
to effect an equivalent defeasance or covenant defeasance.
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SECTION 1206. Reinstatement.
If the Trustee or the Paying Agent is unable to apply any money in
accordance with Section 1202 or 1203 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 as though no deposit had occurred
pursuant to this Article Twelve until such time as the Trustee or Paying Agent
is permitted to apply all such money in accordance with Section 1202 or 1203;
provided, however, that if the Company makes any payment of principal of (and
premium, if any) or interest on any Security following the reinstatement of its
obligations, the Company shall be subrogated to the rights of the Holders of
such Securities to receive such payment from the money held by the Trustee or
the Paying Agent.
ARTICLE THIRTEEN
Senior Subordinated Guarantee
SECTION 1301. Senior Subordinated Guarantee.
Each of Allied Parent and the Subsidiary Guarantors hereby jointly
and severally unconditionally guarantees to each Holder of a Security
authenticated and delivered by the Trustee, and to the Trustee on behalf of such
Holder, the due and punctual payment of the principal of (and premium, if any)
and interest on such Security when and as the same shall become due and payable,
whether at the Stated Maturity or by acceleration, call for redemption, purchase
or otherwise, in accordance with the terms of such Security and of this
Indenture. In case of the failure of the Company punctually to make any such
payment, each of Allied Parent and the Subsidiary Guarantors hereby jointly and
severally agrees to cause such payment to be made punctually when and as the
same shall become due and payable, whether at the Stated Maturity or by
acceleration, call for redemption, purchase or otherwise, and as if such payment
were made by the Company.
Each of the Guarantors further agrees, jointly and severally and on
a senior subordinated basis, that any amounts to be paid by such Guarantor under
its Senior Subordinated Guarantee will be paid without deduction or withholding
for or on account of any and all present or future tax, duty, assessment or
governmental charge imposed upon or as a result of such payment by the
government of Canada, or any province or other political subdivision or
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taxing authority thereof or therein, or if deduction or withholding of any such
tax, duty, assessment or charge shall at any time be required by or on behalf of
the government of Canada or any such province, political subdivision or taxing
authority, such Guarantor will pay such additional amount in respect of
principal (and premium, if any) and interest as may be necessary in order that
the net amounts paid to the Holders of the Securities or the Trustee, as the
case may be, pursuant to its Senior Subordinated Guarantee after such deduction
or withholding shall not be less than the amount provided for in the Securities
to be then due and payable; except that no such additional amount shall be
payable in respect of any Securities to any Holder (a) who is subject to such
tax, duty, assessment or governmental charge in respect of such Securities by
reason of its being connected with Canada otherwise than merely by the holding
or ownership of such Securities, or (b) who is not dealing at arm's length with
any of the Guarantors (within the meaning of the Income Tax Act (Canada) as
reenacted or amended from time to time).
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
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 any of the Securities, the
election by the Trustee or any of the Holders in any proceeding under Chapter 11
of Title 11 of the United States Code (the "Bankruptcy Code") of the application
of Section 1111(b)(2) of the Bankruptcy Code, any borrowing or grant of a
security interest by the Company, as debtor-in-possession, under Section 364 of
the Bankruptcy Code, the disallowance, under Section 502 of the Bankruptcy Code,
of all or any portion of the claims of the Trustee or any of the Holders for
payment of any of the Securities, any waiver or consent by the Holder of any
Security or by the Trustee with respect to any provisions thereof or of this
Indenture, the obtaining of any judgment against the Company or any action to
enforce the same or any other circumstances which might otherwise constitute a
legal or equitable discharge or defense of a guarantor. Each of the Guarantors
hereby waives the benefits of diligence, presentment, demand of payment, any
requirement that the Trustee or any of the Holders protect, secure, perfect or
insure any security interest in or other Lien on any property subject thereto or
exhaust any right or take any action against the Company (or, with respect to
the Allied
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Finance Guarantee, Allied Parent) or any other Person or any collateral, filing
of claims with a court in the event of insolvency or bankruptcy of the Company,
any right to require a proceeding first against the Company (or, with respect to
the Allied Finance Guarantee, Allied Parent), protest or notice with respect to
any Security or the indebtedness evidenced thereby and all demands whatsoever,
and covenants, that this Senior Subordinated Guarantee will not be discharged in
respect of any Security except by complete performance of the obligations
contained in such Security and in this Senior Subordinated Guarantee. Each of
the Guarantors hereby agrees that, in the event of a default in payment of
principal (or premium, if any) or interest on any Security, whether at its
Stated Maturity or by acceleration, call for redemption, purchase or otherwise,
legal proceedings may be instituted by the Trustee on behalf of, or by, the
Holder of such Security, subject to the terms and conditions set forth in this
Indenture, directly against each of the Guarantors to enforce its Senior
Subordinated Guarantee without first proceeding against the Company (or, with
respect to the Allied Finance Guarantee, Allied Parent). Each Guarantor agrees
that if, after the occurrence and during the continuance of an Event of Default,
the Trustee or any of the Holders are prevented by applicable law from
exercising their respective rights to accelerate the maturity of the Securities,
to collect interest on the Securities or to enforce or exercise any other right
or remedy with respect to the Securities, or the Trustee or the Holders are
prevented from taking any action to realize on any collateral, such Guarantor
agrees to pay to the Trustee for the account of the Holders, upon demand
therefor, the amount that would otherwise have been due and payable had such
rights and remedies been permitted to be exercised by the Trustee or any of the
Holders.
No provision of any Senior Subordinated Guarantee or Security or of
the Indenture shall alter or impair the Senior Subordinated Guarantee of any
Guarantor, which is absolute and unconditional, of the due and punctual payment
of the principal (and premium, if any) and interest on the Security upon which
such Senior Subordinated Guarantee is endorsed.
Each Guarantor shall be subrogated to all rights of the Holders of
the Securities upon which its Senior Subordinated Guarantee is endorsed against
the Company in respect of any amounts paid by such Guarantor on account of such
Security pursuant to the provisions of its Senior Subordinated Guarantee or this
Indenture; Allied Finance shall be subrogated to all rights of the Holders of
the Securities with respect to which the Allied Finance
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Guarantee is issued against Allied Parent in respect of any amounts paid by it
on account of the Parent Guarantee pursuant to the provisions of the Allied
Finance Guarantee; provided, however, that no Guarantor shall be entitled to
enforce or to receive any payments arising out of, or based upon, such right of
subrogation until the principal of (and premium, if any) and interest on all
Securities issued hereunder shall have been paid in full.
