<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 8, 1997
REGISTRATION NO. 333-30559
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
ALLIED WASTE INDUSTRIES, INC.
ALLIED WASTE NORTH AMERICA, INC.
SUBSIDIARY GUARANTORS LISTED ON
SCHEDULE A HERETO
(EXACT NAMES OF REGISTRANTS AS SPECIFIED IN THEIR CHARTERS)
------------------------
<TABLE>
<S> <C>
ALLIED WASTE INDUSTRIES, INC. ALLIED WASTE NORTH AMERICA, INC.
DELAWARE DELAWARE
(STATE OR OTHER JURISDICTION (STATE OR OTHER JURISDICTION
OF INCORPORATION OR ORGANIZATION) OF INCORPORATION OR ORGANIZATION)
88-0228636 86-0843596
(I.R.S. EMPLOYER IDENTIFICATION NO.) (I.R.S. EMPLOYER IDENTIFICATION NO.)
</TABLE>
15880 NORTH GREENWAY-HAYDEN LOOP, SUITE 100
SCOTTSDALE, ARIZONA 85260
(602) 423-2946
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANTS' PRINCIPAL EXECUTIVE OFFICES)
STEVE HELM
VICE PRESIDENT, LEGAL
ALLIED WASTE INDUSTRIES, INC.
15880 NORTH GREENWAY-HAYDEN LOOP, SUITE 100
SCOTTSDALE, ARIZONA 85260
(602) 423-2946
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
------------------------
COPIES TO:
DAVID C. GOLAY
FRIED, FRANK, HARRIS, SHRIVER & JACOBSON
ONE NEW YORK PLAZA
NEW YORK, NEW YORK 10048
(212) 859-8000
------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after the effective date of this Registration Statement, as determined
by market conditions.
------------------------
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ] ________
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ] ________
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ] ________
------------------------
<PAGE> 2
CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------------
<TABLE>
<S> <C> <C> <C> <C>
- ----------------------------------------------------------------------------------------------------------------------------------
MAXIMUM PROPOSED MAXIMUM PROPOSED
TITLE OF EACH CLASS OF SECURITIES AMOUNT TO BE OFFERING PRICE MAXIMUM AGGREGATE AMOUNT OF
TO BE REGISTERED(1) REGISTERED(2)(3) PER UNIT OFFERING PRICE(4) REGISTRATION FEE
- ----------------------------------------------------------------------------------------------------------------------------------
Allied Common Stock, $.01 par value...
Allied Preferred Stock, $.10 par
value...............................
Allied Debt Securities, Allied
Warrants............................
Allied Guarantees of AWNA Debt
Securities(5).......................
Subsidiary Guarantees of AWNA Debt
Securities(5).......................
Allied Guarantees of Subsidiary
Guarantees(5).......................
ANWA Debt Securities..................
- ----------------------------------------------------------------------------------------------------------------------------------
Total......................... $800,000,000(6)(7) (6) $800,000,000(7)(8) $242,424(9)
==================================================================================================================================
</TABLE>
(1) Also includes such indeterminate number of shares of Allied Common Stock and
Allied Preferred Stock and amount of Allied Debt Securities and AWNA Debt
Securities and Guarantees of AWNA Debt Securities as may be issued upon
conversion of or exchange for any other Allied Preferred Stock, Allied Debt
Securities or AWNA Debt Securities that provide for conversion or exchange
into other Securities.
(2) Or, if any Allied Debt Securities or AWNA Debt Securities are issued at an
original issue discount, such greater amount as shall result in an aggregate
public offering price of $800,000.000.
(3) In U.S. dollars or the equivalent thereof in foreign currency or currency
units.
(4) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(o) under the Securities Act.
(5) No separate consideration will be received for the Allied Guarantees or the
Subsidiary Guarantees of AWNA Debt Securities or Allied Guarantees of the
Subsidiary Guarantees.
(6) Not specified as to each class of Securities to be registered pursuant to
General Instruction II.D of From S-3.
(7) Such amount represents the aggregate principal amount of the Allied Debt
Securities and AWNA Debt Securities issued at their principal amount, the
aggregate issue price (rather than the principal amount) of any Allied Debt
Securities and AWNA Debt Securities issued at an original issue discount,
the aggregate liquidation preference of any Allied Preferred Stock, the
aggregate amount used when computing the registration fee pursuant to Rule
457(o) under the Securities Act for any Allied Common Stock, the aggregate
issue price of any Allied Warrants and the aggregate exercise price of any
Securities issuable upon the exercise of Allied Warrants.
(8) No separate consideration will be received for the Allied Debt Securities,
AWNA Debt Securities, Allied Preferred Stock or the Allied Common Stock
issuable upon conversion of Allied Debt Securities, AWNA Debt Securities or
Allied Preferred Stock.
(9) Previously paid.
THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANTS
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
================================================================================
<PAGE> 3
SCHEDULE A
SUBSIDIARY GUARANTORS
A AND W DISPOSAL SERVICE, INC.
AAWI, INC.
ACME SCAVENGER SERVICE, INC.
AEGIS OF BRUNSWICK COUNTY, INC.
ALLIED ENVIRO ENGINEERING, INC. (TEX. CORP.)
ALLIED ENVIROENGINEERING, INC. (DEL. CORP.)
ALLIED WASTE ALABAMA, INC.
ALLIED WASTE HAULING OF GEORGIA, INC.
ALLIED WASTE INDUSTRIES (ARIZONA), INC.
ALLIED WASTE INDUSTRIES (COLORADO), INC.
ALLIED WASTE INDUSTRIES (MIDWEST), INC.
ALLIED WASTE INDUSTRIES (MISSOURI), INC.
ALLIED WASTE INDUSTRIES (NEW MEXICO), INC.
ALLIED WASTE INDUSTRIES (SOUTHWEST), INC.
ALLIED WASTE INDUSTRIES OF ALAMOSA, INC.
ALLIED WASTE INDUSTRIES OF GEORGIA, INC.
ALLIED WASTE INDUSTRIES OF ILLINOIS, INC.
ALLIED WASTE INDUSTRIES OF INDIANA, INC.
ALLIED WASTE INDUSTRIES OF NORTHWEST INDIANA, INC.
ALLIED WASTE INDUSTRIES OF PLYMOUTH, INC.
ALLIED WASTE INDUSTRIES OF TENNESSEE, INC.
ALLIED WASTE INDUSTRIES OF VIRGINIA, INC.
ALLIED WASTE INDUSTRIES OF WYOMING, INC.
ALLIED WASTE OF CALIFORNIA, INC.
ALLIED WASTE SERVICES, INC.
ALLIED WASTE SYSTEMS, INC. (DEL. CORP.)
ALLIED WASTE SYSTEMS, INC. (ILL. CORP.)
APACHE JUNCTION LANDFILL CORPORATION
AUTOSHRED, INC.
AWIN FINANCE COMPANY, INC.
BEST DISPOSAL SERVICES, INC.
BLUFF TRASH SERVICE, INC.
BRICKYARD DISPOSAL & RECYCLING, INC.
BULLDOG JOHNNY, INC.
CARDINAL RIDGE DEVELOPMENT, INC.
CASS COUNTY DISPOSAL, INC.
CATPAC TWO, INC.
CHUCK'S DISPOSAL SERVICE, INC.
CITIWASTE, INC.
CITY GARBAGE, INC.
CLAYCO SANITATION COMPANY
COMMUNITY REFUSE DISPOSAL, INC.
CONSOLIDATED PROCESSING, INC.
CONTAINER CORPORATION OF CAROLINA
CRX, INC.
DEMPSEY WASTE SYSTEMS, INC.
DOPHEIDE SANITARY SERVICE, INC.
DUCKETT DISPOSAL, INC.
DUKE REFUSE DISPOSAL, INC.
ENVIRONMENTAL CONTROL, INC.
ENVIRONMENTAL DEVELOPMENT CORP.
ENVIRONMENTAL RECLAMATION COMPANY
EOS ENVIRONMENTAL, INC.
HAUL-ALL SANITATION, INC.
ILLIANA DISPOSAL SERVICE, INC.
ILLINOIS DEVELOPMENT CORPORATION
ILLINOIS LANDFILL, INC.
JOHN SPOT PORTABLE SERVICES, INC.
JOHNNY ON THE SPOT--PORTABLE TOILETS, INC.
K&H DISPOSAL, INC.
L&M DISPOSAL, INC.
LAIDLAW GAS RECOVERY CORPORATION II, INC.
LAIDLAW GAS RECOVERY CORPORATION, INC.
LAIDLAW GAS RECOVERY SYSTEMS, INC.
LAIDLAW WASTE SYSTEMS (ADRIAN) INC.
LAIDLAW WASTE SYSTEMS (BELLEFONTAINE) INC.
LAIDLAW WASTE SYSTEMS (BELLEVILLE) INC.
LAIDLAW WASTE SYSTEMS (BRIDGETON) INC.
LAIDLAW WASTE SYSTEMS (CELINA) INC.
LAIDLAW WASTE SYSTEMS (CHIQUITA) INC.
LAIDLAW WASTE SYTSTEMS (COLORADO) INC.
LAIDLAW WASTE SYSTEMS (DALLAS) INC.
LAIDLAW WASTE SYSTEMS (FORT WORTH) INC.
LAIDLAW WASTE SYSTEMS (HOUSTON) INC.
LAIDLAW WASTE SYSTEMS (JEFFERSON CITY) INC.
LAIDLAW WASTE SYSTEMS (KANSAS CITY) INC.
LAIDLAW WASTE SYSTEMS (MADISON) INC.
LAIDLAW WASTE SYSTEMS (MICHIGAN) INC.
LAIDLAW WASTE SYSTEMS (OKLAHOMA CITY) INC.
LAIDLAW WASTE SYSTEMS (TEXAS) INC.
LAIDLAW WASTE SYSTEMS (VALLEY VIEW) INC.
LAIDLAW WASTE SYSTEMS HOLDINGS, INC.
LAIDLAW WASTE SYSTEMS, INC.
LEE COUNTY LANDFILL, INC.
LEMONS LANDFILL CORPORATION
LEMONS WASTE SYSTEMS, INC.
MIDWEST LAND DEVELOPMENT CORP.
MIDWEST LANDFILL CORPORATION
MIDWEST WASTE, INC.
MIDWEST WASTE INDUSTRIAL, INC.
MIDWEST WASTE RDF, INC.
MR. POTTY, INC.
NATIONAL WASTE INDUSTRIES, INC.
NATIONAL WASTE SERVICES, INC.
NEWTON COUNTY DEVELOPMENT CORP.
NORTH AMERICAN RECYCLING, INC.
OOMS BROS. DISPOSAL SERVICE, INC.
ORGANIZED SANITARY COLLECTORS AND RECYCLERS, INC.
OSCAR'S COLLECTION SYSTEMS OF FREMONT, INC.
OZARK FOOTHILLS REGIONAL RECYCLING FACILITY, INC.
PEN-ROB, INC.
PETER LANING SONS, INC.
PINAL COUNTY LANDFILL CORP.
POPLAR BLUFF CONSTRUCTION AND DEVELOPMENT COMPANY, INC.
POST DISPOSAL SERVICE, INC.
R. 18, INC.
RCS, INC.
SANCO, INC.
SANICO, INC.
SANITARY WASTE SERVICES, INC.
SELAS ENTERPRISES LTD.
SERVICE WASTE, INC.
SOUTH HOLLAND SCAVENGER SERVICE, INC.
SOUTH SUBURBAN DISPOSAL, INC.
SOUTHERN STATES ENVIRONMENTAL SERVICES, INC.
SOUTHWEST DISPOSAL SERVICE, INC.
STREATOR AREA LANDFILL, INC.
SUN SERVICES & LIQUID WASTE REMOVAL, INC.
SUPERIOR SCAVENGER, INC.
SUPER SERVICES WASTE MANAGEMENT, INC.
T. AND W. DISPOSAL COMPANY, INC.
TRICIL (N.Y.), INC.
UPPER ROCK ISLAND COUNTY LANDFILL, INC.
USI/HUSTLERS, INC.
VAN WEELDEN BROTHERS, INC.
VERMILION WASTE SYSTEMS, INC.
W. J. FLYTE CORPORATION
WASTEHAUL, INC.
WAYNE DISPOSAL - CANTON, INC.
WAYNE DISPOSAL - OAKLAND, INC.
WILLEY ENTERPRISES, INC.
WILLIAMS COUNTY LANDFILL, INC.
<PAGE> 4
SUBJECT TO COMPLETION, DATED AUGUST 8, 1997
PROSPECTUS
LOGO ALLIED WASTE INDUSTRIES, INC.
COMMON STOCK, PREFERRED STOCK, DEBT SECURITIES AND WARRANTS
ALLIED WASTE NORTH AMERICA, INC.
DEBT SECURITIES
PAYMENT OF PRINCIPAL, PREMIUM, IF ANY, AND INTEREST
UNCONDITIONALLY GUARANTEED BY
ALLIED WASTE INDUSTRIES, INC. AND SUBSIDIARY GUARANTORS
------------------------
Allied Waste Industries, Inc. ("Allied") may offer, from time to time,
together or separately, (i) shares of its common stock, $.01 par value (the
"Common Stock"), (ii) shares of its preferred stock, $.10 par value (the
"Preferred Stock"), (iii) debt securities (the "Allied Debt Securities"), which
may be either senior debt securities ("Senior Allied Debt Securities") or senior
subordinated debt securities ("Senior Subordinated Allied Debt Securities"),
consisting of debentures, notes and other secured or unsecured evidences of
indebtedness in one or more series, and (iv) warrants to purchase Common Stock,
Preferred Stock or Debt Securities of Allied as shall be designated by Allied at
the time of the offering (the "Warrants"), in each case, in amounts, at prices
and on the terms to be determined at the time of the offering.
In addition, Allied Waste North America, Inc. ("AWNA"), a wholly owned
subsidiary of Allied, may offer, from time to time, debt securities (the "AWNA
Debt Securities", and together with the Allied Debt Securities, the "Debt
Securities"), which may be either senior debt securities ("Senior AWNA Debt
Securities" and, together with the Senior Allied Debt Securities, the "Senior
Debt Securities") or senior subordinated debt securities ("Senior Subordinated
AWNA Debt Securities" and, together with the Senior Subordinated Allied Debt
Securities, the "Senior Subordinated Debt Securities"), consisting of
debentures, notes and other secured or unsecured evidences of indebtedness in
one or more series and which will be unconditionally guaranteed, jointly and
severally, in the case of Senior AWNA Debt Securities, on a senior basis (the
"Senior Guarantees"), and, in the case of Senior Subordinated AWNA Debt
Securities, on a senior subordinated basis (the "Senior Subordinated
Guarantees") as to payment of principal, premium, if any, and interest by Allied
and all Restricted Subsidiaries (as defined herein) of AWNA, other than Reliant
Insurance Company (the "Subsidiary Guarantors", and together with Allied in its
capacity as guarantor, the "Guarantors") in the amounts, at prices and on the
terms to be determined at the time of the offering. The Subsidiary Guarantors'
obligations under the Senior Guarantees and Senior Subordinated Guarantees will
be unconditionally guaranteed on a senior and senior subordinated basis,
respectively, by Allied (the "Allied Senior Guarantee" and the "Allied Senior
Subordinated Guarantee", respectively, and, together with the Senior Guarantees
and the Senior Subordinated Guarantees, the "Guarantees"). The Common Stock,
Preferred Stock, Debt Securities and Warrants are collectively called the
"Securities."
The Securities offered pursuant to this Prospectus may be issued in one or
more series or issuances and will have an aggregate public offering price of up
to $800,000,000 (or the equivalent thereof, based on the applicable exchange
rate at the time of sale, in one or more foreign currencies, currency units or
composite currencies as shall be designated by Allied or AWNA, as the case may
be). Certain specific terms of the particular Securities in respect of which
this Prospectus is being delivered are set forth in the accompanying Prospectus
Supplement (the "Prospectus Supplement"), including, where applicable, (i) in
the case of Common Stock, the aggregate number of shares offered, the public
offering price and other terms of the offering and sale thereof, (ii) in the
case of Preferred Stock, the specific title, the aggregate number of shares
offered, any dividend (including the method of calculating payment of
dividends), liquidation, redemption, voting and other rights, any terms for any
conversion or exchange into securities and the public offering price and other
terms of the offering and sale thereof, (iii) in the case of Debt Securities,
the specific title, the aggregate principal amount, aggregate offering price,
the denomination, the maturity, the premium, if any, the interest rate (which
may be fixed, floating or adjustable), if any, the time and method of
calculating payment of interest, if any, the place or places where principal of,
premium, if any, and interest, if any, on such Debt Securities will be payable,
the currency in which principal of, premium, if any, and interest, if any, on
such Debt Securities will be payable, whether such Debt Securities are Senior
Debt Securities or Senior Subordinated Debt Securities, whether such Debt
Securities are secured or unsecured, and, if secured, the security and related
terms in connection therewith, any terms of redemption at the option of Allied
or AWNA, as the case may be, or repayment at the option of the holder, any
sinking fund provisions, the terms for any conversion or exchange into Common
Stock or Preferred Stock or any other special terms, and the public offering
price and the other terms of the offering and sale thereof, and (iv) in the case
of Warrants, the number and terms thereof, the duration, the purchase price, the
exercise price and a description of the securities for which each Warrant is
exercisable.
Unless otherwise specified in a Prospectus Supplement, (i) the Senior Debt
Securities, when issued, will rank pari passu in right of payment with all other
unsubordinated obligations of Allied or AWNA, as the case may be, and will rank
senior in right of payment to all subordinated obligations of Allied or AWNA, as
the case may be, (ii) the Senior Guarantees and the Allied Senior Guarantee,
when issued, will rank pari passu in right of payment with all other
unsubordinated obligations of the Guarantors and Allied, respectively, and will
rank senior in right of payment to all subordinated obligations of the
Guarantors and Allied, respectively, (iii) the Senior Subordinated Debt
Securities, when issued, will be subordinate in right of payment to the prior
payment in full of all Senior Debt (as defined herein) of Allied or AWNA, as the
case may be, including all Senior Debt Securities of Allied or AWNA, as the case
may be, and will rank pari passu in right of payment with all other senior
subordinated obligations of Allied or AWNA, as the case may be, and (iv) the
Senior Subordinated Guarantees and the Allied Senior Subordinated Guarantee,
when issued, will be subordinate in right of payment to the prior payment in
full of all Senior Debt of the Guarantors and Allied, respectively, including,
in the case of Allied, all Senior Allied Debt Securities, and will rank pari
passu in right of payment with all other senior subordinated obligations of the
Guarantors and Allied, respectively. Holders of secured obligations of Allied,
AWNA and the Guarantors, including secured Allied Debt Securities, secured AWNA
Debt Securities and secured Guarantees, respectively, will, however, have claims
that are prior to the claims of holders of unsecured Allied Debt Securities,
AWNA Debt Securities and Guarantees, respectively, with respect to the assets
securing such secured obligations. Allied conducts its operations through AWNA,
which is subject, under certain of its debt instruments, to certain restrictions
on its ability to pay funds to Allied. All Allied Debt Securities and Guarantees
of Allied will effectively be subordinate in right of payment to the prior
payment in full of all indebtedness of Allied's subsidiaries, and all other
obligations and other liabilities, including trade payables, of Allied's
subsidiaries, including all AWNA Debt Securities.
The Common Stock is listed on the Nasdaq National Market tier of the Nasdaq
Stock Market under the trading symbol "AWIN." Any Common Stock sold pursuant to
a Prospectus Supplement will be listed on the Nasdaq National Market tier of the
Nasdaq Stock Market, subject to official notice of issuance.
Debt Securities of a series may be issued in registered form, in a form
registered as to principal only, or in bearer form (with or without coupons
attached), or any combination of such forms. In addition, all or a portion of
the Debt Securities may be issued in temporary or definitive global form. Debt
Securities in bearer form are offered only outside the United States to
non-United States persons and to offices located outside the United States of
certain United States financial institutions and other exempt persons.
THIS PROSPECTUS MAY NOT BE USED TO CONSUMMATE SALES OF SECURITIES UNLESS
ACCOMPANIED BY A PROSPECTUS SUPPLEMENT.
------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION, NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
------------------------
The Securities may be sold directly, through agents, underwriters or dealers
as designated from time to time, or through a combination of such methods. If
agents of Allied or AWNA, as the case may be, or any dealers or underwriters are
involved in the sale of the Securities in respect of which this Prospectus is
being delivered, the names of such agents, dealers or underwriters will be set
forth in, and any applicable commissions or discounts will be set forth in or
may be calculated from, the Prospectus Supplement with respect to such
Securities.
------------------------
The date of this Prospectus is , 1997.
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR
MAY OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT
BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR
THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE
SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE
UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS
OF ANY SUCH STATE.
<PAGE> 5
AVAILABLE INFORMATION
Allied is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports and other information with the Securities and Exchange
Commission (the "Commission"). AWNA is also subject to the informational
requirements of the Exchange Act, but is not required to file separate reports,
proxy statements or other information with the Commission as long as certain
information regarding AWNA is contained in Allied's reports on Form 10-K and
10-Q. Such information is contained in Allied's Annual Report on Form 10-K and
Quarterly Report on Form 10-Q. Information as of particular dates concerning its
directors and officers and any material interest of such persons in transactions
with Allied is disclosed in proxy statements distributed to stockholders and
filed with the Commission. Such reports, proxy statements and other information
can be inspected and copied at the offices of the Commission at Room 1024,
Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549 and at its
regional offices located at Suite 1400, Citicorp Center, 500 West Madison
Street, Chicago, Illinois 60661 and Suite 1300, 7 World Trade Center, New York,
New York 10048. Copies of such materials can also be obtained from the Public
Reference Section of the Commission at its principal office in Washington, D.C.
at prescribed rates. The Commission maintains a Web site (http://www.sec.gov)
that contains reports, proxy and other information statements and other
information regarding registrants that file electronically with the Commission.
The Common Stock is listed on the National Market tier of the Nasdaq Stock
Market ("Nasdaq"). Reports, proxy material and other information concerning
securities of Allied can also be inspected at the offices of Nasdaq at 1735 K
Street, N.W., Washington, D.C. 20006.
This Prospectus constitutes a part of the Registration Statement on Form
S-3 (together with all amendments, schedules and exhibits thereto, the
"Registration Statement") filed by Allied, AWNA and the Subsidiary Guarantors
with the Commission under the Securities Act of 1933, as amended (the
"Securities Act"). This Prospectus and the accompanying Prospectus Supplement
omit certain of the information contained in the Registration Statement in
accordance with the rules and regulations of the Commission. For further
information with respect to Allied, AWNA, the Subsidiary Guarantors and the
Securities, reference is made to the Registration Statement, including the
schedules and exhibits filed therewith. Statements contained in this Prospectus
as to the contents of certain documents are not necessarily complete, and, with
respect to each such document filed as an exhibit to the Registration Statement
or otherwise filed with the Commission, reference is made to the copy of the
document so filed. Each such statement is qualified in its entirety by such
reference.
2
<PAGE> 6
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
There are incorporated herein by reference the following documents of
Allied heretofore filed by it with the Commission:
1. Annual Report on Form 10-K for the year ended December 31, 1996, as
amended by Form 10-K/A-1 filed with the Commission on April 30, 1997 and
Form 10K/A-2 filed with the Commission on August , 1997;
2. Quarterly Report on Form 10-Q for the quarter ended March 31, 1997;
3. Current Reports on Form 8-K filed with the Commission on January 9,
1997, January 30, 1997 (as amended by Form 8-K/A-1 filed with the
Commission on February 14, 1997), February 19, 1997 and May 2, 1997 and
Amendment to Current Report on Form 8-K/A-4 filed with the Commission on
February 19, 1997.
4. The description of Allied's Common Stock contained in Allied's
Registration Statement on Form S-1 (No. 33-99886), including any amendments
or reports filed for the purpose of updating such description.
5. Proxy Statement dated June 10, 1997.
All documents filed by Allied pursuant to Section 13(a), 13(c), 14 or 15(d)
of the Exchange Act subsequent to the date of this Prospectus or any Prospectus
Supplement and prior to the termination of the offering of the Securities are
incorporated herein by reference and such documents shall be deemed to be a part
hereof from the date of filing of such documents. Any statement contained herein
or in a document incorporated or deemed to be incorporated by reference herein
shall be deemed to be modified or superseded for purposes of this Prospectus or
any Prospectus Supplement to the extent that a statement contained herein or in
any other subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such statement. Any such
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Prospectus or any Prospectus
Supplement.
Allied will provide without charge to each person to whom this Prospectus
or any Prospectus Supplement is delivered, on the request of any such person, a
copy of any or all of the foregoing documents incorporated herein by reference
(not including exhibits to the information that is incorporated by reference
unless such exhibits are specifically incorporated by reference into the
information that this Prospectus or any Prospectus Supplement incorporates).
Requests for copies of such documents should be directed to Allied Waste
Industries, Inc., 15880 North Greenway-Hayden Loop, Suite 100, Scottsdale,
Arizona 85260, telephone (602) 423-2946, Attention: Investor Relations.
USE OF PROCEEDS
Except as may be otherwise stated in any Prospectus Supplement, Allied
and/or AWNA intend to use the net proceeds from the sale of the Securities for
general corporate purposes, which may include, among other things, strategic
acquisitions, refinancing of indebtedness, working capital, capital expenditures
and repurchases and redemptions of securities. Allied and AWNA have not
allocated a specific portion of the net proceeds for any particular use at this
time. Specific information concerning the use of proceeds from any sale of
Securities will be included in the Prospectus Supplement relating to such
Securities.
3
<PAGE> 7
RISK FACTORS
In addition to the other information in this Prospectus, the following
factors should be considered carefully in evaluating an investment in the
Securities.
RISKS ASSOCIATED WITH ALLIED'S STRATEGY; POTENTIAL DIFFICULTY IN OBTAINING
SUITABLE LANDFILLS, COLLECTION OPERATIONS, TRANSFER STATIONS AND PERMITS
Allied's strategy depends on its ability to identify and acquire
appropriate landfills, collection operations and transfer stations. There can be
no assurance that Allied will be able to locate appropriate acquisition
candidates, that any identified candidates will be acquired or that acquired
operations will be integrated effectively or prove profitable. Completion of an
acquisition requires the expenditure of sizable amounts of capital and the
competition among companies pursuing an acquisition strategy may increase
capital requirements. Allied could be forced to alter its strategy in the future
if such candidates become unavailable or too costly. In addition, obtaining
permits to operate non-hazardous solid waste landfills has become increasingly
difficult and expensive, often taking a number of years to obtain, requiring
numerous hearings and compliance with zoning, environmental and other regulatory
measures, and often being subject to resistance from citizen or other groups.
There can be no assurance that Allied will be successful in obtaining the
permits it requires, and an inability to receive such permits could have an
adverse effect on Allied's future results of operations. In some areas, suitable
land may be unavailable for new landfill sites. There can be no assurance that
Allied will be successful in obtaining new landfill sites or expanding the
permitted capacity of its current landfills once its landfill capacity has been
consumed. In such event, Allied could be forced to dispose of collected waste at
landfills operated by its competitors, which could have an adverse effect on
Allied's landfill revenues and collection expenses.
LIMITED OPERATING HISTORY IN REGARD TO SIGNIFICANT ASSETS
Allied has a limited operating history with regard to a significant portion
of its operations. During 1996, Allied acquired 21 companies, excluding the
Laidlaw Acquired Businesses (as defined below), which collectively comprised
approximately $78.8 million or 31.9% of Allied's revenue in 1996. In December
1996, Allied acquired (the "Laidlaw Acquisition") substantially all of the
non-hazardous solid waste management business conducted by Laidlaw Inc.
("Laidlaw") in the United States and Canada. The Laidlaw Acquisition represented
a substantial increase in the scope of Allied's business. The business acquired
from Laidlaw (on a pro forma basis after giving effect to the sale by Allied of
all of the Canadian solid waste business acquired in the Laidlaw Acquisition,
the "Laidlaw Acquired Businesses") generated revenues for the twelve months
ended November 30, 1996 of approximately $494.5 million. The revenues for the
year ended December 31, 1996 generated by the operations of Allied excluding
such Laidlaw Acquired Businesses were approximately $246.7 million. The
financial position and results of operations of Allied will depend to a large
extent on Allied's ability to integrate these acquired operations effectively
and to realize expected financial benefits and operational efficiencies. There
can be no assurance that Allied's efforts to integrate these acquired operations
will be effective, or that expected financial benefits and operational
efficiencies will be realized. Failure to effectively integrate acquired
operations could have an adverse effect on Allied's future results of
operations. As Allied continues to pursue its acquisitions strategy in the
future, its financial position and results of operations may fluctuate
significantly from period to period.
CAPITAL REQUIREMENTS AND LIMITED WORKING CAPITAL
Allied intends to fund its cash needs through cash flow from operations and
borrowings under the Amended Bank Agreement (as defined herein) and its
equipment lease facilities and offerings of the Securities from time to time.
Because of the capital intensive nature of the solid waste industry, Allied may
use amounts in excess of the cash generated from operations to retire and
service debt and fund acquisitions, landfill development and capital
expenditures. A substantial portion of Allied's available cash will be required
to be applied to service indebtedness. During 1997, Allied also expects to spend
approximately $130 million for capital, closure and post-closure, and
remediation expenditures and expects to provide approximately $227.6 million in
financial assurance obligations related to its landfill operations. Amounts
expended on capital
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expenditures and financial assurance obligation will increase as a result of any
acquisitions or expansions of Allied's operations. As a result of these capital
requirements, Allied may periodically have low levels of working capital or be
required to finance working capital deficits.
Further regulatory action by federal, state and local governments could
accelerate expenditures for closure and post-closure monitoring and obligate
Allied to spend sums in addition to those presently reserved for such purposes.
These factors, together with the other factors discussed above, could
substantially increase Allied's operating costs and impair Allied's ability to
invest in its facilities.
Allied's ability to make scheduled payments of principal of, or to pay
interest on, or to refinance its indebtedness depends on its future performance,
which, to a certain extent, is subject to general economic, financial,
competitive, legislative, regulatory and other factors beyond its control. One
of the primary factors impacting Allied's future performance will be in its
ability to integrate the Laidlaw Acquired Businesses, and to reduce redundancies
and excess costs. These operations are significantly larger than Allied's
previous operations and represent a substantial increase in the scope of
Allied's business. Based upon the current level of operations and anticipated
growth, management of Allied believes that available cash flow, together with
available borrowing under the Amended Bank Agreement, and other sources of
liquidity, will be adequate to meet Allied's anticipated future requirements for
working capital, letters-of-credit, capital expenditures and scheduled payments
of principal of, and interest on debt incurred under the Amended Bank Agreement,
and interest on the AWNA Notes and, commencing December 1, 2002, on Allied's
11.30% Senior Discount Notes due 2007 (the "Allied Notes"). However, the
principal payments at maturity on AWNA's 10 1/4% Senior Subordinated Notes due
2006 (the "AWNA Notes") and the Allied Notes may require refinancing. There can
be no assurance that Allied's business will generate sufficient cash flow from
operations or that future financings will be available in an amount sufficient
to enable Allied or AWNA to service its indebtedness or to make necessary
capital expenditures, or that any refinancing would be available on commercially
reasonable terms or at all. Additionally, depending on the timing, amount and
structure of any future acquisitions and the availability of funds under the
Amended Bank Agreement, Allied may need to raise additional capital to fund the
acquisition and integration of additional solid waste businesses. There can be
no assurance that Allied will be able to secure such additional funding on
favorable terms, if at all.
RISK OF COMPETITION FROM OTHER COMPANIES AND MUNICIPALITIES; LANDFILL
ALTERNATIVES
The non-hazardous solid waste industry is led by five large national waste
management companies, one of which is Allied, and includes numerous regional and
local companies, all of which contribute to the high level of competition that
characterizes the industry. Some of these companies have considerably greater
financial and operational resources than Allied. In addition, cities and
counties that operate their own waste collection and disposal facilities often
enjoy the benefits of tax-exempt financing and may control the disposal of waste
collected within their jurisdictions.
Alternatives to landfill disposal, such as recycling and composting, are
increasingly being used, and incineration continues to be utilized in some
markets in which Allied operates. There has also been an increasing trend at the
state and local levels to mandate waste reduction at the source and to prohibit
the disposal of certain types of wastes, such as yard wastes, at landfills. This
trend may result in a reduction in the volume of waste going to landfills in
certain areas, which may affect Allied's ability to operate its landfills at
their full capacity and/or affect the prices that can be charged for landfill
disposal services. In addition, most of the states in which Allied operates
landfills have adopted plans or requirements that set goals for specified
percentages of certain solid waste items to be recycled. These recycling goals
will be phased in over the next few years.
SUBSTANTIAL LEVERAGE; ABILITY TO SERVICE DEBT
Allied has substantial indebtedness with significant debt service
requirements and is highly leveraged. At March 31, 1997, Allied's consolidated
debt was approximately $1,224.4 million and stockholders' equity was
approximately $287.8 million. The degree to which Allied is leveraged has
important consequences, including the following: (i) the ability of Allied to
obtain additional financing in the future, whether for working capital,
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capital expenditures, acquisitions or other purposes, may be impaired, (ii) a
substantial portion of Allied's cash flow from operations is required to be
dedicated to the payment of principal and interest on its debt, thereby reducing
funds available to Allied for other purposes, (iii) Allied's flexibility in
planning for or reacting to changes in market conditions may be limited, (iv)
Allied may be more vulnerable in the event of a downturn in its business and (v)
to the extent of Allied's outstanding debt under its Amended Bank Agreement at
variable rates that have not been hedged, Allied will be vulnerable to increases
in interest rates.
The ability of Allied to meet its debt service obligations will depend on
the future operating performance and financial results of Allied, which will be
subject in part to factors beyond the control of Allied. Although Allied
believes that its cash flow will be adequate to meet its interest payments,
there can be no assurance that Allied will continue to generate earnings in the
future sufficient to cover its fixed charges. If Allied is unable to generate
earnings in the future sufficient to cover its fixed charges and is unable to
borrow sufficient funds under either the Amended Bank Agreement or from other
sources, it may be required to refinance all or a portion of its existing debt
or to sell all or a portion of its assets. There can be no assurance that a
refinancing would be possible, nor can there be any assurance as to the timing
of any asset sales or the proceeds which Allied could realize therefrom. In
addition, the terms of certain of its debt restrict Allied's ability to sell
assets and Allied's use of the proceeds therefrom.
Allied holds all of its assets and conducts all of its operations through
its subsidiary AWNA and AWNA's subsidiaries. Allied thus derives all of its
operating income and cash flow from AWNA and must rely upon distributions from
AWNA to generate the funds necessary to meet its obligations. If for any reason,
including a shortfall in anticipated operating results or proceeds from asset
sales, AWNA were unable to meet its debt service obligations, it would be in
default under the terms of certain of its debt. In the event of such a default,
the holders of such debt could elect to declare all of such debt immediately due
and payable, including accrued and unpaid interest, and to terminate their
commitments (if any) with respect to funding obligations under such debt. In
addition, such holders could proceed against any collateral which, in the case
of certain debt, consists of the capital stock of AWNA and its subsidiaries and
substantially all of the assets of AWNA and its subsidiaries. Any default with
respect to any of AWNA's debt could result in a default under other debt or
result in the bankruptcy of AWNA.
RESTRICTIONS IMPOSED BY THE AMENDED BANK AGREEMENT, THE ALLIED NOTES AND THE
AWNA CAPITAL NOTES AND EXISTING INDEBTEDNESS
The Amended Bank Agreement and the indentures relating to the Allied Notes
and the AWNA Notes contain a number of significant covenants that, among other
things will restrict the ability of Allied and its subsidiaries to dispose of
assets, incur additional indebtedness, incur liens on property or assets, repay
other indebtedness, pay dividends, enter into certain investments or
transactions, repurchase or redeem capital stock, engage in mergers or
consolidations, or engage in certain transactions with subsidiaries and
affiliates and otherwise restrict corporate activities. There can be no
assurance that such restrictions will not adversely affect Allied's ability to
finance its future operations or capital needs or engage in other business
activities that may be in the interest of Allied. In addition, the Amended Bank
Agreement also requires Allied to maintain compliance with certain financial
ratios. The ability of Allied to comply with such ratios may be affected by
events beyond Allied's control. A breach of any of these covenants or the
inability of Allied to comply with the required financial ratios could result in
a default under the Amended Bank Agreement or either or both of the indentures
relating to the Allied Notes and the AWNA Notes. In the event of any such
default under the Amended Bank Agreement, the lenders under the Amended Bank
Agreement could elect to declare all borrowings outstanding under the Amended
Bank Agreement, together with accrued interest and other fees, to be due and
payable, to require Allied to apply all of its available cash to repay such
borrowings or to prevent Allied from making debt service payments on any
indebtedness of Allied. If Allied were unable to repay any such borrowings when
due, the lenders could proceed against their collateral. In the event of a
default under the indenture relating to the Allied Notes or the AWNA Notes, the
holders of such notes could elect to declare such notes to be due and payable.
If the indebtedness under the Amended Bank Agreement, the Allied Notes or the
AWNA Notes were to be accelerated, the assets of Allied and/or AWNA might be
insufficient to pay amounts due on other debt securities then outstanding.
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RELIANCE ON MANAGEMENT
Allied will rely significantly on the services of its senior management
team. Allied could be adversely affected if any member of the senior management
team were unwilling or unable to continue in Allied's employ. Allied will need
to expand the staff in its executive offices to support the new operations
associated with the Laidlaw Acquisition. There can be no assurance that Allied
will be successful in hiring or retaining qualified personnel to meet this
demand.
COST OF COMPLIANCE WITH ENVIRONMENTAL REGULATIONS; RISK OF FUTURE LITIGATION
The scope and stringency of laws and regulations designed to protect the
environment have increased dramatically. Compliance with the evolving and
expanding regulatory requirements, including the adoption in October 1991 of
Subtitle D regulations ("Subtitle D") pursuant to the U.S. Resource Conservation
and Recovery Act of 1976, as amended ("RCRA"), has been and will continue to be
costly. Rigorous regulatory standards require waste management companies to
enhance or replace equipment and to modify landfill operations or, in some
cases, to close landfills. There can be no assurance that Allied will be able to
implement price increases sufficient to offset the cost of complying with these
standards. In addition, environmental regulatory changes could accelerate
expenditures for closure and post-closure monitoring at solid waste facilities
and obligate Allied to spend sums in addition to those presently accrued for
such purposes. These factors could increase substantially Allied's operating
costs as well as the possibility of the impairment of Allied's investment in its
facilities.
In addition to the costs of complying with environmental regulations,
Allied will continue to be involved in legal proceedings in the ordinary course
of business. Government agencies may seek to impose fines on Allied for alleged
failure to comply with laws and regulations or to revoke or to deny the renewal
of, Allied's permits and licenses. In addition, governmental agencies, as well
as surrounding landowners, may assert claims against Allied alleging
environmental damage or violations of permits and licenses pursuant to which
Allied operates. Citizens' groups have become increasingly active in challenging
the grant or renewal of permits and licenses, and responding to such challenges
has further increased the costs associated with permitting new facilities or
expanding current facilities. A significant judgment against Allied, the loss of
a significant permit or license or the imposition of a significant fine could
have a material adverse affect on Allied's financial condition.
Certain of Allied's waste disposal operations traverse state boundaries.
Such operations could be adversely affected if the federal government or a state
in which a landfill is located limits or prohibits, imposes discriminatory fees
on, or otherwise seeks to discourage disposal, within state boundaries, of waste
collected outside of the state.
As a condition to the Laidlaw Acquisition, Allied engaged Emcon
Environmental Services, Inc. ("Emcon"), an independent environmental consultant,
to conduct environmental assessments of the Acquired Subsidiaries and to prepare
a report reflecting its findings (the "Emcon Environmental Report").
In the Emcon Environmental Report, Emcon identified several contaminated
landfills and other locations owned by the Laidlaw Acquired Businesses, that
could pose significant sources of liability to the Laidlaw Acquired Businesses.
The costs of performing the investigation, design, remediation and allocation of
responsibility to the subsidiaries of Allied vary significantly between sites.
Based on information available to Allied, Allied recorded a provision of $51.5
million for environmental matters, including closure and post-closure costs, in
the 1996 consolidated statement of operations and expects these amounts to be
disbursed over the next 30 years. The actual liability at these sites cannot
currently be determined due to a number of uncertainties including the extent of
the contamination, the appropriate remedy, the financial viability of other
potentially responsible parties and the ultimate apportionment of responsibility
among such potentially responsible parties.
The representations made by the Laidlaw sellers in the Stock Purchase
Agreement, dated September 17, 1996, among Allied, Laidlaw and the other sellers
named therein (the "Laidlaw Sellers") relating to the Laidlaw Acquisition (the
"Laidlaw Acquisition Agreement") with respect to the environmental matters
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<PAGE> 11
(i) terminated on the closing of the Laidlaw Acquisition as to all matters
disclosed in writing to Allied at least five business days prior to the closing
or disclosed with specificity in the Emcon Environmental Report and (ii)
terminate on the third anniversary of the closing of the Laidlaw Acquisition as
to all matters other than those described in clause (i) and which are known to
Laidlaw or the Laidlaw Sellers on the closing date. The Laidlaw Acquisition
Agreement further provided that Laidlaw and the Laidlaw Sellers' indemnification
obligations with respect to environmental matters would be limited to the amount
by which the aggregate of all such damages exceeded a $1.0 million basket,
without giving effect to any materiality qualifications. At the closing of the
Laidlaw Acquisition, Allied and the Laidlaw sellers entered into a Special
Environmental Indemnity, which provided that the indemnity in respect of
properties located at Etobicoke, Ontario, Delafield, Wisconsin and Gary Lagoons,
Indiana would not be subject to the three-year limitation or any basket. Allied
and Laidlaw have further agreed that the indemnity for damages arising out of
the Etobicoke, Ontario and Delafield, Wisconsin sites will be limited to a
three-year period from the closing of the Laidlaw Acquisition and to an amount
in excess of $25.0 million with the $25.0 million basket to be reduced by any
damages to which the basket in the Laidlaw Acquisition Agreement applies.
HAZARDOUS SUBSTANCES LIABILITY
The Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended ("CERCLA"), has been interpreted to impose joint and several
liability on current and former owners or operators of facilities at which there
has been a release or a threatened release of a "hazardous substance" and on
persons who generate, transport or arrange for the disposal of such substances
at the facility. Hundreds of substances are defined as "hazardous" under CERCLA
and their presence, even in minute amounts, can result in substantial liability.
The statute provides for the remediation of contaminated facilities and imposes
costs on the responsible parties. The expense of conducting such a cleanup can
be significant. Notwithstanding its efforts to comply with applicable
regulations and to avoid transporting and receiving hazardous substances, such
substances may be present in waste collected by Allied or disposed of in its
landfills, or in waste collected, transported or disposed of in the past by
acquired companies. Cleanup liability may also arise under various state laws
similar to CERCLA and other corrective action procedures. As used in this
Prospectus, "non-hazardous waste" means substances, including asbestos, that are
not defined as hazardous waste under federal regulations.
POTENTIAL UNDISCLOSED LIABILITIES ASSOCIATED WITH ACQUISITIONS
In connection with any transaction made by Allied there may be liabilities
that Allied fails or is unable to discover, including liabilities arising from
non-compliance with environmental laws by prior owners, and for which Allied, as
a successor owner may be responsible.
POTENTIAL UNINSURED OR UNDERINSURED ENVIRONMENTAL LIABILITIES
As is typically the case in the solid waste industry, Allied is able to
obtain only very limited environmental impairment insurance regarding its
landfills. An uninsured or underinsured claim of sufficient magnitude would
require Allied to fund such claim from cash flow generated by operations or
borrowings under the Amended Bank Agreement or other sources of liquidity. There
can be no assurance that Allied would be able to fund any such claim from
operations, the Amended Bank Agreement or otherwise.
LAIDLAW TAX INDEMNIFICATION
Laidlaw has disclosed to Allied the existence of a tax controversy (the
"Tax Controversy") in the amount of more than $385 million with the United
States Internal Revenue Service (the "IRS") involving the consolidated U.S.
federal income tax liability for the fiscal years 1986 through 1991 of the
members of an affiliated group of corporations (the "Laidlaw Transportation U.S.
Consolidated Tax Group") within the meaning of Section 1504(c) of the Internal
Revenue Code ("IRC"), of which Laidlaw Transportation is the common parent
corporation (which includes Laidlaw Transportation, Inc. ("Laidlaw
Transportation"), those Laidlaw Acquired Businesses which are incorporated in
the U.S. (the "LSW U.S. Subsidiaries"), and other
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U.S. subsidiaries of Laidlaw Transportation which were not acquired in the
Laidlaw Acquisition). The Laidlaw Transportation U.S. Consolidated Tax Group has
also received notice that fiscal years 1992, 1993 and 1994 will be examined
regarding this issue. Under Treasury Regulations promulgated under Section 1502
of the IRC, each member of the Laidlaw Transportation U.S. Consolidated Tax
Group including each LSW U.S. Subsidiary, is or could be severally liable for
United States federal income tax liabilities of the entire Laidlaw
Transportation U.S. Consolidated Tax Group, including all amounts at issue in
the Tax Controversy which are ultimately determined to be owed.
Allied has obtained an indemnity from Laidlaw and Laidlaw Transportation
which covers the amounts at issue in the Tax Controversy for which any LSW U.S.
Subsidiary may ultimately be found liable. The obligation of Laidlaw and Laidlaw
Transportation to indemnify Allied in respect of amounts at issue in the Tax
Controversy is a general, unsecured obligation of Laidlaw and Laidlaw
Transportation. The ability of Laidlaw and Laidlaw Transportation to pay and
fulfill such indemnification obligation will depend on the financial condition
of Laidlaw and Laidlaw Transportation at the time of any required performance of
such obligation, as to which Allied has no assurance.
IMPACT OF ADVERSE WEATHER CONDITIONS
The collection and landfill operations of Allied could be adversely
affected by protracted periods of inclement weather which delay the development
of landfill capacity, the transfer of waste or reduce the volume of waste
generated. There can be no assurance that protracted periods of inclement
weather will not have a material adverse effect on Allied's future results of
operations.
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RATIO OF EARNINGS TO FIXED CHARGES AND
EARNINGS TO FIXED CHARGES AND PREFERRED STOCK DIVIDENDS
The following table sets forth Allied's ratios of earnings to fixed charges
and earnings to fixed charges and preferred stock dividends for the periods
indicated:
<TABLE>
<CAPTION>
THREE
MONTHS
YEAR ENDED DECEMBER 31, ENDED
---------------------------------- MARCH 31,
1992 1993 1994 1995 1996 1997
----- ----- ---- ----- ------ ---------
<S> <C> <C> <C> <C> <C> <C>
Ratio of earnings to fixed charges..................... 1.5x 1.4x (1) 1.5x (2) 1.2x
Ratio of earnings to fixed charges and preferred stock
dividends............................................ 1.3x 1.2x (1) 1.1x (2) 1.1x
</TABLE>
- ---------------
(1) Earnings were insufficient to cover fixed charges and fixed charges and
preferred stock dividends by $8,049,000 and $12,687,000, respectively.
(2) Earnings were insufficient to cover fixed charges and fixed charges and
preferred stock dividends by $79,384,000 and $80,463,000, respectively.
For purposes of calculating the ratio of earnings to fixed charges and the
ratio of earnings to fixed charges and preferred stock dividends, earnings
consist of income before taxes and fixed charges (exclusive of preferred stock
dividends). For purposes of calculating both ratios, fixed charges include
interest expense and capitalized interest.
DESCRIPTION OF CAPITAL STOCK
Pursuant to Allied's Restated Certificate of Incorporation amended (the
"Certificate"), the authorized capital stock of Allied consists of 200,000,000
shares of Common Stock and 10,000,000 shares of Preferred Stock. The following
description of certain of Allied's capital stock is a summary, does not purport
to be complete or to give effect to applicable statutory or common law and is
subject in all respects to the applicable provisions of the Certificate and the
information herein is qualified in its entirety by this reference.
COMMON STOCK
At March 31, 1997, Allied had outstanding 75,813,070 shares of Common
Stock. Holders of Common Stock are entitled to one vote per share in the
election of directors and on all other matters on which the stockholders are
entitled or permitted to vote. Holders of Common Stock are not entitled to
cumulative voting rights. Therefore, holders of a majority of the shares voting
for the election of directors can elect all the directors. Subject to the terms
of any outstanding series of preferred stock, the holders of Common Stock are
entitled to dividends in such amounts and at such times as may be declared by
Allied's Board of Directors out of funds legally available therefor. On
liquidation or dissolution, holders of Common Stock are entitled to share
ratably in all net assets available for distribution to stockholders after
payment of any liquidation preferences to holders of Preferred Stock. Holders of
Common Stock have no redemption, conversion or preemptive rights. The Common
Stock is listed on the Nasdaq National Market tier of Nasdaq under the symbol
"AWIN."
PREFERRED STOCK
The particular terms of any series of Preferred Stock offered hereby will
be set forth in the Prospectus Supplement relating thereto. The rights,
preferences, privileges and restrictions, including dividend rights, voting
rights, terms of redemption, retirement and sinking fund provisions and
liquidation preferences, if any, of the Preferred Stock of each series will be
fixed or designated pursuant to a certificate of designation adopted by the
Board of Directors or a duly authorized committee thereof. The terms, if any, on
which shares of any series of Preferred Stock are convertible or exchangeable
into Common Stock will also be set forth in the Prospectus Supplement relating
thereto. Such terms may include provisions for conversion or exchange, either
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mandatory, at the option of the holder, or at the option of Allied, in which
case the number of shares of Common Stock to be received by the holders of
Preferred Stock would be calculated as of a time and in the manner stated in the
applicable Prospectus Supplement. The description of the terms of a particular
series of Preferred Stock that will be set forth in the applicable Prospectus
Supplement does not purport to be complete and is qualified in its entirety by
reference to the certificate of designation relating to such series.
SPECIAL PROVISIONS OF THE CERTIFICATE OF INCORPORATION AND DELAWARE LAW
The provisions of the Certificate and Allied's Bylaws, as amended (the
"Bylaws"), summarized in the succeeding paragraphs may be deemed to have an
anti-takeover effect or may delay, defer or prevent a tender offer or takeover
attempt that a stockholder might consider in such stockholder's best interest,
including those attempts that might result in a premium over the market price
for the shares held by a stockholder.
Pursuant to the Certificate, the Board of Directors may by resolution
establish one or more series of preferred stock, having such number of shares,
designation, relative voting rights, dividend rates, liquidation or other
rights, preferences and limitations as may be fixed by the Board of Directors
without any further stockholder approval. Such rights, preferences, privileges
and limitations as may be established could have the effect of impeding or
discouraging the acquisition of control of Allied.
The Bylaws provide that stockholders' nominations for the Board of
Directors and proposals for other business to be transacted at stockholders'
meetings must be timely received by Allied and must comply with specified form
and content requirements. The Bylaws also provide that special meetings of
stockholders may be called only by the Board or by a specifically authorized
committee of the Board. The Certificate and the Bylaws provide that the Bylaws
may be altered, amended or repealed by the Board of Directors.
Limitation of Director Liability. Section 102(b)(7) of the Delaware
General Corporation Law ("Section 102(b)") authorizes corporations to limit or
to eliminate the personal liability of directors to corporations and their
stockholders for monetary damages for breach of directors' fiduciary duty of
care. Although Section 102(b) does not change directors' duty of care, it
enables corporations to limit available relief to equitable remedies such as
injunction or rescission. The Certificate limits the liability of directors to
Allied or its stockholders to the fullest extent permitted by Section 102(b).
Specifically, directors of Allied will not be personally liable for monetary
damages for breach of a director's fiduciary duty as a director, except for
liability (i) for any breach of the director's duty of loyalty to Allied or its
stockholders, (ii) for acts or omissions not in good faith, or which involve
intentional misconduct or a knowing violation of law, (iii) for unlawful
payments of dividends or unlawful stock repurchases or redemptions as provided
in Section 174 of the Delaware General Corporation Law, or (iv) for any
transaction from which the director derived an improper personal benefit.
Indemnification. To the maximum extent permitted by law, the Certificate
and the Bylaws provide for mandatory indemnification of directors, officers,
employees and agents of Allied against all expenses, liabilities and losses to
which they may become subject or which they may incur as a result of being or
having been a director, officer, employee or agent of Allied. In addition,
Allied must advance or reimburse directors and officers and may advance or
reimburse employees and agents for expenses incurred by them in connection with
indemnifiable claims.
Insofar as indemnification for liabilities arising out of the Securities
Act may be permitted to directors, officers and controlling persons of Allied
pursuant to the foregoing provisions, Allied has been informed that in the
opinion of the Commission such indemnification is against public policy as
expressed in the Securities Act and is therefore unenforceable.
Delaware Anti-Takeover Law. Section 203 of the Delaware General
Corporation Law ("Section 203") generally provides that a stockholder, and the
affiliates and associates of such stockholder, acquiring more than 15% of the
outstanding voting stock of a corporation subject to the statute (an "Interested
Stockholder") but less than 85% of such stock may not engage in certain Business
Combinations (as defined in Section 203) in the corporation for a period of
three years after the date on which the stockholder became an Interested
Stockholder unless (i) prior to such date, the corporation's board of directors
approved either the Business
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Combination or the transaction in which the stockholder became an Interested
Stockholder or (ii) the Business Combination is approved by the corporation's
board of directors and authorized at a stockholders' meeting by a vote of at
least two-thirds of the corporation's outstanding voting stock not owned by the
Interested Stockholder. Under Section 203, these restrictions will not apply to
certain Business Combinations proposed by an Interested Stockholder following
the earlier of the announcement or notification of one of certain extraordinary
transactions involving the corporation and a person who was not an Interested
Stockholder during the previous three years or who became an Interested
Stockholder with the approval of the corporation's board of directors, if such
extraordinary transaction is approved or not opposed by a majority of the
directors who were directors prior to such person becoming an Interested
Stockholder during the previous three years or were recommended for election or
elected to succeed such directors by a majority of such directors.
Section 203 defines the term Business Combination to encompass a wide
variety of transactions with or caused by an Interested Stockholder, including
transactions in which the Interested Stockholder receives or could receive a
benefit on other than a pro rata basis with other stockholders, such as mergers,
certain asset sales, certain issuances of additional shares to the Interested
Stockholder, transactions with the corporation which increase the proportionate
interest in the corporation directly or indirectly owned by the Interested
Stockholder or transactions in which the Interested Stockholder receives certain
other benefits.
The provisions of Section 203, coupled with the Board's authority to issue
preferred stock without further stockholder action, could delay or frustrate the
removal of incumbent directors or a change in control of Allied. The provisions
also could discourage, impede or prevent a merger, tender offer or proxy
contest, even if such event would be favorable to the interests of stockholders.
Allied's stockholders, by adopting an amendment to the Certificate, may elect
not to be governed by Section 203 effective 12 months after such adoption.
Neither the Certificate nor the Bylaws exclude Allied from the restrictions
imposed by Section 203.
TRANSFER AGENT
The transfer agent and registrar for the Common Stock is American Stock
Transfer & Trust Company.
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DESCRIPTION OF DEBT SECURITIES AND GUARANTEES
The following description of the terms of Allied Debt Securities and the
terms of the AWNA Debt Securities sets forth certain general terms and
provisions of such Debt Securities. To the extent any terms described below
apply specifically (i) to the Allied Debt Securities or the AWNA Debt
Securities, specific references to "Allied Debt Securities" or "AWNA Debt
Securities" will be made, otherwise references to "Debt Securities" shall be
deemed to apply to both the Allied Debt Securities and the AWNA Debt Securities,
(ii) to the Senior Allied Debt Securities or the Senior AWNA Debt Securities,
specific references to "Senior Allied Debt Securities" or "Senior AWNA Debt
Securities" will be made, otherwise references to "Senior Debt Securities" shall
be deemed to apply to both the Senior Allied Debt Securities and the Senior AWNA
Debt Securities and (iii) to the Senior Subordinated Allied Debt Securities or
the Senior Subordinated AWNA Debt Securities, specific references to "Senior
Subordinated Allied Debt Securities" or "Senior Subordinated AWNA Debt
Securities" will be made, otherwise references to "Senior Subordinated Debt
Securities" shall be deemed to apply to both the Senior Subordinated Allied Debt
Securities and the Senior Subordinated AWNA Debt Securities. The extent, if any,
to which such general provisions do not apply to the Debt Securities offered by
any Prospectus Supplement will be described in such Prospectus Supplement.
The Senior Allied Debt Securities offered hereby are to be issued in one or
more series under an Indenture (as amended or supplemented from time to time,
the "Senior Allied Indenture") to be entered into between Allied and First Trust
National Association, as trustee (the "Senior Allied Trustee"). The Senior
Subordinated Allied Debt Securities offered hereby are to be issued in one or
more series under an Indenture (as amended or supplemented, the "Senior
Subordinated Allied Indenture) to be entered into between Allied and First Trust
National Association, as trustee (the "Senior Subordinated Allied Trustee"). The
Senior AWNA Debt Securities offered hereby are to be issued in one or more
series under an Indenture (as amended or supplemented, the "Senior AWNA
Indenture" and, together with the Senior Allied Indenture, the "Senior
Indentures") to be entered into between AWNA, Allied, as guarantor, the
Subsidiary Guarantors and First Trust National Association, as trustee (the
"Senior AWNA Trustee" and, together with the Senior Allied Trustee, the Senior
Trustees"). The Senior Subordinated AWNA Debt Securities offered hereby are to
be issued in one or more series under an Indenture (as amended or supplemented,
the "Senior Subordinated AWNA Indenture" and, together with the Senior
Subordinated Allied Indenture, the "Senior Subordinated Indentures") to be
entered into between AWNA, Allied, as guarantor, the Subsidiary Guarantors and
First Trust National Association, as trustee (the "Senior Subordinated AWNA
Trustee" and, together with the Senior Subordinated Allied Trustee, the "Senior
Subordinated Trustees"). The Senior Indentures and the Senior Subordinated
Indentures are referred to collectively herein as the "Indentures" and the
Senior Trustees and the Senior Subordinated Trustees are referred to
collectively herein as the "Trustees." Copies of the Indentures have been filed
as exhibits to the Registration Statement of which this Prospectus forms a part.
The Indentures will be executed by the Company and the Trustees on or prior to
the issuance of any Debt Securities thereunder.
The terms of the Debt Securities include those stated in the applicable
Indenture and those made a part of the applicable Indenture by reference to the
Trust Indenture Act of 1939, as amended (the "TIA"). The Debt Securities are
subject to all such terms and the holders of Debt Securities are referred to the
applicable Indenture and the TIA for a statement of such terms.
The following summaries of certain provisions of each Indenture and the
Debt Securities are not complete and are qualified in their entirety by
reference to the provisions of each Indenture, including the definitions of
capitalized terms used herein without definition. Numerical references in
parentheses are to sections in the applicable Indenture and unless otherwise
indicated capitalized terms have the meanings given them in the applicable
Indenture.
GENERAL
Unless otherwise specified in a Prospectus Supplement, (i) the Senior Debt
Securities, when issued, will rank pari passu in right of payment with all other
unsubordinated obligations of Allied or AWNA, as the case
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may be, and will rank senior in right of payment to all subordinated obligations
of Allied or AWNA, as the case may be, (ii) the Senior Guarantees and the Allied
Senior Guarantee, when issued, will rank pari passu in right of payment with all
other unsubordinated obligations of the Guarantors and Allied, respectively, and
will rank senior in right of payment to all subordinated obligations of the
Guarantors, (iii) the Senior Subordinated Debt Securities, when issued, will be
subordinate in right of payment to the prior payment in full of all Senior Debt
(as defined herein) of Allied or AWNA, as the case may be, including all Senior
Debt Securities of Allied or AWNA, as the case may be, and will rank pari passu
in right of payment with all other senior subordinated obligations of Allied or
AWNA, as the case may be, and (iv) the Senior Subordinated Guarantees and the
Allied Senior Subordinated Guarantee, when issued, will be subordinate in right
of payment to the prior payment in full of all Senior Debt of the Guarantors and
Allied, respectively, including, in the case of Allied, all Senior Allied Debt
Securities, and will rank pari passu in right of payment with all other senior
subordinated obligations of the Guarantors and Allied, respectively. Holders of
secured obligations of Allied, AWNA and the Guarantors, including secured Allied
Debt Securities, secured AWNA Debt Securities and secured Guarantees,
respectively, will, however, have claims that are prior to the claims of holders
of unsecured Allied Debt Securities, AWNA Debt Securities and Guarantees,
respectively with respect to the assets securing such secured obligations.
Allied conducts its operations through AWNA, which is subject, under certain of
its debt instruments, to certain restrictions on its ability to pay funds to
Allied. All Allied Debt Securities and Guarantees of Allied will effectively be
subordinate in right of payment to the prior payment in full of all indebtedness
of Allied's subsidiaries and all other obligations and other liabilities,
including trade payables, of Allied's subsidiaries, including all AWNA Debt
Securities.
The Indentures do not limit the aggregate amount of Debt Securities which
may be issued thereunder. Except as otherwise provided in the applicable
Prospectus Supplement, the Indentures, as they apply to any series of Debt
Securities, do not limit the incurrence or issuance of other secured or
unsecured debt of Allied or AWNA, as the case may be, whether under any of the
Indentures, or any other indenture that Allied or AWNA, as the case may be, may
enter into in the future or otherwise. See "-- Subordination under the Senior
Subordinated Indentures" and the Prospectus Supplement relating to any offering
of Senior Subordinated Securities.
The Debt Securities will be issuable in one or more series pursuant to an
indenture supplement to the applicable Indenture, a certificate of officers of
Allied or AWNA, as the case may be, or a resolution of Allied's, or AWNA's, as
the case may be, Board of Directors or a committee thereof. Section 2.1 of each
Indenture.
Reference is made to the applicable Prospectus Supplement which will
accompany this Prospectus for a description of the specific series of Debt
Securities being offered thereby, including: (1) the title of such Debt
Securities; (2) any limit upon the aggregate principal amount of such Debt
Securities; (3) the date or dates on which the principal of and premium, if any,
on such Debt Securities will mature or the method of determining such date or
dates; (4) the rate or rates (which may be fixed or variable) at which such Debt
Securities will bear interest, if any, and the method of calculating such rate
or rates; (5) the date or dates from which interest, if any, will accrue or the
method by which such date or dates will be determined; (6) the date or dates on
which interest, if any, will be payable and the record date or dates therefor;
(7) the place or places where principal of, premium, if any, and interest, if
any, on such Debt Securities will be payable or at which Debt Securities may be
surrendered for registration of transfer or exchange; (8) the period or periods
within which, the price or prices at which, if other than in United States
dollars, the currency or currencies (including currency unit or units) in which,
and the other terms and conditions upon which, such Debt Securities may be
redeemed, in whole or in part, at the option of Allied or AWNA, as the case may
be, (9) the obligation, if any, of Allied or AWNA, as the case may be, to redeem
or purchase such Debt Securities pursuant to any sinking fund or analogous
provisions or upon the happening of a specified event or at the option of a
holder thereof and the period or periods within which, the price or prices at
which, if other than in United States dollars, the currency or currencies
(including currency unit or units) in which, and the other terms and conditions
upon which, such Debt Securities shall be redeemed or purchased, in whole or in
part, pursuant to such obligation; (10) the denominations in which such Debt
Securities are authorized to be issued; (11) the currency or currency unit in
which Debt Securities may be denominated and/or the currency or currencies
(including
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currency unit or units) in which principal of, premium, if any, and interest, if
any, on such Debt Securities will be payable and whether Allied or AWNA, as the
case may be, or the holders of any such Debt Securities may elect to receive
payments in respect of such Debt Securities in a currency or currency unit other
than that in which such Debt Securities are stated to be payable; (12) if the
amount of principal of, or any premium or interest on, any of such Debt
Securities may be determined with reference to an index or pursuant to a formula
or other method, the manner in which such amounts will be determined; (13) if
other than the principal amount thereof, the portion of the principal amount of
such Debt Securities which will be payable upon declaration of the acceleration
of the maturity thereof or the method by which such portion shall be determined;
(14) provisions, if any, granting special rights to the holders of Debt
Securities upon the occurrence of such events as may be specified; (15) any
addition to, or modification or deletion of, any Event of Default or any
covenant of Allied, or AWNA or any Guarantor, as the case may be, specified in
the Indenture with respect to such Debt Securities; (16) the circumstances under
which Allied, or AWNA or any Guarantor, as the case may be, will pay additional
amounts on the Debt Securities held by non-U.S. persons in respect of taxes,
assessments or similar charges; (17) whether the Debt Securities will be issued
in registered or bearer form or both; (18) the application, if any, of such
means of defeasance or covenant defeasance as may be specified for such Debt
Securities; (19) whether such Debt Securities are to be issued in whole or in
part in the form of one or more temporary or permanent global securities and, if
so, the identity of the depositary or its nominee, if any, for such global
security or securities and the circumstances under which beneficial owners of
interests in the global security may exchange such interests for certificated
Debt Securities to be registered in the names of or to be held by such
beneficial owners or their nominees; (20) whether such Debt Securities are
secured or unsecured and, if secured, the security and related terms in
connection therewith; (21) the terms, if any, upon which such Debt Securities
may be converted or exchanged into or for Common Stock or Preferred Stock of
Allied; (22) any restrictions on the registration, transfer or exchange of the
Debt Securities; and (23) any other terms pertaining to such Debt Securities.
Subject to any controlling provision of the TIA, in the event of any
inconsistency between the terms of the applicable Indenture and the terms
applicable to a series of Debt Securities established by an indenture
supplement, officers' certificate or board resolution, the terms established by
the indenture supplement, officers' certificate or board resolution shall
prevail (Section 3.1 of each Indenture) Unless otherwise specified in the
applicable Prospectus Supplement, the Debt Securities will not be listed on any
securities exchange.
The number of shares of Common Stock or Preferred Stock that will be
issuable upon the conversion or exchange of any Debt Securities issued with
conversion or exchange provisions will be adjusted to prevent dilution resulting
from stock splits, stock dividends or similar transactions, and the nature and
amount of the securities, assets or other property to be received upon the
conversion or exchange of such Debt Securities will be changed as necessary in
the event of any consolidation, merger, combination or similar transaction. The
specific provisions will be set forth in the applicable Prospectus Supplement.
Unless otherwise specified in the applicable Prospectus Supplement, Debt
Securities in registered form will be issued in denominations of U.S.$1,000 or
any integral multiples of U.S.$1,000 and Debt Securities in bearer form will be
issued in denominations of U.S.$5,000 or any integral multiples of U.S.$5,000.
(Section 3.2 of each Indenture) Where Debt Securities of any series are issued
in bearer form, the special restrictions and considerations, including special
offering restrictions and material U.S. federal income tax considerations,
applicable to any such Debt Securities and to payments in respect of and
transfers and exchanges of such Debt Securities will be described in the
applicable Prospectus Supplement. Debt Securities in bearer form will be
transferable by delivery. (Section 3.5 of each Indenture)
Debt Securities may be sold at a substantial discount below their stated
principal amount, bearing no interest or interest at a rate which at the time of
issuance is below market rates. Material U.S. federal income tax consequences
and special considerations applicable to any such Debt Securities will be
described in the applicable Prospectus Supplement.
If the purchase price of any of the Debt Securities is payable in one or
more foreign currencies or currency units or if any Debt Securities are
denominated in one or more foreign currencies or currency units or if the
principal of, premium, if any, or interest, if any, on any Debt Securities is
payable in one or more foreign
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currencies or currency units, the restrictions, elections, material U.S. federal
income tax considerations and other information with respect to such issue of
Debt Securities and such foreign currency or currency units will be set forth in
the applicable Prospectus Supplement.
If any index is used to determine the amount of payments of principal of,
premium, if any, or interest, if any, on any series of Debt Securities, material
U.S. federal income tax, accounting and other considerations applicable thereto
will be described in the applicable Prospectus Supplement.
The general provisions of the Indentures do not afford holders of the Debt
Securities protection in the event of a highly leveraged transaction,
restructuring, change in control, merger or similar transaction involving Allied
that may adversely affect holders of the Debt Securities.
PAYMENT, REGISTRATION, TRANSFER AND EXCHANGE
Unless otherwise provided in the applicable Prospectus Supplement, payments
in respect of the Debt Securities will be made in the designated currency at
such office or agency of Allied or AWNA, as the case may be, maintained for that
purpose as Allied or AWNA, as the case may be, may designate from time to time,
except that, at the option of Allied or AWNA, as the case may be, interest
payments, if any, on Debt Securities in registered form may be made (i) by
checks mailed to the holders of Debt Securities entitled thereto at their
registered addresses or (ii) by wire transfer to an account maintained by the
holders of the Debt Securities entitled thereto as specified in the Register.
(Sections 3.7(a) and 9.2 of each Indenture) Each payment in respect of the Debt
Securities shall be considered to have been made on the date such payment is due
if there shall have been sent to the Trustee or paying agent by wire transfer
(received by no later than the close of business on such due date), or the
Trustee or paying agent otherwise holds, on such due date sufficient funds to
make such payment. (Section 9.1 of each Indenture) Unless otherwise indicated in
an applicable Prospectus Supplement, scheduled payments of any installment of
interest on Debt Securities in registered form will be made to the person in
whose name such Debt Security is registered at the close of business on the
regular record date for such interest. (Section 3.7(a) of each Indenture)
Payment in respect of Debt Securities in bearer form will be made in the
currency and in the manner designated in the Prospectus Supplement, subject to
any applicable laws and regulations, at such paying agencies outside the United
States as Allied or AWNA, as the case may be, may appoint from time to time. The
paying agents outside the United States, if any, initially appointed by Allied
or AWNA, as the case may be, for a series of Debt Securities will be named in
the Prospectus Supplement. Unless otherwise provided in the applicable
Prospectus Supplement, Allied or AWNA, as the case may be, may at any time
designate additional paying agents or rescind the designation of any paying
agents, except that, if Debt Securities of a series are issuable in registered
form, Allied or AWNA, as the case may be, will be required to maintain at least
one paying agent in each place of payment for such series and if Debt Securities
of a series are issuable in bearer form, Allied or AWNA, as the case may be,
will be required to maintain at least one paying agent in a place of payment
outside the United States where Debt Securities of such series and any coupons
appertaining thereto may be presented and surrendered for payment. (Section 9.2
of each Indenture)
Unless otherwise provided in the applicable Prospectus Supplement, Debt
Securities in registered form will be transferable or exchangeable at the agency
of Allied or AWNA, as the case may be, maintained for such purpose as designated
by Allied or AWNA, as the case may be, from time to time. (Sections 3.5 and 9.2
of each Indenture) Debt Securities may be transferred or exchanged without
service charge, although Allied or AWNA, as the case may be, may require a
holder to pay any tax or other governmental charge imposed in connection
therewith. (Section 3.5 of each Indenture)
GLOBAL DEBT SECURITIES
The Debt Securities of a series may be issued in whole or in part in the
form of one or more fully registered global securities (a "Registered Global
Security"). Each Registered Global Security will be registered in the name of a
depositary (the "Depositary") or a nominee for the Depositary identified in the
applicable Prospectus Supplement, will be deposited with such Depositary or
nominee or a custodian therefor and will bear a legend regarding the
restrictions on exchanges and registration of transfer thereof and any such
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other matters as may be provided for pursuant to the applicable Indenture. In
such a case, one or more Registered Global Securities will be issued in a
denomination or aggregate denominations equal to the portion of the aggregate
principal amount of outstanding Debt Securities of the series to be represented
by such Registered Global Security or Securities. (Section 3.3 of each
Indenture) Unless and until it is exchanged in whole or in part for Debt
Securities in definitive certificated form, a Registered Global Security may not
be transferred or exchanged except as a whole by the Depositary for such
Registered Global Security to a nominee of such Depositary or by a nominee of
such Depositary to such Depositary or another nominee of such Depositary or by
such Depositary or any such nominee to a successor Depositary for such series or
a nominee of such successor Depositary, or except in the circumstances described
in the applicable Prospectus Supplement. (Section 3.5 of each Indenture)
The specific terms of the depositary arrangement with respect to any
portion of a series of Debt Securities to be represented by a Registered Global
Security will be described in the applicable Prospectus Supplement.
Upon the issuance of any Registered Global Security, and the deposit of
such Registered Global Security with or on behalf of the Depositary for such
Registered Global Security, the Depositary will credit on its book-entry
registration and transfer system the respective principal amounts of the Debt
Securities represented by such Registered Global Security to the accounts of
institutions ("Participants") that have accounts with the Depositary. The
accounts to be credited will be designated by the underwriters or agents
engaging in the distribution of such Debt Securities or by Allied or AWNA, as
the case may be, if such Debt Securities are offered and sold directly by Allied
or AWNA, as the case may be. Ownership of beneficial interests in a Registered
Global Security will be limited to Participants or persons that may hold
interests through Participants. Ownership of beneficial interests in a
Registered Global Security will be shown on, and the transfer of that ownership
will be effected only through, records maintained by the Depositary for such
Registered Global Security or by its nominee. Ownership of beneficial interests
in such Registered Global Security by persons who hold through Participants will
be shown on, and the transfer of such beneficial interests within such
Participants will be effected only through, records maintained by such
Participants.
So long as the Depositary for a Registered Global Security, or its nominee,
is the owner of such Registered Global Security, such Depositary or such
nominee, as the case may be, will be considered the sole owner or holder of the
Debt Security represented by such Registered Global Security for all purposes
under each Indenture. (Section 3.8 of each Indenture) Accordingly, each person
owning a beneficial interest in such Registered Global Security must rely on the
procedures of the Depositary and, if such person is not a Participant, on the
procedures of the Participant through which such person owns its interest, to
exercise any rights of a holder under such Indenture. Each of Allied and AWNA
understands that under existing industry practices, if it requests any action of
holders or if an owner of a beneficial interest in a Registered Global Security
desires to give or take any instruction or action which a holder is entitled to
give or take under the Indenture, the Depositary would authorize the
Participants holding the relevant beneficial interests to give or take such
instruction or action, and such Participants would authorize beneficial owners
owning through such Participants to give or take such instruction or action or
would otherwise act upon the instructions of beneficial owners holding through
them.
Unless otherwise specified in the Prospectus Supplement, payments with
respect to principal, premium, if any, and interest, if any, on the Debt
Securities represented by a Registered Global Security registered in the name of
the Depositary or its nominee will be made to such Depositary or its nominee, as
the case may be, as the registered owner of such Registered Global Security.
Each of Allied and AWNA expects that the Depositary for any Debt Securities
represented by a Registered Global Security, upon receipt of any payment of
principal or interest in respect of such Registered Global Security, will credit
immediately Participants' accounts with payments in amounts proportionate to
their respective beneficial interests in the Registered Global Security as shown
on the records of the Depositary. Each of Allied and AWNA also expects that
payments by Participants to owners of beneficial interests in such Registered
Global Security held through such Participants will be governed by standing
instructions and customary practices, as is now the case with securities in
bearer form held for the accounts of customers or registered in "street name,"
and will be the responsibility of such Participants. None of Allied, AWNA, any
Guarantor, the respective Trustees or any agent of Allied, AWNA, any Guarantor
or the respective Trustees shall have any responsibility or liability for
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any aspect of the records relating to or payments made on account of beneficial
interests in any Registered Global Security, or for maintaining, supervising or
reviewing any records relating to such beneficial interests. (Section 3.8 of
each Indenture)
Unless otherwise specified in the applicable Prospectus Supplement, if the
Depositary for any Debt Securities represented by a Registered Global Security
is at any time unwilling or unable to continue as depositary of such Registered
Global Security and a successor depositary is not appointed by Allied or AWNA,
as the case may be, within 90 days, Allied or AWNA, as the case may be, will
issue Debt Securities in certificated form in exchange for such Registered
Global Security. In addition, Allied or AWNA, as the case may be, in its sole
discretion may at any time determine not to have any of the Debt Securities of a
series represented by one or more Registered Global Securities and, in such
event, will issue Debt Securities of such series in certificated form in
exchange for all of the Registered Global Securities representing such series of
Debt Securities. (Section 3.5 of each Indenture)
The Debt Securities of a series may also be issued in whole or in part in
the form of one or more bearer global securities (a "Bearer Global Security")
that will be deposited with a depositary, or with a nominee for such depositary,
identified in the applicable Prospectus Supplement. Any such Bearer Global
Securities may be issued in temporary or permanent form. (Section 3.4 of each
Indenture) The specific terms and procedures, including the specific terms of
the depositary arrangement, with respect to any portion of a series of Debt
Securities to be represented by one or more Bearer Global Securities will be
described in the applicable Prospectus Supplement.
CONSOLIDATION, MERGER OR SALE OF ASSETS
Each Indenture permits Allied, or AWNA or any Guarantor, as the case may
be, to consolidate with or merge into any person or persons or any person or
persons to consolidate with or merge into Allied, or AWNA or any Guarantor, as
the case may be, and permits Allied, AWNA or any Guarantor, as the case may be,
to sell, transfer or lease its properties and assets as, or substantially as, an
entirety to any person if, (i) the person (if other than Allied, or AWNA or such
Guarantor, as the case may be,) formed by such consolidation, or into which
Allied, or AWNA or such Guarantor, as the case may be, is merged or which
acquires or leases the properties and assets of Allied, or AWNA or such
Guarantor, as the case may be, as, or substantially as, an entirety, is
organized and existing under the laws of the United States, any state thereof or
the District of Columbia, (ii) such person expressly assumes Allied's, or AWNA's
or such Guarantor's, as the case may be, obligations on the Debt Securities
issued under such Indenture, (iii) immediately after giving effect to such
consolidation, merger, sale, transfer or lease, no Default or Event of Default
under such Indenture exists and (iv) with respect to any series of Debt
Securities, Allied, or AWNA or such Guarantor, as the case may be, satisfies any
other conditions, if any, established with respect to such series of Debt
Securities pursuant to and in accordance with Section 3.1 of the applicable
Indenture. (Section 7.1 of each Indenture) Nothing contained in the Senior AWNA
Indenture or the Senior AWNA Debt Securities or in the Senior Subordinated AWNA
Indenture or the Senior Subordinated AWNA Debt Securities shall prevent any
consolidation or merger of a Subsidiary Guarantor with or into AWNA 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 Allied or
a Guarantor (Section 15.3 of the AWNA Senior Indenture and Section 16.3 of the
AWNA Senior Subordinated Indenture). Upon the consummation of any transaction
(whether involving a sale or other disposition of securities, a merger or
otherwise) whereby any Subsidiary Guarantor ceases to be a Restricted Subsidiary
and which transaction is otherwise in compliance with the provisions of the
applicable Indenture, such Subsidiary Guarantor shall automatically be released
from all obligations under its Guarantees and the surviving entity in such
transaction or the entity to which such Subsidiary Guarantor is conveyed shall
not (unless such transaction otherwise results in the sale, transfer or
disposition of the properties and assets of Subsidiary Guarantor substantially
as an entirety) be required to assume the obligations of such Subsidiary
Guarantor. (Section 15.4 of the AWNA Senior Indenture and Section 16.4 of the
AWNA Senior Subordinated Indenture).
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EVENTS OF DEFAULT, NOTICE AND CERTAIN RIGHTS ON DEFAULT
Except as otherwise provided in a Prospectus Supplement relating to the
Debt Securities of a particular series, Events of Default with respect to Debt
Securities of any series are defined in each Indenture as (a) default in the
payment of any interest on any Debt Security of that series, and the continuance
of such default for a period of 30 days; (b) default in the payment of any
installment of the principal of or any premium on any Debt Security of that
series when due, whether at maturity, upon redemption, by declaration or
otherwise or in the payment of a mandatory sinking fund payment when and as due
by the forms of the Debt Securities of that series; (c) default in the deposit
of any sinking fund payment, when as and if due by the terms of a Debt Security
of that series; (d) failure to perform any other covenant or warranty of Allied,
or AWNA or any Guarantor, as the case may be, in the applicable Indenture or the
applicable Debt Securities, continued for 60 days after written notice from
Holders of at least 10% in principal amount of the outstanding applicable Debt
Securities as provided in the applicable indenture; (e) a default or defaults
under any bonds, debentures, notes or other evidences of, or obligations
constituting, Debt of Allied or any Restricted Subsidiary of Allied, or AWNA or
any Guarantor or any Restricted Subsidiary of AWNA, as the case may be, or under
any mortgages, indentures, instruments or agreements under which there may be
issued or existing or by which there may be secured or evidenced any Debt of
Allied or any Restricted Subsidiary of Allied, or AWNA or any Guarantor or any
Restricted Subsidiary of AWNA, as the case may be, in each case with a principal
or similar amount then outstanding, individually or in the aggregate, in excess
of $25 million, whether such Debt now exists or is hereafter created, which
default or defaults constitute a failure to pay any portion of the principal or
similar amount of such Debt when due and payable after the expiration of any
applicable grace period with respect thereto or results in such Debt becoming or
being declared due and payable prior to the date on which it would otherwise
have become due and payable; (f) the rendering of a final judgment or judgments
(not subject to appeal) against Allied or any of the Restricted Subsidiaries of
Allied, or AWNA or any Guarantor or any Restricted Subsidiary of AWNA, as the
case may be, in an aggregate amount in excess of $25 million which remains
unstayed, undischarged or unbonded for a period of 60 days thereafter; and (g)
certain events of bankruptcy, insolvency and reorganization of Allied, or AWNA
or any Guarantor, as the case may be. (Section 5.1 of each Indenture) Events of
Default with respect to a specified series of Debt Securities may be deleted
from or added to the Indenture or may be modified and, if so deleted, added or
modified, will be described in the applicable Prospectus Supplement. (Sections
3.1 and 5.1 of each Indenture)
Each Indenture provides that the relevant Trustee will, within 90 days
after the occurrence of a Default that is continuing with respect to the Debt
Securities of any series, give to the holders of the Debt Securities of that
series notice of all Defaults known to it unless such Default shall have been
cured or waived; provided that except in the case of a Default in payment of
principal, premium, if any, or interest on the Debt Securities of that series,
such Trustee shall be protected in withholding such notice if it in good faith
determines that withholding such notice is in the interests of holders of the
Debt Securities of that series. (Section 6.2 of each Indenture) "Default" means
any event which is, or after notice or passage of time, or both, would be, an
Event of Default. (Section 1.1 of each Indenture)
Each Indenture provides that, if an Event of Default specified therein
(other than an Event of Default of the type described in clause (g) of the
second preceding paragraph) occurs with respect to the Debt Securities of any
series and is continuing, the Trustee for such series or the holders of 25% in
aggregate principal amount of all outstanding Debt Securities of that series
(calculated as provided for in each Indenture) may declare the principal of (or,
if the Debt Securities of that series are Original Issue Discount Securities or
Indexed Securities, such portion of the principal amount specified in the
Prospectus Supplement) and accrued interest, if any, on all the Debt Securities
of that series to be due and payable and upon such declaration, such principal
(or, in the case of Original Issue Discount Securities or Indexed Securities,
such portion of the principal amount specified in the Prospectus Supplement) and
interest, if any, shall be immediately due and payable. If an Event of Default
of the type described in clause (g) of the second preceding paragraph occurs
with respect to the Debt Securities of any series and is continuing, then the
principal of (or, if the Debt Securities of that series are Original Issue
Discount Securities or Indexed Securities, the applicable portion of such
principal amount) and accrued interest, if any, on all the Debt Securities of
that series shall be immediately due and payable without any declaration or act
on the part of the Trustee for such series or any holder of such Debt
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Securities. If the principal of and interest on Senior Subordinated Securities
is accelerated as described in this paragraph, the payment of such principal and
interest shall remain subordinated to the extent provided in Article 15 of the
Senior Subordinated Indentures. (Section 5.2 of each Indenture)
Each Indenture provides that the holders of not less than a majority in
aggregate principal amount of any series of Debt Securities by written notice to
the Trustee for such series may waive, on behalf of the holders of all Debt
Securities of such series, any past Default or Event of Default with respect to
that series and its consequences except a Default or Event of Default in the
payment of the principal of, premium, if any, or interest, if any, on any Debt
Security or with respect to a covenant or provision that cannot be amended or
modified without consent of each holder of such series of Debt Securities
adversely affected. (Section 5.7 of each Indenture)
Reference is made to the Prospectus Supplement relating to each series of
Debt Securities that are Original Issue Discount Securities for the particular
provisions relating to acceleration of the maturity of a portion of the
principal amount of such Original Issue Discount Securities upon the occurrence
of an Event of Default and the continuation thereof.
Each Indenture provides that, if a Default or an Event of Default shall
have occurred and be continuing, the holders of not less than a majority in
aggregate principal amount of the Debt Securities of each series affected (with
each such series voting as a class) may, subject to certain limited conditions,
direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee for such series, or exercising any trust or power
conferred on such Trustee. (Section 5.8 of each Indenture)
Each Indenture includes a covenant that Allied, or AWNA, as the case may
be, will file annually with the relevant Trustee a certificate as to the
presence or absence of certain defaults under the terms of such Indenture.
(Section 9.5 of each Indenture)
MODIFICATION AND WAIVER
Each Indenture contains provisions permitting Allied, or AWNA and the
Guarantors, as the case may be, and the relevant Trustee to enter into one or
more supplemental indentures without the consent of the holders of any of the
Debt Securities in order (i) to evidence the succession of another entity to
Allied, or AWNA or any Guarantor, as the case may be, and the assumption of the
covenants and obligations of Allied, or AWNA or any Guarantor, as the case may
be, under the Debt Securities and such Indenture by such successor to Allied, or
AWNA or any Guarantor, as the case may be; (ii) to add to the covenants of
Allied, or AWNA or any Guarantor, as the case may be, for the benefit of the
holders of all or any series of Debt Securities or surrender any right or power
conferred on Allied, or AWNA or any Guarantor, as the case may be, by such
Indenture; (iii) to add additional Events of Default with respect to any series
of Debt Securities; (iv) to add to or change any provisions to such extent as
necessary to facilitate the issuance or administration of Debt Securities in
bearer form or to facilitate the issuance or administration of Debt Securities
in global form; (v) to change or eliminate any provision affecting only Debt
Securities not yet issued; (vi) to secure any series of Debt Securities; (vii)
to establish the form or terms of Debt Securities of any series; (viii) to
evidence and provide for successor Trustees or to add or change any provisions
to such extent as necessary to permit or facilitate the appointment of a
separate Trustee or Trustees for specific series of Debt Securities; (ix) to
permit payment in respect of Debt Securities in bearer form in the United States
to the extent allowed by law; (x) to cure any ambiguity, to correct or
supplement any inconsistent provisions or to make any other provisions with
respect to matters or questions arising under such Indenture which shall not be
inconsistent with the provisions of such Indenture, provided that any such
action does not adversely affect in any material respect the interests of any
holder of Debt Securities of any series then outstanding; (xi) in the case of
the Senior Subordinated Indentures, to modify the subordination provisions
thereof in a manner not adverse to the holders of Senior Subordinated Securities
of any series then outstanding; (xii) to make provision with respect to any
conversion or exchange rights of holders not adverse to the holders of any Debt
Securities of any series then outstanding with such conversion or exchange
rights, including providing for the conversion or exchange of Debt Securities
into Common Stock or Preferred Stock of Allied; or (xiii) to effect the
qualification of such Indenture under the TIA or to add provisions expressly
required under the TIA. (Section 8.1 of each Indenture)
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Each Indenture also contains provisions permitting Allied, or AWNA and the
Guarantors, as the case may be, and the relevant Trustee, with the consent of
the holders of a majority in aggregate principal amount of the outstanding Debt
Securities of all series adversely affected by such supplemental indenture
(voting as one class), to execute supplemental indentures adding any provisions
to or changing or eliminating any of the provisions of such Indenture or any
supplemental indenture or modifying the rights of the holders of Debt Securities
of such series, except that, without the consent of the holder of each Debt
Security so affected, no such supplemental indenture may: (i) change the time
for payment of principal or premium, if any, or interest on any Debt Security;
(ii) reduce the principal on any Debt Security, or change the manner in which
the amount of any of the foregoing is determined; (iii) reduce the interest
rate, or reduce the amount of premium, if any, payable upon the redemption of
any Debt Security or change the manner in which the amount of the premium, if
any, or interest is determined; (iv) reduce the amount of principal payable upon
acceleration of the maturity of any Original Issue Discount or Indexed Security;
(v) change the currency or currency unit in which any Debt Security or any
premium or interest thereon is payable; (vi) impair the right to institute suit
for the enforcement of any payment on or with respect to any Debt Security after
such payment has become due; (vii) reduce the percentage in principal amount of
the outstanding Debt Securities of any series, the consent of whose holders is
required for modification or amendment of such Indenture or for waiver of
compliance with certain provisions of the Indenture or for waiver of certain
defaults, or reduce the quorum or voting requirements applicable to meetings of
holders of Debt Securities issuable in bearer form; (viii) change the obligation
of Allied to maintain an office or agency in the places and for the purposes
specified in such Indenture; (ix) in the case of the Senior Subordinated
Indenture, modify the subordination provisions thereof in a manner adverse to
the holders of Senior Subordinated Securities of any series then outstanding;
(x) modify the provisions that set forth the provisions in each Indenture that
may not be changed without the consent of the holder of each Debt Security
affected thereby or (xi) make any change adversely affecting any rights of the
holders to convert or exchange convertible or exchangeable Debt Securities.
(Section 8.2 of each Indenture)
The Holders of a majority in aggregate principal amount of the Outstanding
Debt Securities of any series may waive compliance by Allied, or AWNA or any
Guarantor, as the case may be, with certain restrictive provisions of the
applicable Indenture (Section 9.6 of each Indenture). The Holders of a majority
in aggregate principal amount of the Outstanding Debt Securities of any series
may waive any past default under the applicable Indenture, except a default in
the payment of principal, premium or interest and certain covenants and
provisions of the applicable Indenture which cannot be amended without the
consent of the Holder of each Outstanding Debt Security of such series affected.
(Section 5.7 of each Indenture)
SUBORDINATION UNDER THE SENIOR SUBORDINATED INDENTURES
The payment of the principal of (and premium, if any) and interest on the
Senior Subordinated Debt Securities will, in certain circumstances as set forth
in the applicable Senior Subordinated Indenture, be subordinated in right of
payment to the prior payment in full of all Senior Debt of Allied or AWNA, as
the case may be. Upon any payment or distribution of assets of Allied or AWNA,
as the case may be, to creditors upon any liquidation, dissolution, winding up,
reorganization, assignment for the benefit of creditors, marshalling of assets
and liabilities or any bankruptcy, insolvency or similar proceedings of Allied
or AWNA, as the case may be, the holders of Senior Debt of Allied or AWNA, as
the case may be, will be entitled to receive payment in full of the principal of
(and premium, if any) and interest on such Senior Debt, including all amounts
due or to become due on all such Senior Debt, or provision will be made for
payment in cash or cash equivalents or otherwise in a manner satisfactory to the
holders of such Senior Debt, before the holders of Senior Subordinated Debt
Securities of Allied or AWNA, as the case may be, are entitled to receive any
Securities Payments. "Securities Payment" means any payment or distribution of
any kind, whether in cash, property or securities (including any payment or
distribution deliverable by reason of the payment of any other Debt subordinated
to the Senior Subordinated Debt Securities) on account of the principal of (and
premium, if any) or interest on the Senior Subordinated Debt Securities or on
account of the purchase or redemption or other acquisition of Senior
Subordinated Debt Securities by Allied, AWNA or any subsidiary of Allied. In the
event that, notwithstanding the foregoing, the applicable Senior Subordinated
Trustee or the holder of any Senior Subordinated Debt Securities receives any
Securities Payment before all Senior Debt of Allied, or
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AWNA, as the case may be, is paid in full or payment thereof is 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 Debt Securities Payment will be
required to be paid over or delivered forthwith to the holders of Senior Debt
for application to the payment of all Senior Debt of Allied or AWNA, as the case
may be, remaining unpaid, to the extent necessary to pay such Senior Debt in
full. (Sections 15.1 and 15.2 of the Senior Subordinated Allied Indenture and
the Senior Subordinated AWNA Indenture)
Allied or AWNA, as the case may be, may not make any Securities Payments if
there has occurred and is continuing a default in the payment of the principal
of (or premium, if any) or interest on Senior Debt of Allied or AWNA, as the
case may be, or if there has occurred and is continuing any event of default
with respect to Senior Debt of Allied or AWNA, as the case may be, 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 (a "Senior
Payment Default"). In addition, if any default (other than a Senior Payment
Default), with respect to any Senior Debt of Allied or AWNA, as the case may be,
permitting after notice or lapse of time (or both) the holders thereof (or a
trustee on behalf thereof) to accelerate the maturity thereof (a "Senior
Nonmonetary Default") has occurred and is continuing and Allied or AWNA, as the
case may be, and the applicable Senior Subordinated Trustee have received
written notice thereof from any holder or holders of Senior Debt of AWNA with a
principal amount in excess of $50 million, then Allied may not make any
Securities Payments for a period (a "blockage period") commencing on the date
Allied or AWNA, as the case may be, and the applicable Senior Subordinated
Trustee receive such written notice and ending on the earlier of (x) 179 days
after such date and (y) the date if any, on which the Senior Debt of Allied or
AWNA, as the case may be, to which such default relates is discharged or such
default is waived or otherwise cured. (Section 15.3 of the Senior Subordinated
Allied Indenture the Senior Subordinated AWNA Indenture)
In any event, not more than one blockage period with respect to any Senior
Subordinated Debt Securities may be commenced during any period of 360
consecutive days. No Senior Payment Default or Senior Nonmonetary Default that
existed or was continuing on the date of commencement of any blockage period
with respect to the Senior Debt of Allied or AWNA, as the case may be, will be,
or can be, made the basis for the commencement of a subsequent blockage period,
unless such default has been cured for a period of not less than 90 consecutive
days. In the event that, notwithstanding the foregoing, Allied or AWNA, as the
case may be, makes any Securities Payment to the applicable Senior Subordinated
Trustee or any holder of the applicable Senior Subordinated Debt Securities
prohibited by the subordination provisions, then and in such event such Debt
Securities Payment will be required to be paid over and delivered forthwith to
the holders of the Senior Debt of Allied or AWNA, as the case may be. (Section
15.3 of the Senior Subordinated Allied Indenture and the Senior Subordinated
AWNA Indenture)
By reason of such subordination, in the event of insolvency, creditors of
Allied or AWNA, as the case may be, who are not holders of Senior Debt of Allied
or AWNA, as the case may be, or of the applicable Senior Subordinated Debt
Securities may recover less, ratably, than holders of such Senior Debt and may
recover more, ratably, than the holders of the applicable Senior Subordinated
Debt Securities.
"Senior Debt" means, except as otherwise provided in a Prospectus
Supplement relating to any series of Debt Securities, (i) with respect to AWNA,
Debt created pursuant to the Amended and Restated Amended Bank Agreement dated
June 5, 1997 among Allied, AWNA, Credit Suisse First Boston, Citibank, N.A.,
Goldman Sachs Credit Partners L.P. and the other bank lenders named therein (the
"Amended Bank Agreement"), (ii) with respect to Allied or AWNA, as the case may
be, any Restricted Subsidiary of Allied or AWNA, as the case may be, or, in the
case of the Senior Subordinated AWNA Indenture, any Guarantor, (a) every
obligation of such Person for money borrowed, (b) every obligation of such
Person evidenced by bonds, debentures, notes or other similar instruments,
including obligations incurred in connection with the acquisition of property,
assets or businesses, (c) every reimbursement obligation of such Person with
respect to letters of credit, bankers' acceptances or similar facilities issued
for the account of such Person, (d) every Capital Lease Obligation of such
Person and (e) every payment obligation of such Person under interest rate swap
or similar agreements or foreign currency hedge, exchange or similar agreements
at the time of determination, whether incurred on or prior to the date of the
applicable Indenture or thereafter incurred, (iii) with respect to Allied or
AWNA, as the case may be, any Restricted Subsidiary of Allied or AWNA, as
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the case may be, or, in the case of the Senior Subordinated AWNA Indenture, any
Guarantor, guarantees by such person of Senior Debt, and in the case of Allied
or any Restricted Subsidiary of Allied, any guarantees by such person of AWNA's
obligations under the Amended Bank Agreement, 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 Allied or AWNA, as the
case may be, (B) any Debt which by the terms of the instrument creating or
evidencing the same is pari passu or subordinate in right of payment to the
applicable Senior Subordinated Debt Securities, (C) any Debt incurred in
violation of the applicable Indenture or (D) any Debt which is subordinate in
right of payment in any respect to any other Debt of Allied or AWNA, as the case
may be. For purposes of this definition, "Debt" includes any obligation to pay
principal, premium (if any), interest, penalties, reimbursement or indemnity
amounts, fees and expenses (including interest accruing on or after the filing
of any petition in bankruptcy or for reorganization relating to Allied or AWNA,
as the case may be, whether or not a claim for post-petition interest is allowed
in such proceeding).
"Restricted Subsidiary" means, with respect to any series of Debt
Securities, any Subsidiary of Allied or AWNA, as the case may be, which is not
designated by the Company as an Unrestricted Subsidiary (as defined in any
Prospectus Supplement relating to any series of Debt Securities) with respect to
such series of Debt Securities upon the issuance of such series of Debt
Securities.
The subordination provisions described above will cease to be applicable to
the applicable Senior Subordinated Debt Securities upon any defeasance or
covenant defeasance of such Senior Subordinated Debt Securities as described
under "-- Defeasance and Covenant Defeasance."
The Senior Subordinated Indentures place no limitation on the amount of
additional Senior Debt that may be incurred by Allied or AWNA, as the case may
be. Allied and AWNA expect from time to time to incur additional indebtedness
constituting Senior Debt.
The Senior Subordinated Indenture provides that the foregoing subordination
provisions, insofar as they relate to any particular issue of Senior
Subordinated Securities, may be changed prior to such issuance. Any such change
would be described in the Prospectus Supplement relating to such Senior
Subordinated Securities. (Section 3.1 of the Senior Subordinated Indenture)
GUARANTEES
Allied and the Subsidiary Guarantors will, jointly and severally, on a
senior basis, unconditionally guarantee (the "Senior Guarantees") the due and
punctual payment of principal of (and premium, if any) and interest on the
Senior AWNA Debt Securities. Allied and the Subsidiary Guarantors will, jointly
and severally, on a senior subordinated basis, unconditionally guarantee (the
"Senior Subordinated Guarantees") the due and punctual payment of principal of
(and premium, if any) and interest on the Senior Subordinated AWNA Debt
Securities, when and as the same shall become due and payable, whether at the
maturity date, by declaration of acceleration, call for redemption or otherwise.
The Subsidiary Guarantors' obligations under the Senior Guarantees and the
Senior Subordinated Guarantees will be unconditionally guaranteed on a senior
and senior subordinated basis, respectively, by Allied (the "Allied Senior
Guarantee" and "Allied Senior Subordinated Guarantee," respectively, and,
together with the Senior Guarantees and the Senior Subordinated Guarantees, the
"Guarantees").