Each Senior Subordinated Guarantee shall remain in full force and
effect and continue to be effective should any petition be filed by or against
the Company (or, with respect to the Allied Finance Guarantee, Allied Parent)
for liquidation or reorganization, should the Company (or, with respect to the
Allied Finance Guarantee, Allied Parent) 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 Finance Guarantee, Allied Parent) and shall, to the fullest extent
permitted by law, continue to be effective or be reinstated, as the case may be,
if at any time payment and performance of the Securities is, pursuant to
applicable law, rescinded or reduced in amount, or must otherwise be restored or
returned by any obligee on the Securities, whether as a "voidable preference,"
"fraudulent transfer" or otherwise, all as though such payment or performance
had not been made. In the event that any payment, or any part thereof, is
rescinded, reduced, restored or returned, the Securities shall, to the fullest
extent permitted by law, be reinstated and deemed reduced only by such amount
paid and not so rescinded, reduced, restored or returned.
No stockholder, officer, director, employer or incorporator, past,
present or future, of any Guarantor, as such, shall have any personal liability
under any Senior Subordinated Guarantee by reason of his, her or its status as
such stockholder, officer, director, employer or incorporator.
To the extent that any Subsidiary Guarantor shall be required to pay
any amounts on account of the Securities pursuant to its Senior Subordinated
Guarantee in excess of the greater of (i) the amount of the economic benefit
actually received by such Subsidiary Guarantor from the issuance of the
Securities and (ii) an amount calculated as the product of (A) the aggregate
amount payable by the Subsidiary Guarantors on account of the Securities
pursuant to their Senior Subordinated Guarantees times (B) the proportion
(expressed as a fraction) that such Subsidiary Guarantor's net worth at the date
enforcement of its Senior
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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 Senior Subordinated Guarantees is sought. This
paragraph is intended only to define the relative rights of the Subsidiary
Guarantors as among themselves, and nothing set forth in this paragraph is
intended to or shall impair the joint and several obligations of the Guarantors
under their respective Senior Subordinated Guarantees.
The Guarantors shall have the right to seek contribution from any
non-paying Guarantor so long as the exercise or such right does not impair the
rights of the Holders under any Senior Subordinated Guarantee.
SECTION 1302. Execution and Delivery of Senior
Subordinated Guarantees.
The Senior Subordinated Guarantees to be endorsed on the Securities
shall include the terms of the Senior Subordinated Guarantee set forth in
Section 1301 and any other terms that may be set forth in the form established
pursuant to Section 205. Each of the Guarantors hereby agrees to execute its
Senior Subordinated Guarantee, in a form established pursuant to Section 205, to
be endorsed on each Security authenticated and delivered by the Trustee.
The Senior Subordinated Guarantee shall be executed on behalf of
each respective Guarantor by any one of such Guarantor's Chairman of the Board,
Vice Chairman of the Board, President or Vice Presidents, attested by its
Secretary or Assistant Secretary. The signature of any or all of these officers
on the Senior Subordinated Guarantee may be manual or facsimile and may be
pursuant to a duly executed power of attorney.
A Senior Subordinated Guarantee bearing the manual or facsimile
signatures of individuals who were at any time the proper officers of a
Guarantor shall bind such Guarantor, notwithstanding that such individuals or
any of them have ceased to hold such offices prior to the authentication and
delivery of the Security on which such Senior Subordinated Guarantee is endorsed
or did not hold such offices at the date of such Senior Subordinated Guarantee.
The delivery of any Security by the Trustee, after the
authentication thereof hereunder, shall constitute due
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delivery of the Senior Subordinated Guarantee endorsed thereon on behalf of the
Guarantors. Each of the Guarantors hereby jointly and severally agrees that its
Senior Subordinated Guarantee set forth in Section 1301 shall remain in full
force and effect notwithstanding any failure to endorse a Senior Subordinated
Guarantee on any Security.
SECTION 1303. Subsidiary Guarantors May Consolidate, Etc.,
on Certain Terms.
Except as may be provided in Section 1304 and in Articles Eight and
Ten, 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 1304. 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 1303, 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 1303, 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 Thirteen. Any
Subsidiary Guarantor not released from its obligations under its Subsidiary
Guarantees endorsed on the Securities and under this Article Thirteen shall
remain liable for the full amount of principal of (and premium, if any) and
interest on the Securities and for the other obligations of a Subsidiary
Guarantor under its Subsidiary Guarantees endorsed on the Securities and under
this Article Thirteen.
(b) Concurrently with the defeasance of the Securities under Section
1202 or the covenant defeasance of the Securities under Section 1203, the
Guarantors shall be released from all of their obligations under their Senior
Subordinated Guarantees endorsed on the Securities and under this Article
Thirteen.
(c) Upon the consummation of any transaction (whether involving a
sale or other disposition of securities, a merger, a designation as an
Unrestricted Subsidiary or otherwise) whereby any Subsidiary Guarantor ceases to
be
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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 Thirteen.
SECTION 1305. Additional Guarantors.
(a) Allied Finance shall, and the Company shall cause Allied Finance
to, upon the closing of the Acquisition, unconditionally guarantee (the "Allied
Finance Guarantee") 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 Allied Parent's obligations under the Parent Guarantee 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. Pursuant the Allied Finance
Guarantee, in case of Allied Parent's failure of punctually to make any such
payment, Allied Finance shall agree 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 Allied Parent. Allied Finance shall become a
Guarantor by executing and delivering to the Trustee (a) a supplemental
indenture, in form and substance satisfactory to the Trustee, which subjects
Allied Finance to the obligations set forth above, to the other provisions in
this Indenture with respect to the Allied Finance Guarantee and to the
provisions under this Indenture applicable to Guarantors generally and (b) an
Opinion of Counsel to the effect that such supplemental indenture has been duly
authorized and executed by Allied Finance and constitutes the legal, valid,
binding and enforceable obligation of Allied Finance (subject to such customary
exceptions concerning creditors' rights and equitable principles as may be
acceptable to the Trustee in its discretion).
(b) The Company shall cause each Person that becomes a Restricted
Subsidiary after the date of this Indenture (other than Med Track), upon
becoming a Restricted Subsidiary, to become a Subsidiary Guarantor with respect
to the Securities. Any such Person shall become a Subsidiary Guarantor by
executing and delivering to the Trustee (a) a supplemental indenture, in form
and substance satisfactory to the Trustee, which subjects such Person to the
provisions of this Indenture as a Subsidiary Guarantor and (b) an Opinion of
Counsel to the effect that such supplemental indenture has been duly authorized
and executed by such
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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 FOURTEEN
Subordination of Securities
and Senior Subordinated Guarantees
SECTION 1401. Securities Subordinate to Senior Debt.
The Company covenants and agrees, and each Holder of a Security, by
his acceptance thereof, likewise covenants and agrees, that, to the extent and
in the manner hereinafter set forth in this Article (subject to the provisions
of Article Four and Article Twelve and Section 1101), (i) the payment of the
principal of (and premium, if any) and interest on the Securities and any other
obligations in respect of the Securities (including any obligation to repurchase
Securities) are hereby expressly made subordinate and subject in right of
payment to the prior payment in full of all Senior Debt of the Company, and (ii)
the payment of each Guarantor's obligations in respect of its Senior
Subordinated Guarantee is hereby expressly made subordinate and subject in right
of payment to the prior payment in full of all the obligations of such Guarantor
under all Senior Debt of such Guarantor.
SECTION 1402. 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 marshalling 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,
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before the Holders of the Securities are entitled to receive any payment or
distribution of any kind or character from the Company, whether in cash,
property or securities (including any payment or distribution which may be
payable or deliverable by reason of the payment of any other Debt of the Company
subordinated to the payment of the Securities on account of principal of (or
premium, if any) or interest (including Special Interest) on or other
obligations in respect of the Securities or on account of any purchase or other
acquisition of Securities by the Company or Allied Parent or any Subsidiary of
the Company (all such payments, distributions, purchases and acquisitions herein
referred to, individually and collectively, as a "Company Securities Payment"),
and to that end the holders of Senior Debt of the Company shall be entitled to
receive, for application to the payment thereof, any Company Securities Payment
which may be payable or deliverable in respect of the Securities in any such
Company Proceeding.
In the event of (a) any insolvency or bankruptcy case or proceeding,
or any receivership, liquidation, reorganization or other similar case or
proceeding in connection therewith, relative to any Guarantor or to its
creditors, as such, or to its assets, or (b) any liquidation, dissolution or
other winding up of any Guarantor, whether voluntary or involuntary and whether
or not involving insolvency or bankruptcy, or (c) any assignment for the benefit
of creditors or any other marshalling of assets and liabilities of any
Guarantor, then and in any such event specified in (a), (b) or (c) above (each
such event, if any, herein sometimes referred to as a "Guarantor Proceeding";
the Company Proceeding and the Guarantor Proceeding each may be referred to as a
"Proceeding") the holders of all Senior Debt of such Guarantor shall first be
entitled to receive payment in full of all amounts due or to become due on or in
respect of all such Senior Debt, or provision shall be made for such payment in
cash or cash equivalents or otherwise in a manner satisfactory to the holders of
such Senior Debt, before the Holders of the Securities are entitled to receive
any payment or distribution of any kind or character from such Guarantor,
whether in cash, property or securities (including any payment or distribution
which may be payable or deliverable by reason of the payment of any other Debt
of such Guarantor subordinated to the payment of its Senior Subordinated
Guarantee by such Guarantor) on account of its Senior Subordinated Guarantee
(all such payments and distributions herein referred to, individually and
collectively, as a "Guarantor 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
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shall be entitled to receive, for application to the payment thereof, any
Guarantor Securities Payment which may be payable or deliverable in respect of
the Senior Subordinated Guarantee by such Guarantor in any such Guarantor
Proceeding.
In the event that, notwithstanding the foregoing provisions of this
Section , the Trustee or the Holder of any Security shall have received any
Securities Payment before all Senior Debt the Company or the Guarantor, as
applicable, is paid in full or payment thereof provided for in cash or cash
equivalents or otherwise in a manner satisfactory to the holders of such Senior
Debt, then and in such event such Securities Payment shall be paid over or
delivered forthwith to the holders of Senior Debt for application to the payment
of such Senior Debt remaining unpaid, to the extent necessary to pay such Senior
Debt in full, after giving effect to any concurrent payment or distribution to
or for the holders of such Senior Debt.
The consolidation of the Company or any Guarantor with, or the
merger of the Company or any Guarantor into, another Person or the liquidation
or dissolution of the Company or any Guarantor following the conveyance or
transfer of all or substantially all of its properties and assets as an entirety
to another Person upon the terms and conditions set forth in Article Eight shall
not be deemed a Proceeding for the purposes of this Section if the Person formed
by such consolidation or into which the Company or any Guarantor is merged or
the Person which acquires by conveyance or transfer such properties and assets
as an entirety, as the case may be, shall, as a part of such consolidation,
merger, conveyance or transfer, comply with the conditions set forth in Article
Eight.
SECTION 1403. No Payment When Senior Debt in Default.
In the event that any Company Senior Payment Default (as defined
below) shall have occurred and be continuing, then no Company Securities Payment
shall be made unless and until such Company Senior Payment Default shall have
been cured or waived or shall have ceased to exist or all amounts then due and
payable in respect of Senior Debt of the Company shall have been paid in full,
or provision shall have been made for such payment in cash or otherwise in a
manner satisfactory to the holders of such Senior Debt. "Company Senior Payment
Default" means (i) any default in the payment of principal of (or premium, if
any) or interest on any Senior Debt of the Company and (ii) any event of default
with respect to Senior Debt of the Company which has resulted in such Senior
Debt becoming or being declared due
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and payable prior to the date on which it would otherwise
have become due and payable.
In the event that any Guarantor Senior Payment Default (as defined
below) with respect to any Guarantor shall have occurred and be continuing, then
no Guarantor Securities Payment shall be made by such Guarantor unless and until
such Guarantor Senior Payment Default shall have been cured or waived or shall
have ceased to exist or all amounts then due and payable in respect of the
Senior Debt of such Guarantor shall have been paid in full, or provision shall
have been made for such payment in cash or otherwise in a manner satisfactory to
the holders of Senior Debt of such Guarantor. "Guarantor Senior Payment Default"
means, with respect to any Guarantor, (i) any default in the payment of
principal of (or premium, if any) or interest on any Senior Debt of such
Guarantor and (ii) any event of default with respect to Senior Debt of such
Guarantor which has resulted in such Senior Debt becoming or being declared due
and payable prior to the date on which it would otherwise have become due and
payable. Any Company Senior Payment Default or Guarantor Senior Payment Default
may be referred to herein as a "Senior Payment Default".