The Senior Guarantees and the Allied Senior Guarantee, when issued, will
rank pari passu in right of payment with all other unsubordinated obligations of
the Guarantors and Allied, respectively, and will rank senior in right of
payment to all subordinated obligations of the Guarantors and Allied,
respectively. The Senior Subordinated Guarantees and the Allied Senior
Subordinated Guarantee, when issued, will be subordinate in right of payment to
the prior payment in full of all Senior Debt of the Guarantors and Allied,
respectively, including, in the case of Allied, all Senior Allied Debt
Securities, and will rank pari passu in right of payment with all other senior
subordinated obligations of the Guarantors and Allied, respectively. No
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payment will be made by any Guarantor under its Senior Subordinated Guarantee or
by Allied on its Allied Senior Subordinated Guarantee in respect of the Senior
Subordinated AWNA Debt Securities during any period that payments by AWNA on the
Senior Subordinated AWNA Debt Securities are suspended by the subordination
provisions of the Senior Subordinated AWNA Indenture. (Sections 15.1, 15.2 and
15.3 of the Allied Senior Subordinated Indenture and Sections 16.1, 16.2 and
16.3 of the AWNA Senior Subordinated Indenture.)
The Guarantees will remain in effect with respect to each Guarantor until
the entire principal of, premium, if any, and interest on the applicable AWNA
Debt Securities shall have been paid in full or otherwise discharged in
accordance with the provisions of the applicable Indenture; provided, however,
that (i) with respect to each Guarantor, if the applicable AWNA Debt Securities
are defeased and discharged as described under "-- Defeasance and Discharge," or
(ii) with respect to each Subsidiary Guarantor, such Subsidiary Guarantor (x)
ceases to be a Restricted Subsidiary or (y) all or substantially all of the
assets of such Subsidiary Guarantor or all of the capital stock of such
Subsidiary Guarantor is sold (including by issuance, merger, consolidation or
otherwise) by the Company or any of its Subsidiaries in a transaction in
accordance with the Indenture, then in each case of (i) and (ii) above, such
Guarantor or the corporation acquiring such assets (in the event of a sale or
other disposition of all or substantially all of the assets of such Subsidiary
Guarantor) shall be released and discharged from the applicable Guarantee
obligations.
Subject to payment in full of all Senior Debt of any Guarantor, the rights
of the holders of the Senior Subordinated AWNA Debt Securities under the related
Senior Subordinated Guarantees of such Guarantor and Allied Senior Subordinated
Guarantee of Allied will be subrogated to the rights of the holders of such
Senior Debt to receive payments or distributions of cash, property or securities
of the Guarantor or Allied, as the case may be, applicable to Senior Debt of
such Guarantor or Allied, as the case may be.
Because Allied is a holding company, the rights of its creditors, including
the Holders of the AWNA Debt Securities in the event the Guarantees are
enforced, to share in the distribution of the assets of any subsidiary upon the
subsidiary's liquidation or recapitalization will be subject to the prior claims
of the subsidiary's creditors, except to the extent Allied may itself be a
creditor with recognized claims against the subsidiary. See "-- General" above.
DEFEASANCE AND COVENANT DEFEASANCE
Defeasance and Discharge. Unless otherwise provided in the applicable
Prospectus Supplement relating to the Debt Securities of a particular series,
Allied or AWNA, as the case may be, will be discharged from any and all
obligations in respect of the Debt Securities of, or within, any series (except
for certain obligations to register the transfer or exchange of Debt Securities,
to replace stolen, lost or mutilated Debt Securities, to convert or exchange
Debt Securities, to maintain paying agencies and to hold monies for payment in
trust) upon the deposit with the relevant Trustee, in trust, of money and/or
Government Obligations which through the payment of interest and principal in
respect thereof in accordance with their terms will provide money in an amount
sufficient to pay (x) the principal of, premium, if any, and each installment of
interest on such Debt Securities at the maturity of such payments and (y) any
mandatory sinking fund payments applicable to such series on the day on which
such payments are due and payable in accordance with the terms of the applicable
Indenture and such Debt Securities. (Sections 3.1 and 4.4 of each Indenture)
Such a trust may only be established if, among other things, Allied or AWNA, as
the case may be, has received from, or there has been published by, the Internal
Revenue Service a ruling or there has been a change in law, which in the Opinion
of Counsel provides that Holders of the Notes 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; (ii) no Event of Default (or event
that with the passing of time or the giving of notice, or both, will constitute
an Event of Default) shall have occurred or be continuing; (iii) Allied or AWNA,
as the case may be, has delivered to the Trustee an Opinion of Counsel to the
effect that such deposit shall not cause the Trustee or the Trust so created to
be subject to the Investment Company Act of 1940; and (iv) certain other
customary conditions precedent are satisfied. (Section 4.6 of the Indenture)
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Defeasance of Certain Covenants and Certain Events of Default. Unless
otherwise provided in the applicable Prospectus Supplement relating to the Debt
Securities of a particular series, upon the deposit with the relevant Trustee,
in trust, of money and/or Government Obligations which through the payment of
interest and principal in respect thereof in accordance with their terms will
provide money in an amount sufficient to pay the principal of, premium, if any,
and each installment of interest on such Debt Securities at the maturity of (x)
such payments and (y) any mandatory Sinking Fund payments applicable to such
series on the day on which such payments are due and payable in accordance with
the terms of such Indenture and such Debt Securities, Allied, or AWNA and the
Guarantors, as the case may be, may omit to comply with certain covenants
applicable to the Debt Securities of, or within, any series and the occurrence
of any Event of Default described in clause (d) or clause (e) under the caption
"Events of Default, Notice and Certain Rights on Default" above or any
additional Event of Default established with respect to such series of Debt
Securities pursuant to Section 3.1 of the applicable Indenture, shall not be
deemed to be a Default or Event of Default under such Indenture and such Debt
Securities. The obligations of Allied, or AWNA and the Guarantors, as the case
may be, under such Indenture and such Debt Securities, other than with respect
to the covenants referred to above, and the Events of Default, other than the
Events of Default referred to above, shall remain in full force and effect.
(Sections 3.1 and 4.5 of each Indenture) Such a trust may only be established
if, among other things, Allied or AWNA, as the case may be, (i) has delivered to
the Trustee an Opinion of Counsel to the effect that the Holders of the Notes
will not recognize gain or loss for Federal income tax purposes as a result of
such deposit and 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 defeasance had not occurred; (ii) no Event of Default
(or event that with the passing of time or the giving of notice, or both, will
constitute an Event of Default) shall have occurred or be continuing; (iii)
Allied or AWNA, as the case may be, has delivered to the Trustee an Opinion of
Counsel to the effect that such deposit shall not cause the Trustee or the trust
so created to be subject to the Investment Company Act of 1940; and (iv) certain
other customary conditions precedent are satisfied. (Section 4.6 of the
Indenture)
In addition, with respect to the Senior Subordinated Indenture, in order to
be discharged or omit compliance with certain covenants as described above, no
default in the payment of principal of, premium, if any, or interest on any
Senior Debt shall have occurred and be continuing and no other event of default
with respect to the Senior Debt shall have occurred and be continuing and shall
have resulted in such Senior Debt becoming or being declared due and payable
prior to the date it would have become due and payable. (Section 4.6 of the
Senior Subordinated Indenture)
In the event Allied, or AWNA and the Guarantors, as the case may be,
exercise its or their option to omit compliance with certain covenants of the
Indenture with respect to such Debt Securities as described in the preceding
paragraphs and such Debt Securities are declared due and payable because of the
occurrence of any Event of Default other than an Event of Default described in
clause (d) or (e) under the caption "Events of Default, Notice and Certain
Rights on Default" above, the amount of money and Government Obligations on
deposit with the relevant Trustee will be sufficient to pay amounts due on such
Debt Securities at the time of their stated maturity but may not be sufficient
to pay amounts due on such Debt Securities at the time of the acceleration
resulting from such Event of Default. However, Allied, or AWNA and the
Guarantors, as the case may be, would remain liable for any such deficiency.
NOTICES
Notices to holders of registered Debt Securities will be given by mail to
the addresses of such holders as they may appear in the Register. Notes to
holders of Bearer Securities will be sufficiently given if published twice in
any newspaper authorized by the applicable Indenture in New York, New York and
in such other cities, if any, as shall be specified for such series. (Section
1.6 of each Indenture)
OWNER OF DEBT SECURITIES
Unless otherwise provided in the applicable Prospectus Supplement relating
to the Debt Securities of a particular series, Allied, or AWNA and the
Guarantors, as the case may be, the applicable Trustee and any agent of Allied,
or AWNA and the Guarantors, as the case may be, or the applicable Trustee, may
treat the person in whose name a Debt Security in registered form is registered,
and may treat the bearer of a Debt
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Security in bearer form, as the absolute owner thereof (whether or not such Debt
Security may be overdue) for the purpose of receiving payment and for all other
purposes. (Section 3.8 of each Indenture)
GOVERNING LAW
The Indentures and the Debt Securities will be governed by, and construed
in accordance with, the laws of the State of New York. (Section 1.12 of each
Indenture)
THE TRUSTEE
First Trust National Association, a national banking association, is the
Trustee under each of the Indentures. First Trust National Association is also
the Trustee under the Indenture dated as of May 15, 1997 (the "11.30%
Indenture") relating to Allied's 11.30% Senior Discount Notes due 2007 and the
Indenture dated as of December 1, 1996 (the "10 1/4% Indenture") relating to
AWNA's 10 1/4% Senior Subordinated Notes due 2006. Pursuant to the provisions of
the TIA, upon a default under any of the Senior Indentures, the Subordinated
Indentures, the 11.30% Indenture or the 10 1/4% Indenture, First Trust National
Association may be deemed to have a conflicting interest, by virtue of its
acting as the Trustee under each of the Indentures, thereby requiring it to
resign and be replaced by a successor Trustee under one or more of the
Indentures, the 11.30% Indenture or the 10 1/4% Indenture.
DESCRIPTION OF WARRANTS
Allied may issue Warrants, including Warrants to purchase Allied Debt
Securities ("Debt Warrants"), Preferred Stock or Common Stock. Warrants may be
issued independently or together with any such securities of Allied and may be
attached to or separate from such securities of Allied. The Warrants are to be
issued under warrant agreements (each a "Warrant Agreement") to be entered into
between Allied and a bank or trust company, as warrant agent (the "Warrant
Agent"), all as shall be set forth in the Prospectus Supplement relating to
Warrants being offered pursuant thereto. The description of the terms of the
Warrants that are set forth below and that will be set forth in the applicable
Prospectus Supplement do not purport to be complete and are qualified in their
entirety by reference to the Warrant Agreement and warrant certificate relating
to such Warrants.
DEBT WARRANTS
The applicable Prospectus Supplement will describe the terms of Debt
Warrants offered thereby, the Warrant Agreement relating to such Debt Warrants
and the warrant certificates representing such Debt Warrants, including the
following: (i) the specific designation of such Debt Warrants; (ii) the Debt
Securities of Allied for which such Debt Warrants are exercisable; (iii) the
aggregate number of such Debt Warrants; (iv) the principal amount of Debt
Securities purchasable upon exercise of each Debt Warrant, and the price or
prices at which such Debt Warrants will be issued; (v) the procedures and
conditions relating to the exercise of such Debt Warrants; (vi) the designation
and terms of any related Debt Securities of Allied with which such Debt Warrants
are issued, and the number of such Debt Warrants issued with each such Debt
Security; (vii) the date, if any, on and after which such Debt Warrants and the
related securities of Allied will be separately transferable; (viii) the date on
which the right to exercise such Debt Warrants shall commence, and the date on
which such right shall expire; (ix) the maximum or minimum number of such Debt
Warrants which may be exercised at any time; (x) if applicable, a discussion of
material United States Federal income tax considerations; (xi) any other terms
of such Debt Warrants and terms, procedures and limitations relating to the
exercise of such Debt Warrants; and (xii) the terms of the securities of Allied
purchasable upon exercise of such Debt Warrants. Prior to the exercise of their
Debt Warrants, holders of Debt Warrants exercisable for Debt Securities will not
have any of the rights of holders of the Debt Securities purchasable upon such
exercise and will not be entitled to payments of principal (or premium, if any)
or interest, if any, on the Debt Securities purchasable upon such exercise.
26
<PAGE> 30
OTHER WARRANTS
Allied may issue other Warrants. The applicable Prospectus Supplement will
describe the following terms of any such other Warrants in respect of which this
Prospectus is being delivered: (i) the title of such Warrants; (ii) the
securities (whether Preferred Stock or Common Stock) for which such Warrants are
exercisable; (iii) the price or prices at which such Warrants will be issued;
(iv) if applicable, the designation and terms of the Preferred Stock or Common
Stock with which such Warrants are issued, and the number of such Warrants
issued with each such share of Preferred Stock or Common Stock; (v) if
applicable, the date on and after which such Warrants and the related Preferred
Stock or Common Stock will be separately transferable; (vi) if applicable, a
discussion of material United States Federal income tax considerations; and
(vii) any other terms of such Warrants, including terms, procedures and
limitations relating to the exchange and exercise of such Warrants. The
applicable Prospectus Supplement will also set forth (a) the amount of
securities called for by such Warrants, and, if applicable, the amount of
Warrants outstanding, and (b) information relating to provisions, if any, for a
change in the exercise price or the expiration date of such Warrants and the
kind, frequency and timing of any notice to be given. Prior to the exercise of
their Warrants for shares of Preferred Stock or Common Stock, holders of such
Warrants will not have any rights of holders of the Preferred Stock or Common
Stock purchasable upon such exercise and will not be entitled to dividend
payments, if any, or voting rights of the Preferred Stock or Common Stock
purchasable upon such exercise.
EXERCISE OF WARRANTS
Each Warrant will entitle the holder thereof to purchase for cash or other
consideration such principal amount or such number of securities of Allied, at
such exercise price as shall in each case be set forth in, or be determinable as
set forth in, the Prospectus Supplement relating to the Warrants offered
thereby. Warrants may be exercised as set forth in the Prospectus Supplement
relating to the Warrants offered thereby at any time up to the close of business
on the expiration date set forth in such Prospectus Supplement. After the close
of business on the expiration date (or such later expiration date as may be
extended by Allied), unexercised Warrants will become void.
Upon receipt of payment and the warrant certificate properly completed and
duly executed at the corporate trust office of the Warrant Agent or any other
office indicated in the applicable Prospectus Supplement, Allied will, as soon
as practicable, forward the securities purchasable upon such exercise. If less
than all of the Warrants represented by such warrant certificate are exercised,
a new warrant certificate will be issued for the remaining Warrants.
MODIFICATIONS
Each Warrant Agreement and the terms of the Warrants and the Warrant
Certificates issued thereunder may be amended by Allied and the applicable
Warrant Agent, without the consent of the holders, for the purpose of curing any
ambiguity, or of curing, correcting or supplementing any defective or
inconsistent provision therein or in any other manner which Allied may deem
necessary or desirable and which will not adversely affect the interests of the
holders in any material respect.
PLAN OF DISTRIBUTION
Allied or AWNA may sell Securities to or through one or more underwriters
or dealers and also may sell Securities directly to institutional investors or
other purchasers, or through agents.
The distribution of the Securities may be effected from time to time in one
or more transactions at a fixed price or prices, which may be changed, or at
market prices prevailing at the time of sale, at prices related to such
prevailing market prices or at negotiated prices.
In connection with the sale of Securities, underwriters or agents may
receive compensation from Allied or AWNA or from purchasers of Securities for
whom they may act as agents in the form of discounts, concessions or
commissions. Underwriters may sell Securities to or through dealers, and such
dealers may
27
<PAGE> 31
receive compensation in the form of discounts, concessions or commissions from
the underwriters and/or commissions from the purchasers for whom they may act as
agents. Underwriters, dealers and agents that participate in the distribution of
Securities may be deemed to be underwriters, and any discounts or commissions
received by them from Allied and any profit on the resale of Securities by them
may be deemed to be underwriting discounts and commissions, under the Securities
Act. Any such underwriter or agent will be identified, and any such compensation
received from Allied or AWNA will be described, in the related Prospectus
Supplement.
Under agreements which may be entered into by Allied and/or AWNA,
underwriters and agents who participate in the distribution of Securities may be
entitled to indemnification by Allied and AWNA against certain liabilities,
including liabilities under the Securities Act.
If so indicated in the related Prospectus Supplement, Allied or AWNA will
authorize underwriters or other persons acting as Allied's or AWNA's agents to
solicit offers by certain institutions to purchase Securities from Allied or
AWNA pursuant to contracts providing for payment and delivery on a future date.
Institutions with which such contracts may be made include commercial and
savings banks, insurance companies, pension funds, investment companies,
educational and charitable institutions and others, but in all cases such
institutions must be approved by Allied or AWNA. The obligations of any
purchaser under any such contract will be subject to the condition that the
purchase of the Securities shall not at the time of delivery be prohibited under
the laws of the jurisdiction to which such purchaser is subject. The
underwriters and such other agents will not have any responsibility in respect
of the validity or performance of such contracts.
Certain of the underwriters or agents and their associates may engage in
transactions with and perform services for Allied, AWNA or their respective
affiliates in the ordinary course of their respective businesses.
The Securities may or may not be listed on a national securities exchange
or Nasdaq (other than the Common Stock, which is listed on the Nasdaq National
Market tier of Nasdaq). Any Common Stock sold pursuant to a Prospectus
Supplement will be listed on the Nasdaq National Market tier of Nasdaq. No
assurances can be given that there will be an active trading market for the
Securities.
VALIDITY OF SECURITIES
The validity of the Securities will be passed upon for Allied. AWNA and the
Guarantors by Fried, Frank, Harris, Shriver & Jacobson, a partnership including
professional corporations, New York, New York, and for the underwriters, dealers
or agents, if any, by Sullivan & Cromwell, New York, New York.
EXPERTS
The audited consolidated financial statements of Allied incorporated by
reference in this Prospectus and elsewhere in the Registration Statement have
been audited by Arthur Andersen LLP, independent public accountants, as
indicated in their report with respect thereto, and are incorporated by
reference in reliance upon the authority of said firm as experts in giving said
report.
The audited consolidated financial statement of Laidlaw Solid Waste
Management Group incorporated by reference in this Prospectus and elsewhere in
the Registration Statement have been audited by Coopers & Lybrand, independent
public accountants, as indicated in their report with respect thereto, and are
incorporated herein by reference in reliance upon the authority of said firm as
experts in accounting and auditing.
28
<PAGE> 32
======================================================
NO DEALER, SALESPERSON OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED OR
INCORPORATED BY REFERENCE IN THIS PROSPECTUS OR IN ANY PROSPECTUS SUPPLEMENT IN
CONNECTION WITH THE OFFERING COVERED BY THIS PROSPECTUS AND ANY PROSPECTUS
SUPPLEMENT. IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE
RELIED UPON AS HAVING BEEN AUTHORIZED. THIS PROSPECTUS AND ANY PROSPECTUS
SUPPLEMENT DO NOT CONSTITUTE AN OFFER TO SELL, OR THE SOLICITATION OF AN OFFER
TO BUY ANY SECURITIES OTHER THAN THOSE TO WHICH THEY RELATE, IN ANY JURISDICTION
WHERE, OR TO ANY PERSON TO WHOM, IT IS UNLAWFUL TO MAKE SUCH OFFER OR
SOLICITATION. NEITHER THE DELIVERY OF THIS PROSPECTUS OR ANY PROSPECTUS
SUPPLEMENT NOR ANY SALE MADE HEREUNDER OR THEREUNDER SHALL, UNDER ANY
CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THERE HAS NOT BEEN ANY CHANGE IN THE
FACTS SET FORTH IN THIS PROSPECTUS OR IN ANY PROSPECTUS SUPPLEMENT OR IN THE
AFFAIRS OF ALLIED OR AWNA SINCE THE DATE HEREOF OR THEREOF.
------------------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Available Information................. 2
Incorporation of Certain Documents by
Reference........................... 3
Use of Proceeds....................... 3
Risk Factors.......................... 4
Ratio of Earnings to Fixed Charges and
Earnings to Fixed Charges and
Preferred Stock Dividends........... 10
Description of Capital Stock.......... 10
Description of Debt Securities and
Guarantees.......................... 13
Description of Warrants............... 26
Plan of Distribution.................. 27
Validity of Securities................ 28
Experts............................... 28
</TABLE>
======================================================
======================================================
ALLIED WASTE
INDUSTRIES, INC.
COMMON STOCK, PREFERRED STOCK, DEBT SECURITIES AND WARRANTS
ALLIED WASTE
NORTH AMERICA, INC.
DEBT SECURITIES
PAYMENT OF PRINCIPAL, PREMIUM, IF ANY, AND INTEREST UNCONDITIONALLY GUARANTEED
BY ALLIED WASTE INDUSTRIES, INC. AND SUBSIDIARY GUARANTORS
LOGO
--------------------
PROSPECTUS
--------------------
, 1997
======================================================
<PAGE> 33
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION*
<TABLE>
<S> <C>
SEC registration fee..................................................... $ 242,424
Nasdaq listing fee....................................................... $ 17,500
Blue sky fees and expenses............................................... $ 15,000
Legal fees and expenses.................................................. $ 500,000
Accounting fees and expenses............................................. $ 150,000
Printing and engraving expenses.......................................... $ 250,000
Transfer agent and registrar fees and expenses........................... $ 10,000
Trustees' fees and expenses.............................................. $ 15,000
Rating agency fees....................................................... $ 100,000
Miscellaneous............................................................ $ 50,076
----------
Total.......................................................... $1,350,000
=========
</TABLE>
- ---------------
* Except for the SEC registration fee, all of the foregoing expenses have been
estimated.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law permits a corporation
to indemnify any person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative, by reason of the fact
that he is or was a director, officer, employee or agent of the corporation or
is or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise against expenses, judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such
action. In an action brought to obtain a judgment in the corporation's favor,
whether by the corporation itself or derivatively by a stockholder, the
corporation may only indemnify for expenses, including attorney's fees, actually
and reasonably incurred in connection with the defense or settlement of such
action, and the corporation may not indemnify for amounts paid in satisfaction
of a judgment or in settlement of the claim. In any such action, no
indemnification may be paid in respect of any claim, issue or matter as to which
such person shall have been adjudged liable to the corporation except as
otherwise approved by the Delaware Court of Chancery or the court in which the
claim was brought. In any other type of proceeding, the indemnification may
extend to judgments, fines and amounts paid in settlement, actually and
reasonably incurred in connection with such other proceeding, as well as to
expenses.
The statute does not permit indemnification unless the person seeking
indemnification has acted in good faith and in a manner reasonably believed to
be in, or not opposed to, the best interests of the corporation and, in the case
of criminal actions or proceedings, the person had no reasonable cause to
believe his conduct was unlawful. The statute contains additional limitations
applicable to criminal actions and to actions brought by or in the name of the
corporation. The determination as to whether a person seeking indemnification
has met the required standard of conduct is to be made (1) by a majority vote of
a quorum of disinterested members of the board of directors, (2) by independent
legal counsel in a written opinion, if such a quorum does not exist or if the
disinterested directors so direct, or (3) by the stockholders.
Allied's Certificate of Incorporation and Bylaws require Allied to
indemnify its directors to the fullest extent permitted under Delaware law.
Pursuant to employment agreements entered into by Allied with its executive
officers and certain other key employees, Allied must indemnify such officers
and employees in the same manner and to the same extent that Allied is required
to indemnify its directors under Allied's Bylaws. Allied's Certificate limits
the personal liability of a director to the corporation or its stockholders to
damages for breach of the director's fiduciary duty.
II-1
<PAGE> 34
Allied has purchased insurance on behalf of its directors and officers
against certain liabilities that may be asserted against, or incurred by, such
persons in their capacities as directors or officers of the registrant, or that
may arise out of their status as directors or officers of the registrant,
including liabilities under the federal and state securities laws. Allied has
entered into indemnification agreements to indemnify its directors to the extent
permitted under Delaware law.
ITEM 16. EXHIBITS
The following is a list of all the exhibits filed as part of the
Registration Statement.
<TABLE>
<CAPTION>
NUMBER DESCRIPTION
- -------- ------------------------------------------------------------------------------------
<S> <C>
4.1 -- Restated Certificate of Incorporation of Allied (Incorporated herein by reference to
Exhibit 3.1 to Allied's report on Form 10-K/A-2 for the fiscal year ended December
31, 1996).
4.2 -- Amended and Restated Bylaws of Allied (Incorporated herein by reference to Exhibit
10.1 to Allied's Quarterly Report on Form 10-Q for the quarter ended September 30,
1996).
4.3 -- Form of Senior Indenture between Allied and First Trust National Association, as
trustee.
4.4 -- Form of Senior Subordinated Indenture between Allied and First Trust National
Association, as trustee.
4.5 -- Form of Senior Indenture by and among AWNA, Allied, as guarantor, the Subsidiary
Guarantors named therein and First Trust National Association, as trustee.
4.6 -- Form of Senior Subordinated Indenture by and among AWNA, Allied, as guarantor, the
Subsidiary Guarantors named therein and First Trust National Association, as
trustee.
5.1 -- Opinion of Fried, Frank, Harris, Shriver & Jacobson, counsel to Allied and AWNA, as
to the legality of the securities being offered.
12.1 -- Statement regarding computation of ratios of earnings to fixed charges (incorporated
by reference to Exhibit 12 to Allied's Annual Report on Form 10-K for the fiscal
year ended December 31, 1996 and to Exhibit 12 to Allied's Quarterly Report on Form
10-Q for the quarter ended March 31, 1997).
12.2 -- Statement regarding computation of ratios of earnings to fixed charges and preferred
stock dividends.*
23.1 -- Consent of Arthur Andersen LLP.
23.2 -- Consent of Coopers & Lybrand.
23.3 -- Consent of Fried, Frank, Harris, Shriver & Jacobson (included in Exhibit 5.1).
24.1 -- Powers of Attorney for Allied and AWNA relating to subsequent amendments.*
24.2 -- Power of Attorney for the Subsidiary Guarantors relating to subsequent amendments
(included on page II-8 of this Registration Statement).
25.1 -- Form T-1 Statement of Eligibility Under Trust Indenture Act of 1939 of First Trust
National Association (separately bound).
25.2 -- Form T-1 Statement of Eligibility Under Trust Indenture Act of 1939 of First Trust
National Association (separately bound).
25.3 -- Form T-1 Statement of Eligibility Under Trust Indenture Act of 1939 of First Trust
National Association (separately bound).
25.4 -- Form T-1 Statement of Eligibility Under Trust Indenture Act of 1939 of First Trust
National Association (separately bound).
</TABLE>
- ---------------
* Previously filed.
II-2
<PAGE> 35
ITEM 17. UNDERTAKINGS
(a) The undersigned Allied and AWNA (the "Registrants") hereby undertake:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of this Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in this Registration Statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the
maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement; and
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in this Registration Statement
or any material change to such information in this Registration
Statement;
provided, however, that the undertakings set forth in paragraphs (1) (i)
and (ii) above do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic
reports filed by the Registrants pursuant to Section 13 or Section 15(d) of
the Securities Exchange Act of 1934 that are incorporated by reference in
this Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) Each of the undersigned Registrants hereby undertakes that, for
purposes of determining any liability under the Securities Act of 1933, each
filing of Allied's annual report pursuant to Section 13(a) or Section 15(d) of
the Securities Exchange Act of 1934 that is incorporated by reference in this
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered herein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the Registrants pursuant to the provisions permitted under Item 15 above or
otherwise, the Registrants have been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public policy
as expressed in the Securities Act of 1933 and is, therefore, unenforceable. In
the event that a claim for indemnification against such liabilities (other than
the payment by the Registrants of expenses incurred or paid by a director,
officer or controlling person of the Registrants in the successful defense of
any action, suit or proceeding) is asserted against the Registrants by such
director, officer or controlling person in connection with the securities being
registered hereby, the Registrants will, unless in the opinion of their counsel
the matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by them is
against public policy as expressed in the Securities Act of 1933 and will be
governed by the final adjudication of such issue.
II-3
<PAGE> 36
(d) Each of the undersigned Registrants hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as part
of this Registration Statement in reliance upon Rule 430A and contained in
a form of prospectus filed by the Registrants pursuant to Rule 424(b)(1) or
(4) or 497(h) under the Securities Act of 1933 shall be deemed to be part
of this Registration Statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
(e) Each of the undersigned Registrants hereby undertakes to file an
application for the purpose of determining the eligibility of each of the
Trustees to act under subsection (a) of Section 310 of the Trust Indenture Act
in accordance with the rules and regulations prescribed by the Commission under
Section 305(b)(2) of the Trust Indenture Act.
II-4
<PAGE> 37
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Allied Waste
Industries, Inc. certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-3 and it has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Scottsdale, State of Arizona, on the 8th day of
August, 1997.
Allied Waste Industries, Inc.
By: /s/ PETER S. HATHAWAY
------------------------------------
Peter S. Hathaway
Vice President -- Chief Accounting
Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on August 8, 1997.
<TABLE>
<CAPTION>
SIGNATURE TITLE
- ------------------------------------------ -------------------------------------------------
<C> <S>
* Chairman of the Board of Directors
- ------------------------------------------
Roger A. Ramsey
* Director, President and Chief Executive Officer
- ------------------------------------------ (Principal Executive Officer)
Thomas H. Van Weelden
* Vice President -- Chief Financial Officer
- ------------------------------------------ (Principal Financial Officer)
Henry L. Hirvela
/s/ PETER S. HATHAWAY Vice President -- Chief Accounting Officer
- ------------------------------------------ (Principal Accounting Officer)
Peter S. Hathaway
* Director
- ------------------------------------------
Nolan Lehmann
* Director
- ------------------------------------------
Alan B. Shepard
* Director
- ------------------------------------------
Brian A. O'Leary
* Director
- ------------------------------------------
Michael Gross
</TABLE>
II-5
<PAGE> 38
<TABLE>
<CAPTION>
SIGNATURE TITLE
- ------------------------------------------ -------------------------------------------------
<C> <S>
* Director
- ------------------------------------------
David B. Kaplan
* Director
- ------------------------------------------
Antony P. Ressler
Director
- ------------------------------------------
Howard A. Lipson
Director
- ------------------------------------------
Dennis Hendrix
Director
- ------------------------------------------
Warren B. Redman
Director
- ------------------------------------------
Vincent Tese
*By /s/ PETER S. HATHAWAY
- ------------------------------------------
Peter S. Hathaway
Attorney-in-fact
</TABLE>
II-6
<PAGE> 39
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Allied Waste
North America, Inc. certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-3 and it has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Scottsdale, State of Arizona, on the 8th day of
August, 1997.
Allied Waste North America, Inc.
By: /s/ PETER S. HATHAWAY
------------------------------------
Peter S. Hathaway
Vice President -- Chief Accounting
Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on August 8, 1997.
<TABLE>
<CAPTION>
SIGNATURE TITLE
- ------------------------------------------ -------------------------------------------------
<C> <S>
* Chairman of the Board of Directors and Chief
- ------------------------------------------ Executive Officer (Principal Executive Officer)
Roger A. Ramsey
* Director, President and Chief Operating Officer
- ------------------------------------------
Thomas H. Van Weelden
* Director, Vice President -- Chief Financial
- ------------------------------------------ Officer
Henry L. Hirvela (Principal Financial Officer)
/s/ PETER S. HATHAWAY Vice President -- Chief Accounting Officer
- ------------------------------------------ (Principal Accounting Officer)
Peter S. Hathaway
*By /s/ PETER S. HATHAWAY
- ------------------------------------------
Peter S. Hathaway
Attorney-in-fact
</TABLE>
II-7
<PAGE> 40
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, each of the
Subsidiary Guarantors listed on Schedule A hereto certifies that it has
reasonable grounds to believe that it meets all of the requirements for filing
on Form S-3 and it has duly caused this Registration Statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the City of
Scottsdale, State of Arizona, on the 8th day of August, 1997.
On behalf of each Subsidiary Guarantor
listed on Schedule A hereto.
By: /s/ DONALD W. SLAGER
------------------------------------
Donald W. Slager
Executive Vice President
POWER OF ATTORNEY
Each of the undersigned hereby appoints Roger A. Ramsey, Henry L. Hirvela,
Peter S. Hathaway and each of them (with full power to act alone), as attorney
and agents for the undersigned, with full power of substitution, for and in the
name, place and stead of the undersigned, to sign and file with the Commission
under the Securities Act any and all amendments and exhibits to this
Registration Statement and any and all applications, instruments and other
documents to be filed with the Commission pertaining to the registration of the
securities covered hereby, with full power and authority to do and perform any
and all acts and things whatsoever requisite or desirable.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated for each of the Subsidiary Guarantors listed on Schedule A
hereto on August 8, 1997.
<TABLE>
<CAPTION>
SIGNATURE TITLE
- ------------------------------------------ -------------------------------------------------
<C> <S>
/s/ DONALD W. SLAGER Executive Vice President (Principal Executive
- ------------------------------------------ Officer)
Donald W. Slager
/s/ G. THOMAS ROCHFORD, JR. Treasurer (Principal Financial Officer and
- ------------------------------------------ Principal Accounting Officer)
G. Thomas Rochford, Jr.
/s/ THOMAS H. VAN WEELDEN Director
- ------------------------------------------
Thomas H. Van Weelden
/s/ DANIEL J. IVAN Director
- ------------------------------------------
Daniel J. Ivan
/s/ LARRY D. HENK Director
- ------------------------------------------
Larry D. Henk
</TABLE>
II-8
<PAGE> 41
EXHIBIT INDEX
<TABLE>
<CAPTION>
NUMBER DESCRIPTION
- ------ ----------------------------------------------------------------------------------
<C> <C> <S>
4.1 -- Restated Certificate of Incorporation of Allied (Incorporated herein by reference
to Exhibit 3.1 to Allied's report on Form 10-K/A-2 for the fiscal year ended
December 31, 1996).
4.2 -- Amended and Restated Bylaws of Allied (Incorporated herein by reference to Exhibit
10.1 to Allied's Quarterly Report on Form 10-Q for the quarter ended September 30,
1996).
4.3 -- Form of Senior Indenture, between Allied and First Trust National Association, as
trustee.
4.4 -- Form of Senior Subordinated Indenture, between Allied and First Trust National
Association, as trustee.
4.5 -- Form of Senior Indenture, by and among AWNA, Allied, as guarantor, the Subsidiary
Guarantors named therein and First Trust National Association, as trustee.
4.6 -- Form of Senior Subordinated Indenture, by and among AWNA, Allied, as guarantor,
the Subsidiary Guarantors named therein and First Trust National Association, as
trustee.
5.1 -- Opinion of Fried, Frank, Harris, Shriver & Jacobson, counsel to Allied and AWNA,
as to the legality of the securities being offered.
12.1 -- Statement regarding computation of ratios of earnings to fixed charges
(incorporated by reference to Exhibit 12 to Allied's Annual Report on Form 10-K
for the fiscal year ended December 31, 1996 and to Exhibit 12 to Allied's
Quarterly Report on Form 10-Q for the quarter ended March 31, 1997).
12.2 -- Statement regarding computation of ratios of earnings to fixed charges and
preferred stock dividends.*
23.1 -- Consent of Arthur Andersen LLP.
23.2 -- Consent of Coopers & Lybrand.
23.3 -- Consent of Fried, Frank, Harris, Shriver & Jacobson (included in Exhibit 5.1).
24.1 -- Powers of Attorney for Allied and AWNA relating to subsequent amendments.*
24.2 -- Power of Attorney for the Subsidiary Guarantors relating to subsequent amendments
(included on page II-8 of this Registration Statement).
25.1 -- Form T-1 Statement of Eligibility Under Trust Indenture Act of 1939 of First Trust
National Association (separately bound).
25.2 -- Form T-1 Statement of Eligibility Under Trust Indenture Act of 1939 of First Trust
National Association (separately bound).
25.3 -- Form T-1 Statement of Eligibility Under Trust Indenture Act of 1939 of First Trust
National Association (separately bound).
25.4 -- Form T-1 Statement of Eligibility Under Trust Indenture Act of 1939 of First Trust
National Association (separately bound).
</TABLE>
- ---------------
* Previously filed.
<PAGE> 1
================================================================================
ALLIED WASTE INDUSTRIES, INC., as Issuer
to
FIRST TRUST NATIONAL ASSOCIATION, as Trustee
SENIOR INDENTURE
Dated as of , 1997
Providing for Issuance of
Senior Debt Securities in Series
================================================================================
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Reconciliation and tie between Senior Indenture, dated as of , 1997
(the "Indenture") and the Trust Indenture Act of 1939, as amended.
Trust Indenture Act Indenture
of 1939 Section Section
- --------------------------------------------------------------------------------
310(a)(1).......................................................6.9
(a)(2).................................................6.9
(a)(3).................................................TIA
(a)(4).................................................Not Applicable
(a)(5).................................................TIA
(b)....................................................6.8; 6.10; TIA
311(a)..........................................................TIA
(b)....................................................TIA
312(a)..........................................................10.1
(b)....................................................TIA
(c)....................................................TIA
313(a)..........................................................10.3; TIA
(b)....................................................TIA
(c)....................................................TIA
(d)....................................................TIA
314(a)..........................................................10.4; TIA
(b)....................................................Not Applicable
(c)(1).................................................1.2
(c)(2).................................................1.2
(c)(3).................................................Not Applicable
(d)....................................................Not Applicable
(e)....................................................TIA
(f)....................................................TIA
315(a)..........................................................6.1
(b)....................................................6.2
(c)....................................................6.1
(d)(1).................................................TIA
(d)(2).................................................TIA
(d)(3).................................................TIA
(e)....................................................TIA
316(a)(last sentence)...........................................1.1
(a)(1)(A)..............................................5.2; 5.8
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(a)(1)(B)..............................................5.7
(b)....................................................5.9; 5.10
(c)....................................................TIA
317(a)(1).......................................................5.3
(a)(2).................................................5.4
(b)....................................................9.3
318(a)..........................................................1.12
(b)....................................................TIA
(c)....................................................1.12; TIA
This reconciliation and tie section does not constitute part of the Indenture.
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TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S> <C>
Recitals .......................................................................................... 1
ARTICLE 1 Definitions and Other Provisions of General Application................................ 1
Section 1.1. Definitions................................................................ 1
Section 1.2. Compliance Certificates and Opinions....................................... 12
Section 1.3. Form of Documents Delivered to Trustee..................................... 13
Section 1.4. Acts of Holders............................................................ 13
Section 1.5. Notices, Etc., to Trustee and Company...................................... 16
Section 1.6. Notice to Holders; Waiver.................................................. 16
Section 1.7. Headings and Table of Contents............................................. 17
Section 1.8. Successor and Assigns...................................................... 17
Section 1.9. Separability............................................................... 17
Section 1.10. Benefits of Indenture..................................................... 17
Section 1.11. Incorporators, Stockholders, Officers and Directors of the Company
Exempt from Individual Liability...................................... 18
Section 1.12. Governing Law; Conflict with Trust Indenture Act.......................... 18
Section 1.13. Legal Holidays............................................................ 18
Section 1.14. Moneys of Different Currencies to Be Segregated........................... 19
Section 1.15. Independence of Covenants................................................. 19
Section 1.16. Counterparts.............................................................. 19
ARTICLE 2 Security Forms......................................................................... 19
Section 2.1. Forms Generally............................................................ 19
Section 2.2. Form of Trustee's Certificate of Authentication............................ 20
Section 2.3. Securities in Global Form.................................................. 20
Section 2.4. Form of Legend for Securities in Global Form............................... 21
ARTICLE 3 The Securities......................................................................... 21
Section 3.1. Amount Unlimited; Issuable in Series....................................... 21
Section 3.2. Denominations.............................................................. 26
Section 3.3. Execution, Authentication, Delivery and Dating............................. 26
Section 3.4. Temporary Securities....................................................... 30
Section 3.5. Registration, Transfer and Exchange........................................ 30
Section 3.6. Replacement Securities..................................................... 35
Section 3.7. Payment of Interest; Interest Rights Preserved............................. 36
Section 3.8. Persons Deemed Owners...................................................... 38
Section 3.9. Cancellation............................................................... 39
</TABLE>
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<TABLE>
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Section 3.10. Computation of Interest................................................... 40
Section 3.11. CUSIP Numbers............................................................. 40
Section 3.12. Currency and Manner of Payment in Respect of Securities................... 40
ARTICLE 4 Satisfaction, Discharge and Defeasance................................................. 40
Section 4.1. Termination of Company's Obligations Under the Indenture................... 40
Section 4.2. Application of Trust Funds................................................. 42
Section 4.3. Applicability of Defeasance Provisions; Company's Option to Effect
Defeasance or Covenant Defeasance..................................... 42
Section 4.4. Defeasance and Discharge................................................... 43
Section 4.5. Covenant Defeasance........................................................ 43
Section 4.6. Conditions to Defeasance or Covenant Defeasance............................ 44
Section 4.7. Deposited Money and Government Obligations to Be Held in Trust............. 46
Section 4.8. Repayment to Company....................................................... 46
Section 4.9. Indemnity for Government Obligations....................................... 47
Section 4.10. Reinstatement............................................................. 47
ARTICLE 5 Defaults and Remedies.................................................................. 47
Section 5.1. Events of Default.......................................................... 47
Section 5.2. Acceleration; Rescission and Annulment..................................... 50
Section 5.3. Collection of Indebtedness and Suits for Enforcement by Trustee............ 51
Section 5.4. Trustee May File Proofs of Claim........................................... 52
Section 5.5. Trustee May Enforce Claims Without Possession of Securities................ 52
Section 5.6 Delay or Omission Not Waiver................................................ 52
Section 5.7. Waiver of Past Defaults.................................................... 53
Section 5.8. Control by Majority........................................................ 53
Section 5.9. Limitation on Suits by Holders............................................. 53
Section 5.10. Rights of Holders to Receive Payment...................................... 54
Section 5.11. Application of Money Collected............................................ 54
Section 5.12. Restoration of Rights and Remedies........................................ 55
Section 5.13. Rights and Remedies Cumulative............................................ 55
Section 5.14. Undertaking for Costs..................................................... 56
Section 5.15. Waiver of Stay, Extension or Usury Laws................................... 56
ARTICLE 6 The Trustee............................................................................ 56
</TABLE>
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<TABLE>
<S> <C>
Section 6.1. Certain Duties and Responsibilities........................................ 56
Section 6.2. Notice of Defaults......................................................... 57
Section 6.3. Certain Rights of Trustee.................................................. 57
Section 6.4. Not Responsible for Recitals or Issuance of Securities..................... 58
Section 6.5. May Hold Securities........................................................ 58
Section 6.6. Money Held in Trust........................................................ 58
Section 6.7. Compensation and Reimbursement............................................. 59
Section 6.8. Conflicting Interests...................................................... 59
Section 6.9. Corporate Trustee Required; Eligibility.................................... 60
Section 6.10. Resignation and Removal; Appointment of Successor......................... 60
Section 6.11. Acceptance of Appointment by Successor.................................... 62
Section 6.12. Merger, Conversion, Consolidation or Succession to Business............... 63
Section 6.13. Preferential Collection of Claims Against Company......................... 63
Section 6.14. Appointment of Authenticating Agent....................................... 63
ARTICLE 7 Consolidation, Merger or Sale of Assets by the Company................................ 65
Section 7.1. Consolidation, Merger or Sale of Assets Permitted.......................... 65
ARTICLE 8 Supplemental Indentures............................................................... 66
Section 8.1. Supplemental Indentures Without Consent of Holders......................... 66
Section 8.2. Supplemental Indentures With Consent of Holders............................ 68
Section 8.3. Compliance with Trust Indenture Act........................................ 69
Section 8.4. Execution of Supplemental Indentures....................................... 69
Section 8.5. Effect of Supplemental Indentures.......................................... 70
Section 8.6. Reference in Securities to Supplemental Indentures......................... 70
Section 8.7. Notice of Supplemental Indentures.......................................... 70
ARTICLE 9 Covenants............................................................................. 70
Section 9.1. Payment of Principal, Premium, if any, and Interest........................ 70
Section 9.2. Maintenance of Office or Agency............................................ 71
Section 9.3. Money for Securities Payments to Be Held in Trust; Unclaimed Money......... 72
Section 9.4. Corporate Existence........................................................ 74
Section 9.5. Annual Review Certificate.................................................. 74
Section 9.6. Waiver of Certain Covenants................................................ 74
ARTICLE 10 Holders' Lists and Reports by Trustee and Company..................................... 75
</TABLE>
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<TABLE>
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Section 10.1. Company to Furnish Trustee Names and Addresses of Holders................. 75
Section 10.2. Preservation of Information, Communications to Holders.................... 75
Section 10.3. Reports by Trustee........................................................ 75
Section 10.4. Reports by the Company.................................................... 76
ARTICLE 11 Redemption............................................................................ 76
Section 11.1. Applicability of Article.................................................. 76
Section 11.2. Election to Redeem; Notice to Trustee..................................... 76
Section 11.3. Selection of Securities to Be Redeemed.................................... 77
Section 11.4. Notice of Redemption...................................................... 77
Section 11.5. Deposit of Redemption Price............................................... 79
Section 11.6. Securities Payable on Redemption Date..................................... 79
Section 11.7. Securities Redeemed in Part............................................... 80
ARTICLE 12 Sinking Funds......................................................................... 80
Section 12.1. Applicability of Article.................................................. 80
Section 12.2. Satisfaction of Sinking Fund Payments with Securities..................... 81
Section 12.3. Redemption of Securities for Sinking Fund................................. 81
ARTICLE 13 Meetings of Holders of Securities..................................................... 82
Section 13.1. Purposes for Which Meetings May Be Called................................. 82
Section 13.2. Call, Notice and Place of Meetings........................................ 82
Section 13.3. Persons Entitled to Vote at Meetings...................................... 82
Section 13.4. Quorum; Action............................................................ 82
Section 13.5. Determination of Voting Rights; Conduct and Adjournment of Meetings....... 84
Section 13.6. Counting Votes and Recording Action of Meetings........................... 85
ARTICLE 14 Conversion or Exchange of Securities.................................................. 85
Section 14.1. Applicability of Article.................................................. 85
Section 14.2. Exercise of Conversion or Exchange Privilege.............................. 86
Section 14.3. No Fractional Equity Securities........................................... 87
Section 14.4. Adjustment of Conversion or Exchange Price; Consolidation or Merger....... 88
Section 14.5. Notice of Certain Corporate Actions....................................... 88
Section 14.6. Reservation of Equity Securities.......................................... 89
</TABLE>
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<TABLE>
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Section 14.7. Payment of Certain Taxes Upon Conversion or Exchange...................... 89
Section 14.8. Duties of Trustee Regarding Conversion or Exchange........................ 90
Section 14.9. Repayment of Certain Funds Upon Conversion or Exchange.................... 90
ARTICLE 15 Jurisdiction and Consent to Service of Process........................................ 90
Section 15.1. Jurisdiction and Consent to Service of Process............................ 90
</TABLE>
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<PAGE> 9
SENIOR INDENTURE (the "Indenture"), dated as of ___________,
1997, between ALLIED WASTE INDUSTRIES, INC., a corporation duly organized and
existing under the laws of the State of Delaware (the "Company"), having its
principal office at 15880 North Greenway-Hayden Loop, Suite 100, Scottsdale,
Arizona 85260 and FIRST TRUST NATIONAL ASSOCIATION, a national banking
association, as Trustee (the "Trustee").
RECITALS
The Company has duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of its secured or
unsecured unsubordinated debentures, notes or other evidences of indebtedness
("Securities") to be issued in one or more series as herein provided.
All things necessary to make this Indenture a valid agreement
of the Company, in accordance with its terms, have been done.
For and in consideration of the premises and the purchase of
the Securities by the Holders thereof, it is mutually covenanted and agreed as
follows for the equal and ratable benefit of the Holders of the Securities or of
any series thereof:
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.1. Definitions. (a) For all purposes of this
Indenture, except as otherwise expressly provided or unless the context
otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the
singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles as in effect in the United States of America from
time to time; provided that when two or more principles are so
generally accepted, it shall mean that set of principles consistent
with those in use by the Company; and
(4) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not to
any particular Article, Section or other subdivision.
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<PAGE> 10
"Affiliate" of any specified Person means any Person directly
or indirectly controlling or controlled by, or under direct or indirect common
control with, such specified Person. For purposes of this definition, "control"
when used with respect to any specified Person means the power to direct the
management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
"Agent" means any Paying Agent or Registrar.
"Authenticating Agent" means any authenticating agent
appointed by the Trustee pursuant to Section 6.14.
"Authorized Newspaper" means a newspaper of general
circulation, in the official language of the country of publication or in the
English language, customarily published on each Business Day whether or not
published on Saturdays, Sundays or holidays. Whenever successive publications in
an Authorized Newspaper are required hereunder they may be made (unless
otherwise expressly provided herein) on the same or different days of the week
and in the same or different Authorized Newspapers.
"AWNA" means Allied Waste North America, Inc., a Delaware
corporation and wholly owned subsidiary of the Company.
"Bearer Security" means any Security issued hereunder which is
payable to bearer.
"Board" or "Board of Directors" means the Board of Directors
of the Company, or any duly authorized committee thereof.
"Board Resolution" means a copy of a resolution of the Board
of Directors, certified by the Secretary or an Assistant Secretary of the
Company to have been duly adopted by the Board of Directors and to be in full
force and effect on the date of the certificate, and delivered to the Trustee.
"Business Day", when used with respect to any Place of Payment
or any other particular location referred to in this Indenture or in the
Securities, means, unless otherwise specified with respect to any Securities
pursuant to Section 3.1, each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which banking institutions in that Place of Payment or
particular location are authorized or obligated by law, regulation or executive
order to close.
"Capital Lease Obligation" of any Person means the obligation
to pay rent or other payment amounts under a lease of (or other arrangements
conveying the right to
-2-
<PAGE> 11
use) real or personal property by such Person which is required to be classified
and accounted for as a capital lease or a liability on a balance sheet of such
Person in accordance with generally accepted accounting principles. The stated
maturity of such obligation shall be the date of the last payment of rent or any
other amount due under such lease prior to the first date upon which such lease
may be terminated by the lessee without payment of a penalty. The principal
amount of such obligation shall be the capitalized amount thereof that would
appear on a balance sheet of such Person in accordance with generally accepted
accounting principles.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Securities Exchange Act of
1934, as amended, or, if at any time after the execution of this Indenture such
Commission is not existing and performing the duties now assigned to it under
the Trust Indenture Act, then the body performing such duties at such time.
"Company" means the Person named as the Company in the first
paragraph of this Indenture until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter means
such successor.
"Company Order" and "Company Request" mean, respectively, a
written order or request signed in the name of the Company by two Officers, one
of whom must be the Chairman of the Board, the President, the Chief Executive
Officer, the Chief Operating Officer, the Chief Financial Officer, a Vice
President, the Treasurer or the Secretary of the Company.
"consent", "waive" and "rescind", when used with respect to
the consent, waiver or rescission of or by the Holders of a specified percentage
in aggregate principal amount of Securities of any series, shall mean any of (i)
a favorable vote with respect to such consent, waiver or rescission, at any
meeting of Holders of Securities of such series duly called and held in
accordance with the provisions of Article 13, by the Holders of the applicable
percentage in aggregate principal amount of such Securities specified in the
second paragraph of Section 13.4; (ii) written consents, waivers or rescissions
of or by the Holders of such specified percentage in aggregate principal amount
of such Securities; and (iii) a combination of the favorable vote with respect
to such consent, waiver or rescission, at any meeting of Holders of Securities
of such series duly called and held in accordance with the provisions of Article
13, by the Holders of less than the applicable percentage in aggregate principal
amount of such Securities specified in the second paragraph of Section 13.4 and
written consents, waivers or rescissions of other Holders of such Securities,
where the sum of the percentage of such Holders so voting in favor and the
percentage of such Holders signing such written consents, waivers or rescissions
is equal to at least such specified percentage.
-3-
<PAGE> 12
"Corporate Trust Office" means an office of the Trustee in New
York, New York at which at any particular time its corporate trust business
shall be administered, which office at the date hereof is located at 100 Wall
Street, 20th Floor, New York, New York 10005, Attention: Corporate Trust
Administration.
"currency unit" for all purposes of this Indenture shall
include any composite currency, including, without limitation, ECU.
"Debt" means (without duplication), with respect to any
Person, whether recourse is to all or a portion of the assets of such Person,
(i) every obligation of such Person for money borrowed, (ii) every obligation of
such Person evidenced by bonds, debentures, notes or other similar instruments,
including obligations Incurred in connection with the acquisition of property,
assets or businesses, (iii) every reimbursement obligation of such Person with
respect to letters of credit, bankers' acceptances or similar facilities issued
for the account of such Person, (iv) every obligation of such Person issued or
assumed as the deferred purchase price of property or services (but excluding
trade accounts payable or accrued liabilities arising in the ordinary course of
business), (v) every Capital Lease Obligation of such Person, (vi) the maximum
fixed redemption or repurchase price of Redeemable Interests of such Person at
the time of determination, (vii) every net payment obligation of such Person
under interest rate swap or similar agreements or foreign currency hedge,
exchange or similar agreements at the time of determination and (viii) every
obligation of the type referred to in Clauses (i) through (vii) of another
Person and all dividends of another Person the payment of which, in either case,
such Person has Guaranteed or for which such Person is responsible or liable,
directly or indirectly, jointly or severally, as obligor, Guarantor or
otherwise.
"Default" means, with respect to Securities of any series, any
event which is, or after notice or passage of time, or both, would be, an Event
of Default with respect to Securities of such series.
"Depositary", when used with respect to the Securities of or
within any series issuable or issued in whole or in part in global form, means
the Person designated as Depositary by the Company pursuant to Section 3.1(b)
until a successor Depositary shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter shall mean or include each Person
which is then a Depositary hereunder, and if at any time there is more than one
such Person, shall be a collective reference to such Persons.
"Dollar" means the currency of the United States that at the
time of payment is legal tender for the payment of public and private debts.
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<PAGE> 13
"ECU" means the European Currency Unit as defined and revised
from time to time by the Council of the European Communities.
"European Monetary System" means the European Monetary System
established by the Resolution of December 5, 1978 of the Council of the European
Communities.
"Exchange Rate Certificate" means a certificate, signed by a
Responsible Officer of the Trustee, setting forth (i) the applicable Market
Exchange Rate or the applicable bid quotation and (ii) the Dollar amount of
principal (and premium, if any) and interest, if any (on an aggregate basis and
on the basis of a Security having the lowest denomination principal amount in
the relevant currency or currency unit), that would be payable with respect to a
Security of the applicable series on the basis of such Market Exchange Rate or
the applicable bid quotation.
"Foreign Currency" means any currency issued by the government
of one or more countries other than the United States or by any recognized
confederation or association of such governments.
"Government Obligations" means securities that are (x) direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged or (y) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America the payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America, which, in either case (x) or
(y), are not callable or redeemable at the option of the issuer thereof, and
shall also include a depository receipt issued by a bank (as defined in Section
3(a) (2) of the Securities Act of 1933, as amended) as custodian with respect to
any such Government Obligation or a specific payment of principal of or interest
on any such Government Obligation held by such custodian for the account of the
holder of such depository receipt, provided that (except as required by law)
such custodian is not authorized to make any deduction from the amount payable
to the holder of such depository receipt from any amount received by the
custodian in respect of the Government Obligation or the specific payment of
principal of or interest on the Government Obligation evidenced by such
depository receipt.
"Guaranty" or "Guarantee" by any Person means any obligation,
contingent or otherwise, of such Person guaranteeing any Debt, or dividends or
distributions on any equity security, of any other Person (the "primary
obligor") in any manner, whether directly or indirectly, and including, without
limitation, any obligation of such Person (i) to purchase or pay (or advance or
supply funds for the purchase or payment of) such Debt or to purchase (or to
advance or supply funds for the purchase of) any security for the payment of
such Debt, (ii) to purchase property, securities or services for the purpose
-5-
<PAGE> 14
of assuring the holder of such Debt of the payment of such Debt or (iii) to
maintain working capital, equity capital or other financial statement condition
or liquidity of the primary obligor so as to enable the primary obligor to pay
such Debt (and "Guaranteed", "Guaranteeing" and "Guarantor" shall have meanings
correlative to the foregoing); provided, however, that the Guaranty by any
Person shall not include endorsements by such Person for collection or deposit,
in either case, in the ordinary course of business.
"Holder" means, with respect to a Bearer Security, a bearer
thereof or of an interest coupon appertaining thereto and, with respect to a
Registered Security, a Person in whose name a Security is registered on the
Register.
"Incur" means, with respect to any Debt of any Person, to
create, issue, incur (by conversion, exchange or otherwise), assume, Guarantee
or otherwise become liable in respect of such Debt, or the taking of any other
action which would cause such Debt, in accordance with generally accepted
accounting principles to be recorded on the balance sheet of such Person (and
"Incurrence", "Incurred", "Incurrable" and "Incurring" shall have meanings
correlative to the foregoing), provided that, the Debt of any other Person
becoming a Restricted Subsidiary of such Person will be deemed for this purpose
to have been Incurred by such Person at the time such other Person becomes a
Restricted Subsidiary of such Person; provided, further, that a change in
generally accepted accounting principles that results in an obligation of such
Person that exists at such time becoming Debt shall not be deemed an Incurrence
of such Debt.
"Indenture" means this instrument as originally executed and
as it may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
including, for all purposes of this instrument and any such supplemental
indenture, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this instrument and any such supplemental indenture,
respectively. The term "Indenture" shall also include the terms of particular
series of Securities established as contemplated by Section 3.1.
"Indexed Security" means a Security the terms of which provide
that the principal amount thereof payable at Stated Maturity is based, at least
in part, upon the performance or value of a specified market index, reference
security or other variable and may be more or less than the principal face
amount thereof at original issuance.
"interest", when used with respect to an Original Issue
Discount Security which by its terms bears interest only after Maturity, means
interest payable after Maturity and, when used with respect to any other
Security, means the interest payable thereon in accordance with its terms.
-6-
<PAGE> 15
"Interest Payment Date", when used with respect to any
Security, means the Stated Maturity of an installment of interest on such
Security.
"Market Exchange Rate" means, unless otherwise specified with
respect to any Securities pursuant to Section 3.1, (i) for a conversion of any
currency unit into Dollars, the exchange rate between the relevant currency unit
and Dollars calculated by the method specified pursuant to Section 3.1 for the
Securities of the relevant series, and (ii) for a conversion of any Foreign
Currency into Dollars, the applicable exchange rate between such Foreign
Currency and Dollars set forth under the heading, "Currency Trading -- Exchange
Rates" in the "Money & Investing" section of The Wall Street Journal (or in such
other section of The Wall Street Journal in which foreign currency exchange
rates may be regularly published from time to time) as of the most recent
available date, in each case as determined by the Trustee. Unless otherwise
specified with respect to any Securities pursuant to Section 3.1, in the event
of the unavailability of any of the exchange rates provided for in the foregoing
clauses (i) and (ii), the Trustee shall use the average of the quotations from
at least three major banks acceptable to the Company in The City of New York
(which may include any such bank acting as Trustee under this Indenture), or
such other quotations as the Trustee and the Company shall deem appropriate.
"Maturity", when used with respect to any Security, means the
date on which the principal of such Security or an installment of principal
becomes due and payable as therein or herein provided, whether at the Stated
Maturity or by declaration of acceleration, call for redemption or otherwise.
"Officer" means the Chairman of the Board, the President, the
Chief Executive Officer, the Chief Operating Officer, the Chief Financial
Officer, any Vice President, the Treasurer, any Assistant Treasurer, the
Secretary or any Assistant Secretary of the Company.
"Officers' Certificate", when used with respect to the
Company, means a certificate signed by two Officers, one of whom must be the
Chairman of the Board, the President, the Chief Executive Officer, the Chief
Operating Officer, the Chief Financial Officer, any Vice President, the
Treasurer or the Secretary of the Company.
"Opinion of Counsel" means a written opinion from the general
counsel of the Company or other legal counsel who is reasonably acceptable to
the Trustee. Such counsel may be an employee of or counsel to the Company.
"Original Issue Discount Security" means any Security which
provides for an amount less than the stated principal amount thereof to be due
and payable upon declaration of acceleration of the Maturity thereof pursuant to
Section 5.2.
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<PAGE> 16
"Outstanding", when used with respect to Securities, means, as
of the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities, or portions thereof, for whose payment or
redemption money in the necessary amount has been theretofore deposited with the
Trustee or any Paying Agent (other than the Company) in trust or set aside and
segregated in trust by the Company (if the Company shall act as a Paying Agent)
for the Holders of such Securities and any interest coupons appertaining
thereto, provided that, if such Securities are to be redeemed, notice of such
redemption has been duly given pursuant to this Indenture or provisions therefor
satisfactory to the Trustee have been made;
(iii) Securities, except to the extent provided in Sections
4.4 and 4.5, with respect to which the Company has effected defeasance and/or
covenant defeasance as provided in Article 4; and
(iv) Securities which have been replaced or paid pursuant to
Section 3.6 or in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any such
Securities in respect of which there shall have been presented to the Trustee
proof satisfactory to it that such Securities are held by a bona fide purchaser
in whose hands such Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, or whether
sufficient funds are available for redemption or for any other purpose, and for
the purpose of making the calculations required by Section 313 of the Trust
Indenture Act, (w) the principal amount of any Original Issue Discount
Securities that may be counted in making such determination or calculation and
that shall be deemed to be Outstanding for such purpose shall be equal to the
amount of principal thereof that would be (or shall have been declared to be)
due and payable, at the time of such determination, upon a declaration of
acceleration of the Maturity thereof pursuant to Section 5.2, (x) the principal
amount of any Security denominated in a Foreign Currency that may be counted in
making such determination or calculation and that shall be deemed Outstanding
for such purpose shall be equal to the Dollar equivalent, determined as of the
date such Security is originally issued by the Company as set forth in an
Exchange Rate Certificate, of the principal amount (or, in the case of an
Original Issue Discount Security, the Dollar equivalent as of such date of
original issuance of the amount determined as provided in clause (w) above) of
such
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<PAGE> 17
Security, (y) the principal amount of any Indexed Security that may be counted
in making such determination or calculation and that shall be deemed Outstanding
for such purpose shall be equal to the principal face amount of such Indexed
Security at original issuance, unless otherwise provided with respect to such
Security pursuant to Section 3.1, and (z) Securities owned by the Company or any
other obligor upon the Securities or any Affiliate of the Company or of such
other obligor shall be disregarded and deemed not to be Outstanding, except
that, in determining whether the Trustee shall be protected in making such
calculation or in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Securities which the Trustee knows to
be so owned shall be so disregarded. Securities so owned which have been pledged
in good faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect to such
Securities and that the pledgee is not the Company or any other obligor upon the
Securities or any Affiliate of the Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company to
pay the principal of, premium, if any, interest, if any, and any other payments
due on any Securities on behalf of the Company.
"Periodic Offering" means an offering of Securities of a
series from time to time the specific terms of which Securities, including,
without limitation, the rate or rates of interest or formula or formulae for
determining the rate or rates of interest thereon, if any, the Maturity thereof,
the redemption provisions, if any, and any other terms specified as contemplated
by Section 3.1, with respect thereto, are to be determined by the Company upon
the issuance of such Securities.
"Person" means any individual, corporation, partnership, joint
venture, limited liability company, association, joint-stock company, trust,
other entity, unincorporated organization or government or any agency or
political subdivision thereof.
"Place of Payment", when used with respect to the Securities
of or within any series, means the place or places where the principal of,
premium, if any, interest and any other payments due on such Securities are
payable as specified as contemplated by Sections 3.1 and 9.2.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that evidenced
by such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 3.6 in exchange for or in
lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security.
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<PAGE> 18
"Redeemable Interest" of any Person means any equity security
of or other ownership interest in such Person that by its terms (or by the terms
of any security into which it is convertible or for which it is exchangeable) or
otherwise (including upon the occurrence of an event) matures or is required to
be redeemed (pursuant to any sinking fund obligation or otherwise) or is
convertible into or exchangeable for Debt or is redeemable at the option of the
holder thereof, in whole or in part, at any time prior to the final Stated
Maturity of the Securities.
"Redemption Date", when used with respect to any Security to
be redeemed, means the date fixed for such redemption pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to
be redeemed, in whole or in part, means the price at which it is to be redeemed
pursuant to this Indenture.
"Registered Security" means any Security issued hereunder and
registered as to principal and interest in the Register.
"Regular Record Date" for the interest payable on any Interest
Payment Date on the Securities of or within any series means the date specified
for that purpose as contemplated by Section 3.1.
"Responsible Officer", when used with respect to the Trustee,
shall mean any vice president, the secretary, any assistant secretary, the
treasurer, any assistant treasurer, any trust officer or assistant trust
officer, or any officer of the Trustee customarily performing functions similar
to those performed by any of the above designated officers and also shall mean,
with respect to a particular corporate trust matter, any officer to whom such
matter is referred because of his knowledge of and familiarity with the
particular subject.
"Restricted Subsidiary" means (i) at any date, a Subsidiary of
the Company that is not an Unrestricted Subsidiary as of such date and (ii) for
any period, a Subsidiary of the Company that for any portion of such period is
not an Unrestricted Subsidiary, provided that such term shall mean such
Subsidiary only for such portion of such period.
"Security" or "Securities" has the meaning stated in the first
recital of this Indenture and more particularly means a Security or Securities
of the Company issued, authenticated and delivered under this Indenture.
"Special Record Date" for the payment of any Defaulted
Interest means a date fixed by the Trustee pursuant to Section 3.7.
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"Stated Maturity", when used with respect to any Security or
any installment of principal thereof or interest thereon, means the date
specified in such Security or in an interest coupon representing such
installment of interest as the fixed date on which the principal of such
Security or such installment of principal or interest is due and payable.
"Subsidiary" of any Person means any Person of which at least
a majority of the outstanding voting securities having ordinary voting power for
the election of directors or other governing body, or other ownership interests
ordinarily constituting a majority voting interest, is owned or controlled,
directly or indirectly, by such Person or by one or more Subsidiaries of such
Person, or by such Person and one or more Subsidiaries of such Person.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as
amended and as in effect on the date of this Indenture, except as provided in
Section 8.3; provided, however, that if the Trust Indenture Act of 1939 is
amended after such date, "Trust Indenture Act" means, to the extent required by
any such amendment, the Trust Indenture Act of 1939 as so amended.
"Trustee" means the party named as such in the first paragraph
of this Indenture until a successor Trustee replaces it pursuant to the
applicable provisions of this Indenture, and thereafter means such successor
Trustee and if, at any time, there is more than one Trustee, "Trustee" as used
with respect to the Securities of any series shall mean the Trustee with respect
to the Securities of that series.
"United States" means, unless otherwise specified with respect
to the Securities of any series as contemplated by Section 3.1, the United
States of America (including the States thereof and the District of Columbia),
its territories, its possessions and other areas subject to its jurisdiction.
"Unrestricted Subsidiary", with respect to any series of
Securities, shall have the meaning established in accordance with Section 3.1(b)
with respect to such series of Securities.
"U.S. Person" means, unless otherwise specified with respect
to the Securities of any series as contemplated by Section 3.1, a citizen, or
resident of the United States, a corporation, partnership or other entity
created or organized in or under the laws of the United States or any political
subdivision thereof, or an estate or trust, the income of which is subject to
United States federal income taxation regardless of its source.
"Vice President", when used with respect to the Company, means
any Vice President of the Company whether or not designated by a number or a
word or words added before or after the title "Vice President."
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<PAGE> 20
(b) The following terms shall have the meanings specified in
the Sections referred to opposite such term below:
<TABLE>
<CAPTION>
Term Section
---- -------
<S> <C>
"Act" 1.4(a)
"Common Stock" 14.1(b)(i)
"covenant defeasance" 4.5
"Defaulted Interest" 3.7(b)
"defeasance" 4.4
"Equity Securities" 14.1(b)
"Event of Default" 5.1
"NASDAQ" 14.3
"Preferred Stock" 14.1(b)(ii)
"Register" 3.5
"Registrar" 3.5
</TABLE>
Section 1.2. Compliance Certificates and Opinions. Upon any
application or request by the Company to the Trustee to take any action under
any provision of this Indenture, the Company shall furnish to the Trustee such
certificates and opinions as may be required under the Trust Indenture Act
(including Section 314(c) of the Trust Indenture Act). Each such certificate or
opinion shall be given in the form of an Officers' Certificate, if to be given
by an officer or officers of the Company, or an Opinion of Counsel, if to be
given by counsel, and shall comply with the requirements of the Trust Indenture
Act and any other requirements set forth in this Indenture.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than pursuant to
Section 2.3, the last paragraph of Section 3.3 and Section 9.5) shall include:
(a) a statement that each individual signing such certificate
or opinion has read such condition or covenant and the definitions herein
relating thereto;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions contained in
such certificate or opinion are based;
(c) a statement that, in the opinion of each such individual,
he or she has made such examination or investigation as is necessary to enable
him or her to express an informed opinion as to whether or not such condition or
covenant has been complied with; and
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<PAGE> 21
(d) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 1.3. Form of Documents Delivered to Trustee. In any
case where several matters are required to be certified by, or covered by an
opinion of, any specified Person, it is not necessary that all such matters be
certified by, or covered by the opinion of, only one such Person, or that they
be so certified or covered by only one document, but one such Person may certify
or give an opinion with respect to some matters and one or more other such
Persons as to other matters, and any such Person may certify or give an opinion
as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or opinion of,
or representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his or her certificate or opinion is
based are erroneous. Any such certificate or opinion or any Opinion of Counsel
may be based, insofar as it relates to factual matters, upon a certificate or
opinion of, or representations by, an officer or officers of the Company stating
that the information with respect to such factual matters is in the possession
of the Company, unless such officer or counsel knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
as to such matters are erroneous.
Any certificate, statement or opinion of an officer of the
Company or of counsel may be based, insofar as it relates to accounting matters,
upon a certificate or opinion of or representations by an accountant or firm of
accountants in the employ of the Company, unless such officer or counsel, as the
case may be, knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to the accounting matters
upon which his certificate, statement or opinion is based are erroneous.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be consolidated
and form one instrument.
Section 1.4. Acts of Holders. (a) Any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be given or taken by Holders may be embodied in and evidenced
by one or more instruments of substantially similar tenor signed (either
physically or by means of a facsimile or an electronic transmission, provided,
in the case of an electronic transmission, that it is transmitted through the
facilities of a Depositary) by such Holders in person or by agent or proxy duly
appointed in writing. If Securities of a series are issuable as Bearer
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<PAGE> 22
Securities, any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders of Securities of such series may, alternatively, be embodied in and
evidenced by the record of Holders of Securities of such series voting in favor
thereof pursuant to the second paragraph of Section 13.4, either in person or by
proxies duly appointed in writing, at any meeting of Holders of Securities of
such series duly called and held in accordance with the provisions of Article
13, or a combination of such instruments and any such record. Except as herein
otherwise expressly provided, such action shall become effective when such
instrument or instruments or record or both are received (either physically or,
if the Securities are held through the facilities of a Depositary, by means of a
facsimile or an electronic transmission, provided, in the case of an electronic
transmission, that it is transmitted through the facilities of a Depositary) by
the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments and record (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the "Act" of the Holders
signing such instrument or instruments or so voting at such meeting. The Company
and the Trustee may assume that any Act of a Holder has not been modified or
revoked unless written notice to the contrary is received prior to the time that
the action to which such Act relates has become effective. Proof of execution of
any such instrument or of a writing appointing any such agent shall be
sufficient for any purpose of this Indenture and (subject to Section 315 of the
Trust Indenture Act) conclusive in favor of the Trustee and the Company, if made
in the manner provided in this Section. The record of any meeting of Holders of
Securities shall be proved in the manner provided in Section 13.6.
(b) The fact and date of the execution by any Person of any
such instrument or writing and the authority of the Person executing the same
may be proved in any manner which the Trustee deems sufficient.
(c) The ownership of Bearer Securities may be proved by the
production of such Bearer Securities or by a certificate executed by any trust
company, bank, banker or other depository, wherever situated, if such
certificate shall be deemed by the Trustee to be satisfactory, showing that at
the date therein mentioned such Person had on deposit with such trust company,
bank, banker or other depository, or exhibited to it, the Bearer Securities
therein described; or such facts may be proved by the certificate or affidavit
of the Person holding such Bearer Securities, if such certificate or affidavit
is deemed by the Trustee to be satisfactory. The Trustee and the Company may
assume that such ownership of any Bearer Security continues until (i) another
such certificate or affidavit bearing a later date issued in respect of the same
Bearer Security is produced, (ii) such Bearer Security is produced to the
Trustee by some other Person, (iii) such Bearer Security is surrendered in
exchange for a Registered Security or (iv) such Bearer Security is no longer
Outstanding. The ownership of Bearer Securities may also be proved in any other
manner which the Trustee deems sufficient.
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<PAGE> 23
(d) The ownership of Registered Securities shall be proved by
the Register.
(e) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall bind every
future Holder of the same Security and any interest coupons appertaining thereto
and the Holder of every Security or interest coupon issued upon the registration
of transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee or the Company in
reliance thereon, whether or not notation of such Act is made upon such Security
or interest coupon.
(f) If the Company shall solicit from the Holders any request,
demand, authorization, direction, notice, consent, waiver or other Act, the
Company may, at its option, by or pursuant to a Board Resolution, fix in advance
a record date for the determination of Holders of Registered Securities entitled
to give such request, demand, authorization, direction, notice, consent, waiver
or other Act, but the Company shall have no obligation to do so. Notwithstanding
Section 316(c) of the Trust Indenture Act, any such record date shall be the
record date specified in or pursuant to such Board Resolution, which shall be a
date not more than 30 days prior to the first solicitation of Holders generally
in connection therewith and no later than the date such first solicitation is
completed. If such a record date is fixed, such request, demand, authorization,
direction, notice, consent, waiver or other Act may be given before or after
such record date, but only the Holders of Registered Securities of record at the
close of business on such record date shall be deemed to be Holders for the
purposes of determining whether Holders of the requisite proportion of
Outstanding Securities have authorized or agreed or consented to such request,
demand, authorization, direction, notice, consent, waiver or other Act, and for
that purpose the Outstanding Securities shall be computed as of such record
date; provided that no such authorization, agreement or consent by the Holders
on such record date shall be deemed effective unless it shall become effective
pursuant to the provisions of this Indenture not later than six months after the
record date.
Without limiting the foregoing, a Holder entitled to give or
take any action hereunder with regard to any particular Security may do so with
regard to all or any part of the principal amount of such Security or by one or
more duly appointed agents, each of which may do so pursuant to such appointment
with regard to all or any part of the principal amount of such Security to which
such appointment relates.
Section 1.5. Notices, Etc., to Trustee and Company. 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,
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<PAGE> 24
(a) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or filed in
writing to or with the Trustee at its Corporate Trust Office, Attention:
Corporate Trust Department, or at any other address previously furnished in
writing to the Holders or the Company by the Trustee, or, with respect to
notices by the Company, transmitted by facsimile transmission (confirmed by
guaranteed overnight courier) to the following facsimile number: (612) 244-0711
or to any other facsimile number previously furnished in writing to the Company
by the Trustee, or
(b) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to it addressed
to it at the address of the Company's principal office specified in the first
paragraph of this instrument or at any other address previously furnished in
writing to the Trustee by the Company or, with respect to notices by the
Trustee, transmitted by facsimile transmission (confirmed by guaranteed
overnight courier) to the following facsimile number: (602) 423-9424 or to any
other facsimile number previously furnished in writing to the Trustee by the
Company.
Section 1.6. Notice to Holders; Waiver. Where this Indenture
provides for notice to Holders of any event, (i) if any of the Securities
affected by such event are Registered Securities, such notice to the Holders
thereof shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each such Holder
affected by such event, at his or her address as it appears in the Register,
within the time prescribed for the giving of such notice, and (ii) if any of the
Securities affected by such event are Bearer Securities, notice to the Holders
thereof shall be sufficiently given (unless otherwise herein or in the terms of
such Bearer Securities expressly provided) if published twice in an Authorized
Newspaper in New York, New York, and in such other city or cities, if any, as
may be specified as contemplated by Section 3.1. Such notices shall be deemed to
have been given on the date of such mailing or publication.
In any case where notice to Holders is given by mail or by
publication, neither the failure to mail or publish such notice, nor any defect
in any notice so mailed or published, to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders of Registered
Securities or of Bearer Securities. Any notice mailed to a Holder in the manner
herein prescribed shall be conclusively deemed to have been received by such
Holder, whether or not such Holder actually receives such notice.
If by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice as
provided above, then such notification as shall be made with the approval of the
Trustee shall constitute a sufficient notification for every purpose hereunder.
If it is impossible or, in the opinion of the
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<PAGE> 25
Trustee, impracticable to give any notice by publication in the manner herein
required, then such publication in lieu thereof as shall be made with the
approval of the Trustee shall constitute a sufficient publication of such
notice.
Any request, demand, authorization, direction, notice, consent
or waiver required or permitted under this Indenture shall be in the English
language, except that any published notice may be in an official language of the
country of publication.
Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall be equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
Section 1.7. Headings and Table of Contents. The Article and
Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
Section 1.8. Successor and Assigns. All covenants and
agreements in this Indenture by the Company shall bind its successors and
assigns, whether so expressed or not.
Section 1.9. Separability. In case any provision of this
Indenture or the Securities shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
Section 1.10. Benefits of Indenture. Nothing in this Indenture
or in the Securities, expressed or implied, shall give to any Person, other than
the parties hereto and their successors hereunder and the Holders, any benefit
or any legal or equitable right, remedy or claim under this Indenture.
Section 1.11. Incorporators, Stockholders, Officers and
Directors of the Company Exempt from Individual Liability. No recourse under or
upon any obligation, covenant or agreement of or contained in this Indenture or
of or contained in any Security or interest coupon appertaining thereto, or for
any claim based thereon or otherwise in respect thereof, or because of any
indebtedness represented thereby, shall be had against any incorporator,
stockholder, officer or director, as such, past, present or future, of the
Company or any successor Person, either directly or through the Company or any
successor Person, whether by virtue of any constitution, statute or rule of law,
by the enforcement of any assessment or penalty, by any legal or equitable
proceeding or otherwise; it being expressly understood that all such liability
is hereby expressly waived and released as a condition of the acceptance of, and
as a part of the consideration for the
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<PAGE> 26
execution of this Indenture and the issuance of, the Securities and any interest
coupons appertaining thereto.
Section 1.12. Governing Law; Conflict with Trust Indenture
Act. THIS INDENTURE, THE SECURITIES AND ANY INTEREST COUPONS APPERTAINING
THERETO SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK. This Indenture is subject to the Trust Indenture Act and if
any provision hereof limits, qualifies or conflicts with the Trust Indenture
Act, the Trust Indenture Act shall control. Whether or not this Indenture is
required to be qualified under the Trust Indenture Act, the provisions of the
Trust Indenture Act required to be included in an indenture in order for such
indenture to be so qualified shall be deemed to be included in this Indenture
with the same effect as if such provisions were set forth herein and any
provisions hereof which may not be included in an indenture which is so
qualified shall be deemed to be deleted or modified to the extent such
provisions would be required to be deleted or modified in an indenture so
qualified.
Section 1.13. Legal Holidays. In any case where any Interest
Payment Date, Redemption Date, sinking fund payment date, Stated Maturity or
Maturity of any Security shall not be a Business Day at any Place of Payment,
then (notwithstanding any other provision of this Indenture or of any Security
or interest coupon other than a provision in the Securities of any series which
specifically states that such provision shall apply in lieu of this Section),
payment of principal, premium, if any, or interest need not be made at such
Place of Payment on such date, but may be made on the next succeeding Business
Day at such Place of Payment with the same force and effect as if made on such
date; provided that no interest shall accrue on the amount so payable for the
period from and after such Interest Payment Date, Redemption Date, sinking fund
payment date, Stated Maturity or Maturity, as the case may be, if such amount is
so paid on the next succeeding Business Day.
Section 1.14. Moneys of Different Currencies to Be Segregated.
The Trustee shall segregate all moneys, funds and accounts held by the Trustee
hereunder in one currency from any moneys, funds and accounts held by the
Trustee hereunder in any other currencies, notwithstanding any provision herein
which would otherwise permit the Trustee to commingle such amounts.
Section 1.15. Independence of Covenants. All covenants and
agreements in this Indenture shall be given independent effect so that if a
particular action or condition is not permitted by any such covenant, the fact
that it would be permitted by an exception to, or be otherwise within the
limitations of, another covenant shall not avoid the occurrence of a Default or
an Event of Default if such action is taken or condition exists.
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<PAGE> 27
Section 1.16. Counterparts. This Indenture may be executed in
any number of counterparts, each of which shall be an original, but such
counterparts shall together constitute but one and the same instrument.
ARTICLE 2
SECURITY FORMS
Section 2.1. Forms Generally. The Securities of each series
and the interest coupons, if any, to be attached thereto shall be in
substantially such form as shall be established by or pursuant to a Board
Resolution or in one or more indentures supplemental hereto, in each case with
such appropriate insertions, omissions, substitutions and other variations as
are required or permitted by this Indenture, and may have such letters, numbers
or other marks of identification and such legends or endorsements placed thereon
as may be required to comply with the rules of any applicable securities
exchange, organizational document, governing instrument or law or as may,
consistently herewith, be determined by the officers executing such Securities
and interest coupons, if any, as evidenced by their execution of the Securities
and interest coupons, if any. If temporary Securities of any series are issued
as permitted by Section 3.4, the form thereof also shall be established as
provided in the preceding sentence. If the forms of Securities and interest
coupons, if any, of any series are established by, or by action taken pursuant
to, a Board Resolution, a copy of the Board Resolution together with an
appropriate record of any such action taken pursuant thereto, including a copy
of the approved form of Securities or interest coupons, if any, shall be
delivered to the Trustee at or prior to the delivery of the Company Order
contemplated by Section 3.3 for the authentication and delivery of such
Securities.
Unless otherwise specified as contemplated by Section 3.1,
Bearer Securities shall have interest coupons attached.
The definitive Securities and interest coupons, if any, may be
printed, lithographed or engraved on steel engraved borders or may be produced
in any other manner (or, if such Securities are listed on any securities
exchange, any other manner permitted by the rules of such securities exchange),
all as determined by the officers executing such Securities and interest
coupons, if any, as evidenced by their execution of such Securities and interest
coupons, if any.
Section 2.2. Form of Trustee's Certificate of Authentication.
The Trustee's certificate of authentication shall be in substantially the
following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
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<PAGE> 28
FIRST TRUST NATIONAL ASSOCIATION,
as Trustee
By: _____________________________
Authorized Signatory
Section 2.3. Securities in Global Form. If Securities of or
within a series are issuable in whole or in part in global form, any such
Security may provide that it shall represent the aggregate or specified amount
of Outstanding Securities from time to time endorsed thereon and may also
provide that the aggregate amount of Outstanding Securities represented thereby
may from time to time be reduced or increased to reflect exchanges for
certificated securities. Any endorsement of a Security in global form to reflect
the amount, or any increase or decrease in the amount, or changes in the rights
of Holders, of Outstanding Securities represented thereby, shall be made in such
manner and by such Person or Persons as shall be specified therein or in the
Company Order to be delivered to the Trustee pursuant to Section 3.3 or 3.4.
Subject to the provisions of Section 3.3, Section 3.4, if applicable, and
Section 3.5, the Trustee shall deliver and redeliver any Security in permanent
global form in the manner and upon instructions given by the Person or Persons
specified therein or in the applicable Company Order. Any instructions by the
Company with respect to endorsement or delivery or redelivery of a Security in
global form shall be in writing but need not comply with Section 1.2 hereof and
need not be accompanied by an Officers' Certificate or an Opinion of Counsel.
The provisions of the last paragraph of Section 3.3 shall
apply to any Security in global form if such Security was never issued and sold
by the Company and the Company delivers to the Trustee the Security in global
form together with written instructions (which need not comply with Section 1.2
hereof and need not be accompanied by an Officers' Certificate or an Opinion of
Counsel) with regard to the reduction in the principal amount of Securities
represented thereby, together with the written statement contemplated by the
last paragraph of Section 3.3.
Notwithstanding the provisions of Section 2.1 and 3.7, unless
otherwise specified as contemplated by Section 3.1, payment of principal of,
premium, if any, and interest on any Registered Security in permanent global
form shall be made to the registered holder thereof.
Section 2.4. Form of Legend for Securities in Global Form. Any
Security in global form authenticated and delivered hereunder shall bear a
legend in substantially the following form or in such other form as may be
specified in accordance with Section 3.1:
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"THIS SECURITY IS IN GLOBAL FORM WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY
OR A NOMINEE OF A DEPOSITARY. UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN
PART FOR SECURITIES IN CERTIFICATED FORM, THIS SECURITY MAY NOT BE TRANSFERRED
EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A
NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY
OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE
OF SUCH SUCCESSOR DEPOSITARY."
ARTICLE 3
THE SECURITIES
Section 3.1. Amount Unlimited; Issuable in Series. (a) The
aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited. The Securities may be issued from
time to time in one or more series.
(b) The following matters shall be established with respect to
each series of Securities issued hereunder (i) by a Board Resolution, (ii) by
action taken pursuant to a Board Resolution and (subject to Section 3.3) set
forth, or determined in the manner provided, in an Officers' Certificate or
(iii) in one or more indentures supplemental hereto:
(1) the title of the Securities of the series (which title
shall distinguish the Securities of the series from all other series of
Securities);
(2) any limit upon the aggregate principal amount of the
Securities of the series which may be authenticated and delivered under this
Indenture (which limit shall not pertain to Securities authenticated and
delivered upon registration of transfer of, or in exchange for, or in lieu of,
other Securities of the series pursuant to Section 3.4, 3.5, 3.6, 8.6 or 11.7 or
any Securities that, pursuant to Section 3.3, are deemed never to have been
authenticated and delivered hereunder);
(3) the date or dates on which the principal of and premium,
if any, on the Securities of the series is payable or the method or methods of
determination thereof;
(4) the rate or rates at which the Securities of the series
shall bear interest, if any, or the method or methods of calculating such rate
or rates of interest, the date or dates from which such interest shall accrue or
the method or methods by which such date or dates shall be determined, the
Interest Payment Dates on which any such interest shall be payable, the right,
if any, of the Company to defer or extend an Interest
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Payment Date and, with respect to Registered Securities, the Regular Record
Date, if any, for the interest payable on any Registered Security on any
Interest Payment Date, and the basis upon which interest shall be calculated if
other than that of a 360-day year of twelve 30-day months;
(5) the place or places where the principal of, premium, if
any, and interest, if any, on Securities of the series shall be payable, any
Registered Securities of the series may be surrendered for registration of
transfer, Securities of the series may be surrendered for exchange and notices
and demands to or upon the Company in respect of the Securities of the series
and this Indenture may be served and where notices to Holders pursuant to
Section 1.6 will be published;
(6) the period or periods within which, the price or prices at
which, the currency or currencies (including currency unit or units) in which,
and the other terms and conditions upon which, Securities of the series may be
redeemed, in whole or in part, at the option of the Company and, if other than
as provided in Section 11.3, the manner in which the particular Securities of
such series (if less than all Securities of such series are to be redeemed) are
to be selected for redemption;
(7) the obligation, if any, of the Company to redeem or
purchase Securities of the series pursuant to any sinking fund or analogous
provisions or upon the happening of a specified event or at the option of a
Holder thereof and the period or periods within which, the price or prices at
which, the currency or currencies (including currency unit or units) in which,
and the other terms and conditions upon which, Securities of the series shall be
redeemed or purchased, in whole or in part, pursuant to such obligation;
(8) if other than denominations of $1,000 and any integral
multiple thereof, if Registered Securities, and if other than denominations of
$5,000 and any integral multiple thereof, if Bearer Securities, the
denominations in which Securities of the series shall be issuable;
(9) if other than Dollars, the currency or currencies
(including currency unit or units) in which the principal of, premium, if any,
and interest, if any, on the Securities of the series shall be payable, or in
which the Securities of the series shall be denominated, and the particular
provisions applicable thereto in accordance with, in addition to, or in lieu of
the provisions of Section 3.12;
(10) if the payments of principal of, premium, if any, or
interest, if any, on the Securities of the series are to be made, at the
election of the Company or a Holder, in a currency or currencies (including
currency unit or units) other than that in which such Securities are denominated
or designated to be payable, the currency or currencies
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(including currency unit or units) in which such payments are to be made, the
terms and conditions of such payments and the manner in which the exchange rate
with respect to such payments shall be determined, and the particular provisions
applicable thereto in lieu of the provisions of Section 3.12;
(11) if the amount of payments of principal of, premium, if
any, and interest, if any, on the Securities of the series shall be determined
with reference to an index, formula or other method (which index, formula or
method may be based, without limitation, on a currency or currencies (including
currency unit or units) other than that in which the Securities of the series
are denominated or designated to be payable), the index, formula or other method
by which such amounts shall be determined and any special voting or defeasance
provisions in connection therewith;
(12) if other than the entire principal amount thereof, the
portion of the principal amount of such Securities of the series which shall be
payable upon declaration of acceleration thereof pursuant to Section 5.2 or the
method by which such portion shall be determined;
(13) if other than as provided in Section 3.7, the Person to
whom any interest on any Registered Security of the series shall be payable and
the manner in which, or the Person to whom, any interest on any Bearer
Securities of the series shall be payable;
(14) provisions, if any, granting special rights to the
Holders of Securities of the series upon the occurrence of such events as may be
specified;
(15) any deletions from, modifications of or additions to the
Events of Default set forth in Section 5.1 or covenants of the Company set forth
in Article 9 pertaining to the Securities of the series;
(16) under what circumstances, if any, and with what
procedures and documentation the Company will pay additional amounts on the
Securities and interest coupons, if any, of that series held by a Person who is
not a U.S. Person (including any modification of the definition of such term) in
respect of taxes, assessments or similar charges withheld or deducted and, if
so, whether the Company will have the option to redeem such Securities rather
than pay such additional amounts (and the terms of any such option);
(17) whether Securities of the series shall be issuable as
Registered Securities or Bearer Securities (with or without interest coupons),
or both, and any restrictions applicable to the offering, sale, transfer or
delivery of Bearer Securities and, if other than as provided in Section 3.5, the
terms upon which Bearer Securities of a series may be exchanged for Registered
Securities of the same series and vice versa;
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(18) the date as of which any Bearer Securities of the series
and any temporary global Security representing Outstanding Securities of the
series shall be dated if other than the date of original issuance of the first
Security of the series to be issued;
(19) the forms of the Securities and interest coupons, if any,
of the series;
(20) the applicability, if any, to the Securities and interest
coupons, if any, of or within the series of Sections 4.4 and 4.5, or such other
means of defeasance or covenant defeasance as may be specified for the
Securities and interest coupons, if any, of such series, and whether, for the
purpose of such defeasance or covenant defeasance, the term "Government
Obligations" shall include obligations referred to in the definition of such
term which are not obligations of the United States or an agency or
instrumentality of the United States;
(21) if other than the Trustee, the identity of the Registrar
and any Paying Agent;
(22) if the Securities of the series shall be issued in whole
or in part in global form, (i) the Depositary for such global Securities, (ii)
whether beneficial owners of interests in any Securities of the series in global
form may exchange such interests for certificated Securities of such series, to
be registered in the names of or to be held by such beneficial owners or their
nominees and to be of like tenor of any authorized form and denomination, and
(iii) if other than as provided in Section 3.5, the circumstances under which
any such exchange may occur;
(23) any restrictions on the registration, transfer or
exchange of the Securities;
(24) if the Securities of the series may be issued or
delivered (whether upon original issuance or upon exchange of a temporary
Security of such series or otherwise), or any installment of principal or
interest is payable, only upon receipt of certain certificates or other
documents or satisfaction of other conditions in addition to those specified in
this Indenture, the form and terms of such certificates, documents or
conditions;
(25) the terms and conditions of any right to convert or
exchange Securities of the series into or for Equity Securities of the Company
including provisions for the payment of interest on Securities being converted
or exchanged as contemplated by Section 3.7(d) and Section 14.2;
(26) whether the Securities are secured or unsecured, and if
secured, the security and related terms in connection therewith;
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(27) the definition of "Unrestricted Subsidiary" to be used
for such series; and
(28) any other terms of the series including any terms which
may be required by or advisable under United States laws or regulations or
advisable (as determined by the Company) in connection with the marketing of
Securities of the series.
(c) Subject to Section 1.12 and any controlling provision of
the Trust Indenture Act, in the event of any inconsistency between the terms of
this Indenture and the terms applicable to a series of Securities established in
the manner permitted by Section 3.1(b), the (i) Board Resolution, (ii) Officer's
Certificate or (iii) supplemental indenture setting forth such conflicting term
shall prevail.
(d) All Securities of any one series and interest coupons, if
any, appertaining thereto shall be substantially identical except as to
denomination and except as may otherwise be provided (i) by a Board Resolution,
(ii) by action taken pursuant to a Board Resolution and (subject to Section 3.3)
set forth, or determined in the manner provided, in the related Officers'
Certificate or (iii) in an indenture supplemental hereto. All Securities of any
one series need not be issued at the same time and, unless otherwise provided, a
series may be reopened, without the consent of the Holders, for issuances of
additional Securities of such series.
(e) If any of the terms of the Securities of any series are
established by action taken pursuant to a Board Resolution, a copy of such Board
Resolution shall be delivered to the Trustee at or prior to the delivery of the
Officers' Certificate setting forth, or providing the manner for determining,
the terms of the Securities of such series, and an appropriate record of any
action taken pursuant thereto in connection with the issuance of any Securities
of such series shall be delivered to the Trustee prior to the authentication and
delivery thereof.
Section 3.2. Denominations. Unless otherwise provided as
contemplated by Section 3.1(b), any Registered Securities of a series
denominated in Dollars shall be issuable in denominations of U.S. $1,000 and any
integral multiple thereof and any Bearer Securities of a series denominated in
Dollars shall be issuable in the denomination of U.S. $5,000 and any integral
multiple thereof. Securities denominated in a Foreign Currency shall be issuable
in such denominations as are established with respect to such Securities in or
pursuant to this Indenture.
Section 3.3. Execution, Authentication, Delivery and Dating.
Securities shall be executed on behalf of the Company by the Chairman of the
Board, the President, the Chief Executive Officer, the Chief Operating Officer,
the Chief Financial Officer or any Vice President of the Company, and need not
be attested. The signatures of any of
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these officers on the Securities may be manual or facsimile. The interest
coupons, if any, of Bearer Securities shall bear the facsimile signature of the
Chairman of the Board, the President, the Chief Executive Officer, the Chief
Operating Officer, the Chief Financial Officer or any Vice President of the
Company, and need not be attested.
Securities and interest coupons bearing the manual or
facsimile signatures of individuals who were at any time Officers of the Company
shall bind the Company, notwithstanding that such individuals or any of them
have ceased to be Officers prior to the authentication and delivery of such
Securities or were not Officers at the date of such Securities.
At any time and from time to time, the Company may deliver
Securities, together with any interest coupons appertaining thereto, of any
series executed by the Company to the Trustee for authentication, together with
a Company Order for the authentication and delivery of such Securities, and the
Trustee in accordance with such Company Order shall authenticate and deliver
such Securities to or upon the order of the Company (as set forth in such
Company Order); provided, however, that, in the case of Securities of a series
offered in a Periodic Offering, the Trustee shall authenticate and deliver such
Securities from time to time in accordance with such other procedures
(including, without limitation, the receipt by the Trustee of oral or electronic
instructions from the Company or its duly authorized agents, promptly confirmed
in writing) acceptable to the Trustee as may be specified by or pursuant to a
Company Order delivered to the Trustee prior to the time of the first
authentication of Securities of such series.
If the form or terms of the Securities of a series have been
established by or pursuant to one or more Board Resolutions or one or more
indentures supplemental hereto as permitted by Sections 2.1 and 3.1, in
authenticating such Securities and accepting the additional responsibilities
under this Indenture in relation to such Securities, the Trustee shall be
entitled to receive, and (subject to section 315(a) through (d) of the Trust
Indenture Act) shall be fully protected in relying upon,
(i) an Opinion of Counsel stating:
(1) if the form or forms of such Securities and any interest
coupons have been established by or pursuant to a Board Resolution as permitted
by Section 2.1, that such forms have been established in conformity with the
provisions of this Indenture;
(2) if the terms of such Securities and any interest coupons
have been, or, in the case of Securities of a series offered in a Periodic
Offering, will be, established by or pursuant to a Board Resolution as permitted
by Section 3.1, that such terms have been, or, in the case of Securities of a
series offered in a Periodic Offering, will be,
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established in conformity with the provisions of this Indenture, subject, in the
case of Securities offered in a Periodic Offering, to any conditions specified
in such Opinion of Counsel;
(3) if the form or terms of such Securities have been
established in an indenture supplemental hereto, that such supplemental
indenture has been duly authorized, executed and delivered by the Company and,
when duly authorized, executed and delivered by the Trustee, will constitute a
legal, valid and binding obligation enforceable against the Company in
accordance with its terms, subject to (i) bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and other similar laws of general
applicability relating to or affecting the enforcement of creditors' rights and
to general principles of equity (regardless of whether enforcement is sought in
a proceeding in equity or at law), and (ii) such other reasonable exceptions as
may be specified in such Opinion of Counsel; and
(4) that such Securities, together with any interest coupons
appertaining thereto, when issued by the Company and authenticated and delivered
by the Trustee in the manner and subject to any conditions specified in such
Opinion of Counsel, will constitute valid and legally binding obligations of the
Company, enforceable against the Company in accordance with their terms, subject
to (i) bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium
and other similar laws of general applicability relating to or affecting the
enforcement of creditors' rights and to general equity principles (regardless of
whether enforcement is sought in a proceeding in equity or at law) and except
further as enforcement thereof may be limited by (A) requirements that a claim
with respect to any Securities denominated other than in Dollars (or a Foreign
Currency or currency unit judgment in respect of such claim) be converted into
Dollars at a rate of exchange prevailing on a date determined pursuant to
applicable law or (B) governmental authority to limit, delay or prohibit the
making of payments in Foreign Currencies or currency units or payments outside
the United States, and (ii) such other reasonable exceptions as may be specified
in such Opinion of Counsel; and
(ii) an Officers' Certificate stating that all conditions
precedent provided for in this Indenture relating to the issuance of such
Securities have been complied with and that, to the knowledge of the signers of
such certificate, no Event of Default with respect to such Securities shall have
occurred and be continuing.
Notwithstanding that such form or terms have been so
established, the Trustee shall have the right to decline to authenticate such
Securities if, in the opinion of the Trustee (after consultation with counsel),
the issue of such Securities pursuant to this Indenture will materially
adversely affect the Trustee's own rights, duties or immunities under this
Indenture or otherwise or if the Trustee determines that such authentication may
not lawfully be made.
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Notwithstanding the provisions of Section 3.1 and of the two
preceding paragraphs, if all of the Securities of any series are not to be
issued at one time, it shall not be necessary to deliver the Officers'
Certificate otherwise required pursuant to Section 3.1 or the Company Order and
Opinion of Counsel otherwise required pursuant to the two preceding paragraphs
in connection with the authentication of each Security of such series if such
documents, with appropriate modifications to cover such future issuances, are
delivered at or prior to the authentication upon original issuance of the first
Security of such series to be issued.
With respect to Securities of a series offered in a Periodic
Offering, the Trustee may rely, as to the authorization by the Company of any of
such Securities, the form and terms thereof and the legality, validity, binding
effect and enforceability thereof, upon the Opinion of Counsel and the other
documents delivered pursuant to Sections 2.1 and 3.1 and this Section, as
applicable, in connection with the first authentication of Securities of such
series.
If the Company shall establish pursuant to Section 3.1 that
the Securities of a series are to be issued in whole or in part in global form,
then the Company shall execute and the Trustee shall, in accordance with this
Section and the Company Order with respect to such series, authenticate and
deliver one or more Securities in global form that (i) shall represent and shall
be denominated in an amount equal to the aggregate principal amount of the
Outstanding Securities of such series to be represented by such Security or
Securities in global form, (ii) shall be registered, if a Registered Security,
in the name of the Depositary for such Security or Securities in global form or
the nominee of such Depositary, (iii) shall be delivered by the Trustee to such
Depositary or pursuant to such Depositary's instruction and (iv) shall bear the
legend set forth in Section 2.4.
Each Depositary designated pursuant to Section 3.1 for a
Registered Security in global form must, at the time of its designation and at
all times while it serves as Depositary, be a clearing agency registered under
the Securities Exchange Act of 1934 and any other applicable statute or
regulation. If requested by the Company, the Trustee shall enter into an
agreement with a Depositary governing the respective duties and rights of such
Depositary and the Trustee with regard to Securities issued in global form.
Each Registered Security shall be dated the date of its
authentication and each Bearer Security shall be dated as of the date specified
pursuant to Section 3.1.
No Security or interest coupon appertaining thereto shall be
entitled to any benefits under this Indenture or be valid or obligatory for any
purpose until such Security has been authenticated by the manual signature of
one of the authorized signatories of the Trustee or an Authenticating Agent.
Such signature upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly
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authenticated and delivered under this Indenture and is entitled to the benefits
of this Indenture. Except as permitted by Section 3.6 or 3.7, the Trustee shall
not authenticate and deliver any Bearer Security unless all appurtenant interest
coupons for interest then matured have been detached and cancelled.
Notwithstanding the foregoing, if any Security shall have been
authenticated and delivered hereunder but never issued and sold by the Company,
and the Company shall deliver such Security to the Trustee for cancellation as
provided in Section 3.9 together with a written statement (which need not comply
with Section 1.2 hereof and need not be accompanied by an Officers' Certificate
or an Opinion of Counsel) stating that such Security has never been issued and
sold by the Company, for all purposes of this Indenture such Security shall be
deemed never to have been authenticated and delivered hereunder and shall not be
entitled to the benefits of this Indenture.
Section 3.4. Temporary Securities . Pending the preparation of
definitive Securities of any series, the Company may execute and, upon Company
Order, the Trustee shall authenticate and deliver temporary Securities of such
series which are printed, lithographed, typewritten, mimeographed or otherwise
produced, in any authorized denomination, substantially of the tenor and form,
with or without interest coupons, of the definitive Securities in lieu of which
they are issued and with such appropriate insertions, omissions, substitutions
and other variations as the officers executing such Securities may determine, as
conclusively evidenced by their execution of such Securities and interest
coupons, if any. In the case of Securities of any series, such temporary
Securities may be in global form, representing all or a portion of the
Outstanding Securities of such series.
Except in the case of temporary Securities in global form,
each of which shall be exchanged in accordance with the provisions thereof, if
temporary Securities of any series are issued, the Company will cause definitive
Securities of such series to be prepared without unreasonable delay. After
preparation of definitive Securities of such series, the temporary Securities of
such series shall be exchangeable for definitive Securities of such series upon
surrender of the temporary Securities of such series at the office or agency of
the Company pursuant to Section 9.2 in a Place of Payment for such series,
without charge to the Holder. Upon surrender for cancellation of any one or more
temporary Securities of any series (accompanied by any unmatured interest
coupons appertaining thereto), the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a like principal amount of
definitive Securities of the same series of authorized denominations and of like
tenor; provided, however, that no definitive Bearer Security shall be delivered
in exchange for a temporary Registered Security; and provided, further, that no
definitive Bearer Security shall be delivered in exchange for a temporary Bearer
Security unless such delivery shall occur outside the
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United States. Until so exchanged, the temporary Securities of any series shall
in all respects be entitled to the same benefits under this Indenture as
definitive Securities of such series except as otherwise specified as
contemplated by Section 3.1.
Section 3.5. Registration, Transfer and Exchange . The Company
shall cause to be kept at the Corporate Trust Office of the Trustee or in any
office or agency to be maintained by the Company in accordance with Section 9.2
in a Place of Payment a register (the "Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Registered Securities and the registration of transfers of
Registered Securities. The Register shall be in written form or any other form
capable of being converted into written form within a reasonable time. The
Trustee is hereby initially appointed "Registrar" for the purpose of registering
Registered Securities and transfers of Registered Securities as herein provided.
Upon surrender for registration of transfer of any Registered
Security of any series at the office or agency maintained pursuant to Section
9.2 in a Place of Payment for that series, the Company shall execute, and the
Trustee shall authenticate and deliver, in the name of the designated transferee
or transferees, one or more new Registered Securities of the same series, of any
authorized denominations and of a like aggregate principal amount and tenor and
containing identical terms and provisions.
Bearer Securities (except for any temporary global Bearer
Securities) or any interest coupons appertaining thereto (except for interest
coupons attached to any temporary global Bearer Security) shall be transferable
by delivery.
At the option of the Holder, Registered Securities of any
series (except a Registered Security in global form) may be exchanged for other
Registered Securities of the same series, of any authorized denominations, of a
like aggregate principal amount and tenor and containing identical terms and
provisions, upon surrender of the Registered Securities to be exchanged at such
office or agency. Whenever any Registered Securities are so surrendered for
exchange, the Company shall execute, and the Trustee shall authenticate and
deliver, the Registered Securities which the Holder making the exchange is
entitled to receive. Unless otherwise specified as contemplated by Section 3.1,
Bearer Securities may not be issued in exchange for Registered Securities.
Unless otherwise specified as contemplated by Section 3.1, at
the option of the Holder, Bearer Securities of such series may be exchanged for
Registered Securities (if the Securities of such series are issuable in
registered form) or Bearer Securities (if Bearer Securities of such series are
issuable in more than one denomination and such exchanges are permitted by such
series) of the same series, of any authorized denominations, of like aggregate
principal amount and tenor and containing identical terms and conditions, upon
surrender of the Bearer Securities to be exchanged at any such
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office or agency, with all unmatured interest coupons and all matured interest
coupons in default thereto appertaining. If the Holder of a Bearer Security is
unable to produce any such unmatured interest coupon or coupons or matured
interest coupon or coupons in default, such exchange may be effected if the
Bearer Securities are accompanied by payment in funds acceptable to the Company
and the Trustee in an amount equal to the face amount of such missing interest
coupon or coupons, or the surrender of such missing interest coupon or interest
coupons may be waived by the Company and the Trustee if there be furnished to
them such security or indemnity as they may require to save each of them and any
Paying Agent harmless. If thereafter the Holder of such Security shall surrender
to any Paying Agent any such missing interest coupon in respect of which such a
payment shall have been made, such Holder shall be entitled to receive the
amount of such payment; provided, however, that, except as otherwise provided in
Section 9.2, interest represented by interest coupons shall be payable only upon
presentation and surrender of those interest coupons at an office or agency
located outside the United States. Notwithstanding the foregoing, in case any
Bearer Security of any series is surrendered at any such office or agency in
exchange for a Registered Security of the same series after the close of
business at such office or agency on (i) any Regular Record Date and before the
opening of business at such office or agency on the relevant Interest Payment
Date, or (ii) any Special Record Date and before the opening of business at such
office or agency on the related date for payment of Defaulted Interest, such
Bearer Security shall be surrendered without the interest coupon relating to
such Interest Payment Date or proposed date of payment, as the case may be (or,
if such interest coupon is so surrendered with such Bearer Security, such
interest coupon shall be returned to the Person so surrendering the Bearer
Security), and interest or Defaulted Interest, as the case may be, will not be
payable on such Interest Payment Date or proposed date for payment, as the case
may be, in respect of the Registered Security issued in exchange for such Bearer
Security, but will be payable only to the Holder of such interest coupon, when
due in accordance with the provisions of this Indenture.
Notwithstanding anything herein to the contrary, the exchange
of Bearer Securities for Registered Securities shall be subject to applicable
laws and regulations in effect at the time of exchange. Neither the Company, the
Trustee nor the Registrar shall exchange any Bearer Securities for Registered
Securities if it has received an Opinion of Counsel that as a result of such
exchange the Company would suffer adverse consequences under the United States
Federal income tax laws and regulations then in effect and the Company has
delivered to the Trustee a Company Order directing the Trustee not to make such
exchanges thereafter, unless and until the Trustee receives a subsequent Company
Order to the contrary. The Company shall deliver copies of such Company Order to
the Registrar.
Notwithstanding any other provision of this Section, unless
and until it is exchanged in whole or in part for Securities in certificated
form, a Security in global form
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representing all or a portion of the Securities of a series may not be
transferred except as a whole by the Depositary for such series to a nominee of
such Depositary or by a nominee of such Depositary to such Depositary or another
nominee of such Depositary or by such Depositary or any such nominee to a
successor Depositary for such series or a nominee of such successor Depositary.
If at any time the Depositary for the Securities of a series
notifies the Company that it is unwilling or unable to continue as Depositary
for the Securities of such series or if at any time the Depositary for the
Securities of such series shall no longer be eligible under Section 3.3, the
Company shall appoint a successor Depositary with respect to the Securities of
such series. If a successor Depositary for the Securities of such series is not
appointed by the Company prior to the resignation of the Depositary and, in any
event, within 90 days after the Company receives such notice or becomes aware of
such ineligibility, the Company's designation of the Depositary pursuant to
Section 3.1(b)(22) shall no longer be effective with respect to the Securities
of such series and the Company shall execute, and the Trustee, upon receipt of a
Company Order for the authentication and delivery of certificated Securities of
such series of like tenor, shall authenticate and deliver, Securities of such
series of like tenor in certificated form, in authorized denominations and in an
aggregate principal amount equal to the principal amount of the Security or
Securities of such series of like tenor in global form in exchange for such
Security or Securities in global form.
The Company may at any time in its sole discretion determine
that Securities issued in global form shall no longer be represented by such a
Security or Securities in global form. In such event the Company shall execute,
and the Trustee, upon receipt of a Company Order for the authentication and
delivery of certificated Securities of such series of like tenor, shall
authenticate and deliver, Securities of such series of like tenor in
certificated form, in authorized denominations and in an aggregate principal
amount equal to the principal amount of the Security or Securities of such
series of like tenor in global form in exchange for such Security or Securities
in global form.
If specified by the Company pursuant to Section 3.1 with
respect to a series of Securities, the Depositary for such series may surrender
a Security in global form of such series in exchange in whole or in part for
Securities of such series in certificated form on such terms as are acceptable
to the Company and such Depositary. Thereupon, the Company shall execute, and
the Trustee shall authenticate and deliver, without service charge,
(i) to each Person specified by such Depositary a new
certificated Security or Securities of the same series of like
tenor, of any authorized denomination as requested by such
Person in aggregate principal
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amount equal to and in exchange for such Person's beneficial
interest in the Security in global form; and
(ii) to such Depositary a new Security in global form
of like tenor in a denomination equal to the difference, if
any, between the principal amount of the surrendered Security
in global form and the aggregate principal amount of
certificated Securities delivered to Holders thereof.
Upon the exchange of a Security in global form for Securities
in certificated form, such Security in global form shall be cancelled by the
Trustee. Unless expressly provided with respect to the Securities of any series
that such Security may be exchanged for Bearer Securities, Securities in
certificated form issued in exchange for a Security in global form pursuant to
this Section shall be registered in such names and in such authorized
denominations as the Depositary for such Security in global form, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee in writing. The Trustee shall deliver such Securities to
the Persons in whose names such Securities are so registered.
Whenever any Securities are surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and deliver, the
Securities which the Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or
upon any exchange of Securities shall be the valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Securities surrendered upon such registration of transfer or
exchange.
Every Registered Security presented or surrendered for
registration of transfer or for exchange shall (if so required by the Company,
the Registrar or the Trustee) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Company, the Registrar and
the Trustee duly executed by the Holder thereof or his attorney duly authorized
in writing.
No service charge shall be made for any registration of
transfer or for any exchange of Securities, but the Company may require payment
of a sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any registration or transfer or exchange of
Securities, other than exchanges pursuant to Section 3.4, 8.6 or 11.7 not
involving any transfer.
The Company shall not be required (i) to issue, register the
transfer of, or exchange any Securities for a period beginning at the opening of
business 15 days before any selection for redemption of Securities of like tenor
and of the series of which such Security is a part and ending at the close of
business on the earliest date on which the
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relevant notice of redemption is deemed to have been given to all Holders of
Securities of like tenor and of such series to be redeemed; (ii) to register the
transfer of or exchange any Registered Security so selected for redemption, in
whole or in part, except the unredeemed portion of any Security being redeemed
in part; or (iii) to exchange any Bearer Security so selected for redemption,
except that such a Bearer Security may be exchanged for a Registered Security of
that series and like tenor; provided that such Registered Security shall be
simultaneously surrendered for redemption.
The foregoing provisions relating to registration, transfer
and exchange may be modified, supplemented or superseded with respect to any
series of Securities by a Board Resolution or in one or more indentures
supplemental hereto.
Section 3.6. Replacement Securities . If a mutilated Security
or a Security with a mutilated interest coupon appertaining to it is surrendered
to the Trustee, together with, in proper cases, such security or indemnity as
may be required by the Company or the Trustee to save each of them harmless, the
Company shall execute and the Trustee shall authenticate and deliver a
replacement Registered Security, if such surrendered Security was a Registered
Security, or a replacement Bearer Security with interest coupons corresponding
to the interest coupons appertaining to the surrendered Security, if such
surrendered Security was a Bearer Security, of the same series and date of
maturity.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any Security
or interest coupon and (ii) such security or indemnity as may be required by
them to save each of them and any agent of either of them harmless, then, in the
absence of notice to the Company or the Trustee that such Security or interest
coupon has been acquired by a bona fide purchaser, the Company shall execute and
the Trustee shall authenticate and deliver in lieu of any such destroyed, lost
or stolen Security or in exchange for the Security to which a destroyed, lost or
stolen interest coupon appertains (with all appurtenant interest coupons not
destroyed, lost or stolen), a replacement Registered Security, if such Holder's
claim appertains to a Registered Security, or a replacement Bearer Security with
interest coupons corresponding to the interest coupons appertaining to the
destroyed, lost or stolen Bearer Security or the Bearer Security to which such
lost, destroyed or stolen interest coupon appertains, if such Holder's claim
appertains to a Bearer Security, of the same series and principal amount,
containing identical terms and provisions and bearing a number not
contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security
or interest coupon has become or is about to become due and payable, the Company
in its discretion may, instead of issuing a new Security or interest coupon, pay
such Security or interest coupon; provided, however, that payment of principal
of and any premium or interest on
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Bearer Securities shall, except as otherwise provided in Section 9.2, be payable
only at an office or agency located outside the United States and, unless
otherwise specified as contemplated by Section 3.1, any interest on Bearer
Securities shall be payable only upon presentation and surrender of the interest
coupons appertaining thereto.
Upon the issuance of any new Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee, its agents and
counsel) connected therewith.
Every new Security of any series with its interest coupons, if
any, issued pursuant to this Section in lieu of any destroyed, lost or stolen
Security, or in exchange for a Security to which a destroyed, lost or stolen
interest coupon appertains, shall constitute an original additional contractual
obligation of the Company, whether or not the destroyed, lost or stolen Security
and its interest coupon, if any, or the destroyed, lost or stolen interest
coupon, shall be at any time enforceable by anyone, and shall be entitled to all
the benefits of this Indenture equally and proportionately with any and all
other Securities of that series and their interest coupons, if any, duly issued
hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Securities or
interest coupons.
Section 3.7. Payment of Interest; Interest Rights Preserved .
(a) Unless otherwise provided as contemplated by Section 3.1, interest, if any,
on any Registered Security which is payable, and is punctually paid or duly
provided for, on any Interest Payment Date shall be paid to the Person in whose
name that Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest at the office or
agency maintained for such purpose pursuant to Section 9.2; provided, however,
that at the option of the Company, interest on any series of Registered
Securities that bears interest may be paid (i) by check mailed to the address of
the Person entitled thereto as it shall appear on the Register of Holders of
Securities of such series or (ii) at the expense of the Company, by wire
transfer to an account maintained by the Person entitled thereto as specified in
the Register of Holders of Securities of such series.
Unless otherwise provided as contemplated by Section 3.1, (i)
interest, if any, on Bearer Securities shall be paid only against presentation
and surrender of the interest coupons for such interest installments as are
evidenced thereby as they mature and (ii) original issue discount, if any, on
Bearer Securities shall be paid only against presentation and surrender of such
Securities; in either case at the office of a Paying Agent located outside the
United States, unless the Company shall have otherwise
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instructed the Trustee in writing, provided that any such instruction for
payment in the United States does not cause any Bearer Security to be treated as
a "registration-required obligation" under United States laws and regulations.
The interest, if any, on any temporary Bearer Security shall be paid, as to any
installment of interest evidenced by an interest coupon attached thereto only
upon presentation and surrender of such interest coupon and, as to other
installments of interest, only upon presentation of such Security for notation
thereon of the payment of such interest. If at the time a payment of principal
of or interest, if any, on a Bearer Security or interest coupon shall become
due, the payment of the full amount so payable at the office or offices of all
the Paying Agents outside the United States is illegal or effectively precluded
because of the imposition of exchange controls or other similar restrictions on
the payment of such amount in Dollars, then the Company may instruct the Trustee
in writing to make such payments at a Paying Agent located in the United States,
provided that provision for such payment in the United States would not cause
such Bearer Security to be treated as a "registration-required obligation" under
United States laws and regulations.
(b) Unless otherwise provided as contemplated by Section 3.1,
any interest on Securities of any series which is payable, but is not punctually
paid or duly provided for, on any Interest Payment Date in the case of
Registered Securities and upon presentation and surrender of the applicable
interest coupon in accordance with the second paragraph of Section 3.7(a) in the
case of Bearer Securities (herein called "Defaulted Interest"), shall forthwith
cease to be payable to the Holders of Registered Securities on the relevant
Regular Record Date by virtue of their having been such Holders, or to the
Holders of Bearer Securities by virtue of their having presented the applicable
interest coupon on such Interest Payment Date, and such Defaulted Interest may
be paid by the Company, at its election in each case, as provided in clause (1)
or (2) below:
(1) In the case of Registered Securities, the Company may
elect to make payment of such Defaulted Interest to the Persons in
whose names such Registered Securities (or their respective Predecessor
Securities) are registered at the close of business on a Special Record
Date for the payment of such Defaulted Interest, which shall be fixed
in the following manner. The Company shall notify the Trustee in
writing of the amount of Defaulted Interest proposed to be paid on each
such Registered Security and the date of the proposed payment, and
shall deposit with the Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements satisfactory to the Trustee for
such deposit prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons entitled
to such Defaulted Interest as in this clause (1) provided. Thereupon
the Trustee shall fix a Special Record Date for the payment of such
Defaulted Interest which shall be not more than 15 days and not less
than 10 days
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prior to the date of the proposed payment and not less
than 10 days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the Company of such
Special Record Date and, in the name and at the expense of the Company,
shall cause notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor to be mailed, first-class postage
prepaid, to each Holder of such Registered Securities at his or her
address as it appears in the Register, not less than 10 days prior to
such Special Record Date. Notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor having been so
mailed, such Defaulted Interest shall be paid to the Persons in whose
names such Registered Securities (or their respective Predecessor
Securities) are registered at the close of business on such Special
Record Date and shall no longer be payable pursuant to the following
clause (2).
(2)(x) In the case of Registered Securities, the Company may
make payment of such Defaulted Interest to the Persons in whose names
such Registered Securities (or their respective Predecessor Securities)
are registered at the close of business on a specified date in any
other lawful manner not inconsistent with the requirements of any
securities exchange on which such Registered Securities may be listed,
and upon such notice as may be required by such exchange, if, after
notice given by the Company to the Trustee of the proposed payment
pursuant to this clause (2)(x), such manner of payment shall be deemed
practicable by the Trustee; or (y) unless otherwise provided as
contemplated by Section 3.1, in the case of Bearer Securities, the
Company may make payment of Defaulted Interest on such Bearer
Securities in any lawful manner not inconsistent with the requirements
of any securities exchange on which such Bearer Securities may be
listed, and upon such notice as may be required by such exchange, if,
after notice given by the Company to the Trustee of the proposed
payment pursuant to this clause (2)(y), such manner of payment shall be
deemed practicable by the Trustee.
(c) Subject to the foregoing provisions of this Section and
Section 3.5, each Security delivered under this Indenture upon registration of
transfer of or in exchange for or in lieu of any other Security shall carry the
rights to interest accrued and unpaid, and to accrue, which were carried by such
other Security.
(d) In the case of any Registered Security which is converted
or exchanged after any Regular Record Date and on or prior to the next
succeeding Interest Payment Date (other than any Security the principal of (or
premium, if any, on) which shall become due and payable, whether at Stated
Maturity or by declaration of acceleration, call for redemption or otherwise
prior to such Interest Payment Date), interest whose Stated Maturity is on such
Interest Payment Date shall be payable on such Interest Payment Date
notwithstanding such conversion or exchange and such interest (whether or not
punctually paid or duly provided for) shall be paid to the
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name that Registered Security (or any one or more Predecessor Securities) is
registered at the close of business on such Regular Record Date, unless
otherwise provided with respect to Securities of that series pursuant to Section
3.1(b).
Section 3.8. Persons Deemed Owners . Unless otherwise provided
as contemplated by Section 3.1, prior to due presentment of any Registered
Security for registration of transfer, the Company, the Trustee and any agent of
the Company or the Trustee may treat the Person in whose name such Registered
Security is registered as the owner of such Registered Security for the purpose
of receiving payment of principal of, premium, if any, and (subject to Section
3.7) interest on such Registered Security and for all other purposes whatsoever,
whether or not such Registered Security be overdue, and neither the Company, the
Trustee nor any agent of the Company or the Trustee shall be affected by notice
to the contrary.
Unless otherwise provided as contemplated by Section 3.1, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
bearer of any Bearer Security and the bearer of any interest coupon as the
absolute owner of such Bearer Security or interest coupon for the purpose of
receiving payment thereof or on account thereof and for all other purposes
whatsoever, whether or not such Bearer Security or interest coupon be overdue,
and neither the Company, the Trustee nor any agent of the Company or the Trustee
shall be affected by notice to the contrary.
None of the Company, the Trustee or any agent of the Company
or the Trustee shall have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests of a Security in global form, or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests. No holder
of any beneficial interest in any Security in global form, held on its behalf by
or through a Depositary, shall have any rights under this Indenture with respect
to such Security in global form, and such Depositary may be treated by the
Company, the Trustee and any agent of the Company or the Trustee as the owner of
such Security in global form for all purposes whatsoever. With respect to any
Security in global form, nothing herein shall prevent the Company or the
Trustee, or any agent of the Company or the Trustee, from giving effect to any
written certification, proxy or other authorization furnished by any Depositary
(or its nominee), as a Holder, with respect to such Security in global form or
impair, as between such Depositary and owners of beneficial interests in such
Security in global form, the operation of customary practices governing the
exercise of the rights of such Depositary (or its nominee) as Holder of such
Security in global form.
Section 3.9. Cancellation . All Securities and interest
coupons appertaining thereto, if any, surrendered for payment, redemption,
conversion, registration of transfer or exchange or for credit against any
sinking fund payment shall, if
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surrendered to any Person other than the Trustee, be delivered to the Trustee
and shall be promptly cancelled by it. The Company may at any time deliver to
the Trustee for cancellation any Securities, together with interest coupons
appertaining thereto, if any, previously authenticated and delivered hereunder
which the Company may have acquired in any manner whatsoever, and may deliver to
the Trustee (or to any other Person for delivery to the Trustee) for
cancellation any Securities, together with interest coupons appertaining
thereto, if any, previously authenticated hereunder which the Company has not
issued and sold, and all Securities and interest coupons so delivered shall be
promptly cancelled by the Trustee. No Securities shall be authenticated in lieu
of or in exchange for any Securities cancelled as provided in this Section 3.9,
except as expressly permitted by this Indenture. All cancelled Securities and
interest coupons held by the Trustee shall be disposed of in accordance with its
customary procedures, and the Trustee shall thereafter deliver to the Company a
certificate with respect to such disposition.
Section 3.10. Computation of Interest . Except as otherwise
specified as contemplated by Section 3.1, interest on the Securities of each
series shall be computed on the basis of a 360-day year of twelve 30-day months.
Section 3.11. CUSIP Numbers . The Company in issuing the
Securities may use "CUSIP" numbers (if then generally in use and in addition to
the other identification numbers printed on the Securities), and, in such case,
the Trustee shall use "CUSIP" numbers in notices of redemption as a convenience
to Holders; provided that any such notice may state that no representation is
made as to the correctness of such numbers either as printed on the Securities
or as contained in any notice of a redemption and that reliance may be placed
only on the other identification numbers printed on the Securities, and any such
redemption shall not be affected by any defect in or omission of such numbers.
Section 3.12. Currency and Manner of Payment in Respect of
Securities . Unless otherwise specified with respect to any Securities pursuant
to Section 3.1, payment of the principal of, premium, if any, and interest, if
any, on any Security of such series will be made in the currency or currencies
or currency unit or units in which such Security is payable. The provisions of
this Section 3.12 may be modified or superseded pursuant to Section 3.1 with
respect to any Securities.
ARTICLE 4
SATISFACTION, DISCHARGE AND DEFEASANCE
Section 4.1. Termination of Company's Obligations Under the
Indenture . This Indenture shall upon a Company Request cease to be of further
effect with respect to Securities of or within any series and any interest
coupons appertaining thereto (except as to (i) rights of registration, transfer
or exchange of such Securities, (ii) rights of
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replacement of such Securities which may have been lost, stolen or mutilated as
herein expressly provided for, (iii) rights of holders of Securities to receive
payments of principal thereof and interest thereon, upon the Stated Maturity
thereof (but not upon acceleration), and rights of the Holders to receive
mandatory sinking fund payments, if any, (iv) rights of holders of Securities to
convert or exchange Securities, (v) rights, obligations, duties and immunities
of the Trustee hereunder, (vi) any rights of the Holders of Securities of such
series as beneficiaries hereof with respect to the property so deposited with
the Trustee payable to all or any of them, and (vii) the obligations of the
Company under Section 9.2) and the Trustee, upon payment of all amounts due it
under Section 6.7, at the expense of the Company, shall execute proper
instruments acknowledging satisfaction and discharge of this Indenture with
respect to such Securities and any interest coupons appertaining thereto when
(1) either
(A) all such Securities previously authenticated and
delivered and all interest coupons appertaining thereto (other
than (i) such interest coupons appertaining to Bearer
Securities surrendered in exchange for Registered Securities
and maturing after such exchange, surrender of which is not
required or has been waived as provided in Section 3.5, (ii)
such Securities and interest coupons which have been
destroyed, lost or stolen and which have been replaced or paid
as provided in Section 3.6, (iii) such interest coupons
appertaining to Bearer Securities called for redemption and
maturing after the relevant Redemption Date, surrender of
which has been waived as provided in Section 11.6 and (iv)
such Securities and interest coupons for whose payment money
in the currency or currencies or currency unit or units in
which such Securities are payable has theretofore been
deposited in trust or segregated and held in trust by the
Company and thereafter repaid to the Company or discharged
from such trust, as provided in Section 9.3) have been
delivered to the Trustee for cancellation; or
(B) all Securities of such series and, in the case of
(i) or (ii) below, any interest coupons appertaining thereto
not theretofore delivered to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their
Stated Maturity within one year, or
(iii) are to be called for redemption within
one year under arrangements satisfactory to the
Trustee for the giving of notice of
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redemption by the Trustee in the name, and at the
expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above, has
irrevocably deposited or caused to be deposited with the
Trustee as trust funds in trust for the purpose an amount in
the currency or currencies or currency unit or units in which
the Securities of such series are payable, sufficient to pay
and discharge the entire indebtedness on such Securities and
such interest coupons not theretofore delivered to the Trustee
for cancellation, for principal, premium, if any, and
interest, with respect thereto, to the date of such deposit
(in the case of Securities which have become due and payable)
or to the Stated Maturity or Redemption Date, as the case may
be;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and
discharge of this Indenture as to such series have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the obligation
of the Company to the Trustee and any predecessor Trustee under Section 6.7, the
obligations of the Company to any Authenticating Agent under Section 6.14 and,
if money shall have been deposited with the Trustee pursuant to subclause (B) of
clause (1) of this Section, the obligations of the Trustee under Section 4.2,
Section 9.2 and the last paragraph of Section 9.3 shall survive.
Section 4.2. Application of Trust Funds . Subject to the
provisions of the last paragraph of Section 9.3, all money deposited with the
Trustee pursuant to Section 4.1 shall be held in trust and applied by it, in
accordance with the provisions of the Securities, the interest coupons
appertaining thereto, if any, and this Indenture, to the payment, either
directly or through any Paying Agent (including the Company acting as its own
Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of
the principal, premium, if any and any interest for whose payment such money has
been deposited with or received by the Trustee, but such money need not be
segregated from other funds except as otherwise provided herein and except to
the extent required by law.
Section 4.3. Applicability of Defeasance Provisions; Company's
Option to Effect Defeasance or Covenant Defeasance . Except as otherwise
specified as contemplated by Section 3.1 for the Securities of any series, the
provisions of Sections 4.4 through 4.9 inclusive, with such modifications
thereto as may be specified pursuant to
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Section 3.1 with respect to any series of Securities, shall be applicable to the
Securities and any interest coupons appertaining thereto.
Section 4.4. Defeasance and Discharge . On and after the date
on which the conditions set forth in Section 4.6 are satisfied with respect to
the Securities of or within any series, the Company shall be deemed to have paid
and been discharged from its obligations with respect to such Securities and any
interest coupons appertaining thereto (hereinafter "defeasance"). For this
purpose, such defeasance means that the Company shall be deemed to have paid and
discharged the entire indebtedness represented by such Securities and any
interest coupons appertaining thereto which shall thereafter be deemed to be
"Outstanding" only for the purposes of Sections 4.7 and 4.9 and the other
Sections of this Indenture referred to in clause (ii) of this Section, and to
have satisfied all its other obligations under such Securities and any interest
coupons appertaining thereto and this Indenture insofar as such Securities and
any interest coupons appertaining thereto are concerned (and the Trustee, upon
payment of all amounts due it under Section 6.7, at the expense of the Company,
shall on a Company Order execute proper instruments acknowledging the same),
except the following which shall survive until otherwise terminated or
discharged hereunder: (A) the rights of Holders of such Securities and any
interest coupons appertaining thereto to receive, solely from the trust funds
described in Section 4.6(a) and as more fully set forth in such Section,
payments in respect of the principal of, premium, if any, and interest, if any,
on such Securities or any interest coupons appertaining thereto when such
payments are due; (B) the Company's obligations with respect to such Securities
under Sections 3.4, 3.5, 3.6, 9.2 and 9.3 and with respect to the payment of
additional amounts, if any, payable with respect to such Securities as specified
pursuant to Section 3.1(b)(16); (C) the Company's obligations with respect to a
conversion or exchange of such Securities; (D) the rights, powers, trusts,
duties and immunities of the Trustee hereunder and (E) this Article 4. Subject
to compliance with this Article 4, the Company may defease the Securities of any
series and any interest coupons appertaining thereto under this Section 4.4
notwithstanding a prior covenant defeasance (as defined herein) under Section
4.5 with respect to such Securities and any interest coupons appertaining
thereto. Following a defeasance, payment of such Securities may not be
accelerated because of an Event of Default.
Section 4.5. Covenant Defeasance . On and after the date on
which the conditions set forth in Section 4.6 are satisfied with respect to the
Securities of or within any series, (i) the Company shall be released from its
obligations under Sections 7.1 and 9.4 and, if specified pursuant to Section
3.1, its obligations under any other covenant, with respect to such Securities
and any interest coupons appertaining thereto and (ii) the occurrence of any
event specified in Sections 5.1(d) or 5.1(i) (in each case, with respect to any
of the obligations described in clause (i) above) or 5.1(e) shall be deemed not
to be or result in a Default or Event of Default (hereinafter, "covenant
defeasance"), and such Securities and any interest coupons appertaining thereto
shall thereafter be deemed to be
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not "Outstanding" for the purposes of any request, demand, authorization,
direction, notice, waiver, consent or declaration or Act of Holders (and the
consequences of any thereof) in connection with Section 7.1 or 9.4, such other
covenant specified pursuant to Section 3.1, or Sections 5.1(d) or 5.1(i) (in
each case, with respect to any of the obligations described in clause (i) above)
or 5.1(e), but shall continue to be deemed "Outstanding" for all other purposes
hereunder. For this purpose, such covenant defeasance means that, with respect
to such Securities and any interest coupons appertaining thereto, the Company
may omit to comply with and shall have no liability in respect of any term,
condition or limitation set forth in any such Section or such other covenant,
whether directly or indirectly, by reason of any reference elsewhere herein to
any such Section or such other covenant or by reason of reference in any such
Section or such other covenant to any other provision herein or in any other
document and such omission to comply shall not constitute a Default or an Event
of Default under Section 5.1(d), 5.1(e) or 5.1(i) or otherwise, as the case may
be, but, except as specified above, the remainder of this Indenture and such
Securities and any interest coupons appertaining thereto shall be unaffected
thereby.
Section 4.6. Conditions to Defeasance or Covenant Defeasance .
The following shall be the conditions to application of either Section 4.4 or
Section 4.5 to the then Outstanding Securities of or within a series:
(a) The Company shall irrevocably have deposited or caused to
be deposited with the Trustee (or another trustee satisfying the
requirements of Section 6.9 who shall agree to comply with the
provisions of Sections 4.3 through 4.9 inclusive and the last paragraph
of Section 9.3 applicable to the Trustee, for purposes of such sections
also a "Trustee") as trust funds in trust for the purpose of making the
following payments, specifically pledged as security for, and dedicated
solely to, the benefit of the Holders of such Securities and any
interest coupons appertaining thereto, (A) money in an amount, or (B)
Government Obligations which through the scheduled payment of principal
and interest in respect thereof in accordance with their terms will
provide, not later than one day before the due date of any payment,
money in an amount, or (C) a combination thereof, in an amount
sufficient in the opinion of a nationally recognized firm of
independent certified public accountants expressed in a written opinion
with respect thereto delivered to the Trustee, to pay and discharge,
and which shall be applied by the Trustee (or other qualifying trustee)
to pay and discharge, (x) the principal of (premium, if any) and each
installment of interest, if any, on the outstanding Securities and any
interest coupons appertaining thereto on the Stated Maturity of such
principal or installment of interest and (y) any mandatory sinking fund
payments applicable to such Securities on the day on which such
payments are due and payable in accordance with the terms of this
Indenture and of such Securities and any interest
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coupons appertaining thereto.
(b) In the case of an election under Section 4.4, the Company
shall have delivered to the Trustee an Opinion of Counsel stating that
(x) the Company has received from, or there has been published by, the
Internal Revenue Service a ruling, or (y) since the date of this
Indenture there has been a change in the applicable Federal income tax
law, in either case to the effect that, and based thereon such opinion
shall confirm that, the Holders of the Outstanding Securities and any
interest coupons appertaining thereto will not recognize gain or loss
for Federal income tax purposes as a result of such deposit, defeasance
and discharge and will be subject to Federal income tax on the same
amount, in the same manner and at the same times as would have been the
case if such deposit, defeasance and discharge had not occurred.
(c) In the case of an election under Section 4.5, the Company
shall have delivered to the Trustee an Opinion of Counsel to the effect
that the Holders of the Outstanding Securities and any interest coupons
appertaining thereto will not recognize gain or loss for Federal income
tax purposes as a result of such deposit and 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.
(d) The Company shall have delivered to the Trustee an
Officer's Certificate to the effect that the Securities, if then listed
on any securities exchange or approved for trading in any automated
quotation system, will not be delisted or disapproved for such trading
as a result of such deposit.
(e) No Event of Default or event which with notice or lapse of
time or both would become an Event of Default shall have occurred and
be continuing on the date of such deposit or, insofar as subsections
5.1(g) and (h) are concerned, at any time during the period ending on
the 91st day after the date of such deposit (it being understood that
this condition shall not be deemed satisfied until the expiration of
such period).
(f) Such defeasance or 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).
(g) 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.
(h) The Company shall have delivered to the Trustee an
Officers'
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Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for relating to either the defeasance
under Section 4.4 or the covenant defeasance under Section 4.5 (as the
case may be) have been complied with.
(i) 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 registered under such act or exempt
from registration thereunder.
(j) Such defeasance or covenant defeasance shall be effected
in compliance with any additional or substitute terms, conditions or
limitations which may be imposed on the Company in connection therewith
as contemplated by Section 3.1.
Section 4.7. Deposited Money and Government Obligations to Be
Held in Trust . Subject to the provisions of the last paragraph of Section 9.3,
all money and Government Obligations (or other property as may be provided
pursuant to Section 3.1) (including the proceeds thereof) deposited with the
Trustee pursuant to Section 4.6 in respect of any Securities of any series and
any interest coupons appertaining thereto shall be held in trust and applied by
the Trustee, in accordance with the provisions of such Securities and any
interest coupons appertaining thereto and this Indenture, to the payment, either
directly or through any Paying Agent (including the Company acting as its own
Paying Agent) as the Trustee may determine, to the Holders of such Securities
and any interest coupons appertaining thereto of all sums due and to become due
thereon in respect of principal, premium, if any, and interest, if any, but such
money need not be segregated from other funds except as provided herein and
except to the extent required by law.
Section 4.8. Repayment to Company . Subject to the delivery by
the Company of any written certification required by the last paragraph of this
Section 4.8, the Trustee (and any Paying Agent) shall promptly pay to the
Company upon Company Request any excess money or securities held by them at any
time.
The provisions of the last paragraph of Section 9.3 shall
apply to any money or securities held by the Trustee or any Paying Agent under
this Article 4 that remain unclaimed for two years after the Maturity of any
series of Securities for which money or securities have been deposited pursuant
to Section 4.6(a).
Anything in this Article to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or Government Obligations held by it as provided in Section
4.6 with respect to any Securities which, in the opinion of a nationally
recognized firm of independent public
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accountants expressed in a written certification thereof delivered to the
Trustee, are in excess of the amount thereof which would then be required to be
deposited to effect the defeasance or covenant defeasance, as the case may be,
with respect to such Securities.
Section 4.9. Indemnity for Government Obligations . The
Company shall pay, and shall indemnify the Trustee against, any tax, fee or
other charge imposed on or assessed against Government Obligations deposited
pursuant to this Article or the principal and interest received in respect
thereof other than any such tax, fee or other charge which by law is for the
account of the Holders of the Outstanding Securities.
Section 4.10. Reinstatement . If the Trustee (or Paying Agent)
is unable to apply any money or Government Obligations in accordance with
Section 4.6 by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application, then
the Company's obligations under this Indenture and the Securities shall be
revived and reinstated, with present and prospective effect, as though no
deposit had occurred pursuant to Section 4.6, until such time as the Trustee (or
Paying Agent) is permitted to apply all such money or Government Obligations in
accordance with Section 4.6; provided, however, that if the Company makes any
payment to the Trustee (or Paying Agent) of principal, premium, if any, or
interest on any Security following the reinstatement of its obligations, the
Trustee (or Paying Agent) shall promptly pay any such amount to the Holders of
the Securities and the Company shall be subrogated to the rights of the Holders
of such Securities to receive such payment from the money and Government
Obligations held by the Trustee (or Paying Agent).
ARTICLE 5
DEFAULTS AND REMEDIES
Section 5.1. Events of Default . An "Event of Default," with
respect to the Securities of any series, means any one of the following events
(whatever the reason for such Event of Default and whether it shall be voluntary
or involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(a) default in the payment of interest on any Security of that
series or any interest coupon appertaining thereto or any additional
amount payable with respect to any Security of that series as specified
pursuant to Section 3.1(b)(16) when the same becomes due and payable
and such default continues for a period of 30 days; or
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(b) default in the payment of any installment of the principal
of or any premium on any Security of that series when the same becomes
due and payable at its Maturity; or
(c) default in the deposit of any sinking fund payment, when
and as due by the terms of a Security of that series; or
(d) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture (other than a covenant or
warranty a default in whose performance or whose breach is elsewhere in
this Section specifically dealt with) or the Securities, and
continuance of such default or breach for a period of 60 days after
there has been given, in the manner provided in Section 1.6, to the
Company by the Trustee or to the Company and the Trustee by the Holders
of at least 10% in principal amount of the Outstanding Securities of
the series, a written notice specifying such default or breach and
requiring it to be remedied and stating that such notice is a "Notice
of Default" hereunder; or
(e) a default or defaults under the terms of any bond(s),
debenture(s), note(s) or other evidence(s) of, or obligations
constituting, Debt by the Company 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 or any Restricted Subsidiary with a
principal amount then outstanding, individually or in the aggregate, in
excess of $25 million, whether such Debt now exists or is hereafter
Incurred, which default or defaults constitute a failure to pay any
portion of the principal or similar amount of such Debt when due and
payable after the expiration of any applicable grace period with
respect thereto or results in such Debt becoming or being declared due
and payable prior to the date on which it would otherwise have become
due and payable; or
(f) a final judgment or final judgments (not subject to
appeal) for the payment of money are entered against the Company or any
Restricted Subsidiary in an aggregate amount in excess of $25 million
by a court or courts of competent jurisdiction, which judgments remain
unstayed, undischarged or unbonded for a period of 60 days after the
entry of such judgment or judgments; or
(g) the entry by a court having jurisdiction in the premises
of (A) a decree or order for relief in respect of the Company 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 or any
Restricted Subsidiary a bankrupt or insolvent, or approving as properly
filed a petition seeking reorganization, arrangement,
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adjustment or composition of or in respect of the Company or any
Restricted Subsidiary under any applicable Federal or state law, or
appointing a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company or any Restricted
Subsidiary or of any substantial part of the property of the Company or
any Restricted Subsidiary, or ordering the winding up or liquidation of
the affairs of the Company or any Restricted Subsidiary, and the
continuance of any such decree or order for relief or any such other
decree or order unstayed and in effect for a period of 60 consecutive
days; or
(h) the commencement by the Company 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 or any Restricted
Subsidiary to the entry of a decree or order for relief in respect of
the Company 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
or any Restricted Subsidiary or the filing by the Company 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 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 or any Restricted Subsidiary or of any
substantial part of the property of the Company or any Restricted
Subsidiary, or the making by the Company or any Restricted Subsidiary
of an assignment for the benefit of creditors, or the admission by the
Company 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 or any Restricted Subsidiary in furtherance of
any such action; or
(i) any other Event of Default provided as contemplated by
Section 3.1 with respect to Securities of that series.
Section 5.2. Acceleration; Rescission and Annulment . If an
Event of Default with respect to the Securities of any series at the time
Outstanding (other than an Event of Default specified in clause (g) or (h) of
Section 5.1) occurs and is continuing, the Trustee or the Holders of at least
25% in aggregate principal amount of all of the Outstanding Securities of that
series, by written notice received by the Company (and, if given by the Holders,
received by the Trustee), may declare the principal (or, if the Securities of
that series are Original Issue Discount Securities or Indexed Securities, such
portion of the principal amount as may be specified in the terms of that series)
of and accrued interest, if any, on all the Securities of that series to be due
and payable and upon
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any such declaration such principal (or, in the case of Original Issue Discount
Securities or Indexed Securities, such specified amount) and interest, if any,
shall be immediately due and payable. If an Event of Default specified in clause
(g) or (h) of Section 5.1 with respect to the Securities of any series at the
time Outstanding occurs and is continuing, then the principal (or, if the
Securities of that series are Original Issue Discount Securities or Indexed
Securities, such portion of the principal amount as may be specified in the
terms of that series) of and accrued interest, if any, on all the Securities of
that series shall ipso facto be immediately due and payable without any
declaration or act on the part of the Trustee or any Holder of such Securities.
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 of that series, by
written notice to the Company and the Trustee, may rescind and annul such
declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest on all Securities of that series,
(B) the principal of (and premium, if any, on) any
Securities of that series which have become due otherwise than by
such declaration of acceleration and any interest thereon at the
rate borne by the Securities of that series,
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate provided therefor in the
Securities of that series, and
(D) all sums paid or advanced by the Trustee hereunder and
the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel;
and
(2) all Events of Default, other than the nonpayment of the
principal of Securities of that series which have become due solely by
such declaration of acceleration, have been cured or waived as provided
in Section 5.7.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
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Section 5.3. Collection of Indebtedness and Suits for
Enforcement by Trustee . The Company covenants that if
(a) default is made in the payment of any interest on any
Security or interest coupon, if any, when such interest becomes due and
payable and such default continues for a period of 30 days, or
(b) default is made in the payment of the principal of (or
premium, if any, on) any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the
benefit of the Holders of such Securities or interest coupons, if any,
the whole amount then due and payable on such Securities for principal,
premium, if any, and interest and, to the extent that payment of such
interest shall be legally enforceable, interest on any overdue
principal, premium, if any, and on any overdue interest, at the rate or
rates prescribed therefor in such Securities or interest coupons, if
any, and, in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, including all
amounts due the Trustee, its agents and counsel under Section 6.7.
If the Company fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and unpaid
and may prosecute such proceeding to judgment or final decree, and may enforce
the same against the Company or any other obligor upon the Securities and
collect the moneys adjudged or decreed to be payable in the manner provided by
law out of the property of the Company or any other obligor upon the Securities,
wherever situated.
If an Event of Default with respect to Securities of any
series occurs and is continuing, the Trustee may in its discretion proceed to
protect and enforce its rights and the rights of the Holders of Securities of
such series by such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to secure any other proper remedy,
subject, however, to Section 5.8.
Section 5.4. Trustee May File Proofs of Claim . In case of any
judicial proceeding relative to the Company (or any other obligor upon the
Securities), its property or its creditors, the Trustee shall be entitled and
empowered, by intervention in such proceeding or otherwise, to take any and all
actions authorized under the Trust Indenture Act in order to have claims of the
Holders and the Trustee allowed in any such proceeding. In particular, the
Trustee shall be authorized to collect
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moneys or other property payable or deliverable on any such claims and to
distribute the same; and any custodian, receiver, assignee, trustee, liquidator,
sequestrator or other similar official in any such judicial proceeding is hereby
authorized by each Holder to make such payments to the Trustee and, in the event
that the Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 6.7.
No provision of this Indenture shall be deemed to authorize
the Trustee to authorize or consent to or accept or adopt on behalf of any
Holder of a Security or interest coupon any plan of reorganization, arrangement,
adjustment or composition affecting the Securities or the rights of any Holder
of a Security or interest coupon thereof or to authorize the Trustee to vote in
respect of the claim of any Holder of a Security or interest coupon in any such
proceeding; provided, however, that the Trustee may, on behalf of the Holders,
vote for the election of a trustee in bankruptcy or similar official and be a
member of a creditors' or other similar committee.
Section 5.5. Trustee May Enforce Claims Without Possession of
Securities . All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without the possession
of any of the Securities or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by the Trustee shall be brought in
its own name as trustee of an express trust, and any recovery of judgment shall,
after provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
Section 5.6 Delay or Omission Not Waiver . No delay or
omission by the Trustee or any Holder of any Securities to exercise any right or
remedy accruing upon an Event of Default shall impair any such right or remedy
or constitute a waiver of or acquiescence in any such Event of Default.
Section 5.7. Waiver of Past Defaults . The Holders of not less
than a majority in aggregate principal amount of Outstanding Securities of any
series by written notice to the Trustee may waive on behalf of the Holders of
all Securities of such series and any interest coupons appertaining thereto a
past Default or Event of Default with respect to that series and its
consequences except a Default or Event of Default (i) in the payment of the
principal of, premium, if any, or interest on any Security of such series or any
interest coupon appertaining thereto or (ii) in respect of a covenant or
provision hereof which pursuant to Article 8 cannot be amended or modified
without the consent of the Holder of each Outstanding Security of such series
affected. Upon any such waiver, such Default shall cease to exist, and any Event
of Default arising therefrom shall be
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deemed to have been cured, for every purpose of this Indenture but no such
waiver shall extend to any subsequent or other default or impair any right
consequent thereon.
Section 5.8. Control by Majority . The Holders of not less
than a majority in aggregate principal amount of the Outstanding Securities of
each series affected (with each such series voting as a class) shall have the
right to direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee or exercising any trust or power conferred on it
with respect to Securities of that series; provided, however, that (i) the
Trustee may refuse to follow any direction that conflicts with any governmental
rule or law or this Indenture, (ii) the Trustee may refuse to follow any
direction that is unduly prejudicial to the rights of the Holders of Securities
of such series not consenting, or that would in the good faith judgment of the
Trustee have a substantial likelihood of involving the Trustee in personal
liability without adequate indemnity having been offered therefor and (iii)
subject to Section 6.1, the Trustee may take any other action deemed proper by
the Trustee which is not inconsistent with such direction.
Section 5.9. Limitation on Suits by Holders . No Holder of any
Security of any series or any interest coupons appertaining thereto shall have
any right to institute any proceeding, judicial or otherwise, with respect to
this Indenture, or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless:
(a) the Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the Securities
of that series;
(b) the Holders of at least 25% in aggregate principal amount
of the Outstanding Securities of that series have made a written
request to the Trustee to institute proceedings in respect of such
Event of Default in its own name as Trustee hereunder;
(c) such Holder or Holders have offered to the Trustee
indemnity satisfactory to the Trustee against any loss, liability or
expense to be, or which may be, incurred by the Trustee in pursuing the
remedy;
(d) the Trustee for 60 days after its receipt of such notice,
request and the offer of indemnity has failed to institute any such
proceedings; and
(e) during such 60-day period, the Holders of a majority in
aggregate principal amount of the Outstanding Securities of that series
have not given to the Trustee a direction inconsistent with such
written request.
No one or more Holders of Securities of a series shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect,
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disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such
Holders.
Section 5.10. Rights of Holders to Receive Payment .
Notwithstanding any other provision of this Indenture, but subject to Section
9.2, the right of any Holder of a Security or interest coupon to receive payment
of principal of, premium, if any, and, subject to Sections 3.5 and 3.7, interest
on the Security, on or after the respective due dates expressed in the Security
(or, in case of redemption, on the Redemption Dates), the right of any Holder of
an interest coupon to receive payment of interest due as provided in such
interest coupon, or to bring suit for the enforcement of any such payment on or
after such respective dates, and the right, if any, to convert or exchange such
Security in accordance with Article 14, shall not be impaired or affected
without the consent of such Holder.
Section 5.11. Application of Money Collected . If the Trustee
collects any money pursuant to this Article, it shall pay out the money in the
following order, at the date or dates fixed by the Trustee and, in case of the
distribution of such money on account of principal, premium, if any, or
interest, upon presentation of the Securities and interest coupons, if any, and
the notation thereon of the payment if only partially paid and upon surrender
thereof if fully paid:
First: to the Trustee for amounts due under Section 6.7;
Second: to Holders of Securities and interest coupons in
respect of which or for the benefit of which such money has been
collected for amounts due and unpaid on such Securities for principal
of, premium, if any, and interest, ratably, without preference or
priority of any kind, according to the amounts due and payable on such
Securities for principal, premium, if any, and interest, respectively;
and
Third: the balance, if any, to the Company.
The Holders of each series of Securities denominated in ECU,
any other currency unit or a Foreign Currency and any matured interest coupons
relating thereto shall be entitled to receive a ratable portion of the amount
determined by the Trustee by converting the principal amount Outstanding of such
series of Securities and matured but unpaid interest on such series of
Securities in the currency in which such series of Securities is denominated
into Dollars at the Market Exchange Rate as of the date of declaration of
acceleration of Maturity of the Securities (or, if the default consists of a
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failure to pay the principal of such Securities on the Stated Maturity thereof,
as of the Stated Maturity date).
The Trustee may fix a record date and payment date for any
payment to Holders pursuant to this Section 5.11. At least 15 days before such
record date, the Trustee shall mail to each Holder and the Company a notice that
states the record date, the payment date and the amount to be paid.
Section 5.12. Restoration of Rights and Remedies . If the
Trustee or any Holder has instituted any proceeding to enforce any right or
remedy under this Indenture and such proceeding has been discontinued or
abandoned for any reason, or has been determined adversely to the Trustee or to
such Holder, then and in every such case, subject to any determination in such
proceeding, the Company, the Trustee and the Holders shall be restored severally
and respectively to their former positions hereunder and thereafter all rights
and remedies of the Trustee and the Holders shall continue as though no such
proceeding had been instituted.
Section 5.13. Rights and Remedies Cumulative . Except as
otherwise provided with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities in the last paragraph of Section 3.6, no
right or remedy herein conferred upon or reserved to the Trustee or the Holders
is intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at law
or in equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
Section 5.14. Undertaking for Costs . In any suit for the
enforcement of any right or remedy under this Indenture, or in any suit against
the Trustee for any action taken, suffered or omitted by it as Trustee, a court
may require any party litigant in such suit to file an undertaking to pay the
costs of such suit, and may assess costs against any such party litigant, in the
manner and to the extent provided in the Trust Indenture Act; provided, however,
that neither this Section nor the Trust Indenture Act shall be deemed to
authorize any court to require such an undertaking or to make such an assessment
in any suit instituted by the Company, 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).
Section 5.15. Waiver of Stay, Extension or Usury Laws . The
Company covenants (to the extent that it may lawfully do so) that it will not at
any time insist upon,
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or plead, or in any manner whatsoever claim or take the benefit or advantage of,
any stay or extension law or any usury or other law wherever enacted, now or at
any time hereafter in force, which would prohibit or forgive the Company from
paying all or any portion of the principal, of, and premium, if any, or interest
on the Securities contemplated herein or in the Securities or which may affect
the covenants or the performance of this Indenture; and the Company (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.
ARTICLE 6
THE TRUSTEE
Section 6.1. Certain Duties and Responsibilities . The duties
and responsibilities of the Trustee shall be as provided by the Trust Indenture
Act. Notwithstanding the foregoing, no provision of this Indenture shall require
the Trustee to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the exercise
of any of its rights or powers, if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against such risk
or liability is not reasonably assured to it. Whether or not therein expressly
so provided, every provision of this Indenture relating to the conduct or
affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section.
Section 6.2. Notice of Defaults . If a Default occurs
hereunder with respect to Securities of any series, the Trustee shall give the
Holders of Securities of such series notice of such Default as and to the extent
provided by the Trust Indenture Act; provided, however, that in the case of any
Default of the character specified in Section 5.1(d) with respect to Securities
of such series, no such notice to Holders shall be given until at least 30 days
after the occurrence thereof.
Section 6.3. Certain Rights of Trustee . Subject to the
provisions of Section 6.1:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or other
paper or document believed by it to be genuine and to have been signed
or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order,
and any
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resolution of the Board of Directors shall be sufficiently
evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically prescribed) may,
in the absence of bad faith on its part, rely upon an Officers'
Certificate;
(d) the Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance
thereon;
(e) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request
or direction of any of the Holders pursuant to this Indenture, unless
such Holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness
or other paper or document, but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts or matters
as it may see fit, and, if the Trustee shall determine to make such
further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company, personally or by agent or
attorney;
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder; and
(h) except with respect to Section 9.1, the Trustee shall have
no duty to inquire as to the performance by the Company of the
covenants set forth in Article 9 beyond its good faith review of any
certificates or other notices received by it from the Company.
Section 6.4. Not Responsible for Recitals or Issuance of
Securities . The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company and neither the Trustee nor any Authenticating Agent assumes any
responsibility for their correctness. The
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Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Securities. Neither the Trustee nor any Authenticating Agent
shall be accountable for the use or application by the Company of Securities or
the proceeds thereof.
Section 6.5. May Hold Securities . The Trustee, any
Authenticating Agent, any Paying Agent, any Security Registrar or any other
agent of the Company or the Trustee, in its individual or any other capacity,
may become the owner or pledgee of Securities and, subject to the definition of
"Outstanding" set forth in Section 1.1 and subject to Sections 6.8 and 6.13, may
otherwise deal with the Company and any other obligor upon the Securities with
the same rights it would have if it were not Trustee, Authenticating Agent,
Paying Agent, Security Registrar or such other agent.
Section 6.6. Money Held in Trust . Money held by the Trustee
in trust hereunder need not be segregated from other funds except to the extent
required by law or by the provisions of this Indenture. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed with the Company.
Section 6.7. Compensation and Reimbursement . The Company
agrees
(a) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
(b) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of its
agents and counsel), except any such expense, disbursement or advance
as may be attributable to its negligence or bad faith; and
(c) to indemnify the Trustee for, and to hold it harmless
against, any loss, liability or expense incurred without negligence or
bad faith on its part, arising out of or in connection with the
acceptance or administration of the trust or trusts hereunder,
including the costs and expenses of defending itself against any claim
or liability in connection with the exercise or performance of any of
its powers or duties hereunder.
Section 6.8. Conflicting Interests . If the Trustee has or
shall acquire a conflicting interest within the meaning of the Trust Indenture
Act, the Trustee shall either eliminate such interest or resign, to the extent
and in the manner provided by, and subject to the provisions of, the Trust
Indenture Act and this Indenture. To the extent permitted by such Act, the
Trustee shall not be deemed to have a conflicting interest by virtue of
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being a trustee under this Indenture with respect to Securities of more than one
series or a trustee under (i) the Indenture dated as of May 15, 1997 between the
Company and the Trustee relating to the Company's 11.30% Senior Discount Notes
Due 2007, (ii) the Indenture dated as of December 1, 1996 by and among AWNA, the
Company, as guarantor, the Subsidiary Guarantors named therein and the Trustee
relating to AWNA's 10 1/4% Senior Subordinated Notes due 2006, (iii) the
Indenture dated as of____________________________________ , 1997 between the
Company and the Trustee relating to the Company's senior subordinated debt
securities, (iv) the Indenture dated as of________________________________ ,
1997 by and among AWNA, the Company, as guarantor, the Subsidiary Guarantors
named therein and the Trustee relating to AWNA's senior debt securities and (v)
the Indenture dated as of_____________________________ , 1997 by and among AWNA,
the Company, as guarantor, the Subsidiary Guarantors named therein and the
Trustee relating to AWNA's senior subordinated debt securities.
Section 6.9. Corporate Trustee Required; Eligibility . There
shall at all times be a Trustee hereunder which shall be a Person that is
eligible pursuant to the Trust Indenture Act to act as such, has a combined
capital and surplus of at least $25,000,000 and has its Corporate Trust Office
located in the Borough of Manhattan, The City of New York. If such Person
publishes reports of condition at least annually, pursuant to law or to the
requirements of its supervising or examining authority, then for the purposes of
this Section, the combined capital and surplus of such Person shall be deemed to
be its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, it shall resign immediately in
the manner and with the effect hereinafter specified in this Article.
Section 6.10. Resignation and Removal; Appointment of
Successor . No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 6.11.
The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to the
Company. If the instrument of acceptance by a successor Trustee required by
Section 6.11 shall not have been delivered to the Trustee within 30 days after
the giving of such notice of resignation, the resigning Trustee may petition any
court of competent jurisdiction for the appointment of a successor Trustee with
respect to the Securities of such series.
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The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal amount
of the Outstanding Securities of such series, delivered to the Trustee and to
the Company.
If at any time:
(a) the Trustee shall fail to comply with Section 6.8 after
written request therefor by the Company or by any Holder who has been a
bona fide Holder of a Security for at least six months, or
(b) the Trustee shall cease to be eligible under Section 6.9
and shall fail to resign after written request therefor by the Company
or by any such Holder, or
(c) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (1) the Company by a Board Resolution may remove the
Trustee with respect to all Securities, or (2) subject to Section 5.14, any
Holder who has been a bona fide Holder of a Security for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees.
If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, with
respect to the Securities of one or more series, the Company, by a Board
Resolution, shall promptly appoint a successor Trustee or Trustees with respect
to the Securities of that or those series (it being understood that any such
successor Trustee may be appointed with respect to the Securities of one or more
or all of such series and that at any time there shall be only one Trustee with
respect to the Securities of any particular series) and shall comply with the
applicable requirements of Section 6.11. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of any series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance
of such appointment in accordance with the applicable requirements of Section
6.11, become the successor Trustee with respect to the Securities of such series
and to that extent supersede the successor Trustee appointed by the Company. If
no successor Trustee with respect to the Securities of any series shall have
been so appointed by the Company or the Holders and accepted appointment in the
manner required by
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Section 6.11, any Holder who has been a bona fide Holder of a Security of such
series for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities of such
series. The Company shall give notice of each resignation and each removal of
the Trustee with respect to the Securities of any series and each appointment of
a successor Trustee with respect to the Securities of any series to all Holders
of Securities of such series in the manner provided in Section 1.6. Each notice
shall include the name of the successor Trustee with respect to the Securities
of such series and the address of its Corporate Trust Office.
Section 6.11. Acceptance of Appointment by Successor. In case
of the appointment hereunder of a successor Trustee with respect to all
Securities, every such successor Trustee so appointed shall execute, acknowledge
and deliver to the Company and to the retiring Trustee an instrument accepting
such appointment, and thereupon the resignation or removal of the retiring
Trustee shall become effective and such successor Trustee, without any further
act, deed or conveyance, shall become vested with all the rights, powers, trusts
and duties of the retiring Trustee; but, on the request of the Company or the
successor Trustee, such retiring Trustee shall, upon payment of its charges,
execute and deliver an instrument transferring to such successor Trustee all the
rights, powers and trusts of the retiring Trustee and shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder.
In case of the appointment hereunder of a successor Trustee
with respect to the Securities of one or more (but not all) series, the Company,
the retiring Trustee and each successor Trustee with respect to the Securities
of one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates, (2)
if the retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee, and
(3) shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein or
in such supplemental indenture shall constitute such Trustees co-trustees of the
same trust and that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee; and upon the execution and delivery of such supplemental
indenture the resignation or removal of the retiring Trustee shall become
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effective to the extent provided therein and each such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates; but, on request of the Company or any successor Trustee, such
retiring Trustee shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder with
respect to the Securities of that or those series to which the appointment of
such successor Trustee relates.
Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts referred
to in the first or second preceding paragraph, as the case may be.
No successor Trustee shall accept its appointment unless at
the time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
Section 6.12. Merger, Conversion, Consolidation or Succession
to Business. Any corporation into which the Trustee may be merged or converted
or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to all or substantially all the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.
Section 6.13. Preferential Collection of Claims Against
Company. If and when the Trustee shall be or become a creditor of the Company
(or any other obligor upon the Securities), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims against
the Company (or any such other obligor).
Section 6.14. Appointment of Authenticating Agent. The Trustee
may appoint an Authenticating Agent or Agents with respect to one or more series
of Securities which shall be authorized to act on behalf of the Trustee to
authenticate Securities of such series issued upon original issue and upon
exchange, registration of transfer or partial redemption thereof or pursuant to
Section 3.6, and Securities so authenticated shall be entitled to the benefits
of this Indenture and shall be valid and
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obligatory for all purposes as if authenticated by the Trustee hereunder.
Wherever reference is made in this Indenture to the authentication and delivery
of Securities by the Trustee or the Trustee's certificate of authentication,
such reference shall be deemed to include authentication and delivery on behalf
of the Trustee by an Authenticating Agent and a certificate of authentication
executed on behalf of the Trustee by an Authenticating Agent. Each
Authenticating Agent shall be acceptable to the Company and shall at all times
be a corporation organized and doing business under the laws of the United
States of America, any State thereof or the District of Columbia, authorized
under such laws to act as Authenticating Agent, having a combined capital and
surplus of not less than $25,000,000 and subject to supervision or examination
by Federal or State authority. If such Authenticating Agent publishes reports of
condition at least annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such Authenticating Agent shall be deemed to be
its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time an Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section, such Authenticating
Agent shall resign immediately in the manner and with the effect specified in
this Section.
Any corporation into which an Authenticating Agent may be
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any corporation succeeding to the
corporate agency or corporate trust business of an Authenticating Agent, shall
continue to be an Authenticating Agent, provided such corporation shall be
otherwise eligible under this Section, without the execution or filing of any
paper or any further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving
written notice thereof to the Trustee and to the Company. The Trustee may at any
time terminate the agency of an Authenticating Agent by giving written notice
thereof to such Authenticating Agent and to the Company. Upon receiving such a
notice of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall give notice of such
appointment in the manner provided in Section 1.6 to all Holders of Securities
of the series with respect to which such Authenticating Agent will serve. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
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The Trustee agrees to pay to each Authenticating Agent from
time to time reasonable compensation for its services under this Section, and
the Trustee shall be entitled to be reimbursed for such payments, subject to the
provisions of Section 6.7.
If an appointment with respect to one or more series is made
pursuant to this Section, the Securities of such series may have endorsed
thereon, in addition to the Trustee's certificate of authentication, an
alternative certificate of authentication in the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
___________________________,
As Trustee
By: _______________________,
As Authenticating Agent
By: _________________________
Authorized Signatory
ARTICLE 7
CONSOLIDATION, MERGER OR SALE OF ASSETS BY THE COMPANY
Section 7.1. Consolidation, Merger or Sale of Assets
Permitted. The Company shall not consolidate with or merge into, or sell,
transfer, lease or otherwise dispose of its properties and assets as, or
substantially as, an entirety to, any Person, and the Company shall not permit
any Person to consolidate with or merge into the Company or convey, transfer or
lease its properties and assets substantially as an entirety to the Company,
unless:
(a) (1) the Company will be the surviving entity or (2) the
Person formed by or surviving any such consolidation or merger (if
other than the Company), or to which such sale, transfer, lease or
other disposition shall have been made, is an entity organized and
existing under the laws of the United States, any State thereof or the
District of Columbia;
(b) the Person formed by or surviving any such consolidation
or merger (if other than the Company), or to which such sale, transfer,
lease or other
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disposition shall have been made, expressly assumes by supplemental
indenture all the obligations of the Company under the Securities and
this Indenture, and the Securities and this Indenture will remain in
full force and effect as so supplemented;
(c) immediately after giving effect to such consolidation,
merger, sale, transfer, lease or other disposition, no Default or Event
of Default exists; and
(d) with respect to any series of Securities, the Company
satisfies such other conditions, if any, established with respect to
such series of Securities pursuant to and in accordance with Section
3.1.
The Company shall deliver to the Trustee prior to the proposed
consolidation, merger, sale, transfer, lease or other disposition an Officers'
Certificate to the foregoing effect and an Opinion of Counsel stating that the
proposed consolidation, merger, sale, transfer, lease or other disposition and
such supplemental indenture comply with this Indenture and that all conditions
precedent to the consummation of such transaction under this Section 7.1 have
been met.
Upon any consolidation of the Company with, or merger of the
Company into, any other Person or any sale, transfer, lease or other disposition
of properties and assets of the Company as, or substantially as, an entirety in
accordance with this Section 7.1, the successor Person formed by such
consolidation or into which the Company is merged or to which such sale,
transfer, lease or other disposition is made shall succeed to and be substituted
for, and may exercise every right and power of, the Company hereunder and under
the Securities and any interest coupons appertaining thereto with the same
effect as if such successor Person had been named hereunder and thereunder and
thereafter, except in the case of a lease, the predecessor Person shall be
relieved of all obligations and covenants under this Indenture and the
Securities.
ARTICLE 8
SUPPLEMENTAL INDENTURES
Section 8.1. Supplemental Indentures Without Consent of
Holders. Without the consent of any Holders, the Company and the Trustee, at any
time and from time to time, may enter into indentures supplemental hereto, in
form reasonably satisfactory to the Trustee, for any of the following purposes:
(a) to evidence the succession of another Person to the
Company and the assumption by any such successor of the covenants and
obligations of the Company herein and in the Securities and any
interest coupons appertaining thereto; or
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(b) to add to the covenants of the Company for the benefit of
the Holders of all or any series of Securities (and if such covenants
are to be for the benefit of less than all series of Securities,
stating that such covenants are expressly being included solely for the
benefit of such series) or to surrender any right or power herein
conferred upon the Company; or
(c) to add any additional Events of Default with respect to
all or any series of Securities; or
(d) to add to or change any of the provisions of this
Indenture to such extent as shall be necessary to facilitate the
issuance or administration of Bearer Securities (including, without
limitation, to provide that Bearer Securities may be registrable as to
principal only) or to facilitate the issuance or administration of
Securities in global form; or
(e) to change or eliminate any of the provisions of this
Indenture in respect of one or more series of Securities, provided that
any such change or elimination shall become effective only when there
is no Security Outstanding of any series created prior to the execution
of such supplemental indenture which is entitled to the benefit of such
provision; or
(f) to secure any series of Securities; or
(g) to establish the form or terms of Securities of any series
as permitted by Sections 2.1 and 3.1; or
(h) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one
or more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee,
pursuant to the requirements of Section 6.11; or
(i) if allowed without penalty under applicable laws and
regulations, to permit payment in the United States (including any of
the States thereof and the District of Columbia), its territories, its
possessions and other areas subject to its jurisdiction of principal,
premium, if any, or interest, if any, on Bearer Securities or interest
coupons, if any; or
(j) to cure any ambiguity, to correct or supplement any
provision herein which may be inconsistent with any other provision
herein or to make any other provisions with respect to matters or
questions arising under this Indenture which shall not be inconsistent
with the provisions of this Indenture, provided such action
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shall not adversely affect in any material respect the interests of the
Holders of Securities of any series; or
(k) to make provision not adverse to the Holders of
Outstanding Securities of any series with respect to any conversion or
exchange rights of Holders pursuant to the requirements of Article 14,
including providing for the conversion or exchange of the Securities
into any Equity Securities of the Company; or
(l) to modify, eliminate or add to the provisions of this
Indenture to such extent as shall be necessary to effect the
qualification of this Indenture under the Trust Indenture Act or under
any similar federal statute subsequently enacted, and to add to this
Indenture such other provisions as may be expressly required under the
Trust Indenture Act.
Section 8.2. Supplemental Indentures With Consent of Holders.
With the consent of the Holders of not less than a majority of the aggregate
principal amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company, the
Company and the Trustee may enter into an indenture or indentures supplemental
hereto to add any provisions to or to change in any manner or eliminate any
provisions of this Indenture or of any other indenture supplemental hereto or to
modify in any manner the rights of the Holders of Securities of such series;
provided, however, that without the consent of the Holder of each Outstanding
Security affected thereby, an amendment under this Section may not:
(a) change the Stated Maturity of the principal of, or
premium, if any, on, or any installment of principal of or premium, if
any, or interest on, any Security, or reduce the principal amount
thereof or the rate of interest thereon or any premium payable upon the
redemption thereof, or change the manner in which the amount of any
principal thereof or premium, if any, or interest thereon is determined
or reduce the amount of the principal of any Original Issue Discount
Security or Indexed Security that would be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section
5.2, or change the currency or currency unit in which any Securities or
any premium or the interest thereon is payable, or impair the right to
institute suit for the enforcement of any such payment on or after the
Stated Maturity thereof (or, in the case of redemption, on or after the
Redemption Date);
(b) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of whose Holders is
required for any such supplemental indenture, or the consent of whose
Holders is required for any waiver (of compliance with certain
provisions of this Indenture or certain defaults
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hereunder and their consequences) provided for in this Indenture, or
reduce the requirements of Section 13.4 for quorum or voting;
(c) change any obligation of the Company to maintain an office
or agency in the places and for the purposes specified in Section 9.2;
(d) make any change that adversely affects any right to
convert or exchange any Security to which the provisions of Article 14
are applicable or, except as provided in this Indenture, decrease the
conversion or exchange rate or increase the conversion or exchange
price of any such Security; or
(e) make any change in this Section 8.2, Section 5.7 or
Section 9.6 except to increase any percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived
with the consent of the Holders of each Outstanding Security affected
thereby; provided, however, that this clause shall not be deemed to
require the consent of any Holder of a Security or coupon with respect
to changes in the references to "the Trustee" and concomitant changes
in this Section and Section 9.6 or the deletion of this proviso, in
accordance with the requirements of Sections 6.11 and 8.1(h).
A supplemental indenture which changes or eliminates any
covenant or other provision of this Indenture which has expressly been included
solely for the benefit of one or more particular series of Securities, or which
modifies the rights of the Holders of Securities of such series with respect to
such covenant or other provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Securities of any other series.
It is not necessary under this Section 8.2, Section 5.7 or
Section 9.6 for the Holders to consent to the particular form of any proposed
supplemental indenture, but it is sufficient if they consent to the substance
thereof;
Section 8.3. Compliance with Trust Indenture Act. Every
amendment to this Indenture or the Securities of one or more series shall be set
forth in a supplemental indenture that complies with the Trust Indenture Act as
then in effect.
Section 8.4. Execution of Supplemental Indentures. In
executing, or accepting the additional trusts created by, any supplemental
indenture permitted by this Article or the modification thereby of the trusts
created by this Indenture, the Trustee shall be entitled to receive, and
(subject to Section 6.1) shall be fully protected in relying upon, an Officers'
Certificate and an Opinion of Counsel stating that the execution of such
supplemental indenture is authorized or permitted by this Indenture. The Trustee
may, but shall not be obligated to, enter into any such supplemental indenture
which affects the Trustee's own rights, duties or immunities under this
Indenture or otherwise.
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Section 8.5. Effect of Supplemental Indentures. Upon the
execution of any supplemental indenture under this Article, this Indenture shall
be modified in accordance therewith, and such supplemental indenture shall form
a part of this Indenture for all purposes; and every Holder of Securities
theretofore or thereafter authenticated and delivered hereunder and of any
interest coupon appertaining thereto shall be bound thereby.
Section 8.6. Reference in Securities to Supplemental
Indentures. Securities, including any interest coupons, of any series
authenticated and delivered after the execution of any supplemental indenture
pursuant to this Article may, and shall if required by the Trustee, bear a
notation in form approved by the Trustee as to any matter provided for in such
supplemental indenture. If the Company shall so determine, new Securities
including any interest coupons of any series so modified as to conform, in the
opinion of the Company, to any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered by the Trustee in
exchange for Outstanding Securities including any interest coupons of such
series.
Section 8.7. Notice of Supplemental Indentures. Promptly after
the execution by the Company and the Trustee of any supplemental indenture
pursuant to the provisions of Section 8.2, the Company shall give notice thereof
to the Holders of each Outstanding Security affected, in the manner provided for
in Section 1.6, setting forth in general terms the substance of such
supplemental indenture. Any failure of the Company to give such notice, or any
defect therein, shall not, however, in any way impair or affect the validity of
any such supplemental indenture.
ARTICLE 9
COVENANTS
Section 9.1. Payment of Principal, Premium, if any, and
Interest. The Company covenants and agrees for the benefit of the Holders of
each series of Securities that it will duly and punctually pay the principal of,
premium, if any, and interest, together with additional amounts, if any, on the
Securities of that series in accordance with the terms of the Securities of such
series, any interest coupons appertaining thereto and this Indenture; provided,
however, that amounts properly withheld under the Internal Revenue Code of 1986,
as amended, by any Person from a payment to any Holder of Securities, after
having requested such Holder to provide applicable information that would allow
such Person to make such payment without withholding, shall be considered as
having been paid by the Company to such Holder for purposes of this Indenture.
An installment of principal, premium, if any, or interest shall be considered
paid on the date it is due if there shall have been sent to the Trustee or
Paying Agent by wire transfer, or if the Trustee or Paying Agent otherwise
holds, on that date money designated for and sufficient to pay the installment.
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Section 9.2. Maintenance of Office or Agency. Unless otherwise
specified as contemplated by Section 3.1, if Securities of a series are issued
as Registered Securities, the Company will maintain in each Place of Payment for
that series of Securities an office or agency where Securities of that series
may be presented or surrendered for payment, where Securities of that series may
be surrendered for registration of transfer or exchange and where notices and
demands to or upon the Company in respect of the Securities of that series and
this Indenture may be served. Unless otherwise specified as contemplated by
Section 3.1, if Securities of a series are issuable as Bearer Securities, the
Company will maintain, (i) subject to any laws or regulations applicable
thereto, an office or agency in a Place of Payment for that series which is
located outside the United States where Securities of that series and related
interest coupons may be presented and surrendered for payment; provided,
however, that if the Securities of that series are listed on The International
Stock Exchange of the United Kingdom and the Republic of Ireland Limited, the
Luxembourg Stock Exchange or any other stock exchange located outside the United
States and such stock exchange shall so require, the Company will maintain a
Paying Agent for the Securities of that series in London, Luxembourg or any
other required city located outside the United States, as the case may be, so
long as the Securities of that series are listed on such exchange, and (ii)
subject to any laws or regulations applicable thereto, an office or agency in a
Place of Payment for that series which is located outside the United States,
where Securities of that series may be surrendered for exchange and where
notices and demands to or upon the Company in respect of the Securities of that
series and this Indenture may be served. The Company will give prompt written
notice to the Trustee of the location, and any change in the location, of any
such office or agency. If at any time the Company shall fail to maintain any
such required office or agency or shall fail to furnish the Trustee with the
address thereof, such presentations, surrenders, notices and demands may be made
or served at the Corporate Trust Office of the Trustee, and the Company hereby
appoints the Trustee as its agent to receive all such presentations, surrenders,
notices and demands.
Unless otherwise specified as contemplated by Section 3.1, no
payment of principal, premium or interest on Bearer Securities shall be made at
any office or agency of the Company in the United States, by check mailed to any
address in the United States, by transfer to an account located in the United
States or upon presentation or surrender in the United States of a Bearer
Security or interest coupon for payment, even if the payment would be credited
to an account located outside the United States; provided, however, that, if the
Securities of a series are denominated and payable in Dollars, payment of
principal of and any premium or interest on any such Bearer Security shall be
made at the office of the Company's Paying Agent in the Borough of Manhattan,
The City of New York, if (but only if) payment in Dollars of the full amount of
such principal, premium or interest, as the case may be, at all offices or
agencies outside the United States maintained
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for the purpose by the Company in accordance with this Indenture is illegal or
effectively precluded by exchange controls or other similar restrictions.
Unless otherwise specified as contemplated by Section 3.1, the
Company may also from time to time designate one or more other offices or
agencies where the Securities (including any interest coupons, if any) of one or
more series may be presented or surrendered for any or all such purposes and may
from time to time rescind such designations; provided, however, that no such
designation or rescission shall in any manner relieve the Company of its
obligation to maintain an office or agency in each Place of Payment for
Securities (including any interest coupons, if any) of any series for such
purposes. The Company will give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location of any such other
office or agency.
Unless otherwise specified as contemplated by Section 3.1, the
Trustee shall initially serve as Paying Agent.
Section 9.3. Money for Securities Payments to Be Held in
Trust; Unclaimed Money. If the Company shall at any time act as its own Paying
Agent with respect to any series of Securities and any interest coupons
appertaining thereto, it will, on or before each due date of the principal of,
premium, if any, or interest on any of the Securities of that series, segregate
and hold in trust for the benefit of the Persons entitled thereto a sum
sufficient to pay the principal, premium, if any, or interest so becoming due
until such sums shall be paid to such Persons or otherwise disposed of as herein
provided and will promptly notify the Trustee in writing of its action or
failure so to act.
Whenever the Company shall have one or more Paying Agents for
any series of Securities and any interest coupons appertaining thereto, it will,
prior to each due date of the principal of or any premium or interest on any
Securities of that series, deposit with a Paying Agent a sum sufficient to pay
such amount, such sum to be held as provided by the Trust Indenture Act, and
(unless such Paying Agent is the Trustee) the Company will promptly notify the
Trustee of its action or failure so to act.
The Company will cause each Paying Agent for any series of
Securities other than the Trustee to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee, subject to
the provisions of this Section, that such Paying Agent will:
(a) comply with the provisions of the Trust Indenture Act
applicable to it as a Paying Agent;
(b) hold all sums held by it for the payment of the principal
of, premium, if any, or interest on Securities of that series in trust
for the benefit of the Persons
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entitled thereto until such sums shall be paid to such Persons or
otherwise disposed of as herein provided;
(c) give the Trustee notice of any default by the Company (or
any other obligor upon the Securities of that series) in the making of
any payment of principal, premium, if any, or interest on the
Securities of that series; and
(d) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the Trustee
all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the terms set forth in this Indenture; and, upon such payment by any Paying
Agent to the Trustee, such Paying Agent shall be released from all further
liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of any principal of or
premium or interest on any Security of any series and remaining unclaimed for
two years after such principal, premium, if any, or interest has become due and
payable shall be paid to the Company on Company Request, or (if then held by the
Company) shall be discharged from such trust; and the Holder of such Security
and interest coupon, if any, shall thereafter, as an unsecured general creditor,
look only to the Company for payment thereof, and all liability of the Trustee
or such Paying Agent with respect to such trust money, and all liability of the
Company as trustee thereof, shall thereupon cease; provided, however, that the
Trustee or such Paying Agent, before being required to make any such repayment,
may in the name and at the expense of the Company cause to be published once, in
an Authorized Newspaper in each Place of Payment with respect to such series, or
cause to be mailed to such Holder, notice that such money remains unclaimed and
that, after a date specified therein, which shall not be less than 30 days from
the date of such publication, any unclaimed balance of such money then remaining
will be repaid to the Company.
Section 9.4. Corporate Existence. Subject to Article 7, the
Company will at all times do or cause to be done all things necessary to
preserve and keep in full force and effect its corporate existence and its
rights and franchises; provided that nothing in this Section 9.4 shall prevent
the abandonment or termination of any right or franchise of the Company if it
shall be determined that such abandonment or termination is desirable in the
conduct of the business of the Company.
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Section 9.5. Annual Review Certificate. The Company covenants
and agrees to deliver to the Trustee, within 90 days after the end of each
fiscal year of the Company, a certificate from the principal executive officer,
principal financial officer or principal accounting officer of the Company
stating that a review of the activities of the Company during such year and of
performance under this Indenture has been made under his or her supervision and
to the best of his or her knowledge, based on such review, the Company has
fulfilled all of its obligations under this Indenture throughout such year, or,
if there has been a default in the fulfillment of any such obligation,
specifying each such default known to him or her and the nature and status
thereof. For purposes of this Section 9.5, such compliance shall be determined
without regard to any period of grace or requirement of notice provided under
this Indenture.
Section 9.6. Waiver of Certain Covenants. Except as otherwise
specified as contemplated by Section 3.1 for Securities of such series, the
Company may, with respect to the Securities of any series, omit in any
particular instance to comply with any term, provision or condition set forth in
any covenant provided pursuant to Section 3.1(b)(15), 8.1(b) or 8.1(g) for the
benefit of the Holders of such series if before the time for such compliance the
Holders of at least a majority in principal amount of the Outstanding Securities
of such series shall, by act of such Holders in accordance with Section 1.4,
either waive such compliance in such instance or generally waive compliance with
such term, provision or condition, but no such waiver shall extend to or affect
such term, provision or condition except to the extent so expressly waived, and,
until such waiver shall become effective, the obligations of the Company and the
duties of the Trustee in respect of any such term, provision or condition shall
remain in full force and effect.
ARTICLE 10
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 10.1. Company to Furnish Trustee Names and Addresses
of Holders. The Company will furnish or cause to be furnished to the Trustee:
(a) semi-annually, not more than 15 days after each Regular
Record Date for any series, a list, in such form as the Trustee may reasonably
require, of the names and addresses of the Holders of Registered Securities of
such series as of such Regular Record Date; and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a list of
similar form and content for any or all series as of a date not more than 15
days prior to the time such list is furnished;
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excluding from any such list names and addresses possessed by the Trustee in its
capacity as Registrar.
Section 10.2. Preservation of Information, Communications to
Holders. (a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the
names and addresses of Holders of Registered Securities contained in the most
recent list furnished to the Trustee as provided in Section 10.1 and the names
and addresses of Holders of Registered Securities received by the Trustee in its
capacity as Registrar. The Trustee may destroy any list furnished to it as
provided in Section 10.1 upon receipt of a new list so furnished.
(b) The rights of Holders of Securities to communicate with
other Holders with respect to their rights under this Indenture or under the
Securities, and the corresponding rights and privileges of the Trustee, shall be
as provided in the Trust Indenture Act.
(c) Every Holder of Securities and interest coupons
appertaining thereto, by receiving and holding the same, agrees with the Company
and the Trustee that neither the Company nor the Trustee nor any agent of either
of them shall be held accountable by reason of the disclosure of information as
to the names and addresses of the Holders of Securities made pursuant to the
Trust Indenture Act.
Section 10.3. Reports by Trustee. (a) The Trustee shall
transmit to Holders of Securities such reports concerning the Trustee and its
actions under this Indenture as may be required pursuant to the Trust Indenture
Act, at the times and in the manner provided pursuant thereto.
(b) Reports so required to be transmitted at stated intervals
of not more than 12 months shall be transmitted no later than July 15 in each
calendar year, commencing with the first July 15 after the first issuance of
Securities under this Indenture.
(c) A copy of each such report shall, at the time of such
transmission to Holders of Securities, be filed by the Trustee with each stock
exchange upon which the Securities of any series may then be listed and also
with the Commission. The Company will notify the Trustee whenever the Securities
of any series are listed on any stock exchange.
Section 10.4. Reports by the Company. The Company shall file
with the Trustee and the Commission, and transmit to the Holders, such
information, documents and other reports, and such summaries thereof, as may be
required pursuant to the Trust Indenture Act at the times and in the manner
provided pursuant to such Act; provided that any such information, documents or
reports required to be filed with the Commission
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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. Notwithstanding anything contrary herein, the Trustee shall
have no duty to review such documents for purposes of determining compliance
with any provisions of this Indenture.
ARTICLE 11
REDEMPTION
Section 11.1. Applicability of Article. Securities (including
interest coupons, if any) of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified as contemplated by Section 3.1 for Securities of any series)
in accordance with this Article.
Section 11.2. Election to Redeem; Notice to Trustee. The
election of the Company to redeem any Securities, including interest coupons, if
any, that, at the time of such election, may be redeemed at the option of the
Company, shall be evidenced by a Board Resolution. In the case of any such
redemption at the election of the Company of less than all the Securities or
interest coupons, if any, of any series, the Company shall, at least 45 days
prior to the Redemption Date fixed by the Company (unless a shorter notice shall
be satisfactory to the Trustee), notify the Trustee of such Redemption Date, of
the principal amount of Securities of such series to be redeemed and, if
applicable, of the tenor of the Securities to be redeemed. In the case of any
redemption of Securities (i) prior to the expiration of any restriction on such
redemption provided in the terms of such Securities or elsewhere in this
Indenture or (ii) pursuant to an election of the Company which is subject to a
condition specified in the terms of such Securities, the Company shall furnish
the Trustee with an Officers' Certificate evidencing compliance with such
restriction or condition.
Section 11.3. Selection of Securities to Be Redeemed. Unless
otherwise specified as contemplated by Section 3.1, if less than all the
Securities (including interest coupons, if any) of a series with the same terms
are to be redeemed, the Trustee, not more than 45 days prior to the Redemption
Date, shall select the Securities of the series to be redeemed in such manner as
the Trustee shall deem fair and appropriate. The Trustee shall make the
selection from Securities of the series that are Outstanding and that have not
previously been called for redemption and may provide for the selection for
redemption of portions (equal to the minimum authorized denomination for
Securities, including interest coupons, if any, of that series or any integral
multiple thereof) of the principal amount of Securities, including interest
coupons, if any, of such series of a denomination larger than the minimum
authorized denomination for Securities of that series, provided that the
unredeemed portion of the principal amount of any Security shall be in an
authorized denomination (which shall not be less than the minimum authorized
denomination) for such Security. The Trustee shall promptly notify the Company
in
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writing of the Securities selected by the Trustee for redemption and, in the
case of any Securities selected for partial redemption, the principal amount
thereof to be redeemed. If the Company shall so direct, Securities registered in
the name of the Company or any Affiliate or any Subsidiary thereof shall not be
included in the Securities selected for redemption.
For purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities (including
interest coupons, if any) shall relate, in the case of any Securities (including
interest coupons, if any) redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities (including interest coupons,
if any) which has been or is to be redeemed.
Section 11.4. Notice of Redemption. Unless otherwise specified
as contemplated by Section 3.1, notice of redemption shall be given in the
manner provided in Section 1.6 not less than 30 days nor more than 60 days prior
to the Redemption Date to the Holders of the Securities to be redeemed.
All notices of redemption shall state:
(a) the Redemption Date;
(b) the Redemption Price;
(c) if less than all the Outstanding Securities of a series
are to be redeemed, the identification (and, in the case of partial
redemption, the principal amounts) of the particular Security or
Securities to be redeemed;
(d) the Place or Places of Payment where such Securities,
together in the case of Bearer Securities with all interest coupons
appertaining thereto, if any, maturing on or after the Redemption Date,
are to be surrendered for payment of the Redemption Price;
(e) that Securities of the series called for redemption and
all unmatured interest coupons, if any, appertaining thereto must be
surrendered to the Paying Agent to collect the Redemption Price;
(f) that, on the Redemption Date, the Redemption Price will
become due and payable upon each such Security, or the portion thereof,
to be redeemed and, if applicable, that interest thereon will cease to
accrue on and after said date;
(g) that the redemption is from a sinking fund, if such is the
case;
(h) that, unless otherwise specified in such notice, Bearer
Securities of any series, if any, surrendered for redemption must be
accompanied by all interest
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coupons maturing subsequent to the Redemption Date or the amount of any
such missing interest coupon or interest coupons will be deducted from
the Redemption Price, unless security or indemnity satisfactory to the
Company, the Trustee and any Paying Agent is furnished;
(i) the CUSIP number, if any, of the Securities;
(j) if applicable, the conversion or exchange price, the date
on which the right to convert or exchange the Securities (or portions
thereof to be redeemed) will terminate and the place or places where
such Securities may be surrendered for conversion or exchange; and
(k) the procedures that a Holder must follow to surrender the
Securities so to be redeemed.
Notice of redemption of Securities to be redeemed shall be given by the Company
or, at the Company's request, by the Trustee in the name and at the expense of
the Company.
Section 11.5. Deposit of Redemption Price. On or prior to any
Redemption Date, the Company shall deposit with the Trustee or with a Paying
Agent (or, if the Company is acting as its own Paying Agent, segregate and hold
in trust as provided in Section 9.3) an amount of money in the currency or
currencies (including currency unit or units) in which the Securities of such
series are payable (except as otherwise specified pursuant to Section 3.1 for
the Securities of such series) sufficient to pay on the Redemption Date the
Redemption Price of, and (unless the Redemption Date shall be an Interest
Payment Date) interest accrued to the Redemption Date on, all Securities or
portions thereof which are to be redeemed on that date.
Unless any Security by its terms prohibits any redemption
obligation from being satisfied by delivering and crediting Securities
(including Securities redeemed otherwise than through a sinking fund), the
Company may deliver such Securities to the Trustee for crediting of an amount
equal to the then applicable Redemption Price for such Securities against such
payment obligation in accordance with the terms of such Securities and this
Indenture.
Section 11.6. Securities Payable on Redemption Date. Notice of
redemption having been given as aforesaid, the Securities so to be redeemed
shall, on the Redemption Date, become due and payable at the Redemption Price
therein specified, and from and after such date (unless the Company shall
default in the payment of the Redemption Price and accrued interest) such
Securities shall cease to bear interest and the interest coupons for any such
interest appertaining to any Bearer Security so to be redeemed, except to the
extent provided below, shall be void. Except as provided in the next succeeding
paragraph, upon surrender of any such Security, including interest
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coupons, if any, for redemption in accordance with said notice, such Security
shall be paid by the Company at the Redemption Price, together with accrued
interest to the Redemption Date; provided, however, that installments of
interest on Bearer Securities whose Stated Maturity is on or prior to the
Redemption Date shall be payable only at an office or agency located outside the
United States and its possessions (except as otherwise provided in Section 9.2)
and, unless otherwise specified as contemplated by Section 3.1, only upon
presentation and surrender of interest coupons for such interest; and provided,
further, that, unless otherwise specified as contemplated by Section 3.1,
installments of interest on Registered Securities that are due and payable on
Interest Payment Dates that are on or prior to the Redemption Date shall be
payable to the Holders of such Securities, or one or more Predecessor
Securities, registered as such at the close of business on the relevant Regular
Record Dates according to their terms and the provisions of Section 3.7.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant interest coupons maturing after the Redemption
Date, such Bearer Security may be paid after deducting from the Redemption Price
an amount equal to the face amount of all such missing interest coupons, or the
surrender of such missing interest coupon or interest coupons may be waived by
the Company and the Trustee if there be furnished to them such security or
indemnity as they may require to save each of them and any Paying Agent
harmless. If thereafter the Holder of such Bearer Security shall surrender to
the Trustee or any Paying Agent any such missing interest coupon in respect of
which a deduction shall have been made from the Redemption Price, such Holder
shall be entitled to receive the amount so deducted; provided, however, that
interest represented by interest coupons shall be payable only at an office or
agency located outside of the United States (except as otherwise provided
pursuant to Section 9.2) and, unless otherwise specified as contemplated by
Section 3.1, only upon presentation and surrender of those interest coupons.
If any Security called for redemption shall not be so paid
upon surrender thereof for redemption, the principal (and premium, if any)
shall, until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Security.
Section 11.7. Securities Redeemed in Part. Upon surrender of a
Security that is redeemed in part at any Place of Payment therefor (with, if the
Company or the Trustee so requires, due endorsement by, or a written instrument
of transfer in form satisfactory to the Company and the Trustee duly executed
by, the Holder thereof or his or her attorney duly authorized in writing), the
Company shall execute and the Trustee shall authenticate and deliver to the
Holder of that Security, without service charge, a new Security or Securities of
the same series, having the same form, terms and Stated Maturity, in any
authorized denomination equal in aggregate principal amount to the unredeemed
portion of the principal amount of the Security surrendered.
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ARTICLE 12
SINKING FUNDS
Section 12.1. Applicability of Article. The provisions of this
Article shall be applicable to any sinking fund for the retirement of Securities
of a series except as otherwise specified as contemplated by Section 3.1 for
Securities of such series.
The minimum amount of any sinking fund payment provided for by
the terms of Securities of any series is herein referred to as a "mandatory
sinking fund payment," and any payment in excess of such minimum amount provided
for by the terms of Securities of any series is herein referred to as an
"optional sinking fund payment." If provided for by the terms of Securities of
any series, the cash amount of any sinking fund payment may be subject to
reduction as provided in Section 12.2. Each sinking fund payment shall be
applied to the redemption of Securities of any series as provided for by the
terms of Securities of such series.
Section 12.2. Satisfaction of Sinking Fund Payments with
Securities. The Company (i) may deliver Outstanding Securities of a series
(other than any previously called for redemption) together, in the case of
Bearer Securities of such series, with all unmatured interest coupons
appertaining thereto and (ii) may apply as a credit Securities of a series which
have been (x) redeemed either at the election of the Company pursuant to the
terms of such Securities or through the application of permitted optional
sinking fund payments pursuant to the terms of such Securities, (y) converted or
exchanged pursuant to Article 14 or (z) previously delivered to the Trustee and
cancelled without reissuance pursuant to Section 3.9, in each case in
satisfaction of all or any part of any sinking fund payment with respect to the
Securities of such series required to be made pursuant to the terms of such
Securities as provided for by the terms of such series; provided that such
Securities have not been previously so credited. Such Securities shall be
received and credited for such purpose by the Trustee at the Redemption Price
specified in such Securities for redemption through operation of the sinking
fund and the amount of such sinking fund payment shall be reduced accordingly.
Section 12.3. Redemption of Securities for Sinking Fund. Not
less than 45 days prior to each sinking fund payment date for any series of
Securities, the Company will deliver to the Trustee an Officers' Certificate
specifying the amount of the next ensuing sinking fund payment for that series
pursuant to the terms of that series, the portion thereof, if any, which is to
be satisfied by payment of cash and the portion thereof, if any, which is to be
satisfied by delivering and crediting Securities of that series pursuant to
Section 12.2 and stating the basis for such credit and that such Securities have
not been previously so credited, and will also deliver to the Trustee any
Securities to be so delivered. Not less than 30 days before each such sinking
fund payment date the Trustee shall select the Securities to be redeemed upon
such sinking fund payment date in
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the manner specified in Section 11.3 and cause notice of the redemption thereof
to be given in the name of and at the expense of the Company in the manner
provided in Section 11.4. Such notice having been duly given, the redemption of
such Securities shall be made upon the terms and in the manner stated in
Sections 11.6 and 11.7.
ARTICLE 13
MEETINGS OF HOLDERS OF SECURITIES
Section 13.1. Purposes for Which Meetings May Be Called. A
meeting of Holders of Securities of any series may be called at any time and
from time to time pursuant to this Article to make, give or take any request,
demand, authorization, direction, notice, consent, election, waiver or other
action provided by this Indenture to be made, given or taken by Holders of
Securities of such series.
Section 13.2. Call, Notice and Place of Meetings. (a) The
Trustee may at any time call a meeting of Holders of Securities of any series
for any purpose specified in Section 13.1, to be held at such time and at such
place in The City of New York or in such other place as may be acceptable to the
Company. Notice of every meeting of Holders of Securities, setting forth the
time and the place of such meeting and in general terms the action proposed to
be taken at such meeting, shall be given, in the manner provided in Section 1.6,
not less than 20 nor more than 180 days prior to the date fixed for the meeting.
(b) In case at any time the Company, pursuant to a Board
Resolution shall have requested the Trustee to call a meeting of the Holders of
Securities of any series for any purpose specified in Section 13.1, by written
request setting forth in reasonable detail the action proposed to be taken at
the meeting, and the Trustee shall not have made the first publication of the
notice of such meeting within 20 days after receipt of such request or shall not
thereafter proceed to cause the meeting to be held as provided herein, then the
Company may determine the time and the place in The City of New York or such
other place as may be acceptable to the Company for such meeting and may call
such meeting for such purposes by giving notice thereof as provided in paragraph
(a) of this Section 13.2.