In the event that any Company Senior Nonmonetary Default (as defined
below) shall have occurred and be continuing, then, upon the receipt by the
Company and the Trustee of written notice of such Company Senior Nonmonetary
Default from the Agent Bank under the Bank Agreement (or if such Agreement has
been terminated, from any holder of Senior Debt of the Company with a principal
amount in excess of $50 million), no Company Securities Payment shall be made
during the period (the "Company Payment Blockage Period") commencing on the date
of such receipt of such written notice and ending on the earlier of (i) the date
on which such Company Senior Nonmonetary Default shall have been cured or waived
or shall have ceased to exist and any acceleration of Senior Debt of the Company
shall have been rescinded or annulled or the Senior Debt of the Company to which
such Company Senior Nonmonetary Default relates shall have been discharged or
(ii) the 179th day after the date of such receipt of such written notice. No
more than one Company Payment Blockage Period may be commenced with respect to
the Securities during any consecutive 360-day period. For all purposes of this
paragraph, no Senior Nonmonetary Default that existed or was continuing on the
date of commencement of any Company Payment Blockage Period shall be, or be
made, the basis for the commencement of a subsequent Company Payment Blockage
Period whether or not within a period of 360 consecutive days by holders of
Senior Debt of the Company or their representatives unless such
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Company Senior Nonmonetary Default shall have been cured for a period of not
less than 90 consecutive days. "Company Senior Nonmonetary Default" means the
occurrence or existence and continuance of any event of default, or of any event
which, after notice or lapse of time (or both), would become an event of
default, under the terms of any instrument pursuant to which any Senior Debt of
the Company is outstanding, permitting (after notice or lapse of time or both)
one or more holders of such Senior Debt (or a trustee or agent on behalf of the
holders thereof) to declare such Senior Debt due and payable prior to the date
on which it would otherwise become due and payable, other than a Company Senior
Payment Default.
In the event that a Guarantor Senior Nonmonetary Default (as defined
below) with respect to any Guarantor shall have occurred and be continuing,
then, upon the receipt by such Guarantor and the Trustee of written notice of
such Guarantor Senior Nonmonetary Default from a holder of Senior Debt of such
Guarantor with a principal amount in excess of $50 million, no Guarantor
Securities Payment shall be made by such Guarantor during the period (a
"Guarantor Payment Blockage Period") commencing on the date of such receipt of
such written notice and ending on the earlier of (i) the date on which such
Guarantor Senior Nonmonetary Default shall have been cured or waived or shall
have ceased to exist and any acceleration of Senior Debt of such Guarantor shall
have been rescinded or annulled or the Senior Debt of such Guarantor to which
such Guarantor Senior Nonmonetary Default relates shall have been discharged or
(ii) the 179th day after the date of such receipt of such written notice. No
more than one Guarantor Payment Blockage Period may be commenced with respect to
the Securities during any 360-day period. For all purposes of this paragraph, no
Guarantor Senior Nonmonetary Default with respect to a Guarantor that existed or
was continuing on the date of commencement of any Guarantor Payment Blockage
Period with respect to such Guarantor shall be, or be made, the basis for the
commencement of a Guarantor subsequent Payment Blockage Period with respect to
such Guarantor whether or not within a period of 360 consecutive days by holders
of Senior Debt of such Guarantor or their representatives unless such Guarantor
Senior Nonmonetary Default shall have been cured for a period of not less than
90 consecutive days. A "Guarantor Senior Nonmonetary Default" means, with
respect to any Guarantor, the occurrence or existence and continuance of any
event of default, or of any event which, after notice or lapse of time (or
both), would become an event of default, under the terms of any instrument
pursuant to which any Senior Debt of such Guarantor is outstanding, permitting
(after notice or lapse
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of time or both) one or more holders of such Senior Debt (or a trustee or agent
on behalf of the holders thereof) to declare such Senior Debt due and payable
prior to the date on which it would otherwise become due and payable, other than
a Guarantor Senior Payment Default. Any of the Company Senior Nonmonetary
Default and the Guarantor Senior Nonmonetary Defaults may be referred to herein
as a "Senior Nonmonetary Default".
In the event that, notwithstanding the foregoing, the Company or any
Guarantor shall make any Company Securities Payment or Guarantor Securities
Payment, as the case may be, to the Trustee or any Holder prohibited by the
foregoing provisions of this Section , then and in such event such Securities
Payment shall be paid over and delivered forthwith to the holders of the Senior
Debt of the Company or the Guarantor, as the case may be.
The provisions of this Section shall not apply to any Securities
Payment with respect to which Section 1402 would be applicable.
SECTION 1404. Certain Payments Permitted.
Nothing contained in this Article or elsewhere in this Indenture or
in any of the Securities or the Senior Subordinated Guarantees endorsed thereon
shall prevent (a) the Company or any Guarantor, at any time except during the
pendency of any Proceeding referred to in Section 1402 or under the conditions
described in Section 1403, from making Securities Payments, or (b) the Company
from meeting its obligations with respect to the Special Mandatory Redemption,
any payments by the Company to the Holders of the Securities or the application
by the Trustee of any funds from the Collateral Account or any other Collateral
under the Collateral Agreement pursuant to the Special Mandatory Redemption.
SECTION 1405. Subrogation to Rights of Holders of Senior
Debt.
Subject to the payment in full in cash of all amounts due or to
become due on or in respect of Senior Debt of the Company or a Guarantor, as the
case may be, or the provision for such payment in cash or cash equivalents or
otherwise in a manner satisfactory to the holders of such Senior Debt, the
Holders of the Securities shall be subrogated to the rights of the holders of
such Senior Debt to receive payments and distributions of cash, property and
securities applicable to such Senior Debt until the principal of (and premium,
if any) and interest on the
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Securities or the obligation under such Guarantor's Senior Subordinated
Guarantee, as the case may be, shall be paid in full. For purposes of such
subrogation, no payments or distributions to the holders of the Senior Debt of
the Company or a Guarantor of any cash, property or securities to which the
Holders of the Securities or the Trustee would be entitled except for the
provisions of this Article, and no payments over pursuant to the provisions of
this Article to the holders of Senior Debt of the Company or such Guarantor, as
the case may be, by Holders of the Securities or the Trustee, shall, as among
the Company or such Guarantor, as the case may be, its creditors other than
holders of Senior Debt and the Holders of the Securities, be deemed to be a
payment or distribution by the Company or such Guarantor, as applicable, to or
on account of the Senior Debt of the Company or such Guarantor, as the case may
be.
SECTION 1406. Provisions Solely to Define Relative Rights.
The provisions of this Article are and are intended solely for the
purpose of defining the relative rights of the Holders on the one hand and the
holders of Senior Debt on the other hand. Nothing contained in this Article or
elsewhere in this Indenture or in the Securities is intended to or shall (a)
impair, as among the Company or any Guarantor, as applicable, its creditors
other than holders of Senior Debt and the Holders of the Securities with the
Guarantees endorsed thereon, the obligation of the Company or any Guarantor, as
applicable, which is absolute and unconditional (and which, subject to the
rights under this Article of the holders of Senior Debt, is intended to rank
equally with all other general obligations of the Company), to pay to the
Holders of the Securities with the Guarantees endorsed thereon the principal of
(and premium, if any) and interest on the Securities as and when the same shall
become due and payable in accordance with their terms; or (b) affect the
relative rights against the Company or any Guarantor, as applicable, of the
Holders of the Securities with the Guarantees endorsed thereon and creditors of
the Company or any Guarantor, as applicable, other than the holders of Senior
Debt; or (c) prevent the Trustee or the Holder of any Security with the
Guarantees endorsed thereon from exercising all remedies otherwise permitted by
applicable law upon default under this Indenture, subject to the rights, if any,
under this Article of the holders of Senior Debt to receive cash, property and
securities otherwise payable or deliverable to the Trustee or such Holder.