Section 13.3. Persons Entitled to Vote at Meetings. To be
entitled to vote at any meeting of Holders of Securities of any series, a Person
shall be (a) a Holder of one or more Outstanding Securities of such series, or
(b) a Person appointed by an instrument in writing as proxy for a Holder or
Holders of one or more Outstanding Securities of such series by such Holder or
Holders. The only Persons who shall be entitled to be present or to speak at any
meeting of Holders shall be the Persons entitled to vote at such meeting and
their counsel, any representatives of the Trustee and its counsel and any
representatives of the Company and its counsel.
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Section 13.4. Quorum; Action. The Persons entitled to vote a
majority in principal amount of the Outstanding Securities of a series shall
constitute a quorum for a meeting of Holders of Securities of such series;
provided, however, that if any action is to be taken at such meeting with
respect to a consent or waiver which this Indenture expressly provides may be
given by the Holders of not less than a specified percentage in principal amount
of the Outstanding Securities of a series, the Persons entitled to vote such
specified percentage in principal amount of the Outstanding Securities of such
series shall constitute a quorum. In the absence of a quorum within 30 minutes
after the time appointed for any such meeting, the meeting may be adjourned for
a period of not less than 10 days as determined by the chairman of the meeting
prior to the adjournment of such meeting. In the absence of a quorum at the
reconvening of any such adjourned meeting, such adjourned meeting may be further
adjourned for a period of not less than 10 days; at the reconvening of any
meeting adjourned or further adjourned for lack of a quorum, the persons
entitled to vote 25% in aggregate principal amount of the then Outstanding
Securities of the relevant series shall constitute a quorum for the taking of
any action set forth in the notice of the original meeting. Notice of the
reconvening of any adjourned meeting shall be given as provided in Section
13.2(b), except that such notice need be given only once not less than five days
prior to the date on which the meeting is scheduled to be reconvened.
Except as limited by the proviso to Section 8.2, any
resolution presented to a meeting or adjourned meeting duly reconvened at which
a quorum is present as aforesaid may be adopted by the affirmative vote of the
Holders of a majority in principal amount of the Outstanding Securities of that
series, provided, however, that, except as limited by the proviso to Section
8.2, any resolution with respect to any request, demand, authorization,
direction, notice, consent, waiver or other action which this Indenture
expressly provides may be made, given or taken by the Holders of a specified
percentage, which is less than a majority, in principal amount of the
Outstanding Securities of a series may be adopted at a meeting or an adjourned
meeting duly reconvened and at which a quorum is present as aforesaid by the
affirmative vote of the Holders of such specified percentage in principal amount
of the Outstanding Securities of that series.
Any resolution passed or decision taken at any meeting of
Holders of Securities of any series duly held in accordance with this Section
13.4 shall be binding on all the Holders of Securities of such series and the
related coupons, whether or not present or represented at the meeting.
Notwithstanding the foregoing provisions of this Sections
13.4, if any action is to be taken at a meeting of Holders of Securities of any
series with respect to any request, demand, authorization, direction, notice,
consent, waiver or other action that this Indenture expressly provides may be
made, given or taken by the Holders of a specified
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percentage in principal amount of all Outstanding Securities affected thereby,
or of the Holders of such series and one or more additional series:
(1) there shall be no minimum quorum requirement for such
meeting and
(2) the principal amount of the Outstanding Securities of such
series that vote in favor of such request, demand, authorization, direction,
notice, consent, waiver or other action shall be taken into account in
determining whether such request, demand, authorization, direction, notice,
consent, waiver or other action has been made, given or taken under this
Indenture.
Section 13.5. Determination of Voting Rights; Conduct and
Adjournment of Meetings. (a) Notwithstanding any other provisions of this
Indenture, the Trustee may make such reasonable regulations as it may deem
advisable for any meeting of Holders of Securities of any series in regard to
proof of the holding of Securities of such series and of the appointment of
proxies and in regard to the appointment and duties of inspectors of votes, the
submission and examination of proxies, certificates and other evidence of the
right to vote, and such other matters concerning the conduct of the meeting as
it shall deem appropriate. Except as otherwise permitted or required by any such
regulations, the holding of Securities shall be proved in the manner specified
in Section 1.4 and the appointment of any proxy shall be provided in the manner
specified in Section 1.4 or by having the signature of the Person executing the
proxy witnessed or guaranteed by any trust company, bank or banker authorized by
Section 1.4 to certify to the holding of Bearer Securities. Such regulations may
provide that written instruments appointing proxies, regular on their face, may
be presumed valid and genuine without the proof specified in Section 1.4 or
other proof.
(b) The Trustee shall, by an instrument in writing, appoint a
temporary chairman (which may be a Responsible Officer of the Trustee) of the
meeting, unless the meeting shall have been called by the Company as provided in
Section 13.2(b), in which case the Company shall in like manner appoint a
temporary chairman. A permanent chairman and a permanent secretary of the
meeting shall be elected by vote of the Persons entitled to vote a majority in
principal amount of the Outstanding Securities of such series represented at the
meeting.
(c) At any meeting each Holder of a Security of such series or
proxy shall be entitled to one vote for each U.S. $5,000 principal amount of
Securities held or represented by him or her; provided, however, that no vote
shall be cast or counted at any meeting in respect of any Security challenged as
not Outstanding and ruled by the chairman of the meeting to be not Outstanding.
The chairman of the meeting shall have no right to vote, except as a Holder of a
Security or proxy.
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(d) Any meeting of Holders of Securities of a series duly
called pursuant to Section 13.2 at which a quorum is present may be adjourned
from time to time by Persons entitled to vote a majority in principal amount of
the Outstanding Securities of such series represented at the meeting, and the
meeting may be held as so adjourned without further notice.
Section 13.6. Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of Holders of Securities
of any series shall be by written ballots on which shall be subscribed the
signatures of the Holders of Securities of such series or of their
representatives by proxy and the principal amounts and serial numbers of the
Outstanding Securities held or represented by them. The permanent chairman of
the meeting shall appoint an inspector of votes who shall count all votes cast
at the meeting for or against any resolution and who shall make and file with
the secretary of the meeting its verified written reports in duplicate of all
votes cast at the meeting. A record of the proceedings of each meeting of
Holders of Securities shall be prepared by the applicable secretary of the
meeting and there shall be attached to said record the original report of the
inspector of votes on any vote by ballot taken thereat and affidavits by one or
more Persons having knowledge of the facts, setting forth a copy of the notice
of the meeting and showing that said notice was given as provided in Section
13.2 and, if applicable, Section 13.4. At least two copies of such record shall
be signed and verified by the affidavits of the permanent chairman and secretary
of the meeting and one copy thereof shall be delivered to the Company and the
other to the Trustee to be preserved by the Trustee, the latter to have attached
thereto the ballots voted at the meeting. Any record so signed and verified
shall be conclusive evidence of the matters therein stated.
ARTICLE 14
CONVERSION OR EXCHANGE OF SECURITIES
Section 14.1. Applicability of Article. (a) The provisions of
this Article 14 shall be applicable to the Securities of any series which are
convertible or exchangeable into Equity Securities of the Company, and to the
issuance of such Equity Securities upon the conversion or exchange of such
Securities, except as otherwise specified as contemplated by Section 3.1 for the
Securities of such series.
(b) The term "Equity Securities" shall mean all or any of the
following, authorized from time to time: (i) the Company's Common Stock, $.01
par value (the "Common Stock"), (ii) the Company's Preferred Stock, $.10 par
value (the "Preferred Stock"), and (iii) any other equity securities of the
Company.
Section 14.2. Exercise of Conversion or Exchange Privilege.
(a) In order to exercise a conversion or exchange privilege, the Holder of a
Security of a series with
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such privilege shall surrender such Security, together, in the case of any
Bearer Security, with all unmatured interest coupons and any matured interest
coupons in default appertaining thereto, to the Company at the office or agency
maintained for that purpose pursuant to Section 9.2, accompanied by written
notice to the Company that the Holder elects to convert or exchange such
Security or a specified portion thereof. Such notice shall also state, if
different from the name and address of such Holder, the name or names (with
address) in which the certificate or certificates for Equity Securities which
shall be issuable on such conversion or exchange shall be issued. Registered
Securities surrendered for conversion or exchange shall (if so required by the
Company or the Trustee) be duly endorsed by or accompanied by instruments of
transfer in forms satisfactory to the Company and the Trustee duly executed by
the registered Holder or its attorney duly authorized in writing.
(b) As promptly as practicable after the receipt of such
notice and of any payment required pursuant to a Board Resolution establishing
the terms of any series of Securities and, subject to Section 3.3, set forth, or
determined in the manner provided, in an Officers' Certificate, or established
in one or more indentures supplemental hereto setting forth the terms of such
series of Security, and the surrender of such Security in accordance with such
reasonable regulations as the Company may prescribe, the Company shall issue and
shall deliver, at the office or agency at which such Security is surrendered, to
such Holder or on its written order, a certificate or certificates for the
number of Equity Securities issuable upon the conversion or exchange of such
Security (or specified portion thereof), in accordance with the provisions of
such Board Resolution, Officers' Certificate or supplemental indenture, and cash
as provided therein in respect of any fractional share of such Equity Security
otherwise issuable upon such conversion or exchange.
(c) Such conversion or exchange shall be deemed to have been
effected immediately prior to the close of business on the date on which such
notice and such payment, if required, shall have been received in proper order
for conversion or exchange by the Company and such Security shall have been
surrendered as aforesaid and at such time the rights of the Holder of such
Security as such Security Holder shall cease and the person or persons in whose
name or names any certificate or certificates for Equity Securities of the
Company shall be issuable upon such conversion or exchange shall be deemed to
have become the Holder or Holders of record of the Equity Securities represented
thereby. Except as set forth above and subject to paragraph (d) of Section 3.7,
no payment or adjustment shall be made upon any conversion or exchange on
account of any interest accrued on the Securities surrendered for conversion or
exchange, or on account of any dividends on the Equity Securities of the Company
issued upon such conversion or exchange if the record date for the payment of
such dividends occurs prior to or on the date on which such conversion or
exchange shall be deemed to have been effected.
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In the case of any Security which is converted or exchanged in
part only, upon such conversion or exchange the Company shall execute and the
Trustee shall authenticate and deliver to or on the order of the Holder thereof,
at the expense of the Company, a new Security or Securities of the same series,
of authorized denominations, in aggregate principal amount equal to the
unconverted or unexchanged portion of such Security.
Section 14.3. No Fractional Equity Securities. No fractional
Equity Security of the Company shall be issued upon conversions or exchanges of
Securities of any series. If more than one Security shall be surrendered for
conversion or exchange at one time by the same Holder, the number of full shares
of the Equity Security which shall be issuable upon conversion or exchange shall
be computed on the basis of the aggregate principal amount of the Securities (or
specified portions thereof to the extent permitted hereby) so surrendered. If,
except for the provisions of this Section 14.3, any Holder of a Security or
Securities would be entitled to a fractional share of any Equity Security of the
Company upon the conversion or exchange of such Security or Securities, or
specified portions thereof, the Company shall pay to such Holder an amount in
cash equal to the current market value of such fractional share computed, (i) if
such Equity Security is listed or admitted to unlisted trading privileges on a
national securities exchange, on the basis of the last reported sale price
regular way on the principal exchange where such Equity Security is listed or
admitted, on the last trading day prior to the date of conversion or exchange
upon which such a sale shall have been effected, (ii) if such Equity Security is
not at the time so listed or admitted on a national securities exchange but is
quoted on the National Market System of the National Association of Securities
Dealers, Inc. ("NASDAQ"), on the basis of the average of the last bid and asked
prices of such Equity Security on NASDAQ on the last trading day prior to the
date of conversion or exchange, (iii) if such Equity Security is not at the time
so listed or admitted to unlisted trading privileges on a national securities
exchange or quoted on NASDAQ, on the basis of the average of the last bid and
asked prices of such Equity Security in the over-the-counter market, on the last
trading day prior to the date of conversion or exchange, as reported by the
National Quotation Bureau Incorporated or similar organization if the National
Quotation Bureau Incorporated is no longer reporting such information, or (iv)
in accordance with the terms of the supplemental indenture or Board Resolutions
setting the terms of the Securities of such series. For purposes of this
Section, "trading day" shall mean each Monday, Tuesday, Wednesday, Thursday and
Friday other than any day on which the applicable Equity Security is not traded
or quoted on a national securities exchange, or if the applicable Equity
Security is not traded or quoted on a national securities exchange, on NASDAQ or
the principal exchange or market on which the applicable Equity Security is
traded or quoted.
Section 14.4. Adjustment of Conversion or Exchange Price;
Consolidation or Merger. The conversion or exchange price of Securities of any
series
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that is convertible or exchangeable into an Equity Security of the Company shall
be adjusted for any stock dividends, stock splits, reclassifications,
combinations or similar transactions, and the securities, assets or other
property into or for which such Securities may be converted or exchanged as a
result of any consolidation, merger, combination or similar transaction shall be
determined, in accordance with the terms of the supplemental indenture or Board
Resolutions setting the terms of the Securities of such series.
Whenever the conversion or exchange price is adjusted, the
Company shall compute the adjusted conversion or exchange price in accordance
with the terms of the applicable Board Resolution or supplemental indenture and
shall prepare an Officers' Certificate setting forth the adjusted conversion or
exchange price and showing in reasonable detail the facts upon which such
adjustment is based. Whenever the securities, assets or other property into or
for which Securities of any series may be converted or exchanged are changed as
a result of any consolidation, merger or similar transaction, the Company shall
determine the nature and amount of such securities, assets or other property in
accordance with the terms of the applicable Board Resolution or supplemental
indenture and shall prepare an Officer's Certificate describing such securities,
assets or other property and stating the amount of such securities, assets or
other property into or for which such Securities have become convertible or
exchangeable. Such certificates shall forthwith be filed at each office or
agency maintained for the purpose of conversion or exchange of Securities
pursuant to Section 9.2 and, if different, with the Trustee. The Company shall
forthwith cause a notice setting forth the adjusted conversion or exchange price
or describing such securities, assets or other property, as applicable, to be
mailed, first class postage prepaid, to each Holder of Registered Securities of
such series at its address appearing on the Register and to any conversion or
exchange agent other than the Trustee and shall give notice to Holders of Bearer
Securities as provided in Section 1.6.
Section 14.5. Notice of Certain Corporate Actions. If any
series of Securities which are directly or indirectly convertible or
exchangeable for any Equity Securities are Outstanding, in case:
(a) the Company shall declare a dividend (or any other
distribution) on any class of such Equity Securities payable otherwise than in
cash out of its retained earnings; or
(b) the Company shall authorize the granting to the holders of
any class of such Equity Securities of rights, options or warrants to subscribe
for or purchase any shares of capital stock of any class or of any other rights;
or
(c) of any reclassification of any class of such Equity
Securities or of the sale of all or substantially all of the assets of the
Company; or
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(d) of the voluntary or involuntary dissolution, liquidation
or winding up of the Company;
then the Company shall cause to be filed with the Trustee, and shall cause to be
mailed to all Holders at their addresses as they shall appear in the Register
and shall give notice to Holders of Bearer Securities as provided in Section
1.6., at least 15 days (or 10 days in any case specified in clause (a) or (b)
above) prior to the applicable record date hereinafter specified, a notice
stating (i) the date on which a record is to be taken for the purpose of such
dividend, distribution, rights, options or warrants, or, if a record is not to
be taken, the date as of which the Holders of such Equity Securities of record
to be entitled to such dividend, distribution, rights, options or warrants are
to be determined, or (ii) the date on which such reclassification,
consolidation, merger, share exchange, sale, dissolution, liquidation or winding
up is expected to become effective, and the date as of which it is expected that
holders of such Equity Securities of record shall be entitled to exchange such
Equity Securities for securities, cash or other property deliverable upon such
reclassification, consolidation, merger, share exchange, sale, dissolution,
liquidation or winding up. If at any time the Trustee shall not be the
conversion or exchange agent, a copy of such notice shall also forthwith be
filed by the Company with the Trustee.
Section 14.6. Reservation of Equity Securities. The Company
shall at all times reserve and keep available, free from preemptive rights, out
of its authorized but unissued Equity Securities, for the purpose of effecting
the conversion or exchange of Securities, the full number of Equity Securities
of the Company then issuable upon the conversion or exchange of all Outstanding
Securities of any series that has conversion or exchange rights.
Section 14.7. Payment of Certain Taxes Upon Conversion or
Exchange. The Company will pay any and all taxes that may be payable in respect
of the issue or delivery of its Equity Securities on conversion or exchange of
Securities pursuant hereto. The Company shall not, however, be required to pay
any tax which may be payable in respect of any transfer involved in the issue
and delivery of its Equity Securities in a name other than that of the Holder of
the Security or Securities to be converted or exchanged, and no such issue or
delivery shall be made unless and until the Person requesting such issue has
paid to the Company the amount of any such tax, or has established, to the
satisfaction of the Company, that such tax has been paid.
Section 14.8. Duties of Trustee Regarding Conversion or
Exchange. Neither the Trustee nor any conversion or exchange agent shall at any
time be under any duty or responsibility to any Holder of Securities of any
series that is convertible or exchangeable into Equity Securities of the Company
to determine whether any facts exist which may require any adjustment of the
conversion or exchange price, or with respect to the nature or extent of any
such adjustment when made, or with respect to the method
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employed, whether herein or in any supplemental indenture, any resolutions of
the Board of Directors or written instrument executed by one or more officers of
the Company provided to be employed in making the same. Neither the Trustee nor
any conversion or exchange agent shall be accountable with respect to the
validity or value (or the kind or amount) of any Equity Securities of the
Company, or of any securities or property, which may at any time be issued or
delivered upon the conversion or exchange of any Securities and neither the
Trustee nor any conversion or exchange agent makes any representation with
respect thereto. Subject to the provisions of Section 6.1, neither the Trustee
nor any conversion or exchange agent shall be responsible for any failure of the
Company to issue, transfer or deliver any of its Equity Securities or stock
certificates or other securities or property upon the surrender of any Security
for the purpose of conversion or exchange or to comply with any of the covenants
of the Company contained in this Article 14 or in the applicable supplemental
indenture, resolutions of the Board of Directors or written instrument executed
by one or more duly authorized officers of the Company.
Section 14.9. Repayment of Certain Funds Upon Conversion or
Exchange. Any funds which at any time have been deposited by the Company or on
its behalf with the Trustee or any Paying Agent for the purpose of paying the
principal of, and premium, if any, and interest, if any, on any of the
Securities (including funds deposited for any sinking fund referred to in
Article 12 hereof) and which shall not be required for such purposes because of
the conversion or exchange of such Securities as provided in this Article 14
shall after such conversion or exchange be repaid to the Company by the Trustee
upon the Company's written request by Company Request.
ARTICLE 15
JURISDICTION AND CONSENT TO SERVICE OF PROCESS
Section 15.1. Jurisdiction and Consent to Service of Process.
(a) The Company 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, this Indenture, or for
recognition or enforcement of any judgment, and the Company 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. The Company 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 15 shall affect any right that any
Holder or the Trustee may
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otherwise have to bring any action or proceeding relating to the Securities,
this Indenture against the Company or its properties in the courts of any
jurisdiction.
(b) The Company 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, this Indenture in any
New York State or Federal court. The Company 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) The Company irrevocably consents to service of process in
the manner provided for notices in Section 1.5. Nothing in this Agreement will
affect the right of any Holder or the Trustee to serve process in any other
manner permitted by law.
This instrument may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
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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 INDUSTRIES, INC.
By:___________________________
Name:
Title:
Attest:
__________________________
Name:
Title:
FIRST TRUST NATIONAL ASSOCIATION
By:___________________________
Name:
Title:
Attest:
__________________________
Name:
Title:
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================================================================================
ALLIED WASTE INDUSTRIES, INC., as Issuer
to
FIRST TRUST NATIONAL ASSOCIATION, as Trustee
SENIOR SUBORDINATED INDENTURE
Dated as of _________________, 1997
Providing for Issuance of
Senior Subordinated Debt Securities in Series
================================================================================
<PAGE> 2
Reconciliation and tie between Senior Subordinated Indenture, dated as
of _____________, 1997 (the "Indenture") and the Trust Indenture Act of 1939, as
amended.
<TABLE>
<CAPTION>
Trust Indenture Act Indenture
of 1939 Section Section
- --------------------------------------------------------------------------------
<S> <C>
310 (a)(1)............................................... 6.9
(a)(2)............................................... 6.9
(a)(3)............................................... TIA
(a)(4)............................................... Not Applicable
(a)(5)............................................... TIA
(b).................................................. 6.8; 6.10; TIA
311 (a).................................................. TIA
(b).................................................. TIA
312 (a).................................................. 10.1
(b).................................................. TIA
(c).................................................. TIA
313 (a).................................................. 10.3; TIA
(b).................................................. TIA
(c).................................................. TIA
(d).................................................. TIA
314 (a).................................................. 10.4; TIA
(b).................................................. Not Applicable
(c)(1)............................................... 1.2
(c)(2)............................................... 1.2
(c)(3)............................................... Not Applicable
(d).................................................. Not Applicable
(e).................................................. TIA
(f).................................................. TIA
315 (a).................................................. 6.1
(b).................................................. 6.2
(c).................................................. 6.1
(d)(1)............................................... TIA
</TABLE>
<PAGE> 3
<TABLE>
<S> <C>
(d)(2)............................................... TIA
(d)(3)............................................... TIA
(e).................................................. TIA
316 (a)(last sentence)................................... 1.1
(a)(1)(A)............................................ 5.2; 5.8
(a)(1)(B)............................................ 5.7
(b).................................................. 5.9; 5.10
(c).................................................. TIA
317 (a)(1)............................................... 5.3
(a)(2)............................................... 5.4
(b).................................................. 9.3
318 (a).................................................. 1.12
(b).................................................. TIA
(c).................................................. 1.12; TIA
</TABLE>
- -------------------
This reconciliation and tie section does not constitute part of the Indenture.
<PAGE> 4
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
Recitals ............................................................................ 1
ARTICLE 1 Definitions and Other Provisions of General Application................................ 1
Section 1.1. Definitions............................................................... 1
Section 1.2. Compliance Certificates and Opinions...................................... 13
Section 1.3. Form of Documents Delivered to Trustee.................................... 14
Section 1.4. Acts of Holders........................................................... 14
Section 1.5. Notices, Etc., to Trustee and Company..................................... 16
Section 1.6. Notice to Holders; Waiver................................................. 17
Section 1.7. Headings and Table of Contents............................................ 18
Section 1.8. Successor and Assigns..................................................... 18
Section 1.9. Separability.............................................................. 18
Section 1.10. Benefits of Indenture.................................................... 18
Section 1.11. Incorporators, Stockholders, Officers and Directors of the Company
Exempt from Individual Liability................................... 18
Section 1.12. Governing Law; Conflict with Trust Indenture Act......................... 19
Section 1.13. Legal Holidays........................................................... 19
Section 1.14. Moneys of Different Currencies to Be Segregated.......................... 19
Section 1.15. Independence of Covenants................................................ 19
Section 1.16. Counterparts............................................................. 20
ARTICLE 2 Security Forms........................................................................ 20
Section 2.1. Forms Generally........................................................... 20
Section 2.2. Form of Trustee's Certificate of Authentication........................... 20
Section 2.3. Securities in Global Form................................................. 21
Section 2.4. Form of Legend for Securities in Global Form.............................. 22
ARTICLE 3 The Securities........................................................................ 22
Section 3.1. Amount Unlimited; Issuable in Series...................................... 22
Section 3.2. Denominations............................................................. 27
Section 3.3. Execution, Authentication, Delivery and Dating............................ 27
Section 3.4. Temporary Securities...................................................... 30
Section 3.5. Registration, Transfer and Exchange....................................... 31
Section 3.6. Replacement Securities.................................................... 35
Section 3.7. Payment of Interest; Interest Rights Preserved............................ 37
</TABLE>
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<TABLE>
<S> <C>
Section 3.8. Persons Deemed Owners..................................................... 39
Section 3.9. Cancellation.............................................................. 40
Section 3.10. Computation of Interest.................................................. 40
Section 3.11. CUSIP Numbers............................................................ 40
Section 3.12. Currency and Manner of Payment in Respect of Securities.................. 41
ARTICLE 4 Satisfaction, Discharge and Defeasance................................................ 41
Section 4.1. Termination of Company's Obligations Under the Indenture.................. 41
Section 4.2. Application of Trust Funds................................................ 43
Section 4.3. Applicability of Defeasance Provisions; Company's Option to Effect
Defeasance or Covenant Defeasance.................................. 43
Section 4.4. Defeasance and Discharge.................................................. 43
Section 4.5. Covenant Defeasance....................................................... 44
Section 4.6. Conditions to Defeasance or Covenant Defeasance........................... 44
Section 4.7. Deposited Money and Government Obligations to Be Held in Trust............ 46
Section 4.8. Repayment to Company...................................................... 47
Section 4.9. Indemnity for Government Obligations...................................... 47
Section 4.10. Reinstatement............................................................ 47
ARTICLE 5 Defaults and Remedies................................................................. 48
Section 5.1. Events of Default......................................................... 48
Section 5.2. Acceleration; Rescission and Annulment.................................... 50
Section 5.3. Collection of Indebtedness and Suits for Enforcement by Trustee........... 51
Section 5.4. Trustee May File Proofs of Claim.......................................... 52
Section 5.5. Trustee May Enforce Claims Without Possession of Securities............... 52
Section 5.6. Delay or Omission Not Waiver.............................................. 53
Section 5.7. Waiver of Past Defaults................................................... 53
Section 5.8. Control by Majority....................................................... 53
Section 5.9. Limitation on Suits by Holders............................................ 53
Section 5.10. Rights of Holders to Receive Payment..................................... 54
Section 5.11. Application of Money Collected........................................... 54
Section 5.12. Restoration of Rights and Remedies....................................... 55
Section 5.13. Rights and Remedies Cumulative........................................... 55
Section 5.14. Undertaking for Costs.................................................... 56
</TABLE>
-ii-
<PAGE> 6
<TABLE>
<S> <C>
Section 5.15. Waiver of Stay, Extension or Usury Laws.................................. 56
ARTICLE 6 The Trustee............................................................................ 56
Section 6.1. Certain Duties and Responsibilities....................................... 56
Section 6.2. Notice of Defaults........................................................ 57
Section 6.3. Certain Rights of Trustee.................................................. 57
Section 6.4. Not Responsible for Recitals or Issuance of Securities.................... 58
Section 6.5. May Hold Securities....................................................... 58
Section 6.6. Money Held in Trust....................................................... 58
Section 6.7. Compensation and Reimbursement............................................ 58
Section 6.8. Conflicting Interests..................................................... 59
Section 6.9. Corporate Trustee Required; Eligibility................................... 59
Section 6.10. Resignation and Removal; Appointment of Successor........................ 60
Section 6.11. Acceptance of Appointment by Successor................................... 61
Section 6.12. Merger, Conversion, Consolidation or Succession to Business.............. 62
Section 6.13. Preferential Collection of Claims Against Company........................ 62
Section 6.14. Appointment of Authenticating Agent...................................... 63
ARTICLE 7 Consolidation, Merger or Sale of Assets by the Company................................ 64
Section 7.1. Consolidation, Merger or Sale of Assets Permitted......................... 64
ARTICLE 8 Supplemental Indentures................................................................ 65
Section 8.1. Supplemental Indentures Without Consent of Holders........................ 65
Section 8.2. Supplemental Indentures With Consent of Holders........................... 67
Section 8.3. Compliance with Trust Indenture Act....................................... 68
Section 8.4. Execution of Supplemental Indentures...................................... 68
Section 8.5. Effect of Supplemental Indentures......................................... 69
Section 8.6. Reference in Securities to Supplemental Indentures........................ 69
Section 8.7. Notice of Supplemental Indentures......................................... 69
ARTICLE 9 Covenants 69
Section 9.1. Payment of Principal, Premium, if any, and Interest....................... 69
Section 9.2. Maintenance of Office or Agency........................................... 70
Section 9.3. Money for Securities Payments to Be Held in Trust; Unclaimed Money........ 71
Section 9.4. Corporate Existence....................................................... 73
Section 9.5. Annual Review Certificate................................................. 73
Section 9.6 Waiver of Certain Covenants................................................ 73
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ARTICLE 10 Holders' Lists and Reports by Trustee and Company.................................... 73
Section 10.1. Company to Furnish Trustee Names and Addresses of Holders................ 73
Section 10.2. Preservation of Information, Communications to Holders................... 74
Section 10.3. Reports by Trustee....................................................... 74
Section 10.4. Reports by the Company................................................... 75
ARTICLE 11 Redemption........................................................................... 75
Section 11.1. Applicability of Article................................................. 75
Section 11.2. Election to Redeem; Notice to Trustee.................................... 75
Section 11.3. Selection of Securities to Be Redeemed................................... 75
Section 11.4. Notice of Redemption..................................................... 76
Section 11.5. Deposit of Redemption Price.............................................. 77
Section 11.6. Securities Payable on Redemption Date.................................... 78
Section 11.7. Securities Redeemed in Part.............................................. 79
ARTICLE 12 Sinking Funds........................................................................ 79
Section 12.1. Applicability of Article................................................. 79
Section 12.2. Satisfaction of Sinking Fund Payments with Securities.................... 79
Section 12.3. Redemption of Securities for Sinking Fund................................ 80
ARTICLE 13 Meetings of Holders of Securities..................................................... 80
Section 13.1. Purposes for Which Meetings May Be Called................................ 80
Section 13.2. Call, Notice and Place of Meetings....................................... 80
Section 13.3. Persons Entitled to Vote at Meetings..................................... 81
Section 13.4. Quorum; Action........................................................... 81
Section 13.5. Determination of Voting Rights; Conduct and Adjournment of Meetings...... 82
Section 13.6. Counting Votes and Recording Action of Meetings.......................... 83
ARTICLE 14 Conversion or Exchange of Securities................................................. 84
Section 14.1. Applicability of Article................................................. 84
Section 14.2. Exercise of Conversion or Exchange Privilege............................. 84
Section 14.3. No Fractional Equity Securities.......................................... 85
Section 14.4. Adjustment of Conversion or Exchange Price; Consolidation or Merger...... 86
</TABLE>
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Section 14.5. Notice of Certain Corporate Actions...................................... 87
Section 14.6. Reservation of Equity Securities......................................... 87
Section 14.7. Payment of Certain Taxes Upon Conversion or Exchange..................... 88
Section 14.8. Duties of Trustee Regarding Conversion or Exchange....................... 88
Section 14.9. Repayment of Certain Funds Upon Conversion or Exchange................... 88
ARTICLE 15 Subordination of Securities.......................................................... 89
Section 15.1. Securities Subordinate to Senior Debt.................................... 89
Section 15.2. Payment Over of Proceeds Upon Dissolution, Etc........................... 89
Section 15.3. No Payment When Senior Debt in Default................................... 90
Section 15.4. Certain Payments Permitted............................................... 91
Section 15.5. Subrogation to Rights of Holders of Senior Debt.......................... 91
Section 15.6. Provisions Solely to Define Relative Rights.............................. 92
Section 15.7. Trustee to Effectuate Subordination...................................... 92
Section 15.8. No Waiver of Subordination Provisions.................................... 92
Section 15.9. Notice to Trustee........................................................ 93
Section 15.10. Reliance on Judicial Order or Certificate of Liquidating Agent.......... 93
Section 15.11. Trustee Not Fiduciary for Holders of Senior Debt........................ 94
Section 15.12. Rights of Trustee as Holder of Senior Debt; Preservation of Trustee's
Rights............................................................. 94
Section 15.13. Article Applicable to Paying Agents..................................... 94
Section 15.14. Defeasance of this Article 15........................................... 94
ARTICLE 16 Jurisdiction and Consent to Service of Process....................................... 94
Section 16.1. Jurisdiction and Consent to Service of Process........................... 94
</TABLE>
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SENIOR SUBORDINATED INDENTURE (the "Indenture"), dated as of
___________, 1997, between ALLIED WASTE INDUSTRIES, INC., a corporation duly
organized and existing under the laws of the State of Delaware (the "Company"),
having its principal office at 15880 North Greenway - Hayden Loop, Suite 100,
Scottsdale, Arizona 85260, and FIRST TRUST NATIONAL ASSOCIATION, a national
banking association, as Trustee (the "Trustee").
RECITALS
The Company has duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of its secured or
unsecured senior subordinated debentures, notes or other evidences of
indebtedness ("Securities") to be issued in one or more series as herein
provided.
All things necessary to make this Indenture a valid agreement
of the Company, in accordance with its terms, have been done.
For and in consideration of the premises and the purchase of
the Securities by the Holders thereof, it is mutually covenanted and agreed as
follows for the equal and ratable benefit of the Holders of the Securities or of
any series thereof:
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
Section 1.1. Definitions (a) For all purposes of this
Indenture, except as otherwise expressly provided or unless the context
otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the
singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles as in effect in the United States of America from
time to time; provided that when two or more principles are so
generally accepted, it shall mean that set of principles consistent
with those in use by the Company; and
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(4) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not to
any particular Article, Section or other subdivision.
"Affiliate" of any specified Person means any Person directly
or indirectly controlling or controlled by, or under direct or indirect common
control with, such specified Person. For purposes of this definition, "control"
when used with respect to any specified Person means the power to direct the
management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
"Agent" means any Paying Agent or Registrar.
"Authenticating Agent" means any authenticating agent
appointed by the Trustee pursuant to Section 6.14.
"Authorized Newspaper" means a newspaper of general
circulation, in the official language of the country of publication or in the
English language, customarily published on each Business Day whether or not
published on Saturdays, Sundays or holidays. Whenever successive publications in
an Authorized Newspaper are required hereunder they may be made (unless
otherwise expressly provided herein) on the same or different days of the week
and in the same or different Authorized Newspapers.
"AWNA" means Allied Waste North America, Inc., a Delaware
corporation and wholly owned subsidiary of the Company.
"Bearer Security" means any Security issued hereunder which is
payable to bearer.
"Board" or "Board of Directors" means the Board of Directors
of the Company, or any duly authorized committee thereof.
"Board Resolution" means a copy of a resolution of the Board
of Directors, certified by the Secretary or an Assistant Secretary of the
Company to have been duly adopted by the Board of Directors and to be in full
force and effect on the date of the certificate, and delivered to the Trustee.
"Business Day", when used with respect to any Place of Payment
or any other particular location referred to in this Indenture or in the
Securities, means, unless otherwise specified with respect to any Securities
pursuant to Section 3.1, each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which banking
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<PAGE> 11
institutions in that Place of Payment or particular location are authorized or
obligated by law, regulation or executive order to close.
"Capital Lease Obligation" of any Person means the obligation
to pay rent or other payment amounts under a lease of (or other arrangements
conveying the right to use) real or personal property by such Person which is
required to be classified and accounted for as a capital lease or a liability on
a balance sheet of such Person in accordance with generally accepted accounting
principles. The stated maturity of such obligation shall be the date of the last
payment of rent or any other amount due under such lease prior to the first date
upon which such lease may be terminated by the lessee without payment of a
penalty. The principal amount of such obligation shall be the capitalized amount
thereof that would appear on a balance sheet of such Person in accordance with
generally accepted accounting principles.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Securities Exchange Act of
1934, as amended, or, if at any time after the execution of this Indenture such
Commission is not existing and performing the duties now assigned to it under
the Trust Indenture Act, then the body performing such duties at such time.
"Company" means the Person named as the Company in the first
paragraph of this Indenture until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter means
such successor.
"Company Order" and "Company Request" mean, respectively, a
written order or request signed in the name of the Company by two Officers, one
of whom must be the Chairman of the Board, the President, the Chief Executive
Officer, the Chief Operating Officer, the Chief Financial Officer, a Vice
President, the Treasurer or the Secretary of the Company.
"consent", "waive" and "rescind", when used with respect to
the consent, waiver or rescission of or by the Holders of a specified percentage
in aggregate principal amount of Securities of any series, shall mean any of (i)
a favorable vote with respect to such consent, waiver or rescission, at any
meeting of Holders of Securities of such series duly called and held in
accordance with the provisions of Article 13, by the Holders of the applicable
percentage in aggregate principal amount of such Securities specified in the
second paragraph of Section 13.4; (ii) written consents, waivers or rescissions
of or by the Holders of such specified percentage in aggregate principal amount
of such Securities; and (iii) a combination of the favorable vote with respect
to such consent, waiver or rescission, at any meeting of Holders of Securities
of such series duly called and held in accordance with the provisions of Article
13, by the Holders of less than the applicable percentage in aggregate principal
amount of such Securities specified in the second
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paragraph of Section 13.4 and written consents, waivers or rescissions of other
Holders of such Securities, where the sum of the percentage of such Holders so
voting in favor and the percentage of such Holders signing such written
consents, waivers or rescissions is equal to at least such specified percentage.
"Corporate Trust Office" means an office of the Trustee in New
York, New York at which at any particular time its corporate trust business
shall be administered, which office at the date hereof is located at 100 Wall
Street, 20th Floor, New York, New York 10005, Attention: Corporate Trust
Administration.
"Credit Agreement" means the Amended and Restated Credit
Agreement dated June 5, 1997 among AWWA, the Company and the subsidiary
guarantors named therein, as guarantors, Goldman Sachs Credit Partners L.P.,
Credit Suisse First Boston, Citibank, N.A. and the other Lenders referred to
therein.
"currency unit" for all purposes of this Indenture shall
include any composite currency, including, without limitation, ECU.
"Debt" means (without duplication), with respect to any
Person, whether recourse is to all or a portion of the assets of such Person,
(i) every obligation of such Person for money borrowed, (ii) every obligation of
such Person evidenced by bonds, debentures, notes or other similar instruments,
including obligations Incurred in connection with the acquisition of property,
assets or businesses, (iii) every reimbursement obligation of such Person with
respect to letters of credit, bankers' acceptances or similar facilities issued
for the account of such Person, (iv) every obligation of such Person issued or
assumed as the deferred purchase price of property or services (but excluding
trade accounts payable or accrued liabilities arising in the ordinary course of
business), (v) every Capital Lease Obligation of such Person, (vi) the maximum
fixed redemption or repurchase price of Redeemable Interests of such Person at
the time of determination, (vii) every net payment obligation of such Person
under interest rate swap or similar agreements or foreign currency hedge,
exchange or similar agreements at the time of determination and (viii) every
obligation of the type referred to in Clauses (i) through (vii) of another
Person and all dividends of another Person the payment of which, in either case,
such Person has Guaranteed or for which such Person is responsible or liable,
directly or indirectly, jointly or severally, as obligor, Guarantor or
otherwise.
"Default" means, with respect to Securities of any series, any
event which is, or after notice or passage of time, or both, would be, an Event
of Default with respect to the Securities of such series.
"Depositary", when used with respect to the Securities of or
within any series issuable or issued in whole or in part in global form, means
the Person designated
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as Depositary by the Company pursuant to Section 3.1(b) until a successor
Depositary shall have become such pursuant to the applicable provisions of this
Indenture, and thereafter shall mean or include each Person which is then a
Depositary hereunder, and if at any time there is more than one such Person,
shall be a collective reference to such Persons.
"Dollar" means the currency of the United States that at the
time of payment is legal tender for the payment of public and private debts.
"ECU" means the European Currency Unit as defined and revised
from time to time by the Council of the European Communities.
"European Monetary System" means the European Monetary System
established by the Resolution of December 5, 1978 of the Council of the European
Communities.
"Exchange Rate Certificate" means a certificate, signed by a
Responsible Officer of the Trustee, setting forth (i) the applicable Market
Exchange Rate or the applicable bid quotation and (ii) the Dollar amount of
principal (and premium, if any) and interest, if any (on an aggregate basis and
on the basis of a Security having the lowest denomination principal amount in
the relevant currency or currency unit), that would be payable with respect to a
Security of the applicable series on the basis of such Market Exchange Rate or
the applicable bid quotation.
"Foreign Currency" means any currency issued by the government
of one or more countries other than the United States or by any recognized
confederation or association of such governments.
"Government Obligations" means securities that are (x) direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged or (y) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America the payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America, which, in either case (x) or
(y), are not callable or redeemable at the option of the issuer thereof, and
shall also include a depository receipt issued by a bank (as defined in Section
3(a)(2) of the Securities Act of 1933, as amended) as custodian with respect to
any such Government Obligation or a specific payment of principal of or interest
on any such Government Obligation held by such custodian for the account of the
holder of such depository receipt, provided that (except as required by law)
such custodian is not authorized to make any deduction from the amount payable
to the holder of such depository receipt from any amount received by the
custodian in respect of the
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<PAGE> 14
Government Obligation or the specific payment of principal of or interest on the
Government Obligation evidenced by such depository receipt.
"Guaranty" or "Guarantee" by any Person means any obligation,
contingent or otherwise, of such Person guaranteeing any Debt, or dividends or
distributions on any equity security, of any other Person (the "primary
obligor") in any manner, whether directly or indirectly, and including, without
limitation, any obligation of such Person (i) to purchase or pay (or advance or
supply funds for the purchase or payment of) such Debt or to purchase (or to
advance or supply funds for the purchase of) any security for the payment of
such Debt, (ii) to purchase property, securities or services for the purpose of
assuring the holder of such Debt of the payment of such Debt or (iii) to
maintain working capital, equity capital or other financial statement condition
or liquidity of the primary obligor so as to enable the primary obligor to pay
such Debt (and "Guaranteed", "Guaranteeing" and "Guarantor" shall have meanings
correlative to the foregoing); provided, however, that the Guaranty by any
Person shall not include endorsements by such Person for collection or deposit,
in either case, in the ordinary course of business.
"Holder" means, with respect to a Bearer Security, a bearer
thereof or of an interest coupon appertaining thereto and, with respect to a
Registered Security, a Person in whose name a Security is registered on the
Register.
"Incur" means, with respect to any Debt of any Person, to
create, issue, incur (by conversion, exchange or otherwise), assume, Guarantee
or otherwise become liable in respect of such Debt, or the taking of any other
action which would cause such Debt, in accordance with generally accepted
accounting principles to be recorded on the balance sheet of such Person (and
"Incurrence", "Incurred", "Incurrable" and "Incurring" shall have meanings
correlative to the foregoing), provided that, the Debt of any other Person
becoming a Restricted Subsidiary of such Person will be deemed for this purpose
to have been Incurred by such Person at the time such other Person becomes a
Restricted Subsidiary of such Person; provided, further, that a change in
generally accepted accounting principles that results in an obligation of such
Person that exists at such time becoming Debt shall not be deemed an Incurrence
of such Debt.
"Indenture" means this instrument as originally executed and
as it may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
including, for all purposes of this instrument and any such supplemental
indenture, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this instrument and any such supplemental indenture,
respectively. The term "Indenture" shall also include the terms of particular
series of Securities established as contemplated by Section 3.1.
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"Indexed Security" means a Security the terms of which provide
that the principal amount thereof payable at Stated Maturity is based, at least
in part, upon the performance or value of a specified market index, reference
security or other variable and may be more or less than the principal face
amount thereof at original issuance.
"interest", when used with respect to an Original Issue
Discount Security which by its terms bears interest only after Maturity, means
interest payable after Maturity and, when used with respect to any other
Security, means the interest payable thereon in accordance with its terms.
"Interest Payment Date", when used with respect to any
Security, means the Stated Maturity of an installment of interest on such
Security.
"Market Exchange Rate" means, unless otherwise specified with
respect to any Securities pursuant to Section 3.1, (i) for a conversion of any
currency unit into Dollars, the exchange rate between the relevant currency unit
and Dollars calculated by the method specified pursuant to Section 3.1 for the
Securities of the relevant series, and (ii) for a conversion of any Foreign
Currency into Dollars, the applicable exchange rate between such Foreign
Currency and Dollars set forth under the heading, "Currency Trading -- Exchange
Rates" in the "Money & Investing" section of The Wall Street Journal (or in such
other section of The Wall Street Journal in which foreign currency exchange
rates may be regularly published from time to time) as of the most recent
available date, in each case as determined by the Trustee. Unless otherwise
specified with respect to any Securities pursuant to Section 3.1, in the event
of the unavailability of any of the exchange rates provided for in the foregoing
clauses (i) and (ii), the Trustee shall use the average of the quotations from
at least three major banks acceptable to the Company in The City of New York
(which may include any such bank acting as Trustee under this Indenture), or
such other quotations as the Trustee and the Company shall deem appropriate.
"Maturity", when used with respect to any Security, means the
date on which the principal of such Security or an installment of principal
becomes due and payable as therein or herein provided, whether at the Stated
Maturity or by declaration of acceleration, call for redemption or otherwise.
"Officer" means the Chairman of the Board, the President, the
Chief Executive Officer, the Chief Operating Officer, the Chief Financial
Officer, any Vice President, the Treasurer, any Assistant Treasurer, the
Secretary or any Assistant Secretary of the Company.
"Officers' Certificate", when used with respect to the
Company, means a certificate signed by two Officers, one of whom must be the
Chairman of the Board, the
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<PAGE> 16
President, the Chief Executive Officer, the Chief Operating Officer, the Chief
Financial Officer, any Vice President, the Treasurer or the Secretary of the
Company.
"Opinion of Counsel" means a written opinion from the general
counsel of the Company or other legal counsel who is reasonably acceptable to
the Trustee. Such counsel may be an employee of or counsel to the Company.
"Original Issue Discount Security" means any Security which
provides for an amount less than the stated principal amount thereof to be due
and payable upon declaration of acceleration of the Maturity thereof pursuant to
Section 5.2.
"Outstanding", when used with respect to Securities, means, as
of the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities, or portions thereof, for whose payment or
redemption money in the necessary amount has been theretofore deposited with the
Trustee or any Paying Agent (other than the Company) in trust or set aside and
segregated in trust by the Company (if the Company shall act as a Paying Agent)
for the Holders of such Securities and any interest coupons appertaining
thereto, provided that, if such Securities are to be redeemed, notice of such
redemption has been duly given pursuant to this Indenture or provisions therefor
satisfactory to the Trustee have been made;
(iii) Securities, except to the extent provided in Sections
4.4 and 4.5, with respect to which the Company has effected defeasance and/or
covenant defeasance as provided in Article 4; and
(iv) Securities which have been replaced or paid pursuant to
Section 3.6 or in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any such
Securities in respect of which there shall have been presented to the Trustee
proof satisfactory to it that such Securities are held by a bona fide purchaser
in whose hands such Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, or whether
sufficient funds are available for redemption or for any other purpose, and for
the purpose of making the calculations required by Section 313 of the Trust
Indenture Act, (w) the principal amount of any Original Issue Discount
Securities that may be counted in making such determination or
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calculation and that shall be deemed to be Outstanding for such purpose shall be
equal to the amount of principal thereof that would be (or shall have been
declared to be) due and payable, at the time of such determination, upon a
declaration of acceleration of the Maturity thereof pursuant to Section 5.2, (x)
the principal amount of any Security denominated in a Foreign Currency that may
be counted in making such determination or calculation and that shall be deemed
Outstanding for such purpose shall be equal to the Dollar equivalent, determined
as of the date such Security is originally issued by the Company as set forth in
an Exchange Rate Certificate, of the principal amount (or, in the case of an
Original Issue Discount Security, the Dollar equivalent as of such date of
original issuance of the amount determined as provided in clause (w) above) of
such Security, (y) the principal amount of any Indexed Security that may be
counted in making such determination or calculation and that shall be deemed
Outstanding for such purpose shall be equal to the principal face amount of such
Indexed Security at original issuance, unless otherwise provided with respect to
such Security pursuant to Section 3.1, and (z) Securities owned by the Company
or any other obligor upon the Securities or any Affiliate of the Company or of
such other obligor shall be disregarded and deemed not to be Outstanding, except
that, in determining whether the Trustee shall be protected in making such
calculation or in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Securities which the Trustee knows to
be so owned shall be so disregarded. Securities so owned which have been pledged
in good faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect to such
Securities and that the pledgee is not the Company or any other obligor upon the
Securities or any Affiliate of the Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company to
pay the principal of, premium, if any, interest, if any, and any other payments
due on any Securities on behalf of the Company.
"Periodic Offering" means an offering of Securities of a
series from time to time the specific terms of which Securities, including,
without limitation, the rate or rates of interest or formula or formulae for
determining the rate or rates of interest thereon, if any, the Maturity thereof,
the redemption provisions, if any, and any other terms specified as contemplated
by Section 3.1, with respect thereto, are to be determined by the Company upon
the issuance of such Securities.
"Person" means any individual, corporation, partnership, joint
venture, limited liability company, association, joint-stock company, trust,
other entity, unincorporated organization or government or any agency or
political subdivision thereof.
"Place of Payment", when used with respect to the Securities
of or within any series, means the place or places where the principal of,
premium, if any, interest and
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any other payments due on such Securities are payable as specified as
contemplated by Sections 3.1 and 9.2.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that evidenced
by such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 3.6 in exchange for or in
lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security.
"Redeemable Interest" of any Person means any equity security
of or other ownership interest in such Person that by its terms (or by the terms
of any security into which it is convertible or for which it is exchangeable) or
otherwise (including upon the occurrence of an event) matures or is required to
be redeemed (pursuant to any sinking fund obligation or otherwise) or is
convertible into or exchangeable for Debt or is redeemable at the option of the
holder thereof, in whole or in part, at any time prior to the final Stated
Maturity of the Securities.
"Redemption Date", when used with respect to any Security to
be redeemed, means the date fixed for such redemption pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to
be redeemed, in whole or in part, means the price at which it is to be redeemed
pursuant to this Indenture.
"Registered Security" means any Security issued hereunder and
registered as to principal and interest in the Register.
"Regular Record Date" for the interest payable on any Interest
Payment Date on the Securities of or within any series means the date specified
for that purpose as contemplated by Section 3.1.
"Responsible Officer", when used with respect to the Trustee,
shall mean any vice president, the secretary, any assistant secretary, the
treasurer, any assistant treasurer, any trust officer or assistant trust
officer, or any officer of the Trustee customarily performing functions similar
to those performed by any of the above designated officers and also shall mean,
with respect to a particular corporate trust matter, any officer to whom such
matter is referred because of his knowledge of and familiarity with the
particular subject.
"Restricted Subsidiary" means (i) at any date, a Subsidiary of
the Company that is not an Unrestricted Subsidiary as of such date and (ii) for
any period, a Subsidiary
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of the Company that for any portion of such period is not an Unrestricted
Subsidiary, provided that such term shall mean such Subsidiary only for such
portion of such period.
"Security" or "Securities" has the meaning stated in the first
recital of this Indenture and more particularly means a Security or Securities
of the Company issued, authenticated and delivered under this Indenture.
"Senior Debt" means (i) with respect to the Company or any
Restricted Subsidiary of the Company, as the case may be, (a) every obligation
of such Person for money borrowed, (b) every obligation of such Person evidenced
by bonds, debentures, notes or other similar instruments, including obligations
Incurred in connection with the acquisition of property, assets or businesses,
(c) every reimbursement obligation of such Person with respect to letters of
credit, bankers' acceptances or similar facilities issued for the account of
such Person, (v) every Capital Lease Obligation of such Person and (d) every net
payment obligation of such Person under interest rate swap or similar agreements
or foreign currency hedge, exchange or similar agreements at the time of
determination, whether Incurred on or prior to the date hereof or thereafter
Incurred, (ii) with respect to the Company or any Restricted Subsidiary of the
Company, Guarantees by such person of Senior Debt and obligations of AWNA under
the Credit Agreement and (iii) amendments, modifications, renewals, extensions,
refinancings and refundings of any such Debt; provided, however, the following
shall not constitute Senior Debt: (A) any Debt owed to a Person when such Person
is a Subsidiary of the Company, (B) any Debt which by the terms of the
instrument creating or evidencing the same is pari passu or subordinate in right
of payment to the Securities, (C) any Debt incurred in violation of this
Indenture or (D) any Debt which is subordinate in right of payment in any
respect to any other Debt of the Company. For purposes of this definition,
"Debt" includes any obligation to pay principal, premium (if any), interest,
penalties, reimbursement or indemnity amounts, fees and expenses (including
interest accruing on or after the filing of any petition in bankruptcy or for
reorganization relating to the Company, whether or not a claim for post-petition
interest is allowed in such proceeding).
"Special Record Date" for the payment of any Defaulted
Interest means a date fixed by the Trustee pursuant to Section 3.7.
"Stated Maturity", when used with respect to any Security or
any installment of principal thereof or interest thereon, means the date
specified in such Security or in an interest coupon representing such
installment of interest as the fixed date on which the principal of such
Security or such installment of principal or interest is due and payable.
"Subsidiary" of any Person means any Person of which at least
a majority of the outstanding voting securities having ordinary voting power for
the election of
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directors or other governing body, or other ownership interests ordinarily
constituting a majority voting interest, is owned or controlled, directly or
indirectly, by such Person or by one or more Subsidiaries of such Person, or by
such Person and one or more Subsidiaries of such Person.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as
amended and as in effect on the date of this Indenture, except as provided in
Section 8.3; provided, however, that if the Trust Indenture Act of 1939 is
amended after such date, "Trust Indenture Act" means, to the extent required by
any such amendment, the Trust Indenture Act of 1939 as so amended.
"Trustee" means the party named as such in the first paragraph
of this Indenture until a successor Trustee replaces it pursuant to the
applicable provisions of this Indenture, and thereafter means such successor
Trustee and if, at any time, there is more than one Trustee, "Trustee" as used
with respect to the Securities of any series shall mean the Trustee with respect
to the Securities of that series.
"United States" means, unless otherwise specified with respect
to the Securities of any series as contemplated by Section 3.1, the United
States of America (including the States thereof and the District of Columbia),
its territories, its possessions and other areas subject to its jurisdiction.
"Unrestricted Subsidiary", with respect to any series of
Securities, shall have the meaning established in accordance with Section 3.1(b)
with respect to such series of Securities.
"U.S. Person" means, unless otherwise specified with respect
to the Securities of any series as contemplated by Section 3.1, a citizen or
resident of the United States, a corporation, partnership or other entity
created or organized in or under the laws of the United States or any political
subdivision thereof, or an estate or trust, the income of which is subject to
United States federal income taxation regardless of its source.
"Vice President", when used with respect to the Company, means
any Vice President of the Company whether or not designated by a number or a
word or words added before or after the title "Vice President."
(b) The following terms shall have the meanings specified in
the Sections referred to opposite such term below:
Term Section
---- -------
"Act" 1.4(a)
"Common Stock" 14.1(b)(i)
"Company Securities Payment" 15.2
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"covenant defeasance" 4.5
"Defaulted Interest" 3.7(b)
"defeasance" 4.4
"Equity Securities" 14.1(b)
"Event of Default" 5.1
"NASDAQ" 14.3
"Payment Blockage Period" 15.3
"Preferred Stock" 14.1(b)(ii)
"Register" 3.5
"Registrar" 3.5
"Senior Nonmonetary Default" 15.3
"Senior Payment Default" 15.3
Section 1.2. Compliance Certificates and Opinions. Upon any
application or request by the Company to the Trustee to take any action under
any provision of this Indenture, the Company shall furnish to the Trustee such
certificates and opinions as may be required under the Trust Indenture Act
(including Section 314(c) of the Trust Indenture Act). Each such certificate or
opinion shall be given in the form of an Officers' Certificate, if to be given
by an officer or officers of the Company, or an Opinion of Counsel, if to be
given by counsel, and shall comply with the requirements of the Trust Indenture
Act and any other requirements set forth in this Indenture.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than pursuant to
Section 2.3, the last paragraph of Section 3.3 and Section 9.5) shall include:
(a) a statement that each individual signing such certificate
or opinion has read such condition or covenant and the definitions herein
relating thereto;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions contained in
such certificate or opinion are based;
(c) a statement that, in the opinion of each such individual,
he or she has made such examination or investigation as is necessary to enable
him or her to express an informed opinion as to whether or not such condition or
covenant has been complied with; and
(d) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
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Section 1.3. Form of Documents Delivered to Trustee. In any
case where several matters are required to be certified by, or covered by an
opinion of, any specified Person, it is not necessary that all such matters be
certified by, or covered by the opinion of, only one such Person, or that they
be so certified or covered by only one document, but one such Person may certify
or give an opinion with respect to some matters and one or more other such
Persons as to other matters, and any such Person may certify or give an opinion
as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or opinion of,
or representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his or her certificate or opinion is
based are erroneous. Any such certificate or opinion or any Opinion of Counsel
may be based, insofar as it relates to factual matters, upon a certificate or
opinion of, or representations by, an officer or officers of the Company stating
that the information with respect to such factual matters is in the possession
of the Company, unless such officer or counsel knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
as to such matters are erroneous.
Any certificate, statement or opinion of an officer of the
Company or of counsel may be based, insofar as it relates to accounting matters,
upon a certificate or opinion of or representations by an accountant or firm of
accountants in the employ of the Company, unless such officer or counsel, as the
case may be, knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to the accounting matters
upon which his certificate, statement or opinion is based are erroneous.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be consolidated
and form one instrument.
Section 1.4. Acts of Holders. (a) Any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be given or taken by Holders may be embodied in and evidenced
by one or more instruments of substantially similar tenor signed (either
physically or by means of a facsimile or an electronic transmission, provided,
in the case of an electronic transmission, that it is transmitted through the
facilities of a Depositary) by such Holders in person or by agent or proxy duly
appointed in writing. If Securities of a series are issuable as Bearer
Securities, any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders of Securities of such series may, alternatively, be embodied in and
evidenced by the record of Holders of
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<PAGE> 23
Securities of such series voting in favor thereof pursuant to the second
paragraph of Section 13.4, either in person or by proxies duly appointed in
writing, at any meeting of Holders of Securities of such series duly called and
held in accordance with the provisions of Article 13, or a combination of such
instruments and any such record. Except as herein otherwise expressly provided,
such action shall become effective when such instrument or instruments or record
or both are received (either physically or, if the Securities are held through
the facilities of a Depositary, by means of a facsimile or an electronic
transmission, provided, in the case of an electronic transmission, that it is
transmitted through the facilities of a Depositary) by the Trustee and, where it
is hereby expressly required, to the Company. Such instrument or instruments and
record (and the action embodied therein and evidenced thereby) are herein
sometimes referred to as the "Act" of the Holders signing such instrument or
instruments or so voting at such meeting. The Company and the Trustee may assume
that any Act of a Holder has not been modified or revoked unless written notice
to the contrary is received prior to the time that the action to which such Act
relates has become effective. Proof of execution of any such instrument or of a
writing appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Section 315 of the Trust Indenture Act) conclusive in
favor of the Trustee and the Company, if made in the manner provided in this
Section. The record of any meeting of Holders of Securities shall be proved in
the manner provided in Section 13.6.
(b) The fact and date of the execution by any Person of any
such instrument or writing and the authority of the Person executing the same
may be proved in any manner which the Trustee deems sufficient.
(c) The ownership of Bearer Securities may be proved by the
production of such Bearer Securities or by a certificate executed by any trust
company, bank, banker or other depository, wherever situated, if such
certificate shall be deemed by the Trustee to be satisfactory, showing that at
the date therein mentioned such Person had on deposit with such trust company,
bank, banker or other depository, or exhibited to it, the Bearer Securities
therein described; or such facts may be proved by the certificate or affidavit
of the Person holding such Bearer Securities, if such certificate or affidavit
is deemed by the Trustee to be satisfactory. The Trustee and the Company may
assume that such ownership of any Bearer Security continues until (i) another
such certificate or affidavit bearing a later date issued in respect of the same
Bearer Security is produced, (ii) such Bearer Security is produced to the
Trustee by some other Person, (iii) such Bearer Security is surrendered in
exchange for a Registered Security or (iv) such Bearer Security is no longer
Outstanding. The ownership of Bearer Securities may also be proved in any other
manner which the Trustee deems sufficient.
(d) The ownership of Registered Securities shall be proved by
the Register.
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(e) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall bind every
future Holder of the same Security and any interest coupons appertaining thereto
and the Holder of every Security or interest coupon issued upon the registration
of transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee or the Company in
reliance thereon, whether or not notation of such Act is made upon such Security
or interest coupon.
(f) If the Company shall solicit from the Holders any request,
demand, authorization, direction, notice, consent, waiver or other Act, the
Company may, at its option, by or pursuant to a Board Resolution, fix in advance
a record date for the determination of Holders of Registered Securities entitled
to give such request, demand, authorization, direction, notice, consent, waiver
or other Act, but the Company shall have no obligation to do so. Notwithstanding
Section 316(c) of the Trust Indenture Act, any such record date shall be the
record date specified in or pursuant to such Board Resolution, which shall be a
date not more than 30 days prior to the first solicitation of Holders generally
in connection therewith and no later than the date such first solicitation is
completed. If such a record date is fixed, such request, demand, authorization,
direction, notice, consent, waiver or other Act may be given before or after
such record date, but only the Holders of Registered Securities of record at the
close of business on such record date shall be deemed to be Holders for the
purposes of determining whether Holders of the requisite proportion of
Outstanding Securities have authorized or agreed or consented to such request,
demand, authorization, direction, notice, consent, waiver or other Act, and for
that purpose the Outstanding Securities shall be computed as of such record
date; provided that no such authorization, agreement or consent by the Holders
on such record date shall be deemed effective unless it shall become effective
pursuant to the provisions of this Indenture not later than six months after the
record date.
Without limiting the foregoing, a Holder entitled to give or
take any action hereunder with regard to any particular Security may do so with
regard to all or any part of the principal amount of such Security or by one or
more duly appointed agents, each of which may do so pursuant to such appointment
with regard to all or any part of the principal amount of such Security to which
such appointment relates.
Section 1.5. Notices, Etc., to Trustee and Company. Any
request, demand, authorization, direction, notice, consent, waiver or Act of
Holders or other document provided or permitted by this Indenture to be made
upon, given or furnished to, or filed with,
(a) the Trustee by any Holder or by the Company 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
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<PAGE> 25
other address previously furnished in writing to the Holders or the Company by
the Trustee, or, with respect to notices by the Company, transmitted by
facsimile transmission (confirmed by guaranteed overnight courier) to the
following facsimile number: (612) 244-0711 or to any other facsimile number
previously furnished in writing to the Company by the Trustee, or
(b) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to it addressed
to it at the address of the Company's principal office specified in the first
paragraph of this instrument or at any other address previously furnished in
writing to the Trustee by the Company or, with respect to notices by the
Trustee, transmitted by facsimile transmission (confirmed by guaranteed
overnight courier) to the following facsimile number: (602) 423-9424 or to any
other facsimile number previously furnished in writing to the Trustee by the
Company.
Section 1.6. Notice to Holders; Waiver. Where this Indenture
provides for notice to Holders of any event, (i) if any of the Securities
affected by such event are Registered Securities, such notice to the Holders
thereof shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each such Holder
affected by such event, at his or her address as it appears in the Register,
within the time prescribed for the giving of such notice, and (ii) if any of the
Securities affected by such event are Bearer Securities, notice to the Holders
thereof shall be sufficiently given (unless otherwise herein or in the terms of
such Bearer Securities expressly provided) if published twice in an Authorized
Newspaper in New York, New York, and in such other city or cities, if any, as
may be specified as contemplated by Section 3.1. Such notices shall be deemed to
have been given on the date of such mailing or publication.
In any case where notice to Holders is given by mail or by
publication, neither the failure to mail or publish such notice, nor any defect
in any notice so mailed or published, to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders of Registered
Securities or of Bearer Securities. Any notice mailed to a Holder in the manner
herein prescribed shall be conclusively deemed to have been received by such
Holder, whether or not such Holder actually receives such notice.
If by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice as
provided above, then such notification as shall be made with the approval of the
Trustee shall constitute a sufficient notification for every purpose hereunder.
If it is impossible or, in the opinion of the Trustee, impracticable to give any
notice by publication in the manner herein required, then such publication in
lieu thereof as shall be made with the approval of the Trustee shall constitute
a sufficient publication of such notice.
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Any request, demand, authorization, direction, notice, consent
or waiver required or permitted under this Indenture shall be in the English
language, except that any published notice may be in an official language of the
country of publication.
Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall be equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
Section 1.7. Headings and Table of Contents. The Article and
Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
Section 1.8. Successor and Assigns. All covenants and
agreements in this Indenture by the Company shall bind its successors and
assigns, whether so expressed or not.
Section 1.9. Separability. In case any provision of this
Indenture or the Securities shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
Section 1.10. Benefits of Indenture. Nothing in this Indenture
or in the Securities, expressed or implied, shall give to any Person, other than
the parties hereto and their successors hereunder, the Holders and the Holders
of Senior Debt, any benefit or any legal or equitable right, remedy or claim
under this Indenture.
Section 1.11. Incorporators, Stockholders, Officers and
Directors of the Company Exempt from Individual Liability. No recourse under or
upon any obligation, covenant or agreement of or contained in this Indenture or
of or contained in any Security or interest coupon appertaining thereto, or for
any claim based thereon or otherwise in respect thereof, or because of any
indebtedness represented thereby, shall be had against any incorporator,
stockholder, officer or director, as such, past, present or future, of the
Company or any successor Person, either directly or through the Company or any
successor Person, whether by virtue of any constitution, statute or rule of law,
by the enforcement of any assessment or penalty, by any legal or equitable
proceeding or otherwise; it being expressly understood that all such liability
is hereby expressly waived and released as a condition of the acceptance of, and
as a part of the consideration for the execution of this Indenture and the
issuance of, the Securities and any interest coupons appertaining thereto.
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Section 1.12. Governing Law; Conflict with Trust Indenture
Act. THIS INDENTURE, THE SECURITIES AND ANY INTEREST COUPONS APPERTAINING
THERETO SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK. This Indenture is subject to the Trust Indenture Act and if
any provision hereof limits, qualifies or conflicts with the Trust Indenture
Act, the Trust Indenture Act shall control. Whether or not this Indenture is
required to be qualified under the Trust Indenture Act, the provisions of the
Trust Indenture Act required to be included in an indenture in order for such
indenture to be so qualified shall be deemed to be included in this Indenture
with the same effect as if such provisions were set forth herein and any
provisions hereof which may not be included in an indenture which is so
qualified shall be deemed to be deleted or modified to the extent such
provisions would be required to be deleted or modified in an indenture so
qualified.
Section 1.13. Legal Holidays. In any case where any Interest
Payment Date, Redemption Date, sinking fund payment date, Stated Maturity or
Maturity of any Security shall not be a Business Day at any Place of Payment,
then (notwithstanding any other provision of this Indenture or of any Security
or interest coupon other than a provision in the Securities of any series which
specifically states that such provision shall apply in lieu of this Section),
payment of principal, premium, if any, or interest need not be made at such
Place of Payment on such date, but may be made on the next succeeding Business
Day at such Place of Payment with the same force and effect as if made on such
date; provided that no interest shall accrue on the amount so payable for the
period from and after such Interest Payment Date, Redemption Date, sinking fund
payment date, Stated Maturity or Maturity, as the case may be, if such amount is
so paid on the next succeeding Business Day.
Section 1.14. Moneys of Different Currencies to Be Segregated.
The Trustee shall segregate all moneys, funds and accounts held by the Trustee
hereunder in one currency from any moneys, funds and accounts held by the
Trustee hereunder in any other currencies, notwithstanding any provision herein
which would otherwise permit the Trustee to commingle such amounts.
Section 1.15. Independence of Covenants. All covenants and
agreements in this Indenture shall be given independent effect so that if a
particular action or condition is not permitted by any such covenant, the fact
that it would be permitted by an exception to, or be otherwise within the
limitations of, another covenant shall not avoid the occurrence of a Default or
an Event of Default if such action is taken or condition exists.
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Section 1.16. Counterparts. This Indenture may be executed in
any number of counterparts, each of which shall be an original, but such
counterparts shall together constitute but one and the same instrument.
ARTICLE 2
SECURITY FORMS
Section 2.1. Forms Generally.The Securities of each series and
the interest coupons, if any, to be attached thereto shall be in substantially
such form as shall be established by or pursuant to a Board Resolution or in one
or more indentures supplemental hereto, in each case with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture, and may have such letters, numbers or other marks
of identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any applicable securities exchange,
organizational document, governing instrument or law or as may, consistently
herewith, be determined by the officers executing such Securities and interest
coupons, if any, as evidenced by their execution of the Securities and interest
coupons, if any. If temporary Securities of any series are issued as permitted
by Section 3.4, the form thereof also shall be established as provided in the
preceding sentence. If the forms of Securities and interest coupons, if any, of
any series are established by, or by action taken pursuant to, a Board
Resolution, a copy of the Board Resolution together with an appropriate record
of any such action taken pursuant thereto, including a copy of the approved form
of Securities or interest coupons, if any, shall be delivered to the Trustee at
or prior to the delivery of the Company Order contemplated by Section 3.3 for
the authentication and delivery of such Securities.
Unless otherwise specified as contemplated by Section 3.1,
Bearer Securities shall have interest coupons attached.
The definitive Securities and interest coupons, if any, may be
printed, lithographed or engraved on steel engraved borders or may be produced
in any other manner (or, if such Securities are listed on any securities
exchange, any other manner permitted by the rules of such securities exchange),
all as determined by the officers executing such Securities and interest
coupons, if any, as evidenced by their execution of such Securities and interest
coupons, if any.
Section 2.2. Form of Trustee's Certificate of Authentication.
The Trustee's certificate of authentication shall be in substantially the
following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
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FIRST TRUST NATIONAL ASSOCIATION,
as Trustee
By: _____________________________
Authorized Signatory
Section 2.3. Securities in Global Form. If Securities of or
within a series are issuable in whole or in part in global form, any such
Security may provide that it shall represent the aggregate or specified amount
of Outstanding Securities from time to time endorsed thereon and may also
provide that the aggregate amount of Outstanding Securities represented thereby
may from time to time be reduced or increased to reflect exchanges for
certificated securities. Any endorsement of a Security in global form to reflect
the amount, or any increase or decrease in the amount, or changes in the rights
of Holders, of Outstanding Securities represented thereby, shall be made in such
manner and by such Person or Persons as shall be specified therein or in the
Company Order to be delivered to the Trustee pursuant to Section 3.3 or 3.4.
Subject to the provisions of Section 3.3, Section 3.4, if applicable, and
Section 3.5, the Trustee shall deliver and redeliver any Security in permanent
global form in the manner and upon instructions given by the Person or Persons
specified therein or in the applicable Company Order. Any instructions by the
Company with respect to endorsement or delivery or redelivery of a Security in
global form shall be in writing but need not comply with Section 1.2 hereof and
need not be accompanied by an Officers' Certificate or an Opinion of Counsel.
The provisions of the last paragraph of Section 3.3 shall
apply to any Security in global form if such Security was never issued and sold
by the Company and the Company delivers to the Trustee the Security in global
form together with written instructions (which need not comply with Section 1.2
hereof and need not be accompanied by an Officers' Certificate or an Opinion of
Counsel) with regard to the reduction in the principal amount of Securities
represented thereby, together with the written statement contemplated by the
last paragraph of Section 3.3.
Notwithstanding the provisions of Section 2.1 and 3.7, unless
otherwise specified as contemplated by Section 3.1, payment of principal of,
premium, if any, and interest on any Registered Security in permanent global
form shall be made to the registered holder thereof.
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Section 2.4. Form of Legend for Securities in Global Form.
Any Security in global form authenticated and delivered hereunder shall bear a
legend in substantially the following form or in such other form as may be
specified in accordance with Section 3.1:
"THIS SECURITY IS IN GLOBAL FORM WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A
DEPOSITARY OR A NOMINEE OF A DEPOSITARY. UNLESS AND UNTIL IT IS
EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN CERTIFICATED FORM, THIS
SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO
A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE
DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR
ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH
SUCCESSOR DEPOSITARY."
ARTICLE 3
THE SECURITIES
Section 3.1. Amount Unlimited; Issuable in Series. (a) The
aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited. The Securities may be issued from
time to time in one or more series.
(b) The following matters shall be established with respect to
each series of Securities issued hereunder (i) by a Board Resolution, (ii) by
action taken pursuant to a Board Resolution and (subject to Section 3.3) set
forth, or determined in the manner provided, in an Officers' Certificate or
(iii) in one or more indentures supplemental hereto:
(1) the title of the Securities of the series (which title
shall distinguish the Securities of the series from all other series of
Securities);
(2) any limit upon the aggregate principal amount of the
Securities of the series which may be authenticated and delivered under
this Indenture (which limit shall not pertain to Securities
authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, other Securities of the series pursuant to
Section 3.4, 3.5, 3.6, 8.6 or 11.7 or any Securities that, pursuant to
Section 3.3, are deemed never to have been authenticated and delivered
hereunder);
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(3) the date or dates on which the principal of and premium,
if any, on the Securities of the series is payable or the method or
methods of determination thereof;
(4) the rate or rates at which the Securities of the series
shall bear interest, if any, or the method or methods of calculating
such rate or rates of interest, the date or dates from which such
interest shall accrue or the method or methods by which such date or
dates shall be determined, the Interest Payment Dates on which any such
interest shall be payable, the right, if any, of the Company to defer
or extend an Interest Payment Date and, with respect to Registered
Securities, the Regular Record Date, if any, for the interest payable
on any Registered Security on any Interest Payment Date, and the basis
upon which interest shall be calculated if other than that of a 360-day
year of twelve 30-day months;
(5) the place or places where the principal of, premium, if
any, and interest, if any, on Securities of the series shall be
payable, any Registered Securities of the series may be surrendered for
registration of transfer, Securities of the series may be surrendered
for exchange and notices and demands to or upon the Company in respect
of the Securities of the series and this Indenture may be served and
where notices to Holders pursuant to Section 1.6 will be published;
(6) the period or periods within which, the price or prices at
which, the currency or currencies (including currency unit or units) in
which, and the other terms and conditions upon which, Securities of the
series may be redeemed, in whole or in part, at the option of the
Company and, if other than as provided in Section 11.3, the manner in
which the particular Securities of such series (if less than all
Securities of such series are to be redeemed) are to be selected for
redemption;
(7) the obligation, if any, of the Company to redeem or
purchase Securities of the series pursuant to any sinking fund or
analogous provisions or upon the happening of a specified event or at
the option of a Holder thereof and the period or periods within which,
the price or prices at which, the currency or currencies (including
currency unit or units) in which, and the other terms and conditions
upon which, Securities of the series shall be redeemed or purchased, in
whole or in part, pursuant to such obligation;
(8) if other than denominations of $1,000 and any integral
multiple thereof, if Registered Securities, and if other than
denominations of $5,000 and any integral multiple thereof, if Bearer
Securities, the denominations in which Securities of the series shall
be issuable;
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(9) if other than Dollars, the currency or currencies
(including currency unit or units) in which the principal of, premium,
if any, and interest, if any, on the Securities of the series shall be
payable, or in which the Securities of the series shall be denominated,
and the particular provisions applicable thereto in accordance with, in
addition to, or in lieu of the provisions of Section 3.12;
(10) if the payments of principal of, premium, if any, or
interest, if any, on the Securities of the series are to be made, at
the election of the Company or a Holder, in a currency or currencies
(including currency unit or units) other than that in which such
Securities are denominated or designated to be payable, the currency or
currencies (including currency unit or units) in which such payments
are to be made, the terms and conditions of such payments and the
manner in which the exchange rate with respect to such payments shall
be determined, and the particular provisions applicable thereto in lieu
of the provisions of Section 3.12;
(11) if the amount of payments of principal of, premium, if
any, and interest, if any, on the Securities of the series shall be
determined with reference to an index, formula or other method (which
index, formula or method may be based, without limitation, on a
currency or currencies (including currency unit or units) other than
that in which the Securities of the series are denominated or
designated to be payable), the index, formula or other method by which
such amounts shall be determined and any special voting or defeasance
provisions in connection therewith;
(12) if other than the entire principal amount thereof, the
portion of the principal amount of such Securities of the series which
shall be payable upon declaration of acceleration thereof pursuant to
Section 5.2 or the method by which such portion shall be determined;
(13) if other than as provided in Section 3.7, the Person to
whom any interest on any Registered Security of the series shall be
payable and the manner in which, or the Person to whom, any interest on
any Bearer Securities of the series shall be payable;
(14) provisions, if any, granting special rights to the
Holders of Securities of the series upon the occurrence of such events
as may be specified;
(15) any deletions from, modifications of or additions to the
Events of Default set forth in Section 5.1 or covenants of the Company
set forth in Article 9 pertaining to the Securities of the series;
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(16) under what circumstances, if any, and with what
procedures and documentation the Company will pay additional amounts on
the Securities and interest coupons, if any, of that series held by a
Person who is not a U.S. Person (including any modification of the
definition of such term) in respect of taxes, assessments or similar
charges withheld or deducted and, if so, whether the Company will have
the option to redeem such Securities rather than pay such additional
amounts (and the terms of any such option);
(17) whether Securities of the series shall be issuable as
Registered Securities or Bearer Securities (with or without interest
coupons), or both, and any restrictions applicable to the offering,
sale, transfer or delivery of Bearer Securities and, if other than as
provided in Section 3.5, the terms upon which Bearer Securities of a
series may be exchanged for Registered Securities of the same series
and vice versa;
(18) the date as of which any Bearer Securities of the series
and any temporary global Security representing Outstanding Securities
of the series shall be dated if other than the date of original
issuance of the first Security of the series to be issued;
(19) the forms of the Securities and interest coupons, if any,
of the series;
(20) the applicability, if any, to the Securities and interest
coupons, if any, of or within the series of Sections 4.4 and 4.5, or
such other means of defeasance or covenant defeasance as may be
specified for the Securities and interest coupons, if any, of such
series, and whether, for the purpose of such defeasance or covenant
defeasance, the term "Government Obligations" shall include obligations
referred to in the definition of such term which are not obligations of
the United States or an agency or instrumentality of the United States;
(21) if other than the Trustee, the identity of the Registrar
and any Paying Agent;
(22) if the Securities of the series shall be issued in whole
or in part in global form, (i) the Depositary for such global
Securities, (ii) whether beneficial owners of interests in any
Securities of the series in global form may exchange such interests for
certificated Securities of such series, to be registered in the names
of or to be held by such beneficial owners or their nominees and to be
of like tenor of any authorized form and denomination, and (iii) if
other than as provided in Section 3.5, the circumstances under which
any such exchange may occur;
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(23) any restrictions on the registration, transfer or
exchange of the Securities;
(24) if the Securities of the series may be issued or
delivered (whether upon original issuance or upon exchange of a
temporary Security of such series or otherwise), or any installment of
principal or interest is payable, only upon receipt of certain
certificates or other documents or satisfaction of other conditions in
addition to those specified in this Indenture, the form and terms of
such certificates, documents or conditions;
(25) the terms and conditions of any right to convert or
exchange Securities of the series into or for Equity Securities of the
Company, including provisions for the payment of interest on securities
being converted or exchanged as contemplated by Section 3.7(d) and
Section 14.2;
(26) whether the Securities are secured or unsecured, and if
secured, the security and related terms in connection therewith;
(27) the definition of "Unrestricted Subsidiary" to be used
for such series; and
(28) any other terms of the series including any terms which
may be required by or advisable under United States laws or regulations
or advisable (as determined by the Company) in connection with the
marketing of Securities of the series.
(c) Subject to Section 1.12 and any controlling provision of
the Trust Indenture Act, in the event of any inconsistency between the terms of
this Indenture and the terms applicable to a series of Securities established in
the manner permitted by Section 3.1(b), the (i) Board Resolution, (ii) Officer's
Certificate or (iii) supplemental indenture setting forth such conflicting term
shall prevail.
(d) All Securities of any one series and interest coupons, if
any, appertaining thereto shall be substantially identical except as to
denomination and except as may otherwise be provided (i) by a Board Resolution,
(ii) by action taken pursuant to a Board Resolution and (subject to Section 3.3)
set forth, or determined in the manner provided, in the related Officers'
Certificate or (iii) in an indenture supplemental hereto. All Securities of any
one series need not be issued at the same time and, unless otherwise provided, a
series may be reopened, without the consent of the Holders, for issuances of
additional Securities of such series.
(e) If any of the terms of the Securities of any series are
established by action taken pursuant to a Board Resolution, a copy of such Board
Resolution shall be
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delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth, or providing the manner for determining, the terms of
the Securities of such series, and an appropriate record of any action taken
pursuant thereto in connection with the issuance of any Securities of such
series shall be delivered to the Trustee prior to the authentication and
delivery thereof.
Section 3.2. Denominations. Unless otherwise provided as
contemplated by Section 3.1(b), any Registered Securities of a series
denominated in Dollars shall be issuable in denominations of U.S. $1,000 and any
integral multiple thereof and any Bearer Securities of a series denominated in
Dollars shall be issuable in the denomination of U.S. $5,000 and any integral
multiple thereof. Securities denominated in a Foreign Currency shall be issuable
in such denominations as are established with respect to such Securities in or
pursuant to this Indenture.
Section 3.3. Execution, Authentication, Delivery and Dating.
Securities shall be executed on behalf of the Company by the Chairman of the
Board, the President, the Chief Executive Officer, the Chief Operating Officer,
the Chief Financial Officer or any Vice President of the Company, and need not
be attested. The signatures of any of these officers on the Securities may be
manual or facsimile. The interest coupons, if any, of Bearer Securities shall
bear the facsimile signature of the Chairman of the Board, the President, the
Chief Executive Officer, the Chief Operating Officer, the Chief Financial
Officer or any Vice President of the Company, and need not be attested.
Securities and interest coupons bearing the manual or
facsimile signatures of individuals who were at any time Officers of the Company
shall bind the Company, notwithstanding that such individuals or any of them
have ceased to be Officers prior to the authentication and delivery of such
Securities or were not Officers at the date of such Securities.
At any time and from time to time, the Company may deliver
Securities, together with any interest coupons appertaining thereto, of any
series executed by the Company to the Trustee for authentication, together with
a Company Order for the authentication and delivery of such Securities, and the
Trustee in accordance with such Company Order shall authenticate and deliver
such Securities to or upon the order of the Company (as set forth in such
Company Order); provided, however, that, in the case of Securities of a series
offered in a Periodic Offering, the Trustee shall authenticate and deliver such
Securities from time to time in accordance with such other procedures
(including, without limitation, the receipt by the Trustee of oral or electronic
instructions from the Company or its duly authorized agents, promptly confirmed
in writing) acceptable to the Trustee as may be specified by or pursuant to a
Company Order delivered to the Trustee prior to the time of the first
authentication of Securities of such series.
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If the form or terms of the Securities of a series have been
established by or pursuant to one or more Board Resolutions or one or more
indentures supplemental hereto as permitted by Sections 2.1 and 3.1, in
authenticating such Securities and accepting the additional responsibilities
under this Indenture in relation to such Securities, the Trustee shall be
entitled to receive, and (subject to section 315(a) through (d) of the Trust
Indenture Act) shall be fully protected in relying upon,
(i) an Opinion of Counsel stating:
(1) if the form or forms of such Securities and any interest
coupons have been established by or pursuant to a Board Resolution as
permitted by Section 2.1, that such forms have been established in
conformity with the provisions of this Indenture;
(2) if the terms of such Securities and any interest coupons
have been, or, in the case of Securities of a series offered in a
Periodic Offering, will be, established by or pursuant to a Board
Resolution as permitted by Section 3.1, that such terms have been, or,
in the case of Securities of a series offered in a Periodic Offering,
will be, established in conformity with the provisions of this
Indenture, subject, in the case of Securities offered in a Periodic
Offering, to any conditions specified in such Opinion of Counsel;
(3) if the form or terms of such Securities have been
established in an indenture supplemental hereto, that such supplemental
indenture has been duly authorized, executed and delivered by the
Company and, when duly authorized, executed and delivered by the
Trustee, will constitute a legal, valid and binding obligation
enforceable against the Company in accordance with its terms, subject
to (i) bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and other similar laws of general applicability relating to
or affecting the enforcement of creditors' rights and to general
principles of equity (regardless of whether enforcement is sought in a
proceeding in equity or at law), and (ii) such other reasonable
exceptions as may be specified in such Opinion of Counsel; and
(4) that such Securities, together with any interest coupons
appertaining thereto, when issued by the Company and authenticated and
delivered by the Trustee in the manner and subject to any conditions
specified in such Opinion of Counsel, will constitute valid and legally
binding obligations of the Company, enforceable against the Company in
accordance with their terms, subject to (i) bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and other similar laws
of general applicability relating to or affecting the enforcement of
creditors' rights and to general equity principles (regardless of
whether enforcement is sought in a proceeding in equity or at law) and
except further as
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enforcement thereof may be limited by (A) requirements that a claim
with respect to any Securities denominated other than in Dollars (or a
Foreign Currency or currency unit judgment in respect of such claim) be
converted into Dollars at a rate of exchange prevailing on a date
determined pursuant to applicable law or (B) governmental authority to
limit, delay or prohibit the making of payments in Foreign Currencies
or currency units or payments outside the United States, and (ii) such
other reasonable exceptions as may be specified in such Opinion of
Counsel; and
(ii) an Officers' Certificate stating that all conditions
precedent provided for in this Indenture relating to the issuance of
such Securities have been complied with and that, to the knowledge of
the signers of such certificate, no Event of Default with respect to
such Securities shall have occurred and be continuing.
Notwithstanding that such form or terms have been so
established, the Trustee shall have the right to decline to
authenticate such Securities if, in the opinion of the Trustee (after
consultation with counsel), the issue of such Securities pursuant to
this Indenture will materially adversely affect the Trustee's own
rights, duties or immunities under this Indenture or otherwise or if
the Trustee determines that such authentication may not lawfully be
made.
Notwithstanding the provisions of Section 3.1 and of the two
preceding paragraphs, if all of the Securities of any series are not to be
issued at one time, it shall not be necessary to deliver the Officers'
Certificate otherwise required pursuant to Section 3.1 or the Company Order and
Opinion of Counsel otherwise required pursuant to the two preceding paragraphs
in connection with the authentication of each Security of such series if such
documents, with appropriate modifications to cover such future issuances, are
delivered at or prior to the authentication upon original issuance of the first
Security of such series to be issued.
With respect to Securities of a series offered in a Periodic
Offering, the Trustee may rely, as to the authorization by the Company of any of
such Securities, the form and terms thereof and the legality, validity, binding
effect and enforceability thereof, upon the Opinion of Counsel and the other
documents delivered pursuant to Sections 2.1 and 3.1 and this Section, as
applicable, in connection with the first authentication of Securities of such
series.
If the Company shall establish pursuant to Section 3.1 that
the Securities of a series are to be issued in whole or in part in global form,
then the Company shall execute and the Trustee shall, in accordance with this
Section and the Company Order with respect to such series, authenticate and
deliver one or more Securities in global form that (i) shall represent and shall
be denominated in an amount equal to the aggregate
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principal amount of the Outstanding Securities of such series to be represented
by such Security or Securities in global form, (ii) shall be registered, if a
Registered Security, in the name of the Depositary for such Security or
Securities in global form or the nominee of such Depositary, (iii) shall be
delivered by the Trustee to such Depositary or pursuant to such Depositary's
instruction and (iv) shall bear the legend set forth in Section 2.4.
Each Depositary designated pursuant to Section 3.1 for a
Registered Security in global form must, at the time of its designation and at
all times while it serves as Depositary, be a clearing agency registered under
the Securities Exchange Act of 1934 and any other applicable statute or
regulation. If requested by the Company, the Trustee shall enter into an
agreement with a Depositary governing the respective duties and rights of such
Depositary and the Trustee with regard to Securities issued in global form.
Each Registered Security shall be dated the date of its
authentication and each Bearer Security shall be dated as of the date specified
pursuant to Section 3.1.
No Security or interest coupon appertaining thereto shall be
entitled to any benefits under this Indenture or be valid or obligatory for any
purpose until such Security has been authenticated by the manual signature of
one of the authorized signatories of the Trustee or an Authenticating Agent.
Such signature upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered under
this Indenture and is entitled to the benefits of this Indenture. Except as
permitted by Section 3.6 or 3.7, the Trustee shall not authenticate and deliver
any Bearer Security unless all appurtenant interest coupons for interest then
matured have been detached and cancelled.
Notwithstanding the foregoing, if any Security shall have been
authenticated and delivered hereunder but never issued and sold by the Company,
and the Company shall deliver such Security to the Trustee for cancellation as
provided in Section 3.9 together with a written statement (which need not comply
with Section 1.2 hereof and need not be accompanied by an Officers' Certificate
or an Opinion of Counsel) stating that such Security has never been issued and
sold by the Company, for all purposes of this Indenture such Security shall be
deemed never to have been authenticated and delivered hereunder and shall not be
entitled to the benefits of this Indenture.
Section 3.4. Temporary Securities. Pending the preparation of
definitive Securities of any series, the Company may execute and, upon Company
Order, the Trustee shall authenticate and deliver temporary Securities of such
series which are printed, lithographed, typewritten, mimeographed or otherwise
produced, in any authorized denomination, substantially of the tenor and form,
with or without interest coupons, of the definitive Securities in lieu of which
they are issued and with such
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appropriate insertions, omissions, substitutions and other variations as the
officers executing such Securities may determine, as conclusively evidenced by
their execution of such Securities and interest coupons, if any. In the case of
Securities of any series, such temporary Securities may be in global form,
representing all or a portion of the Outstanding Securities of such series.
Except in the case of temporary Securities in global form,
each of which shall be exchanged in accordance with the provisions thereof, if
temporary Securities of any series are issued, the Company will cause definitive
Securities of such series to be prepared without unreasonable delay. After
preparation of definitive Securities of such series, the temporary Securities of
such series shall be exchangeable for definitive Securities of such series upon
surrender of the temporary Securities of such series at the office or agency of
the Company pursuant to Section 9.2 in a Place of Payment for such series,
without charge to the Holder. Upon surrender for cancellation of any one or more
temporary Securities of any series (accompanied by any unmatured interest
coupons appertaining thereto), the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a like principal amount of
definitive Securities of the same series of authorized denominations and of like
tenor; provided, however, that no definitive Bearer Security shall be delivered
in exchange for a temporary Registered Security; and provided, further, that no
definitive Bearer Security shall be delivered in exchange for a temporary Bearer
Security unless such delivery shall occur outside the United States. Until so
exchanged, the temporary Securities of any series shall in all respects be
entitled to the same benefits under this Indenture as definitive Securities of
such series except as otherwise specified as contemplated by Section 3.1.
Section 3.5. Registration, Transfer and Exchange. The Company
shall cause to be kept at the Corporate Trust Office of the Trustee or in any
office or agency to be maintained by the Company in accordance with Section 9.2
in a Place of Payment a register (the "Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Registered Securities and the registration of transfers of
Registered Securities. The Register shall be in written form or any other form
capable of being converted into written form within a reasonable time. The
Trustee is hereby initially appointed "Registrar" for the purpose of registering
Registered Securities and transfers of Registered Securities as herein provided.
Upon surrender for registration of transfer of any Registered
Security of any series at the office or agency maintained pursuant to Section
9.2 in a Place of Payment for that series, the Company shall execute, and the
Trustee shall authenticate and deliver, in the name of the designated transferee
or transferees, one or more new Registered Securities of the same series, of any
authorized denominations and of a like aggregate principal amount and tenor and
containing identical terms and provisions.
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Bearer Securities (except for any temporary global Bearer
Securities) or any interest coupons appertaining thereto (except for interest
coupons attached to any temporary global Bearer Security) shall be transferable
by delivery.
At the option of the Holder, Registered Securities of any
series (except a Registered Security in global form) may be exchanged for other
Registered Securities of the same series, of any authorized denominations, of a
like aggregate principal amount and tenor and containing identical terms and
provisions, upon surrender of the Registered Securities to be exchanged at such
office or agency. Whenever any Registered Securities are so surrendered for
exchange, the Company shall execute, and the Trustee shall authenticate and
deliver, the Registered Securities which the Holder making the exchange is
entitled to receive. Unless otherwise specified as contemplated by Section 3.1,
Bearer Securities may not be issued in exchange for Registered Securities.
Unless otherwise specified as contemplated by Section 3.1, at
the option of the Holder, Bearer Securities of such series may be exchanged for
Registered Securities (if the Securities of such series are issuable in
registered form) or Bearer Securities (if Bearer Securities of such series are
issuable in more than one denomination and such exchanges are permitted by such
series) of the same series, of any authorized denominations, of like aggregate
principal amount and tenor and containing identical terms and conditions, upon
surrender of the Bearer Securities to be exchanged at any such office or agency,
with all unmatured interest coupons and all matured interest coupons in default
thereto appertaining. If the Holder of a Bearer Security is unable to produce
any such unmatured interest coupon or coupons or matured interest coupon or
coupons in default, such exchange may be effected if the Bearer Securities are
accompanied by payment in funds acceptable to the Company and the Trustee in an
amount equal to the face amount of such missing interest coupon or coupons, or
the surrender of such missing interest coupon or interest coupons may be waived
by the Company and the Trustee if there be furnished to them such security or
indemnity as they may require to save each of them and any Paying Agent
harmless. If thereafter the Holder of such Security shall surrender to any
Paying Agent any such missing interest coupon in respect of which such a payment
shall have been made, such Holder shall be entitled to receive the amount of
such payment; provided, however, that, except as otherwise provided in Section
9.2, interest represented by interest coupons shall be payable only upon
presentation and surrender of those interest coupons at an office or agency
located outside the United States. Notwithstanding the foregoing, in case any
Bearer Security of any series is surrendered at any such office or agency in
exchange for a Registered Security of the same series after the close of
business at such office or agency on (i) any Regular Record Date and before the
opening of business at such office or agency on the relevant Interest Payment
Date, or (ii) any Special Record Date and before the opening of business at such
office or agency on the related date for payment of Defaulted Interest, such
Bearer Security shall be surrendered without the interest coupon relating to
such Interest
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Payment Date or proposed date of payment, as the case may be (or, if such
interest coupon is so surrendered with such Bearer Security, such interest
coupon shall be returned to the Person so surrendering the Bearer Security), and
interest or Defaulted Interest, as the case may be, will not be payable on such
Interest Payment Date or proposed date for payment, as the case may be, in
respect of the Registered Security issued in exchange for such Bearer Security,
but will be payable only to the Holder of such interest coupon, when due in
accordance with the provisions of this Indenture.
Notwithstanding anything herein to the contrary, the exchange
of Bearer Securities for Registered Securities shall be subject to applicable
laws and regulations in effect at the time of exchange. Neither the Company, the
Trustee nor the Registrar shall exchange any Bearer Securities for Registered
Securities if it has received an Opinion of Counsel that as a result of such
exchange the Company would suffer adverse consequences under the United States
Federal income tax laws and regulations then in effect and the Company has
delivered to the Trustee a Company Order directing the Trustee not to make such
exchanges thereafter, unless and until the Trustee receives a subsequent Company
Order to the contrary. The Company shall deliver copies of such Company Order to
the Registrar.
Notwithstanding any other provision of this Section, unless
and until it is exchanged in whole or in part for Securities in certificated
form, a Security in global form representing all or a portion of the Securities
of a series may not be transferred except as a whole by the Depositary for such
series to a nominee of such Depositary or by a nominee of such Depositary to
such Depositary or another nominee of such Depositary or by such Depositary or
any such nominee to a successor Depositary for such series or a nominee of such
successor Depositary.
If at any time the Depositary for the Securities of a series
notifies the Company that it is unwilling or unable to continue as Depositary
for the Securities of such series or if at any time the Depositary for the
Securities of such series shall no longer be eligible under Section 3.3, the
Company shall appoint a successor Depositary with respect to the Securities of
such series. If a successor Depositary for the Securities of such series is not
appointed by the Company prior to the resignation of the Depositary and, in any
event, within 90 days after the Company receives such notice or becomes aware of
such ineligibility, the Company's designation of the Depositary pursuant to
Section 3.1(b)(22) shall no longer be effective with respect to the Securities
of such series and the Company shall execute, and the Trustee, upon receipt of a
Company Order for the authentication and delivery of certificated Securities of
such series of like tenor, shall authenticate and deliver, Securities of such
series of like tenor in certificated form, in authorized denominations and in an
aggregate principal amount equal to the principal amount of the Security or
Securities of such series of like tenor in global form in exchange for such
Security or Securities in global form.
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The Company may at any time in its sole discretion determine
that Securities issued in global form shall no longer be represented by such a
Security or Securities in global form. In such event the Company shall execute,
and the Trustee, upon receipt of a Company Order for the authentication and
delivery of certificated Securities of such series of like tenor, shall
authenticate and deliver, Securities of such series of like tenor in
certificated form, in authorized denominations and in an aggregate principal
amount equal to the principal amount of the Security or Securities of such
series of like tenor in global form in exchange for such Security or Securities
in global form.
If specified by the Company pursuant to Section 3.1 with
respect to a series of Securities, the Depositary for such series may surrender
a Security in global form of such series in exchange in whole or in part for
Securities of such series in certificated form on such terms as are acceptable
to the Company and such Depositary. Thereupon, the Company shall execute, and
the Trustee shall authenticate and deliver, without service charge,
(i) to each Person specified by such Depositary a new
certificated Security or Securities of the same series of like tenor,
of any authorized denomination as requested by such Person in aggregate
principal amount equal to and in exchange for such Person's beneficial
interest in the Security in global form; and
(ii) to such Depositary a new Security in global form of like
tenor in a denomination equal to the difference, if any, between the
principal amount of the surrendered Security in global form and the
aggregate principal amount of certificated Securities delivered to
Holders thereof.
Upon the exchange of a Security in global form for Securities
in certificated form, such Security in global form shall be cancelled by the
Trustee. Unless expressly provided with respect to the Securities of any series
that such Security may be exchanged for Bearer Securities, Securities in
certificated form issued in exchange for a Security in global form pursuant to
this Section shall be registered in such names and in such authorized
denominations as the Depositary for such Security in global form, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee in writing. The Trustee shall deliver such Securities to
the Persons in whose names such Securities are so registered.
Whenever any Securities are surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and deliver, the
Securities which the Holder making the exchange is entitled to receive.
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All Securities issued upon any registration of transfer or
upon any exchange of Securities shall be the valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Securities surrendered upon such registration of transfer or
exchange.
Every Registered Security presented or surrendered for
registration of transfer or for exchange shall (if so required by the Company,
the Registrar or the Trustee) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Company, the Registrar and
the Trustee duly executed by the Holder thereof or his attorney duly authorized
in writing.
No service charge shall be made for any registration of
transfer or for any exchange of Securities, but the Company may require payment
of a sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any registration or transfer or exchange of
Securities, other than exchanges pursuant to Section 3.4, 8.6 or 11.7 not
involving any transfer.
The Company shall not be required (i) to issue, register the
transfer of, or exchange any Securities for a period beginning at the opening of
business 15 days before any selection for redemption of Securities of like tenor
and of the series of which such Security is a part and ending at the close of
business on the earliest date on which the relevant notice of redemption is
deemed to have been given to all Holders of Securities of like tenor and of such
series to be redeemed; (ii) to register the transfer of or exchange any
Registered Security so selected for redemption, in whole or in part, except the
unredeemed portion of any Security being redeemed in part; or (iii) to exchange
any Bearer Security so selected for redemption, except that such a Bearer
Security may be exchanged for a Registered Security of that series and like
tenor; provided that such Registered Security shall be simultaneously
surrendered for redemption.
The foregoing provisions relating to registration, transfer
and exchange may be modified, supplemented or superseded with respect to any
series of Securities by a Board Resolution or in one or more indentures
supplemental hereto.