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SECTION 1407. Trustee to Effectuate Subordination.
Each Holder of a Security by his acceptance thereof authorizes and
directs the Trustee on his behalf to take such action as may be necessary or
appropriate to effectuate the subordination provided in this Article and
appoints the Trustee his attorney-in-fact for any and all such purposes.
SECTION 1408. No Waiver of Subordination Provisions.
No right of any present or future holder of any Senior Debt to
enforce subordination as herein provided shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Company
or any Guarantor or by any act or failure to act, in good faith, by any such
holder, or by any noncompliance by the Company or any Guarantor with the terms,
provisions and covenants of this Indenture, regardless of any knowledge thereof
any such holder may have or be otherwise charged with.
Without in any way limiting the generality of the foregoing
paragraph, the holders of Senior Debt may, at any time and from time to time,
without the consent of or notice to the Trustee or the Holders of the
Securities, without incurring responsibility to the Holders of the Securities
and without impairing or releasing the subordination provided in this Article or
the obligations hereunder of the Holders of the Securities to the holders of
Senior Debt, do any one or more of the following: (i) change the manner, place
or terms of payment or extend the time of payment of, or renew or alter or
increase, Senior Debt, or otherwise amend or supplement in any manner Senior
Debt or any instrument evidencing the same or any agreement under which Senior
Debt is outstanding; (ii) sell, exchange, release or otherwise deal with any
property pledged, mortgaged or otherwise securing Senior Debt; (iii) release any
Person liable in any manner for the collection of Senior Debt; and (iv) exercise
or refrain from exercising any rights against the Company, the Guarantors and
any other Person.
SECTION 1409. Notice to Trustee.
The Company shall give prompt written notice to the Trustee of any
fact known to the Company which would prohibit the making of any payment to or
by the Trustee in respect of the Securities or any of the Senior Subordinated
Guarantees. Notwithstanding the provisions of this Article or any other
provision of this Indenture, the Trustee shall not be charged with knowledge of
the existence of any facts which would prohibit the making of any payment to or
by the
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Trustee in respect of the Securities or any of the Senior Subordinated
Guarantees, unless and until the Trustee shall have received written notice
thereof from the Company or a holder of Senior Debt or from any trustee
therefor; and, prior to the receipt of any such written notice, the Trustee,
subject to the provisions of Section 601, shall be entitled in all respects to
assume that no such facts exist, provided that nothing in this Section 1409
shall impair the subordination provisions of this Article Fourteen.
Subject to the provisions of Section 601, the Trustee shall be
entitled to rely on the delivery to it of a written notice by a Person
representing himself to be a holder of Senior Debt (or a trustee, representative
or agent therefor) to establish that such notice has been given by a holder of
Senior Debt (or a trustee, representative or agent therefor). In the event that
the Trustee determines in good faith that further evidence is required with
respect to the right of any Person as a holder of Senior Debt to participate in
any payment or distribution pursuant to this Article, the Trustee may request
such Person to furnish evidence to the reasonable satisfaction of the Trustee as
to the amount of Senior Debt held by such Person, the extent to which such
Person is entitled to participate in such payment or distribution and any other
facts pertinent to the rights of such Person under this Article, and if such
evidence is not furnished, the Trustee may defer any payment to such Person
pending judicial determination as to the right of such Person to receive such
payment.
SECTION 1410. 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 601, 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.
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SECTION 1411. 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 1412. 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 607.
SECTION 1413. Article Applicable to Paying Agents.
In case at any time any Paying Agent other than the Trustee shall
have been appointed by the Company and be then acting hereunder, the term
"Trustee" as used in this Article shall in such case (unless the context
otherwise requires) be construed as extending to and including such Paying Agent
within its meaning as fully for all intents and purposes as if such Paying Agent
were named in this Article in addition to or in place of the Trustee; provided,
however, that Section 1412 shall not apply to the Company or any Affiliate of
the Company if it or such Affiliate acts as Paying Agent.
SECTION 1414. Defeasance of this Article Fourteen.
The subordination of the Securities and the Senior Subordinated
Guarantees provided by this Article Fourteen is expressly made subject to the
provisions for defeasance or covenant defeasance in Articles Four and Twelve
and, anything herein to the contrary notwithstanding, upon the effectiveness of
any such defeasance or covenant defeasance, the Securities then Outstanding and
the Senior Subordinated Guarantees relating thereto shall thereupon cease to be
subordinated pursuant to this Article Fourteen.
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ARTICLE FIFTEEN
Jurisdiction and Consent to Service of Process
SECTION 1501. Jurisdiction and Consent to Service of
Process.
(a) Each of the Company and the Guarantors hereby irrevocably and
unconditionally submits, for itself and its property, to the nonexclusive
jurisdiction of any New York State court or Federal court of the United States
of America sitting in New York City, and any appellate court from any thereof,
in any action or proceeding arising out of or relating to the Securities, the
Senior Subordinated Guarantees, this Indenture or the Collateral Agreement, 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 Fifteen shall
affect any right that any Holder or the Trustee may otherwise have to bring any
action or proceeding relating to the Securities, the Senior Subordinated
Guarantees, this Indenture or the Collateral Agreement against the Company, any
Guarantor or their respective properties in the courts of any jurisdiction.
(b) Each of the Company and the Guarantors hereby irrevocably and
unconditionally waives, to the fullest extent it may legally and effectively do
so, any objection which it may now or hereafter have to the laying of venue of
any suit, action or proceeding arising out of or relating to the Securities, the
Senior Subordinated Guarantees, this Indenture or the Collateral Agreement 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 105. Nothing in
this Agreement will affect the right of any Holder or the Trustee to serve
process in any other manner permitted by law.
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--------------------
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, and their respective corporate seals to be hereunto affixed
and attested, all as of the day and year first above written.
ALLIED WASTE NORTH AMERICA, INC.,
By:/s/ Xxxxx X. Xxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxx
Title: Chief Executive Officer
By:/s/ Xxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
Attest:
/s/ Xxxxxx X. Xxxx
--------------------
Xxxxxx X. Xxxx
ALLIED WASTE INDUSTRIES, INC.,
As Guarantor
By:/s/ Xxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
By:/s/ Xxxxx X. Xxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxx
Title: Chief Executive Officer
Attest:
/s/ Xxxxxx X. Xxxx
--------------------
Xxxxxx X. Xxxx
ALLIED WASTE FINANCE (CANADA) LTD.,
As future Guarantor of the
obligations of Allied
Waste Industries, Inc.
under the Parent Guarantee
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By:/s/ Xxxxxx X. Xxxx
--------------------------------
Name: Xxxxxx X. Xxxx
Title: Secretary
Attest:
/s/ Xxxxx X. Xxxxxxx
-----------------------
Xxxxx X. Xxxxxxx
Each of the Subsidiary Guarantors
Listed on Schedule I hereto,
As Guarantor
By:*/s/ Xxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Executive Vice President
By:**/s/ Xxxxxx X. Xxxx
--------------------------------
Name: Xxxxxx X. Xxxx
Title: Secretary and Treasurer
Attest:*
/s/ Xxxxxx X. Xxxx
------------------------
Xxxxxx X. Xxxx
FIRST BANK NATIONAL
ASSOCIATION,
As Trustee
By:/s/ Xxxxxxx X. Xxxxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Trust Officer
--------
* Signing as duly authorized officer for each such Subsidiary Guarantor
other than Allied Canada.
** Signing as duly authorized officer for Allied Canada.
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166
Attest:
/s/ Xxxxxxxxx Xxxxxxxx
-----------------------
Xxxxxxxxx Xxxxxxxx
-152-
000
XXXXX XX XXX XXXX )
ss.:
COUNTY OF NEW YORK)
On the 5th day of December, 1996, before me personally came Xxxxx X.
Xxxxxx, to me known, who, being by me duly sworn, did depose and say that he is
the Chief Executive Officer of Allied Waste North America, Inc. and Allied Waste
Industries, Inc., two of the corporations described in and which executed the
foregoing instrument; that he knows the seal of said corporation; that the seal
affixed to said instrument is such corporate seal; that it was so affixed by
authority of the Board of Directors of said corporation, and that he signed his
name thereto by like authority.
/s/ Tissapeh Abedinejad
---------------------------
-153-
000
XXXXX XX XXX XXXX )
ss.:
COUNTY OF NEW YORK)
On the 5th day of December, 1996, before me personally came Xxxxx X.
Xxxxxxx, to me known, who, being by me duly sworn, did depose and say that he is
the Vice President and CFO of Allied Waste North America, Inc. and Allied Waste
Industries, Inc., two of the corporations described in and which executed the
foregoing instrument; that he knows the seal of said corporation; that the seal
affixed to said instrument is such corporate seal; that it was so affixed by
authority of the Board of Directors of said corporation, and that he signed his
name thereto by like authority.
/s/ Tissapeh Abedinejad
---------------------------
-154-
000
XXXXX XX XXX XXXX )
ss.:
COUNTY OF NEW YORK)
On the 5th day of December, 1996, before me personally came Xxxxxx
X. Xxxx, to me known, who, being by me duly sworn, did depose and say that he is
the Secretary Treasurer of Allied Waste Finance (Canada) Ltd., as future
Guarantor of the obligations of Allied Waste Industries, Inc. under the Parent
Guarantee, described in and which executed the foregoing instrument; that he
knows the seal of said corporation; that the seal affixed to said instrument is
such corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation, and that he signed his name thereto by like
authority.
/s/ Tissapeh Abedinejad
---------------------------
-155-
000
XXXXX XX XXX XXXX )
ss.:
COUNTY OF NEW YORK)
On the 5th day of December, 1996, before me personally came Xxxxx X.
Xxxxxxx, to me known, who, being by me duly sworn, did depose and say that he is
the Executive Vice President of each of the Subsidiary Guarantors (other than
Allied Waste Holdings (Canada) Ltd.) listed on Schedule I to, and which executed
the foregoing, instrument; that he knows the seal of said corporation; that the
seal affixed to said instrument is such corporate seal; that it was so affixed
by authority of the Board of Directors of said corporation, and that he signed
his name thereto by like authority.
/s/ Tissapeh Abedinejad
---------------------------
-156-
000
XXXXX XX XXX XXXX )
ss.:
COUNTY OF NEW YORK)
On the 5th day of December, 1996, before me personally came Xxxxxx
X. Xxxx, to me known, who, being by me duly sworn, did depose and say that he is
the Secretary and Treasurer of Allied Waste Holdings (Canada) Ltd., one of the
Guarantors described in and which executed the foregoing instrument; that he
knows the seal of said corporation; that the seal affixed to said instrument is
such corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation, and that he signed his name thereto by like
authority.
/s/ Tissapeh Abedinejad
---------------------------
-157-
000
XXXXX XX XXX XXXX )
ss.:
COUNTY OF NEW YORK)
On the 5th day of December, 1996, before me personally came Xxxxxxx
X. Xxxxxxxx, to me known, who, being by me duly sworn, did depose and say that
he is a Trust Officer of First Bank National Association, one of the
corporations described in and which executed the foregoing instrument; that he
knows the seal of said corporation; that the seal affixed to said instrument is
such corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation, and that he signed his name thereto by like
authority.
/s/ Tissapeh Abedinejad
---------------------------
173
SCHEDULE I
LIST OF SUBSIDIARY GUARANTORS
Allied Waste Holdings (Canada) Ltd.
A and W Disposal Service, Inc.
Acme Scavenger Service, Inc.
Allied Waste Industries (Midwest), Inc.
Allied Waste Industries of Illinois, Inc.
Allied Waste of California, Inc.
Allied Waste Systems, Inc. (Ill. corp.)
Brickyard Disposal & Recycling, Inc.
Citiwaste, Inc.
Consolidated Processing, Inc.
Xxxxxxx Disposal, Inc.
Duke Refuse Disposal, Inc.
Illinois Landfill, Inc.
Xxxx Spot Portable Services, Inc.
K & H Disposal, Inc.
Xxx County Landfill, Inc.
Midwest Waste RDF, Inc.
National Waste Industries, Inc.
National Waste Services, Inc.
Xxxxx Xxxxxx Sons, Inc.
Post Disposal Service, Inc.
R. 18, Inc.
RCS, Inc.
Sanitary Waste Services, Inc.
South Holland Scavenger Service, Inc.
South Suburban Disposal, Inc.
Southwest Disposal Service, Inc.
Streator Area Landfill, Inc.
Superior Scavenger, Inc.
Upper Rock Island County Landfill, Inc.
USI/Hustlers, Inc.
Van Weelden Brothers, Inc.
AAWI, Inc.
Allied Enviro Engineering, Inc. (Tex. corp.)
Allied Waste Services, Inc.
Environmental Development Corp.
EOS Environmental, Inc.
Allied Enviroengineering, Inc. (Del. corp.)
Allied Waste Alabama, Inc.