Section 3.6. Replacement Securities. If a mutilated Security
or a Security with a mutilated interest coupon appertaining to it is surrendered
to the Trustee, together with, in proper cases, such security or indemnity as
may be required by the Company or the Trustee to save each of them harmless, the
Company shall execute and the Trustee shall authenticate and deliver a
replacement Registered Security, if such surrendered Security was a Registered
Security, or a replacement Bearer Security with interest coupons corresponding
to the interest coupons appertaining to the surrendered Security, if such
surrendered Security was a Bearer Security, of the same series and date of
maturity.
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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
or interest coupon and (ii) such security or indemnity as may be required by
them to save each of them and any agent of either of them harmless, then, in the
absence of notice to the Company or the Trustee that such Security or interest
coupon has been acquired by a bona fide purchaser, the Company shall execute and
the Trustee shall authenticate and deliver in lieu of any such destroyed, lost
or stolen Security or in exchange for the Security to which a destroyed, lost or
stolen interest coupon appertains (with all appurtenant interest coupons not
destroyed, lost or stolen), a replacement Registered Security, if such Holder's
claim appertains to a Registered Security, or a replacement Bearer Security with
interest coupons corresponding to the interest coupons appertaining to the
destroyed, lost or stolen Bearer Security or the Bearer Security to which such
lost, destroyed or stolen interest coupon appertains, if such Holder's claim
appertains to a Bearer Security, of the same series and principal amount,
containing identical terms and provisions and bearing a number not
contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security
or interest coupon has become or is about to become due and payable, the Company
in its discretion may, instead of issuing a new Security or interest coupon, pay
such Security or interest coupon; provided, however, that payment of principal
of and any premium or interest on Bearer Securities shall, except as otherwise
provided in Section 9.2, be payable only at an office or agency located outside
the United States and, unless otherwise specified as contemplated by Section
3.1, any interest on Bearer Securities shall be payable only upon presentation
and surrender of the interest coupons appertaining thereto.
Upon the issuance of any new Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee, its agents and
counsel) connected therewith.
Every new Security of any series with its interest coupons, if
any, issued pursuant to this Section in lieu of any destroyed, lost or stolen
Security, or in exchange for a Security to which a destroyed, lost or stolen
interest coupon appertains, shall constitute an original additional contractual
obligation of the Company, whether or not the destroyed, lost or stolen Security
and its interest coupon, if any, or the destroyed, lost or stolen interest
coupon, shall be at any time enforceable by anyone, and shall be entitled to all
the benefits of this Indenture equally and proportionately with any and all
other Securities of that series and their interest coupons, if any, duly issued
hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Securities or
interest coupons.
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Section 3.7. Payment of Interest; Interest Rights Preserved.
(a) Unless otherwise provided as contemplated by Section 3.1, interest, if any,
on any Registered Security which is payable, and is punctually paid or duly
provided for, on any Interest Payment Date shall be paid to the Person in whose
name that Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest at the office or
agency maintained for such purpose pursuant to Section 9.2; provided, however,
that at the option of the Company, interest on any series of Registered
Securities that bears interest may be paid (i) by check mailed to the address of
the Person entitled thereto as it shall appear on the Register of Holders of
Securities of such series or (ii) at the expense of the Company, by wire
transfer to an account maintained by the Person entitled thereto as specified in
the Register of Holders of Securities of such series.
Unless otherwise provided as contemplated by Section 3.1, (i)
interest, if any, on Bearer Securities shall be paid only against presentation
and surrender of the interest coupons for such interest installments as are
evidenced thereby as they mature and (ii) original issue discount, if any, on
Bearer Securities shall be paid only against presentation and surrender of such
Securities; in either case at the office of a Paying Agent located outside the
United States, unless the Company shall have otherwise instructed the Trustee in
writing, provided that any such instruction for payment in the United States
does not cause any Bearer Security to be treated as a "registration-required
obligation" under United States laws and regulations. The interest, if any, on
any temporary Bearer Security shall be paid, as to any installment of interest
evidenced by an interest coupon attached thereto only upon presentation and
surrender of such interest coupon and, as to other installments of interest,
only upon presentation of such Security for notation thereon of the payment of
such interest. If at the time a payment of principal of or interest, if any, on
a Bearer Security or interest coupon shall become due, the payment of the full
amount so payable at the office or offices of all the Paying Agents outside the
United States is illegal or effectively precluded because of the imposition of
exchange controls or other similar restrictions on the payment of such amount in
Dollars, then the Company may instruct the Trustee in writing to make such
payments at a Paying Agent located in the United States, provided that provision
for such payment in the United States would not cause such Bearer Security to be
treated as a "registration-required obligation" under United States laws and
regulations.
(b) Unless otherwise provided as contemplated by Section 3.1,
any interest on Securities of any series which is payable, but is not punctually
paid or duly provided for, on any Interest Payment Date in the case of
Registered Securities and upon presentation and surrender of the applicable
interest coupon in accordance with the second paragraph of Section 3.7(a) in the
case of Bearer Securities (herein called "Defaulted Interest"), shall forthwith
cease to be payable to the Holders of Registered Securities on the relevant
Regular Record Date by virtue of their having been such
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Holders, or to the Holders of Bearer Securities by virtue of their having
presented the applicable interest coupon on such Interest Payment Date, and such
Defaulted Interest may be paid by the Company, at its election in each case, as
provided in clause (1) or (2) below:
(1) In the case of Registered Securities, the Company may
elect to make payment of such Defaulted Interest to the Persons in
whose names such Registered Securities (or their respective Predecessor
Securities) are registered at the close of business on a Special Record
Date for the payment of such Defaulted Interest, which shall be fixed
in the following manner. The Company shall notify the Trustee in
writing of the amount of Defaulted Interest proposed to be paid on each
such Registered Security and the date of the proposed payment, and
shall deposit with the Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements satisfactory to the Trustee for
such deposit prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons entitled
to such Defaulted Interest as in this clause (1) provided. Thereupon
the Trustee shall fix a Special Record Date for the payment of such
Defaulted Interest which shall be not more than 15 days and not less
than 10 days prior to the date of the proposed payment and not less
than 10 days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the Company of such
Special Record Date and, in the name and at the expense of the Company,
shall cause notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor to be mailed, first-class postage
prepaid, to each Holder of such Registered Securities at his or her
address as it appears in the Register, not less than 10 days prior to
such Special Record Date. Notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor having been so
mailed, such Defaulted Interest shall be paid to the Persons in whose
names such Registered Securities (or their respective Predecessor
Securities) are registered at the close of business on such Special
Record Date and shall no longer be payable pursuant to the following
clause (2).
(2)(x) In the case of Registered Securities, the Company may
make payment of such Defaulted Interest to the Persons in whose names
such Registered Securities (or their respective Predecessor Securities)
are registered at the close of business on a specified date in any
other lawful manner not inconsistent with the requirements of any
securities exchange on which such Registered Securities may be listed,
and upon such notice as may be required by such exchange, if, after
notice given by the Company to the Trustee of the proposed payment
pursuant to this clause (2)(x), such manner of payment shall be deemed
practicable by the Trustee; or (y) unless otherwise provided as
contemplated by Section 3.1, in the case of Bearer Securities, the
Company may make payment of Defaulted Interest
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on such Bearer Securities in any lawful manner not inconsistent with
the requirements of any securities exchange on which such Bearer
Securities may be listed, and upon such notice as may be required by
such exchange, if, after notice given by the Company to the Trustee of
the proposed payment pursuant to this clause (2)(y), such manner of
payment shall be deemed practicable by the Trustee.
(c) Subject to the foregoing provisions of this Section and
Section 3.5, each Security delivered under this Indenture upon registration of
transfer of or in exchange for or in lieu of any other Security shall carry the
rights to interest accrued and unpaid, and to accrue, which were carried by such
other Security.
(d) In the case of any Registered Security of a series which
is converted or exchanged after any Regular Record Date and on or prior to the
next succeeding Interest Payment Date (other than any Security the principal of
(or premium, if any, on) which shall become due and payable, whether at Stated
Maturity or by declaration of acceleration, call for redemption or otherwise,
prior to such Interest Payment Date), interest whose Stated Maturity is on such
Interest Payment Date shall be payable on such Interest Payment Date
notwithstanding such conversion or exchange and such interest (whether or not
punctually paid or duly provided for) shall be paid to the Person in whose name
that Registered Security (or any one or more Predecessor Securities) is
registered at the close of business on such Regular Record Date, unless
otherwise provided with respect to Securities of that series pursuant to Section
3.1(b).
Section 3.8. Persons Deemed Owners. Unless otherwise provided
as contemplated by Section 3.1, prior to due presentment of any Registered
Security for registration of transfer, the Company, the Trustee and any agent of
the Company or the Trustee may treat the Person in whose name such Registered
Security is registered as the owner of such Registered Security for the purpose
of receiving payment of principal of, premium, if any, and (subject to Section
3.7) interest on such Registered Security and for all other purposes whatsoever,
whether or not such Registered Security be overdue, and neither the Company, the
Trustee nor any agent of the Company or the Trustee shall be affected by notice
to the contrary.
Unless otherwise provided as contemplated by Section 3.1, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
bearer of any Bearer Security and the bearer of any interest coupon as the
absolute owner of such Bearer Security or interest coupon for the purpose of
receiving payment thereof or on account thereof and for all other purposes
whatsoever, whether or not such Bearer Security or interest coupon be overdue,
and neither the Company, the Trustee nor any agent of the Company or the Trustee
shall be affected by notice to the contrary.
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None of the Company, the Trustee or any agent of the Company
or the Trustee shall have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests of a Security in global form, or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests. No holder
of any beneficial interest in any Security in global form, held on its behalf by
or through a Depositary, shall have any rights under this Indenture with respect
to such Security in global form, and such Depositary may be treated by the
Company, the Trustee and any agent of the Company or the Trustee as the owner of
such Security in global form for all purposes whatsoever. With respect to any
Security in global form, nothing herein shall prevent the Company or the
Trustee, or any agent of the Company or the Trustee, from giving effect to any
written certification, proxy or other authorization furnished by any Depositary
(or its nominee), as a Holder, with respect to such Security in global form or
impair, as between such Depositary and owners of beneficial interests in such
Security in global form, the operation of customary practices governing the
exercise of the rights of such Depositary (or its nominee) as Holder of such
Security in global form.
Section 3.9. Cancellation. All Securities and interest coupons
appertaining thereto, if any, surrendered for payment, redemption, conversion,
registration of transfer or exchange or for credit against any sinking fund
payment shall, if surrendered to any Person other than the Trustee, be delivered
to the Trustee and shall be promptly cancelled by it. The Company may at any
time deliver to the Trustee for cancellation any Securities, together with
interest coupons appertaining thereto, if any, previously authenticated and
delivered hereunder which the Company may have acquired in any manner
whatsoever, and may deliver to the Trustee (or to any other Person for delivery
to the Trustee) for cancellation any Securities, together with interest coupons
appertaining thereto, if any, previously authenticated hereunder which the
Company has not issued and sold, and all Securities and interest coupons so
delivered shall be promptly cancelled by the Trustee. No Securities shall be
authenticated in lieu of or in exchange for any Securities cancelled as provided
in this Section 3.9, except as expressly permitted by this Indenture. All
cancelled Securities and interest coupons held by the Trustee shall be disposed
of in accordance with its customary procedures, and the Trustee shall thereafter
deliver to the Company a certificate with respect to such disposition.
Section 3.10. Computation of Interest. Except as otherwise
specified as contemplated by Section 3.1, interest on the Securities of each
series shall be computed on the basis of a 360-day year of twelve 30-day months.
Section 3.11. CUSIP Numbers. The Company in issuing the
Securities may use "CUSIP" numbers (if then generally in use and in addition to
the other identification numbers printed on the Securities), and, in such case,
the Trustee shall use "CUSIP" numbers in notices of redemption as a convenience
to Holders; provided that
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any such notice may state that no representation is made as to the correctness
of such numbers either as printed on the Securities or as contained in any
notice of a redemption and that reliance may be placed only on the other
identification numbers printed on the Securities, and any such redemption shall
not be affected by any defect in or omission of such numbers.
Section 3.12. Currency and Manner of Payment in Respect of
Securities. Unless otherwise specified with respect to any Securities pursuant
to Section 3.1, payment of the principal of, premium, if any, and interest, if
any, on any Security of such series will be made in the currency or currencies
or currency unit or units in which such Security is payable. The provisions of
this Section 3.12 may be modified or superseded pursuant to Section 3.1 with
respect to any Securities.
ARTICLE 4
SATISFACTION, DISCHARGE AND DEFEASANCE
Section 4.1. Termination of Company's Obligations Under the
Indenture. This Indenture shall upon a Company Request cease to be of further
effect with respect to Securities of or within any series and any interest
coupons appertaining thereto (except as to (i) rights of registration, transfer
or exchange of such Securities, (ii) rights of replacement of such Securities
which may have been lost, stolen or mutilated as herein expressly provided for,
(iii) rights of holders of Securities to receive payments of principal thereof
and interest thereon, upon the Stated Maturity thereof (but not upon
acceleration), and rights of the Holders to receive mandatory sinking fund
payments, if any, (iv) rights of holders of Securities to convert or exchange
Securities, (v) rights, obligations, duties and immunities of the Trustee
hereunder, (vi) any rights of the Holders of Securities of such series as
beneficiaries hereof with respect to the property so deposited with the Trustee
payable to all or any of them, and (vii) the obligations of the Company under
Section 9.2) and the Trustee, upon payment of all amounts due it under Section
6.7, at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture with respect to such
Securities and any interest coupons appertaining thereto when,
(1) either (A) all such Securities previously authenticated
and delivered and all interest coupons appertaining thereto (other than
(i) such interest coupons appertaining to Bearer Securities surrendered
in exchange for Registered Securities and maturing after such exchange,
surrender of which is not required or has been waived as provided in
Section 3.5, (ii) such Securities and interest coupons which have been
destroyed, lost or stolen and which have been replaced or paid as
provided in Section 3.6, (iii) such interest coupons appertaining to
Bearer Securities called for redemption and maturing after the relevant
Redemption Date,
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surrender of which has been waived as provided in Section 11.6 and (iv)
such Securities and interest coupons for whose payment money in the
currency or currencies or currency unit or units in which such
Securities are payable has theretofore been deposited in trust or
segregated and held in trust by the Company and thereafter repaid to
the Company or discharged from such trust, as provided in Section 9.3)
have been delivered to the Trustee for cancellation; or (B) all
Securities of such series and, in the case of (i) or (ii) below, any
interest coupons appertaining thereto not theretofore delivered to the
Trustee for cancellation:
(i) have become due and payable, or
(ii) will become due and payable at their Stated
Maturity within one year, or
(iii) are to be called for redemption within one year
under arrangements satisfactory to the Trustee for the giving
of notice of redemption by the Trustee in the name, and at the
expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above, has
irrevocably deposited or caused to be deposited with the Trustee as
trust funds in trust for the purpose an amount in the currency or
currencies or currency unit or units in which the Securities of such
series are payable, sufficient to pay and discharge the entire
indebtedness on such Securities and such interest coupons not
theretofore delivered to the Trustee for cancellation, for principal,
premium, if any, and interest, with respect thereto, to the date of
such deposit (in the case of Securities which have become due and
payable) or to the Stated Maturity or Redemption Date, as the case may
be;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and
discharge of this Indenture as to such series have been complied with.
Notwithstanding the satisfaction and discharge of this
Indenture, the obligation of the Company to the Trustee and any predecessor
Trustee under Section 6.7, the obligations of the Company to any Authenticating
Agent under Section 6.14 and, if money shall have been deposited with the
Trustee pursuant to subclause (B) of clause (1) of this Section, the obligations
of the Trustee under Section 4.2, Section 9.2 and the last paragraph of Section
9.3 shall survive.
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Section 4.2. Application of Trust Funds. Subject to the
provisions of the last paragraph of Section 9.3, all money deposited with the
Trustee pursuant to Section 4.1 shall be held in trust and applied by it, in
accordance with the provisions of the Securities, the interest coupons
appertaining thereto, if any, and this Indenture, to the payment, either
directly or through any Paying Agent (including the Company acting as its own
Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of
the principal, premium, if any and any interest for whose payment such money has
been deposited with or received by the Trustee, but such money need not be
segregated from other funds except as otherwise provided herein and except to
the extent required by law.
Section 4.3. Applicability of Defeasance Provisions; Company's
Option to Effect Defeasance or Covenant Defeasance. Except as otherwise
specified as contemplated by Section 3.1 for the Securities of any series, the
provisions of Sections 4.4 through 4.9 inclusive, with such modifications
thereto as may be specified pursuant to Section 3.1 with respect to any series
of Securities, shall be applicable to the Securities and any interest coupons
appertaining thereto.
Section 4.4. Defeasance and Discharge. On and after the date
on which the conditions set forth in Section 4.6 are satisfied with respect to
the Securities of or within any series, the Company shall be deemed to have paid
and been discharged from its obligations with respect to such Securities and any
interest coupons appertaining thereto (hereinafter "defeasance"). For this
purpose, such defeasance means that the Company shall be deemed to have paid and
discharged the entire indebtedness represented by such Securities and any
interest coupons appertaining thereto which shall thereafter be deemed to be
"Outstanding" only for the purposes of Sections 4.7 and 4.9 and the other
Sections of this Indenture referred to in clause (ii) of this Section, and to
have satisfied all its other obligations under such Securities and any interest
coupons appertaining thereto and this Indenture insofar as such Securities and
any interest coupons appertaining thereto are concerned (and the Trustee, upon
payment of all amounts due it under Section 6.7, at the expense of the Company,
shall on a Company Order execute proper instruments acknowledging the same),
except the following which shall survive until otherwise terminated or
discharged hereunder: (A) the rights of Holders of such Securities and any
interest coupons appertaining thereto to receive, solely from the trust funds
described in Section 4.6(a) and as more fully set forth in such Section,
payments in respect of the principal of, premium, if any, and interest, if any,
on such Securities or any interest coupons appertaining thereto when such
payments are due; (B) the Company's obligations with respect to such Securities
under Sections 3.4, 3.5, 3.6, 9.2 and 9.3 and with respect to the payment of
additional amounts, if any, payable with respect to such Securities as specified
pursuant to Section 3.1(b)(16); (C) the Company's obligations with respect to a
conversion or exchange of such Securities; (D) the rights, powers, trusts,
duties and immunities of the Trustee hereunder and (E) this Article 4. Subject
to compliance with this Article 4, the Company may defease the Securities of any
series and
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any interest coupons appertaining thereto under this Section 4.4 notwithstanding
a prior covenant defeasance (as defined herein) under Section 4.5 with respect
to such Securities and any interest coupons appertaining thereto. Following a
defeasance, payment of such Securities may not be accelerated because of an
Event of Default.
Section 4.5. Covenant Defeasance. On and after the date on
which the conditions set forth in Section 4.6 are satisfied with respect to the
Securities of or within any series, (i) the Company shall be released from its
obligations under Sections 7.1 and 9.4 and, if specified pursuant to Section
3.1, its obligations under any other covenant, with respect to such Securities
and any interest coupons appertaining thereto, (ii) the occurrence of any event
specified in Sections 5.1(d) or 5.1(i) (in each case, with respect to any of the
obligations described in clause (i) above) or 5.1(e) shall be deemed not to be
or result in a Default or Event of Default (hereinafter, "covenant defeasance"),
and such Securities and any interest coupons appertaining thereto shall
thereafter be deemed to be not "Outstanding" for the purposes of any request,
demand, authorization, direction, notice, waiver, consent or declaration or Act
of Holders (and the consequences of any thereof) in connection with Section 7.1,
or 9.4, such other covenant specified pursuant to Section 3.1, or Sections
5.1(d) or 5.1(i) (in each case, with respect to any of the obligations described
in clause (i) above) or 5.1(e), but shall continue to be deemed "Outstanding"
for all other purposes hereunder and (iii) the provisions of Article 15 shall
cease to be effective as to such Securities to the extent provided therein. For
this purpose, such covenant defeasance means that, with respect to such
Securities and any interest coupons appertaining thereto, the Company may omit
to comply with and shall have no liability in respect of any term, condition or
limitation set forth in any such Section or such other covenant, whether
directly or indirectly, by reason of any reference elsewhere herein to any such
Section or such other covenant or by reason of reference in any such Section or
such other covenant to any other provision herein or in any other document and
such omission to comply shall not constitute a Default or an Event of Default
under Section 5.1(d), 5.1(e) or 5.1(i) or otherwise, as the case may be, but,
except as specified above, the remainder of this Indenture and such Securities
and any interest coupons appertaining thereto shall be unaffected thereby.
Section 4.6. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to application of either Section 4.4 or
Section 4.5 to the then Outstanding Securities of or within a series:
(a) The Company shall irrevocably have deposited or caused to
be deposited with the Trustee (or another trustee satisfying the requirements of
Section 6.9 who shall agree to comply with the provisions of Sections 4.3
through 4.9 inclusive and the last paragraph of Section 9.3 applicable to the
Trustee, for purposes of such sections also a "Trustee") as trust funds in trust
for the purpose of making the following payments, specifically pledged as
security for, and dedicated solely to, the benefit of the Holders of
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such Securities and any interest coupons appertaining thereto, (A) money in an
amount, or (B) Government Obligations which through the scheduled payment of
principal and interest in respect thereof in accordance with their terms will
provide, not later than one day before the due date of any payment, money in an
amount, or (C) a combination thereof, in an amount sufficient in the opinion of
a nationally recognized firm of independent certified public accountants
expressed in a written opinion with respect thereto delivered to the Trustee, to
pay and discharge, and which shall be applied by the Trustee (or other
qualifying trustee) to pay and discharge, (x) the principal of (premium, if any)
and each installment of interest, if any, on the outstanding Securities and any
interest coupons appertaining thereto on the Stated Maturity of such principal
or installment of interest and (y) any mandatory sinking fund payments
applicable to such Securities on the day on which such payments are due and
payable in accordance with the terms of this Indenture and of such Securities
and any interest coupons appertaining thereto.
(b) In the case of an election under Section 4.4, the Company
shall have delivered to the Trustee an Opinion of Counsel stating that (x) the
Company has received from, or there has been published by, the Internal Revenue
Service a ruling, or (y) since the date of this Indenture there has been a
change in the applicable Federal income tax law, in either case to the effect
that, and based thereon such opinion shall confirm that, the Holders of the
Outstanding Securities and any interest coupons appertaining thereto will not
recognize gain or loss for Federal income tax purposes as a result of such
deposit, defeasance and discharge and will be subject to Federal income tax on
the same amount, in the same manner and at the same times as would have been the
case if such deposit, defeasance and discharge had not occurred.
(c) In the case of an election under Section 4.5, the Company
shall have delivered to the Trustee an Opinion of Counsel to the effect that the
Holders of the Outstanding Securities and any interest coupons appertaining
thereto will not recognize gain or loss for Federal income tax purposes as a
result of such deposit and 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.
(d) The Company shall have delivered to the Trustee an
Officer's Certificate to the effect that the Securities, if then listed on any
securities exchange or approved for trading in any automated quotation system,
will not be delisted or disapproved for such trading as a result of such
deposit.
(e) At the time of such deposit: (A) no default in the payment
of all or a portion of principal of (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
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any Senior Debt of the Company shall have occurred and be continuing and shall
have resulted in such Senior Debt becoming or being declared due and payable
prior to the date on which it would otherwise have become due and payable and
(B) no other event of default with respect to any Senior Debt of the Company
shall have occurred and be continuing permitting (after notice or the lapse of
time, or both) the holders of such Senior Debt (or a trustee on behalf of the
holders thereof) to declare such Senior Debt due and payable prior to the date
on which it would otherwise have become due and payable, or, in the case of
either Clause (A) or Clause (B) above, each such default or event of default
shall have been cured or waived or shall have ceased to exist.
(f) No Event of Default or event which with notice or lapse of
time or both would become an Event of Default shall have occurred and be
continuing on the date of such deposit or, insofar as subsections 5.1(g) and (h)
are concerned, at any time during the period ending on the 91st day after the
date of such deposit (it being understood that this condition shall not be
deemed satisfied until the expiration of such period).
(g) Such defeasance or 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).
(h) 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.
(i) The Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for relating to either the defeasance under
Section 4.4 or the covenant defeasance under Section 4.5 (as the case may be)
have been complied with.
(j) 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 registered under such act or exempt from registration
thereunder.
(k) Such defeasance or covenant defeasance shall be effected
in compliance with any additional or substitute terms, conditions or limitations
which may be imposed on the Company in connection therewith as contemplated by
Section 3.1.
Section 4.7. Deposited Money and Government Obligations to Be
Held in Trust. Subject to the provisions of the last paragraph of Section 9.3,
all money and Government Obligations (or other property as may be provided
pursuant to Section 3.1) (including the proceeds thereof) deposited with the
Trustee pursuant to Section 4.6 in respect of any Securities of any series and
any interest coupons appertaining thereto shall
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be held in trust and applied by the Trustee, in accordance with the provisions
of such Securities and any interest coupons appertaining thereto and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Holders of such Securities and any interest coupons
appertaining thereto of all sums due and to become due thereon in respect of
principal, premium, if any, and interest, if any, but such money need not be
segregated from other funds except as provided herein and except to the extent
required by law.
Section 4.8. Repayment to Company. Subject to the delivery by
the Company of any written certification required by the last paragraph of this
Section 4.8, the Trustee (and any Paying Agent) shall promptly pay to the
Company upon Company Request any excess money or securities held by them at any
time.
The provisions of the last paragraph of Section 9.3 shall
apply to any money or securities held by the Trustee or any Paying Agent under
this Article 4 that remain unclaimed for two years after the Maturity of any
series of Securities for which money or securities have been deposited pursuant
to Section 4.6(a).
Anything in this Article to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or Government Obligations held by it as provided in Section
4.6 with respect to any Securities which, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, are in excess of the amount
thereof which would then be required to be deposited to effect the defeasance or
covenant defeasance, as the case may be, with respect to such Securities.
Section 4.9. Indemnity for Government Obligations. The Company
shall pay, and shall indemnify the Trustee against, any tax, fee or other charge
imposed on or assessed against Government Obligations deposited pursuant to this
Article or the principal and interest received in respect thereof other than any
such tax, fee or other charge which by law is for the account of the Holders of
the Outstanding Securities.
Section 4.10. Reinstatement. If the Trustee (or Paying Agent)
is unable to apply any money or Government Obligations in accordance with
Section 4.6 by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application, then
the Company's obligations under this Indenture and the Securities shall be
revived and reinstated, with present and prospective effect, as though no
deposit had occurred pursuant to Section 4.6, until such time as the Trustee (or
Paying Agent) is permitted to apply all such money or Government Obligations in
accordance with Section 4.6; provided, however, that if the Company makes any
payment to the Trustee (or Paying Agent) of principal, premium, if any, or
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interest on any Security following the reinstatement of its obligations, the
Trustee (or Paying Agent) shall promptly pay any such amount to the Holders of
the Securities and the Company shall be subrogated to the rights of the Holders
of such Securities to receive such payment from the money and Government
Obligations held by the Trustee (or Paying Agent).
ARTICLE 5
DEFAULTS AND REMEDIES
Section 5.1. Events of Default. An "Event of Default," with
respect to the Securities of any series, means any one of the following events
(whatever the reason for such Event of Default and whether it shall be
occasioned by the provisions of Article 15 or be voluntary or involuntary or be
effected by operation of law or pursuant to any judgment, decree or order of any
court or any order, rule or regulation of any administrative or governmental
body):
(a) default in the payment of interest on any Security of that
series or any interest coupon appertaining thereto or any additional amount
payable with respect to any Security of that series as specified pursuant to
Section 3.1(b)(16) when the same becomes due and payable and such default
continues for a period of 30 days; or
(b) default in the payment of any installment of the principal
of or any premium on any Security of that series when the same becomes due and
payable at its Maturity; or
(c) default in the deposit of any sinking fund payment, when
and as due by the terms of a Security of that series; or
(d) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture (other than a covenant or warranty a
default in whose performance or whose breach is elsewhere in this Section
specifically dealt with) or the Securities, and continuance of such default or
breach for a period of 60 days after there has been given, in the manner
provided in Section 1.6, to the Company by the Trustee or to the Company and the
Trustee by the Holders of at least 10% in principal amount of the Outstanding
Securities of the series, a written notice specifying such default or breach and
requiring it to be remedied and stating that such notice is a "Notice of
Default" hereunder; or
(e) a default or defaults under the terms of any bond(s),
debenture(s), note(s) or other evidence(s) of, or obligations constituting, Debt
by the Company 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
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evidenced, any Debt of the Company or any Restricted Subsidiary with a principal
amount then outstanding, individually or in the aggregate, in excess of $25
million, whether such Debt now exists or is hereafter Incurred, which default or
defaults constitute a failure to pay any portion of the principal or similar
amount of such Debt when due and payable after the expiration of any applicable
grace period with respect thereto or results in such Debt becoming or being
declared due and payable prior to the date on which it would otherwise have
become due and payable; or
(f) a final judgment or final judgments (not subject to
appeal) for the payment of money are entered against the Company or any
Restricted Subsidiary in an aggregate amount in excess of $25 million by a court
or courts of competent jurisdiction, which judgments remain unstayed,
undischarged or unbonded for a period of 60 days after the entry of such
judgment or judgments; or
(g) the entry by a court having jurisdiction in the premises
of (A) a decree or order for relief in respect of the Company 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 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 or any
Restricted Subsidiary under any applicable Federal or state law, or appointing a
custodian, receiver, liquidator, assignee, trustee, sequestrator or other
similar official of the Company or any Restricted Subsidiary or of any
substantial part of the property of the Company or any Restricted Subsidiary, or
ordering the winding up or liquidation of the affairs of the Company or any
Restricted Subsidiary, and the continuance of any such decree or order for
relief or any such other decree or order unstayed and in effect for a period of
60 consecutive days; or
(h) the commencement by the Company 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 or any Restricted Subsidiary to the entry of a decree or
order for relief in respect of the Company 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 or any
Restricted Subsidiary or the filing by the Company 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 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 or any Restricted Subsidiary or of any
substantial part of the property of the Company or
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any Restricted Subsidiary, or the making by the Company or any Restricted
Subsidiary of an assignment for the benefit of creditors, or the admission by
the Company 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 or any Restricted Subsidiary in furtherance of any such action; or
(i) any other Event of Default provided as contemplated by
Section 3.1 with respect to Securities of that series.
Section 5.2. Acceleration; Rescission and Annulment. If an
Event of Default with respect to the Securities of any series at the time
Outstanding (other than an Event of Default specified in clause (g) or (h) of
Section 5.1) occurs and is continuing, the Trustee or the Holders of at least
25% in aggregate principal amount of all of the Outstanding Securities of that
series, by written notice received by the Company (and, if given by the Holders,
received by the Trustee), may declare the principal (or, if the Securities of
that series are Original Issue Discount Securities or Indexed Securities, such
portion of the principal amount as may be specified in the terms of that series)
of and accrued interest, if any, on all the Securities of that series to be due
and payable and upon any such declaration such principal (or, in the case of
Original Issue Discount Securities or Indexed Securities, such specified amount)
and interest, if any, shall be immediately due and payable, provided that the
payment of principal and interest on such Securities shall remain subordinated
to the extent provided in Article 15. If an Event of Default specified in clause
(g) or (h) of Section 5.1 with respect to the Securities of any series at the
time Outstanding occurs and is continuing, then the principal (or, if the
Securities of that series are Original Issue Discount Securities or Indexed
Securities, such portion of the principal amount as may be specified in the
terms of that series) of and accrued interest, if any, on all the Securities of
that series shall ipso facto be immediately due and payable without any
declaration or act on the part of the Trustee or any Holder of such Securities,
provided that the payment of principal and interest on such Securities shall
remain subordinated to the extent provided in Article 15.
At any time after such a declaration of acceleration 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 of that series, by
written notice to the Company and the Trustee, may rescind and annul such
declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest on all Securities of that
series,
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(B) the principal of (and premium, if any, on) any
Securities of that series which have become due otherwise than
by such declaration of acceleration and any interest thereon
at the rate borne by the Securities of that series,
(C) to the extent that payment of such interest is
lawful, interest upon overdue interest at the rate provided
therefor in the Securities of that series, and
(D) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel;
and
(2) all Events of Default, other than the nonpayment of the
principal of Securities of that series which have become due solely by
such declaration of acceleration, have been cured or waived as provided
in Section 5.7.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Section 5.3. Collection of Indebtedness and Suits for
Enforcement by Trustee. The Company covenants that if
(a) default is made in the payment of any interest on any
Security or interest coupon, if any, when such interest becomes due and payable
and such default continues for a period of 30 days, or
(b) default is made in the payment of the principal of (or
premium, if any, on) any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities or interest coupons, if any, the whole amount then
due and payable on such Securities for principal, premium, if any, and interest
and, to the extent that payment of such interest shall be legally enforceable,
interest on any overdue principal, premium, if any, and on any overdue interest,
at the rate or rates prescribed therefor in such Securities or interest coupons,
if any, and, in addition thereto, such further amount as shall be sufficient to
cover the costs and expenses of collection, including all amounts due the
Trustee, its agents and counsel under Section 6.7.
If the Company fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust, may
institute a judicial
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proceeding for the collection of the sums so due and unpaid and may prosecute
such proceeding to judgment or final decree, and may enforce the same against
the Company or any other obligor upon the Securities and collect the moneys
adjudged or decreed to be payable in the manner provided by law out of the
property of the Company or any other obligor upon the Securities, wherever
situated.
If an Event of Default with respect to Securities of any
series occurs and is continuing, the Trustee may in its discretion proceed to
protect and enforce its rights and the rights of the Holders of Securities of
such series by such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to secure any other proper remedy,
subject, however, to Section 5.8.
Section 5.4. Trustee May File Proofs of Claim. In case of any
judicial proceeding relative to the Company (or any other obligor upon the
Securities), its property or its creditors, the Trustee shall be entitled and
empowered, by intervention in such proceeding or otherwise, to take any and all
actions authorized under the Trust Indenture Act in order to have claims of the
Holders and the Trustee allowed in any such proceeding. In particular, the
Trustee shall be authorized to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same; and any
custodian, receiver, assignee, trustee, liquidator, sequestrator or other
similar official in any such judicial proceeding is hereby authorized by each
Holder to make such payments to the Trustee and, in the event that the Trustee
shall consent to the making of such payments directly to the Holders, to pay to
the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 6.7.
No provision of this Indenture shall be deemed to authorize
the Trustee to authorize or consent to or accept or adopt on behalf of any
Holder of a Security or interest coupon any plan of reorganization, arrangement,
adjustment or composition affecting the Securities or the rights of any Holder
of a Security or interest coupon thereof or to authorize the Trustee to vote in
respect of the claim of any Holder of a Security or interest coupon in any such
proceeding; provided, however, that the Trustee may, on behalf of the Holders,
vote for the election of a trustee in bankruptcy or similar official and be a
member of a creditors' or other similar committee.
Section 5.5. Trustee May Enforce Claims Without Possession of
Securities. All rights of action and claims under this Indenture or the
Securities 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,
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and any recovery of judgment shall, after provision for the payment of the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, be for the ratable benefit of the Holders of the
Securities in respect of which such judgment has been recovered.
Section 5.6. Delay or Omission Not Waiver. No delay or
omission by the Trustee or any Holder of any Securities to exercise any right or
remedy accruing upon an Event of Default shall impair any such right or remedy
or constitute a waiver of or acquiescence in any such Event of Default.
Section 5.7. Waiver of Past Defaults. The Holders of not less
than a majority in aggregate principal amount of Outstanding Securities of any
series by written notice to the Trustee may waive on behalf of the Holders of
all Securities of such series and any interest coupons appertaining thereto a
past Default or Event of Default with respect to that series and its
consequences except a Default or Event of Default (i) in the payment of the
principal of, premium, if any, or interest on any Security of such series or any
interest coupon appertaining thereto or (ii) in respect of a covenant or
provision hereof which pursuant to Article 8 cannot be amended or modified
without the consent of the Holder of each Outstanding Security of such series
affected. Upon any such waiver, such Default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
Section 5.8. Control by Majority. The Holders of not less than
a majority in aggregate principal amount of the Outstanding Securities of each
series affected (with each such series voting as a class) shall have the right
to direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee or exercising any trust or power conferred on it with
respect to Securities of that series; provided, however, that (i) the Trustee
may refuse to follow any direction that conflicts with any governmental rule or
law or this Indenture, (ii) the Trustee may refuse to follow any direction that
is unduly prejudicial to the rights of the Holders of Securities of such series
not consenting, or that would in the good faith judgment of the Trustee have a
substantial likelihood of involving the Trustee in personal liability without
adequate indemnity having been offered therefor and (iii) subject to Section
6.1, the Trustee may take any other action deemed proper by the Trustee which is
not inconsistent with such direction.
Section 5.9. Limitation on Suits by Holders. No Holder of any
Security of any series or any interest coupons appertaining thereto shall have
any right to institute any proceeding, judicial or otherwise, with respect to
this Indenture, or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless:
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(a) the Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the Securities of that
series;
(b) the Holders of at least 25% in aggregate principal amount
of the Outstanding Securities of that series have made a written request to the
Trustee to institute proceedings in respect of such Event of Default in its own
name as Trustee hereunder;
(c) such Holder or Holders have offered to the Trustee
indemnity satisfactory to the Trustee against any loss, liability or expense to
be, or which may be, incurred by the Trustee in pursuing the remedy;
(d) the Trustee for 60 days after its receipt of such notice,
request and the offer of indemnity has failed to institute any such proceedings;
and
(e) during such 60-day period, the Holders of a majority in
aggregate principal amount of the Outstanding Securities of that series have not
given to the Trustee a direction inconsistent with such written request.
No one or more Holders of Securities of a series shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such
Holders.
Section 5.10. Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, but subject to Section
9.2, the right of any Holder of a Security or interest coupon to receive payment
of principal of, premium, if any, and, subject to Sections 3.5 and 3.7, interest
on the Security, on or after the respective due dates expressed in the Security
(or, in case of redemption, on the Redemption Dates), the right of any Holder of
an interest coupon to receive payment of interest due as provided in such
interest coupon, or to bring suit for the enforcement of any such payment on or
after such respective dates, and the right, if any, to convert or exchange such
Security in accordance with Article 14, shall not be impaired or affected
without the consent of such Holder.
Section 5.11. Application of Money Collected. If the Trustee
collects any money pursuant to this Article, it shall pay out the money in the
following order, at the date or dates fixed by the Trustee and, in case of the
distribution of such money on account of principal, premium, if any, or
interest, upon presentation of the Securities and interest coupons, if any, and
the notation thereon of the payment if only partially paid and upon surrender
thereof if fully paid:
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First: to the Trustee for amounts due under Section 6.7;
Second: to Holders of Securities and interest coupons in
respect of which or for the benefit of which such money has been collected for
amounts due and unpaid on such Securities for principal of, premium, if any, and
interest, ratably, without preference or priority of any kind, according to the
amounts due and payable on such Securities for principal, premium, if any, and
interest, respectively; and
Third: the balance, if any, to the Company.
The Holders of each series of Securities denominated in ECU,
any other currency unit or a Foreign Currency and any matured interest coupons
relating thereto shall be entitled to receive a ratable portion of the amount
determined by the Trustee by converting the principal amount Outstanding of such
series of Securities and matured but unpaid interest on such series of
Securities in the currency in which such series of Securities is denominated
into Dollars at the Market Exchange Rate as of the date of declaration of
acceleration of Maturity of the Securities (or, if the default consists of a
failure to pay the principal of such Securities on the Stated Maturity thereof,
as of the Stated Maturity date).
The Trustee may fix a record date and payment date for any
payment to Holders pursuant to this Section 5.11. At least 15 days before such
record date, the Trustee shall mail to each Holder and the Company a notice that
states the record date, the payment date and the amount to be paid.
Section 5.12. Restoration of Rights and Remedies. If the
Trustee or any Holder has instituted any proceeding to enforce any right or
remedy under this Indenture and such proceeding has been discontinued or
abandoned for any reason, or has been determined adversely to the Trustee or to
such Holder, then and in every such case, subject to any determination in such
proceeding, the Company, the Trustee and the Holders shall be restored severally
and respectively to their former positions hereunder and thereafter all rights
and remedies of the Trustee and the Holders shall continue as though no such
proceeding had been instituted.
Section 5.13. Rights and Remedies Cumulative. Except as
otherwise provided with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities in the last paragraph of Section 3.6, no
right or remedy herein conferred upon or reserved to the Trustee or the Holders
is intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at law
or in equity or otherwise. The assertion or employment of any
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right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
Section 5.14. Undertaking for Costs. In any suit for the
enforcement of any right or remedy under this Indenture, or in any suit against
the Trustee for any action taken, suffered or omitted by it as Trustee, a court
may require any party litigant in such suit to file an undertaking to pay the
costs of such suit, and may assess costs against any such party litigant, in the
manner and to the extent provided in the Trust Indenture Act; provided, however,
that neither this Section nor the Trust Indenture Act shall be deemed to
authorize any court to require such an undertaking or to make such an assessment
in any suit instituted by the Company, 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 or 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).
Section 5.15. Waiver of Stay, Extension or Usury Laws The
Company covenants (to the extent that it may lawfully do so) that it will not at
any time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay or extension law or any usury or other law
wherever enacted, now or at any time hereafter in force, which would prohibit or
forgive the Company from paying all or any portion of the principal, of, and
premium, if any, or interest on the Securities contemplated herein or in the
Securities or which may affect the covenants or the performance of this
Indenture; and the Company (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.
ARTICLE 6
THE TRUSTEE
Section 6.1. Certain Duties and Responsibilities. The duties
and responsibilities of the Trustee shall be as provided by the Trust Indenture
Act. Notwithstanding the foregoing, no provision of this Indenture shall require
the Trustee to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the exercise
of any of its rights or powers, if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against such risk
or liability is not reasonably assured to it. Whether or not therein expressly
so provided, every provision of this Indenture relating to the conduct or
affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section.
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Section 6.2. Notice of Defaults. If a Default occurs hereunder
with respect to Securities of any series, the Trustee shall give the Holders of
Securities of such series notice of such Default as and to the extent provided
by the Trust Indenture Act; provided, however, that in the case of any Default
of the character specified in Section 5.1(c) with respect to Securities of such
series, no such notice to Holders shall be given until at least 30 days after
the occurrence thereof.
Section 6.3. Certain Rights of Trustee. Subject to the
provisions of Section 6.1:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document believed by it
to be genuine and to have been signed or presented by the proper party or
parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order, and any
resolution of the Board of Directors shall be sufficiently evidenced by a Board
Resolution;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad faith on
its part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless such Holders
shall have offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which might be incurred by it in compliance with
such request or direction;
(f) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document, but
the Trustee, in its discretion, may make such further inquiry or investigation
into such facts or matters as it may see fit, and, if the Trustee shall
determine to make such further inquiry or investigation, it shall be entitled
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to examine the books, records and premises of the Company, personally or by
agent or attorney;
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys and the Trustee shall not be responsible for any misconduct
or negligence on the part of any agent or attorney appointed with due care by it
hereunder; and
(h) except with respect to Section 9.1, the Trustee shall have
no duty to inquire as to the performance by the Company of the covenants set
forth in Article 9 beyond its good faith review of any certificates or other
notices received by it from the Company.
Section 6.4. Not Responsible for Recitals or Issuance of
Securities. The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company and neither the Trustee nor any Authenticating Agent assumes any
responsibility for their correctness. The Trustee makes no representations as to
the validity or sufficiency of this Indenture or of the Securities. Neither the
Trustee nor any Authenticating Agent shall be accountable for the use or
application by the Company of Securities or the proceeds thereof.
Section 6.5. May Hold Securities. The Trustee, any
Authenticating Agent, any Paying Agent, any Security Registrar or any other
agent of the Company or the Trustee, in its individual or any other capacity,
may become the owner or pledgee of Securities and, subject to the definition of
"Outstanding" set forth in Section 1.1 and subject to Sections 6.8 and 6.13, may
otherwise deal with the Company and any other obligor upon the Securities with
the same rights it would have if it were not Trustee, Authenticating Agent,
Paying Agent, Security Registrar or such other agent.
Section 6.6. Money Held in Trust. Money held by the Trustee in
trust hereunder need not be segregated from other funds except to the extent
required by law or by the provisions of this Indenture. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed with the Company.
Section 6.7. Compensation and Reimbursement. The Company
agrees
(a) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which compensation shall
not be limited by any provision of law in regard to the compensation of a
trustee of an express trust);
(b) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance with
any provision of this Indenture (including the
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reasonable compensation and the expenses and disbursements of its agents and
counsel), except any such expense, disbursement or advance as may be
attributable to its negligence or bad faith; and
(c) to indemnify the Trustee for, and to hold it harmless
against, any loss, liability or expense incurred without negligence or bad faith
on its part, arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder, including the costs and
expenses of defending itself against any claim or liability in connection with
the exercise or performance of any of its powers or duties hereunder.
Section 6.8. Conflicting Interests. If the Trustee has or
shall acquire a conflicting interest within the meaning of the Trust Indenture
Act, the Trustee shall either eliminate such interest or resign, to the extent
and in the manner provided by, and subject to the provisions of, the Trust
Indenture Act and this Indenture. To the extent permitted by such Act, the
Trustee shall not be deemed to have a conflicting interest by virtue of being a
trustee under this Indenture with respect to Securities of more than one series
or a trustee under (i) the Indenture dated as of May 15, 1997 between the
Company and the Trustee relating to the Company's 11.30% Senior Discount Notes
Due 2007, (ii) the Indenture dated as of December 1, 1996 by and among AWNA, the
Company, as guarantor, the Subsidiary Guarantors named therein and the Trustee
relating to AWNA's 10 1/4% Senior Subordinated Notes due 2006, (iii) the
Indenture dated as of ________________, 1997 between the Company and the Trustee
relating to the Company's senior subordinated debt securities, (iv) the
Indenture dated as of ________________, 1997 by and among AWNA, the Company, as
guarantor, the Subsidiary Guarantors named therein and the Trustee relating to
AWNA's senior debt securities and (v) the Indenture dated as of
________________, 1997 by and among AWNA, the Company, as guarantor, the
Subsidiary Guarantors named therein and the Trustee relating to AWNA's senior
subordinated debt securities.
Section 6.9. Corporate Trustee Required; Eligibility. There
shall at all times be a Trustee hereunder which shall be a Person that is
eligible pursuant to the Trust Indenture Act to act as such, has a combined
capital and surplus of at least $25,000,000 and has its Corporate Trust Office
located in the Borough of Manhattan, The City of New York. If such Person
publishes reports of condition at least annually, pursuant to law or to the
requirements of its supervising or examining authority, then for the purposes of
this Section, the combined capital and surplus of such Person shall be deemed to
be its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, it shall resign immediately in
the manner and with the effect hereinafter specified in this Article.
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Section 6.10. Resignation and Removal; Appointment of
Successor. No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 6.11.
The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to the
Company. If the instrument of acceptance by a successor Trustee required by
Section 6.11 shall not have been delivered to the Trustee within 30 days after
the giving of such notice of resignation, the resigning Trustee may petition any
court of competent jurisdiction for the appointment of a successor Trustee with
respect to the Securities of such series.
The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal amount
of the Outstanding Securities of such series, delivered to the Trustee and to
the Company.
If at any time:
(a) the Trustee shall fail to comply with Section 6.8 after
written request therefor by the Company or by any Holder who has been a bona
fide Holder of a Security for at least six months, or
(b) the Trustee shall cease to be eligible under Section 6.9
and shall fail to resign after written request therefor by the Company or by any
such Holder, or
(c) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take charge or control of the
Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation,
then, in any such case, (1) the Company by a Board Resolution may remove the
Trustee with respect to all Securities, or (2) subject to Section 5.14, any
Holder who has been a bona fide Holder of a Security for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees.
If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, with
respect to the Securities of one or more series, the Company, by a Board
Resolution, shall promptly appoint a successor Trustee or Trustees with respect
to the Securities of that or those series (it being understood that any such
successor Trustee may be appointed with respect to the Securities of one or more
or all of such series and that at any time there shall be only one
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Trustee with respect to the Securities of any particular series) and shall
comply with the applicable requirements of Section 6.11. If, within one year
after such resignation, removal or incapability, or the occurrence of such
vacancy, a successor Trustee with respect to the Securities of any series shall
be appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance
of such appointment in accordance with the applicable requirements of Section
6.11, become the successor Trustee with respect to the Securities of such series
and to that extent supersede the successor Trustee appointed by the Company. If
no successor Trustee with respect to the Securities of any series shall have
been so appointed by the Company or the Holders and accepted appointment in the
manner required by Section 6.11, any Holder who has been a bona fide Holder of a
Security of such series for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction for
the appointment of a successor Trustee with respect to the Securities of such
series. The Company shall give notice of each resignation and each removal of
the Trustee with respect to the Securities of any series and each appointment of
a successor Trustee with respect to the Securities of any series to all Holders
of Securities of such series in the manner provided in Section 1.6. Each notice
shall include the name of the successor Trustee with respect to the Securities
of such series and the address of its Corporate Trust Office.
Section 6.11. Acceptance of Appointment by Successor. In case
of the appointment hereunder of a successor Trustee with respect to all
Securities, every such successor Trustee so appointed shall execute, acknowledge
and deliver to the Company and to the retiring Trustee an instrument accepting
such appointment, and thereupon the resignation or removal of the retiring
Trustee shall become effective and such successor Trustee, without any further
act, deed or conveyance, shall become vested with all the rights, powers, trusts
and duties of the retiring Trustee; but, on the request of the Company or the
successor Trustee, such retiring Trustee shall, upon payment of its charges,
execute and deliver an instrument transferring to such successor Trustee all the
rights, powers and trusts of the retiring Trustee and shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder.
In case of the appointment hereunder of a successor Trustee
with respect to the Securities of one or more (but not all) series, the Company,
the retiring Trustee and each successor Trustee with respect to the Securities
of one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates, (2)
if the retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall
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be deemed necessary or desirable to confirm that all the rights, powers, trusts
and duties of the retiring Trustee with respect to the Securities of that or
those series as to which the retiring Trustee is not retiring shall continue to
be vested in the retiring Trustee, and (3) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such Trustee; and upon
the execution and delivery of such supplemental indenture the resignation or
removal of the retiring Trustee shall become effective to the extent provided
therein and each such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Securities of that or those series
to which the appointment of such successor Trustee relates; but, on request of
the Company or any successor Trustee, such retiring Trustee shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates.
Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts referred
to in the first or second preceding paragraph, as the case may be.
No successor Trustee shall accept its appointment unless at
the time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
Section 6.12. Merger, Conversion, Consolidation or Succession
to Business. Any corporation into which the Trustee may be merged or converted
or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to all or substantially all the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.
Section 6.13. Preferential Collection of Claims Against
Company. If and when the Trustee shall be or become a creditor of the Company
(or any other obligor
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upon the Securities), the Trustee shall be subject to the provisions of the
Trust Indenture Act regarding the collection of claims against the Company (or
any such other obligor).
Section 6.14. Appointment of Authenticating Agent. The Trustee
may appoint an Authenticating Agent or Agents with respect to one or more series
of Securities which shall be authorized to act on behalf of the Trustee to
authenticate Securities of such series issued upon original issue and upon
exchange, registration of transfer or partial redemption thereof or pursuant to
Section 3.6, and Securities so authenticated shall be entitled to the benefits
of this Indenture and shall be valid and obligatory for all purposes as if
authenticated by the Trustee hereunder. Wherever reference is made in this
Indenture to the authentication and delivery of Securities by the Trustee or the
Trustee's certificate of authentication, such reference shall be deemed to
include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a corporation organized and
doing business under the laws of the United States of America, any State thereof
or the District of Columbia, authorized under such laws to act as Authenticating
Agent, having a combined capital and surplus of not less than $25,000,000 and
subject to supervision or examination by Federal or State authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any corporation succeeding to the
corporate agency or corporate trust business of an Authenticating Agent, shall
continue to be an Authenticating Agent, provided such corporation shall be
otherwise eligible under this Section, without the execution or filing of any
paper or any further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving
written notice thereof to the Trustee and to the Company. The Trustee may at any
time terminate the agency of an Authenticating Agent by giving written notice
thereof to such Authenticating Agent and to the Company. Upon receiving such a
notice of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall give
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notice of such appointment in the manner provided in Section 1.6 to all Holders
of Securities of the series with respect to which such Authenticating Agent will
serve. Any successor Authenticating Agent upon acceptance of its appointment
hereunder shall become vested with all the rights, powers and duties of its
predecessor hereunder, with like effect as if originally named as an
Authenticating Agent. No successor Authenticating Agent shall be appointed
unless eligible under the provisions of this Section.
The Trustee agrees to pay to each Authenticating Agent from
time to time reasonable compensation for its services under this Section, and
the Trustee shall be entitled to be reimbursed for such payments, subject to the
provisions of Section 6.7.
If an appointment with respect to one or more series is made
pursuant to this Section, the Securities of such series may have endorsed
thereon, in addition to the Trustee's certificate of authentication, an
alternative certificate of authentication in the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
___________________________,
As Trustee
By:________________________,
As Authenticating Agent
By:_________________________
Authorized Signatory
ARTICLE 7
CONSOLIDATION, MERGER OR SALE OF ASSETS BY THE COMPANY
Section 7.1. Consolidation, Merger or Sale of Assets
Permitted. The Company shall not consolidate with or merge into, or sell,
transfer, lease or otherwise dispose of its properties and assets as, or
substantially as, an entirety to, any Person, and the Company shall not permit
any Person to consolidate with or merge into the Company or convey, transfer or
lease its properties and assets substantially as an entirety to the Company,
unless:
(a) (1) the Company will be the surviving entity or (2) the
Person formed by or surviving any such consolidation or merger (if other than
the Company), or to which such sale, transfer, lease or other disposition shall
have been made, is an entity
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organized and existing under the laws of the United States, any State thereof or
the District of Columbia;
(b) the Person formed by or surviving any such consolidation
or merger (if other than the Company), or to which such sale, transfer, lease or
other disposition shall have been made, expressly assumes by supplemental
indenture all the obligations of the Company under the Securities and this
Indenture, and the Securities and this Indenture will remain in full force and
effect as so supplemented;
(c) immediately after giving effect to such consolidation,
merger, sale, transfer, lease or other disposition, no Default or Event of
Default exists; and
(d) with respect to any series of Securities, the Company
satisfies such other conditions, if any, established with respect to such series
of Securities pursuant to and in accordance with Section 3.1.
The Company shall deliver to the Trustee prior to the proposed
consolidation, merger, sale, transfer, lease or other disposition an Officers'
Certificate to the foregoing effect and an Opinion of Counsel stating that the
proposed consolidation, merger, sale, transfer, lease or other disposition and
such supplemental indenture comply with this Indenture and that all conditions
precedent to the consummation of such transaction under this Section 7.1 have
been met.
Upon any consolidation of the Company with, or merger of the
Company into, any other Person or any sale, transfer, lease or other disposition
of properties and assets of the Company as, or substantially as, an entirety in
accordance with this Section 7.1, the successor Person formed by such
consolidation or into which the Company is merged or to which such sale,
transfer, lease or other disposition is made shall succeed to and be substituted
for, and may exercise every right and power of, the Company hereunder and under
the Securities and any interest coupons appertaining thereto with the same
effect as if such successor Person had been named hereunder and thereunder and
thereafter, except in the case of a lease, the predecessor Person shall be
relieved of all obligations and covenants under this Indenture and the
Securities.
ARTICLE 8
SUPPLEMENTAL INDENTURES
Section 8.1. Supplemental Indentures Without Consent of
Holders. Without the consent of any Holders, the Company and the Trustee, at any
time and from time to time, may enter into indentures supplemental hereto, in
form reasonably satisfactory to the Trustee, for any of the following purposes:
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(a) to evidence the succession of another Person to the
Company and the assumption by any such successor of the covenants and
obligations of the Company herein and in the Securities and any interest coupons
appertaining thereto; or
(b) to add to the covenants of the Company for the benefit of
the Holders of all or any series of Securities (and if such covenants are to be
for the benefit of less than all series of Securities, stating that such
covenants are expressly being included solely for the benefit of such series) or
to surrender any right or power herein conferred upon the Company; or
(c) to add any additional Events of Default with respect to
all or any series of Securities; or
(d) to add to or change any of the provisions of this
Indenture to such extent as shall be necessary to facilitate the issuance or
administration of Bearer Securities (including, without limitation, to provide
that Bearer Securities may be registrable as to principal only) or to facilitate
the issuance or administration of Securities in global form; or
(e) to change or eliminate any of the provisions of this
Indenture in respect of one or more series of Securities, provided that any such
change or elimination shall become effective only when there is no Security
Outstanding of any series created prior to the execution of such supplemental
indenture which is entitled to the benefit of such provision; or
(f) to secure any series of Securities; or
(g) to establish the form or terms of Securities of any series
as permitted by Sections 2.1 and 3.1; or
(h) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or more
series and to add to or change any of the provisions of this Indenture as shall
be necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, pursuant to the requirements of Section
6.11; or
(i) if allowed without penalty under applicable laws and
regulations, to permit payment in the United States (including any of the States
thereof and the District of Columbia), its territories, its possessions and
other areas subject to its jurisdiction of principal, premium, if any, or
interest, if any, on Bearer Securities or interest coupons, if any; or
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(j) to cure any ambiguity, to correct or supplement any
provision herein which may be inconsistent with any other provision herein or to
make any other provisions with respect to matters or questions arising under
this Indenture which shall not be inconsistent with the provisions of this
Indenture, provided such action shall not adversely affect in any material
respect the interests of the Holders of Securities of any series; or
(k) to make provision not adverse to the Holders of
Outstanding Securities of any series with respect to any conversion or exchange
rights of Holders pursuant to the requirements of Article 14, including
providing for the conversion or exchange of the Securities into any Equity
Securities of the Company; or
(l) to modify, eliminate or add to the provisions of this
Indenture to such extent as shall be necessary to effect the qualification of
this Indenture under the Trust Indenture Act or under any similar federal
statute subsequently enacted, and to add to this Indenture such other provisions
as may be expressly required under the Trust Indenture Act.
Section 8.2. Supplemental Indentures With Consent of Holders.
With the consent of the Holders of not less than a majority of the aggregate
principal amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company, the
Company and the Trustee may enter into an indenture or indentures supplemental
hereto to add any provisions to or to change in any manner or eliminate any
provisions of this Indenture or of any other indenture supplemental hereto or to
modify in any manner the rights of the Holders of Securities of such series;
provided, however, that without the consent of the Holder of each Outstanding
Security affected thereby, an amendment under this Section may not:
(a) change the Stated Maturity of the principal of, or
premium, if any, on, or any installment of principal of or premium, if any, or
interest on, any Security, or reduce the principal amount thereof or the rate of
interest thereon or any premium payable upon the redemption thereof, or change
the manner in which the amount of any principal thereof or premium, if any, or
interest thereon is determined or reduce the amount of the principal of any
Original Issue Discount Security or Indexed Security that would be due and
payable upon a declaration of acceleration of the Maturity thereof pursuant to
Section 5.2, or change the currency or currency unit in which any Securities or
any premium or the interest thereon is payable, or impair the right to institute
suit for the enforcement of any such payment on or after the Stated Maturity
thereof (or, in the case of redemption, on or after the Redemption Date);
(b) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of whose Holders is required
for any such
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supplemental indenture, or the consent of whose Holders is required for any
waiver (of compliance with certain provisions of this Indenture or certain
defaults hereunder and their consequences) provided for in this Indenture, or
reduce the requirements of Section 13.4 for quorum or voting;
(c) change any obligation of the Company to maintain an office
or agency in the places and for the purposes specified in Section 9.2;
(d) make any change that adversely affects any right to
convert or exchange any Security to which the provisions of Article 14 are
applicable or, except as provided in this Indenture, decrease the conversion or
exchange rate or increase the conversion or exchange price of any such Security;
(e) modify the provisions in Article 15 of this Indenture with
respect to the subordination of Outstanding Securities of any series in a manner
adverse to the Holders thereof; or
(f) make any change in this Section 8.2, Section 5.7 or
Section 9.6 except to increase any percentage or to provide that certain other
provisions of this Indenture cannot be modified or waived with the consent of
the Holders of each Outstanding Security affected thereby; provided, however,
that this clause shall not be deemed to require the consent of any Holder of a
Security or coupon with respect to changes in the references to "the Trustee"
and concomitant changes in this Section and Section 9.6 or the deletion of this
proviso, in accordance with the requirements of Sections 6.11 and 8.1(h).
A supplemental indenture which changes or eliminates any
covenant or other provision of this Indenture which has expressly been included
solely for the benefit of one or more particular series of Securities, or which
modifies the rights of the Holders of Securities of such series with respect to
such covenant or other provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Securities of any other series.
It is not necessary under this Section 8.2 for the Holders to
consent to the particular form of any proposed supplemental indenture, but it is
sufficient if they consent to the substance thereof.
Section 8.3. Compliance with Trust Indenture Act. Every
amendment to this Indenture or the Securities of one or more series shall be set
forth in a supplemental indenture that complies with the Trust Indenture Act as
then in effect.
Section 8.4. Execution of Supplemental Indentures. In
executing, or accepting the additional trusts created by, any supplemental
indenture permitted by this
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Article or the modification thereby of the trusts created by this Indenture, the
Trustee shall be entitled to receive, and (subject to Section 6.1) shall be
fully protected in relying upon, an Officers' Certificate and an Opinion of
Counsel stating that the execution of such supplemental indenture is authorized
or permitted by this Indenture. The Trustee may, but shall not be obligated to,
enter into any such supplemental indenture which affects the Trustee's own
rights, duties or immunities under this Indenture or otherwise.
Section 8.5. Effect of Supplemental Indentures. Upon the
execution of any supplemental indenture under this Article, this Indenture shall
be modified in accordance therewith, and such supplemental indenture shall form
a part of this Indenture for all purposes; and every Holder of Securities
theretofore or thereafter authenticated and delivered hereunder and of any
interest coupon appertaining thereto shall be bound thereby.
Section 8.6. Reference in Securities to Supplemental
Indentures. Securities, including any interest coupons, of any series
authenticated and delivered after the execution of any supplemental indenture
pursuant to this Article may, and shall if required by the Trustee, bear a
notation in form approved by the Trustee as to any matter provided for in such
supplemental indenture. If the Company shall so determine, new Securities
including any interest coupons of any series so modified as to conform, in the
opinion of the Company, to any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered by the Trustee in
exchange for Outstanding Securities including any interest coupons of such
series.
Section 8.7. Notice of Supplemental Indentures. Promptly after
the execution by the Company and the Trustee of any supplemental indenture
pursuant to the provisions of Section 8.2, the Company shall give notice thereof
to the Holders of each Outstanding Security affected, in the manner provided for
in Section 1.6, setting forth in general terms the substance of such
supplemental indenture. Any failure of the Company to give such notice, or any
defect therein, shall not, however, in any way impair or affect the validity of
any such supplemental indenture.
ARTICLE 9
COVENANTS
Section 9.1. Payment of Principal, Premium, if any, and
Interest. The Company covenants and agrees for the benefit of the Holders of
each series of Securities that it will duly and punctually pay the principal of,
premium, if any, and interest, together with additional amounts, if any, on the
Securities of that series in accordance with the terms of the Securities of such
series, any interest coupons appertaining thereto and this Indenture; provided,
however, that amounts properly withheld under the Internal
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Revenue Code of 1986, as amended, by any Person from a payment to any Holder of
Securities, after having requested such Holder to provide applicable information
that would allow such Person to make such payment without withholding, shall be
considered as having been paid by the Company to such Holder for purposes of
this Indenture. An installment of principal, premium, if any, or interest shall
be considered paid on the date it is due if there shall have been sent to the
Trustee or Paying Agent by wire transfer, or if the Trustee or Paying Agent
otherwise holds, on that date money designated for and sufficient to pay the
installment.
Section 9.2. Maintenance of Office or Agency. Unless otherwise
specified as contemplated by Section 3.1, if Securities of a series are issued
as Registered Securities, the Company will maintain in each Place of Payment for
that series of Securities an office or agency where Securities of that series
may be presented or surrendered for payment, where Securities of that series may
be surrendered for registration of transfer or exchange and where notices and
demands to or upon the Company in respect of the Securities of that series and
this Indenture may be served. Unless otherwise specified as contemplated by
Section 3.1, if Securities of a series are issuable as Bearer Securities, the
Company will maintain, (i) subject to any laws or regulations applicable
thereto, an office or agency in a Place of Payment for that series which is
located outside the United States where Securities of that series and related
interest coupons may be presented and surrendered for payment; provided,
however, that if the Securities of that series are listed on The International
Stock Exchange of the United Kingdom and the Republic of Ireland Limited, the
Luxembourg Stock Exchange or any other stock exchange located outside the United
States and such stock exchange shall so require, the Company will maintain a
Paying Agent for the Securities of that series in London, Luxembourg or any
other required city located outside the United States, as the case may be, so
long as the Securities of that series are listed on such exchange, and (ii)
subject to any laws or regulations applicable thereto, an office or agency in a
Place of Payment for that series which is located outside the United States,
where Securities of that series may be surrendered for exchange and where
notices and demands to or upon the Company in respect of the Securities of that
series and this Indenture may be served. The Company will give prompt written
notice to the Trustee of the location, and any change in the location, of any
such office or agency. If at any time the Company shall fail to maintain any
such required office or agency or shall fail to furnish the Trustee with the
address thereof, such presentations, surrenders, notices and demands may be made
or served at the Corporate Trust Office of the Trustee, and the Company hereby
appoints the Trustee as its agent to receive all such presentations, surrenders,
notices and demands.
Unless otherwise specified as contemplated by Section 3.1, no
payment of principal, premium or interest on Bearer Securities shall be made at
any office or agency of the Company in the United States, by check mailed to any
address in the United States,
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by transfer to an account located in the United States or upon presentation or
surrender in the United States of a Bearer Security or interest coupon for
payment, even if the payment would be credited to an account located outside the
United States; provided, however, that, if the Securities of a series are
denominated and payable in Dollars, payment of principal of and any premium or
interest on any such Bearer Security shall be made at the office of the
Company's Paying Agent in the Borough of Manhattan, The City of New York, if
(but only if) payment in Dollars of the full amount of such principal, premium
or interest, as the case may be, at all offices or agencies outside the United
States maintained for the purpose by the Company in accordance with this
Indenture is illegal or effectively precluded by exchange controls or other
similar restrictions.
Unless otherwise specified as contemplated by Section 3.1, the
Company may also from time to time designate one or more other offices or
agencies where the Securities (including any interest coupons, if any) of one or
more series may be presented or surrendered for any or all such purposes and may
from time to time rescind such designations; provided, however, that no such
designation or rescission shall in any manner relieve the Company of its
obligation to maintain an office or agency in each Place of Payment for
Securities (including any interest coupons, if any) of any series for such
purposes. The Company will give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location of any such other
office or agency.
Unless otherwise specified as contemplated by Section 3.1, the
Trustee shall initially serve as Paying Agent.
Section 9.3. Money for Securities Payments to Be Held in
Trust; Unclaimed Money. If the Company shall at any time act as its own Paying
Agent with respect to any series of Securities and any interest coupons
appertaining thereto, it will, on or before each due date of the principal of,
premium, if any, or interest on any of the Securities of that series, segregate
and hold in trust for the benefit of the Persons entitled thereto a sum
sufficient to pay the principal, premium, if any, or interest so becoming due
until such sums shall be paid to such Persons or otherwise disposed of as herein
provided and will promptly notify the Trustee in writing of its action or
failure so to act.
Whenever the Company shall have one or more Paying Agents for
any series of Securities and any interest coupons appertaining thereto, it will,
prior to each due date of the principal of or any premium or interest on any
Securities of that series, deposit with a Paying Agent a sum sufficient to pay
such amount, such sum to be held as provided by the Trust Indenture Act, and
(unless such Paying Agent is the Trustee) the Company will promptly notify the
Trustee of its action or failure so to act.
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The Company will cause each Paying Agent for any series of
Securities other than the Trustee to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee, subject to
the provisions of this Section, that such Paying Agent will:
(a) comply with the provisions of the Trust Indenture Act
applicable to it as a Paying Agent;
(b) hold all sums held by it for the payment of the principal
of, premium, if any, or interest on Securities of that series in trust for the
benefit of the Persons entitled thereto until such sums shall be paid to such
Persons or otherwise disposed of as herein provided;
(c) give the Trustee notice of any default by the Company (or
any other obligor upon the Securities of that series) in the making of any
payment of principal, premium, if any, or interest on the Securities of that
series; and
(d) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the Trustee all sums
so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the terms set forth in this Indenture; and, upon such payment by any Paying
Agent to the Trustee, such Paying Agent shall be released from all further
liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of any principal of or
premium or interest on any Security of any series and remaining unclaimed for
two years after such principal, premium, if any, or interest has become due and
payable shall be paid to the Company on Company Request, or (if then held by the
Company) shall be discharged from such trust; and the Holder of such Security
and interest coupon, if any, shall thereafter, as an unsecured general creditor,
look only to the Company for payment thereof, and all liability of the Trustee
or such Paying Agent with respect to such trust money, and all liability of the
Company as trustee thereof, shall thereupon cease; provided, however, that the
Trustee or such Paying Agent, before being required to make any such repayment,
may in the name and at the expense of the Company cause to be published once, in
an Authorized Newspaper in each Place of Payment with respect to such series, or
cause to be mailed to such Holder, notice that such money remains unclaimed and
that, after a date
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specified therein, which shall not be less than 30 days from the date of such
publication, any unclaimed balance of such money then remaining will be repaid
to the Company.
Section 9.4. Corporate Existence. Subject to Article 7, the
Company will at all times do or cause to be done all things necessary to
preserve and keep in full force and effect its corporate existence and its
rights and franchises; provided that nothing in this Section 9.4 shall prevent
the abandonment or termination of any right or franchise of the Company if it
shall be determined that such abandonment or termination is desirable in the
conduct of the business of the Company.
Section 9.5. Annual Review Certificate. The Company covenants
and agrees to deliver to the Trustee, within 90 days after the end of each
fiscal year of the Company, a certificate from the principal executive officer,
principal financial officer or principal accounting officer of the Company
stating that a review of the activities of the Company during such year and of
performance under this Indenture has been made under his or her supervision and
to the best of his or her knowledge, based on such review, the Company has
fulfilled all of its obligations under this Indenture throughout such year, or,
if there has been a default in the fulfillment of any such obligation,
specifying each such default known to him or her and the nature and status
thereof. For purposes of this Section 9.5, such compliance shall be determined
without regard to any period of grace or requirement of notice provided under
this Indenture.
Section 9.6 Waiver of Certain Covenants. Except as otherwise
specified as contemplated by Section 3.1 for Securities of such series, the
Company may, with respect to the Securities of any series, omit in any
particular instance to comply with any term, provision or condition set forth in
any covenant provided pursuant to Section 3.1(b)(15), 8.1(b) or 8.1(g) for the
benefit of the Holders of such series if before the time for such compliance the
Holders of at least a majority in principal amount of the Outstanding Securities
of such series shall, by act of such Holders in accordance with Section 1.4,
either waive such compliance in such instance or generally waive compliance with
such term, provision or condition, but no such waiver shall extend to or affect
such term, provision or condition except to the extent so expressly waived, and,
until such waiver shall become effective, the obligations of the Company and the
duties of the Trustee in respect of any such term, provision or condition shall
remain in full force and effect.
ARTICLE 10
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 10.1. Company to Furnish Trustee Names and Addresses
of Holders. The Company will furnish or cause to be furnished to the Trustee:
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(a) semi-annually, not more than 15 days after each
Regular Record Date for any series, a list, in such form as
the Trustee may reasonably require, of the names and addresses
of the Holders of Registered Securities of such series as of
such Regular Record Date; and
(b) at such other times as the Trustee may request in
writing, within 30 days after the receipt by the Company of
any such request, a list of similar form and content for any
or all series as of a date not more than 15 days prior to the
time such list is furnished;
excluding from any such list names and addresses possessed by the Trustee in its
capacity as Registrar.
Section 10.2. Preservation of Information, Communications to
Holders. (a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders of Registered Securities
contained in the most recent list furnished to the Trustee as provided in
Section 10.1 and the names and addresses of Holders of Registered Securities
received by the Trustee in its capacity as Registrar. The Trustee may destroy
any list furnished to it as provided in Section 10.1 upon receipt of a new list
so furnished.
(b) The rights of Holders of Securities to communicate with
other Holders with respect to their rights under this Indenture or under the
Securities, and the corresponding rights and privileges of the Trustee, shall be
as provided in the Trust Indenture Act.
(c) Every Holder of Securities and interest coupons
appertaining thereto, by receiving and holding the same, agrees with the Company
and the Trustee that neither the Company nor the Trustee nor any agent of either
of them shall be held accountable by reason of the disclosure of information as
to the names and addresses of the Holders of Securities made pursuant to the
Trust Indenture Act.
Section 10.3. Reports by Trustee. (a) The Trustee shall
transmit to Holders of Securities such reports concerning the Trustee and its
actions under this Indenture as may be required pursuant to the Trust Indenture
Act, at the times and in the manner provided pursuant thereto.
(b) Reports so required to be transmitted at stated intervals
of not more than 12 months shall be transmitted no later than July 15 in each
calendar year, commencing with the first July 15 after the first issuance of
Securities under this Indenture.
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(c) A copy of each such report shall, at the time of such
transmission to Holders of Securities, be filed by the Trustee with each stock
exchange upon which the Securities of any series may then be listed and also
with the Commission. The Company will notify the Trustee whenever the Securities
of any series are listed on any stock exchange.
Section 10.4. Reports by the Company. The Company shall file
with the Trustee and the Commission, and transmit to the Holders, such
information, documents and other reports, and such summaries thereof, as may be
required pursuant to the Trust Indenture Act at the times and in the manner
provided pursuant to such Act; provided that any such information, documents or
reports required to be filed with the Commission pursuant to Section 13 or 15(d)
of the 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.
Notwithstanding anything contrary herein, the Trustee shall have no duty to
review such documents for purposes of determining compliance with any provisions
of this Indenture.
ARTICLE 11
REDEMPTION
Section 11.1. Applicability of Article. Securities (including
interest coupons, if any) of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified as contemplated by Section 3.1 for Securities of any series)
in accordance with this Article.
Section 11.2. Election to Redeem; Notice to Trustee. The
election of the Company to redeem any Securities, including interest coupons, if
any, that, at the time of such election, may be redeemed at the option of the
Company, shall be evidenced by a Board Resolution. In the case of any such
redemption at the election of the Company of less than all the Securities or
interest coupons, if any, of any series, the Company shall, at least 45 days
prior to the Redemption Date fixed by the Company (unless a shorter notice shall
be satisfactory to the Trustee), notify the Trustee of such Redemption Date, of
the principal amount of Securities of such series to be redeemed and, if
applicable, of the tenor of the Securities to be redeemed. In the case of any
redemption of Securities (i) prior to the expiration of any restriction on such
redemption provided in the terms of such Securities or elsewhere in this
Indenture or (ii) pursuant to an election of the Company which is subject to a
condition specified in the terms of such Securities, the Company shall furnish
the Trustee with an Officers' Certificate evidencing compliance with such
restriction or condition.
Section 11.3. Selection of Securities to Be Redeemed. Unless
otherwise specified as contemplated by Section 3.1, if less than all the
Securities (including interest
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coupons, if any) of a series with the same terms are to be redeemed, the
Trustee, not more than 45 days prior to the Redemption Date, shall select the
Securities of the series to be redeemed in such manner as the Trustee shall deem
fair and appropriate. The Trustee shall make the selection from Securities of
the series that are Outstanding and that have not previously been called for
redemption and may provide for the selection for redemption of portions (equal
to the minimum authorized denomination for Securities, including interest
coupons, if any, of that series or any integral multiple thereof) of the
principal amount of Securities, including interest coupons, if any, of such
series of a denomination larger than the minimum authorized denomination for
Securities of that series, provided that the unredeemed portion of the principal
amount of any Security shall be in an authorized denomination (which shall not
be less than the minimum authorized denomination) for such Security. The Trustee
shall promptly notify the Company in writing of the Securities selected by the
Trustee for redemption and, in the case of any Securities selected for partial
redemption, the principal amount thereof to be redeemed. If the Company shall so
direct, Securities registered in the name of the Company or any Affiliate or any
Subsidiary thereof shall not be included in the Securities selected for
redemption.
For purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities (including
interest coupons, if any) shall relate, in the case of any Securities (including
interest coupons, if any) redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities (including interest coupons,
if any) which has been or is to be redeemed.
Section 11.4. Notice of Redemption. Unless otherwise specified
as contemplated by Section 3.1, notice of redemption shall be given in the
manner provided in Section 1.6 not less than 30 days nor more than 60 days prior
to the Redemption Date to the Holders of the Securities to be redeemed.
All notices of redemption shall state:
(a) the Redemption Date;
(b) the Redemption Price;
(c) if less than all the Outstanding Securities of a series
are to be redeemed, the identification (and, in the case of partial redemption,
the principal amounts) of the particular Security or Securities to be redeemed;
(d) the Place or Places of Payment where such Securities,
together in the case of Bearer Securities with all interest coupons appertaining
thereto, if any, maturing on or after the Redemption Date, are to be surrendered
for payment of the Redemption Price;
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(e) that Securities of the series called for redemption and
all unmatured interest coupons, if any, appertaining thereto must be surrendered
to the Paying Agent to collect the Redemption Price;
(f) that, on the Redemption Date, the Redemption Price will
become due and payable upon each such Security, or the portion thereof, to be
redeemed and, if applicable, that interest thereon will cease to accrue on and
after said date;
(g) that the redemption is from a sinking fund, if such is the
case;
(h) that, unless otherwise specified in such notice, Bearer
Securities of any series, if any, surrendered for redemption must be accompanied
by all interest coupons maturing subsequent to the Redemption Date or the amount
of any such missing interest coupon or interest coupons will be deducted from
the Redemption Price, unless security or indemnity satisfactory to the Company,
the Trustee and any Paying Agent is furnished;
(i) the CUSIP number, if any, of the Securities;
(j) if applicable, the conversion or exchange price, the date
on which the right to convert or exchange the Securities (or portions thereof to
be redeemed) will terminate and the place or places where such Securities may be
surrendered for conversion or exchange; and
(k) the procedures that a Holder must follow to surrender the
Securities so to be redeemed.
Notice of redemption of Securities to be redeemed shall be
given by the Company or, at the Company's request, by the Trustee in the name
and at the expense of the Company.
Section 11.5. Deposit of Redemption Price. On or prior to any
Redemption Date, the Company shall deposit with the Trustee or with a Paying
Agent (or, if the Company is acting as its own Paying Agent, segregate and hold
in trust as provided in Section 9.3) an amount of money in the currency or
currencies (including currency unit or units) in which the Securities of such
series are payable (except as otherwise specified pursuant to Section 3.1 for
the Securities of such series) sufficient to pay on the Redemption Date the
Redemption Price of, and (unless the Redemption Date shall be an Interest
Payment Date) interest accrued to the Redemption Date on, all Securities or
portions thereof which are to be redeemed on that date.
Unless any Security by its terms prohibits any redemption
obligation from being satisfied by delivering and crediting Securities
(including Securities redeemed
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otherwise than through a sinking fund), the Company may deliver such Securities
to the Trustee for crediting of an amount equal to the then applicable
Redemption Price for such Securities against such payment obligation in
accordance with the terms of such Securities and this Indenture.
Section 11.6. Securities Payable on Redemption Date. Notice of
redemption having been given as aforesaid, the Securities so to be redeemed
shall, on the Redemption Date, become due and payable at the Redemption Price
therein specified, and from and after such date (unless the Company shall
default in the payment of the Redemption Price and accrued interest) such
Securities shall cease to bear interest and the interest coupons for any such
interest appertaining to any Bearer Security so to be redeemed, except to the
extent provided below, shall be void. Except as provided in the next succeeding
paragraph, upon surrender of any such Security, including interest coupons, if
any, for redemption in accordance with said notice, such Security shall be paid
by the Company at the Redemption Price, together with accrued interest to the
Redemption Date; provided, however, that installments of interest on Bearer
Securities whose Stated Maturity is on or prior to the Redemption Date shall be
payable only at an office or agency located outside the United States and its
possessions (except as otherwise provided in Section 9.2) and, unless otherwise
specified as contemplated by Section 3.1, only upon presentation and surrender
of interest coupons for such interest; and provided, further, that, unless
otherwise specified as contemplated by Section 3.1, installments of interest on
Registered Securities that are due and payable on Interest Payment Dates that
are on or prior to the Redemption Date shall be payable to the Holders of such
Securities, or one or more Predecessor Securities, registered as such at the
close of business on the relevant Regular Record Dates according to their terms
and the provisions of Section 3.7.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant interest coupons maturing after the Redemption
Date, such Bearer Security may be paid after deducting from the Redemption Price
an amount equal to the face amount of all such missing interest coupons, or the
surrender of such missing interest coupon or interest coupons may be waived by
the Company and the Trustee if there be furnished to them such security or
indemnity as they may require to save each of them and any Paying Agent
harmless. If thereafter the Holder of such Bearer Security shall surrender to
the Trustee or any Paying Agent any such missing interest coupon in respect of
which a deduction shall have been made from the Redemption Price, such Holder
shall be entitled to receive the amount so deducted; provided, however, that
interest represented by interest coupons shall be payable only at an office or
agency located outside of the United States (except as otherwise provided
pursuant to Section 9.2) and, unless otherwise specified as contemplated by
Section 3.1, only upon presentation and surrender of those interest coupons.
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If any Security called for redemption shall not be so paid
upon surrender thereof for redemption, the principal (and premium, if any)
shall, until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Security.
Section 11.7. Securities Redeemed in Part . Upon surrender of
a Security that is redeemed in part at any Place of Payment therefor (with, if
the Company or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company and the Trustee duly
executed by, the Holder thereof or his or her attorney duly authorized in
writing), the Company shall execute and the Trustee shall authenticate and
deliver to the Holder of that Security, without service charge, a new Security
or Securities of the same series, having the same form, terms and Stated
Maturity, in any authorized denomination equal in aggregate principal amount to
the unredeemed portion of the principal amount of the Security surrendered.
ARTICLE 12
SINKING FUNDS
Section 12.1. Applicability of Article . The provisions of
this Article shall be applicable to any sinking fund for the retirement of
Securities of a series except as otherwise specified as contemplated by Section
3.1 for Securities of such series.
The minimum amount of any sinking fund payment provided for by
the terms of Securities of any series is herein referred to as a "mandatory
sinking fund payment," and any payment in excess of such minimum amount provided
for by the terms of Securities of any series is herein referred to as an
"optional sinking fund payment." If provided for by the terms of Securities of
any series, the cash amount of any sinking fund payment may be subject to
reduction as provided in Section 12.2. Each sinking fund payment shall be
applied to the redemption of Securities of any series as provided for by the
terms of Securities of such series.
Section 12.2. Satisfaction of Sinking Fund Payments with
Securities . The Company (i) may deliver Outstanding Securities of a series
(other than any previously called for redemption) together, in the case of
Bearer Securities of such series, with all unmatured interest coupons
appertaining thereto and (ii) may apply as a credit Securities of a series which
have been (x) redeemed either at the election of the Company pursuant to the
terms of such Securities or through the application of permitted optional
sinking fund payments pursuant to the terms of such Securities, (y) converted or
exchanged pursuant to Article 14 or (z) previously delivered to the Trustee and
cancelled without reissuance pursuant to Section 3.9, in each case in
satisfaction of all or any part of any sinking fund payment with respect to the
Securities of such series required to be made pursuant to the terms of such
Securities as provided for by the terms of such series;
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provided that such Securities have not been previously so credited. Such
Securities shall be received and credited for such purpose by the Trustee at the
Redemption Price specified in such Securities for redemption through operation
of the sinking fund and the amount of such sinking fund payment shall be reduced
accordingly.
Section 12.3. Redemption of Securities for Sinking Fund . Not less than
45 days prior to each sinking fund payment date for any series of Securities,
the Company will deliver to the Trustee an Officers' Certificate specifying the
amount of the next ensuing sinking fund payment for that series pursuant to the
terms of that series, the portion thereof, if any, which is to be satisfied by
payment of cash and the portion thereof, if any, which is to be satisfied by
delivering and crediting Securities of that series pursuant to Section 12.2 and
stating the basis for such credit and that such Securities have not been
previously so credited, and will also deliver to the Trustee any Securities to
be so delivered. Not less than 30 days before each such sinking fund payment
date the Trustee shall select the Securities to be redeemed upon such sinking
fund payment date in the manner specified in Section 11.3 and cause notice of
the redemption thereof to be given in the name of and at the expense of the
Company in the manner provided in Section 11.4. Such notice having been duly
given, the redemption of such Securities shall be made upon the terms and in the
manner stated in Sections 11.6 and 11.7.
ARTICLE 13
MEETINGS OF HOLDERS OF SECURITIES
Section 13.1. Purposes for Which Meetings May Be Called . A meeting of
Holders of Securities of any series may be called at any time and from time to
time pursuant to this Article to make, give or take any request, demand,
authorization, direction, notice, consent, election, waiver or other action
provided by this Indenture to be made, given or taken by Holders of Securities
of such series.
Section 13.2. Call, Notice and Place of Meetings . (a) The Trustee may
at any time call a meeting of Holders of Securities of any series for any
purpose specified in Section 13.1, to be held at such time and at such place in
The City of New York or in such other place as may be acceptable to the Company.
Notice of every meeting of Holders of Securities, setting forth the time and the
place of such meeting and in general terms the action proposed to be taken at
such meeting, shall be given, in the manner provided in Section 1.6, not less
than 20 nor more than 180 days prior to the date fixed for the meeting.
(b) In case at any time the Company, pursuant to a Board
Resolution, shall have requested the Trustee to call a meeting of the Holders of
Securities of any series for any purpose specified in Section 13.1, by written
request setting forth in
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reasonable detail the action proposed to be taken at the meeting, and the
Trustee shall not have made the first publication of the notice of such meeting
within 20 days after receipt of such request or shall not thereafter proceed to
cause the meeting to be held as provided herein, then the Company may determine
the time and the place in The City of New York or such other place as may be
acceptable to the Company for such meeting and may call such meeting for such
purposes by giving notice thereof as provided in paragraph (a) of this Section
13.2.
Section 13.3. Persons Entitled to Vote at Meetings . To be entitled to
vote at any meeting of Holders of Securities of any series, a Person shall be
(a) a Holder of one or more Outstanding Securities of such series, or (b) a
Person appointed by an instrument in writing as proxy for a Holder or Holders of
one or more Outstanding Securities of such series by such Holder or Holders. The
only Persons who shall be entitled to be present or to speak at any meeting of
Holders shall be the Persons entitled to vote at such meeting and their counsel,
any representatives of the Trustee and its counsel and any representatives of
the Company and its counsel.
Section 13.4. Quorum; Action . The Persons entitled to vote a majority
in principal amount of the Outstanding Securities of a series shall constitute a
quorum for a meeting of Holders of Securities of such series; provided, however,
that if any action is to be taken at such meeting with respect to a consent or
waiver which this Indenture expressly provides may be given by the Holders of
not less than a specified percentage in principal amount of the Outstanding
Securities of a series, the Persons entitled to vote such specified percentage
in principal amount of the Outstanding Securities of such series shall
constitute a quorum. In the absence of a quorum within 30 minutes after the time
appointed for any such meeting, the meeting may be adjourned for a period of not
less than 10 days as determined by the chairman of the meeting prior to the
adjournment of such meeting. In the absence of a quorum at the reconvening of
any such adjourned meeting, such adjourned meeting may be further adjourned for
a period of not less than 10 days; at the reconvening of any meeting adjourned
or further adjourned for lack of a quorum, the persons entitled to vote 25% in
aggregate principal amount of the then Outstanding Securities of the relevant
series shall constitute a quorum for the taking of any action set forth in the
notice of the original meeting. Notice of the reconvening of any adjourned
meeting shall be given as provided in Section 13.2(b), except that such notice
need be given only once not less than five days prior to the date on which the
meeting is scheduled to be reconvened.
Except as limited by the proviso to Section 8.2, any
resolution presented to a meeting or adjourned meeting duly reconvened at which
a quorum is present as aforesaid may be adopted by the affirmative vote of the
Holders of a majority in principal amount of the Outstanding Securities of that
series; provided, however, that, except as limited by the proviso to Section
8.2, any resolution with respect to any request, demand,
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authorization, direction, notice, consent, waiver or other action which this
Indenture expressly provides may be made, given or taken by the Holders of a
specified percentage, which is less than a majority, in principal amount of the
Outstanding Securities of a series may be adopted at a meeting or an adjourned
meeting duly reconvened and at which a quorum is present as aforesaid by the
affirmative vote of the Holders of such specified percentage in principal amount
of the Outstanding Securities of that series.
Any resolution passed or decision taken at any meeting of
Holders of Securities of any series duly held in accordance with this Section
13.4 shall be binding on all the Holders of Securities of such series and the
related coupons, whether or not present or represented at the meeting.
Notwithstanding the foregoing provisions of this Sections
13.4, if any action is to be taken at a meeting of Holders of Securities of any
series with respect to any request, demand, authorization, direction, notice,
consent, waiver or other action that this Indenture expressly provides may be
made, given or taken by the Holders of a specified percentage in principal
amount of all Outstanding Securities affected thereby, or of the Holders of such
series and one or more additional series:
(1) there shall be no minimum quorum requirement for such
meeting and
(2) the principal amount of the Outstanding Securities of such
series that vote in favor of such request, demand, authorization, direction,
notice, consent, waiver or other action shall be taken into account in
determining whether such request, demand, authorization, direction, notice,
consent, waiver or other action has been made, given or taken under this
Indenture.
Section 13.5. Determination of Voting Rights; Conduct and
Adjournment of Meetings . (a) Notwithstanding any other provisions of this
Indenture, the Trustee may make such reasonable regulations as it may deem
advisable for any meeting of Holders of Securities of any series in regard to
proof of the holding of Securities of such series and of the appointment of
proxies and in regard to the appointment and duties of inspectors of votes, the
submission and examination of proxies, certificates and other evidence of the
right to vote, and such other matters concerning the conduct of the meeting as
it shall deem appropriate. Except as otherwise permitted or required by any such
regulations, the holding of Securities shall be proved in the manner specified
in Section 1.4 and the appointment of any proxy shall be provided in the manner
specified in Section 1.4 or by having the signature of the Person executing the
proxy witnessed or guaranteed by any trust company, bank or banker authorized by
Section 1.4 to certify to the holding of Bearer Securities. Such regulations may
provide that written instruments appointing
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proxies, regular on their face, may be presumed valid and genuine without the
proof specified in Section 1.4 or other proof.
(b) The Trustee shall, by an instrument in writing, appoint a
temporary chairman (which may be a Responsible Officer of the Trustee) of the
meeting, unless the meeting shall have been called by the Company as provided in
Section 13.2(b), in which case the Company shall in like manner appoint a
temporary chairman. A permanent chairman and a permanent secretary of the
meeting shall be elected by vote of the Persons entitled to vote a majority in
principal amount of the Outstanding Securities of such series represented at the
meeting.
(c) At any meeting each Holder of a Security of such series or
proxy shall be entitled to one vote for each U.S. $5,000 principal amount of
Securities held or represented by him or her; provided, however, that no vote
shall be cast or counted at any meeting in respect of any Security challenged as
not Outstanding and ruled by the chairman of the meeting to be not Outstanding.
The chairman of the meeting shall have no right to vote, except as a Holder of a
Security or proxy.
(d) Any meeting of Holders of Securities of a series duly
called pursuant to Section 13.2 at which a quorum is present may be adjourned
from time to time by Persons entitled to vote a majority in principal amount of
the Outstanding Securities of such series represented at the meeting, and the
meeting may be held as so adjourned without further notice.
Section 13.6. Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of Holders of Securities
of any series shall be by written ballots on which shall be subscribed the
signatures of the Holders of Securities of such series or of their
representatives by proxy and the principal amounts and serial numbers of the
Outstanding Securities held or represented by them. The permanent chairman of
the meeting shall appoint an inspector of votes who shall count all votes cast
at the meeting for or against any resolution and who shall make and file with
the secretary of the meeting its verified written reports in duplicate of all
votes cast at the meeting. A record of the proceedings of each meeting of
Holders of Securities shall be prepared by the applicable secretary of the
meeting and there shall be attached to said record the original report of the
inspector of votes on any vote by ballot taken thereat and affidavits by one or
more Persons having knowledge of the facts, setting forth a copy of the notice
of the meeting and showing that said notice was given as provided in Section
13.2 and, if applicable, Section 13.4. At least two copies of such record shall
be signed and verified by the affidavits of the permanent chairman and secretary
of the meeting and one copy thereof shall be delivered to the Company and the
other to the Trustee to be preserved by the Trustee, the latter to have attached
thereto the ballots voted at the
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meeting. Any record so signed and verified shall be conclusive evidence of the
matters therein stated.
ARTICLE 14
CONVERSION OR EXCHANGE OF SECURITIES
Section 14.1. Applicability of Article . (a) The provisions of
this Article 14 shall be applicable to the Securities of any series which are
convertible or exchangeable into Equity Securities of the Company, and to the
issuance of such Equity Securities upon the conversion or exchange of such
Securities, except as otherwise specified as contemplated by Section 3.1 for the
Securities of such series.
(b) The term "Equity Securities" shall mean all or any of the
following, authorized from time to time: (i) the Company's Common Stock, $.01
par value (the "Common Stock"), (ii) the Company's Preferred Stock, $.10 par
value (the "Preferred Stock"), and (iii) any other equity securities of the
Company.
Section 14.2. Exercise of Conversion or Exchange Privilege .
(a) In order to exercise a conversion or exchange privilege, the Holder of a
Security of a series with such privilege shall surrender such Security,
together, in the case of any Bearer Security, with all unmatured interest
coupons and any matured interest coupons in default appertaining thereto, to the
Company at the office or agency maintained for that purpose pursuant to Section
9.2, accompanied by written notice to the Company that the Holder elects to
convert or exchange such Security or a specified portion thereof. Such notice
shall also state, if different from the name and address of such Holder, the
name or names (with address) in which the certificate or certificates for Equity
Securities which shall be issuable on such conversion or exchange shall be
issued. Registered Securities surrendered for conversion or exchange shall (if
so required by the Company or the Trustee) be duly endorsed by or accompanied by
instruments of transfer in forms satisfactory to the Company and the Trustee
duly executed by the registered Holder or its attorney duly authorized in
writing.
(b) As promptly as practicable after the receipt of such
notice and of any payment required pursuant to a Board Resolution establishing
the terms of any series of Securities and, subject to Section 3.3, set forth, or
determined in the manner provided, in an Officers' Certificate, or established
in one or more indentures supplemental hereto setting forth the terms of such
series of Security, and the surrender of such Security in accordance with such
reasonable regulations as the Company may prescribe, the Company shall issue and
shall deliver, at the office or agency at which such Security is surrendered, to
such Holder or on its written order, a certificate or certificates for the
number of Equity Securities issuable upon the conversion or exchange of such
Security
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(or specified portion thereof), in accordance with the provisions of
such Board Resolution, Officers' Certificate or supplemental indenture, and cash
as provided therein in respect of any fractional share of such Equity Security
otherwise issuable upon such conversion or exchange.
(c) Such conversion or exchange shall be deemed to have been
effected immediately prior to the close of business on the date on which such
notice and such payment, if required, shall have been received in proper order
for conversion or exchange by the Company and such Security shall have been
surrendered as aforesaid and at such time the rights of the Holder of such
Security as such Security Holder shall cease and the person or persons in whose
name or names any certificate or certificates for Equity Securities of the
Company shall be issuable upon such conversion or exchange shall be deemed to
have become the Holder or Holders of record of the Equity Securities represented
thereby. Except as set forth above and subject to paragraph (d) of Section 3.7,
no payment or adjustment shall be made upon any conversion or exchange on
account of any interest accrued on the Securities surrendered for conversion or
exchange, or on account of any dividends on the Equity Securities of the Company
issued upon such conversion or exchange if the record date for the payment of
such dividends occurs prior to or on the date on which such conversion or
exchange shall be deemed to have been effected.
In the case of any Security which is converted or exchanged in
part only, upon such conversion or exchange the Company shall execute and the
Trustee shall authenticate and deliver to or on the order of the Holder thereof,
at the expense of the Company, a new Security or Securities of the same series,
of authorized denominations, in aggregate principal amount equal to the
unconverted or unexchanged portion of such Security.
Section 14.3. No Fractional Equity Securities . No fractional
Equity Security of the Company shall be issued upon conversions or exchanges of
Securities of any series. If more than one Security shall be surrendered for
conversion or exchange at one time by the same Holder, the number of full shares
of the Equity Security which shall be issuable upon conversion or exchange shall
be computed on the basis of the aggregate principal amount of the Securities (or
specified portions thereof to the extent permitted hereby) so surrendered. If,
except for the provisions of this Section 14.3, any Holder of a Security or
Securities would be entitled to a fractional share of any Equity Security of the
Company upon the conversion or exchange of such Security or Securities, or
specified portions thereof, the Company shall pay to such Holder an amount in
cash equal to the current market value of such fractional share computed, (i) if
such Equity Security is listed or admitted to unlisted trading privileges on a
national securities exchange, on the basis of the last reported sale price
regular way on the principal exchange where such Equity Security is listed or
admitted, on the last trading day prior to the date of
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conversion or exchange upon which such a sale shall have been effected, (ii) if
such Equity Security is not at the time so listed or admitted on a national
securities exchange but is quoted on the National Market System of the National
Association of Securities Dealers, Inc. ("NASDAQ"), on the basis of the average
of the last bid and asked prices of such Equity Security on NASDAQ on the last
trading day prior to the date of conversion or exchange, (iii) if such Equity
Security is not at the time so listed or admitted to unlisted trading privileges
on a national securities exchange or quoted on NASDAQ, on the basis of the
average of the last bid and asked prices of such Equity Security in the
over-the-counter market, on the last trading day prior to the date of conversion
or exchange, as reported by the National Quotation Bureau Incorporated or
similar organization if the National Quotation Bureau Incorporated is no longer
reporting such information, or (iv) in accordance with the terms of the
supplemental indenture or Board Resolutions setting the terms of the Securities
of such series. For purposes of this Section, "trading day" shall mean each
Monday, Tuesday, Wednesday, Thursday and Friday other than any day on which the
applicable Equity Security is not traded or quoted on a national securities
exchange, or if the applicable Equity Security is not traded or quoted on a
national securities exchange, on NASDAQ or the principal exchange or market on
which the applicable Equity Security is traded or quoted.
Section 14.4. Adjustment of Conversion or Exchange Price;
Consolidation or Merger . The conversion or exchange price of Securities of any
series that is convertible or exchangeable into an Equity Security of the
Company shall be adjusted for any stock dividends, stock splits,
reclassifications, combinations or similar transactions, and the securities,
assets or other property into or for which such Securities may be converted or
exchanged as a result of any consolidation, merger, combination or similar
transaction shall be determined, in accordance with the terms of the
supplemental indenture or Board Resolutions setting the terms of the Securities
of such series.
Whenever the conversion or exchange price is adjusted, the
Company shall compute the adjusted conversion or exchange price in accordance
with the terms of the applicable Board Resolution or supplemental indenture and
shall prepare an Officers' Certificate setting forth the adjusted conversion or
exchange price and showing in reasonable detail the facts upon which such
adjustment is based. Whenever the securities, assets or other property into or
for which Securities of any series may be converted or exchanged are changed as
a result of any consolidation, merger or similar transaction, the Company shall
determine the nature and amount of such securities, assets or other property in
accordance with the terms of the applicable Board Resolution or supplemental
indenture and shall prepare an Officer's Certificate describing such securities,
assets or other property and stating the amount of such securities, assets or
other property into or for which such Securities have become convertible or
exchangeable. Such certificates shall forthwith be filed at each office or
agency maintained for the purpose of conversion or exchange of Securities
pursuant to Section 9.2 and, if different, with the Trustee. The
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Company shall forthwith cause a notice setting forth the adjusted conversion or
exchange price or describing such securities, assets or other property, as
applicable, to be mailed, first class postage prepaid, to each Holder of
Registered Securities of such series at its address appearing on the Register
and to any conversion or exchange agent other than the Trustee and shall give
notice to Holders of Bearer Securities as provided in Section 1.6.
Section 14.5. Notice of Certain Corporate Actions . If any
series of Securities which are directly or indirectly convertible or
exchangeable for any Equity Securities are Outstanding, in case:
(a) the Company shall declare a dividend (or any
other distribution) on any class of such Equity Securities
payable otherwise than in cash out of its retained earnings;
or
(b) the Company shall authorize the granting to the
holders of any class of such Equity Securities of rights,
options or warrants to subscribe for or purchase any shares of
capital stock of any class or of any other rights; or
(c) of any reclassification of any class of such
Equity Securities, or of the sale of all or substantially all
of the assets of the Company; or
(d) of the voluntary or involuntary dissolution,
liquidation or winding up of the Company;
then the Company shall cause to be filed with the Trustee, and shall cause to be
mailed to all Holders at their addresses as they shall appear in the Register
and shall give notice to Holders of Bearer Securities as provided in Section
1.6, at least 15 days (or 10 days in any case specified in clause (a) or (b)
above) prior to the applicable record date hereinafter specified, a notice
stating (i) the date on which a record is to be taken for the purpose of such
dividend, distribution, rights, options or warrants, or, if a record is not to
be taken, the date as of which the Holders of such Equity Securities of record
to be entitled to such dividend, distribution, rights, options or warrants are
to be determined, or (ii) the date on which such reclassification,
consolidation, merger, share exchange, sale, dissolution, liquidation or winding
up is expected to become effective, and the date as of which it is expected that
holders of such Equity Securities of record shall be entitled to exchange such
Equity Securities for securities, cash or other property deliverable upon such
reclassification, consolidation, merger, share exchange, sale, dissolution,
liquidation or winding up. If at any time the Trustee shall not be the
conversion or exchange agent, a copy of such notice shall also forthwith be
filed by the Company with the Trustee.
Section 14.6. Reservation of Equity Securities . The Company
shall at all times reserve and keep available, free from preemptive rights, out
of its authorized but unissued Equity Securities, for the purpose of effecting
the conversion or exchange of
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Securities, the full number of Equity Securities of the Company then issuable
upon the conversion or exchange of all Outstanding Securities of any series that
has conversion or exchange rights.
Section 14.7. Payment of Certain Taxes Upon Conversion or
Exchange . The Company will pay any and all taxes that may be payable in respect
of the issue or delivery of its Equity Securities on conversion or exchange of
Securities pursuant hereto. The Company shall not, however, be required to pay
any tax which may be payable in respect of any transfer involved in the issue
and delivery of its Equity Securities in a name other than that of the Holder of
the Security or Securities to be converted or exchanged, and no such issue or
delivery shall be made unless and until the Person requesting such issue has
paid to the Company the amount of any such tax, or has established, to the
satisfaction of the Company, that such tax has been paid.
Section 14.8. Duties of Trustee Regarding Conversion or
Exchange . Neither the Trustee nor any conversion or exchange agent shall at any
time be under any duty or responsibility to any Holder of Securities of any
series that is convertible or exchangeable into Equity Securities of the Company
to determine whether any facts exist which may require any adjustment of the
conversion or exchange price, or with respect to the nature or extent of any
such adjustment when made, or with respect to the method employed, whether
herein or in any supplemental indenture, any resolutions of the Board of
Directors or written instrument executed by one or more officers of the Company
provided to be employed in making the same. Neither the Trustee nor any
conversion or exchange agent shall be accountable with respect to the validity
or value (or the kind or amount) of any Equity Securities of the Company, or of
any securities or property, which may at any time be issued or delivered upon
the conversion or exchange of any Securities and neither the Trustee nor any
conversion or exchange agent makes any representation with respect thereto.
Subject to the provisions of Section 6.1, neither the Trustee nor any conversion
or exchange agent shall be responsible for any failure of the Company to issue,
transfer or deliver any of its Equity Securities or stock certificates or other
securities or property upon the surrender of any Security for the purpose of
conversion or exchange or to comply with any of the covenants of the Company
contained in this Article 14 or in the applicable supplemental indenture,
resolutions of the Board of Directors or written instrument executed by one or
more duly authorized officers of the Company.
Section 14.9. Repayment of Certain Funds Upon Conversion or
Exchange . Any funds which at any time have been deposited by the Company or on
its behalf with the Trustee or any Paying Agent for the purpose of paying the
principal of, and premium, if any, and interest, if any, on any of the
Securities (including funds deposited for any sinking fund referred to in
Article 12 hereof) and which shall not be required for such purposes because of
the conversion or exchange of such Securities as
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provided in this Article 14 shall after such conversion or exchange be repaid to
the Company by the Trustee upon the Company's written request by Company
Request.
ARTICLE 15
SUBORDINATION OF SECURITIES
Section 15.1. Securities Subordinate to Senior Debt . The
Company covenants and agrees, and each Holder of a Security, by his acceptance
thereof, likewise covenants and agrees, that, to the extent and in the manner
hereinafter set forth in this Article (subject to the provisions of Article 4),
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.
Section 15.2. Payment Over of Proceeds Upon Dissolution, Etc.
In the event of (a) any insolvency or bankruptcy case or proceeding, or any
receivership, liquidation, reorganization or other similar case or proceeding in
connection therewith, relative to the Company or to its creditors, as such, or
to its assets, or (b) any liquidation, dissolution or other winding up of the
Company, whether voluntary or involuntary and whether or not involving
insolvency or bankruptcy, or (c) any assignment for the benefit of creditors or
any other 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, before the Holders of
the Securities are entitled to receive any payment or distribution of any kind
or character from the Company, whether in cash, property or securities
(including any payment or distribution which may be payable or deliverable by
reason of the payment of any other Debt of the Company subordinated to the
payment of the Securities on account of principal of (or premium, if any) or
interest on or other obligations in respect of the Securities or on account of
any purchase or other acquisition of Securities by the Company or 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.
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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 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 with, or the merger of the
Company with another Person or the liquidation or dissolution of the Company
following the conveyance or transfer of all or substantially all of its
properties and assets as an entirety to another Person upon the terms and
conditions set forth in Article 7 shall not be deemed a Proceeding for the
purposes of this Section if the Person formed by such consolidation or with
which the Company merges or the Person which acquires by conveyance or transfer
such properties and assets as an entirety, as the case may be, shall, as a part
of such consolidation, merger, conveyance or transfer, comply with the
conditions set forth in Article 7.
Section 15.3. No Payment When Senior Debt in Default . In the
event that any Senior Payment Default (as defined below) shall have occurred and
be continuing, then no Company Securities Payment shall be made unless and until
such 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. "Senior Payment Default" means (i) any default in the payment of
principal of (or premium, if any) or interest on any Senior Debt of the Company
and (ii) any event of default with respect to Senior Debt of the Company which
has resulted in such Senior Debt becoming or being declared due and payable
prior to the date on which it would otherwise have become due and payable.
In the event that any 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 Senior Nonmonetary Default
from any holder of Senior Debt of the Company with a principal amount in excess
of $50,000,000, no Company Securities Payment shall be made during the period
(the "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 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 Senior
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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 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 Payment Blockage Period shall be, or be made, the basis for the
commencement of a subsequent 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 Senior Nonmonetary Default shall have been cured for
a period of not less than 90 consecutive days. "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 Senior
Payment Default.
In the event that, notwithstanding the foregoing, the Company
shall make any Company Securities Payment to the Trustee or any Holder
prohibited by the foregoing provisions of this Section, then and in such event
such Company Securities Payment shall be paid over and delivered forthwith to
the holders of the Senior Debt of the Company.
The provisions of this Section shall not apply to any Company
Securities Payment with respect to which Section 15.2 would be applicable.
Section 15.4. Certain Payments Permitted . Nothing contained
in this Article or elsewhere in this Indenture or in any of the Securities shall
prevent the Company, at any time except during the pendency of any Proceeding
referred to in Section 15.2 or under the conditions described in Section 15.3,
from making Company Securities Payments.
Section 15.5. Subrogation to Rights of Holders of Senior Debt
. Subject to the payment in full in cash of all amounts due or to become due on
or in respect of Senior Debt of the Company or the provision for such payment in
cash or cash equivalents or otherwise in a manner satisfactory to the holders of
such Senior Debt, the Holders of the Securities shall be subrogated to the
rights of the holders of such Senior Debt to receive payments and distributions
of cash, property and securities applicable to such Senior Debt until the
principal of (and premium, if any) and interest on the Securities shall be paid
in full. For purposes of such subrogation, no payments or distributions to the
holders of the Senior Debt of the Company of any cash, property or securities to
which the Holders of the Securities or the Trustee would be entitled except
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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 by
Holders of the Securities or the Trustee, shall, as among the Company, 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 to or on account of the
Senior Debt of the Company.
Section 15.6. Provisions Solely to Define Relative Rights .
The provisions of this Article are and are intended solely for the purpose of
defining the relative rights of the Holders on the one hand and the holders of
Senior Debt on the other hand. Nothing contained in this Article or elsewhere in
this Indenture or in the Securities is intended to or shall (a) impair, as among
the Company, its creditors other than holders of Senior Debt and the Holders of
the Securities the obligation of the Company which is absolute and unconditional
(and which, subject to the rights under this Article of the holders of Senior
Debt, is intended to rank equally with all other general obligations of the
Company), to pay to the Holders of the Securities the principal of (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 of the Holders of the Securities and creditors of the
Company other than the holders of Senior Debt; or (c) prevent the Trustee or the
Holder of any Security from exercising all remedies otherwise permitted by
applicable law upon default under this Indenture, subject to the rights, if any,
under this Article of the holders of Senior Debt to receive cash, property and
securities otherwise payable or deliverable to the Trustee or such Holder.
Section 15.7. Trustee to Effectuate Subordination . Each
Holder of a Security by his acceptance thereof authorizes and directs the
Trustee on his behalf to take such action as may be necessary or appropriate to
effectuate the subordination provided in this Article and appoints the Trustee
his attorney-in-fact for any and all such purposes.
Section 15.8. No Waiver of Subordination Provisions . No right
of any present or future holder of any Senior Debt to enforce subordination as
herein provided shall at any time in any way be prejudiced or impaired by any
act or failure to act on the part of the Company or by any act or failure to
act, in good faith, by any such holder, or by any noncompliance by the Company
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,
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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 and any other Person.
Section 15.9. Notice to Trustee . The Company shall give
prompt written notice to the Trustee of any fact known to the Company which
would prohibit the making of any payment to or by the Trustee in respect of the
Securities. Notwithstanding the provisions of this Article or any other
provision of this Indenture, the Trustee shall not be charged with knowledge of
the existence of any facts which would prohibit the making of any payment to or
by the Trustee in respect of the Securities, unless and until the Trustee shall
have received written notice thereof from the Company or a holder of Senior Debt
or from any trustee therefor; and, prior to the receipt of any such written
notice, the Trustee, subject to the provisions of Section 6.1, shall be entitled
in all respects to assume that no such facts exist, provided that nothing in
this Section 15.9 shall impair the subordination provisions of this Article
Fifteen.
Subject to the provisions of Section 6.1, the Trustee shall be
entitled to rely on the delivery to it of a written notice by a Person
representing himself to be a holder of Senior Debt (or a trustee, representative
or agent therefor) to establish that such notice has been given by a holder of
Senior Debt (or a trustee, representative or agent therefor). In the event that
the Trustee determines in good faith that further evidence is required with
respect to the right of any Person as a holder of Senior Debt to participate in
any payment or distribution pursuant to this Article, the Trustee may request
such Person to furnish evidence to the reasonable satisfaction of the Trustee as
to the amount of Senior Debt held by such Person, the extent to which such
Person is entitled to participate in such payment or distribution and any other
facts pertinent to the rights of such Person under this Article, and if such
evidence is not furnished, the Trustee may defer any payment to such Person
pending judicial determination as to the right of such Person to receive such
payment.
Section 15.10. Reliance on Judicial Order or Certificate of
Liquidating Agent . Upon any payment or distribution of assets or securities of
the Company referred to in this Article, the Trustee, subject to the provisions
of Section 6.1, and the Holders of the Securities shall be entitled to rely upon
any order or decree entered by any court of competent jurisdiction in which such
proceeding is pending, or a certificate of the trustee in bankruptcy, receiver,
liquidating trustee, custodian, assignee for the benefit of creditors, agent or
other Person making such payment or distribution, delivered to the Trustee or to
the Holders of Securities, for the purpose of ascertaining the Persons entitled
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to participate in such payment or distribution, the holders of the Senior Debt
and other indebtedness of the Company, the amount thereof or payable thereon,
the amount or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article.
Section 15.11. Trustee Not Fiduciary for Holders of Senior
Debt . The Trustee shall not be deemed to owe any fiduciary duty to the holders
of Senior Debt and shall not be liable to any such holders if it shall in good
faith mistakenly pay over or distribute to Holders of Securities or to the
Company or to any other Person cash, property or securities to which any holders
of Senior Debt shall be entitled by virtue of this Article or otherwise.
Section 15.12. Rights of Trustee as Holder of Senior Debt;
Preservation of Trustee's Rights . The Trustee in its individual capacity shall
be entitled to all the rights set forth in this Article with respect to any
Senior Debt which may at any time be held by it, to the same extent as any other
holder of Senior Debt, and nothing in this Indenture shall deprive the Trustee
of any of its rights as such holder.
Nothing in this Article shall apply to claims of, or payments
to, the Trustee under or pursuant to Section 6.7.
Section 15.13. Article Applicable to Paying Agents . In case
at any time any Paying Agent other than the Trustee shall have been appointed by
the Company and be then acting hereunder, the term "Trustee" as used in this
Article shall in such case (unless the context otherwise requires) be construed
as extending to and including such Paying Agent within its meaning as fully for
all intents and purposes as if such Paying Agent were named in this Article in
addition to or in place of the Trustee; provided, however, that Section 15.12
shall not apply to the Company or any Affiliate of the Company if it or such
Affiliate acts as Paying Agent.
Section 15.14. Defeasance of this Article 15 . The
subordination of the Securities provided by this Article 15 is expressly made
subject to the provisions for defeasance or covenant defeasance in Article 4
and, anything herein to the contrary notwithstanding, upon the effectiveness of
any such defeasance or covenant defeasance, the Securities then Outstanding
relating thereto shall thereupon cease to be subordinated pursuant to this
Article 15.
ARTICLE 16
JURISDICTION AND CONSENT TO SERVICE OF PROCESS
Section 16.1. Jurisdiction and Consent to Service of Process .
(a) The Company 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
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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, this Indenture, or for recognition or enforcement of any judgment,
and the Company 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. The
Company agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by law. Nothing in this Article 16 shall affect any
right that any Holder or the Trustee may otherwise have to bring any action or
proceeding relating to the Securities, this Indenture against the Company or its
properties in the courts of any jurisdiction.
(b) The Company 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, this Indenture in any
New York State or Federal court. The Company 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) The Company irrevocably consents to service of process in
the manner provided for notices in Section 1.5. Nothing in this Agreement will
affect the right of any Holder or the Trustee to serve process in any other
manner permitted by law.
__________________
This instrument may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
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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 INDUSTRIES, INC.
By: ____________________________
Name:
Title:
Attest:
_______________________________
Name:
Title:
FIRST TRUST NATIONAL
ASSOCIATION
By: ___________________________
Name:
Title:
Attest:
_______________________________
Name:
Title:
-96-
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FFHS&J Draft
8/8/97
======================================================
ALLIED WASTE NORTH AMERICA, INC., as Issuer
and
THE GUARANTORS NAMED HEREIN, as Guarantors
to
FIRST TRUST NATIONAL ASSOCIATION, as Trustee
SENIOR INDENTURE
Dated as of _________________, 1997
Providing for Issuance of
Senior Subordinated Debt Securities in Series
======================================================
<PAGE> 2
Reconciliation and tie between Senior Subordinated Indenture,
dated as of _____________, 1997 (the "Indenture") and the Trust Indenture Act of
1939, as amended.
<TABLE>
<CAPTION>
Trust Indenture Act Indenture
of 1939 Section Section
- -----------------------------------------
<S> <C>
310(a)(1)..................................6.9
(a)(2) ...............................6.9
(a)(3) ...............................TIA
(a)(4).................... Not Applicable
(a)(5)................................TIA
(b)........................6.8; 6.10; TIA
311(a).....................................TIA
(b)...................................TIA
312(a)....................................10.1
(b)...................................TIA
(c)...................................TIA
313(a)...............................10.3; TIA
(b)...................................TIA
(c)...................................TIA
(d)...................................TIA
314(a)...............................10.4; TIA
(b)........................Not Applicable
(c)(1)................................1.2
(c)(2)................................1.2
(c)(3).....................Not Applicable
(d)........................Not Applicable
(e)...................................TIA
(f)...................................TIA
315(a).....................................6.1
(b)...................................6.2
(c)...................................6.1
(d)(1)................................TIA
(d)(2)................................TIA
(d)(3)................................TIA
(e)...................................TIA
316(a)(last sentence)......................1.1
(a)(1)(A)........................5.2; 5.8
</TABLE>
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<TABLE>
<CAPTION>
Trust Indenture Act Indenture
of 1939 Section Section
- ------------------------------------------------
<S> <C>
(a)(1)(B)...............................5.7
(b)...............................5.9; 5.10
(c).....................................TIA
317(a)(1)....................................5.3
(a)(2)..................................5.4
(b).....................................9.3
318(a)......................................1.12
(b).....................................TIA
(c)...............................1.12; TIA
</TABLE>
This reconciliation and tie section does not constitute part of the Indenture.
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TABLE OF CONTENTS
<TABLE>
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Recitals ....................................................................................................................1
ARTICLE 1 Definitions and Other Provisions of General Application.......................................................1
Section 1.1. Definitions ...................................................................................1
Section 1.2. Compliance Certificates and Opinions..........................................................13
Section 1.3. Form of Documents Delivered to Trustee........................................................14
Section 1.4. Acts of Holders...............................................................................15
Section 1.5. Notices, Etc., to Trustee, Company and Guarantors.............................................17
Section 1.6. Notice to Holders; Waiver.....................................................................17
Section 1.7. Headings and Table of Contents................................................................18
Section 1.8. Successor and Assigns.........................................................................18
Section 1.9. Separability .................................................................................19
Section 1.10. Benefits of Indenture.........................................................................19
Section 1.11. Incorporators, Officers and Directors of the Company Exempt from Individual Liability.........19
Section 1.12. Governing Law; Conflict with Trust Indenture Act..............................................19
Section 1.13. Legal Holidays ...............................................................................20
Section 1.14. Moneys of Different Currencies to Be Segregated...............................................20
Section 1.15. Independence of Covenants.....................................................................20
Section 1.16. Counterparts .................................................................................20
ARTICLE 2 Security and Senior Guarantee Forms..........................................................................20
Section 2.1. Forms Generally ..............................................................................20
Section 2.2. Form of Trustee's Certificate of Authentication...............................................21
Section 2.3 Form of Senior Guarantee......................................................................21
Section 2.4. Securities in Global Form.....................................................................26
Section 2.5. Form of Legend for Securities in Global Form..................................................27
ARTICLE 3 The Securities...............................................................................................27
Section 3.1. Amount Unlimited; Issuable in Series..........................................................27
Section 3.2. Denominations ................................................................................32
Section 3.3. Execution, Authentication, Delivery and Dating................................................32
Section 3.4. Temporary Securities..........................................................................36
Section 3.5. Registration, Transfer and Exchange...........................................................37
</TABLE>
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<TABLE>
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Section 3.6. Replacement Securities........................................................................42
Section 3.7. Payment of Interest; Interest Rights Preserved................................................43
Section 3.8. Persons Deemed Owners.........................................................................46
Section 3.9. Cancellation .................................................................................47
Section 3.10. Computation of Interest......................................................................47
Section 3.11. CUSIP Numbers ...............................................................................47
Section 3.12. Currency and Manner of Payment in Respect of Securities......................................47
ARTICLE 4 Satisfaction, Discharge and Defeasance.......................................................................48
Section 4.1. Termination of Company's Obligations Under the Indenture......................................48
Section 4.2. Application of Trust Funds....................................................................49
Section 4.3. Applicability of Defeasance Provisions; Company's Option to Effect Defeasance or Covenant
Defeasance....................................................................................50
Section 4.4. Defeasance and Discharge......................................................................50
Section 4.5. Covenant Defeasance...........................................................................51
Section 4.6. Conditions to Defeasance or Covenant Defeasance...............................................51
Section 4.7. Deposited Money and Government Obligations to Be Held in Trust................................53
Section 4.8. Repayment to Company..........................................................................54
Section 4.9. Indemnity for Government Obligations..........................................................54
Section 4.10. Reinstatement ................................................................................54
ARTICLE 5 Defaults and Remedies........................................................................................55
Section 5.1. Events of Default ............................................................................55
Section 5.2. Acceleration; Rescission and Annulment........................................................57
Section 5.3. Collection of Indebtedness and Suits for Enforcement by Trustee...............................58
Section 5.4. Trustee May File Proofs of Claim..............................................................59
Section 5.5. Trustee May Enforce Claims Without Possession of Securities...................................59
Section 5.6 Delay or Omission Not Waiver..................................................................60
Section 5.7. Waiver of Past Defaults.......................................................................60
Section 5.8. Control by Majority...........................................................................60
Section 5.9. Limitation on Suits by Holders................................................................60
Section 5.10. Rights of Holders to Receive Payment..........................................................61
Section 5.11. Application of Money Collected................................................................61
Section 5.12. Restoration of Rights and Remedies............................................................62
Section 5.13. Rights and Remedies Cumulative................................................................62
</TABLE>
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<TABLE>
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Section 5.14. Undertaking for Costs.........................................................................63
Section 5.15. Waiver of Stay, Extension or Usury Laws.......................................................63
ARTICLE 6 The Trustee..................................................................................................63
Section 6.1. Certain Duties and Responsibilities...........................................................63
Section 6.2. Notice of Defaults............................................................................64
Section 6.3. Certain Rights of Trustee.....................................................................64
Section 6.4. Not Responsible for Recitals or Issuance of Securities........................................65
Section 6.5. May Hold Securities...........................................................................65
Section 6.6. Money Held in Trust...........................................................................66
Section 6.7. Compensation and Reimbursement................................................................66
Section 6.8. Conflicting Interests.........................................................................66
Section 6.9. Corporate Trustee Required; Eligibility.......................................................67
Section 6.10. Resignation and Removal; Appointment of Successor.............................................67
Section 6.11. Acceptance of Appointment by Successor........................................................69
Section 6.12. Merger, Conversion, Consolidation or Succession to Business...................................70
Section 6.13. Preferential Collection of Claims Against Company.............................................70
Section 6.14. Appointment of Authenticating Agent...........................................................70
ARTICLE 7 Consolidation, Merger or Sale of Assets by the Company.......................................................72
Section 7.1. Consolidation, Merger or Sale of Assets Permitted.............................................72
ARTICLE 8 Supplemental Indentures......................................................................................73
Section 8.1. Supplemental Indentures Without Consent of Holders............................................73
Section 8.2. Supplemental Indentures With Consent of Holders...............................................75
Section 8.3. Compliance with Trust Indenture Act...........................................................76
Section 8.4. Execution of Supplemental Indentures..........................................................77
Section 8.5. Effect of Supplemental Indentures.............................................................77
Section 8.6. Reference in Securities to Supplemental Indentures............................................77
Section 8.7. Notice of Supplemental Indentures.............................................................77
ARTICLE 9 Covenants....................................................................................................78
Section 9.1. Payment of Principal, Premium, if any, and Interest...........................................78
Section 9.2. Maintenance of Office or Agency...............................................................78
Section 9.3. Money for Securities Payments to Be Held in Trust; Unclaimed Money............................79
Section 9.4. Corporate Existence...........................................................................81
Section 9.5. Annual Review Certificate.....................................................................81
</TABLE>
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<TABLE>
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Section 9.6. Waiver of Certain Covenants...................................................................81
ARTICLE 10 Holders' Lists and Reports by Trustee and Company............................................................82
Section 10.1. Company to Furnish Trustee Names and Addresses of Holders....................................82
Section 10.2. Preservation of Information, Communications to Holders.......................................82
Section 10.3. Reports by Trustee...........................................................................83
Section 10.4. Reports by the Company and the Guarantors....................................................83
ARTICLE 11 Redemption...................................................................................................84
Section 11.1. Applicability of Article.....................................................................84
Section 11.2. Election to Redeem; Notice to Trustee........................................................84
Section 11.3. Selection of Securities to Be Redeemed.......................................................84
Section 11.4. Notice of Redemption.........................................................................85
Section 11.5. Deposit of Redemption Price..................................................................86
Section 11.6. Securities Payable on Redemption Date........................................................86
Section 11.7. Securities Redeemed in Part..................................................................87
ARTICLE 12 Sinking Funds................................................................................................88
Section 12.1. Applicability of Article.....................................................................88
Section 12.2. Satisfaction of Sinking Fund Payments with Securities........................................88
Section 12.3. Redemption of Securities for Sinking Fund....................................................88
ARTICLE 13 Meetings of Holders of Securities............................................................................89
Section 13.1. Purposes for Which Meetings May Be Called....................................................89
Section 13.2. Call, Notice and Place of Meetings...........................................................89
Section 13.3. Persons Entitled to Vote at Meetings.........................................................90
Section 13.4. Quorum; Action 90
Section 13.5. Determination of Voting Rights; Conduct and Adjournment of Meetings..........................91
Section 13.6. Counting Votes and Recording Action of Meetings..............................................92
ARTICLE 14 Conversion or Exchange of Securities.........................................................................93
Section 14.1. Applicability of Article.....................................................................93
Section 14.2. Exercise of Conversion or Exchange Privilege.................................................93
Section 14.3. No Fractional Equity Securities..............................................................94
</TABLE>
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<TABLE>
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Section 14.4. Adjustment of Conversion or Exchange Price; Consolidation or Merger..........................95
Section 14.5. Notice of Certain Corporate Actions..........................................................96
Section 14.6. Reservation of Equity Securities.............................................................97
Section 14.7. Payment of Certain Taxes Upon Conversion or Exchange.........................................97
Section 14.8. Duties of Trustee Regarding Conversion or Exchange...........................................97
Section 14.9. Repayment of Certain Funds Upon Conversion or Exchange.......................................98
ARTICLE 15 Senior Guarantee.............................................................................................98
Section 15.1. Senior Guarantee ............................................................................98
Section 15.2. Execution and Delivery of Senior Guarantees.................................................101
Section 15.3. Subsidiary Guarantors May Consolidate, Etc., on Certain Terms...............................102
Section 15.4. Release of Guarantors.......................................................................102
Section 15.5. Additional Guarantors.......................................................................102
ARTICLE 16 Jurisdiction and Consent to Service of Process..............................................103
SECTION 16.1 Jurisdiction and Consent to Service of Process..............................................103
</TABLE>
-v-
<PAGE> 9
SENIOR INDENTURE (the "Indenture"), dated as of ___________, 1997,
among ALLIED WASTE NORTH AMERICA, INC., a corporation duly organized and
existing under the laws of the State of Delaware (the "Company"), having its
principal office at 15880 North Greenway-Hayden Loop, Suite 100, Scottsdale,
Arizona 85260, each of the GUARANTORS (as hereinafter defined) and FIRST TRUST
NATIONAL ASSOCIATION, a national banking association, as Trustee (the
"Trustee").
RECITALS
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its secured or
unsecured unsubordinated debentures, notes or other evidences of indebtedness
("Securities") to be issued in one or more series as herein provided.
Allied (as defined herein) owns beneficially and of record 100% of the
Capital Stock of the Company; the Company, directly or indirectly, owns
beneficially and of record 100% of the Capital Stock or other ownership
interests, as the case may be, of each Subsidiary Guarantor; Allied, the Company
and the Subsidiary Guarantors are members of the same consolidated group of
companies and are engaged in related businesses and the Guarantors will derive
direct and indirect economic benefit from the issuance of the Securities.
Accordingly, each of the Guarantors has duly authorized the execution and
delivery of this Indenture to provide for its Senior Guarantees with respect to
the Securities as set forth in this Indenture.
All things necessary (i) to make the Securities, when executed by the
Company and authenticated and delivered hereunder and duly issued by the
Company, the valid obligations of the Company, (ii) to make the Senior
Guarantees of each of the Guarantors, when executed by the respective Guarantors
and endorsed on the Securities executed, authenticated and delivered hereunder,
the valid obligations of the respective Guarantors, and (iii) to make this
Indenture a valid agreement of the Company and of each of the Guarantors, all in
accordance with their respective terms, have been done.
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed as
follows for the equal and ratable benefit of the Holders of the Securities or of
any series thereof:
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.1. Definitions . (a) For all purposes of this Indenture,
except as otherwise expressly provided or unless the context otherwise requires:
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<PAGE> 10
(1) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the
singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles as in effect in the United States of America from
time to time; provided that when two or more principles are so
generally accepted, it shall mean that set of principles consistent
with those in use by the Company; and
(4) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not to
any particular Article, Section or other subdivision.
"Affiliate" of any specified Person means any Person directly
or indirectly controlling or controlled by, or under direct or indirect common
control with, such specified Person. For purposes of this definition, "control"
when used with respect to any specified Person means the power to direct the
management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
"Agent" means any Paying Agent or Registrar.
"Allied" means Allied Waste Industries, Inc., a Delaware
corporation.
"Allied Guarantee" means the unconditional guarantee, on a
senior basis, by Allied of the due and punctual payment of principal (premium,
if any) and interest on the Securities, as provided pursuant to Article 16.
"Allied Subsidiary Guarantee" means the unconditional
guarantee, on a senior basis, by allied of each of the Subsidiary Guarantor's
obligations under the Subsidiary Guarantees.
"Authenticating Agent" means any authenticating agent
appointed by the Trustee pursuant to Section 6.14.
"Authorized Newspaper" means a newspaper of general
circulation, in the official language of the country of publication or in the
English language, customarily published on each Business Day whether or not
published on Saturdays, Sundays or
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<PAGE> 11
holidays. Whenever successive publications in an Authorized Newspaper are
required hereunder they may be made (unless otherwise expressly provided herein)
on the same or different days of the week and in the same or different
Authorized Newspapers.
"Bearer Security" means any Security issued hereunder which is
payable to bearer.
"Board of Directors" means, with respect to the Company or any
Guarantor, either the board of directors of the Company or of such Guarantor, as
the case may be, or any duly authorized committee of that board. Except as
otherwise provided or unless the context otherwise requires, each reference
herein to the "Board of Directors" shall mean the Board of Directors of the
Company.
"Board Resolution" of the Company or any Guarantor means a
copy of a resolution certified by the Secretary or an Assistant Secretary of the
Company or such Guarantor, as the case may be, to have been duly adopted by its
Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee. Except as otherwise expressly
provided or unless the context otherwise requires, each reference herein to a
"Board Resolution" shall mean a Board Resolution of the Company.
"Business Day", when used with respect to any Place of Payment
or any other particular location referred to in this Indenture or in the
Securities, means, unless otherwise specified with respect to any Securities
pursuant to Section 3.1, each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which banking institutions in that Place of Payment or
particular location are authorized or obligated by law, regulation or executive
order to close.
"Capital Lease Obligation" of any Person means the obligation
to pay rent or other payment amounts under a lease of (or other arrangements
conveying the right to use) real or personal property by such Person which is
required to be classified and accounted for as a capital lease or a liability on
a balance sheet of such Person in accordance with generally accepted accounting
principles. The stated maturity of such obligation shall be the date of the last
payment of rent or any other amount due under such lease prior to the first date
upon which such lease may be terminated by the lessee without payment of a
penalty. The principal amount of such obligation shall be the capitalized amount
thereof that would appear on a balance sheet of such Person in accordance with
generally accepted accounting principles.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Securities Exchange Act of
1934, as amended, or, if at any time after the execution of this Indenture such
Commission is not existing
-3-
<PAGE> 12
and performing the duties now assigned to it under the Trust Indenture Act, then
the body performing such duties at such time.
"Company" means the Person named as the Company in the first
paragraph of this Indenture until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter means
such successor.
"Company Order" and "Company Request" mean, respectively, a
written order or request signed in the name of the Company by two Officers, one
of whom must be the Chairman of the Board, the President, the Chief Executive
Officer, the Chief Operating Officer, the Chief Financial Officer, a Vice
President, the Treasurer or the Secretary of the Company.
"consent", "waive" and "rescind", when used with respect to
the consent, waiver or rescission of or by the Holders of a specified percentage
in aggregate principal amount of Securities of any series, shall mean any of (i)
a favorable vote with respect to such consent, waiver or rescission, at any
meeting of Holders of Securities of such series duly called and held in
accordance with the provisions of Article 13, by the Holders of the applicable
percentage in aggregate principal amount of such Securities specified in the
second paragraph of Section 13.4; (ii) written consents, waivers or rescissions
of or by the Holders of such specified percentage in aggregate principal amount
of such Securities; and (iii) a combination of the favorable vote with respect
to such consent, waiver or rescission, at any meeting of Holders of Securities
of such series duly called and held in accordance with the provisions of Article
13, by the Holders of less than the applicable percentage in aggregate principal
amount of such Securities specified in the second paragraph of Section 13.4 and
written consents, waivers or rescissions of other Holders of such Securities,
where the sum of the percentage of such Holders so voting in favor and the
percentage of such Holders signing such written consents, waivers or rescissions
is equal to at least such specified percentage.
"Corporate Trust Office" means an office of the Trustee in New
York, New York at which at any particular time its corporate trust business
shall be administered, which office at the date hereof is located at 100 Wall
Street, 20th Floor, New York, New York 10005, Attention: Corporate Trust
Administration.
"currency unit" for all purposes of this Indenture shall
include any composite currency, including, without limitation, ECU.
"Debt" means (without duplication), with respect to any
Person, whether recourse is to all or a portion of the assets of such Person,
(i) every obligation of such Person for money borrowed, (ii) every obligation of
such Person evidenced by bonds, debentures, notes or other similar instruments,
including obligations Incurred in
-4-
<PAGE> 13
connection with the acquisition of property, assets or businesses, (iii) every
reimbursement obligation of such Person with respect to letters of credit,
bankers' acceptances or similar facilities issued for the account of such
Person, (iv) every obligation of such Person issued or assumed as the deferred
purchase price of property or services (but excluding trade accounts payable or
accrued liabilities arising in the ordinary course of business), (v) every
Capital Lease Obligation of such Person, (vi) the maximum fixed redemption or
repurchase price of Redeemable Interests of such Person at the time of
determination, (vii) every net payment obligation of such Person under interest
rate swap or similar agreements or foreign currency hedge, exchange or similar
agreements at the time of determination and (viii) every obligation of the type
referred to in Clauses (i) through (vii) of another Person and all dividends of
another Person the payment of which, in either case, such Person has Guaranteed
or for which such Person is responsible or liable, directly or indirectly,
jointly or severally, as obligor, Guarantor or otherwise.
"Default" means, with respect to securities of any series, any
event which is, or after notice or passage of time, or both, would be, an Event
of Default with respect to Securities of such Series.
"Depositary", when used with respect to the Securities of or
within any series issuable or issued in whole or in part in global form, means
the Person designated as Depositary by the Company pursuant to Section 3.1(b)
until a successor Depositary shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter shall mean or include each Person
which is then a Depositary hereunder, and if at any time there is more than one
such Person, shall be a collective reference to such Persons.
"Dollar" means the currency of the United States that at the
time of payment is legal tender for the payment of public and private debts.
"ECU" means the European Currency Unit as defined and revised
from time to time by the Council of the European Communities.
"European Monetary System" means the European Monetary System
established by the Resolution of December 5, 1978 of the Council of the European
Communities.
"Exchange Rate Certificate" means a certificate, signed by a
Responsible Officer of the Trustee, setting forth (i) the applicable Market
Exchange Rate or the applicable bid quotation and (ii) the Dollar amount of
principal (and premium, if any) and interest, if any (on an aggregate basis and
on the basis of a Security having the lowest denomination principal amount in
the relevant currency or currency unit), that would be
-5-
<PAGE> 14
payable with respect to a Security of the applicable series on the basis of such
Market Exchange Rate or the applicable bid quotation.
"Foreign Currency" means any currency issued by the government
of one or more countries other than the United States or by any recognized
confederation or association of such governments.
"Government Obligations" means securities that are (x) direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged or (y) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America the payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America, which, in either case (x) or
(y), are not callable or redeemable at the option of the issuer thereof, and
shall also include a depository receipt issued by a bank (as defined in Section
3(a)(2) of the Securities Act of 1933, as amended) as custodian with respect to
any such Government Obligation or a specific payment of principal of or interest
on any such Government Obligation held by such custodian for the account of the
holder of such depository receipt, provided that (except as required by law)
such custodian is not authorized to make any deduction from the amount payable
to the holder of such depository receipt from any amount received by the
custodian in respect of the Government Obligation or the specific payment of
principal of or interest on the Government Obligation evidenced by such
depository receipt.
"Guarantors" means Allied and the Subsidiary Guarantors.
"Guaranty" or "Guarantee" by any Person means any obligation,
contingent or otherwise, of such Person guaranteeing any Debt, or dividends or
distributions on any equity security, of any other Person (the "primary
obligor") in any manner, whether directly or indirectly, and including, without
limitation, any obligation of such Person (i) to purchase or pay (or advance or
supply funds for the purchase or payment of) such Debt or to purchase (or to
advance or supply funds for the purchase of) any security for the payment of
such Debt, (ii) to purchase property, securities or services for the purpose of
assuring the holder of such Debt of the payment of such Debt or (iii) to
maintain working capital, equity capital or other financial statement condition
or liquidity of the primary obligor so as to enable the primary obligor to pay
such Debt (and "Guaranteed", "Guaranteeing" and "Guarantor" shall have meanings
correlative to the foregoing); provided, however, that the Guaranty by any
Person shall not include endorsements by such Person for collection or deposit,
in either case, in the ordinary course of business.
"Holder" means, with respect to a Bearer Security, a bearer
thereof or of an interest coupon appertaining thereto and, with respect to a
Registered Security, a Person in whose name a Security is registered on the
Register.
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"Incur" means, with respect to any Debt of any Person, to
create, issue, incur (by conversion, exchange or otherwise), assume, Guarantee
or otherwise become liable in respect of such Debt, or the taking of any other
action which would cause such Debt, in accordance with generally accepted
accounting principles to be recorded on the balance sheet of such Person (and
"Incurrence", "Incurred", "Incurrable" and "Incurring" shall have meanings
correlative to the foregoing), provided that, the Debt of any other Person
becoming a Restricted Subsidiary of such Person will be deemed for this purpose
to have been Incurred by such Person at the time such other Person becomes a
Restricted Subsidiary of such Person; provided, further, that a change in
generally accepted accounting principles that results in an obligation of such
Person that exists at such time becoming Debt shall not be deemed an Incurrence
of such Debt.
"Indenture" means this instrument as originally executed and
as it may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
including, for all purposes of this instrument and any such supplemental
indenture, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this instrument and any such supplemental indenture,
respectively. The term "Indenture" shall also include the terms of particular
series of Securities established as contemplated by Section 3.1.
"Indexed Security" means a Security the terms of which provide
that the principal amount thereof payable at Stated Maturity is based, at least
in part, upon the performance or value of a specified market index, reference
security or other variable and may be more or less than the principal face
amount thereof at original issuance.
"interest", when used with respect to an Original Issue
Discount Security which by its terms bears interest only after Maturity, means
interest payable after Maturity and, when used with respect to any other
Security, means the interest payable thereon in accordance with its terms.
"Interest Payment Date", when used with respect to any
Security, means the Stated Maturity of an installment of interest on such
Security.
"Lien" means, with respect to any property or assets, any
mortgage or deed of trust, pledge, hypothecation, assignment, deposit
arrangement, security interest, lien, charge, easement or title exception,
encumbrance, preference, priority or other security agreement or preferential
arrangement of any kind or nature whatsoever on or with respect to such property
or assets (including any conditional sale or other title retention agreement
having substantially the same economic effect as any of the foregoing).
"Market Exchange Rate" means, unless otherwise specified with
respect to any Securities pursuant to Section 3.1, (i) for a conversion of any
currency unit into
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<PAGE> 16
Dollars, the exchange rate between the relevant currency unit and Dollars
calculated by the method specified pursuant to Section 3.1 for the Securities of
the relevant series, and (ii) for a conversion of any Foreign Currency into
Dollars, the applicable exchange rate between such Foreign Currency and Dollars
set forth under the heading, "Currency Trading -- Exchange Rates" in the "Money
& Investing" section of The Wall Street Journal (or in such other section of The
Wall Street Journal in which foreign currency exchange rates may be regularly
published from time to time) as of the most recent available date, in each case
as determined by the Trustee. Unless otherwise specified with respect to any
Securities pursuant to Section 3.1, in the event of the unavailability of any of
the exchange rates provided for in the foregoing clauses (i) and (ii), the
Trustee shall use the average of the quotations from at least three major banks
acceptable to the Company in The City of New York (which may include any such
bank acting as Trustee under this Indenture), or such other quotations as the
Trustee and the Company shall deem appropriate.
"Maturity", when used with respect to any Security, means the
date on which the principal of such Security or an installment of principal
becomes due and payable as therein or herein provided, whether at the Stated
Maturity or by declaration of acceleration, call for redemption or otherwise.
"Officer" means the Chairman of the Board, the President, the
Chief Executive Officer, the Chief Operating Officer, the Chief Financial
Officer, any Vice President, the Treasurer, any Assistant Treasurer, the
Secretary or any Assistant Secretary of the Company.
"Officers' Certificate" of the Company or of any Guarantor
means a certificate signed by the Chairman of the Board, a Vice Chairman of the
Board, the President or a Vice President, and by the Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary, of the Company or such
Guarantor, as the case may be, and delivered to the Trustee. Unless the context
otherwise requires, each reference herein to an "Officers' Certificate" shall
mean an Officers' Certificate of the Company. References herein, or in any
Security or Senior Guarantee, to any officer of a Guarantor or other Person that
is a partnership shall mean such officer of the partnership or, if none, of a
general partner of the partnership authorized thereby to act on its behalf.
"Opinion of Counsel" means a written opinion from the general
counsel of the Company or other legal counsel who is reasonably acceptable to
the Trustee. Such counsel may be an employee of or counsel to the Company.
"Original Issue Discount Security" means any Security which
provides for an amount less than the stated principal amount thereof to be due
and payable upon declaration of acceleration of the Maturity thereof pursuant to
Section 5.2.
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<PAGE> 17
"Outstanding", when used with respect to Securities, means, as
of the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities, or portions thereof, for whose payment or
redemption money in the necessary amount has been theretofore deposited with the
Trustee or any Paying Agent (other than the Company or any Guarantor) in trust
or set aside and segregated in trust by the Company or a Guarantor (if the
Company or a Guarantor, as the case may be, shall act as a Paying Agent) for the
Holders of such Securities and any interest coupons appertaining thereto,
provided that, if such Securities are to be redeemed, notice of such redemption
has been duly given pursuant to this Indenture or provisions therefor
satisfactory to the Trustee have been made;
(iii) Securities, except to the extent provided in Sections
4.4 and 4.5, with respect to which the Company has effected defeasance and/or
covenant defeasance as provided in Article 4; and
(iv) Securities which have been replaced or paid pursuant to
Section 3.6 or in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any such
Securities in respect of which there shall have been presented to the Trustee
proof satisfactory to it that such Securities are held by a bona fide purchaser
in whose hands such Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, or whether
sufficient funds are available for redemption or for any other purpose, and for
the purpose of making the calculations required by Section 313 of the Trust
Indenture Act, (w) the principal amount of any Original Issue Discount
Securities that may be counted in making such determination or calculation and
that shall be deemed to be Outstanding for such purpose shall be equal to the
amount of principal thereof that would be (or shall have been declared to be)
due and payable, at the time of such determination, upon a declaration of
acceleration of the Maturity thereof pursuant to Section 5.2, (x) the principal
amount of any Security denominated in a Foreign Currency that may be counted in
making such determination or calculation and that shall be deemed Outstanding
for such purpose shall be equal to the Dollar equivalent, determined as of the
date such Security is originally issued by the Company as set forth in an
Exchange Rate Certificate, of the principal amount (or, in the case of an
Original Issue Discount Security, the Dollar equivalent as of such date of
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<PAGE> 18
original issuance of the amount determined as provided in clause (w) above) of
such Security, (y) the principal amount of any Indexed Security that may be
counted in making such determination or calculation and that shall be deemed
Outstanding for such purpose shall be equal to the principal face amount of such
Indexed Security at original issuance, unless otherwise provided with respect to
such Security pursuant to Section 3.1, and (z) Securities owned by the Company,
any Guarantor or any other obligor upon the Securities or any Affiliate of the
Company, of any Guarantor or of such other obligor shall be disregarded and
deemed not to be Outstanding, except that, in determining whether the Trustee
shall be protected in making such calculation or in relying upon any such
request, demand, authorization, direction, notice, consent or waiver, only
Securities which the Trustee knows to be so owned shall be so disregarded.
Securities so owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Trustee the
pledgee's right so to act with respect to such Securities and that the pledgee
is not the Company, any Guarantor or any other obligor upon the Securities or
any Affiliate of the Company, of any Guarantor or of such other obligor.
"Paying Agent" means any Person authorized by the Company to
pay the principal of, premium, if any, interest, if any, and any other payments
due on any Securities on behalf of the Company.
"Periodic Offering" means an offering of Securities of a
series from time to time the specific terms of which Securities, including,
without limitation, the rate or rates of interest or formula or formulae for
determining the rate or rates of interest thereon, if any, the Maturity thereof,
the redemption provisions, if any, and any other terms specified as contemplated
by Section 3.1, with respect thereto, are to be determined by the Company upon
the issuance of such Securities.
"Person" means any individual, corporation, partnership, joint
venture, limited liability company, association, joint-stock company, trust,
other entity, unincorporated organization or government or any agency or
political subdivision thereof.
"Place of Payment", when used with respect to the Securities
of or within any series, means the place or places where the principal of,
premium, if any, interest and any other payments due on such Securities are
payable as specified as contemplated by Sections 3.1 and 9.2.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that evidenced
by such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 3.6 in exchange for or in
lieu of a mutilated, destroyed, lost or stolen
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<PAGE> 19
Security shall be deemed to evidence the same debt as the mutilated, destroyed,
lost or stolen Security.
"Redeemable Interest" of any Person means any equity security
of or other ownership interest in such Person that by its terms (or by the terms
of any security into which it is convertible or for which it is exchangeable) or
otherwise (including upon the occurrence of an event) matures or is required to
be redeemed (pursuant to any sinking fund obligation or otherwise) or is
convertible into or exchangeable for Debt or is redeemable at the option of the
holder thereof, in whole or in part, at any time prior to the final Stated
Maturity of the Securities.
"Redemption Date", when used with respect to any Security to
be redeemed, means the date fixed for such redemption pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to
be redeemed, in whole or in part, means the price at which it is to be redeemed
pursuant to this Indenture.
"Registered Security" means any Security issued hereunder and
registered as to principal and interest in the Register.
"Regular Record Date" for the interest payable on any Interest
Payment Date on the Securities of or within any series means the date specified
for that purpose as contemplated by Section 3.1.
"Responsible Officer", when used with respect to the Trustee,
shall mean any vice president, the secretary, any assistant secretary, the
treasurer, any assistant treasurer, any trust officer or assistant trust
officer, or any officer of the Trustee customarily performing functions similar
to those performed by any of the above designated officers and also shall mean,
with respect to a particular corporate trust matter, any officer to whom such
matter is referred because of his knowledge of and familiarity with the
particular subject.
"Restricted Subsidiary" means (i) at any date, a Subsidiary of
the Company that is not an Unrestricted Subsidiary as of such date and (ii) for
any period, a Subsidiary of the Company that for any portion of such period is
not an Unrestricted Subsidiary, provided that such term shall mean such
Subsidiary only for such portion of such period.
"Security" or "Securities" has the meaning stated in the first
recital of this Indenture and more particularly means a Security or Securities
of the Company issued, authenticated and delivered under this Indenture.
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<PAGE> 20
"Senior Guarantees" means the Allied Guarantee, the Subsidiary
Guarantees and the allied Subsidiary Guarantee .
"Special Record Date" for the payment of any Defaulted
Interest means a date fixed by the Trustee pursuant to Section 3.7.
"Stated Maturity", when used with respect to any Security or
any installment of principal thereof or interest thereon, means the date
specified in such Security or in an interest coupon representing such
installment of interest as the fixed date on which the principal of such
Security or such installment of principal or interest is due and payable.
"Subsidiary" of any Person means any Person of which at least
a majority of the outstanding voting securities having ordinary voting power for
the election of directors or other governing body, or other ownership interests
ordinarily constituting a majority voting interest, is owned or controlled,
directly or indirectly, by such Person or by one or more Subsidiaries of such
Person, or by such Person and one or more Subsidiaries of such Person.
"Subsidiary Guarantees" means the unconditional guarantees on
a senior basis by the respective Subsidiary Guarantors of the due and punctual
payment of principal, premium, if any, and interest on the Securities, as
provided pursuant to Article 16.
"Subsidiary Guarantors", as of any time, means each and all of
the Restricted Subsidiaries at such time, other than Reliant Insurance Company,
which Subsidiary Guarantors as of the date of this Indenture are set forth in
Schedule I hereto.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as
amended and as in effect on the date of this Indenture, except as provided in
Section 8.3; provided, however, that if the Trust Indenture Act of 1939 is
amended after such date, "Trust Indenture Act" means, to the extent required by
any such amendment, the Trust Indenture Act of 1939 as so amended.
"Trustee" means the party named as such in the first paragraph
of this Indenture until a successor Trustee replaces it pursuant to the
applicable provisions of this Indenture, and thereafter means such successor
Trustee and if, at any time, there is more than one Trustee, "Trustee" as used
with respect to the Securities of any series shall mean the Trustee with respect
to the Securities of that series.
"United States" means, unless otherwise specified with respect
to the Securities of any series as contemplated by Section 3.1, the United
States of America
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<PAGE> 21
(including the States thereof and the District of Columbia), its territories,
its possessions and other areas subject to its jurisdiction.
"Unrestricted Subsidiary", with respect to any series of
Securities, shall have the meaning established in accordance with Section 3.1(b)
with respect to such series of Securities.
"U.S. Person" means, unless otherwise specified with respect
to the Securities of any series as contemplated by Section 3.1, a citizen or
resident of the United States, a corporation, partnership or other entity
created or organized in or under the laws of the United States or any political
subdivision thereof, or an estate or trust, the income of which is subject to
United States federal income taxation regardless of its source.
"Vice President", when used with respect to the Company or any
Guarantor, means any Vice President of such Person whether or not designated by
a number or a word or words added before or after the title "Vice President."
(b) The following terms shall have the meanings specified in
the Sections referred to opposite such term below:
<TABLE>
<CAPTION>
Term Section
---- -------
<S> <C>
"Act" 1.4(a)
"Common Stock" 14.1(b)(i)
"covenant defeasance" 4.5
"Defaulted Interest" 3.7(b)
"defeasance" 4.4
"Equity Securities" 14.1(b)
"Event of Default" 5.1
"NASDAQ" 14.3
"Preferred Stock" 14.1(b)(ii)
"Register" 3.5
"Registrar" 3.5
</TABLE>
Section 1.2. Compliance Certificates and Opinions . Upon any
application or request by the Company to the Trustee to take any action under
any provision of this Indenture, the Company shall furnish to the Trustee such
certificates and opinions as may be required under the Trust Indenture Act
(including Section 314(c) of the Trust Indenture Act). Each such certificate or
opinion shall be given in the form of an Officers' Certificate, if to be given
by an officer or officers of the Company, or an Opinion of Counsel, if to be
given by counsel, and shall comply with the requirements of the Trust Indenture
Act and any other requirements set forth in this Indenture.
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<PAGE> 22
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than pursuant to
Section 2.4, the last paragraph of Section 3.3 and Section 9.5) shall include:
(a) a statement that each individual signing such certificate
or opinion has read such condition or covenant and the definitions herein
relating thereto;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions contained in
such certificate or opinion are based;
(c) a statement that, in the opinion of each such individual,
he or she has made such examination or investigation as is necessary to enable
him or her to express an informed opinion as to whether or not such condition or
covenant has been complied with; and
(d) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 1.3. Form of Documents Delivered to Trustee. In any
case where several matters are required to be certified by, or covered by an
opinion of, any specified Person, it is not necessary that all such matters be
certified by, or covered by the opinion of, only one such Person, or that they
be so certified or covered by only one document, but one such Person may certify
or give an opinion with respect to some matters and one or more other such
Persons as to other matters, and any such Person may certify or give an opinion
as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or opinion of,
or representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his or her certificate or opinion is
based are erroneous. Any such certificate or opinion or any Opinion of Counsel
may be based, insofar as it relates to factual matters, upon a certificate or
opinion of, or representations by, an officer or officers of the Company stating
that the information with respect to such factual matters is in the possession
of the Company, unless such officer or counsel knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
as to such matters are erroneous.
Any certificate, statement or opinion of an officer of the
Company or of counsel may be based, insofar as it relates to accounting matters,
upon a certificate or opinion of or representations by an accountant or firm of
accountants in the employ of the Company, unless such officer or counsel, as the
case may be, knows, or in the exercise of
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<PAGE> 23
reasonable care should know, that the certificate or opinion or representations
with respect to the accounting matters upon which his certificate, statement or
opinion is based are erroneous.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be consolidated
and form one instrument.
Section 1.4. Acts of Holders. (a) Any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be given or taken by Holders may be embodied in and evidenced
by one or more instruments of substantially similar tenor signed (either
physically or by means of a facsimile or an electronic transmission, provided,
in the case of an electronic transmission, that it is transmitted through the
facilities of a Depositary) by such Holders in person or by agent or proxy duly
appointed in writing. If Securities of a series are issuable as Bearer
Securities, any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders of Securities of such series may, alternatively, be embodied in and
evidenced by the record of Holders of Securities of such series voting in favor
thereof pursuant to the second paragraph of Section 13.4, either in person or by
proxies duly appointed in writing, at any meeting of Holders of Securities of
such series duly called and held in accordance with the provisions of Article
13, or a combination of such instruments and any such record. Except as herein
otherwise expressly provided, such action shall become effective when such
instrument or instruments or record or both are received (either physically or,
if the Securities are held through the facilities of a Depositary, by means of a
facsimile or an electronic transmission, provided, in the case of an electronic
transmission, that it is transmitted through the facilities of a Depositary) by
the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments and record (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the "Act" of the Holders
signing such instrument or instruments or so voting at such meeting. The Company
and the Trustee may assume that any Act of a Holder has not been modified or
revoked unless written notice to the contrary is received prior to the time that
the action to which such Act relates has become effective. Proof of execution of
any such instrument or of a writing appointing any such agent shall be
sufficient for any purpose of this Indenture and (subject to Section 315 of the
Trust Indenture Act) conclusive in favor of the Trustee and the Company, if made
in the manner provided in this Section. The record of any meeting of Holders of
Securities shall be proved in the manner provided in Section 13.6.
(b) The fact and date of the execution by any Person of any
such instrument or writing and the authority of the Person executing the same
may be proved in any manner which the Trustee deems sufficient.
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<PAGE> 24
(c) The ownership of Bearer Securities may be proved by the
production of such Bearer Securities or by a certificate executed by any trust
company, bank, banker or other depository, wherever situated, if such
certificate shall be deemed by the Trustee to be satisfactory, showing that at
the date therein mentioned such Person had on deposit with such trust company,
bank, banker or other depository, or exhibited to it, the Bearer Securities
therein described; or such facts may be proved by the certificate or affidavit
of the Person holding such Bearer Securities, if such certificate or affidavit
is deemed by the Trustee to be satisfactory. The Trustee and the Company may
assume that such ownership of any Bearer Security continues until (i) another
such certificate or affidavit bearing a later date issued in respect of the same
Bearer Security is produced, (ii) such Bearer Security is produced to the
Trustee by some other Person, (iii) such Bearer Security is surrendered in
exchange for a Registered Security or (iv) such Bearer Security is no longer
Outstanding. The ownership of Bearer Securities may also be proved in any other
manner which the Trustee deems sufficient.
(d) The ownership of Registered Securities shall be proved by
the Register.
(e) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall bind every
future Holder of the same Security and any interest coupons appertaining thereto
and the Holder of every Security or interest coupon issued upon the registration
of transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee or the Company in
reliance thereon, whether or not notation of such Act is made upon such Security
or interest coupon.
(f) If the Company shall solicit from the Holders any request,
demand, authorization, direction, notice, consent, waiver or other Act, the
Company may, at its option, by or pursuant to a Board Resolution, fix in advance
a record date for the determination of Holders of Registered Securities entitled
to give such request, demand, authorization, direction, notice, consent, waiver
or other Act, but the Company shall have no obligation to do so. Notwithstanding
Section 316(c) of the Trust Indenture Act, any such record date shall be the
record date specified in or pursuant to such Board Resolution, which shall be a
date not more than 30 days prior to the first solicitation of Holders generally
in connection therewith and no later than the date such first solicitation is
completed. If such a record date is fixed, such request, demand, authorization,
direction, notice, consent, waiver or other Act may be given before or after
such record date, but only the Holders of Registered Securities of record at the
close of business on such record date shall be deemed to be Holders for the
purposes of determining whether Holders of the requisite proportion of
Outstanding Securities have authorized or agreed or consented to such request,
demand, authorization, direction, notice, consent, waiver or other Act, and for
that purpose the Outstanding Securities shall be computed as of such
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<PAGE> 25
record date; provided that no such authorization, agreement or consent by the
Holders on such record date shall be deemed effective unless it shall become
effective pursuant to the provisions of this Indenture not later than six months
after the record date.
Without limiting the foregoing, a Holder entitled to give or
take any action hereunder with regard to any particular Security may do so with
regard to all or any part of the principal amount of such Security or by one or
more duly appointed agents, each of which may do so pursuant to such appointment
with regard to all or any part of the principal amount of such Security to which
such appointment relates.
Section 1.5. Notices, Etc., to Trustee, Company and Guarantors
. Any request, demand, authorization, direction, notice, consent, waiver or Act
of Holders or other document provided or permitted by this Indenture to be made
upon, given or furnished to, or filed with,
(a) the Trustee by any Holder or by the Company or any
Guarantor shall be sufficient for every purpose hereunder if made, given,
furnished or filed in writing to or with the Trustee at its Corporate Trust
Office, Attention: Corporate Trust Department, or at any other address
previously furnished in writing to the Holders or the Company by the Trustee,
or, with respect to notices by the Company, transmitted by facsimile
transmission (confirmed by guaranteed overnight courier) to the following
facsimile number: (612) 244-0711 or to any other facsimile number previously
furnished in writing to the Company by the Trustee, or
(b) the Company or any Guarantor by the Trustee or by any
Holder shall be sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage prepaid, to it
addressed to it at the address of the Company's principal office specified in
the first paragraph of this instrument or at any other address previously
furnished in writing to the Trustee by the Company or, with respect to notices
by the Trustee, transmitted by facsimile transmission (confirmed by guaranteed
overnight courier) to the following facsimile number: (602) 423-9424 or to any
other facsimile number previously furnished in writing to the Trustee by the
Company.
Section 1.6. Notice to Holders; Waiver. Where this Indenture
provides for notice to Holders of any event, (i) if any of the Securities
affected by such event are Registered Securities, such notice to the Holders
thereof shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each such Holder
affected by such event, at his or her address as it appears in the Register,
within the time prescribed for the giving of such notice, and (ii) if any of the
Securities affected by such event are Bearer Securities, notice to the Holders
thereof shall be sufficiently given (unless otherwise herein or in the terms of
such Bearer Securities
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<PAGE> 26
expressly provided) if published twice in an Authorized Newspaper in New York,
New York, and in such other city or cities, if any, as may be specified as
contemplated by Section 3.1. Such notices shall be deemed to have been given on
the date of such mailing or publication.
In any case where notice to Holders is given by mail or by
publication, neither the failure to mail or publish such notice, nor any defect
in any notice so mailed or published, to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders of Registered
Securities or of Bearer Securities. Any notice mailed to a Holder in the manner
herein prescribed shall be conclusively deemed to have been received by such
Holder, whether or not such Holder actually receives such notice.
If by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice as
provided above, then such notification as shall be made with the approval of the
Trustee shall constitute a sufficient notification for every purpose hereunder.
If it is impossible or, in the opinion of the Trustee, impracticable to give any
notice by publication in the manner herein required, then such publication in
lieu thereof as shall be made with the approval of the Trustee shall constitute
a sufficient publication of such notice.
Any request, demand, authorization, direction, notice, consent
or waiver required or permitted under this Indenture shall be in the English
language, except that any published notice may be in an official language of the
country of publication.
Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall be equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
Section 1.7. Headings and Table of Contents. The Article and
Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
Section 1.8. Successor and Assigns. All covenants and
agreements in this Indenture by the Company or any Guarantor shall bind its
successors and assigns, whether so expressed or not.
Section 1.9. Separability. In case any provision of this
Indenture or the Securities or the Senior 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.
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<PAGE> 27
Section 1.10. Benefits of Indenture. Nothing in this
Indenture or in the Securities or the Senior Guarantees, expressed or implied,
shall give to any Person, other than the parties hereto and their successors
hereunder and the Holders, any benefit or any legal or equitable right, remedy
or claim under this Indenture.
Section 1.11. Incorporators, Officers and Directors of the
Company Exempt from Individual Liability . No recourse under or upon any
obligation, covenant or agreement of or contained in this Indenture or of or
contained in any Security or interest coupon appertaining thereto, or for any
claim based thereon or otherwise in respect thereof, or because of any
indebtedness represented thereby, shall be had against any incorporator, officer
or director, as such, past, present or future, of the Company or any successor
Person, either directly or through the Company or any successor Person, whether
by virtue of any constitution, statute or rule of law, by the enforcement of any
assessment or penalty, by any legal or equitable proceeding or otherwise; it
being expressly understood that all such liability is hereby expressly waived
and released as a condition of the acceptance of, and as a part of the
consideration for the execution of this Indenture and the issuance of, the
Securities and any interest coupons appertaining thereto.
Section 1.12. Governing Law; Conflict with Trust Indenture Act
. THIS INDENTURE, THE SECURITIES, THE SENIOR GUARANTEES ENDORSED THEREON AND ANY
INTEREST COUPONS APPERTAINING THERETO SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. This Indenture is subject to
the Trust Indenture Act and if any provision hereof limits, qualifies or
conflicts with the Trust Indenture Act, the Trust Indenture Act shall control.
Whether or not this Indenture is required to be qualified under the Trust
Indenture Act, the provisions of the Trust Indenture Act required to be included
in an indenture in order for such indenture to be so qualified shall be deemed
to be included in this Indenture with the same effect as if such provisions were
set forth herein and any provisions hereof which may not be included in an
indenture which is so qualified shall be deemed to be deleted or modified to the
extent such provisions would be required to be deleted or modified in an
indenture so qualified.
Section 1.13. Legal Holidays. In any case where any Interest
Payment Date, Redemption Date, sinking fund payment date, Stated Maturity or
Maturity of any Security shall not be a Business Day at any Place of Payment,
then (notwithstanding any other provision of this Indenture or of any Security
or interest coupon or any Senior Guarantee other than a provision in the
Securities of any series which specifically states that such provision shall
apply in lieu of this Section), payment of principal, premium, if any, or
interest need not be made at such Place of Payment on such date, but may be made
on the next succeeding Business Day at such Place of Payment with the same force
and effect as if made on such date; provided that no interest
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shall accrue on the amount so payable for the period from and after such
Interest Payment Date, Redemption Date, sinking fund payment date, Stated
Maturity or Maturity, as the case may be, if such amount is so paid on the next
succeeding Business Day.
Section 1.14. Moneys of Different Currencies to Be Segregated
. The Trustee shall segregate all moneys, funds and accounts held by the Trustee
hereunder in one currency from any moneys, funds and accounts held by the
Trustee hereunder in any other currencies, notwithstanding any provision herein
which would otherwise permit the Trustee to commingle such amounts.
Section 1.15. Independence of Covenants. All covenants and
agreements in this Indenture shall be given independent effect so that if a
particular action or condition is not permitted by any such covenant, the fact
that it would be permitted by an exception to, or be otherwise within the
limitations of, another covenant shall not avoid the occurrence of a Default or
an Event of Default if such action is taken or condition exists.
Section 1.16. Counterparts. This Indenture may be executed in
any number of counterparts, each of which shall be an original, but such
counterparts shall together constitute but one and the same instrument.
ARTICLE 2
SECURITY AND SENIOR GUARANTEE FORMS
Section 2.1. Forms Generally. The Securities of each series
and the interest coupons, if any, to be attached thereto and the Senior
Guarantees to be endorsed thereon shall be in substantially such form as shall
be established by or pursuant to a Board Resolution or in one or more indentures
supplemental hereto, in each case with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture, and may have such letters, numbers or other marks of identification
and such legends or endorsements placed thereon as may be required to comply
with the rules of any applicable securities exchange, organizational document,
governing instrument or law or as may, consistently herewith, be determined by
the officers executing such Securities and interest coupons, if any, or Senior
Guarantees to be endorsed thereon, as the case may be, as evidenced by their
execution of the Securities and interest coupons, if any, or Senior Guarantees
to be endorsed thereon, as the case may be. If temporary Securities and Senior
Guarantees of any series are issued as permitted by Section 3.4, the form
thereof also shall be established as provided in the preceding sentence. If the
forms of Securities and interest coupons, if any, and Senior Guarantees of any
series are established by, or by action taken pursuant to, a Board Resolution, a
copy of the Board Resolution together with an appropriate record of any such
action taken pursuant thereto, including a copy of the approved form of
Securities or interest coupons,
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if any, and Senior Guarantees shall be delivered to the Trustee at or prior to
the delivery of the Company Order contemplated by Section 3.3 for the
authentication and delivery of such Securities.
Unless otherwise specified as contemplated by Section 3.1,
Bearer Securities shall have interest coupons attached.
The definitive Securities and interest coupons, if any, may be
printed, lithographed or engraved on steel engraved borders or may be produced
in any other manner (or, if such Securities are listed on any securities
exchange, any other manner permitted by the rules of such securities exchange),
all as determined by the officers executing such Securities and interest
coupons, if any, as evidenced by their execution of such Securities and interest
coupons, if any.
Section 2.2. Form of Trustee's Certificate of Authentication .
The Trustee's certificate of authentication shall be in substantially the
following form:
This is one of the Securities with the Senior Guarantees
endorsed thereon of the series designated therein referred to in the
within-mentioned Indenture.
FIRST TRUST NATIONAL ASSOCIATION,
as Trustee
By:
--------------------------------
Authorized Signatory
Section 2.3 Form of Senior Guarantee.
SENIOR GUARANTEE
For value received, each of the Guarantors named (or deemed
herein to be named) below hereby jointly and severally unconditionally
guarantees, on a senior basis to the Holder of the Security upon which this
Senior Guarantee is endorsed, and to the Trustee on behalf of such Holder, the
due and punctual payment of the principal of (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.
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<PAGE> 30
Each of the Guarantors hereby jointly and severally agrees
that its obligations hereunder shall be unconditional, irrespective of the
validity, regularity or enforceability of such Security or the Indenture, the
absence of any action to enforce the same, any creation, exchange, release or
non-perfection of any Lien on any collateral for, or any release or amendment or
waiver of any term of any other Guarantee of, or any consent to departure from
any requirement of any other Guarantee of, all or of any of the Securities, the
election by the Trustee or any of the Holders in any proceeding under Chapter 11
of the Bankruptcy Code of the application of Section 1111(b)(2) of the
Bankruptcy Code, any borrowing or grant of a security interest by the Company,
as debtor-in-possession, under Section 364 of the Bankruptcy Code, the
disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of
the claims of the Trustee or any of the Holders for payment of any of the
Securities, any waiver or consent by the Holder of such Security or by the
Trustee or either of them with respect to any provisions thereof or of the
Indenture, the obtaining of any judgment against the Company (or with respect to
the Allied Subsidiary Guarantee, any Subsidiary Guarantee) or any action to
enforce the same or any other circumstances which might otherwise constitute a
legal or equitable discharge or defense of a Guarantor. Each of the Guarantors
hereby waives the benefits of diligence, presentment, demand of payment, any
requirement that the Trustee or any of the Holders protect, secure, perfect or
insure any security interest in or other Lien on any property subject thereto or
exhaust any right or take any action against the Company (or, with respect to
the Allied Subsidiary Guarantee, any Subsidiary Guarantee) or any other Person
or any collateral, filing of claims with a court in the event of insolvency or
bankruptcy of the Company (or, with respect to the Allied Subsidiary Guarantee,
any Subsidiary Guarantee), any right to require a proceeding first against the
Company (or, with respect to the Allied Subsidiary Guarantee, any Subsidiary
Guarantee), protest or notice with respect to such Security (or, with respect to
the Allied Subsidiary Guarantee, the Subsidiary Guarantees) or the indebtedness
evidenced thereby and all demands whatsoever, and covenants that this Senior
Guarantee will not be discharged except by complete performance of the
obligations contained in such Security (or, with respect to the Allied
Subsidiary Guarantee, the Subsidiary Guarantees) and in this Senior Guarantee.
Each of the Guarantors hereby agrees that, in the event of a default in payment
of principal (or premium, if any) or interest on such Security (or, with respect
to the Allied Subsidiary Guarantee, the Subsidiary Guarantees) whether at its
Stated Maturity, by acceleration, call for redemption, purchase or otherwise,
legal proceedings may be instituted by the Trustee on behalf of, or by, the
Holder of such Security (or, with
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respect to the Allied Subsidiary Guarantee, the Subsidiary Guarantees), subject
to the terms and conditions set forth in the Indenture, directly against each or
any of the Guarantors to enforce this Senior 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 (or, with respect to the Allied
Subsidiary Guarantee, the Subsidiary Guarantees), to collect interest on the
Securities (or, with respect to the Allied Subsidiary Guarantee, the Subsidiary
Guarantees), or to enforce or exercise any other right or remedy with respect to
the Securities (or, with respect to the Allied Subsidiary Guarantee, the
Subsidiary Guarantees), such Guarantor agrees to pay to the Trustee for the
account of the Holders, upon demand therefor, the amount that would otherwise
have been due and payable had such rights and remedies been permitted to be
exercised by the Trustee or any of the Holders.
No reference herein to the Indenture and no provision of this
Senior Guarantee or of the Indenture shall alter or impair the Senior 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 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 Subsidiary
Guarantee, any Subsidiary Guarantee) in respect of any amounts paid by such
Guarantor on account of such Security (or, with respect to the Allied Subsidiary
Guarantees on account of the Subsidiary Guarantees) pursuant to the provisions
of its Senior Guarantee or the Indenture; provided, however, that such Guarantor
shall not be entitled to enforce or to receive any payments arising out of, or
based upon, such right of subrogation until the principal of (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 Guarantee shall remain in full force and effect
and continue to be effective should any petition be filed by or against the
Company (or, with respect to the Allied Subsidiary Guarantee, any Subsidiary
Guarantee) for liquidation or reorganization, should the Company (or, with
respect to the Allied Subsidiary Guarantee, any Subsidiary Guarantee) 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 Subsidiary Guarantee, the Subsidiary
Gurantors') 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 Subsidiary Guarantee, or the
Subsidiary Guarantees) , whether as a "voidable preference," "fraudulent
transfer" or otherwise, all as though such payment or performance had not been
made. In the event that any payment, or any part thereof, is rescinded, reduced,
restored or returned, the Securities shall, to the fullest extent permitted by
law, be reinstated and deemed reduced only by such amount paid and not so
rescinded, reduced, restored or returned.
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<PAGE> 32
The Guarantors shall have the right to seek contribution from
any non-paying Guarantor so long as the exercise of such right does not impair
the rights of the Holders under this Senior Guarantee.
The Guarantors or any particular Guarantor shall be released
from this Senior Guarantee upon the terms and subject to certain conditions
provided in the Indenture.
By delivery of a supplemental indenture to the Trustee in
accordance with the terms of the Indenture, each Person that becomes a
Subsidiary Guarantor after the date of the Indenture will be deemed to have
executed and delivered this Subsidiary Guarantee for the benefit of the Holder
of the Security upon which this Subsidiary Guarantee is endorsed, with the same
effect as if such Subsidiary Guarantor was named below and had executed and
delivered this Subsidiary Guarantee.
All terms used in this Senior Guarantee which are defined in
the Indenture referred to in the Security upon which this Senior Guarantee is
endorsed shall have the meanings assigned to them in such Indenture.
This Senior Guarantee shall not be valid or obligatory for any
purpose until the certificate of authentication on the Security upon which this
Senior Guarantee is endorsed shall have been executed by the Trustee under the
Indenture by manual signature.
Reference is made to Article Fifteen of the Indenture for
further provisions with respect to this Senior Guarantee.
THIS SENIOR GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
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IN WITNESS WHEREOF, each of the Guarantors has caused this
Senior Guarantee to be duly executed.
Allied Waste Industries, Inc.,
As Guarantor of the Securities and as Guarantor
of the obligations of the Subsidiary Guarantors under
the Subsidiary Guarantees
By:
-----------------------------------
[Officer]
Attest:
- ------------------------
[Secretary]
[Assistant Secretary]
Each of the Subsidiary Guarantors
Listed on Schedule I to the Indenture,
As Guarantor of the Securities
By:*/
-----------------------------------
[Officer]
Attest:*
- ------------------------
[Secretary]
[Assistant Secretary]
Section 2.4. Securities in Global Form . If Securities of or
within a series are issuable in whole or in part in global form, any such
Security may provide that it shall represent the aggregate or specified amount
of Outstanding Securities from time to time endorsed thereon and may also
provide that the aggregate amount of Outstanding Securities represented thereby
may from time to time be reduced or increased to reflect exchanges for
certificated securities. Any endorsement of a Security in global form to reflect
the amount, or any increase or decrease in the amount, or changes in the rights
of Holders, of Outstanding Securities represented thereby, shall be made in such
manner and by such Person or Persons as shall be specified therein or in the
Company Order to be delivered to the Trustee pursuant to Section 3.3 or 3.4.
Subject to the provisions of
*/ Signing as duly authorized officer for each such Subsidiary Guarantor.
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Section 3.3, Section 3.4, if applicable, and Section 3.5, the Trustee shall
deliver and redeliver any Security in permanent global form in the manner and
upon instructions given by the Person or Persons specified therein or in the
applicable Company Order. Any instructions by the Company with respect to
endorsement or delivery or redelivery of a Security in global form shall be in
writing but need not comply with Section 1.2 hereof and need not be accompanied
by an Officers' Certificate or an Opinion of Counsel.
The provisions of the last paragraph of Section 3.3 shall
apply to any Security in global form if such Security was never issued and sold
by the Company and the Company delivers to the Trustee the Security in global
form together with written instructions (which need not comply with Section 1.2
hereof and need not be accompanied by an Officers' Certificate or an Opinion of
Counsel) with regard to the reduction in the principal amount of Securities
represented thereby, together with the written statement contemplated by the
last paragraph of Section 3.3.
Notwithstanding the provisions of Section 2.1 and 3.7, unless
otherwise specified as contemplated by Section 3.1, payment of principal of,
premium, if any, and interest on any Registered Security in permanent global
form shall be made to the registered holder thereof.
Section 2.5. Form of Legend for Securities in Global Form .
Any Security in global form authenticated and delivered hereunder shall bear a
legend in substantially the following form or in such other form as may be
specified in accordance with Section 3.1:
"THIS SECURITY IS IN GLOBAL FORM WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY
OR A NOMINEE OF A DEPOSITARY. UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN
PART FOR SECURITIES IN CERTIFICATED FORM, THIS SECURITY MAY NOT BE TRANSFERRED
EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A
NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY
OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE
OF SUCH SUCCESSOR DEPOSITARY."
ARTICLE 3
THE SECURITIES
Section 3.1. Amount Unlimited; Issuable in Series . (a) The
aggregate principal amount of Securities which may be authenticated and
delivered under this
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Indenture is unlimited. The Securities may be issued from time to time in one or
more series.
(b) The following matters shall be established with respect to
each series of Securities issued hereunder (i) by a Board Resolution, (ii) by
action taken pursuant to a Board Resolution and (subject to Section 3.3) set
forth, or determined in the manner provided, in an Officers' Certificate or
(iii) in one or more indentures supplemental hereto:
(1) the title of the Securities of the series (which title
shall distinguish the Securities of the series from all other series of
Securities);
(2) any limit upon the aggregate principal amount of the
Securities of the series which may be authenticated and delivered under
this Indenture (which limit shall not pertain to Securities
authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, other Securities of the series pursuant to
Section 3.4, 3.5, 3.6, 8.6 or 11.7 or any Securities that, pursuant to
Section 3.3, are deemed never to have been authenticated and delivered
hereunder);
(3) the date or dates on which the principal of and premium,
if any, on the Securities of the series is payable or the method or
methods of determination thereof;
(4) the rate or rates at which the Securities of the series
shall bear interest, if any, or the method or methods of calculating
such rate or rates of interest, the date or dates from which such
interest shall accrue or the method or methods by which such date or
dates shall be determined, the Interest Payment Dates on which any such
interest shall be payable, the right, if any, of the Company to defer
or extend an Interest Payment Date and, with respect to Registered
Securities, the Regular Record Date, if any, for the interest payable
on any Registered Security on any Interest Payment Date, and the basis
upon which interest shall be calculated if other than that of a 360-day
year of twelve 30-day months;
(5) the place or places where the principal of, premium, if
any, and interest, if any, on Securities of the series shall be
payable, any Registered Securities of the series may be surrendered for
registration of transfer, Securities of the series may be surrendered
for exchange and notices and demands to or upon the Company in respect
of the Securities of the series and this Indenture may be served and
where notices to Holders pursuant to Section 1.6 will be published;
(6) the period or periods within which, the price or prices at
which, the currency or currencies (including currency unit or units) in
which, and the other
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terms and conditions upon which, Securities of the series may be
redeemed, in whole or in part, at the option of the Company and, if
other than as provided in Section 11.3, the manner in which the
particular Securities of such series (if less than all Securities of
such series are to be redeemed) are to be selected for redemption;
(7) the obligation, if any, of the Company to redeem or
purchase Securities of the series pursuant to any sinking fund or
analogous provisions or upon the happening of a specified event or at
the option of a Holder thereof and the period or periods within which,
the price or prices at which, the currency or currencies (including
currency unit or units) in which, and the other terms and conditions
upon which, Securities of the series shall be redeemed or purchased, in
whole or in part, pursuant to such obligation;
(8) if other than denominations of $1,000 and any integral
multiple thereof, if Registered Securities, and if other than
denominations of $5,000 and any integral multiple thereof, if Bearer
Securities, the denominations in which Securities of the series shall
be issuable;
(9) if other than Dollars, the currency or currencies
(including currency unit or units) in which the principal of, premium,
if any, and interest, if any, on the Securities of the series shall be
payable, or in which the Securities of the series shall be denominated,
and the particular provisions applicable thereto in accordance with, in
addition to, or in lieu of the provisions of Section 3.12;
(10) if the payments of principal of, premium, if any, or
interest, if any, on the Securities of the series are to be made, at
the election of the Company or a Holder, in a currency or currencies
(including currency unit or units) other than that in which such
Securities are denominated or designated to be payable, the currency or
currencies (including currency unit or units) in which such payments
are to be made, the terms and conditions of such payments and the
manner in which the exchange rate with respect to such payments shall
be determined, and the particular provisions applicable thereto in lieu
of the provisions of Section 3.12;
(11) if the amount of payments of principal of, premium, if
any, and interest, if any, on the Securities of the series shall be
determined with reference to an index, formula or other method (which
index, formula or method may be based, without limitation, on a
currency or currencies (including currency unit or units) other than
that in which the Securities of the series are denominated or
designated to be payable), the index, formula or other method by which
such amounts shall be
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<PAGE> 37
determined and any special voting or defeasance provisions in
connection therewith;
(12) if other than the entire principal amount thereof, the
portion of the principal amount of such Securities of the series which
shall be payable upon declaration of acceleration thereof pursuant to
Section 5.2 or the method by which such portion shall be determined;
(13) if other than as provided in Section 3.7, the Person to
whom any interest on any Registered Security of the series shall be
payable and the manner in which, or the Person to whom, any interest on
any Bearer Securities of the series shall be payable;
(14) provisions, if any, granting special rights to the
Holders of Securities of the series upon the occurrence of such events
as may be specified;
(15) any deletions from, modifications of or additions to the
Events of Default set forth in Section 5.1 or covenants of the Company
set forth in Article 9 pertaining to the Securities of the series;
(16) under what circumstances, if any, and with what
procedures and documentation the Company will pay additional amounts on
the Securities and interest coupons, if any, of that series held by a
Person who is not a U.S. Person (including any modification of the
definition of such term) in respect of taxes, assessments or similar
charges withheld or deducted and, if so, whether the Company will have
the option to redeem such Securities rather than pay such additional
amounts (and the terms of any such option);
(17) whether Securities of the series shall be issuable as
Registered Securities or Bearer Securities (with or without interest
coupons), or both, and any restrictions applicable to the offering,
sale, transfer or delivery of Bearer Securities and, if other than as
provided in Section 3.5, the terms upon which Bearer Securities of a
series may be exchanged for Registered Securities of the same series
and vice versa;
(18) the date as of which any Bearer Securities of the series
and any temporary global Security representing Outstanding Securities
of the series shall be dated if other than the date of original
issuance of the first Security of the series to be issued;
(19) the forms of the Securities and interest coupons, if any,
of the series;
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<PAGE> 38
(20) the applicability, if any, to the Securities and interest
coupons, if any, of or within the series of Sections 4.4 and 4.5, or
such other means of defeasance or covenant defeasance as may be
specified for the Securities and interest coupons, if any, of such
series, and whether, for the purpose of such defeasance or covenant
defeasance, the term "Government Obligations" shall include obligations
referred to in the definition of such term which are not obligations of
the United States or an agency or instrumentality of the United States;
(21) if other than the Trustee, the identity of the Registrar
and any Paying Agent;
(22) if the Securities of the series shall be issued in whole
or in part in global form, (i) the Depositary for such global
Securities, (ii) whether beneficial owners of interests in any
Securities of the series in global form may exchange such interests for
certificated Securities of such series, to be registered in the names
of or to be held by such beneficial owners or their nominees and to be
of like tenor of any authorized form and denomination, and (iii) if
other than as provided in Section 3.5, the circumstances under which
any such exchange may occur;
(23) any restrictions on the registration, transfer or
exchange of the Securities;
(24) if the Securities of the series may be issued or
delivered (whether upon original issuance or upon exchange of a
temporary Security of such series or otherwise), or any installment of
principal or interest is payable, only upon receipt of certain
certificates or other documents or satisfaction of other conditions in
addition to those specified in this Indenture, the form and terms of
such certificates, documents or conditions;
(25) the terms and conditions of any right to convert or
exchange Securities of the series into or for Equity Securities of the
Company, including provisions for the payment of interest on Securities
being converted or exchanged as contemplated by Section 3.7(d) and
Section 14.2;
(26) whether the Securities are secured or unsecured, and if
secured, the security and related terms in connection therewith;
(27) the definition of "Unrestricted Subsidiary" to be used
for such series; and
(28) any other terms of the series including any terms which
may be required by or advisable under United States laws or regulations
or advisable (as
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<PAGE> 39
determined by the Company) in connection with the marketing of
Securities of the series.
(c) Subject to Section 1.12 and any controlling provision of
the Trust Indenture Act, in the event of any inconsistency between the terms of
this Indenture and the terms applicable to a series of Securities established in
the manner permitted by Section 3.1(b), the (i) Board Resolution, (ii) Officer's
Certificate or (iii) supplemental indenture setting forth such conflicting term
shall prevail.
(d) All Securities of any one series and interest coupons, if
any, appertaining thereto shall be substantially identical except as to
denomination and except as may otherwise be provided (i) by a Board Resolution,
(ii) by action taken pursuant to a Board Resolution and (subject to Section 3.3)
set forth, or determined in the manner provided, in the related Officers'
Certificate or (iii) in an indenture supplemental hereto. All Securities of any
one series need not be issued at the same time and, unless otherwise provided, a
series may be reopened, without the consent of the Holders, for issuances of
additional Securities of such series.
(e) If any of the terms of the Securities of any series are
established by action taken pursuant to a Board Resolution, a copy of such Board
Resolution shall be delivered to the Trustee at or prior to the delivery of the
Officers' Certificate setting forth, or providing the manner for determining,
the terms of the Securities of such series, and an appropriate record of any
action taken pursuant thereto in connection with the issuance of any Securities
of such series shall be delivered to the Trustee prior to the authentication and
delivery thereof.
Section 3.2. Denominations . Unless otherwise provided as
contemplated by Section 3.1(b), any Registered Securities of a series
denominated in Dollars shall be issuable in denominations of U.S. $1,000 and any
integral multiple thereof and any Bearer Securities of a series denominated in
Dollars shall be issuable in the denomination of U.S. $5,000 and any integral
multiple thereof. Securities denominated in a Foreign Currency shall be issuable
in such denominations as are established with respect to such Securities in or
pursuant to this Indenture.
Section 3.3. Execution, Authentication, Delivery and Dating.
Securities shall be executed on behalf of the Company by the Chairman of the
Board, the President, the Chief Executive Officer, the Chief Operating Officer,
the Chief Financial Officer or any Vice President of the Company, and need not
be attested. The signatures of any of these officers on the Securities may be
manual or facsimile. The interest coupons, if any, of Bearer Securities shall
bear the facsimile signature of the Chairman of the Board, the President, the
Chief Executive Officer, the Chief Operating Officer, the Chief Financial
Officer or any Vice President of the Company, and need not be attested.
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Securities and interest coupons bearing the manual or
facsimile signatures of individuals who were at any time Officers of the Company
shall bind the Company, notwithstanding that such individuals or any of them
have ceased to be Officers prior to the authentication and delivery of such
Securities or were not Officers at the date of such Securities.
At any time and from time to time, the Company may deliver
Securities, together with any interest coupons appertaining thereto, of any
series executed by the Company and having endorsed (by attachment or imprint)
thereon the Senior Guarantees executed as provided in Section 16.2 by the
Guarantors to the Trustee for authentication, together with a Company Order for
the authentication and delivery of such Securities with such Senior Guarantees
endorsed thereon, and the Trustee in accordance with such Company Order shall
authenticate and deliver such Securities with such Senior Guarantees endorsed
thereon to or upon the order of the Company (as set forth in such Company
Order); provided, however, that, in the case of Securities of a series offered
in a Periodic Offering, the Trustee shall authenticate and deliver such
Securities from time to time in accordance with such other procedures
(including, without limitation, the receipt by the Trustee of oral or electronic
instructions from the Company or its duly authorized agents, promptly confirmed
in writing) acceptable to the Trustee as may be specified by or pursuant to a
Company Order delivered to the Trustee prior to the time of the first
authentication of Securities of such series.
If the form or terms of the Securities with the Senior
Guarantees endorsed thereon of a series have been established by or pursuant to
one or more Board Resolutions or one or more indentures supplemental hereto as
permitted by Sections 2.1 and 3.1, in authenticating such Securities with the
Senior Guarantees endorsed thereon and accepting the additional responsibilities
under this Indenture in relation to such Securities with the Senior Guarantees
endorsed thereon, the Trustee shall be entitled to receive, and (subject to
section 315(a) through (d) of the Trust Indenture Act) shall be fully protected
in relying upon,
(i) an Opinion of Counsel stating:
(1) if the form or forms of such Securities and any interest
coupons with Senior Guarantees endorsed thereon have been established
by or pursuant to a Board Resolution as permitted by Section 2.1, that
such forms have been established in conformity with the provisions of
this Indenture;
(2) if the terms of such Securities and any interest coupons
with Senior Guarantees endorsed thereon have been, or, in the case of
Securities of a series with Senior Guarantees endorsed thereon offered
in a Periodic Offering, will be, established by or pursuant to a Board
Resolution as permitted by Section 3.1, that
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such terms have been, or, in the case of Securities of a series with
Senior Guarantees endorsed thereon offered in a Periodic Offering, will
be, established in conformity with the provisions of this Indenture,
subject, in the case of Securities with Senior Guarantees endorsed
thereon offered in a Periodic Offering, to any conditions specified in
such Opinion of Counsel;
(3) if the form or terms of such Securities have been
established in an indenture supplemental hereto, that such supplemental
indenture has been duly authorized, executed and delivered by the
Company and the Guarantors and, when duly authorized, executed and
delivered by the Trustee, will constitute a legal, valid and binding
obligation enforceable against the Company and the Guarantors in
accordance with its terms, subject to (i) bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and other similar laws
of general applicability relating to or affecting the enforcement of
creditors' rights and to general principles of equity (regardless of
whether enforcement is sought in a proceeding in equity or at law), and
(ii) such other reasonable exceptions as may be specified in such
Opinion of Counsel; and
(4) that such Securities, together with any interest coupons
appertaining thereto, and the Senior Guarantees when issued by the
Company and the Guarantors and (in the case of the Securities)
authenticated and delivered by the Trustee in the manner and subject to
any conditions specified in such Opinion of Counsel, will constitute
valid and legally binding obligations of the Company and the
Guarantors, respectively, enforceable against the Company and the
Guarantors in accordance with their terms, subject to (i) bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and other
similar laws of general applicability relating to or affecting the
enforcement of creditors' rights and to general equity principles
(regardless of whether enforcement is sought in a proceeding in equity
or at law) and except further as enforcement thereof may be limited by
(A) requirements that a claim with respect to any Securities or Senior
Guarantees denominated other than in Dollars (or a Foreign Currency or
currency unit judgment in respect of such claim) be converted into
Dollars at a rate of exchange prevailing on a date determined pursuant
to applicable law or (B) governmental authority to limit, delay or
prohibit the making of payments in Foreign Currencies or currency units
or payments outside the United States, and (ii) such other reasonable
exceptions as may be specified in such Opinion of Counsel; and
(ii) an Officers' Certificate stating that all conditions
precedent provided for in this Indenture relating to the issuance of such
Securities have been complied with and that, to the knowledge of the signers of
such certificate, no Event of Default with respect to such Securities shall have
occurred and be continuing.
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Notwithstanding that such form or terms have been so
established, the Trustee shall have the right to decline to authenticate such
Securities if, in the opinion of the Trustee (after consultation with counsel),
the issue of such Securities pursuant to this Indenture will materially
adversely affect the Trustee's own rights, duties or immunities under this
Indenture or otherwise or if the Trustee determines that such authentication may
not lawfully be made.
Notwithstanding the provisions of Section 3.1 and of the two
preceding paragraphs, if all of the Securities of any series are not to be
issued at one time, it shall not be necessary to deliver the Officers'
Certificate otherwise required pursuant to Section 3.1 or the Company Order and
Opinion of Counsel otherwise required pursuant to the two preceding paragraphs
in connection with the authentication of each Security of such series if such
documents, with appropriate modifications to cover such future issuances, are
delivered at or prior to the authentication upon original issuance of the first
Security of such series to be issued.
With respect to Securities with Senior Guarantees endorsed
thereon of a series offered in a Periodic Offering, the Trustee may rely, as to
the authorization by the Company of any of such Securities and by the Guarantors
of any such Senior Guarantees endorsed thereon, the form and terms thereof and
the legality, validity, binding effect and enforceability thereof, upon the
Opinion of Counsel and the other documents delivered pursuant to Sections 2.1
and 3.1 and this Section, as applicable, in connection with the first
authentication of Securities of such series.
If the Company shall establish pursuant to Section 3.1 that
the Securities of a series are to be issued in whole or in part in global form,
then the Company and the Guarantors shall execute and the Trustee shall, in
accordance with this Section and the Company Order with respect to such series,
authenticate and deliver one or more Securities with Senior Guarantees endorsed
thereon in global form that (i) shall represent and shall be denominated in an
amount equal to the aggregate principal amount of the Outstanding Securities of
such series to be represented by such Security or Securities in global form,
(ii) shall be registered, if a Registered Security, in the name of the
Depositary for such Security or Securities in global form or the nominee of such
Depositary, (iii) shall be delivered by the Trustee to such Depositary or
pursuant to such Depositary's instruction and (iv) shall bear the legend set
forth in Section 2.5.
Each Depositary designated pursuant to Section 3.1 for a
Registered Security in global form must, at the time of its designation and at
all times while it serves as Depositary, be a clearing agency registered under
the Securities Exchange Act of 1934 and any other applicable statute or
regulation. If requested by the Company, the Trustee shall enter into an
agreement with a Depositary governing the respective duties and rights
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of such Depositary and the Trustee with regard to Securities with Senior
Guarantees endorsed thereon issued in global form.
Each Registered Security shall be dated the date of its
authentication and each Bearer Security shall be dated as of the date specified
pursuant to Section 3.1.
No Security or interest coupon appertaining thereto or Senior
Guarantees endorsed thereon shall be entitled to any benefits under this
Indenture or be valid or obligatory for any purpose until such Security has been
authenticated by the manual signature of one of the authorized signatories of
the Trustee or an Authenticating Agent. Such signature upon any Security with
Senior Guarantees endorsed thereon shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered under
this Indenture and is entitled to the benefits of this Indenture and that each
Senior Guarantee endorsed thereon has been duly endorsed thereon and delivered
under this Indenture. Except as permitted by Section 3.6 or 3.7, the Trustee
shall not authenticate and deliver any Bearer Security unless all appurtenant
interest coupons for interest then matured have been detached and cancelled.
Notwithstanding the foregoing, if any Security shall have been
authenticated and delivered hereunder but never issued and sold by the Company,
and the Company shall deliver such Security to the Trustee for cancellation as
provided in Section 3.9 together with a written statement (which need not comply
with Section 1.2 hereof and need not be accompanied by an Officers' Certificate
or an Opinion of Counsel) stating that such Security has never been issued and
sold by the Company, for all purposes of this Indenture such Security shall be
deemed never to have been authenticated and delivered hereunder and shall not be
entitled to the benefits of this Indenture.
Section 3.4. Temporary Securities . Pending the preparation of
definitive Securities of any series, the Company and the Guarantors may execute
and, upon Company Order, the Trustee shall authenticate and deliver temporary
Securities with Senior Guarantees endorsed thereon of such series which are
printed, lithographed, typewritten, mimeographed or otherwise produced, in any
authorized denomination, substantially of the tenor and form, with or without
interest coupons, of the definitive Securities with Senior Guarantees endorsed
thereon in lieu of which they are issued and with such appropriate insertions,
omissions, substitutions and other variations as the officers executing such
Securities and such Senior Guarantees may determine, as conclusively evidenced
by their execution of such Securities and interest coupons, if any, and such
Senior Guarantees. In the case of Securities of any series, such temporary
Securities may be in global form, representing all or a portion of the
Outstanding Securities of such series.
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Except in the case of temporary Securities in global form,
each of which shall be exchanged in accordance with the provisions thereof, if
temporary Securities of any series are issued, the Company and the Guarantors
will cause definitive Securities with Senior Guarantees endorsed thereon of such
series to be prepared without unreasonable delay. After preparation of
definitive Securities of such series, the temporary Securities of such series
shall be exchangeable for definitive Securities of such series upon surrender of
the temporary Securities of such series at the office or agency of the Company
pursuant to Section 9.2 in a Place of Payment for such series, without charge to
the Holder. Upon surrender for cancellation of any one or more temporary
Securities of any series (accompanied by any unmatured interest coupons
appertaining thereto), the Company and the Guarantors shall execute and the
Trustee shall authenticate and deliver in exchange therefor a like principal
amount of definitive Securities with Senior Guarantees endorsed thereon of the
same series of authorized denominations and of like tenor; provided, however,
that no definitive Bearer Security shall be delivered in exchange for a
temporary Registered Security; and provided, further, that no definitive Bearer
Security shall be delivered in exchange for a temporary Bearer Security unless
such delivery shall occur outside the United States. Until so exchanged, the
temporary Securities of any series shall in all respects be entitled to the same
benefits under this Indenture as definitive Securities of such series except as
otherwise specified as contemplated by Section 3.1.
Section 3.5. Registration, Transfer and Exchange . The Company
shall cause to be kept at the Corporate Trust Office of the Trustee or in any
office or agency to be maintained by the Company in accordance with Section 9.2
in a Place of Payment a register (the "Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Registered Securities and the registration of transfers of
Registered Securities. The Register shall be in written form or any other form
capable of being converted into written form within a reasonable time. The
Trustee is hereby initially appointed "Registrar" for the purpose of registering
Registered Securities and transfers of Registered Securities as herein provided.
Upon surrender for registration of transfer of any Registered
Security of any series at the office or agency maintained pursuant to Section
9.2 in a Place of Payment for that series, the Company and the Guarantors shall
execute, and the Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Registered Securities with
Senior Guarantees endorsed thereon of the same series, of any authorized
denominations and of a like aggregate principal amount and tenor and containing
identical terms and provisions.
Bearer Securities (except for any temporary global Bearer
Securities) or any interest coupons appertaining thereto (except for interest
coupons attached to any temporary global Bearer Security) shall be transferable
by delivery.
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At the option of the Holder, Registered Securities of any
series (except a Registered Security in global form) may be exchanged for other
Registered Securities of the same series, of any authorized denominations, of a
like aggregate principal amount and tenor and containing identical terms and
provisions, upon surrender of the Registered Securities to be exchanged at such
office or agency. Whenever any Registered Securities are so surrendered for
exchange, the Company and the Guarantors shall execute, and the Trustee shall
authenticate and deliver, the Registered Securities with Senior Guarantees
endorsed thereon which the Holder making the exchange is entitled to receive.