Allied Waste Systems, Inc. (Del. corp.)
AWIN Finance Company, Inc.
AWIN Leasing Company, Inc.
Container Corporation of Carolina
Vermilion Waste Systems, Inc.
Allied Waste Hauling of Georgia, Inc.
Allied Waste Industries of Georgia, Inc.
Bulldog Xxxxxx, Inc.
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174
Clayco Sanitation Company
Haul-All Sanitation, Inc.
Xxxxxx on the Spot--Portable Toilets, Inc.
Southern States Environmental Services, Inc.
Allied Waste Industries (Arizona), Inc.
Allied Waste Industries (Southwest), Inc.
Apache Junction Landfill Corporation
Best Disposal Services, Inc.
Mr. Potty, Inc.
Pen-Rob, Inc.
Pinal County Landfill Corp.
Sun Services & Liquid Waste Removal, Inc.
Superior Services Waste Management, Inc.
Allied Waste Industries (Colorado), Inc.
Allied Waste Industries of Alamosa, Inc.
L&M Disposal, Inc.
Allied Waste Industries (Missouri), Inc.
Autoshred, Inc.
Bluff Trash Service, Inc.
Cass County Disposal, Inc.
Chuck's Disposal Services, Inc.
Lemons Landfill Corporation
Lemons Waste Systems, Inc.
Midwest Land Development Corp.
Midwest Landfill Corporation
Midwest Waste, Inc.
Midwest Waste Industrial, Inc.
North American Recycling, Inc.
Ozark Foothills Regional Recycling Facility, Inc.
Poplar Bluff Construction and Development Company, Inc.
Sanico, Inc.
T. and W. Disposal Company, Inc.
Xxxxxx Enterprises, Inc.
Allied Waste Industries (New Mexico), Inc.
Environmental Control, Inc.
Sanco, Inc.
Allied Waste Industries of Indiana, Inc.
Allied Waste Industries of Northwest Indiana, Inc.
Allied Waste Industries of Plymouth, Inc.
Illiana Disposal Service, Inc.
Xxxxxx County Development Corp.
Ooms Bros. Disposal Service, Inc.
Service Waste, Inc.
Wastehaul, Inc.
Allied Waste Industries of Tennessee, Inc.
Allied Waste Industries of Virginia, Inc.
Allied Waste Industries of Wyoming, Inc.
Community Refuse Disposal, Inc.
Xxxxxxxx Sanitary Service, Inc.
Organized Sanitary Collectors and Recyclers, Inc.
Oscar's Collection Systems of Fremont, Inc.
X.X. Xxxxx Corporation
I-2
175
CRX Inc.
I-3
176
ANNEX A -- Form of
Regulation S Certificate
REGULATION S CERTIFICATE
(For transfers pursuant to Section 306(b)(i), (iii) and (v)
of the Indenture)
First Bank National Association
First Trust Center
000 Xxxx Xxxxx Xxxxxx
Xx. Xxxx, Xxxxxxxxx 00000
Re: 10 1/4% Senior Notes due 2006 of
Allied Waste North America, Inc.
(the "Securities")
--------------------------------
Reference is made to the Indenture, dated as of December 1, 1996
(the "Indenture"), from Allied Waste North America, Inc. (the "Company"), the
Guarantors named therein and Allied Waste Finance (Canada) Ltd., as future
Guarantor to First Bank National Association, as Trustee. Terms used herein and
defined in the Indenture or in Regulation S or Rule 144 under the U.S.
Securities Act of 1933 (the "Securities Act") are used herein as so defined.
This certificate relates to U.S. $____________ principal amount of
Securities, which are evidenced by the following certificate(s) (the "Specified
Securities"):
CUSIP No(s). ___________________________
CERTIFICATE No(s). _____________________
The person in whose name this certificate is executed below (the "Undersigned")
hereby certifies that either (i) it is the sole beneficial owner of the
Specified Securities or (ii) it is acting on behalf of all the beneficial owners
of the Specified Securities and is duly authorized by them to do so. Such
beneficial owner or owners are referred to herein collectively as the "Owner".
If the Specified Securities are represented by a Global Security, they are held
through the Depositary or an Agent Member in the name of the Undersigned, as or
on behalf of the Owner. If the Specified Securities are not represented by a
Global Security, they are registered in the name of the Undersigned, as or on
behalf of the Owner.
The Owner has requested that the Specified Securities be transferred
to a person (the "Transferee") who will take delivery in the form of a
Regulation S Security. In connection with such transfer, the Owner hereby
certifies that, unless such transfer is being effected pursuant to an
A-1
177
effective registration statement under the Securities Act, it is being effected
in accordance with Rule 904 or Rule 144 under the Securities Act and with all
applicable securities laws of the states of the United States and other
jurisdictions. Accordingly, the Owner hereby further certifies as follows:
(1) Rule 904 Transfers. If the transfer is being effected in
accordance with Rule 904:
(A) the Owner is not a distributor of the Securities, an
affiliate of the Company or any such distributor or a person acting
on behalf of any of the foregoing;
(B) the offer of the Specified Securities was not made to a
person in the United States;
(C) either:
(i) at the time the buy order was originated, the
Transferee was outside the United States or the Owner and any
person acting on its behalf reasonably believed that the
Transferee was outside the United States, or
(ii) the transaction is being executed in, on or through
the facilities of the Eurobond market, as regulated by the
Association of International Bond Dealers, or another
designated offshore securities market and neither the Owner
nor any person acting on its behalf knows that the transaction
has been prearranged with a buyer in the United States;
(D) no directed selling efforts have been made in the United
States by or on behalf of the Owner or any affiliate thereof;
(E) if the Owner is a dealer in securities or has received a
selling concession, fee or other renumeration in respect of the
Specified Securities, and the transfer is to occur during the
Restricted Period, then the requirements of Rule 904(c)(1) have been
satisfied; and
(F) the transaction is not part of a plan or scheme to evade
the registration requirements of the Securities Act.
A-2
178
(2) Rule 144 Transfers. If the transfer is being effected pursuant
to Rule 144:
(A) the transfer is occurring after a holding period of at
least two years (computed in accordance with paragraph (d) of Rule
144) has elapsed since the Specified Securities were last acquired
from the Company or from an affiliate of the Company, whichever is
later, and is being effected in accordance with the applicable
amount, manner of sale and notice requirements of Rule 144; or
(B) the transfer is occurring after a holding period of at
least three years has elapsed since the Specified Securities were
last acquired from the Company or from an affiliate of the Company,
whichever is later, and the Owner is not, and during the preceding
three months has not been, an affiliate of the Company.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Company, the Guarantors and the Initial
Purchasers.
Dated: ------------------------------------------------
(Print the name of the Undersigned, as such term
is defined in the second paragraph of this
certificate.)