Unless otherwise specified as contemplated by Section 3.1, Bearer Securities may
not be issued in exchange for Registered Securities.
Unless otherwise specified as contemplated by Section 3.1, at
the option of the Holder, Bearer Securities of such series may be exchanged for
Registered Securities (if the Securities of such series are issuable in
registered form) or Bearer Securities (if Bearer Securities of such series are
issuable in more than one denomination and such exchanges are permitted by such
series) of the same series, of any authorized denominations, of like aggregate
principal amount and tenor and containing identical terms and conditions, upon
surrender of the Bearer Securities to be exchanged at any such office or agency,
with all unmatured interest coupons and all matured interest coupons in default
thereto appertaining. If the Holder of a Bearer Security is unable to produce
any such unmatured interest coupon or coupons or matured interest coupon or
coupons in default, such exchange may be effected if the Bearer Securities are
accompanied by payment in funds acceptable to the Company and the Trustee in an
amount equal to the face amount of such missing interest coupon or coupons, or
the surrender of such missing interest coupon or interest coupons may be waived
by the Company, the Guarantors and the Trustee if there be furnished to them
such security or indemnity as they may require to save each of them and any
Paying Agent harmless. If thereafter the Holder of such Security shall surrender
to any Paying Agent any such missing interest coupon in respect of which such a
payment shall have been made, such Holder shall be entitled to receive the
amount of such payment; provided, however, that, except as otherwise provided in
Section 9.2, interest represented by interest coupons shall be payable only upon
presentation and surrender of those interest coupons at an office or agency
located outside the United States. Notwithstanding the foregoing, in case any
Bearer Security of any series is surrendered at any such office or agency in
exchange for a Registered Security of the same series after the close of
business at such office or agency on (i) any Regular Record Date and before the
opening of business at such office or agency on the relevant Interest Payment
Date, or (ii) any Special Record Date and before the opening of business at such
office or agency on the related date for payment of Defaulted Interest, such
Bearer Security shall be surrendered without the interest coupon relating to
such Interest Payment Date or proposed date of payment, as the case may be (or,
if such interest coupon is so surrendered with such Bearer Security, such
interest coupon shall be
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returned to the Person so surrendering the Bearer Security), and interest or
Defaulted Interest, as the case may be, will not be payable on such Interest
Payment Date or proposed date for payment, as the case may be, in respect of the
Registered Security issued in exchange for such Bearer Security, but will be
payable only to the Holder of such interest coupon, when due in accordance with
the provisions of this Indenture.
Notwithstanding anything herein to the contrary, the exchange
of Bearer Securities for Registered Securities shall be subject to applicable
laws and regulations in effect at the time of exchange. Neither the Company, the
Guarantors, the Trustee nor the Registrar shall exchange any Bearer Securities
for Registered Securities if it has received an Opinion of Counsel that as a
result of such exchange the Company would suffer adverse consequences under the
United States Federal income tax laws and regulations then in effect and the
Company has delivered to the Trustee a Company Order directing the Trustee not
to make such exchanges thereafter, unless and until the Trustee receives a
subsequent Company Order to the contrary. The Company shall deliver copies of
such Company Order to the Registrar.
Notwithstanding any other provision of this Section, unless
and until it is exchanged in whole or in part for Securities in certificated
form, a Security in global form representing all or a portion of the Securities
of a series may not be transferred except as a whole by the Depositary for such
series to a nominee of such Depositary or by a nominee of such Depositary to
such Depositary or another nominee of such Depositary or by such Depositary or
any such nominee to a successor Depositary for such series or a nominee of such
successor Depositary.
If at any time the Depositary for the Securities of a series
notifies the Company that it is unwilling or unable to continue as Depositary
for the Securities of such series or if at any time the Depositary for the
Securities of such series shall no longer be eligible under Section 3.3, the
Company shall appoint a successor Depositary with respect to the Securities of
such series. If a successor Depositary for the Securities of such series is not
appointed by the Company prior to the resignation of the Depositary and, in any
event, within 90 days after the Company receives such notice or becomes aware of
such ineligibility, the Company's designation of the Depositary pursuant to
Section 3.1(b)(22) shall no longer be effective with respect to the Securities
of such series and the Company and the Guarantors shall execute, and the
Trustee, upon receipt of a Company Order for the authentication and delivery of
certificated Securities with Senior Guarantees endorsed thereon of such series
of like tenor, shall authenticate and deliver, Securities with Senior Guarantees
endorsed thereon of such series of like tenor in certificated form, in
authorized denominations and in an aggregate principal amount equal to the
principal amount of the Security or Securities of such series of like tenor in
global form in exchange for such Security or Securities in global form.
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The Company may at any time in its sole discretion determine
that Securities issued in global form shall no longer be represented by such a
Security or Securities in global form. In such event the Company and the
Guarantors shall execute, and the Trustee, upon receipt of a Company Order for
the authentication and delivery of certificated Securities with Senior
Guarantees endorsed thereon of such series of like tenor, shall authenticate and
deliver, Securities with Senior Guarantees endorsed thereon of such series of
like tenor in certificated form, in authorized denominations and in an aggregate
principal amount equal to the principal amount of the Security or Securities of
such series of like tenor in global form in exchange for such Security or
Securities in global form.
If specified by the Company pursuant to Section 3.1 with
respect to a series of Securities, the Depositary for such series may surrender
a Security in global form of such series in exchange in whole or in part for
Securities of such series in certificated form on such terms as are acceptable
to the Company, the Guarantors and such Depositary. Thereupon, the Company and
the Guarantors shall execute, and the Trustee shall authenticate and deliver,
without service charge,
(i) to each Person specified by such Depositary a new
certificated Security or Securities with Senior Guarantees
endorsed thereon of the same series of like tenor, of any
authorized denomination as requested by such Person in
aggregate principal amount equal to and in exchange for such
Person's beneficial interest in the Security in global form;
and
(ii) to such Depositary a new Security with Senior
Guarantees endorsed thereon in global form of like tenor in a
denomination equal to the difference, if any, between the
principal amount of the surrendered Security in global form
and the aggregate principal amount of certificated Securities
delivered to Holders thereof.
Upon the exchange of a Security with Senior Guarantees
endorsed thereon in global form for Securities with Senior Guarantees endorsed
thereon in certificated form, such Security with Senior Guarantees endorsed
thereon in global form shall be cancelled by the Trustee. Unless expressly
provided with respect to the Securities of any series that such Security may be
exchanged for Bearer Securities, Securities with Senior Guarantees endorsed
thereon in certificated form issued in exchange for a Security with Senior
Guarantees endorsed thereon in global form pursuant to this Section shall be
registered in such names and in such authorized denominations as the Depositary
for such Security with Senior Guarantees endorsed thereon in global form,
pursuant to instructions from its direct or indirect participants or otherwise,
shall instruct the Trustee in writing. The Trustee shall deliver such Securities
with Senior Guarantees endorsed thereon to the
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Persons in whose names such Securities with Senior Guarantees endorsed thereon
are so registered.
Whenever any Securities are surrendered for exchange, the
Company and the Guarantors shall execute, and the Trustee shall authenticate and
deliver, the Securities with Senior Guarantees endorsed thereon which the Holder
making the exchange is entitled to receive.
All Securities with Senior Guarantees endorsed thereon issued
upon any registration of transfer or upon any exchange of Securities with Senior
Guarantees endorsed thereon shall be the valid obligations of the Company and
the Guarantors, evidencing the same debt, and entitled to the same benefits
under this Indenture, as the Securities with Senior Guarantees endorsed thereon
surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for
registration of transfer or for exchange shall (if so required by the Company,
the Guarantors, the Registrar or the Trustee) be duly endorsed, or be
accompanied by a written instrument of transfer in form satisfactory to the
Company, the Guarantors, the Registrar and the Trustee duly executed by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of
transfer or for any exchange of Securities, but the Company may require payment
of a sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any registration or transfer or exchange of
Securities, other than exchanges pursuant to Section 3.4, 8.6 or 11.7 not
involving any transfer.
The Company and the Guarantors shall not be required (i) to
issue, register the transfer of, or exchange any Securities with Senior
Guarantees endorsed thereon for a period beginning at the opening of business 15
days before any selection for redemption of Securities of like tenor and of the
series of which such Security is a part and ending at the close of business on
the earliest date on which the relevant notice of redemption is deemed to have
been given to all Holders of Securities of like tenor and of such series to be
redeemed; (ii) to register the transfer of or exchange any Registered Security
with Senior Guarantees endorsed thereon so selected for redemption, in whole or
in part, except the unredeemed portion of any Security being redeemed in part;
or (iii) to exchange any Bearer Security with Senior Guarantees endorsed thereon
so selected for redemption, except that such a Bearer Security may be exchanged
for a Registered Security of that series and like tenor; provided that such
Registered Security shall be simultaneously surrendered for redemption.
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The foregoing provisions relating to registration, transfer
and exchange may be modified, supplemented or superseded with respect to any
series of Securities by a Board Resolution or in one or more indentures
supplemental hereto.
Section 3.6. Replacement Securities. If a mutilated Security
or a Security with a mutilated interest coupon appertaining to it is surrendered
to the Trustee, together with, in proper cases, such security or indemnity as
may be required by the Company, the Guarantors or the Trustee to save each of
them harmless, the Company and the Guarantors shall execute and the Trustee
shall authenticate and deliver a replacement Registered Security with Senior
Guarantees endorsed thereon, if such surrendered Security was a Registered
Security, or a replacement Bearer Security with Senior Guarantees endorsed
thereon with interest coupons corresponding to the interest coupons appertaining
to the surrendered Security, if such surrendered Security was a Bearer Security,
of the same series and date of maturity.
If there shall be delivered to the Company, the Guarantors and
the Trustee (i) evidence to their satisfaction of the destruction, loss or theft
of any Security or interest coupon and (ii) such security or indemnity as may be
required by them to save each of them and any agent of any of them harmless,
then, in the absence of notice to the Company or the Trustee that such Security
or interest coupon has been acquired by a bona fide purchaser, the Company and
the Guarantors shall execute and the Trustee shall authenticate and deliver in
lieu of any such destroyed, lost or stolen Security or in exchange for the
Security to which a destroyed, lost or stolen interest coupon appertains (with
all appurtenant interest coupons not destroyed, lost or stolen), a replacement
Registered Security with Senior Guarantees endorsed thereon, if such Holder's
claim appertains to a Registered Security with Senior Guarantees endorsed
thereon, or a replacement Bearer Security with Senior Guarantees endorsed
thereon with interest coupons corresponding to the interest coupons appertaining
to the destroyed, lost or stolen Bearer Security or the Bearer Security to which
such lost, destroyed or stolen interest coupon appertains, if such Holder's
claim appertains to a Bearer Security, of the same series and principal amount,
containing identical terms and provisions and bearing a number not
contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security
or interest coupon has become or is about to become due and payable, the Company
and the Guarantors in their discretion may, instead of issuing a new Security or
interest coupon with Senior Guarantees endorsed thereon, pay such Security or
interest coupon; provided, however, that payment of principal of and any premium
or interest on Bearer Securities shall, except as otherwise provided in Section
9.2, be payable only at an office or agency located outside the United States
and, unless otherwise specified as contemplated by Section 3.1, any interest on
Bearer Securities shall be payable only upon presentation and surrender of the
interest coupons appertaining thereto.
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Upon the issuance of any new Security under this Section, the
Company and the Guarantors may require the payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in relation thereto and
any other expenses (including the fees and expenses of the Trustee, its agents
and counsel) connected therewith.
Every new Security with Senior Guarantees endorsed thereon of
any series with its interest coupons, if any, issued pursuant to this Section in
lieu of any destroyed, lost or stolen Security, or in exchange for a Security to
which a destroyed, lost or stolen interest coupon appertains, shall constitute
an original additional contractual obligation of the Company and the relevant
Guarantor, whether or not the destroyed, lost or stolen Security and its
interest coupon, if any, or the destroyed, lost or stolen interest coupon, shall
be at any time enforceable by anyone, and shall be entitled to all the benefits
of this Indenture equally and proportionately with any and all other Securities
of that series and their interest coupons, if any, duly issued hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Securities or
interest coupons.
Section 3.7. Payment of Interest; Interest Rights Preserved.
(a) Unless otherwise provided as contemplated by Section 3.1, interest, if any,
on any Registered Security which is payable, and is punctually paid or duly
provided for, on any Interest Payment Date shall be paid to the Person in whose
name that Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest at the office or
agency maintained for such purpose pursuant to Section 9.2; provided, however,
that at the option of the Company, interest on any series of Registered
Securities that bears interest may be paid (i) by check mailed to the address of
the Person entitled thereto as it shall appear on the Register of Holders of
Securities of such series or (ii) at the expense of the Company, by wire
transfer to an account maintained by the Person entitled thereto as specified in
the Register of Holders of Securities of such series.
Unless otherwise provided as contemplated by Section 3.1, (i)
interest, if any, on Bearer Securities shall be paid only against presentation
and surrender of the interest coupons for such interest installments as are
evidenced thereby as they mature and (ii) original issue discount, if any, on
Bearer Securities shall be paid only against presentation and surrender of such
Securities; in either case at the office of a Paying Agent located outside the
United States, unless the Company shall have otherwise instructed the Trustee in
writing, provided that any such instruction for payment in the United States
does not cause any Bearer Security to be treated as a "registration-required
obligation" under United States laws and regulations. The interest, if any, on
any
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temporary Bearer Security shall be paid, as to any installment of interest
evidenced by an interest coupon attached thereto only upon presentation and
surrender of such interest coupon and, as to other installments of interest,
only upon presentation of such Security for notation thereon of the payment of
such interest. If at the time a payment of principal of or interest, if any, on
a Bearer Security or interest coupon shall become due, the payment of the full
amount so payable at the office or offices of all the Paying Agents outside the
United States is illegal or effectively precluded because of the imposition of
exchange controls or other similar restrictions on the payment of such amount in
Dollars, then the Company may instruct the Trustee in writing to make such
payments at a Paying Agent located in the United States, provided that provision
for such payment in the United States would not cause such Bearer Security to be
treated as a "registration-required obligation" under United States laws and
regulations.
(b) Unless otherwise provided as contemplated by Section 3.1,
any interest on Securities of any series which is payable, but is not punctually
paid or duly provided for, on any Interest Payment Date in the case of
Registered Securities and upon presentation and surrender of the applicable
interest coupon in accordance with the second paragraph of Section 3.7(a) in the
case of Bearer Securities (herein called "Defaulted Interest"), shall forthwith
cease to be payable to the Holders of Registered Securities on the relevant
Regular Record Date by virtue of their having been such Holders, or to the
Holders of Bearer Securities by virtue of their having presented the applicable
interest coupon on such Interest Payment Date, and such Defaulted Interest may
be paid by the Company, at its election in each case, as provided in clause (1)
or (2) below:
(1) In the case of Registered Securities, the Company may
elect to make payment of such Defaulted Interest to the Persons in
whose names such Registered Securities (or their respective Predecessor
Securities) are registered at the close of business on a Special Record
Date for the payment of such Defaulted Interest, which shall be fixed
in the following manner. The Company shall notify the Trustee in
writing of the amount of Defaulted Interest proposed to be paid on each
such Registered Security and the date of the proposed payment, and
shall deposit with the Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements satisfactory to the Trustee for
such deposit prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons entitled
to such Defaulted Interest as in this clause (1) provided. Thereupon
the Trustee shall fix a Special Record Date for the payment of such
Defaulted Interest which shall be not more than 15 days and not less
than 10 days prior to the date of the proposed payment and not less
than 10 days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the Company of such
Special Record Date and, in the name and at the
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expense of the Company, shall cause notice of the proposed payment of
such Defaulted Interest and the Special Record Date therefor to be
mailed, first-class postage prepaid, to each Holder of such Registered
Securities at his or her address as it appears in the Register, not
less than 10 days prior to such Special Record Date. Notice of the
proposed payment of such Defaulted Interest and the Special Record Date
therefor having been so mailed, such Defaulted Interest shall be paid
to the Persons in whose names such Registered Securities (or their
respective Predecessor Securities) are registered at the close of
business on such Special Record Date and shall no longer be payable
pursuant to the following clause (2).
(2)(x) In the case of Registered Securities, the Company may
make payment of such Defaulted Interest to the Persons in whose names
such Registered Securities (or their respective Predecessor Securities)
are registered at the close of business on a specified date in any
other lawful manner not inconsistent with the requirements of any
securities exchange on which such Registered Securities may be listed,
and upon such notice as may be required by such exchange, if, after
notice given by the Company to the Trustee of the proposed payment
pursuant to this clause (2)(x), such manner of payment shall be deemed
practicable by the Trustee; or (y) unless otherwise provided as
contemplated by Section 3.1, in the case of Bearer Securities, the
Company may make payment of Defaulted Interest on such Bearer
Securities in any lawful manner not inconsistent with the requirements
of any securities exchange on which such Bearer Securities may be
listed, and upon such notice as may be required by such exchange, if,
after notice given by the Company to the Trustee of the proposed
payment pursuant to this clause (2)(y), such manner of payment shall be
deemed practicable by the Trustee.
(c) Subject to the foregoing provisions of this Section and
Section 3.5, each Security delivered under this Indenture upon registration of
transfer of or in exchange for or in lieu of any other Security shall carry the
rights to interest accrued and unpaid, and to accrue, which were carried by such
other Security.
(d) In the case of any Registered Security of a series which
is converted or exchanged after any Regular Record Date and on or prior to the
next succeeding Interest Payment Date (other than any Security the principal of
(or premium, if any, on) which shall become due and payable, whether at a Stated
Maturity or by declaration of acceleration, call for redemption, or otherwise,
prior to such Interest Payment Date), interest whose Stated Maturity is on such
Interest Payment Date shall be payable on such Interest Payment Date
notwithstanding such conversion or exchange and such interest (whether or not
punctually paid or duly provided for) shall be paid to the Person in whose name
that Registered Security (or any one or more Predecessor Securities) is
registered at the close of business on such Regular Record Date, unless
otherwise provided with respect to Securities of that series pursuant to Section
3.1(b).
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Section 3.8. Persons Deemed Owners. Unless otherwise provided
as contemplated by Section 3.1, prior to due presentment of any Registered
Security for registration of transfer, the Company, the Guarantors, the Trustee
and any agent of the Company, any Guarantor or the Trustee may treat the Person
in whose name such Registered Security is registered as the owner of such
Registered Security for the purpose of receiving payment of principal of,
premium, if any, and (subject to Section 3.7) interest on such Registered
Security and for all other purposes whatsoever, whether or not such Registered
Security be overdue, and neither the Company, any Guarantor, the Trustee nor any
agent of the Company, any Guarantor or the Trustee shall be affected by notice
to the contrary.
Unless otherwise provided as contemplated by Section 3.1, the
Company, the Guarantors, the Trustee and any agent of the Company, any Guarantor
or the Trustee may treat the bearer of any Bearer Security and the bearer of any
interest coupon as the absolute owner of such Bearer Security or interest coupon
for the purpose of receiving payment thereof or on account thereof and for all
other purposes whatsoever, whether or not such Bearer Security or interest
coupon be overdue, and neither the Company, the Guarantors, the Trustee nor any
agent of the Company, any Guarantor or the Trustee shall be affected by notice
to the contrary.
None of the Company, the Guarantors, the Trustee or any agent
of the Company, any Guarantor or the Trustee shall have any responsibility or
liability for any aspect of the records relating to or payments made on account
of beneficial ownership interests of a Security in global form, or for
maintaining, supervising or reviewing any records relating to such beneficial
ownership interests. No holder of any beneficial interest in any Security in
global form, held on its behalf by or through a Depositary, shall have any
rights under this Indenture with respect to such Security in global form, and
such Depositary may be treated by the Company, the Guarantors, the Trustee and
any agent of the Company, any Guarantor or the Trustee as the owner of such
Security in global form for all purposes whatsoever. With respect to any
Security in global form, nothing herein shall prevent the Company, the
Guarantors or the Trustee, or any agent of the Company, any Guarantor or the
Trustee, from giving effect to any written certification, proxy or other
authorization furnished by any Depositary (or its nominee), as a Holder, with
respect to such Security in global form or impair, as between such Depositary
and owners of beneficial interests in such Security in global form, the
operation of customary practices governing the exercise of the rights of such
Depositary (or its nominee) as Holder of such Security in global form.
Section 3.9. Cancellation. All Securities and interest coupons
appertaining thereto, if any, surrendered for payment, redemption, conversion,
registration of transfer or exchange or for credit against any sinking fund
payment shall, if surrendered to any Person other than the Trustee, be delivered
to the Trustee and, together with the Senior
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Guarantees endorsed thereon, shall be promptly cancelled by it. The Company may
at any time deliver to the Trustee for cancellation any Securities, together
with interest coupons appertaining thereto, if any, previously authenticated and
delivered hereunder which the Company may have acquired in any manner
whatsoever, and may deliver to the Trustee (or to any other Person for delivery
to the Trustee) for cancellation any Securities, together with interest coupons
appertaining thereto, if any, previously authenticated hereunder which the
Company has not issued and sold, and all Securities and interest coupons so
delivered shall, together with the Senior Guarantees endorsed thereon, be
promptly cancelled by the Trustee. No Securities shall be authenticated in lieu
of or in exchange for any Securities cancelled as provided in this Section 3.9,
except as expressly permitted by this Indenture. All cancelled Securities and
interest coupons held by the Trustee shall, together with the Senior Guarantees
endorsed thereon, be disposed of in accordance with its customary procedures,
and the Trustee shall thereafter deliver to the Company a certificate with
respect to such disposition.
Section 3.10. Computation of Interest. Except as otherwise
specified as contemplated by Section 3.1, interest on the Securities of each
series shall be computed on the basis of a 360-day year of twelve 30-day months.
Section 3.11. CUSIP Numbers. The Company in issuing the
Securities may use "CUSIP" numbers (if then generally in use and in addition to
the other identification numbers printed on the Securities), and, in such case,
the Trustee shall use "CUSIP" numbers in notices of redemption as a convenience
to Holders; provided that any such notice may state that no representation is
made as to the correctness of such numbers either as printed on the Securities
or as contained in any notice of a redemption and that reliance may be placed
only on the other identification numbers printed on the Securities, and any such
redemption shall not be affected by any defect in or omission of such numbers.
Section 3.12. Currency and Manner of Payment in Respect of
Securities. Unless otherwise specified with respect to any Securities pursuant
to Section 3.1, payment of the principal of, premium, if any, and interest, if
any, on any Security of such series will be made in the currency or currencies
or currency unit or units in which such Security is payable. The provisions of
this Section 3.12 may be modified or superseded pursuant to Section 3.1 with
respect to any Securities.
ARTICLE 4
SATISFACTION, DISCHARGE AND DEFEASANCE
Section 4.1. Termination of Company's Obligations Under the
Indenture. This Indenture shall upon a Company Request cease to be of further
effect with respect to Securities of or within any series and any interest
coupons appertaining thereto (except as
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to (i) rights of registration, transfer or exchange of such Securities, (ii)
rights of replacement of such Securities which may have been lost, stolen or
mutilated as herein expressly provided for, (iii) rights of holders of
Securities to receive payments of principal thereof and interest thereon, upon
the Stated Maturity thereof (but not upon acceleration), and rights of the
Holders to receive mandatory sinking fund payments, if any, (iv) rights of
holders of Securities to convert or exchange Securities, (v) rights,
obligations, duties and immunities of the Trustee hereunder, (vi) any rights of
the Holders of Securities of such series as beneficiaries hereof with respect to
the property so deposited with the Trustee payable to all or any of them, and
(vii) the obligations of the Company under Section 9.2) and the Trustee, upon
payment of all amounts due it under Section 6.7, at the expense of the Company,
shall execute proper instruments acknowledging satisfaction and discharge of
this Indenture with respect to such Securities and any interest coupons
appertaining thereto when
(1) either (A) all such Securities previously authenticated
and delivered and all interest coupons appertaining thereto (other than
(i) such interest coupons appertaining to Bearer Securities surrendered
in exchange for Registered Securities and maturing after such exchange,
surrender of which is not required or has been waived as provided in
Section 3.5, (ii) such Securities and interest coupons which have been
destroyed, lost or stolen and which have been replaced or paid as
provided in Section 3.6, (iii) such interest coupons appertaining to
Bearer Securities called for redemption and maturing after the relevant
Redemption Date, surrender of which has been waived as provided in
Section 11.6 and (iv) such Securities and interest coupons for whose
payment money in the currency or currencies or currency unit or units
in which such Securities are payable has theretofore been deposited in
trust or segregated and held in trust by the Company and thereafter
repaid to the Company or discharged from such trust, as provided in
Section 9.3) have been delivered to the Trustee for cancellation; or
(B) all Securities of such series and, in the case of (i) or
(ii) below, any interest coupons appertaining thereto not theretofore
delivered to the Trustee for cancellation:
(i) have become due and payable, or
(ii) will become due and payable at their Stated
Maturity within one year, or
(iii) are to be called for redemption within one year
under arrangements satisfactory to the Trustee for the giving
of notice of redemption by the Trustee in the name, and at the
expense, of the Company,
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and the Company, in the case of (i), (ii) or (iii) above, has
irrevocably deposited or caused to be deposited with the
Trustee as trust funds in trust for the purpose an amount in
the currency or currencies or currency unit or units in which
the Securities of such series are payable, sufficient to pay
and discharge the entire indebtedness on such Securities and
such interest coupons not theretofore delivered to the Trustee
for cancellation, for principal, premium, if any, and
interest, with respect thereto, to the date of such deposit
(in the case of Securities which have become due and payable)
or to the Stated Maturity or Redemption Date, as the case may
be;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company and the Guarantors; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and
discharge of this Indenture as to such series have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the obligation
of the Company to the Trustee and any predecessor Trustee under Section 6.7, the
obligations of the Company to any Authenticating Agent under Section 6.14 and,
if money shall have been deposited with the Trustee pursuant to subclause (B) of
clause (1) of this Section, the obligations of the Trustee under Section 4.2,
Section 9.2 and the last paragraph of Section 9.3 shall survive.
Section 4.2. Application of Trust Funds. Subject to the
provisions of the last paragraph of Section 9.3, all money deposited with the
Trustee pursuant to Section 4.1 shall be held in trust and applied by it, in
accordance with the provisions of the Securities, the interest coupons
appertaining thereto, if any, and this Indenture, to the payment, either
directly or through any Paying Agent (including the Company acting as its own
Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of
the principal, premium, if any and any interest for whose payment such money has
been deposited with or received by the Trustee, but such money need not be
segregated from other funds except as otherwise provided herein and except to
the extent required by law.
Section 4.3. Applicability of Defeasance Provisions; Company's
Option to Effect Defeasance or Covenant Defeasance. Except as otherwise
specified as contemplated by Section 3.1 for the Securities of any series, the
provisions of Sections 4.4 through 4.9 inclusive, with such modifications
thereto as may be specified pursuant to Section 3.1 with respect to any series
of Securities, shall be applicable to the Securities and any interest coupons
appertaining thereto.
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Section 4.4. Defeasance and Discharge. On and after the date
on which the conditions set forth in Section 4.6 are satisfied with respect to
the Securities of or within any series, the Company shall be deemed to have paid
and been discharged from its obligations with respect to such Securities and any
interest coupons appertaining thereto (hereinafter "defeasance"). For this
purpose, such defeasance means that (i) the Company shall be deemed to have paid
and discharged the entire indebtedness represented by such Securities and any
interest coupons appertaining thereto which shall thereafter be deemed to be
"Outstanding" only for the purposes of Sections 4.7 and 4.9 and the other
Sections of this Indenture referred to in clause (ii)(B) of this Section, and to
have satisfied all its other obligations under such Securities and any interest
coupons appertaining thereto and this Indenture insofar as such Securities and
any interest coupons appertaining thereto are concerned (and the Trustee, upon
payment of all amounts due it under Section 6.7, at the expense of the Company,
shall on a Company Order execute proper instruments acknowledging the same) and
(ii) the Guarantors shall be released from all of their obligations under their
Senior Guarantees and under Article 16 of this Indenture, except the following
which shall survive until otherwise terminated or discharged hereunder: (A) the
rights of Holders of such Securities and any interest coupons appertaining
thereto to receive, solely from the trust funds described in Section 4.6(a) and
as more fully set forth in such Section, payments in respect of the principal
of, premium, if any, and interest, if any, on such Securities or any interest
coupons appertaining thereto when such payments are due; (B) the Company's
obligations with respect to such Securities under Sections 3.4, 3.5, 3.6, 9.2
and 9.3 and with respect to the payment of additional amounts, if any, payable
with respect to such Securities as specified pursuant to Section 3.1(b)(16); (C)
the Company's obligations with respect to a conversion or exchange of such
Securities; (D) the rights, powers, trusts, duties and immunities of the Trustee
hereunder and (E) this Article 4. Subject to compliance with this Article 4, the
Company may defease the Securities of any series and any interest coupons
appertaining thereto under this Section 4.4 notwithstanding a prior covenant
defeasance (as defined herein) under Section 4.5 with respect to such Securities
and any interest coupons appertaining thereto. Following a defeasance, payment
of such Securities may not be accelerated because of an Event of Default.
Section 4.5. Covenant Defeasance. On and after the date on
which the conditions set forth in Section 4.6 are satisfied with respect to the
Securities of or within any series, (i) the Company shall be released from its
obligations under Sections 7.1 and 9.4 and, if specified pursuant to Section
3.1, its obligations under any other covenant, with respect to such Securities
and any interest coupons appertaining thereto and (ii) the occurrence of any
event specified in Sections 5.1(d) or 5.1(i) (in each case, with respect to any
of the obligations described in clause (i) above) or 5.1(e) shall be deemed not
to be or result in a Default or Event of Default (hereinafter, "covenant
defeasance"), and such Securities and any interest coupons appertaining thereto
shall thereafter be deemed to be
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not "Outstanding" for the purposes of any request, demand, authorization,
direction, notice, waiver, consent or declaration or Act of Holders (and the
consequences of any thereof) in connection with Section 7.1 or 9.4, such other
covenant specified pursuant to Section 3.1, or Sections 5.1(d) or 5.1(i) (in
each case, with respect to any of the obligations described in clause (i) above)
or 5.1(e), but shall continue to be deemed "Outstanding" for all other purposes
hereunder. For this purpose, such covenant defeasance means that, with respect
to such Securities and any interest coupons appertaining thereto, the Company
may omit to comply with and shall have no liability in respect of any term,
condition or limitation set forth in any such Section or such other covenant,
whether directly or indirectly, by reason of any reference elsewhere herein to
any such Section or such other covenant or by reason of reference in any such
Section or such other covenant to any other provision herein or in any other
document and such omission to comply shall not constitute a Default or an Event
of Default under Section 5.1(d), 5.1(e) or 5.1(i) or otherwise, as the case may
be, but, except as specified above, the remainder of this Indenture and such
Securities and any interest coupons appertaining thereto shall be unaffected
thereby.
Section 4.6. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to application of either Section 4.4 or
Section 4.5 to the then Outstanding Securities of or within a series:
(a) The Company shall irrevocably have deposited or caused to
be deposited with the Trustee (or another trustee satisfying the requirements of
Section 6.9 who shall agree to comply with the provisions of Sections 4.3
through 4.9 inclusive and the last paragraph of Section 9.3 applicable to the
Trustee, for purposes of such sections also a "Trustee") as trust funds in trust
for the purpose of making the following payments, specifically pledged as
security for, and dedicated solely to, the benefit of the Holders of such
Securities and any interest coupons appertaining thereto, (A) money in an
amount, or (B) Government Obligations which through the scheduled payment of
principal and interest in respect thereof in accordance with their terms will
provide, not later than one day before the due date of any payment, money in an
amount, or (C) a combination thereof, in an amount sufficient in the opinion of
a nationally recognized firm of independent certified public accountants
expressed in a written opinion with respect thereto delivered to the Trustee, to
pay and discharge, and which shall be applied by the Trustee (or other
qualifying trustee) to pay and discharge, (x) the principal of (premium, if any)
and each installment of interest, if any, on the outstanding Securities and any
interest coupons appertaining thereto on the Stated Maturity of such principal
or installment of interest and (y) any mandatory sinking fund payments
applicable to such Securities on the day on which such payments are due and
payable in accordance with the terms of this Indenture and of such Securities
and any interest coupons appertaining thereto.
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(b) In the case of an election under Section 4.4, the Company
shall have delivered to the Trustee an Opinion of Counsel stating that (x) the
Company has received from, or there has been published by, the Internal Revenue
Service a ruling, or (y) since the date of this Indenture there has been a
change in the applicable Federal income tax law, in either case to the effect
that, and based thereon such opinion shall confirm that, the Holders of the
Outstanding Securities and any interest coupons appertaining thereto will not
recognize gain or loss for Federal income tax purposes as a result of such
deposit, defeasance and discharge and will be subject to Federal income tax on
the same amount, in the same manner and at the same times as would have been the
case if such deposit, defeasance and discharge had not occurred.
(c) In the case of an election under Section 4.5, the Company
shall have delivered to the Trustee an Opinion of Counsel to the effect that the
Holders of the Outstanding Securities and any interest coupons appertaining
thereto will not recognize gain or loss for Federal income tax purposes as a
result of such deposit and 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.
(d) The Company shall have delivered to the Trustee an
Officer's Certificate to the effect that the Securities, if then listed on any
securities exchange or approved for trading in any automated quotation system,
will not be delisted or disapproved for such trading as a result of such
deposit.
(e) No Event of Default or event which with notice or lapse
of time or both would become an Event of Default shall have occurred and be
continuing on the date of such deposit or, insofar as subsections 5.1(g) and (h)
are concerned, at any time during the period ending on the 91st day after the
date of such deposit (it being understood that this condition shall not be
deemed satisfied until the expiration of such period).
(f) Such defeasance or 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).
(g) 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.
(h) The Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for relating to either the defeasance under
Section 4.4 or the covenant defeasance under Section 4.5 (as the case may be)
have been complied with.
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(i) 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 registered under such act or exempt from registration
thereunder.
(j) Such defeasance or covenant defeasance shall be effected
in compliance with any additional or substitute terms, conditions or limitations
which may be imposed on the Company in connection therewith as contemplated by
Section 3.1.
Section 4.7. Deposited Money and Government Obligations to Be
Held in Trust. Subject to the provisions of the last paragraph of Section 9.3,
all money and Government Obligations (or other property as may be provided
pursuant to Section 3.1) (including the proceeds thereof) deposited with the
Trustee pursuant to Section 4.6 in respect of any Securities of any series and
any interest coupons appertaining thereto shall be held in trust and applied by
the Trustee, in accordance with the provisions of such Securities and any
interest coupons appertaining thereto and this Indenture, to the payment, either
directly or through any Paying Agent (including the Company acting as its own
Paying Agent) as the Trustee may determine, to the Holders of such Securities
and any interest coupons appertaining thereto of all sums due and to become due
thereon in respect of principal, premium, if any, and interest, if any, but such
money need not be segregated from other funds except as provided herein and
except to the extent required by law.
Section 4.8. Repayment to Company. Subject to the delivery by
the Company of any written certification required by the last paragraph of this
Section 4.8, the Trustee (and any Paying Agent) shall promptly pay to the
Company upon Company Request any excess money or securities held by them at any
time.
The provisions of the last paragraph of Section 9.3 shall
apply to any money or securities held by the Trustee or any Paying Agent under
this Article 4 that remain unclaimed for two years after the Maturity of any
series of Securities for which money or securities have been deposited pursuant
to Section 4.6(a).
Anything in this Article to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or Government Obligations held by it as provided in Section
4.6 with respect to any Securities which, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, are in excess of the amount
thereof which would then be required to be deposited to effect the defeasance or
covenant defeasance, as the case may be, with respect to such Securities.
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Section 4.9. Indemnity for Government Obligations. The Company
shall pay, and shall indemnify the Trustee against, any tax, fee or other charge
imposed on or assessed against Government Obligations deposited pursuant to this
Article or the principal and interest received in respect thereof other than any
such tax, fee or other charge which by law is for the account of the Holders of
the Outstanding Securities.
Section 4.10. Reinstatement. If the Trustee (or Paying Agent)
is unable to apply any money or Government Obligations in accordance with
Section 4.6 by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application, then
the Company's obligations under this Indenture and the Securities shall be
revived and reinstated, with present and prospective effect, as though no
deposit had occurred pursuant to Section 4.6, until such time as the Trustee (or
Paying Agent) is permitted to apply all such money or Government Obligations in
accordance with Section 4.6; provided, however, that if the Company makes any
payment to the Trustee (or Paying Agent) of principal, premium, if any, or
interest on any Security following the reinstatement of its obligations, the
Trustee (or Paying Agent) shall promptly pay any such amount to the Holders of
the Securities and the Company shall be subrogated to the rights of the Holders
of such Securities to receive such payment from the money and Government
Obligations held by the Trustee (or Paying Agent).
ARTICLE 5
DEFAULTS AND REMEDIES
Section 5.1. Events of Default. An "Event of Default," with
respect to the Securities of any series, means any one of the following events
(whatever the reason for such Event of Default and whether it shall be voluntary
or involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(a) default in the payment of interest on any Security of that
series or any interest coupon appertaining thereto or any additional amount
payable with respect to any Security of that series as specified pursuant to
Section 3.1(b)(16) when the same becomes due and payable and such default
continues for a period of 30 days; or
(b) default in the payment of any installment of the principal
of or any premium on any Security of that series when the same becomes due and
payable at its Maturity; or
(c) default in the deposit of any sinking fund payment, when
and as due by the terms of a Security of that series; or
(d) default in the performance, or breach, of any covenant or
warranty of
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the Company or any Guarantor in this Indenture (other than a covenant or
warranty a default in whose performance or whose breach is elsewhere in this
Section specifically dealt with) or the Securities, and continuance of such
default or breach for a period of 60 days after there has been given, in the
manner provided in Section 1.6, to the Company by the Trustee or to the Company
and the Trustee by the Holders of at least 10% in principal amount of the
Outstanding Securities of the series, a written notice specifying such default
or breach and requiring it to be remedied and stating that such notice is a
"Notice of Default" hereunder; or
(e) a default or defaults under the terms of any bond(s),
debenture(s), note(s) or other evidence(s) of, or obligations constituting, Debt
by the Company, any Guarantor or any Restricted Subsidiary, or under any
mortgage(s), indenture(s), agreement(s) or instrument(s) under which there may
be issued or by which there may be secured or evidenced, any Debt of the
Company, any Guarantor or any Restricted Subsidiary with a principal amount then
outstanding, individually or in the aggregate, in excess of $25 million, whether
such Debt now exists or is hereafter Incurred, which default or defaults
constitute a failure to pay any portion of the principal or similar amount of
such Debt when due and payable after the expiration of any applicable grace
period with respect thereto or results in such Debt becoming or being declared
due and payable prior to the date on which it would otherwise have become due
and payable; or
(f) a final judgment or final judgments (not subject to
appeal) for the payment of money are entered against the Company, Allied or any
Restricted Subsidiary in an aggregate amount in excess of $25 million by a court
or courts of competent jurisdiction, which judgments remain unstayed,
undischarged or unbonded for a period of 60 days after the entry of such
judgment or judgments; or
(g) the entry by a court having jurisdiction in the premises
of (A) a decree or order for relief in respect of the Company, Allied or any
Restricted Subsidiary in an involuntary case or proceeding under any applicable
Federal or state bankruptcy, insolvency, reorganization or other similar law or
(B) a decree or order adjudging the Company, Allied or any Restricted Subsidiary
a bankrupt or insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjustment or composition of or in respect of the
Company, Allied or any Restricted Subsidiary under any applicable Federal or
state law, or appointing a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company, Allied or any Restricted
Subsidiary or of any substantial part of the property of the Company, Allied or
any Restricted Subsidiary, or ordering the winding up or liquidation of the
affairs of the Company, Allied or any Restricted Subsidiary, and the continuance
of any such decree or order for relief or any such other decree or order
unstayed and in effect for a period of 60 consecutive days; or
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(h) the commencement by the Company, Allied or any Restricted
Subsidiary of a voluntary case or proceeding under any applicable Federal or
state bankruptcy, insolvency, reorganization or other similar law or of any
other case or proceeding to be adjudicated a bankrupt or insolvent, or the
consent by the Company, Allied or any Restricted Subsidiary to the entry of a
decree or order for relief in respect of the Company, Allied or any Restricted
Subsidiary in an involuntary case or proceeding under any applicable Federal or
state bankruptcy, insolvency, reorganization or other similar law or to the
commencement of any bankruptcy or insolvency case or proceeding against the
Company, Allied or any Restricted Subsidiary or the filing by the Company,
Allied or any Restricted Subsidiary of a petition or answer or consent seeking
reorganization or relief under any applicable Federal or state law, or the
consent by the Company, Allied or any Restricted Subsidiary to the filing of
such a petition or to the appointment of or taking possession by a custodian,
receiver, liquidator, assignee, trustee, sequestrator or similar official of the
Company, Allied or any Restricted Subsidiary or of any substantial part of the
property of the Company, Allied or any Restricted Subsidiary, or the making by
the Company, Allied or any Restricted Subsidiary of an assignment for the
benefit of creditors, or the admission by the Company, Allied or any Restricted
Subsidiary in writing of its inability to pay its debts generally as they become
due, or the taking of corporate action by the Company, Allied or any Restricted
Subsidiary in furtherance of any such action; or
(i) any other Event of Default provided as contemplated by
Section 3.1 with respect to Securities of that series.
Section 5.2. Acceleration; Rescission and Annulment. If an
Event of Default with respect to the Securities of any series at the time
Outstanding (other than an Event of Default specified in clause (g) or (h) of
Section 5.1) occurs and is continuing, the Trustee or the Holders of at least
25% in aggregate principal amount of all of the Outstanding Securities of that
series, by written notice received by the Company (and, if given by the Holders,
received by the Trustee), may declare the principal (or, if the Securities of
that series are Original Issue Discount Securities or Indexed Securities, such
portion of the principal amount as may be specified in the terms of that series)
of and accrued interest, if any, on all the Securities of that series to be due
and payable and upon any such declaration such principal (or, in the case of
Original Issue Discount Securities or Indexed Securities, such specified amount)
and interest, if any, shall be immediately due and payable. If an Event of
Default specified in clause (g) or (h) of Section 5.1 with respect to the
Securities of any series at the time Outstanding occurs and is continuing, then
the principal (or, if the Securities of that series are Original Issue Discount
Securities or Indexed Securities, such portion of the principal amount as may be
specified in the terms of that series) of and accrued interest, if any, on all
the Securities of that series shall ipso facto be immediately due and payable
without any declaration or act on the part of the Trustee or any Holder of such
Securities.
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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 of that series, by
written notice to the Company and the Trustee, may rescind and annul such
declaration and its consequences if
(1) the Company or any of the Guarantors has paid or deposited
with the Trustee a sum sufficient to pay
(A) all overdue interest on all Securities of that
series,
(B) the principal of (and premium, if any, on) any
Securities of that series which have become due otherwise than
by such declaration of acceleration and any interest thereon
at the rate borne by the Securities of that series,
(C) to the extent that payment of such interest is
lawful, interest upon overdue interest at the rate provided
therefor in the Securities of that series, and
(D) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel;
and
(2) all Events of Default, other than the nonpayment of the
principal of Securities of that series which have become due solely by such
declaration of acceleration, have been cured or waived as provided in Section
5.7.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Section 5.3. Collection of Indebtedness and Suits for
Enforcement by Trustee. The Company covenants that if
(a) default is made in the payment of any interest on any
Security or interest coupon, if any, when such interest becomes due and
payable and such default continues for a period of 30 days, or
(b) default is made in the payment of the principal of (or
premium, if any, on) any Security at the Maturity thereof,
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the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities or interest coupons, if any, the whole amount then
due and payable on such Securities for principal, premium, if any, and interest
and, to the extent that payment of such interest shall be legally enforceable,
interest on any overdue principal, premium, if any, and on any overdue interest,
at the rate or rates prescribed therefor in such Securities or interest coupons,
if any, and, in addition thereto, such further amount as shall be sufficient to
cover the costs and expenses of collection, including all amounts due the
Trustee, its agents and counsel under Section 6.7.
If the Company or any Guarantor fails to pay such amounts
forthwith upon such demand, the Trustee, in its own name and as trustee of an
express trust, may institute a judicial proceeding for the collection of the
sums so due and unpaid and may prosecute such proceeding to judgment or final
decree, and may enforce the same against the Company, any Guarantor, any other
obligor upon the Securities and collect the moneys adjudged or decreed to be
payable in the manner provided by law out of the property of the Company, any
Guarantor or any other obligor upon the Securities, wherever situated.
If an Event of Default with respect to Securities of any
series occurs and is continuing, the Trustee may in its discretion proceed to
protect and enforce its rights and the rights of the Holders of Securities of
such series by such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to secure any other proper remedy,
subject, however, to Section 5.8.
Section 5.4. Trustee May File Proofs of Claim. In case of any
judicial proceeding relative to the Company (or any Guarantor or any other
obligor upon the Securities), its property or its creditors (or of any Guarantor
or its creditors), the Trustee shall be entitled and empowered, by intervention
in such proceeding or otherwise, to take any and all actions authorized under
the Trust Indenture Act in order to have claims of the Holders and the Trustee
allowed in any such proceeding. In particular, the Trustee shall be authorized
to collect and receive any moneys or other property payable or deliverable on
any such claims and to distribute the same; and any custodian, receiver,
assignee, trustee, liquidator, sequestrator or other similar official in any
such judicial proceeding is hereby authorized by each Holder to make such
payments to the Trustee and, in the event that the Trustee shall consent to the
making of such payments directly to the Holders, to pay to the Trustee any
amount due it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 6.7.
No provision of this Indenture shall be deemed to authorize
the Trustee to authorize or consent to or accept or adopt on behalf of any
Holder of a Security or interest
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coupon any plan of reorganization, arrangement, adjustment or composition
affecting the Securities or the rights of any Holder of a Security or interest
coupon thereof or to authorize the Trustee to vote in respect of the claim of
any Holder of a Security or interest coupon in any such proceeding; provided,
however, that the Trustee may, on behalf of the Holders, vote for the election
of a trustee in bankruptcy or similar official and be a member of a creditors'
or other similar committee.
Section 5.5. Trustee May Enforce Claims Without Possession of
Securities. All rights of action and claims under this Indenture or the
Securities or any Senior Guarantee may be prosecuted and enforced by the Trustee
without the possession of any of the Securities or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the Trustee
shall be brought in its own name as trustee of an express trust, and any
recovery of judgment shall, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, be for the ratable benefit of the Holders of the Securities in
respect of which such judgment has been recovered.
Section 5.6 Delay or Omission Not Waiver. No delay or omission
by the Trustee or any Holder of any Securities to exercise any right or remedy
accruing upon an Event of Default shall impair any such right or remedy or
constitute a waiver of or acquiescence in any such Event of Default.
Section 5.7. Waiver of Past Defaults. The Holders of not less
than a majority in aggregate principal amount of Outstanding Securities of any
series by written notice to the Trustee may waive on behalf of the Holders of
all Securities of such series and any interest coupons appertaining thereto a
past Default or Event of Default with respect to that series and its
consequences except a Default or Event of Default (i) in the payment of the
principal of, premium, if any, or interest on any Security of such series or any
interest coupon appertaining thereto or (ii) in respect of a covenant or
provision hereof which pursuant to Article 8 cannot be amended or modified
without the consent of the Holder of each Outstanding Security of such series
affected. Upon any such waiver, such Default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
Section 5.8. Control by Majority. The Holders of not less than
a majority in aggregate principal amount of the Outstanding Securities of each
series affected (with each such series voting as a class) shall have the right
to direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee or exercising any trust or power conferred on it with
respect to Securities of that series; provided, however, that (i) the Trustee
may refuse to follow any direction that conflicts with any governmental rule or
law or this Indenture, (ii) the Trustee may refuse to follow any
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direction that is unduly prejudicial to the rights of the Holders of Securities
of such series not consenting, or that would in the good faith judgment of the
Trustee have a substantial likelihood of involving the Trustee in personal
liability without adequate indemnity having been offered therefor and (iii)
subject to Section 6.1, the Trustee may take any other action deemed proper by
the Trustee which is not inconsistent with such direction.
Section 5.9. Limitation on Suits by Holders. No Holder of any
Security of any series or any interest coupons appertaining thereto shall have
any right to institute any proceeding, judicial or otherwise, with respect to
this Indenture, or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless:
(a) the Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the Securities
of that series;
(b) the Holders of at least 25% in aggregate principal amount
of the Outstanding Securities of that series have made a written
request to the Trustee to institute proceedings in respect of such
Event of Default in its own name as Trustee hereunder;
(c) such Holder or Holders have offered to the Trustee
indemnity satisfactory to the Trustee against any loss, liability or
expense to be, or which may be, incurred by the Trustee in pursuing the
remedy;
(d) the Trustee for 60 days after its receipt of such notice,
request and the offer of indemnity has failed to institute any such
proceedings; and
(e) during such 60-day period, the Holders of a majority in
aggregate principal amount of the Outstanding Securities of that series
have not given to the Trustee a direction inconsistent with such
written request.
No one or more Holders of Securities of a series shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such
Holders.
Section 5.10. Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, but subject to Section
9.2, the right of any Holder of a Security or interest coupon to receive payment
of principal of, premium, if any, and, subject to Sections 3.5 and 3.7, interest
on the Security, on or after the respective due dates expressed in the Security
(or, in case of redemption, on the Redemption Dates), the right of any Holder of
an interest coupon to receive payment of interest due as provided in
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such interest coupon, or to bring suit for the enforcement of any such payment
on or after such respective dates, and the right, if any, to convert or exchange
such Security in accordance with Article 14, shall not be impaired or affected
without the consent of such Holder.
Section 5.11. Application of Money Collected. If the Trustee
collects any money pursuant to this Article, it shall pay out the money in the
following order, at the date or dates fixed by the Trustee and, in case of the
distribution of such money on account of principal, premium, if any, or
interest, upon presentation of the Securities and interest coupons, if any, and
the notation thereon of the payment if only partially paid and upon surrender
thereof if fully paid:
First: to the Trustee for amounts due under Section 6.7;
Second: to Holders of Securities and interest coupons in
respect of which or for the benefit of which such money has been
collected for amounts due and unpaid on such Securities for principal
of, premium, if any, and interest, ratably, without preference or
priority of any kind, according to the amounts due and payable on such
Securities for principal, premium, if any, and interest, respectively;
and
Third: the balance, if any, to the Company.
The Holders of each series of Securities denominated in ECU,
any other currency unit or a Foreign Currency and any matured interest coupons
relating thereto shall be entitled to receive a ratable portion of the amount
determined by the Trustee by converting the principal amount Outstanding of such
series of Securities and matured but unpaid interest on such series of
Securities in the currency in which such series of Securities is denominated
into Dollars at the Market Exchange Rate as of the date of declaration of
acceleration of Maturity of the Securities (or, if the default consists of a
failure to pay the principal of such Securities on the Stated Maturity thereof,
as of the Stated Maturity date).
The Trustee may fix a record date and payment date for any
payment to Holders pursuant to this Section 5.11. At least 15 days before such
record date, the Trustee shall mail to each Holder and the Company a notice that
states the record date, the payment date and the amount to be paid.
Section 5.12. Restoration of Rights and Remedies. If the
Trustee or any Holder has instituted any proceeding to enforce any right or
remedy under this Indenture and such proceeding has been discontinued or
abandoned for any reason, or has been determined adversely to the Trustee or to
such Holder, then and in every such case, subject to any determination in such
proceeding, the Company, the Trustee and the
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Holders shall be restored severally and respectively to their former positions
hereunder and thereafter all rights and remedies of the Trustee and the Holders
shall continue as though no such proceeding had been instituted.
Section 5.13. Rights and Remedies Cumulative. Except as
otherwise provided with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities in the last paragraph of Section 3.6, no
right or remedy herein conferred upon or reserved to the Trustee or the Holders
is intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at law
or in equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
Section 5.14. Undertaking for Costs. In any suit for the
enforcement of any right or remedy under this Indenture, or in any suit against
the Trustee for any action taken, suffered or omitted by it as Trustee, a court
may require any party litigant in such suit to file an undertaking to pay the
costs of such suit, and may assess costs against any such party litigant, in the
manner and to the extent provided in the Trust Indenture Act; provided, however,
that neither this Section nor the Trust Indenture Act shall be deemed to
authorize any court to require such an undertaking or to make such an assessment
in any suit instituted by the Company or any Guarantor, any Guarantor, the
Trustee or any Holder, or group of Holders, holding in the aggregate at least
10% in principal amount of the Outstanding Securities or in any suit instituted
by any Holder for the enforcement of principal of (any 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).
Section 5.15. Waiver of Stay, Extension or Usury Laws. Each of
the Company and the Guarantors covenants (to the extent that it may lawfully do
so) that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay or extension law
or any usury or other law wherever enacted, now or at any time hereafter in
force, which would prohibit or forgive the Company from paying all or any
portion of the principal, of, and premium, if any, or interest on the Securities
contemplated herein or in the Securities or which may affect the covenants or
the performance of this Indenture or prohibit or forgive any Guarantor from
performance under its Senior Guarantee; and each of the Company and the
Guarantors (to the extent that it may lawfully do so) hereby expressly waives
all benefit or advantage of any such law, and covenants that it will not hinder,
delay or impede the execution of any power herein granted to the Trustee, but
will suffer and permit the execution of every such power as though no such law
had been enacted.
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ARTICLE 6
THE TRUSTEE
Section 6.1. Certain Duties and Responsibilities. The duties
and responsibilities of the Trustee shall be as provided by the Trust Indenture
Act. Notwithstanding the foregoing, no provision of this Indenture shall require
the Trustee to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the exercise
of any of its rights or powers, if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against such risk
or liability is not reasonably assured to it. Whether or not therein expressly
so provided, every provision of this Indenture relating to the conduct or
affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section.
Section 6.2. Notice of Defaults. If a Default occurs hereunder
with respect to Securities of any series, the Trustee shall give the Holders of
Securities of such series notice of such Default as and to the extent provided
by the Trust Indenture Act; provided, however, that in the case of any Default
of the character specified in Section 5.1(d) with respect to Securities of such
series, no such notice to Holders shall be given until at least 30 days after
the occurrence thereof.
Section 6.3. Certain Rights of Trustee. Subject to the
provisions of Section 6.1:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or other
paper or document believed by it to be genuine and to have been signed
or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order,
and any resolution of the Board of Directors shall be sufficiently
evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically prescribed) may,
in the absence of bad faith on its part, rely upon an Officers'
Certificate;
(d) the Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and
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protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request
or direction of any of the Holders pursuant to this Indenture, unless
such Holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness
or other paper or document, but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts or matters
as it may see fit, and, if the Trustee shall determine to make such
further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company, personally or by agent or
attorney;
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder; and
(h) except with respect to Section 9.1, the Trustee shall have
no duty to inquire as to the performance by the Company or any
Guarantor of the covenants set forth in Article 9 beyond its good faith
review of any certificates or other notices received by it from the
Company or any Guarantor.
Section 6.4. Not Responsible for Recitals or Issuance of
Securities. The recitals contained herein and in the Securities and in the
Senior Guarantees endorsed thereon, except the Trustee's certificates of
authentication, shall be taken as the statements of the Company or the
Guarantors, as the case may be, and neither the Trustee nor any Authenticating
Agent assumes any responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Securities or the Senior Guarantees endorsed thereon. Neither the Trustee nor
any Authenticating Agent shall be accountable for the use or application by the
Company of Securities or the proceeds thereof.
Section 6.5. May Hold Securities. The Trustee, any
Authenticating Agent, any Paying Agent, any Security Registrar or any other
agent of the Company, any Guarantor or the Trustee, in its individual or any
other capacity, may become the owner or pledgee of Securities and, subject to
the definition of "Outstanding" set forth in Section
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1.1 and subject to Sections 6.8 and 6.13, may otherwise deal with the Company,
any Guarantor and any other obligor upon the Securities and the Senior
Guarantees with the same rights it would have if it were not Trustee,
Authenticating Agent, Paying Agent, Security Registrar or such other agent.
Section 6.6. Money Held in Trust. Money held by the Trustee in
trust hereunder need not be segregated from other funds except to the extent
required by law or by the provisions of this Indenture. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed with the Company or any Guarantor, as the case may be.
Section 6.7. Compensation and Reimbursement. The Company
agrees
(a) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
(b) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of its
agents and counsel), except any such expense, disbursement or advance
as may be attributable to its negligence or bad faith; and
(c) to indemnify the Trustee for, and to hold it harmless
against, any loss, liability or expense incurred without negligence or
bad faith on its part, arising out of or in connection with the
acceptance or administration of the trust or trusts hereunder,
including the costs and expenses of defending itself against any claim
or liability in connection with the exercise or performance of any of
its powers or duties hereunder.
Section 6.8. Conflicting Interests. If the Trustee has or
shall acquire a conflicting interest within the meaning of the Trust Indenture
Act, the Trustee shall either eliminate such interest or resign, to the extent
and in the manner provided by, and subject to the provisions of, the Trust
Indenture Act and this Indenture. To the extent permitted by such Act, the
Trustee shall not be deemed to have a conflicting interest by virtue of being a
trustee under this Indenture with respect to Securities of more than one series
or a trustee under (i) the Indenture dated as of May 15, 1997 between Allied and
the Trustee relating to the Allied's 11.30% Senior Discount Notes Due 2007, (ii)
the Indenture dated as of December 1, 1996 by and among the Company, Allied, as
guarantor, the Subsidiary Guarantors named therein and the Trustee relating to
the Company's 10 1/4% Senior Subordinated Notes due 2006, (iii) the Indenture
dated as of _________________, 1997 between
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Allied and the Trustee relating to Allied's senior subordinated debt securities,
(iv) the Indenture dated as of _________________, 1997 by and among Allied and
the Trustee relating to Allied's senior debt securities and (v) the Indenture
dated as of _________________, 1997 by and among the Company, Allied, as
guarantor, the Subsidiary Guarantors named therein and the Trustee relating to
the Company's senior subordinated debt securities.
Section 6.9. Corporate Trustee Required; Eligibility. There
shall at all times be a Trustee hereunder which shall be a Person that is
eligible pursuant to the Trust Indenture Act to act as such, has a combined
capital and surplus of at least $25,000,000 and has its Corporate Trust Office
located in the Borough of Manhattan, The City of New York. If such Person
publishes reports of condition at least annually, pursuant to law or to the
requirements of its supervising or examining authority, then for the purposes of
this Section, the combined capital and surplus of such Person shall be deemed to
be its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, it shall resign immediately in
the manner and with the effect hereinafter specified in this Article.
Section 6.10. Resignation and Removal; Appointment of
Successor. No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 6.11.
The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to the
Company. If the instrument of acceptance by a successor Trustee required by
Section 6.11 shall not have been delivered to the Trustee within 30 days after
the giving of such notice of resignation, the resigning Trustee may petition any
court of competent jurisdiction for the appointment of a successor Trustee with
respect to the Securities of such series.
The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal amount
of the Outstanding Securities of such series, delivered to the Trustee and to
the Company.
If at any time:
(a) the Trustee shall fail to comply with Section 6.8 after
written request therefor by the Company or by any Holder who has been a
bona fide Holder of a Security for at least six months, or
(b) the Trustee shall cease to be eligible under Section 6.9
and shall fail to resign after written request therefor by the Company
or by any such Holder, or
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(c) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (1) the Company by a Board Resolution may remove the
Trustee with respect to all Securities, or (2) subject to Section 5.14, any
Holder who has been a bona fide Holder of a Security for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees.
If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, with
respect to the Securities of one or more series, the Company, by a Board
Resolution, shall promptly appoint a successor Trustee or Trustees with respect
to the Securities of that or those series (it being understood that any such
successor Trustee may be appointed with respect to the Securities of one or more
or all of such series and that at any time there shall be only one Trustee with
respect to the Securities of any particular series) and shall comply with the
applicable requirements of Section 6.11. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of any series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance
of such appointment in accordance with the applicable requirements of Section
6.11, become the successor Trustee with respect to the Securities of such series
and to that extent supersede the successor Trustee appointed by the Company. If
no successor Trustee with respect to the Securities of any series shall have
been so appointed by the Company or the Holders and accepted appointment in the
manner required by Section 6.11, any Holder who has been a bona fide Holder of a
Security of such series for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction for
the appointment of a successor Trustee with respect to the Securities of such
series. The Company shall give notice of each resignation and each removal of
the Trustee with respect to the Securities of any series and each appointment of
a successor Trustee with respect to the Securities of any series to all Holders
of Securities of such series in the manner provided in Section 1.6. Each notice
shall include the name of the successor Trustee with respect to the Securities
of such series and the address of its Corporate Trust Office.
Section 6.11. Acceptance of Appointment by Successor. In case
of the appointment hereunder of a successor Trustee with respect to all
Securities, every such successor Trustee so appointed shall execute, acknowledge
and deliver to the Company,
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the Guarantors and to the retiring Trustee an instrument accepting such
appointment, and thereupon the resignation or removal of the retiring Trustee
shall become effective and such successor Trustee, without any further act, deed
or conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee; but, on the request of the Company or the
successor Trustee, such retiring Trustee shall, upon payment of its charges,
execute and deliver an instrument transferring to such successor Trustee all the
rights, powers and trusts of the retiring Trustee and shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder.
In case of the appointment hereunder of a successor Trustee
with respect to the Securities of one or more (but not all) series, the Company,
the Guarantors the retiring Trustee and each successor Trustee with respect to
the Securities of one or more series shall execute and deliver an indenture
supplemental hereto wherein each successor Trustee shall accept such appointment
and which (1) shall contain such provisions as shall be necessary or desirable
to transfer and confirm to, and to vest in, each successor Trustee all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates, (2) if the retiring Trustee is not retiring with respect to all
Securities, shall contain such provisions as shall be deemed necessary or
desirable to confirm that all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series as to
which the retiring Trustee is not retiring shall continue to be vested in the
retiring Trustee, and (3) shall add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the administration
of the trusts hereunder by more than one Trustee, it being understood that
nothing herein or in such supplemental indenture shall constitute such Trustees
co-trustees of the same trust and that each such Trustee shall be trustee of a
trust or trusts hereunder separate and apart from any trust or trusts hereunder
administered by any other such Trustee; and upon the execution and delivery of
such supplemental indenture the resignation or removal of the retiring Trustee
shall become effective to the extent provided therein and each such successor
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee with respect
to the Securities of that or those series to which the appointment of such
successor Trustee relates; but, on request of the Company, any Guarantor or any
successor Trustee, such retiring Trustee shall duly assign, transfer and deliver
to such successor Trustee all property and money held by such retiring Trustee
hereunder with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates.
Upon request of any such successor Trustee, the Company and
the Guarantors shall execute any and all instruments for more fully and
certainly vesting in and confirming to such successor Trustee all such rights,
powers and trusts referred to in the first or second preceding paragraph, as the
case may be.
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No successor Trustee shall accept its appointment unless at
the time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
Section 6.12. Merger, Conversion, Consolidation or Succession
to Business. Any corporation into which the Trustee may be merged or converted
or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to all or substantially all the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.
Section 6.13. Preferential Collection of Claims Against
Company. If and when the Trustee shall be or become a creditor of the Company or
any Guarantor (or any other obligor upon the Securities or the Senior Guarantees
endorsed thereon), the Trustee shall be subject to the provisions of the Trust
Indenture Act regarding the collection of claims against the Company (or any
Guarantor or any such other obligor).
Section 6.14. Appointment of Authenticating Agent. The Trustee
may appoint an Authenticating Agent or Agents with respect to one or more series
of Securities which shall be authorized to act on behalf of the Trustee to
authenticate Securities of such series issued upon original issue and upon
exchange, registration of transfer or partial redemption thereof or pursuant to
Section 3.6, and Securities so authenticated and the Senior Guarantees endorsed
thereon shall be entitled to the benefits of this Indenture and shall be valid
and obligatory for all purposes as if authenticated by the Trustee hereunder.
Wherever reference is made in this Indenture to the authentication and delivery
of Securities by the Trustee or the Trustee's certificate of authentication,
such reference shall be deemed to include authentication and delivery on behalf
of the Trustee by an Authenticating Agent and a certificate of authentication
executed on behalf of the Trustee by an Authenticating Agent. Each
Authenticating Agent shall be acceptable to the Company and shall at all times
be a corporation organized and doing business under the laws of the United
States of America, any State thereof or the District of Columbia, authorized
under such laws to act as Authenticating Agent, having a combined capital and
surplus of not less than $25,000,000 and subject to supervision or examination
by Federal or State authority. If such Authenticating Agent publishes reports of
condition at least annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such Authenticating Agent shall be deemed to be
its combined capital and surplus as set forth
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in its most recent report of condition so published. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any corporation succeeding to the
corporate agency or corporate trust business of an Authenticating Agent, shall
continue to be an Authenticating Agent, provided such corporation shall be
otherwise eligible under this Section, without the execution or filing of any
paper or any further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving
written notice thereof to the Trustee and to the Company. The Trustee may at any
time terminate the agency of an Authenticating Agent by giving written notice
thereof to such Authenticating Agent and to the Company. Upon receiving such a
notice of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall give notice of such
appointment in the manner provided in Section 1.6 to all Holders of Securities
of the series with respect to which such Authenticating Agent will serve. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Trustee agrees to pay to each Authenticating Agent from
time to time reasonable compensation for its services under this Section, and
the Trustee shall be entitled to be reimbursed for such payments, subject to the
provisions of Section 6.7.
If an appointment with respect to one or more series is made
pursuant to this Section, the Securities of such series may have endorsed
thereon, in addition to the Trustee's certificate of authentication, an
alternative certificate of authentication in the following form:
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This is one of the Securities with the Senior Guarantees
endorsed thereon of the series designated therein referred to in the
within-mentioned Indenture.
________________________________,
As Trustee
By:_____________________________,
As Authenticating Agent
By:_____________________________
Authorized Signatory
ARTICLE 7
CONSOLIDATION, MERGER OR SALE OF ASSETS BY THE COMPANY
Section 7.1. Consolidation, Merger or Sale of Assets
Permitted. Except as permitted by Sections 15.3 and 15.4(c), neither the Company
nor any Guarantor shall consolidate with or merge into, or sell, transfer, lease
or otherwise dispose of its properties and assets as, or substantially as, an
entirety to, any Person, and neither the Company nor any Guarantor shall permit
any Person to consolidate with or merge into the Company or any Guarantor,
unless:
(a) (1) the Company or the Guarantor, as the case may be, will
be the surviving entity or (2) the Person formed by or surviving any
such consolidation or merger (if other than the Company or the
Guarantor, as the case may be), or to which such sale, transfer, lease
or other disposition shall have been made, is an entity organized and
existing under the laws of the United States, any State thereof or the
District of Columbia;
(b) the Person formed by or surviving any such consolidation
or merger (if other than the Company or the Guarantor, as the case may
be), or to which such sale, transfer, lease or other disposition shall
have been made, expressly assumes by supplemental indenture all the
obligations of the Company or the Guarantor, as the case may be, under
the Securities, the Senior Guarantees and this Indenture, and the
Securities, the Senior Guarantees and this Indenture will remain in
full force and effect as so supplemented;
(c) immediately after giving effect to such consolidation,
merger, sale, transfer, lease or other disposition, no Default or Event
of Default exists; and
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(d) with respect to any series of Securities, the Company
satisfies such other conditions, if any, established with respect to
such series of Securities pursuant to and in accordance with Section
3.1.
Unless such proposed consolidation, merger, sale, transfer,
lease or other disposition is permitted by Section 15.3 or is a transaction in
which Subsidiary Guarantors will be automatically released from its Guarantee in
accordance with Section 15.4(c), the Company or the Guarantor, as the case may
be, shall deliver to the Trustee prior to the proposed consolidation, merger,
sale, transfer, lease or other disposition an Officers' Certificate to the
foregoing effect and an Opinion of Counsel stating that the proposed
consolidation, merger, sale, transfer, lease or other disposition and such
supplemental indenture comply with this Indenture and that all conditions
precedent to the consummation of such transaction under this Section 7.1 have
been met.
Upon any consolidation of the Company or the Guarantor, as the
case may be, with, or merger of the Company or the Guarantor, as the case may
be, into, any other Person or any sale, transfer, lease or other disposition of
properties and assets of the Company or the Guarantor, as the case may be, as,
or substantially as, an entirety in accordance with this Section 7.1, the
successor Person formed by such consolidation or into which the Company or the
Guarantor, as the case may be, is merged or to which such sale, transfer, lease
or other disposition is made shall (unless Section 15.4(c) applies) succeed to
and be substituted for, and may exercise every right and power of, the Company
or the Guarantor, as the case may be, hereunder and under the Securities and any
interest coupons appertaining thereto with the same effect as if such successor
Person had been named hereunder and thereunder and thereafter, except in the
case of a lease, the predecessor Person shall be relieved of all obligations and
covenants under this Indenture and the Securities.
ARTICLE 8
SUPPLEMENTAL INDENTURES
Section 8.1. Supplemental Indentures Without Consent of
Holders. Without the consent of any Holders, the Company, the Guarantors and the
Trustee, at any time and from time to time, may enter into indentures
supplemental hereto, in form reasonably satisfactory to the Trustee, for any of
the following purposes:
(a) to evidence the succession of another Person to the
Company and the assumption by any such successor of the covenants and
obligations of the Company or any Guarantor herein and in the
Securities and any interest coupons appertaining thereto; or
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(b) to add to the covenants of the Company for the benefit of
the Holders of all or any series of Securities (and if such covenants
are to be for the benefit of less than all series of Securities,
stating that such covenants are expressly being included solely for the
benefit of such series) or to surrender any right or power herein
conferred upon the Company; or
(c) to add any additional Events of Default with respect to
all or any series of Securities; or
(d) to add to or change any of the provisions of this
Indenture to such extent as shall be necessary to facilitate the
issuance or administration of Bearer Securities (including, without
limitation, to provide that Bearer Securities may be registrable as to
principal only) or to facilitate the issuance or administration of
Securities in global form; or
(e) to change or eliminate any of the provisions of this
Indenture in respect of one or more series of Securities, provided that
any such change or elimination shall become effective only when there
is no Security Outstanding of any series created prior to the execution
of such supplemental indenture which is entitled to the benefit of such
provision; or
(f) to secure any series of Securities; or
(g) to establish the form or terms of Securities of any series
as permitted by Sections 2.1 and 3.1; or
(h) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one
or more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee,
pursuant to the requirements of Section 6.11; or
(i) if allowed without penalty under applicable laws and
regulations, to permit payment in the United States (including any of
the States thereof and the District of Columbia), its territories, its
possessions and other areas subject to its jurisdiction of principal,
premium, if any, or interest, if any, on Bearer Securities or interest
coupons, if any; or
(j) to cure any ambiguity, to correct or supplement any
provision herein which may be inconsistent with any other provision
herein or to make any other provisions with respect to matters or
questions arising under this Indenture which shall not be inconsistent
with the provisions of this Indenture, provided such action
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shall not adversely affect in any material respect the interests of the
Holders of Securities of any series; or
(k) to make provision not adverse to the Holders of
Outstanding Securities of any series with respect to any conversion or
exchange rights of Holders pursuant to the requirements of Article 14,
including providing for the conversion or exchange of the Securities
into any Equity Securities of Allied; or
(l) to modify, eliminate or add to the provisions of this
Indenture to such extent as shall be necessary to effect the
qualification of this Indenture under the Trust Indenture Act or under
any similar federal statute subsequently enacted, and to add to this
Indenture such other provisions as may be expressly required under the
Trust Indenture Act.
Section 8.2. Supplemental Indentures With Consent of Holders.
With the consent of the Holders of not less than a majority of the aggregate
principal amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company, the
Company, the Guarantors and the Trustee may enter into an indenture or
indentures supplemental hereto to add any provisions to or to change in any
manner or eliminate any provisions of this Indenture or of any other indenture
supplemental hereto or to modify in any manner the rights of the Holders of
Securities of such series; provided, however, that without the consent of the
Holder of each Outstanding Security affected thereby, an amendment under this
Section may not:
(a) change the Stated Maturity of the principal of, or
premium, if any, on, or any installment of principal of or premium, if
any, or interest on, any Security, or reduce the principal amount
thereof or the rate of interest thereon or any premium payable upon the
redemption thereof, or change the manner in which the amount of any
principal thereof or premium, if any, or interest thereon is determined
or reduce the amount of the principal of any Original Issue Discount
Security or Indexed Security that would be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section
5.2, or change the currency or currency unit in which any Securities or
any premium or the interest thereon is payable, or impair the right to
institute suit for the enforcement of any such payment on or after the
Stated Maturity thereof (or, in the case of redemption, on or after the
Redemption Date);
(b) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of whose Holders is
required for any such supplemental indenture, or the consent of whose
Holders is required for any waiver (of compliance with certain
provisions of this Indenture or certain defaults
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hereunder and their consequences) provided for in this Indenture, or
reduce the requirements of Section 13.4 for quorum or voting;
(c) change any obligation of the Company to maintain an office
or agency in the places and for the purposes specified in Section 9.2;
(d) make any change that adversely affects any right to
convert or exchange any Security to which the provisions of Article 14
are applicable or, except as provided in this Indenture, decrease the
conversion or exchange rate or increase the conversion or exchange
price of any such Security; or
(e) make any change in this Section 8.2, Section 5.7 or
Section 9.6 except to increase any percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived
with the consent of the Holders of each Outstanding Security affected
thereby; provided, however, that this clause shall not be deemed to
require the consent of any Holder of a Security or coupon with respect
to changes in the references to "the Trustee" and concomitant changes
in this Section and Section 9.6 or the deletion of this proviso, in
accordance with the requirements of Section 6.11 and 8.1(h).
A supplemental indenture which changes or eliminates any
covenant or other provision of this Indenture which has expressly been included
solely for the benefit of one or more particular series of Securities, or which
modifies the rights of the Holders of Securities of such series with respect to
such covenant or other provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Securities of any other series.
It is not necessary under this Section 8.2 for the Holders to
consent to the particular form of any proposed supplemental indenture, but it is
sufficient if they consent to the substance thereof.
Section 8.3. Compliance with Trust Indenture Act. Every
amendment to this Indenture or the Securities of one or more series shall be set
forth in a supplemental indenture that complies with the Trust Indenture Act as
then in effect.
Section 8.4. Execution of Supplemental Indentures. In
executing, or accepting the additional trusts created by, any supplemental
indenture permitted by this Article or the modification thereby of the trusts
created by this Indenture, the Trustee shall be entitled to receive, and
(subject to Section 6.1) shall be fully protected in relying upon, an Officers'
Certificate and an Opinion of Counsel stating that the execution of such
supplemental indenture is authorized or permitted by this Indenture. The Trustee
may, but shall not be obligated to, enter into any such supplemental indenture
which affects the Trustee's own rights, duties or immunities under this
Indenture or otherwise.
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Section 8.5. Effect of Supplemental Indentures. Upon the
execution of any supplemental indenture under this Article, this Indenture shall
be modified in accordance therewith, and such supplemental indenture shall form
a part of this Indenture for all purposes; and every Holder of Securities
theretofore or thereafter authenticated and delivered hereunder and of any
interest coupon appertaining thereto shall be bound thereby.
Section 8.6. Reference in Securities to Supplemental
Indentures. Securities, including any interest coupons, of any series
authenticated and delivered after the execution of any supplemental indenture
pursuant to this Article may, and shall if required by the Trustee, bear a
notation in form approved by the Trustee as to any matter provided for in such
supplemental indenture. If the Company shall so determine, new Securities
including any interest coupons of any series so modified as to conform, in the
opinion of the Company, to any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered by the Trustee in
exchange for Outstanding Securities including any interest coupons of such
series.
Section 8.7. Notice of Supplemental Indentures. Promptly after
the execution by the Company and the Trustee of any supplemental indenture
pursuant to the provisions of Section 8.2, the Company shall give notice thereof
to the Holders of each Outstanding Security affected, in the manner provided for
in Section 1.6, setting forth in general terms the substance of such
supplemental indenture. Any failure of the Company to give such notice, or any
defect therein, shall not, however, in any way impair or affect the validity of
any such supplemental indenture.
ARTICLE 9
COVENANTS
Section 9.1. Payment of Principal, Premium, if any, and
Interest. The Company covenants and agrees for the benefit of the Holders of
each series of Securities that it will duly and punctually pay the principal of,
premium, if any, and interest, together with additional amounts, if any, on the
Securities of that series in accordance with the terms of the Securities of such
series, any interest coupons appertaining thereto and this Indenture; provided,
however, that amounts properly withheld under the Internal Revenue Code of 1986,
as amended, by any Person from a payment to any Holder of Securities, after
having requested such Holder to provide applicable information that would allow
such Person to make such payment without withholding, shall be considered as
having been paid by the Company to such Holder for purposes of this Indenture.
An installment of principal, premium, if any, or interest shall be considered
paid on the date it is due if there shall have been sent to the Trustee or
Paying Agent by wire transfer, or if the Trustee or Paying Agent otherwise
holds, on that date money designated for and sufficient to pay the installment.
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Section 9.2. Maintenance of Office or Agency. Unless otherwise
specified as contemplated by Section 3.1, if Securities of a series are issued
as Registered Securities, the Company will maintain in each Place of Payment for
that series of Securities an office or agency where Securities of that series
may be presented or surrendered for payment, where Securities of that series may
be surrendered for registration of transfer or exchange and where notices and
demands to or upon the Company or any Guarantor in respect of the Securities or
the Senior Guarantees of that series and this Indenture may be served. Unless
otherwise specified as contemplated by Section 3.1, if Securities of a series
are issuable as Bearer Securities, the Company will maintain, (i) subject to any
laws or regulations applicable thereto, an office or agency in a Place of
Payment for that series which is located outside the United States where
Securities of that series and related interest coupons may be presented and
surrendered for payment; provided, however, that if the Securities of that
series are listed on The International Stock Exchange of the United Kingdom and
the Republic of Ireland Limited, the Luxembourg Stock Exchange or any other
stock exchange located outside the United States and such stock exchange shall
so require, the Company will maintain a Paying Agent for the Securities of that
series in London, Luxembourg or any other required city located outside the
United States, as the case may be, so long as the Securities of that series are
listed on such exchange, and (ii) subject to any laws or regulations applicable
thereto, an office or agency in a Place of Payment for that series which is
located outside the United States, where Securities of that series may be
surrendered for exchange and where notices and demands to or upon the Company in
respect of the Securities of that series and this Indenture may be served. The
Company will give prompt written notice to the Trustee of the location, and any
change in the location, of any such office or agency. If at any time the Company
shall fail to maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the Corporate Trust Office of the
Trustee, and the Company and each Guarantor hereby appoints the Trustee as its
agent to receive all such presentations, surrenders, notices and demands.
Unless otherwise specified as contemplated by Section 3.1, no
payment of principal, premium or interest on Bearer Securities shall be made at
any office or agency of the Company in the United States, by check mailed to any
address in the United States, by transfer to an account located in the United
States or upon presentation or surrender in the United States of a Bearer
Security or interest coupon for payment, even if the payment would be credited
to an account located outside the United States; provided, however, that, if the
Securities of a series are denominated and payable in Dollars, payment of
principal of and any premium or interest on any such Bearer Security shall be
made at the office of the Company's Paying Agent in the Borough of Manhattan,
The City of New York, if (but only if) payment in Dollars of the full amount of
such principal, premium or
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interest, as the case may be, at all offices or agencies outside the United
States maintained for the purpose by the Company in accordance with this
Indenture is illegal or effectively precluded by exchange controls or other
similar restrictions.
Unless otherwise specified as contemplated by Section 3.1, the
Company may also from time to time designate one or more other offices or
agencies where the Securities (including any interest coupons, if any) of one or
more series may be presented or surrendered for any or all such purposes and may
from time to time rescind such designations; provided, however, that no such
designation or rescission shall in any manner relieve the Company of its
obligation to maintain an office or agency in each Place of Payment for
Securities (including any interest coupons, if any) of any series for such
purposes. The Company will give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location of any such other
office or agency.
Unless otherwise specified as contemplated by Section 3.1, the
Trustee shall initially serve as Paying Agent.
Section 9.3. Money for Securities Payments to Be Held in
Trust; Unclaimed Money. If the Company shall at any time act as its own Paying
Agent with respect to any series of Securities and any interest coupons
appertaining thereto, it will, on or before each due date of the principal of,
premium, if any, or interest on any of the Securities of that series, segregate
and hold in trust for the benefit of the Persons entitled thereto a sum
sufficient to pay the principal, premium, if any, or interest so becoming due
until such sums shall be paid to such Persons or otherwise disposed of as herein
provided and will promptly notify the Trustee in writing of its action or
failure so to act.
Whenever the Company shall have one or more Paying Agents for
any series of Securities and any interest coupons appertaining thereto, it will,
prior to each due date of the principal of or any premium or interest on any
Securities of that series, deposit with a Paying Agent a sum sufficient to pay
such amount, such sum to be held as provided by the Trust Indenture Act, and
(unless such Paying Agent is the Trustee) the Company will promptly notify the
Trustee of its action or failure so to act.
The Company will cause each Paying Agent for any series of
Securities other than the Trustee to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee, subject to
the provisions of this Section, that such Paying Agent will:
(a) comply with the provisions of the Trust Indenture Act
applicable to it as a Paying Agent;
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(b) hold all sums held by it for the payment of the principal
of, premium, if any, or interest on Securities of that series in trust
for the benefit of the Persons entitled thereto until such sums shall
be paid to such Persons or otherwise disposed of as herein provided;
(c) give the Trustee notice of any default by the Company (or
any other obligor upon the Securities of that series) in the making of
any payment of principal, premium, if any, or interest on the
Securities of that series; and
(d) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the Trustee
all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the terms set forth in this Indenture; and, upon such payment by any Paying
Agent to the Trustee, such Paying Agent shall be released from all further
liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of any principal of or
premium or interest on any Security of any series and remaining unclaimed for
two years after such principal, premium, if any, or interest has become due and
payable shall be paid to the Company on Company Request, or (if then held by the
Company) shall be discharged from such trust; and the Holder of such Security
and interest coupon, if any, shall thereafter, as an unsecured general creditor,
look only to the Company for payment thereof, and all liability of the Trustee
or such Paying Agent with respect to such trust money, and all liability of the
Company as trustee thereof, shall thereupon cease; provided, however, that the
Trustee or such Paying Agent, before being required to make any such repayment,
may in the name and at the expense of the Company cause to be published once, in
an Authorized Newspaper in each Place of Payment with respect to such series, or
cause to be mailed to such Holder, notice that such money remains unclaimed and
that, after a date specified therein, which shall not be less than 30 days from
the date of such publication, any unclaimed balance of such money then remaining
will be repaid to the Company.
Section 9.4. Corporate Existence. Subject to Article 7, the
Company will at all times do or cause to be done all things necessary to
preserve and keep in full force and effect its corporate existence and its
rights and franchises; provided that nothing in this Section 9.4 shall prevent
the abandonment or termination of any right or franchise of the Company if it
shall be determined that such abandonment or termination is desirable in the
conduct of the business of the Company.
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Section 9.5. Annual Review Certificate. The Company covenants
and agrees to deliver to the Trustee, within 90 days after the end of each
fiscal year of the Company, a certificate from the principal executive officer,
principal financial officer or principal accounting officer of the Company
stating that a review of the activities of the Company during such year and of
performance under this Indenture has been made under his or her supervision and
to the best of his or her knowledge, based on such review, each of the Company
and the Guarantors has fulfilled all of its obligations under this Indenture
throughout such year, or, if there has been a default in the fulfillment of any
such obligation, specifying each such default known to him or her and the nature
and status thereof. For purposes of this Section 9.5, such compliance shall be
determined without regard to any period of grace or requirement of notice
provided under this Indenture.
Section 9.6. Waiver of Certain Covenants. Except as otherwise
specified as contemplated by Section 3.1 for Securities of such series, the
Company or any Guarantor may, with respect to the Securities of any series, omit
in any particular instance to comply with any term, provision or condition set
forth in any covenant provided pursuant to Section 3.1(b)(15), 8.1(b) or 8.1(g)
for the benefit of the Holders of such series if before the time for such
compliance the Holders of at least a majority in principal amount of the
Outstanding Securities of such series shall, by act of such Holders in
accordance with Section 1.4, either waive such compliance in such instance or
generally waive compliance with such term, provision or condition, but no such
waiver shall extend to or affect such term, provision or condition except to the
extent so expressly waived, and, until such waiver shall become effective, the
obligations of the Company and each of the Guarantors and the duties of the
Trustee in respect of any such term, provision or condition shall remain in full
force and effect.
ARTICLE 10
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 10.1. Company to Furnish Trustee Names and Addresses
of Holders. The Company will furnish or cause to be furnished to the Trustee:
(a) semi-annually, not more than 15 days after each Regular
Record Date for any series, a list, in such form as the Trustee may reasonably
require, of the names and addresses of the Holders of Registered Securities of
such series as of such Regular Record Date; and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a list of
similar form and content for any or all series as of a date not more than 15
days prior to the time such list is furnished;
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excluding from any such list names and addresses possessed by the Trustee in its
capacity as Registrar.
Section 10.2. Preservation of Information, Communications to
Holders. (a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders of Registered Securities
contained in the most recent list furnished to the Trustee as provided in
Section 10.1 and the names and addresses of Holders of Registered Securities
received by the Trustee in its capacity as Registrar. The Trustee may destroy
any list furnished to it as provided in Section 10.1 upon receipt of a new list
so furnished.
(b) The rights of Holders of Securities to communicate with
other Holders with respect to their rights under this Indenture or under the
Securities, and the corresponding rights and privileges of the Trustee, shall be
as provided in the Trust Indenture Act.
(c) Every Holder of Securities and interest coupons
appertaining thereto, by receiving and holding the same, agrees with the Company
and the Trustee that neither the Company, the Guarantors nor the Trustee nor any
agent of any of them shall be held accountable by reason of the disclosure of
information as to the names and addresses of the Holders of Securities made
pursuant to the Trust Indenture Act.
Section 10.3. Reports by Trustee. (a) The Trustee shall
transmit to Holders of Securities such reports concerning the Trustee and its
actions under this Indenture as may be required pursuant to the Trust Indenture
Act, at the times and in the manner provided pursuant thereto.
(b) Reports so required to be transmitted at stated intervals
of not more than 12 months shall be transmitted no later than July 15 in each
calendar year, commencing with the first July 15 after the first issuance of
Securities under this Indenture.
(c) A copy of each such report shall, at the time of such
transmission to Holders of Securities, be filed by the Trustee with each stock
exchange upon which the Securities of any series may then be listed and also
with the Commission. The Company will notify the Trustee whenever the Securities
of any series are listed on any stock exchange.
Section 10.4. Reports by the Company and the Guarantors. The
Company and each of the Guarantors shall file with the Trustee and the
Commission, and transmit to the Holders, such information, documents and other
reports, and such summaries thereof, as may be required pursuant to the Trust
Indenture Act at the times and in the manner provided pursuant to such Act;
provided that any such information, documents or
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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.
Notwithstanding anything contrary herein, the Trustee shall have no duty to
review such documents for purposes of determining compliance with any provisions
of this Indenture.
ARTICLE 11
REDEMPTION
Section 11.1. Applicability of Article. Securities (including
interest coupons, if any) of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified as contemplated by Section 3.1 for Securities of any series)
in accordance with this Article.
Section 11.2. Election to Redeem; Notice to Trustee. The
election of the Company to redeem any Securities, including interest coupons, if
any, that, at the time of such election, may be redeemed at the option of the
Company, shall be evidenced by a Board Resolution. In the case of any such
redemption at the election of the Company of less than all the Securities or
interest coupons, if any, of any series, the Company shall, at least 45 days
prior to the Redemption Date fixed by the Company (unless a shorter notice shall
be satisfactory to the Trustee), notify the Trustee of such Redemption Date, of
the principal amount of Securities of such series to be redeemed and, if
applicable, of the tenor of the Securities to be redeemed. In the case of any
redemption of Securities (i) prior to the expiration of any restriction on such
redemption provided in the terms of such Securities or elsewhere in this
Indenture or (ii) pursuant to an election of the Company which is subject to a
condition specified in the terms of such Securities, the Company shall furnish
the Trustee with an Officers' Certificate evidencing compliance with such
restriction or condition.
Section 11.3. Selection of Securities to Be Redeemed. Unless
otherwise specified as contemplated by Section 3.1, if less than all the
Securities (including interest coupons, if any) of a series with the same terms
are to be redeemed, the Trustee, not more than 45 days prior to the Redemption
Date, shall select the Securities of the series to be redeemed in such manner as
the Trustee shall deem fair and appropriate. The Trustee shall make the
selection from Securities of the series that are Outstanding and that have not
previously been called for redemption and may provide for the selection for
redemption of portions (equal to the minimum authorized denomination for
Securities, including interest coupons, if any, of that series or any integral
multiple thereof) of the principal amount of Securities, including interest
coupons, if any, of such series of a denomination larger than the minimum
authorized denomination for Securities of that series, provided, that the
unredeemed portion of the principal amount of any Security shall be in an
authorized denomination (which shall not be less than the minimum
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authorized denomination) for such Security. The Trustee shall promptly notify
the Company in writing of the Securities selected by the Trustee for redemption
and, in the case of any Securities selected for partial redemption, the
principal amount thereof to be redeemed. If the Company shall so direct,
Securities registered in the name of the Company, any Guarantor, any Affiliate
or any Subsidiary of the Company or any Guarantor shall not be included in the
Securities selected for redemption.
For purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities (including
interest coupons, if any) shall relate, in the case of any Securities (including
interest coupons, if any) redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities (including interest coupons,
if any) which has been or is to be redeemed.
Section 11.4. Notice of Redemption. Unless otherwise specified
as contemplated by Section 3.1, notice of redemption shall be given in the
manner provided in Section 1.6 not less than 30 days nor more than 60 days prior
to the Redemption Date to the Holders of the Securities to be redeemed.
All notices of redemption shall state:
(a) the Redemption Date;
(b) the Redemption Price;
(c) if less than all the Outstanding Securities of a series
are to be redeemed, the identification (and, in the case of partial
redemption, the principal amounts) of the particular Security or
Securities to be redeemed;
(d) the Place or Places of Payment where such Securities,
together in the case of Bearer Securities with all interest coupons
appertaining thereto, if any, maturing on or after the Redemption Date,
are to be surrendered for payment of the Redemption Price;
(e) that Securities of the series called for redemption and
all unmatured interest coupons, if any, appertaining thereto must be
surrendered to the Paying Agent to collect the Redemption Price;
(f) that, on the Redemption Date, the Redemption Price will
become due and payable upon each such Security, or the portion thereof,
to be redeemed and, if applicable, that interest thereon will cease to
accrue on and after said date;
(g) that the redemption is from a sinking fund, if such is the
case;
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(h) that, unless otherwise specified in such notice, Bearer
Securities of any series, if any, surrendered for redemption must be
accompanied by all interest coupons maturing subsequent to the
Redemption Date or the amount of any such missing interest coupon or
interest coupons will be deducted from the Redemption Price, unless
security or indemnity satisfactory to the Company, the Trustee and any
Paying Agent is furnished;
(i) the CUSIP number, if any, of the Securities;
(j) if applicable, the conversion or exchange price, the date
on which the right to convert or exchange the Securities (or portions
thereof to be redeemed) will terminate and the place or places where
such Securities may be surrendered for conversion or exchange; and
(k) the procedures that a Holder must follow to surrender the
Securities so to be redeemed.
Notice of redemption of Securities to be redeemed shall be given by the Company
or, at the Company's request, by the Trustee in the name and at the expense of
the Company.
Section 11.5. Deposit of Redemption Price. On or prior to any
Redemption Date, the Company shall deposit with the Trustee or with a Paying
Agent (or, if the Company is acting as its own Paying Agent, segregate and hold
in trust as provided in Section 9.3) an amount of money in the currency or
currencies (including currency unit or units) in which the Securities of such
series are payable (except as otherwise specified pursuant to Section 3.1 for
the Securities of such series) sufficient to pay on the Redemption Date the
Redemption Price of, and (unless the Redemption Date shall be an Interest
Payment Date) interest accrued to the Redemption Date on, all Securities or
portions thereof which are to be redeemed on that date.
Unless any Security by its terms prohibits any redemption
obligation from being satisfied by delivering and crediting Securities
(including Securities redeemed otherwise than through a sinking fund), the
Company may deliver such Securities to the Trustee for crediting of an amount
equal to the then applicable Redemption Price for such Securities against such
payment obligation in accordance with the terms of such Securities and this
Indenture.
Section 11.6. Securities Payable on Redemption Date. Notice of
redemption having been given as aforesaid, the Securities so to be redeemed
shall, on the Redemption Date, become due and payable at the Redemption Price
therein specified, and from and after such date (unless the Company shall
default in the payment of the Redemption Price and accrued interest) such
Securities shall cease to bear interest and the interest coupons for any such
interest appertaining to any Bearer Security so to be
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redeemed, except to the extent provided below, shall be void. Except as provided
in the next succeeding paragraph, upon surrender of any such Security, including
interest coupons, if any, for redemption in accordance with said notice, such
Security shall be paid by the Company at the Redemption Price, together with
accrued interest to the Redemption Date; provided, however, that installments of
interest on Bearer Securities whose Stated Maturity is on or prior to the
Redemption Date shall be payable only at an office or agency located outside the
United States and its possessions (except as otherwise provided in Section 9.2)
and, unless otherwise specified as contemplated by Section 3.1, only upon
presentation and surrender of interest coupons for such interest; and provided,
further, that, unless otherwise specified as contemplated by Section 3.1,
installments of interest on Registered Securities that are due and payable on
Interest Payment Dates that are on or prior to the Redemption Date shall be
payable to the Holders of such Securities, or one or more Predecessor
Securities, registered as such at the close of business on the relevant Regular
Record Dates according to their terms and the provisions of Section 3.7.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant interest coupons maturing after the Redemption
Date, such Bearer Security may be paid after deducting from the Redemption Price
an amount equal to the face amount of all such missing interest coupons, or the
surrender of such missing interest coupon or interest coupons may be waived by
the Company and the Trustee if there be furnished to them such security or
indemnity as they may require to save each of them and any Paying Agent
harmless. If thereafter the Holder of such Bearer Security shall surrender to
the Trustee or any Paying Agent any such missing interest coupon in respect of
which a deduction shall have been made from the Redemption Price, such Holder
shall be entitled to receive the amount so deducted; provided, however, that
interest represented by interest coupons shall be payable only at an office or
agency located outside of the United States (except as otherwise provided
pursuant to Section 9.2) and, unless otherwise specified as contemplated by
Section 3.1, only upon presentation and surrender of those interest coupons.
If any Security called for redemption shall not be so paid
upon surrender thereof for redemption, the principal (and premium, if any)
shall, until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Security.
Section 11.7. Securities Redeemed in Part. Upon surrender of a
Security that is redeemed in part at any Place of Payment therefor (with, if the
Company or the Trustee so requires, due endorsement by, or a written instrument
of transfer in form satisfactory to the Company and the Trustee duly executed
by, the Holder thereof or his or her attorney duly authorized in writing), the
Company shall execute and the Trustee shall authenticate and deliver to the
Holder of that Security, without service charge, a new Security or Securities
(each with a Senior Guarantee of each Guarantor executed by each such Guarantor
and endorsed thereon) of the same series, having the same form, terms
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and Stated Maturity, in any authorized denomination equal in aggregate principal
amount to the unredeemed portion of the principal amount of the Security
surrendered.
ARTICLE 12
SINKING FUNDS
Section 12.1. Applicability of Article. The provisions of this
Article shall be applicable to any sinking fund for the retirement of Securities
of a series except as otherwise specified as contemplated by Section 3.1 for
Securities of such series.
The minimum amount of any sinking fund payment provided for by
the terms of Securities of any series is herein referred to as a "mandatory
sinking fund payment," and any payment in excess of such minimum amount provided
for by the terms of Securities of any series is herein referred to as an
"optional sinking fund payment." If provided for by the terms of Securities of
any series, the cash amount of any sinking fund payment may be subject to
reduction as provided in Section 12.2. Each sinking fund payment shall be
applied to the redemption of Securities of any series as provided for by the
terms of Securities of such series.
Section 12.2. Satisfaction of Sinking Fund Payments with
Securities. The Company (i) may deliver Outstanding Securities of a series
(other than any previously called for redemption) together, in the case of
Bearer Securities of such series, with all unmatured interest coupons
appertaining thereto and (ii) may apply as a credit Securities of a series which
have been (x) redeemed either at the election of the Company pursuant to the
terms of such Securities or through the application of permitted optional
sinking fund payments pursuant to the terms of such Securities, (y) converted or
exchanged pursuant to Article 14 or (z) previously delivered to the Trustee and
cancelled without reissuance pursuant to Section 3.9, in each case in
satisfaction of all or any part of any sinking fund payment with respect to the
Securities of such series required to be made pursuant to the terms of such
Securities as provided for by the terms of such series; provided that such
Securities have not been previously so credited. Such Securities shall be
received and credited for such purpose by the Trustee at the Redemption Price
specified in such Securities for redemption through operation of the sinking
fund and the amount of such sinking fund payment shall be reduced accordingly.
Section 12.3. Redemption of Securities for Sinking Fund. Not
less than 45 days prior to each sinking fund payment date for any series of
Securities, the Company will deliver to the Trustee an Officers' Certificate
specifying the amount of the next ensuing sinking fund payment for that series
pursuant to the terms of that series, the portion thereof, if any, which is to
be satisfied by payment of cash and the portion thereof, if any, which is to be
satisfied by delivering and crediting Securities of that series pursuant to
Section 12.2 and stating the basis for such credit and that such Securities have
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not been previously so credited, and will also deliver to the Trustee any
Securities to be so delivered. Not less than 30 days before each such sinking
fund payment date the Trustee shall select the Securities to be redeemed upon
such sinking fund payment date in the manner specified in Section 11.3 and cause
notice of the redemption thereof to be given in the name of and at the expense
of the Company in the manner provided in Section 11.4. Such notice having been
duly given, the redemption of such Securities shall be made upon the terms and
in the manner stated in Sections 11.6 and 11.7.
ARTICLE 13
MEETINGS OF HOLDERS OF SECURITIES
Section 13.1. Purposes for Which Meetings May Be Called. A
meeting of Holders of Securities of any series may be called at any time and
from time to time pursuant to this Article to make, give or take any request,
demand, authorization, direction, notice, consent, election, waiver or other
action provided by this Indenture to be made, given or taken by Holders of
Securities of such series.