By:
---------------------------------------------
Name:
Title:
(If the Undersigned is a corporation, partnership
or fiduciary, the title of the person signing on
behalf of the Undersigned must be stated.)
A-3
179
ANNEX B -- Form of Restricted
Securities Certificate
RESTRICTED SECURITIES CERTIFICATE
(For transfers pursuant to Section 306(b)(ii), (iii), (iv) and (v)
of the Indenture)
First Bank National Association
First Trust Center
000 Xxxx Xxxxx Xxxxxx
Xx. Xxxx, Xxxxxxxxx 00000
Re: 10 1/4% Senior Notes due 2006 of
Allied Waste North America, Inc.
(the "Securities")
--------------------------------
Reference is made to the Indenture, dated as of December 1, 1996
(the "Indenture"), from Allied Waste North America, Inc. (the "Company"), the
Guarantors named therein and Allied Waste Finance (Canada) Ltd., as future
Guarantor to First Bank National Association, as Trustee. Terms used herein and
defined in the Indenture or in Rule 144A or Rule 144 under the U.S. Securities
Act of 1933 (the "Securities Act") are used herein as so defined.
This certificate relates to U.S. $_____________ principal amount of
Securities, which are evidenced by the following certificate(s) (the "Specified
Securities"):
CUSIP No(s). ___________________________
ISIN No(s), If any. ____________________
CERTIFICATE No(s). _____________________
The person in whose name this certificate is executed below (the "Undersigned")
hereby certifies that either (i) it is the sole beneficial owner of the
Specified Securities or (ii) it is acting on behalf of all the beneficial owners
of the Specified Securities and is duly authorized by them to do so. Such
beneficial owner or owners are referred to herein collectively as the "Owner".
If the Specified Securities are represented by a Global Security, they are held
through the Depositary or an Agent Member in the name of the Undersigned, as or
on behalf of the Owner. If the Specified Securities are not represented by a
Global Security, they are registered in the name of the Undersigned, as or on
behalf of the Owner.
The Owner has requested that the Specified Securities be transferred to
a person (the "Transferee") who will take delivery in the form of a Restricted
Security. In
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180
connection with such transfer, the Owner hereby certifies that, unless such
transfer is being effected pursuant to an effective registration statement under
the Securities Act, it is being effected in accordance with Rule 144A or Rule
144 under the Securities Act and all applicable securities laws of the states of
the United States and other jurisdictions. Accordingly, the Owner hereby further
certifies as:
(1) Rule 144A Transfers. If the transfer is being effected in
accordance with Rule 144A:
(A) the Specified Securities are being transferred to a person
that the Owner and any person acting on its behalf reasonably
believe is a "qualified institutional buyer" within the meaning of
Rule 144A, acquiring for its own account or for the account of a
qualified institutional buyer; and
(B) the Owner and any person acting on its behalf have taken
reasonable steps to ensure that the Transferee is aware that the
Owner may be relying on Rule 144A in connection with the transfer;
and
(2) Rule 144 Transfers. If the transfer is being effected pursuant
to Rule 144:
(A) the transfer is occurring after a holding period of at
least two years (computed in accordance with paragraph (d) of Rule
144) has elapsed since the Specified Securities were last acquired
from the Company or from an affiliate of the Company, whichever is
later, and is being effected in accordance with the applicable
amount, manner of sale and notice requirements of Rule 144; or
(B) the transfer is occurring after a holding period of at
least three years has elapsed since the Specified Securities were
last acquired from the Company or from an affiliate of the Company,
whichever is later, and the Owner is not, and during the preceding
three months has not been, an affiliate of the Company.
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181
This certificate and the statements contained herein are made for
your benefit and the benefit of the Company, the Guarantors and the Initial
Purchasers.
Dated:
------------------------------------------------
(Print the name of the Undersigned, as such term
is defined in the second paragraph of this
certificate.)
By:
---------------------------------------------
Name:
Title:
(If the Undersigned is a corporation, partnership
or fiduciary, the title of the person signing on
behalf of the Undersigned must be stated.)
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182
ANNEX C -- Form of Unrestricted
Securities Certificate
UNRESTRICTED SECURITIES CERTIFICATE
(For removal of Securities Act Legends pursuant to Section 306(c))
First Bank National Association
First Trust Center
000 Xxxx Xxxxx Xxxxxx
Xx. Xxxx, Xxxxxxxxx 00000
Re: 10 1/4% Senior Notes due 2006 of
Allied Waste North America, Inc.
(the "Securities")
--------------------------------
Reference is made to the Indenture, dated as of December 1, 1996
(the "Indenture"), from Allied Waste North America, Inc. (the "Company"), the
Guarantors named therein and Allied Waste Finance (Canada) Ltd., as future
Guarantor to First Bank National Association, as Trustee. Terms used herein and
defined in the Indenture or in Rule 144 under the U.S. Securities Act of 1933
(the "Securities Act") are used herein as so defined.
This certificate relates to U.S. $_____________ principal amount of
Securities, which are evidenced by the following certificate(s) (the "Specified
Securities"):
CUSIP No(s). ___________________________
CERTIFICATE No(s). _____________________
The person in whose name this certificate is executed below (the "Undersigned")
hereby certifies that either (i) it is the sole beneficial owner of the
Specified Securities or (ii) it is acting on behalf of all the beneficial owners
of the Specified Securities and is duly authorized by them to do so. Such
beneficial owner or owners are referred to herein collectively as the "Owner".
If the Specified Securities are represented by a Global Security, they are held
through the Depositary or an Agent Member in the name of the Undersigned, as or
on behalf of the Owner. If the Specified Securities are not represented by a
Global Security, they are registered in the name of the Undersigned, as or on
behalf of the Owner.
The Owner has requested that the Specified Securities be exchanged
for Securities bearing no Securities Act Legend pursuant to Section 306(c) of
the Indenture. In connection with such exchange, the Owner hereby certifies
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183
that the exchange is occurring after a holding period of at least three years
(computed in accordance with paragraph (d) of Rule 144) has elapsed since the
Specified Securities were last acquired from the Company or from an affiliate of
the Company, whichever is later, and the Owner is not, and during the preceding
three months has not been, an affiliate of the Company. The Owner also
acknowledges that any future transfers of the Specified Securities must comply
with all applicable securities laws of the states of the United States and other
jurisdictions.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Company, the Guarantors and the Initial
Purchasers.
Dated:
------------------------------------------------
(Print the name of the Undersigned, as such term
is defined in the second paragraph of this
certificate.)
By:
---------------------------------------------
Name:
Title:
(If the Undersigned is a corporation, partnership
or fiduciary, the title of the person signing on
behalf of the Undersigned must be stated.)
C-2