Section 13.2. Call, Notice and Place of Meetings. (a) The
Trustee may at any time call a meeting of Holders of Securities of any series
for any purpose specified in Section 13.1, to be held at such time and at such
place in The City of New York or in such other place as may be acceptable to the
Company. Notice of every meeting of Holders of Securities, setting forth the
time and the place of such meeting and in general terms the action proposed to
be taken at such meeting, shall be given, in the manner provided in Section 1.6,
not less than 20 nor more than 180 days prior to the date fixed for the meeting.
(b) In case at any time the Company, pursuant to a Board
Resolution, shall have requested the Trustee to call a meeting of the Holders of
Securities of any series for any purpose specified in Section 13.1, by written
request setting forth in reasonable detail the action proposed to be taken at
the meeting, and the Trustee shall not have made the first publication of the
notice of such meeting within 20 days after receipt of such request or shall not
thereafter proceed to cause the meeting to be held as provided herein, then the
Company may determine the time and the place in The City of New York or such
other place as may be acceptable to the Company for such meeting and may call
such meeting for such purposes by giving notice thereof as provided in paragraph
(a) of this Section 13.2.
Section 13.3. Persons Entitled to Vote at Meetings. To be
entitled to vote at any meeting of Holders of Securities of any series, a Person
shall be (a) a Holder of one or more Outstanding Securities of such series, or
(b) a Person appointed by an instrument in writing as proxy for a Holder or
Holders of one or more Outstanding Securities of such series by such Holder or
Holders. The only Persons who shall be entitled to be present or
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to speak at any meeting of Holders shall be the Persons entitled to vote at such
meeting and their counsel, any representatives of the Trustee and its counsel
and any representatives of the Company and its counsel.
Section 13.4. Quorum; Action. The Persons entitled to vote a
majority in principal amount of the Outstanding Securities of a series shall
constitute a quorum for a meeting of Holders of Securities of such series;
provided, however, that if any action is to be taken at such meeting with
respect to a consent or waiver which this Indenture expressly provides may be
given by the Holders of not less than a specified percentage in principal amount
of the Outstanding Securities of a series, the Persons entitled to vote such
specified percentage in principal amount of the Outstanding Securities of such
series shall constitute a quorum. In the absence of a quorum within 30 minutes
after the time appointed for any such meeting, the meeting may be adjourned for
a period of not less than 10 days as determined by the chairman of the meeting
prior to the adjournment of such meeting. In the absence of a quorum at the
reconvening of any such adjourned meeting, such adjourned meeting may be further
adjourned for a period of not less than 10 days; at the reconvening of any
meeting adjourned or further adjourned for lack of a quorum, the persons
entitled to vote 25% in aggregate principal amount of the then Outstanding
Securities of the relevant series shall constitute a quorum for the taking of
any action set forth in the notice of the original meeting. Notice of the
reconvening of any adjourned meeting shall be given as provided in Section
13.2(b), except that such notice need be given only once not less than five days
prior to the date on which the meeting is scheduled to be reconvened.
Except as limited by the proviso to Section 8.2, any
resolution presented to a meeting or adjourned meeting duly reconvened at which
a quorum is present as aforesaid may be adopted by the affirmative vote of the
Holders of a majority in principal amount of the Outstanding Securities of that
series, provided, however, that, except as limited by the proviso to Section
8.2, any resolution with respect to any request, demand, authorization,
direction, notice, consent, waiver or other action which this Indenture
expressly provides may be made, given or taken by the Holders of a specified
percentage, which is less than a majority, in principal amount of the
Outstanding Securities of a series may be adopted at a meeting or an adjourned
meeting duly reconvened and at which a quorum is present as aforesaid by the
affirmative vote of the Holders of such specified percentage in principal amount
of the Outstanding Securities of that series.
Any resolution passed or decision taken at any meeting of
Holders of Securities of any series duly held in accordance with this Section
13.4 shall be binding on all the Holders of Securities of such series and the
related coupons, whether or not present or represented at the meeting.
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Notwithstanding the foregoing provisions of this Sections
13.4, if any action is to be taken at a meeting of Holders of Securities of any
series with respect to any request, demand, authorization, direction, notice,
consent, waiver or other action that this Indenture expressly provides may be
made, given or taken by the Holders of a specified percentage in principal
amount of all Outstanding Securities affected thereby, or of the Holders of such
series and one or more additional series:
(1) there shall be no minimum quorum requirement for such
meeting and
(2) the principal amount of the Outstanding Securities of such
series that vote in favor of such request, demand, authorization, direction,
notice, consent, waiver or other action shall be taken into account in
determining whether such request, demand, authorization, direction, notice,
consent, waiver or other action has been made, given or taken under this
Indenture.
Section 13.5. Determination of Voting Rights; Conduct and
Adjournment of Meetings. (a) Notwithstanding any other provisions of this
Indenture, the Trustee may make such reasonable regulations as it may deem
advisable for any meeting of Holders of Securities of any series in regard to
proof of the holding of Securities of such series and of the appointment of
proxies and in regard to the appointment and duties of inspectors of votes, the
submission and examination of proxies, certificates and other evidence of the
right to vote, and such other matters concerning the conduct of the meeting as
it shall deem appropriate. Except as otherwise permitted or required by any such
regulations, the holding of Securities shall be proved in the manner specified
in Section 1.4 and the appointment of any proxy shall be provided in the manner
specified in Section 1.4 or by having the signature of the Person executing the
proxy witnessed or guaranteed by any trust company, bank or banker authorized by
Section 1.4 to certify to the holding of Bearer Securities. Such regulations may
provide that written instruments appointing proxies, regular on their face, may
be presumed valid and genuine without the proof specified in Section 1.4 or
other proof.
(b) The Trustee shall, by an instrument in writing, appoint a
temporary chairman (which may be a Responsible Officer of the Trustee) of the
meeting, unless the meeting shall have been called by the Company as provided in
Section 13.2(b), in which case the Company shall in like manner appoint a
temporary chairman. A permanent chairman and a permanent secretary of the
meeting shall be elected by vote of the Persons entitled to vote a majority in
principal amount of the Outstanding Securities of such series represented at the
meeting.
(c) At any meeting each Holder of a Security of such series or
proxy shall be entitled to one vote for each U.S. $5,000 principal amount of
Securities held or
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represented by him or her; provided, however, that no vote shall be cast or
counted at any meeting in respect of any Security challenged as not Outstanding
and ruled by the chairman of the meeting to be not Outstanding. The chairman of
the meeting shall have no right to vote, except as a Holder of a Security or
proxy.
(d) Any meeting of Holders of Securities of a series duly
called pursuant to Section 13.2 at which a quorum is present may be adjourned
from time to time by Persons entitled to vote a majority in principal amount of
the Outstanding Securities of such series represented at the meeting, and the
meeting may be held as so adjourned without further notice.
Section 13.6. Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of Holders of Securities
of any series shall be by written ballots on which shall be subscribed the
signatures of the Holders of Securities of such series or of their
representatives by proxy and the principal amounts and serial numbers of the
Outstanding Securities held or represented by them. The permanent chairman of
the meeting shall appoint an inspector of votes who shall count all votes cast
at the meeting for or against any resolution and who shall make and file with
the secretary of the meeting its verified written reports in duplicate of all
votes cast at the meeting. A record of the proceedings of each meeting of
Holders of Securities shall be prepared by the applicable secretary of the
meeting and there shall be attached to said record the original report of the
inspector of votes on any vote by ballot taken thereat and affidavits by one or
more Persons having knowledge of the facts, setting forth a copy of the notice
of the meeting and showing that said notice was given as provided in Section
13.2 and, if applicable, Section 13.4. At least two copies of such record shall
be signed and verified by the affidavits of the permanent chairman and secretary
of the meeting and one copy thereof shall be delivered to the Company and the
other to the Trustee to be preserved by the Trustee, the latter to have attached
thereto the ballots voted at the meeting. Any record so signed and verified
shall be conclusive evidence of the matters therein stated.
ARTICLE 14
CONVERSION OR EXCHANGE OF SECURITIES
Section 14.1. Applicability of Article. (a) The provisions of
this Article 14 shall be applicable to the Securities of any series which are
convertible or exchangeable into Equity Securities of Allied, and to the
issuance of such Equity Securities upon the conversion or exchange of such
Securities, except as otherwise specified as contemplated by Section 3.1 for the
Securities of such series.
(b) The term "Equity Securities" shall mean all or any of the
following, authorized from time to time: (i) Allied's Common Stock, $.01 par
value (the "Common
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Stock"), (ii) Allied's Preferred Stock, $.10 par value (the "Preferred Stock"),
and (iii) any other equity securities of Allied.
Section 14.2. Exercise of Conversion or Exchange Privilege.
(a) In order to exercise a conversion or exchange privilege, the Holder of a
Security of a series with such privilege shall surrender such Security,
together, in the case of any Bearer Security, with all unmatured interest
coupons and any matured interest coupons in default appertaining thereto, to the
Company at the office or agency maintained for that purpose pursuant to Section
9.2, accompanied by written notice to Allied and the Company that the Holder
elects to convert or exchange such Security or a specified portion thereof. Such
notice shall also state, if different from the name and address of such Holder,
the name or names (with address) in which the certificate or certificates for
Equity Securities which shall be issuable on such conversion or exchange shall
be issued. Registered Securities surrendered for conversion or exchange shall
(if so required by Allied, the Company or the Trustee) be duly endorsed by or
accompanied by instruments of transfer in forms satisfactory to Allied, the
Company and the Trustee duly executed by the registered Holder or its attorney
duly authorized in writing.
(b) As promptly as practicable after the receipt of such
notice and of any payment required pursuant to a Board Resolution establishing
the terms of any series of Securities and, subject to Section 3.3, set forth, or
determined in the manner provided, in an Officers' Certificate, or established
in one or more indentures supplemental hereto setting forth the terms of such
series of Security, and the surrender of such Security in accordance with such
reasonable regulations as Allied and the Company may prescribe, Allied shall
issue and shall deliver, at the office or agency at which such Security is
surrendered, to such Holder or on its written order, a certificate or
certificates for the number of Equity Securities issuable upon the conversion or
exchange of such Security (or specified portion thereof), in accordance with the
provisions of such Board Resolution, Officers' Certificate or supplemental
indenture, and cash as provided therein in respect of any fractional share of
such Equity Security otherwise issuable upon such conversion or exchange.
(c) Such conversion or exchange shall be deemed to have been
effected immediately prior to the close of business on the date on which such
notice and such payment, if required, shall have been received in proper order
for conversion or exchange by Allied and the Company and such Security shall
have been surrendered as aforesaid and at such time the rights of the Holder of
such Security as such Security Holder shall cease and the person or persons in
whose name or names any certificate or certificates for Equity Securities of
Allied shall be issuable upon such conversion or exchange shall be deemed to
have become the Holder or Holders of record of the Equity Securities represented
thereby. Except as set forth above and subject to paragraph (d) of Section 3.7,
no payment or adjustment shall be made upon any conversion or exchange on
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account of any interest accrued on the Securities surrendered for conversion or
exchange, or on account of any dividends on the Equity Securities of Allied
issued upon such conversion or exchange if the record date for the payment of
such dividends occurs prior to or on the date on which such conversion or
exchange shall be deemed to have been effected.
In the case of any Security which is converted or exchanged in
part only, upon such conversion or exchange the Company shall execute and the
Trustee shall authenticate and deliver to or on the order of the Holder thereof,
at the expense of the Company, a new Security or Securities of the same series,
of authorized denominations, in aggregate principal amount equal to the
unconverted or unexchanged portion of such Security.
Section 14.3. No Fractional Equity Securities. No fractional
Equity Security of Allied shall be issued upon conversions or exchanges of
Securities of any series. If more than one Security shall be surrendered for
conversion or exchange at one time by the same Holder, the number of full shares
of the Equity Security which shall be issuable upon conversion or exchange shall
be computed on the basis of the aggregate principal amount of the Securities (or
specified portions thereof to the extent permitted hereby) so surrendered. If,
except for the provisions of this Section 14.3, any Holder of a Security or
Securities would be entitled to a fractional share of any Equity Security of
Allied upon the conversion or exchange of such Security or Securities, or
specified portions thereof, Allied or the Company shall pay to such Holder an
amount in cash equal to the current market value of such fractional share
computed, (i) if such Equity Security is listed or admitted to unlisted trading
privileges on a national securities exchange, on the basis of the last reported
sale price regular way on the principal exchange where such Equity Security is
listed or admitted, on the last trading day prior to the date of conversion or
exchange upon which such a sale shall have been effected, (ii) if such Equity
Security is not at the time so listed or admitted on a national securities
exchange but is quoted on the National Market System of the National Association
of Securities Dealers, Inc. ("NASDAQ"), on the basis of the average of the last
bid and asked prices of such Equity Security on NASDAQ on the last trading day
prior to the date of conversion or exchange, (iii) if such Equity Security is
not at the time so listed or admitted to unlisted trading privileges on a
national securities exchange or quoted on NASDAQ, on the basis of the average of
the last bid and asked prices of such Equity Security in the over-the-counter
market, on the last trading day prior to the date of conversion or exchange, as
reported by the National Quotation Bureau Incorporated or similar organization
if the National Quotation Bureau Incorporated is no longer reporting such
information, or (iv) in accordance with the terms of the supplemental indenture
or Board Resolutions setting the terms of the Securities of such series. For
purposes of this Section, "trading day" shall mean each Monday, Tuesday,
Wednesday, Thursday and Friday other than any day on which the applicable Equity
Security is not traded or quoted on a national securities exchange, or if the
applicable Equity Security is not traded or quoted
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on a national securities exchange, on NASDAQ or the principal exchange or market
on which the applicable Equity Security is traded or quoted.
Section 14.4. Adjustment of Conversion or Exchange Price;
Consolidation or Merger. The conversion or exchange price of Securities of any
series that is convertible or exchangeable into an Equity Security of Allied
shall be adjusted for any stock dividends, stock splits, reclassifications,
combinations or similar transactions, and the securities, assets or other
property into or for which such Securities may be converted or exchanged as a
result of any consolidation, merger, combination or similar transaction shall be
determined, in accordance with the terms of the supplemental indenture or Board
Resolutions setting the terms of the Securities of such series.
Whenever the conversion or exchange price is adjusted, Allied
and the Company shall compute the adjusted conversion or exchange price in
accordance with the terms of the applicable Board Resolution or supplemental
indenture and shall prepare an Officers' Certificate setting forth the adjusted
conversion or exchange price and showing in reasonable detail the facts upon
which such adjustment is based. Whenever the securities, assets or other
property into or for which Securities of any series may be converted or
exchanged are changed as a result of any consolidation, merger or similar
transaction, Allied and the Company shall determine the nature and amount of
such securities, assets or other property in accordance with the terms of the
applicable Board Resolution or supplemental indenture and shall prepare an
Officer's Certificate describing such securities, assets or other property and
stating the amount of such securities, assets or other property into or for
which such Securities have become convertible or exchangeable. Such certificates
shall forthwith be filed at each office or agency maintained for the purpose of
conversion or exchange of Securities pursuant to Section 9.2 and, if different,
with the Trustee Allied and the Company shall forthwith cause a notice setting
forth the adjusted conversion or exchange price or describing such securities,
assets or other property, as applicable, to be mailed, first class postage
prepaid, to each Holder of Registered Securities of such series at its address
appearing on the Register and to any conversion or exchange agent other than the
Trustee and shall serve notice to the Holder of Bearer Securities as provided in
1.6.
Section 14.5. Notice of Certain Corporate Actions. If any
series of Securities which are directly or indirectly convertible or
exchangeable for any Equity Securities are Outstanding, in case:
(a) Allied shall declare a dividend (or any other
distribution) on any class of such Equity Securities payable otherwise than in
cash out of its retained earnings; or
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(b) Allied shall authorize the granting to the holders of any
class of such Equity Securities of rights, options or warrants to subscribe for
or purchase any shares of capital stock of any class or of any other rights; or
(c) of any reclassification of any class of such Equity
Securities, or of the sale of all or substantially all of the assets of Allied ;
or
(d) of the voluntary or involuntary dissolution, liquidation
or winding up of Allied;
then Allied and the Company shall cause to be filed with the
Trustee, and shall cause to be mailed to all Holders at their addresses as they
shall appear in the Register and shall serve notice to the Holder of Bearer
Securities as provided in Section 1.6., at least 15 days (or 10 days in any case
specified in clause (a) or (b) above) prior to the applicable record date
hereinafter specified, a notice stating (i) the date on which a record is to be
taken for the purpose of such dividend, distribution, rights, options or
warrants, or, if a record is not to be taken, the date as of which the Holders
of such Equity Securities of record to be entitled to such dividend,
distribution, rights, options or warrants are to be determined, or (ii) the date
on which such reclassification, consolidation, merger, share exchange, sale,
dissolution, liquidation or winding up is expected to become effective, and the
date as of which it is expected that holders of such Equity Securities of record
shall be entitled to exchange such Equity Securities for securities, cash or
other property deliverable upon such reclassification, consolidation, merger,
share exchange, sale, dissolution, liquidation or winding up. If at any time the
Trustee shall not be the conversion or exchange agent, a copy of such notice
shall also forthwith be filed by Allied and the Company with the Trustee.
Section 14.6. Reservation of Equity Securities. Allied shall
at all times reserve and keep available, free from preemptive rights, out of its
authorized but unissued Equity Securities, for the purpose of effecting the
conversion or exchange of Securities, the full number of Equity Securities of
Allied then issuable upon the conversion or exchange of all Outstanding
Securities of any series that has conversion or exchange rights.
Section 14.7. Payment of Certain Taxes Upon Conversion or
Exchange. Allied and the Company will pay any and all taxes that may be payable
in respect of the issue or delivery of Allied's Equity Securities on conversion
or exchange of Securities pursuant hereto. Allied and the Company shall not,
however, be required to pay any tax which may be payable in respect of any
transfer involved in the issue and delivery of its Equity Securities in a name
other than that of the Holder of the Security or Securities to be converted or
exchanged, and no such issue or delivery shall be made unless and until the
Person requesting such issue has paid to Allied and the Company the amount of
any
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such tax, or has established, to the satisfaction of Allied and the Company,
that such tax has been paid.
Section 14.8. Duties of Trustee Regarding Conversion or
Exchange. Neither the Trustee nor any conversion or exchange agent shall at any
time be under any duty or responsibility to any Holder of Securities of any
series that is convertible or exchangeable into Equity Securities of Allied to
determine whether any facts exist which may require any adjustment of the
conversion or exchange price, or with respect to the nature or extent of any
such adjustment when made, or with respect to the method employed, whether
herein or in any supplemental indenture, any resolutions of the Board of
Directors or written instrument executed by one or more officers of Allied and
the Company provided to be employed in making the same. Neither the Trustee nor
any conversion or exchange agent shall be accountable with respect to the
validity or value (or the kind or amount) of any Equity Securities of Allied, or
of any securities or property, which may at any time be issued or delivered upon
the conversion or exchange of any Securities and neither the Trustee nor any
conversion or exchange agent makes any representation with respect thereto.
Subject to the provisions of Section 6.1, neither the Trustee nor any conversion
or exchange agent shall be responsible for any failure of Allied or the Company
to issue, transfer or deliver any of Allied's Equity Securities or stock
certificates or other securities or property upon the surrender of any Security
for the purpose of conversion or exchange or to comply with any of the covenants
of Allied and the Company contained in this Article 14 or in the applicable
supplemental indenture, resolutions of the Board of Directors or written
instrument executed by one or more duly authorized officers of Allied and the
Company.
Section 14.9. Repayment of Certain Funds Upon Conversion or
Exchange. Any funds which at any time have been deposited by the Company or on
its behalf with the Trustee or any Paying Agent for the purpose of paying the
principal of, and premium, if any, and interest, if any, on any of the
Securities (including funds deposited for any sinking fund referred to in
Article 12 hereof) and which shall not be required for such purposes because of
the conversion or exchange of such Securities as provided in this Article 14
shall after such conversion or exchange be repaid to the Company by the Trustee
upon the Company's written request by Company Request.
ARTICLE 15
SENIOR GUARANTEE
Section 15.1. Senior Guarantee. Each of Allied and the
Subsidiary Guarantors hereby jointly and severally unconditionally guarantees on
a senior basis to each Holder of a Security authenticated and delivered by the
Trustee, and to the Trustee on behalf of such Holder, the due and punctual
payment of the principal of (and premium,
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if any) and interest on such Security when and as the same shall become due and
payable, whether at the Stated Maturity or by acceleration, call for redemption,
purchase or otherwise, in accordance with the terms of such Security and of this
Indenture. In case of the failure of the Company punctually to make any such
payment, each of Allied and the Subsidiary Guarantors hereby jointly and
severally agrees to cause such payment to be made punctually when and as the
same shall become due and payable, whether at the Stated Maturity or by
acceleration, call for redemption, purchase or otherwise, and as if such payment
were made by the Company.
Each of the Guarantors hereby jointly and severally agrees
that its obligations hereunder shall be unconditional, irrespective of the
validity, regularity or enforceability of any Security or this Indenture, the
absence of any action to enforce the same, any creation, exchange, release or
nonperfection of any Lien on any collateral for, or any release or amendment or
waiver of any term of any other Guarantee of, or any consent to departure from
any requirement of any other Guarantee, of all or any of the Securities, the
election by the Trustee or any of the Holders in any proceeding under Chapter 11
of Title 11 of the United States Code (the "Bankruptcy Code") of the application
of Section 1111(b)(2) of the Bankruptcy Code, any borrowing or grant of a
security interest by the Company, as debtor in possession, under Section 364 of
the Bankruptcy Code, the disallowance, under Section 502 of the Bankruptcy Code,
of all or any portion of the claims of the Trustee or any of the Holders for
payment of any of the Securities, any waiver or consent by the Holder of any
Security or by the Trustee with respect to any provisions thereof or of this
Indenture, the obtaining of any judgment against the Company (or with respect to
the Allied Subsidiary Guarantee, any Subsidiary Guarantor) or any action to
enforce the same or any other circumstances which might otherwise constitute a
legal or equitable discharge or defense of a guarantor. Each of the Guarantors
hereby waives the benefits of diligence, presentment, demand of payment, any
requirement that the Trustee or any of the Holders protect, secure, perfect or
insure any security interest in or other Lien on any property subject thereto or
exhaust any right or take any action against the Company (or, with respect to
the Allied Subsidiary Guarantee, any Subsidiary Guarantor) or any other Person
or any collateral, filing of claims with a court in the event of insolvency or
bankruptcy of the Company (or, with respect to the Allied Subsidiary Guarantee,
any Subsidiary Guarantor), any right to require a proceeding first against the
Company (or, with respect to the Allied Subsidiary Guarantee, any Subsidiary
Guarantor), protest or notice with respect to any Security (or, with respect to
the Allied Subsidiary Guarantee, the Subsidiary Guarantees) or the indebtedness
evidenced thereby and all demands whatsoever, and covenants, that this Senior
Guarantee will not be discharged in respect of any Security (or, with respect to
the Allied Subsidiary Guarantee, the Subsidiary Guarantees) except by complete
performance of the obligations contained in such Security (or, with respect to
the Allied Subsidiary Guarantee, the Subsidiary Guarantees) and in this Senior
Guarantee. Each of the Guarantors hereby
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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
(or, with respect to the Allied Subsidiary Guarantee, the Subsidiary
Guarantees), subject to the terms and conditions set forth in this Indenture,
directly against each or any of the Guarantors to enforce its Senior 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, with respect to the Allied Subsidiary Guarantee,
the Subsidiary Guarantees) or to enforce or exercise any other right or remedy
with respect to the Securities (or, with respect to the Allied Subsidiary
Guarantee, the Subsidiary Guarantees), or the Trustee or the Holders are
prevented from taking any action to realize on any collateral, such Guarantor
agrees to pay to the Trustee for the account of the Holders, upon demand
therefor, the amount that would otherwise have been due and payable had such
rights and remedies been permitted to be exercised by the Trustee or any of the
Holders.
No provision of any Senior Guarantee or Security or of the
Indenture shall alter or impair the Senior 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
Guarantee is endorsed.
Each Guarantor shall be subrogated to all rights of the
Holders of the Securities upon which its Senior Guarantee is endorsed against
the Company (or, with respect to the Allied Subsidiary Guarantee, any Subsidiary
Guarantor) in respect of any amounts paid by such Guarantor on account of such
Security (or, with respect to the Allied Subsidiary Guarantee, on account of the
Subsidiary Guarantees) pursuant to the provisions of its Senior Guarantee or
this Indenture; Allied shall be subrogated to all rights of the Holders of the
Securities with respect to which the Allied Subsidiary Guarantee is issued
against the Subsidiary Guarantors in respect of any amounts paid by it on
account of the Subsidiary Guarantees pursuant to the provisions of the Allied
Subsidiary 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 Guarantee shall remain in full force and effect
and continue to be effective should any petition be filed by or against the
Company (or, with respect to the Allied Subsidiary Guarantee, any Subsidiary
Guarantor) for liquidation or reorganization, should the Company (or, with
respect to the Allied Subsidiary Guarantee, any Subsidiary Guarantor) become
insolvent or make an assignment for the benefit of
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creditors or should a receiver or trustee be appointed for all or any
significant part of the assets of the Company (or, with respect to the Allied
Subsidiary Guarantee, any Subsidiary Guarantor) and shall, to the fullest extent
permitted by law, continue to be effective or be reinstated, as the case may be,
if at any time payment and performance of the Securities is, pursuant to
applicable law, rescinded or reduced in amount, or must otherwise be restored or
returned by any obligee on the Securities, whether as a "voidable preference,"
"fraudulent transfer" or otherwise, all as though such payment or performance
had not been made. In the event that any payment, or any part thereof, is
rescinded, reduced, restored or returned, the Securities shall, to the fullest
extent permitted by law, be reinstated and deemed reduced only by such amount
paid and not so rescinded, reduced, restored or returned.
No officer, director, employer or incorporator, past, present
or future, of any Guarantor, as such, shall have any personal liability under
any Senior Guarantee by reason of his, her or its status as such officer,
director, employer or incorporator.
To the extent that any Subsidiary Guarantor shall be required
to pay any amounts on account of the Securities pursuant to its Senior Guarantee
in excess of the greater of (i) the amount of the economic benefit actually
received by such Subsidiary Guarantor from the issuance of the Securities and
(ii) an amount calculated as the product of (A) the aggregate amount payable by
the Subsidiary Guarantors on account of the Securities pursuant to their Senior
Guarantees times (B) the proportion (expressed as a fraction) that such
Subsidiary Guarantor's net worth at the date enforcement of its Senior Guarantee
is sought bears to the aggregate net worth of all Subsidiary Guarantors at such
date, then such Subsidiary Guarantor shall be reimbursed by the other Subsidiary
Guarantors for the amount of such excess, pro rata, based upon the respective
net worth of such other Subsidiary Guarantors at the date enforcement of its
Senior Guarantees is sought. This paragraph is intended only to define the
relative rights of the Subsidiary Guarantors as among themselves, and nothing
set forth in this paragraph is intended to or shall impair the joint and several
obligations of the Guarantors under their respective Senior Guarantees.
The Guarantors shall have the right to seek contribution from
any nonpaying Guarantor so long as the exercise or such right does not impair
the rights of the Holders under any Senior Guarantee.
Section 15.2. Execution and Delivery of Senior Guarantees. The
Senior Guarantees to be endorsed on the Securities shall include the terms of
the Senior Guarantee set forth in Section 15.1 and any other terms that may be
set forth in the form established pursuant to Section 2.3. Each of the
Guarantors hereby agrees to execute its Senior Guarantee, in a form established
pursuant to Section 2.3, to be endorsed on each Security authenticated and
delivered by the Trustee.
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The Senior Guarantee shall be executed on behalf of each
respective Guarantor by any one of such Guarantor's Chairman of the Board, Vice
Chairman of the Board, President or Vice Presidents, attested by its Secretary
or Assistant Secretary. The signature of any or all of these officers on the
Senior Guarantee may be manual or facsimile and may be pursuant to a duly
executed power of attorney.
A Senior Guarantee bearing the manual or facsimile signatures
of individuals who were at any time the proper officers of a Guarantor shall
bind such Guarantor, notwithstanding that such individuals or any of them have
ceased to hold such offices prior to the authentication and delivery of the
Security on which such Senior Guarantee is endorsed or did not hold such offices
at the date of such Senior Guarantee.
The delivery of any Security by the Trustee, after the
authentication thereof hereunder, shall constitute due delivery of the Senior
Guarantee endorsed thereon on behalf of the Guarantors. Each of the Guarantors
hereby jointly and severally agrees that its Senior Guarantee set forth in
Section 15.1 shall remain in full force and effect notwithstanding any failure
to endorse a Senior Guarantee on any Security.
Section 15.3. Subsidiary Guarantors May Consolidate, Etc., on
Certain Terms. Nothing contained in this Indenture or in any of the Securities
shall prevent any consolidation or merger of a Subsidiary Guarantor with or into
the Company or a Guarantor or shall prevent any sale or conveyance of the
property of a Subsidiary Guarantor as an entirety or substantially as an
entirety to the Company or a Guarantor.
Section 15.4. Release of Guarantors. (a) Concurrently with any
consolidation or merger of a Subsidiary Guarantor or any sale or conveyance of
the property of a Subsidiary Guarantor as an entirety or substantially as an
entirety, in each case as permitted by Section 15.3, and upon delivery by the
Company to the Trustee of an Officers' Certificate and an Opinion of Counsel to
the effect that such consolidation, merger, sale or conveyance was made in
accordance with Section 15.3, the Trustee shall execute any documents reasonably
required in order to evidence the release of such Subsidiary Guarantor from its
obligations under its Subsidiary Guarantees endorsed on the Securities and under
this Article 15. Any Subsidiary Guarantor not released from its obligations
under its Subsidiary Guarantees endorsed on the Securities and under this
Article 15 shall remain liable for the full amount of principal of (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 15.
(b) Concurrently with the defeasance of the Securities under
Section 4.4 or the covenant defeasance of the Securities under Section 4.5, the
Guarantors shall be released from all of their obligations under their Senior
Guarantees endorsed on the Securities and under this Article 15.
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(c) Upon the consummation of any transaction (whether
involving a sale or other disposition of securities, a merger or otherwise)
whereby any Subsidiary Guarantor ceases to be a Restricted Subsidiary and which
transaction is otherwise in compliance with the provisions of this Indenture,
such Subsidiary Guarantor shall automatically be released from all obligations
under its Subsidiary Guarantees endorsed on the Securities and under this
Article 15 and the surviving entity in such transaction or the entity to which
such Subsidiary Guarantor is conveyed shall not (unless such transaction
otherwise results in the sale, transfer or disposition of the properties and
assets of the Company substantially as an entirety) be required to assume the
obligations of such Subsidiary Guarantor.
Section 15.5. Additional Guarantors. The Company shall cause
each Person that becomes a Restricted Subsidiary after the date of this
Indenture, upon becoming a Restricted Subsidiary, to become a Subsidiary
Guarantor with respect to the Securities. Any such Person shall become a
Subsidiary Guarantor by executing and delivering to the Trustee (a) a
supplemental indenture, in form and substance satisfactory to the Trustee, which
subjects such Person to the provisions of this Indenture as a Subsidiary
Guarantor and (b) an Opinion of Counsel to the effect that such supplemental
indenture has been duly authorized and executed by such Person and constitutes
the legal, valid, binding and enforceable obligation of such Person (subject to
such customary exceptions concerning creditors' rights and equitable principles
as may be acceptable to the Trustee in its discretion).
ARTICLE 16
Jurisdiction and Consent to Service of Process
SECTION 16.1 Jurisdiction and Consent to Service of Process.
(a) Each of the Company and the Guarantors hereby irrevocably and
unconditionally submits, for itself and its property, to the nonexclusive
jurisdiction of any New York State court or Federal court of the United States
of America sitting in New York City, and any appellate court from any thereof,
in any action or proceeding arising out of or relating to the Securities, the
Senior Guarantees, this Indenture, or for recognition or enforcement of any
judgment, and each of such Persons hereby irrevocably and unconditionally agrees
that all claims in respect of any such action or proceeding may be heard and
determined in such New York State or, to the extent permitted by law, in such
Federal court. Each of the Company and the Guarantors agrees that a final
judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Article 16 shall affect any right that any
Holder or the Trustee may otherwise have to bring any action or proceeding
relating to the Securities, the Senior Guarantees, this Indenture Agreement
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against the Company, any Guarantor or their respective properties in the courts
of any jurisdiction.
(b) Each of the Company and the Guarantors hereby irrevocably
and unconditionally waives, to the fullest extent it may legally and effectively
do so, any objection which it may now or hereafter have to the laying of venue
of any suit, action or proceeding arising out of or relating to the Securities,
the Senior Guarantees, this Indenture in any New York State or Federal court.
Each of the Company and the Guarantors hereby irrevocably waives, to the fullest
extent permitted by law, the defense of an inconvenient forum to the maintenance
of such action or proceeding in any such court.
(c) Each of the Company and the Guarantors irrevocably
consents to service of process in the manner provided for notices in Section 1.5
Nothing in this Agreement will affect the right of any Holder or the Trustee to
serve process in any other manner permitted by law.
This instrument may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.
ALLIED WASTE NORTH AMERICA, INC.
By:___________________________
Name:
Title:
Attest:
__________________________
Name:
Title:
ALLIED WASTE INDUSTRIES, INC.
as Guarantor of the Securities and as
Guarantor of the obligations of the
Subsidiary Guarantors under the
Subsidiary Guarantees
By:___________________________
Name:
Title:
Attest:
__________________________
Name:
Title:
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Each of the Subsidiary Guarantors Listed
on Schedule I hereto, as Guarantor of
the Securities
By*:___________________________
Name:
Title:
Attest*:
__________________________
Name:
Title:
FIRST TRUST NATIONAL ASSOCIATION
By:___________________________
Name:
Title:
Attest:
__________________________
Name:
Title:
- --------
* Signing as duly authorized officer for each such Subsidiary Guarantor.
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================================================================================
ALLIED WASTE NORTH AMERICA, INC., as Issuer
and
THE GUARANTORS NAMED HEREIN, as Guarantors
to
FIRST TRUST NATIONAL ASSOCIATION, as Trustee
SENIOR SUBORDINATED INDENTURE
Dated as of _________________, 1997
Providing for Issuance of
Senior Subordinated Debt Securities in Series
================================================================================
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Reconciliation and tie between Senior Subordinated Indenture,
dated as of , 1997 (the "Indenture") and the Trust Indenture Act of
1939, as amended.
Trust Indenture Act Indenture
of 1939 Section Section
- ---------------------------------------------------------------------------
310(a)(1)...............................................................6.9
(a)(2)..................................................................6.9
(a)(3)..................................................................TIA
(a)(4)...................................................... Not Applicable
(a)(5)..................................................................TIA
(b)..........................................................6.8; 6.10; TIA
311(a)..................................................................TIA
(b).....................................................................TIA
312(a).................................................................10.1
(b).....................................................................TIA
(c).....................................................................TIA
313(a)............................................................10.3; TIA
(b).....................................................................TIA
(c).....................................................................TIA
(d).....................................................................TIA
314(a)............................................................10.4; TIA
(b)..........................................................Not Applicable
(c)(1)..................................................................1.2
(c)(2)..................................................................1.2
(c)(3).......................................................Not Applicable
(d)..........................................................Not Applicable
(e).....................................................................TIA
(f).....................................................................TIA
315(a)..................................................................6.1
(b).....................................................................6.2
(c).....................................................................6.1
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<PAGE> 3
(d)(1)..................................................................TIA
(d)(2)..................................................................TIA
(d)(3)..................................................................TIA
(e).....................................................................TIA
316(a)(last sentence)...................................................1.1
(a)(1)(A)..........................................................5.2; 5.8
(a)(1)(B)...............................................................5.7
(b)...............................................................5.9; 5.10
(c).....................................................................TIA
317(a)(1)...............................................................5.3
(a)(2)..................................................................5.4
(b).....................................................................9.3
318(a).................................................................1.12
(b).....................................................................TIA
(c)...............................................................1.12; TIA
- ----------------
This reconciliation and tie section does not constitute part of the Indenture.
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TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S> <C>
Recitals ............................................................................................ 1
ARTICLE 1 Definitions and Other Provisions of General Application........................................ 2
Section 1.1. Definitions............................................................................. 2
Section 1.2. Compliance Certificates and Opinions.................................................... 14
Section 1.3. Form of Documents Delivered to Trustee.................................................. 15
Section 1.4. Acts of Holders......................................................................... 16
Section 1.5. Notices, Etc., to Trustee, Company and Guarantors....................................... 18
Section 1.6. Notice to Holders; Waiver............................................................... 18
Section 1.7. Headings and Table of Contents.......................................................... 19
Section 1.8. Successor and Assigns................................................................... 19
Section 1.9. Separability............................................................................ 19
Section 1.10. Benefits of Indenture.................................................................. 19
Section 1.11. Incorporators, Officers and Directors of the Company Exempt from Individual
Liability.......................................................................... 20
Section 1.12. Governing Law; Conflict with Trust Indenture Act....................................... 20
Section 1.13. Legal Holidays......................................................................... 20
Section 1.14. Moneys of Different Currencies to Be Segregated........................................ 21
Section 1.15. Independence of Covenants.............................................................. 21
Section 1.16. Counterparts........................................................................... 21
ARTICLE 2 Security and Senior Subordinated Guarantee Forms............................................... 21
Section 2.1. Forms Generally......................................................................... 21
Section 2.2. Form of Trustee's Certificate of Authentication......................................... 22
Section 2.3. Form of Senior Subordinated Guarantee................................................... 22
Section 2.4. Securities in Global Form............................................................... 27
Section 2.5. Form of Legend for Securities in Global Form............................................ 27
ARTICLE 3 The Securities................................................................................. 28
Section 3.1. Amount Unlimited; Issuable in Series.................................................... 28
Section 3.2. Denominations........................................................................... 32
Section 3.3. Execution, Authentication, Delivery and Dating.......................................... 33
Section 3.4. Temporary Securities.................................................................... 37
Section 3.5. Registration, Transfer and Exchange..................................................... 37
</TABLE>
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<TABLE>
<S> <C>
Section 3.6. Replacement Securities.................................................................. 42
Section 3.7. Payment of Interest; Interest Rights Preserved.......................................... 43
Section 3.8. Persons Deemed Owners................................................................... 46
Section 3.9. Cancellation............................................................................ 47
Section 3.10. Computation of Interest................................................................ 47
Section 3.11. CUSIP Numbers.......................................................................... 47
Section 3.12. Currency and Manner of Payment in Respect of Securities................................ 48
ARTICLE 4 Satisfaction, Discharge and Defeasance......................................................... 48
Section 4.1. Termination of Company's Obligations Under the Indenture................................ 48
Section 4.2. Application of Trust Funds.............................................................. 50
Section 4.3. Applicability of Defeasance Provisions; Company's Option to Effect
Defeasance or Covenant Defeasance.................................................. 50
Section 4.4. Defeasance and Discharge................................................................ 50
Section 4.5. Covenant Defeasance..................................................................... 51
Section 4.6. Conditions to Defeasance or Covenant Defeasance......................................... 51
Section 4.7. Deposited Money and Government Obligations to Be Held in Trust.......................... 53
Section 4.8. Repayment to Company.................................................................... 54
Section 4.9. Indemnity for Government Obligations.................................................... 54
Section 4.10. Reinstatement.......................................................................... 54
ARTICLE 5 Defaults and Remedies.......................................................................... 55
Section 5.1. Events of Default....................................................................... 55
Section 5.2. Acceleration; Rescission and Annulment.................................................. 57
Section 5.3. Collection of Indebtedness and Suits for Enforcement by Trustee......................... 58
Section 5.4. Trustee May File Proofs of Claim........................................................ 59
Section 5.5. Trustee May Enforce Claims Without Possession of Securities............................. 60
Section 5.6. Delay or Omission Not Waiver............................................................ 60
Section 5.7. Waiver of Past Defaults................................................................. 60
Section 5.8. Control by Majority..................................................................... 60
Section 5.9. Limitation on Suits by Holders.......................................................... 61
Section 5.10. Rights of Holders to Receive Payment................................................... 61
Section 5.11. Application of Money Collected......................................................... 62
Section 5.12. Restoration of Rights and Remedies..................................................... 62
Section 5.13. Rights and Remedies Cumulative......................................................... 63
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Section 5.14. Undertaking for Costs.................................................................. 63
Section 5.15. Waiver of Stay, Extension or Usury Laws................................................ 63
ARTICLE 6 The Trustee.................................................................................... 64
Section 6.1. Certain Duties and Responsibilities..................................................... 64
Section 6.2. Notice of Defaults...................................................................... 64
Section 6.3. Certain Rights of Trustee............................................................... 64
Section 6.4. Not Responsible for Recitals or Issuance of Securities.................................. 65
Section 6.5. May Hold Securities..................................................................... 65
Section 6.6. Money Held in Trust..................................................................... 66
Section 6.7. Compensation and Reimbursement.......................................................... 66
Section 6.8. Conflicting Interests................................................................... 66
Section 6.9. Corporate Trustee Required; Eligibility................................................. 67
Section 6.10. Resignation and Removal; Appointment of Successor...................................... 67
Section 6.11. Acceptance of Appointment by Successor................................................. 68
Section 6.12. Merger, Conversion, Consolidation or Succession to Business............................ 70
Section 6.13. Preferential Collection of Claims Against Company...................................... 70
Section 6.14. Appointment of Authenticating Agent.................................................... 70
ARTICLE 7 Consolidation, Merger or Sale of Assets by the Company......................................... 72
Section 7.1. Consolidation, Merger or Sale of Assets Permitted....................................... 72
ARTICLE 8 Supplemental Indentures........................................................................ 73
Section 8.1. Supplemental Indentures Without Consent of Holders...................................... 73
Section 8.2. Supplemental Indentures With Consent of Holders......................................... 75
Section 8.3. Compliance with Trust Indenture Act..................................................... 76
Section 8.4. Execution of Supplemental Indentures.................................................... 76
Section 8.5. Effect of Supplemental Indentures....................................................... 77
Section 8.6. Reference in Securities to Supplemental Indentures...................................... 77
Section 8.7. Notice of Supplemental Indentures....................................................... 77
ARTICLE 9 Covenants...................................................................................... 77
Section 9.1. Payment of Principal, Premium, if any, and Interest..................................... 77
Section 9.2. Maintenance of Office or Agency......................................................... 78
Section 9.3. Money for Securities Payments to Be Held in Trust; Unclaimed Money...................... 79
Section 9.4. Corporate Existence..................................................................... 80
Section 9.5. Annual Review Certificate............................................................... 81
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Section 9.6. Waiver of Certain Covenants............................................................. 81
ARTICLE 10 Holders' Lists and Reports by Trustee and Company.............................................. 81
Section 10.1. Company to Furnish Trustee Names and Addresses of Holders.............................. 81
Section 10.2. Preservation of Information, Communications to Holders................................. 82
Section 10.3. Reports by Trustee..................................................................... 82
Section 10.4. Reports by the Company and the Guarantors.............................................. 82
ARTICLE 11 Redemption..................................................................................... 83
Section 11.1. Applicability of Article............................................................... 83
Section 11.2. Election to Redeem; Notice to Trustee.................................................. 83
Section 11.3. Selection of Securities to Be Redeemed................................................. 83
Section 11.4. Notice of Redemption................................................................... 84
Section 11.5. Deposit of Redemption Price............................................................ 85
Section 11.6. Securities Payable on Redemption Date.................................................. 86
Section 11.7. Securities Redeemed in Part............................................................ 86
ARTICLE 12 Sinking Funds.................................................................................. 87
Section 12.1. Applicability of Article............................................................... 87
Section 12.2. Satisfaction of Sinking Fund Payments with Securities.................................. 87
Section 12.3. Redemption of Securities for Sinking Fund.............................................. 88
ARTICLE 13 Meetings of Holders of Securities.............................................................. 88
Section 13.1. Purposes for Which Meetings May Be Called.............................................. 88
Section 13.2. Call, Notice and Place of Meetings..................................................... 88
Section 13.3. Persons Entitled to Vote at Meetings................................................... 89
Section 13.4. Quorum; Action......................................................................... 89
Section 13.5. Determination of Voting Rights; Conduct and Adjournment of Meetings.................... 90
Section 13.6. Counting Votes and Recording Action of Meetings........................................ 91
ARTICLE 14 Conversion or Exchange of Securities........................................................... 92
Section 14.1. Applicability of Article............................................................... 92
Section 14.2. Exercise of Conversion or Exchange Privilege........................................... 92
Section 14.3. No Fractional Equity Securities........................................................ 93
Section 14.4. Adjustment of Conversion or Exchange Price; Consolidation or Merger.................... 94
</TABLE>
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Section 14.5. Notice of Certain Corporate Actions.................................................... 95
Section 14.6. Reservation of Equity Securities....................................................... 95
Section 14.7. Payment of Certain Taxes Upon Conversion or Exchange................................... 96
Section 14.8. Duties of Trustee Regarding Conversion or Exchange..................................... 96
Section 14.9. Repayment of Certain Funds Upon Conversion or Exchange................................. 96
ARTICLE 15 Subordination of Securities and Senior Subordinated Guarantees................................. 97
Section 15.1. Securities Subordinate to Senior Debt.................................................. 97
Section 15.2. Payment Over of Proceeds Upon Dissolution, Etc......................................... 97
Section 15.3. No Payment When Senior Debt in Default................................................. 99
Section 15.4. Certain Payments Permitted............................................................. 101
Section 15.5. Subrogation to Rights of Holders of Senior Debt........................................ 101
Section 15.6. Provisions Solely to Define Relative Rights............................................ 102
Section 15.7. Trustee to Effectuate Subordination.................................................... 102
Section 15.8. No Waiver of Subordination Provisions.................................................. 102
Section 15.9. Notice to Trustee...................................................................... 103
Section 15.10. Reliance on Judicial Order or Certificate of Liquidating Agent........................ 103
Section 15.11. Trustee Not Fiduciary for Holders of Senior Debt...................................... 104
Section 15.12. Rights of Trustee as Holder of Senior Debt; Preservation of Trustee's
Rights............................................................................. 104
Section 15.13. Article Applicable to Paying Agents................................................... 104
Section 15.14. Defeasance of this Article 15......................................................... 104
ARTICLE 16 Senior Subordinated Guarantee.................................................................. 105
Section 16.1. Senior Subordinated Guarantee.......................................................... 105
Section 16.2. Execution and Delivery of Senior Subordinated Guarantees............................... 108
Section 16.3. Subsidiary Guarantors May Consolidate, Etc., on Certain Terms.......................... 108
Section 16.4. Release of Guarantors.................................................................. 108
Section 16.5. Additional Guarantors.................................................................. 109
</TABLE>
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SENIOR SUBORDINATED INDENTURE (the "Indenture"), dated as of
___________, 1997, among ALLIED WASTE NORTH AMERICA, INC., a corporation duly
organized and existing under the laws of the State of Delaware (the "Company"),
having its principal office at 15880 North Greenway - Hayden Loop, Suite 100,
Scottsdale, Arizona 85260, each of the GUARANTORS (as hereinafter defined) and
FIRST TRUST NATIONAL ASSOCIATION, a national banking association, as Trustee
(the "Trustee").
RECITALS
The Company has duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of its secured or
unsecured senior subordinated debentures, notes or other evidences of
indebtedness ("Securities") to be issued in one or more series as herein
provided.
Allied (as defined herein) owns beneficially and of record
100% of the Capital Stock of the Company; the Company, directly or indirectly,
owns beneficially and of record 100% of the Capital Stock or other ownership
interests, as the case may be, of each Subsidiary Guarantor; Allied, the Company
and the Subsidiary Guarantors are members of the same consolidated group of
companies and are engaged in related businesses and the Guarantors will derive
direct and indirect economic benefit from the issuance of the Securities.
Accordingly, each of the Guarantors has duly authorized the execution and
delivery of this Indenture to provide for its Senior Subordinated Guarantees
with respect to the Securities as set forth in this Indenture.
All things necessary (i) to make the Securities, when executed
by the Company and authenticated and delivered hereunder and duly issued by the
Company, the valid obligations of the Company, (ii) to make the Senior
Subordinated Guarantees of each of the Guarantors, when executed by the
respective Guarantors and endorsed on the Securities executed, authenticated and
delivered hereunder, the valid obligations of the respective Guarantors, and
(iii) to make this Indenture a valid agreement of the Company and of each of the
Guarantors, all in accordance with their respective terms, have been done.
For and in consideration of the premises and the purchase of
the Securities by the Holders thereof, it is mutually covenanted and agreed as
follows for the equal and ratable benefit of the Holders of the Securities or of
any series thereof:
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ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.1. Definitions. (a) For all purposes of this
Indenture, except as otherwise expressly provided or unless the context
otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the
singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles as in effect in the United States of America from
time to time; provided that when two or more principles are so
generally accepted, it shall mean that set of principles consistent
with those in use by the Company; and
(4) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not to
any particular Article, Section or other subdivision.
"Affiliate" of any specified Person means any Person directly
or indirectly controlling or controlled by, or under direct or indirect common
control with, such specified Person. For purposes of this definition, "control"
when used with respect to any specified Person means the power to direct the
management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
"Agent" means any Paying Agent or Registrar.
"Allied" means Allied Waste Industries, Inc., a Delaware
corporation.
"Allied Guarantee" means the unconditional guarantee, on a
senior subordinated basis, by Allied of the due and punctual payment of
principal (premium, if any) and interest on the Securities, as provided pursuant
to Article 16.
"Allied Subsidiary Guarantee" means the unconditional
guarantee, on a series subordinated basis, by Allied of each of the Subsidiary
Guarantors' obligators under the Subsidiary Guarantees.
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"Authenticating Agent" means any authenticating agent
appointed by the Trustee pursuant to Section 6.14.
"Authorized Newspaper" means a newspaper of general
circulation, in the official language of the country of publication or in the
English language, customarily published on each Business Day whether or not
published on Saturdays, Sundays or holidays. Whenever successive publications in
an Authorized Newspaper are required hereunder they may be made (unless
otherwise expressly provided herein) on the same or different days of the week
and in the same or different Authorized Newspapers.
"Bearer Security" means any Security issued hereunder which is
payable to bearer.
"Board of Directors" means, with respect to the Company or any
Guarantor, either the board of directors of the Company or of such Guarantor, as
the case may be, or any duly authorized committee of that board. Except as
otherwise provided or unless the context otherwise requires, each reference
herein to the "Board of Directors" shall mean the Board of Directors of the
Company.
"Board Resolution" of the Company or any Guarantor means a
copy of a resolution certified by the Secretary or an Assistant Secretary of the
Company or such Guarantor, as the case may be, to have been duly adopted by its
Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee. Except as otherwise expressly
provided or unless the context otherwise requires, each reference herein to a
"Board Resolution" shall mean a Board Resolution of the Company.
"Business Day", when used with respect to any Place of Payment
or any other particular location referred to in this Indenture or in the
Securities, means, unless otherwise specified with respect to any Securities
pursuant to Section 3.1, each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which banking institutions in that Place of Payment or
particular location are authorized or obligated by law, regulation or executive
order to close.
"Capital Lease Obligation" of any Person means the obligation
to pay rent or other payment amounts under a lease of (or other arrangements
conveying the right to use) real or personal property by such Person which is
required to be classified and accounted for as a capital lease or a liability on
a balance sheet of such Person in accordance with generally accepted accounting
principles. The stated maturity of such obligation shall be the date of the last
payment of rent or any other amount due under such lease prior to the first date
upon which such lease may be terminated by the lessee without payment of a
penalty. The principal amount of such obligation shall be the
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capitalized amount thereof that would appear on a balance sheet of such Person
in accordance with generally accepted accounting principles.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Securities Exchange Act of
1934, as amended, or, if at any time after the execution of this Indenture such
Commission is not existing and performing the duties now assigned to it under
the Trust Indenture Act, then the body performing such duties at such time.
"Company" means the Person named as the Company in the first
paragraph of this Indenture until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter means
such successor.
"Company Order" and "Company Request" mean, respectively, a
written order or request signed in the name of the Company by two Officers, one
of whom must be the Chairman of the Board, the President, the Chief Executive
Officer, the Chief Operating Officer, the Chief Financial Officer, a Vice
President, the Treasurer or the Secretary of the Company.
"consent", "waive" and "rescind", when used with respect to
the consent, waiver or rescission of or by the Holders of a specified percentage
in aggregate principal amount of Securities of any series, shall mean any of (i)
a favorable vote with respect to such consent, waiver or rescission, at any
meeting of Holders of Securities of such series duly called and held in
accordance with the provisions of Article 13, by the Holders of the applicable
percentage in aggregate principal amount of such Securities specified in the
second paragraph of Section 13.4; (ii) written consents, waivers or rescissions
of or by the Holders of such specified percentage in aggregate principal amount
of such Securities; and (iii) a combination of the favorable vote with respect
to such consent, waiver or rescission, at any meeting of Holders of Securities
of such series duly called and held in accordance with the provisions of Article
13, by the Holders of less than the applicable percentage in aggregate principal
amount of such Securities specified in the second paragraph of Section 13.4 and
written consents, waivers or rescissions of other Holders of such Securities,
where the sum of the percentage of such Holders so voting in favor and the
percentage of such Holders signing such written consents, waivers or rescissions
is equal to at least such specified percentage.
"Corporate Trust Office" means an office of the Trustee in New
York, New York at which at any particular time its corporate trust business
shall be administered, which office at the date hereof is located at 100 Wall
Street, 20th Floor, New York, New York 10005, Attention: Corporate Trust
Administration.
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"Credit Agreement" means the Amended and Restated Credit
Agreement dated June 5, 1997 among the Company, Allied and the subsidiary
guarantors named therein, as guarantors, Goldman Sachs Credit Partners L.P.,
Credit Suisse First Boston, Citibank, N.A. and the other Lenders referred to
therein.
"currency unit" for all purposes of this Indenture shall
include any composite currency, including, without limitation, ECU.
"Debt" means (without duplication), with respect to any
Person, whether recourse is to all or a portion of the assets of such Person,
(i) every obligation of such Person for money borrowed, (ii) every obligation of
such Person evidenced by bonds, debentures, notes or other similar instruments,
including obligations Incurred in connection with the acquisition of property,
assets or businesses, (iii) every reimbursement obligation of such Person with
respect to letters of credit, bankers' acceptances or similar facilities issued
for the account of such Person, (iv) every obligation of such Person issued or
assumed as the deferred purchase price of property or services (but excluding
trade accounts payable or accrued liabilities arising in the ordinary course of
business), (v) every Capital Lease Obligation of such Person, (vi) the maximum
fixed redemption or repurchase price of Redeemable Interests of such Person at
the time of determination, (vii) every net payment obligation of such Person
under interest rate swap or similar agreements or foreign currency hedge,
exchange or similar agreements at the time of determination and (viii) every
obligation of the type referred to in Clauses (i) through (vii) of another
Person and all dividends of another Person the payment of which, in either case,
such Person has Guaranteed or for which such Person is responsible or liable,
directly or indirectly, jointly or severally, as obligor, Guarantor or
otherwise.
"Default" means, with respect to Securities of any series, any
event which is, or after notice or passage of time, or both, would be, an Event
of Default with respect to Securities of such series.
"Depositary", when used with respect to the Securities of or
within any series issuable or issued in whole or in part in global form, means
the Person designated as Depositary by the Company pursuant to Section 3.1(b)
until a successor Depositary shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter shall mean or include each Person
which is then a Depositary hereunder, and if at any time there is more than one
such Person, shall be a collective reference to such Persons.
"Dollar" means the currency of the United States that at the
time of payment is legal tender for the payment of public and private debts.
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"ECU" means the European Currency Unit as defined and revised
from time to time by the Council of the European Communities.
"European Monetary System" means the European Monetary System
established by the Resolution of December 5, 1978 of the Council of the European
Communities.
"Exchange Rate Certificate" means a certificate, signed by a
Responsible Officer of the Trustee, setting forth (i) the applicable Market
Exchange Rate or the applicable bid quotation and (ii) the Dollar amount of
principal (and premium, if any) and interest, if any (on an aggregate basis and
on the basis of a Security having the lowest denomination principal amount in
the relevant currency or currency unit), that would be payable with respect to a
Security of the applicable series on the basis of such Market Exchange Rate or
the applicable bid quotation.
"Foreign Currency" means any currency issued by the government
of one or more countries other than the United States or by any recognized
confederation or association of such governments.
"Government Obligations" means securities that are (x) direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged or (y) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America the payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America, which, in either case (x) or
(y), are not callable or redeemable at the option of the issuer thereof, and
shall also include a depository receipt issued by a bank (as defined in Section
3(a)(2) of the Securities Act of 1933, as amended) as custodian with respect to
any such Government Obligation or a specific payment of principal of or interest
on any such Government Obligation held by such custodian for the account of the
holder of such depository receipt, provided that (except as required by law)
such custodian is not authorized to make any deduction from the amount payable
to the holder of such depository receipt from any amount received by the
custodian in respect of the Government Obligation or the specific payment of
principal of or interest on the Government Obligation evidenced by such
depository receipt.
"Guarantors" means Allied and the Subsidiary Guarantors.
"Guaranty" or "Guarantee" by any Person means any obligation,
contingent or otherwise, of such Person guaranteeing any Debt, or dividends or
distributions on any equity security, of any other Person (the "primary
obligor") in any manner, whether directly or indirectly, and including, without
limitation, any obligation of such Person (i) to purchase or pay (or advance or
supply funds for the purchase or payment of) such
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<PAGE> 15
Debt or to purchase (or to advance or supply funds for the purchase of) any
security for the payment of such Debt, (ii) to purchase property, securities or
services for the purpose of assuring the holder of such Debt of the payment of
such Debt or (iii) to maintain working capital, equity capital or other
financial statement condition or liquidity of the primary obligor so as to
enable the primary obligor to pay such Debt (and "Guaranteed", "Guaranteeing"
and "Guarantor" shall have meanings correlative to the foregoing); provided,
however, that the Guaranty by any Person shall not include endorsements by such
Person for collection or deposit, in either case, in the ordinary course of
business.
"Holder" means, with respect to a Bearer Security, a bearer
thereof or of an interest coupon appertaining thereto and, with respect to a
Registered Security, a Person in whose name a Security is registered on the
Register.
"Incur" means, with respect to any Debt of any Person, to
create, issue, incur (by conversion, exchange or otherwise), assume, Guarantee
or otherwise become liable in respect of such Debt, or the taking of any other
action which would cause such Debt, in accordance with generally accepted
accounting principles to be recorded on the balance sheet of such Person (and
"Incurrence", "Incurred", "Incurrable" and "Incurring" shall have meanings
correlative to the foregoing), provided that, the Debt of any other Person
becoming a Restricted Subsidiary of such Person will be deemed for this purpose
to have been Incurred by such Person at the time such other Person becomes a
Restricted Subsidiary of such Person; provided, further, that a change in
generally accepted accounting principles that results in an obligation of such
Person that exists at such time becoming Debt shall not be deemed an Incurrence
of such Debt.
"Indenture" means this instrument as originally executed and
as it may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
including, for all purposes of this instrument and any such supplemental
indenture, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this instrument and any such supplemental indenture,
respectively. The term "Indenture" shall also include the terms of particular
series of Securities established as contemplated by Section 3.1.
"Indexed Security" means a Security the terms of which provide
that the principal amount thereof payable at Stated Maturity is based, at least
in part, upon the performance or value of a specified market index, reference
security or other variable and may be more or less than the principal face
amount thereof at original issuance.
"interest", when used with respect to an Original Issue
Discount Security which by its terms bears interest only after Maturity, means
interest payable after Maturity and, when used with respect to any other
Security, means the interest payable thereon in accordance with its terms.
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"Interest Payment Date", when used with respect to any
Security, means the Stated Maturity of an installment of interest on such
Security.
"Lien" means, with respect to any property or assets, any
mortgage or deed of trust, pledge, hypothecation, assignment, deposit
arrangement, security interest, lien, charge, easement or title exception,
encumbrance, preference, priority or other security agreement or preferential
arrangement of any kind or nature whatsoever on or with respect to such property
or assets (including any conditional sale or other title retention agreement
having substantially the same economic effect as any of the foregoing).
"Market Exchange Rate" means, unless otherwise specified with
respect to any Securities pursuant to Section 3.1, (i) for a conversion of any
currency unit into Dollars, the exchange rate between the relevant currency unit
and Dollars calculated by the method specified pursuant to Section 3.1 for the
Securities of the relevant series, and (ii) for a conversion of any Foreign
Currency into Dollars, the applicable exchange rate between such Foreign
Currency and Dollars set forth under the heading, "Currency Trading -- Exchange
Rates" in the "Money & Investing" section of The Wall Street Journal (or in such
other section of The Wall Street Journal in which foreign currency exchange
rates may be regularly published from time to time) as of the most recent
available date, in each case as determined by the Trustee. Unless otherwise
specified with respect to any Securities pursuant to Section 3.1, in the event
of the unavailability of any of the exchange rates provided for in the foregoing
clauses (i) and (ii), the Trustee shall use the average of the quotations from
at least three major banks acceptable to the Company in The City of New York
(which may include any such bank acting as Trustee under this Indenture), or
such other quotations as the Trustee and the Company shall deem appropriate.
"Maturity", when used with respect to any Security, means the
date on which the principal of such Security or an installment of principal
becomes due and payable as therein or herein provided, whether at the Stated
Maturity or by declaration of acceleration, call for redemption or otherwise.
"Officer" means the Chairman of the Board, the President, the
Chief Executive Officer, the Chief Operating Officer, the Chief Financial
Officer, any Vice President, the Treasurer, any Assistant Treasurer, the
Secretary or any Assistant Secretary of the Company.
"Officers' Certificate" of the Company or of any Guarantor
means a certificate signed by the Chairman of the Board, a Vice Chairman of the
Board, the President or a Vice President, and by the Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary, of the Company or such
Guarantor, as the case may be, and delivered to the Trustee. Unless the context
otherwise requires, each reference herein to
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an "Officers' Certificate" shall mean an Officers' Certificate of the Company.
References herein, or in any Security or Senior Subordinated Guarantee, to any
officer of a Guarantor or other Person that is a partnership shall mean such
officer of the partnership or, if none, of a general partner of the partnership
authorized thereby to act on its behalf.
"Opinion of Counsel" means a written opinion from the general
counsel of the Company or other legal counsel who is reasonably acceptable to
the Trustee. Such counsel may be an employee of or counsel to the Company.
"Original Issue Discount Security" means any Security which
provides for an amount less than the stated principal amount thereof to be due
and payable upon declaration of acceleration of the Maturity thereof pursuant to
Section 5.2.
"Outstanding", when used with respect to Securities, means, as
of the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities, or portions thereof, for whose payment or
redemption money in the necessary amount has been theretofore deposited with the
Trustee or any Paying Agent (other than the Company or any Guarantor) in trust
or set aside and segregated in trust by the Company or a Guarantor (if the
Company or a Guarantor, as the case may be, shall act as a Paying Agent) for the
Holders of such Securities and any interest coupons appertaining thereto,
provided that, if such Securities are to be redeemed, notice of such redemption
has been duly given pursuant to this Indenture or provisions therefor
satisfactory to the Trustee have been made;
(iii) Securities, except to the extent provided in Sections
4.4 and 4.5, with respect to which the Company has effected defeasance and/or
covenant defeasance as provided in Article 4; and
(iv) Securities which have been replaced or paid pursuant to
Section 3.6 or in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any such
Securities in respect of which there shall have been presented to the Trustee
proof satisfactory to it that such Securities are held by a bona fide purchaser
in whose hands such Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, or whether
sufficient funds are available
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for redemption or for any other purpose, and for the purpose of making the
calculations required by Section 313 of the Trust Indenture Act, (w) the
principal amount of any Original Issue Discount Securities that may be counted
in making such determination or calculation and that shall be deemed to be
Outstanding for such purpose shall be equal to the amount of principal thereof
that would be (or shall have been declared to be) due and payable, at the time
of such determination, upon a declaration of acceleration of the Maturity
thereof pursuant to Section 5.2, (x) the principal amount of any Security
denominated in a Foreign Currency that may be counted in making such
determination or calculation and that shall be deemed Outstanding for such
purpose shall be equal to the Dollar equivalent, determined as of the date such
Security is originally issued by the Company as set forth in an Exchange Rate
Certificate, of the principal amount (or, in the case of an Original Issue
Discount Security, the Dollar equivalent as of such date of original issuance of
the amount determined as provided in clause (w) above) of such Security, (y) the
principal amount of any Indexed Security that may be counted in making such
determination or calculation and that shall be deemed Outstanding for such
purpose shall be equal to the principal face amount of such Indexed Security at
original issuance, unless otherwise provided with respect to such Security
pursuant to Section 3.1, and (z) Securities owned by the Company, any Guarantor
or any other obligor upon the Securities or any Affiliate of the Company, of any
Guarantor or of such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in making such calculation or in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Securities which the
Trustee knows to be so owned shall be so disregarded. Securities so owned which
have been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee's right so to act
with respect to such Securities and that the pledgee is not the Company, any
Guarantor or any other obligor upon the Securities or any Affiliate of the
Company, of any Guarantor or of such other obligor.
"Paying Agent" means any Person authorized by the Company to
pay the principal of, premium, if any, interest, if any, and any other payments
due on any Securities on behalf of the Company.
"Periodic Offering" means an offering of Securities of a
series from time to time the specific terms of which Securities, including,
without limitation, the rate or rates of interest or formula or formulae for
determining the rate or rates of interest thereon, if any, the Maturity thereof,
the redemption provisions, if any, and any other terms specified as contemplated
by Section 3.1, with respect thereto, are to be determined by the Company upon
the issuance of such Securities.
"Person" means any individual, corporation, partnership, joint
venture, limited liability company, association, joint-stock company, trust,
other entity, unincorporated organization or government or any agency or
political subdivision thereof.
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"Place of Payment", when used with respect to the Securities
of or within any series, means the place or places where the principal of,
premium, if any, interest and any other payments due on such Securities are
payable as specified as contemplated by Sections 3.1 and 9.2.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that evidenced
by such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 3.6 in exchange for or in
lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security.
"Redeemable Interest" of any Person means any equity security
of or other ownership interest in such Person that by its terms (or by the terms
of any security into which it is convertible or for which it is exchangeable) or
otherwise (including upon the occurrence of an event) matures or is required to
be redeemed (pursuant to any sinking fund obligation or otherwise) or is
convertible into or exchangeable for Debt or is redeemable at the option of the
holder thereof, in whole or in part, at any time prior to the final Stated
Maturity of the Securities.
"Redemption Date", when used with respect to any Security to
be redeemed, means the date fixed for such redemption pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to
be redeemed, in whole or in part, means the price at which it is to be redeemed
pursuant to this Indenture.
"Registered Security" means any Security issued hereunder and
registered as to principal and interest in the Register.
"Regular Record Date" for the interest payable on any Interest
Payment Date on the Securities of or within any series means the date specified
for that purpose as contemplated by Section 3.1.
"Responsible Officer", when used with respect to the Trustee,
shall mean any vice president, the secretary, any assistant secretary, the
treasurer, any assistant treasurer, any trust officer or assistant trust
officer, or any officer of the Trustee customarily performing functions similar
to those performed by any of the above designated officers and also shall mean,
with respect to a particular corporate trust matter, any officer to whom such
matter is referred because of his knowledge of and familiarity with the
particular subject.
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<PAGE> 20
"Restricted Subsidiary" means (i) at any date, a Subsidiary of
the Company that is not an Unrestricted Subsidiary as of such date and (ii) for
any period, a Subsidiary of the Company that for any portion of such period is
not an Unrestricted Subsidiary, provided that such term shall mean such
Subsidiary only for such portion of such period.
"Security" or "Securities" has the meaning stated in the first
recital of this Indenture and more particularly means a Security or Securities
of the Company issued, authenticated and delivered under this Indenture.
"Senior Debt" means (i) with respect to the Company, Debt
created pursuant to the Credit Agreement, (ii) with respect to the Company, any
Guarantor or any Restricted Subsidiary of the Company, as the case may be, (a)
every obligation of such Person for money borrowed, (b) every obligation of such
Person evidenced by bonds, debentures, notes or other similar instruments,
including obligations Incurred in connection with the acquisition of property,
assets or businesses, (c) every reimbursement obligation of such Person with
respect to letters of credit, bankers' acceptances or similar facilities issued
for the account of such Person, (v) every Capital Lease Obligation of such
Person and (d) every net payment obligation of such Person under interest rate
swap or similar agreements or foreign currency hedge, exchange or similar
agreements at the time of determination, whether Incurred on or prior to the
date hereof or thereafter Incurred, (iii) with respect to the Company, any
Guarantor or any Restricted Subsidiary of the Company, Guarantees by such person
of Senior Debt and (iv) amendments, modifications, renewals, extensions,
refinancings and refundings of any such Debt; provided, however, the following
shall not constitute Senior Debt: (A) any Debt owed to a Person when such Person
is a Subsidiary of the Company, (B) any Debt which by the terms of the
instrument creating or evidencing the same is pari passu or subordinate in right
of payment to the Securities, (C) any Debt incurred in violation of this
Indenture or (D) any Debt which is subordinate in right of payment in any
respect to any other Debt of the Company. For purposes of this definition,
"Debt" includes any obligation to pay principal, premium (if any), interest,
penalties, reimbursement or indemnity amounts, fees and expenses (including
interest accruing on or after the filing of any petition in bankruptcy or for
reorganization relating to the Company, whether or not a claim for post-petition
interest is allowed in such proceeding).
"Senior Subordinated Guarantees" means the Allied Guarantee,
the Subsidiary Guarantees and the Allied Subsidiary Guarantee.
"Special Record Date" for the payment of any Defaulted
Interest means a date fixed by the Trustee pursuant to Section 3.7.
"Stated Maturity", when used with respect to any Security or
any installment of principal thereof or interest thereon, means the date
specified in such
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<PAGE> 21
Security or in an interest coupon representing such installment of interest as
the fixed date on which the principal of such Security or such installment of
principal or interest is due and payable.
"Subsidiary" of any Person means any Person of which at least
a majority of the outstanding voting securities having ordinary voting power for
the election of directors or other governing body, or other ownership interests
ordinarily constituting a majority voting interest, is owned or controlled,
directly or indirectly, by such Person or by one or more Subsidiaries of such
Person, or by such Person and one or more Subsidiaries of such Person.
"Subsidiary Guarantees" means the unconditional guarantees on
a senior subordinated basis by the respective Subsidiary Guarantors of the due
and punctual payment of principal, premium, if any, and interest on the
Securities, as provided pursuant to Article 16.
"Subsidiary Guarantors", as of any time, means, in respect of
a series of Securities, each and all of the Restricted Subsidiaries at such
time, other than Reliant Insurance Company, which Subsidiary Guarantors as of
the date of this Indenture are set forth in Schedule I hereto.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as
amended and as in effect on the date of this Indenture, except as provided in
Section 8.3; provided, however, that if the Trust Indenture Act of 1939 is
amended after such date, "Trust Indenture Act" means, to the extent required by
any such amendment, the Trust Indenture Act of 1939 as so amended.
"Trustee" means the party named as such in the first paragraph
of this Indenture until a successor Trustee replaces it pursuant to the
applicable provisions of this Indenture, and thereafter means such successor
Trustee and if, at any time, there is more than one Trustee, "Trustee" as used
with respect to the Securities of any series shall mean the Trustee with respect
to the Securities of that series.
"United States" means, unless otherwise specified with respect
to the Securities of any series as contemplated by Section 3.1, the United
States of America (including the States thereof and the District of Columbia),
its territories, its possessions and other areas subject to its jurisdiction.
"Unrestricted Subsidiary", with respect to any series of
Securities, shall have the meaning established in accordance with Section 3.1(b)
with respect to such series of Securities.
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"U.S. Person" means, unless otherwise specified with respect
to the Securities of any series as contemplated by Section 3.1, a citizen or
resident of the United States, a corporation, partnership or other entity
created or organized in or under the laws of the United States or any political
subdivision thereof, or an estate or trust, the income of which is subject to
United States federal income taxation regardless of its source.
"Vice President", when used with respect to the Company or any
Guarantor, means any Vice President of such Person whether or not designated by
a number or a word or words added before or after the title "Vice President."
(b) The following terms shall have the meanings specified in
the Sections referred to opposite such term below:
<TABLE>
<CAPTION>
Term Section
---- -------
<S> <C>
"Act" 1.4(a)
"Common Stock" 14.1(b)(i)
"Company Securities Payment" 15.2
"covenant defeasance" 4.5
"Defaulted Interest" 3.7(b)
"defeasance" 4.4
"Equity Securities" 14.1(b)
"Event of Default" 5.1
"NASDAQ" 14.3
"Payment Blockage Period" 15.3
"Preferred Stock" 14.1(b)(ii)
"Register" 3.5
"Registrar" 3.5
"Senior Nonmonetary Default" 15.3
"Senior Payment Default" 15.3
</TABLE>
Section 1.2. Compliance Certificates and Opinions. Upon any
application or request by the Company to the Trustee to take any action under
any provision of this Indenture, the Company shall furnish to the Trustee such
certificates and opinions as may be required under the Trust Indenture Act
(including Section 314(c) of the Trust Indenture Act). Each such certificate or
opinion shall be given in the form of an Officers' Certificate, if to be given
by an officer or officers of the Company, or an Opinion of Counsel, if to be
given by counsel, and shall comply with the requirements of the Trust Indenture
Act and any other requirements set forth in this Indenture.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than pursuant to
Section 2.4, the last paragraph of Section 3.3 and Section 9.5) shall include:
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(a) a statement that each individual signing such certificate
or opinion has read such condition or covenant and the definitions herein
relating thereto;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions contained in
such certificate or opinion are based;
(c) a statement that, in the opinion of each such individual,
he or she has made such examination or investigation as is necessary to enable
him or her to express an informed opinion as to whether or not such condition or
covenant has been complied with; and
(d) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 1.3. Form of Documents Delivered to Trustee. In any
case where several matters are required to be certified by, or covered by an
opinion of, any specified Person, it is not necessary that all such matters be
certified by, or covered by the opinion of, only one such Person, or that they
be so certified or covered by only one document, but one such Person may certify
or give an opinion with respect to some matters and one or more other such
Persons as to other matters, and any such Person may certify or give an opinion
as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or opinion of,
or representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his or her certificate or opinion is
based are erroneous. Any such certificate or opinion or any Opinion of Counsel
may be based, insofar as it relates to factual matters, upon a certificate or
opinion of, or representations by, an officer or officers of the Company stating
that the information with respect to such factual matters is in the possession
of the Company, unless such officer or counsel knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
as to such matters are erroneous.
Any certificate, statement or opinion of an officer of the
Company or of counsel may be based, insofar as it relates to accounting matters,
upon a certificate or opinion of or representations by an accountant or firm of
accountants in the employ of the Company, unless such officer or counsel, as the
case may be, knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to the accounting matters
upon which his certificate, statement or opinion is based are erroneous.
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<PAGE> 24
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be consolidated
and form one instrument.
Section 1.4. Acts of Holders. (a) Any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be given or taken by Holders may be embodied in and evidenced
by one or more instruments of substantially similar tenor signed (either
physically or by means of a facsimile or an electronic transmission, provided,
in the case of an electronic transmission, that it is transmitted through the
facilities of a Depositary) by such Holders in person or by agent or proxy duly
appointed in writing. If Securities of a series are issuable as Bearer
Securities, any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders of Securities of such series may, alternatively, be embodied in and
evidenced by the record of Holders of Securities of such series voting in favor
thereof pursuant to the second paragraph of Section 13.4, either in person or by
proxies duly appointed in writing, at any meeting of Holders of Securities of
such series duly called and held in accordance with the provisions of Article
13, or a combination of such instruments and any such record. Except as herein
otherwise expressly provided, such action shall become effective when such
instrument or instruments or record or both are received (either physically or,
if the Securities are held through the facilities of a Depositary, by means of a
facsimile or an electronic transmission, provided, in the case of an electronic
transmission, that it is transmitted through the facilities of a Depositary) by
the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments and record (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the "Act" of the Holders
signing such instrument or instruments or so voting at such meeting. The Company
and the Trustee may assume that any Act of a Holder has not been modified or
revoked unless written notice to the contrary is received prior to the time that
the action to which such Act relates has become effective. Proof of execution of
any such instrument or of a writing appointing any such agent shall be
sufficient for any purpose of this Indenture and (subject to Section 315 of the
Trust Indenture Act) conclusive in favor of the Trustee and the Company, if made
in the manner provided in this Section. The record of any meeting of Holders of
Securities shall be proved in the manner provided in Section 13.6.
(b) The fact and date of the execution by any Person of any
such instrument or writing and the authority of the Person executing the same
may be proved in any manner which the Trustee deems sufficient.
(c) The ownership of Bearer Securities may be proved by the
production of such Bearer Securities or by a certificate executed by any trust
company, bank, banker or other depository, wherever situated, if such
certificate shall be deemed by the Trustee
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<PAGE> 25
to be satisfactory, showing that at the date therein mentioned such Person had
on deposit with such trust company, bank, banker or other depository, or
exhibited to it, the Bearer Securities therein described; or such facts may be
proved by the certificate or affidavit of the Person holding such Bearer
Securities, if such certificate or affidavit is deemed by the Trustee to be
satisfactory. The Trustee and the Company may assume that such ownership of any
Bearer Security continues until (i) another such certificate or affidavit
bearing a later date issued in respect of the same Bearer Security is produced,
(ii) such Bearer Security is produced to the Trustee by some other Person, (iii)
such Bearer Security is surrendered in exchange for a Registered Security or
(iv) such Bearer Security is no longer Outstanding. The ownership of Bearer
Securities may also be proved in any other manner which the Trustee deems
sufficient.
(d) The ownership of Registered Securities shall be proved by
the Register.
(e) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall bind every
future Holder of the same Security and any interest coupons appertaining thereto
and the Holder of every Security or interest coupon issued upon the registration
of transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee or the Company in
reliance thereon, whether or not notation of such Act is made upon such Security
or interest coupon.
(f) If the Company shall solicit from the Holders any request,
demand, authorization, direction, notice, consent, waiver or other Act, the
Company may, at its option, by or pursuant to a Board Resolution, fix in advance
a record date for the determination of Holders of Registered Securities entitled
to give such request, demand, authorization, direction, notice, consent, waiver
or other Act, but the Company shall have no obligation to do so. Notwithstanding
Section 316(c) of the Trust Indenture Act, any such record date shall be the
record date specified in or pursuant to such Board Resolution, which shall be a
date not more than 30 days prior to the first solicitation of Holders generally
in connection therewith and no later than the date such first solicitation is
completed. If such a record date is fixed, such request, demand, authorization,
direction, notice, consent, waiver or other Act may be given before or after
such record date, but only the Holders of Registered Securities of record at the
close of business on such record date shall be deemed to be Holders for the
purposes of determining whether Holders of the requisite proportion of
Outstanding Securities have authorized or agreed or consented to such request,
demand, authorization, direction, notice, consent, waiver or other Act, and for
that purpose the Outstanding Securities shall be computed as of such record
date; provided that no such authorization, agreement or consent by the Holders
on such record date shall be deemed effective unless it shall become effective
pursuant to the provisions of this Indenture not later than six months after the
record date.
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<PAGE> 26
Without limiting the foregoing, a Holder entitled to give or
take any action hereunder with regard to any particular Security may do so with
regard to all or any part of the principal amount of such Security or by one or
more duly appointed agents, each of which may do so pursuant to such appointment
with regard to all or any part of the principal amount of such Security to which
such appointment relates.
Section 1.5. Notices, Etc., to Trustee, Company and
Guarantors. Any request, demand, authorization, direction, notice, consent,
waiver or Act of Holders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with,
(a) the Trustee by any Holder or by the Company or any
Guarantor shall be sufficient for every purpose hereunder if made, given,
furnished or filed in writing to or with the Trustee at its Corporate Trust
Office, Attention: Corporate Trust Department, or at any other address
previously furnished in writing to the Holders or the Company by the Trustee,
or, with respect to notices by the Company, transmitted by facsimile
transmission (confirmed by guaranteed overnight courier) to the following
facsimile number: (612) 244-0711 or to any other facsimile number previously
furnished in writing to the Company by the Trustee, or
(b) the Company or any Guarantor by the Trustee or by any
Holder shall be sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage prepaid, to it
addressed to it at the address of the Company's principal office specified in
the first paragraph of this instrument or at any other address previously
furnished in writing to the Trustee by the Company or, with respect to notices
by the Trustee, transmitted by facsimile transmission (confirmed by guaranteed
overnight courier) to the following facsimile number: (602) 423-9424 or to any
other facsimile number previously furnished in writing to the Trustee by the
Company.
Section 1.6. Notice to Holders; Waiver. Where this Indenture
provides for notice to Holders of any event, (i) if any of the Securities
affected by such event are Registered Securities, such notice to the Holders
thereof shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each such Holder
affected by such event, at his or her address as it appears in the Register,
within the time prescribed for the giving of such notice, and (ii) if any of the
Securities affected by such event are Bearer Securities, notice to the Holders
thereof shall be sufficiently given (unless otherwise herein or in the terms of
such Bearer Securities expressly provided) if published twice in an Authorized
Newspaper in New York, New York, and in such other city or cities, if any, as
may be specified as contemplated by Section 3.1. Such notices shall be deemed to
have been given on the date of such mailing or publication.
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<PAGE> 27
In any case where notice to Holders is given by mail or by
publication, neither the failure to mail or publish such notice, nor any defect
in any notice so mailed or published, to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders of Registered
Securities or of Bearer Securities. Any notice mailed to a Holder in the manner
herein prescribed shall be conclusively deemed to have been received by such
Holder, whether or not such Holder actually receives such notice.
If by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice as
provided above, then such notification as shall be made with the approval of the
Trustee shall constitute a sufficient notification for every purpose hereunder.
If it is impossible or, in the opinion of the Trustee, impracticable to give any
notice by publication in the manner herein required, then such publication in
lieu thereof as shall be made with the approval of the Trustee shall constitute
a sufficient publication of such notice.
Any request, demand, authorization, direction, notice, consent
or waiver required or permitted under this Indenture shall be in the English
language, except that any published notice may be in an official language of the
country of publication.
Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall be equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
Section 1.7. Headings and Table of Contents. The Article and
Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
Section 1.8. Successor and Assigns. All covenants and
agreements in this Indenture by the Company or any Guarantor shall bind its
successors and assigns, whether so expressed or not.
Section 1.9. Separability. In case any provision of this
Indenture or the Securities or the Senior Subordinated Guarantees shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
Section 1.10. Benefits of Indenture. Nothing in this Indenture
or in the Securities or the Senior Subordinated Guarantees, expressed or
implied, shall give to any Person, other than the parties hereto and their
successors hereunder and the Holders and the holders of Senior Debt, any benefit
or any legal or equitable right, remedy or claim under this Indenture.
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<PAGE> 28
Section 1.11. Incorporators, Officers and Directors of the
Company Exempt from Individual Liability. No recourse under or upon any
obligation, covenant or agreement of or contained in this Indenture or of or
contained in any Security or interest coupon appertaining thereto, or for any
claim based thereon or otherwise in respect thereof, or because of any
indebtedness represented thereby, shall be had against any incorporator, officer
or director, as such, past, present or future, of the Company or any successor
Person, either directly or through the Company or any successor Person, whether
by virtue of any constitution, statute or rule of law, by the enforcement of any
assessment or penalty, by any legal or equitable proceeding or otherwise; it
being expressly understood that all such liability is hereby expressly waived
and released as a condition of the acceptance of, and as a part of the
consideration for the execution of this Indenture and the issuance of, the
Securities and any interest coupons appertaining thereto.
Section 1.12. Governing Law; Conflict with Trust Indenture
Act. THIS INDENTURE, THE SECURITIES, THE SENIOR SUBORDINATED GUARANTEES ENDORSED
THEREON AND ANY INTEREST COUPONS APPERTAINING THERETO SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. This Indenture
is subject to the Trust Indenture Act and if any provision hereof limits,
qualifies or conflicts with the Trust Indenture Act, the Trust Indenture Act
shall control. Whether or not this Indenture is required to be qualified under
the Trust Indenture Act, the provisions of the Trust Indenture Act required to
be included in an indenture in order for such indenture to be so qualified shall
be deemed to be included in this Indenture with the same effect as if such
provisions were set forth herein and any provisions hereof which may not be
included in an indenture which is so qualified shall be deemed to be deleted or
modified to the extent such provisions would be required to be deleted or
modified in an indenture so qualified.
Section 1.13. Legal Holidays. In any case where any Interest
Payment Date, Redemption Date, sinking fund payment date, Stated Maturity or
Maturity of any Security shall not be a Business Day at any Place of Payment,
then (notwithstanding any other provision of this Indenture or of any Security
or interest coupon or any Senior Subordinated Guarantee other than a provision
in the Securities of any series which specifically states that such provision
shall apply in lieu of this Section), payment of principal, premium, if any, or
interest need not be made at such Place of Payment on such date, but may be made
on the next succeeding Business Day at such Place of Payment with the same force
and effect as if made on such date; provided that no interest shall accrue on
the amount so payable for the period from and after such Interest Payment Date,
Redemption Date, sinking fund payment date, Stated Maturity or Maturity, as the
case may be, if such amount is so paid on the next succeeding Business Day.
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Section 1.14. Moneys of Different Currencies to Be Segregated.
The Trustee shall segregate all moneys, funds and accounts held by the Trustee
hereunder in one currency from any moneys, funds and accounts held by the
Trustee hereunder in any other currencies, notwithstanding any provision herein
which would otherwise permit the Trustee to commingle such amounts.
Section 1.15. Independence of Covenants. All covenants and
agreements in this Indenture shall be given independent effect so that if a
particular action or condition is not permitted by any such covenant, the fact
that it would be permitted by an exception to, or be otherwise within the
limitations of, another covenant shall not avoid the occurrence of a Default or
an Event of Default if such action is taken or condition exists.
Section 1.16. Counterparts. This Indenture may be executed in
any number of counterparts, each of which shall be an original, but such
counterparts shall together constitute but one and the same instrument.
ARTICLE 2
SECURITY AND SENIOR SUBORDINATED GUARANTEE FORMS
Section 2.1. Forms Generally. The Securities of each series
and the interest coupons, if any, to be attached thereto and the Senior
Subordinated Guarantees to be endorsed thereon shall be in substantially such
form as shall be established by or pursuant to a Board Resolution or in one or
more indentures supplemental hereto, in each case with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture, and may have such letters, numbers or other marks
of identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any applicable securities exchange,
organizational document, governing instrument or law or as may, consistently
herewith, be determined by the officers executing such Securities and interest
coupons, if any, or Senior Subordinated Guarantees to be endorsed thereon, as
the case may be, as evidenced by their execution of the Securities and interest
coupons, if any, or Senior Subordinated Guarantees to be endorsed thereon, as
the case may be. If temporary Securities and Senior Subordinated Guarantees of
any series are issued as permitted by Section 3.4, the form thereof also shall
be established as provided in the preceding sentence. If the forms of Securities
and interest coupons, if any, and Senior Subordinated Guarantees of any series
are established by, or by action taken pursuant to, a Board Resolution, a copy
of the Board Resolution together with an appropriate record of any such action
taken pursuant thereto, including a copy of the approved form of Securities or
interest coupons, if any, and Senior Subordinated Guarantees shall be delivered
to the Trustee at or prior to the delivery of the Company Order contemplated by
Section 3.3 for the authentication and delivery of such Securities.
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<PAGE> 30
Unless otherwise specified as contemplated by Section 3.1,
Bearer Securities shall have interest coupons attached.
The definitive Securities and interest coupons, if any, may be
printed, lithographed or engraved on steel engraved borders or may be produced
in any other manner (or, if such Securities are listed on any securities
exchange, any other manner permitted by the rules of such securities exchange),
all as determined by the officers executing such Securities and interest
coupons, if any, as evidenced by their execution of such Securities and interest
coupons, if any.
Section 2.2. Form of Trustee's Certificate of Authentication.
The Trustee's certificate of authentication shall be in substantially the
following form:
This is one of the Securities with the Senior Subordinated
Guarantees endorsed thereon of the series designated therein referred to in the
within-mentioned Indenture.
FIRST TRUST NATIONAL ASSOCIATION,
as Trustee
By: _______________________________________
Authorized Signatory
Section 2.3. Form of 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.
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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 Subsidiary Guarantee, any Subsidiary Guarantor) or any action to
enforce the same or any other circumstances which might otherwise constitute a
legal or equitable discharge or defense of a Guarantor. Each of the Guarantors
hereby waives the benefits of diligence, presentment, demand of payment, any
requirement that the Trustee or any of the Holders protect, secure, perfect or
insure any security interest in or other Lien on any property subject thereto or
exhaust any right or take any action against the Company (or, with respect to
the Allied Subsidiary Guarantee, any Subsidiary Guarantor) or any other Person
or any collateral, filing of claims with a court in the event of insolvency or
bankruptcy of the Company (or, with respect to the allied Subsidiary Guarantor,
any Subsidiary Guarantor), any right to require a proceeding first against the
Company (or, with respect to the Allied Subsidiary Guarantee, any Subsidiary
Guarantor), protest or notice with respect to such Security (or, with respect to
the Allied Subsidiary Guarantor, the Subsidiary Guarantees) 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 (or, with respect to the Allied
Subsidiary Guarantee, the Subsidiary Guarantees) 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 (or,
with respect to the Allied Subsidiary Guarantee, the Subsidiary Guarantees),
whether at its Stated Maturity, by acceleration, call for redemption, purchase
or otherwise, legal proceedings may be instituted by the Trustee on behalf of,
or by, the Holder of such Security, subject to the terms and conditions set
forth in the Indenture, directly against each or any of the Guarantors to
enforce this Senior Subordinated
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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, with respect to the Allied Subsidiary
Guarantee, the Subsidiary Guarantees), or to enforce or exercise any other right
or remedy with respect to the Securities (or, with respect to the Allied
Subsidiary Guarantee, the Subsidiary Guarantees), 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 Subsidiary
Guarantee, any Subsidiary Guarantor)in respect of any amounts paid by such
Guarantor on account of such Security (or, with respect to the Allied Subsidiary
Guarantee, on account of the Subsidiary Guarantees) pursuant to the provisions
of its Senior 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 Subsidiary Guarantee, the
Subsidiary Guarantor)for liquidation or reorganization, should the Company (or
with respect to the Allied Subsidiary Guarantee, any Subsidiary Guarantor)
become insolvent or make an assignment for the benefit of creditors or should a
receiver or trustee be appointed for all or any significant part of the
Company's assets (or, with respect to the Allied Subsidiary Guarantee, the
Subsidiary guarantors'), and shall, to the fullest extent permitted by law,
continue to be effective or be reinstated, as the case may be, if at any time
payment and performance of the Securities (or, with respect to the Allied
Subsidiary Guarantee, the Subsidiary Guarantees)is, pursuant to applicable law,
rescinded or reduced in amount, or must otherwise be restored or returned by any
obligee on the Securities, whether as a "voidable preference," "fraudulent
transfer" or otherwise, all as though such payment or performance had not been
made. In the event that any payment, or any part thereof, is rescinded, reduced,
restored or returned, the Securities shall, to the fullest extent
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permitted by law, be reinstated and deemed reduced only by such amount paid and
not so rescinded, reduced, restored or returned.
The Guarantors shall have the right to seek contribution from
any non-paying Guarantor so long as the exercise of such right does not impair
the rights of the Holders under this Senior Subordinated Guarantee.
The Guarantors or any particular Guarantor shall be released
from this Senior Subordinated Guarantee upon the terms and subject to certain
conditions provided in the Indenture.
By delivery of a supplemental indenture to the Trustee in
accordance with the terms of the Indenture, each Person that becomes a
Subsidiary Guarantor after the date of the Indenture will be deemed to have
executed and delivered this Subsidiary Guarantee for the benefit of the Holder
of the Security upon which this Subsidiary Guarantee is endorsed, with the same
effect as if such Subsidiary Guarantor was named below and had executed and
delivered this Subsidiary Guarantee.
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 Sixteen 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 LAWS 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 of the Securities and as
Guarantor of the obligators of the Subsidiary
Guarantees under the Subsidiary Guarantees
By: ______________________________________
[Officer]
Attest:
_________________________
[Secretary]
[Assistant Secretary]
Each of the Subsidiary Guarantors Listed on
Schedule I to the Indenture, Guarantor of the
Securities
By:*/ _____________________________________
[Officer]
Attest:*
_________________________
[Secretary]
[Assistant Secretary]
_________________________
*/ Signing as duly authorized officer for each such Subsidiary Guarantor.
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<PAGE> 35
Section 2.4. Securities in Global Form. If Securities of or
within a series are issuable in whole or in part in global form, any such
Security may provide that it shall represent the aggregate or specified amount
of Outstanding Securities from time to time endorsed thereon and may also
provide that the aggregate amount of Outstanding Securities represented thereby
may from time to time be reduced or increased to reflect exchanges for
certificated securities. Any endorsement of a Security in global form to reflect
the amount, or any increase or decrease in the amount, or changes in the rights
of Holders, of Outstanding Securities represented thereby, shall be made in such
manner and by such Person or Persons as shall be specified therein or in the
Company Order to be delivered to the Trustee pursuant to Section 3.3 or 3.4.
Subject to the provisions of Section 3.3, Section 3.4, if applicable, and
Section 3.5, the Trustee shall deliver and redeliver any Security in permanent
global form in the manner and upon instructions given by the Person or Persons
specified therein or in the applicable Company Order. Any instructions by the
Company with respect to endorsement or delivery or redelivery of a Security in
global form shall be in writing but need not comply with Section 1.2 hereof and
need not be accompanied by an Officers' Certificate or an Opinion of Counsel.
The provisions of the last paragraph of Section 3.3 shall
apply to any Security in global form if such Security was never issued and sold
by the Company and the Company delivers to the Trustee the Security in global
form together with written instructions (which need not comply with Section 1.2
hereof and need not be accompanied by an Officers' Certificate or an Opinion of
Counsel) with regard to the reduction in the principal amount of Securities
represented thereby, together with the written statement contemplated by the
last paragraph of Section 3.3.
Notwithstanding the provisions of Section 2.1 and 3.7, unless
otherwise specified as contemplated by Section 3.1, payment of principal of,
premium, if any, and interest on any Registered Security in permanent global
form shall be made to the registered holder thereof.
Section 2.5. Form of Legend for Securities in Global Form. Any
Security in global form authenticated and delivered hereunder shall bear a
legend in substantially the following form or in such other form as may be
specified in accordance with Section 3.1:
"THIS SECURITY IS IN GLOBAL FORM WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A
DEPOSITARY OR A NOMINEE OF A DEPOSITARY. UNLESS AND UNTIL IT IS
EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN CERTIFICATED FORM, THIS
SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO
A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE
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<PAGE> 36
DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY
THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A
NOMINEE OF SUCH SUCCESSOR DEPOSITARY."
ARTICLE 3
THE SECURITIES
Section 3.1. Amount Unlimited; Issuable in Series. (a) The
aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited. The Securities may be issued from
time to time in one or more series.
(b) The following matters shall be established with respect to
each series of Securities issued hereunder (i) by a Board Resolution, (ii) by
action taken pursuant to a Board Resolution and (subject to Section 3.3) set
forth, or determined in the manner provided, in an Officers' Certificate or
(iii) in one or more indentures supplemental hereto:
(1) the title of the Securities of the series (which title
shall distinguish the Securities of the series from all other series of
Securities);
(2) any limit upon the aggregate principal amount of the
Securities of the series which may be authenticated and delivered under
this Indenture (which limit shall not pertain to Securities
authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, other Securities of the series pursuant to
Section 3.4, 3.5, 3.6, 8.6 or 11.7 or any Securities that, pursuant to
Section 3.3, are deemed never to have been authenticated and delivered
hereunder);
(3) the date or dates on which the principal of and premium,
if any, on the Securities of the series is payable or the method or
methods of determination thereof;
(4) the rate or rates at which the Securities of the series
shall bear interest, if any, or the method or methods of calculating
such rate or rates of interest, the date or dates from which such
interest shall accrue or the method or methods by which such date or
dates shall be determined, the Interest Payment Dates on which any such
interest shall be payable, the right, if any, of the Company to defer
or extend an Interest Payment Date and, with respect to Registered
Securities, the Regular Record Date, if any, for the interest payable
on any Registered Security on any Interest Payment Date, and the basis
upon which
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interest shall be calculated if other than that of a 360-day year of
twelve 30-day months;
(5) the place or places where the principal of, premium, if
any, and interest, if any, on Securities of the series shall be
payable, any Registered Securities of the series may be surrendered for
registration of transfer, Securities of the series may be surrendered
for exchange and notices and demands to or upon the Company in respect
of the Securities of the series and this Indenture may be served and
where notices to Holders pursuant to Section 1.6 will be published;
(6) the period or periods within which, the price or prices at
which, the currency or currencies (including currency unit or units) in
which, and the other terms and conditions upon which, Securities of the
series may be redeemed, in whole or in part, at the option of the
Company and, if other than as provided in Section 11.3, the manner in
which the particular Securities of such series (if less than all
Securities of such series are to be redeemed) are to be selected for
redemption;
(7) the obligation, if any, of the Company to redeem or
purchase Securities of the series pursuant to any sinking fund or
analogous provisions or upon the happening of a specified event or at
the option of a Holder thereof and the period or periods within which,
the price or prices at which, the currency or currencies (including
currency unit or units) in which, and the other terms and conditions
upon which, Securities of the series shall be redeemed or purchased, in
whole or in part, pursuant to such obligation;
(8) if other than denominations of $1,000 and any integral
multiple thereof, if Registered Securities, and if other than
denominations of $5,000 and any integral multiple thereof, if Bearer
Securities, the denominations in which Securities of the series shall
be issuable;
(9) if other than Dollars, the currency or currencies
(including currency unit or units) in which the principal of, premium,
if any, and interest, if any, on the Securities of the series shall be
payable, or in which the Securities of the series shall be denominated,
and the particular provisions applicable thereto in accordance with, in
addition to, or in lieu of the provisions of Section 3.12;
(10) if the payments of principal of, premium, if any, or
interest, if any, on the Securities of the series are to be made, at
the election of the Company or a Holder, in a currency or currencies
(including currency unit or units) other than that in which such
Securities are denominated or designated to be payable, the currency or
currencies (including currency unit or units) in which such payments
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<PAGE> 38
are to be made, the terms and conditions of such payments and the
manner in which the exchange rate with respect to such payments shall
be determined, and the particular provisions applicable thereto in lieu
of the provisions of Section 3.12;
(11) if the amount of payments of principal of, premium, if
any, and interest, if any, on the Securities of the series shall be
determined with reference to an index, formula or other method (which
index, formula or method may be based, without limitation, on a
currency or currencies (including currency unit or units) other than
that in which the Securities of the series are denominated or
designated to be payable), the index, formula or other method by which
such amounts shall be determined and any special voting or defeasance
provisions in connection therewith;
(12) if other than the entire principal amount thereof, the
portion of the principal amount of such Securities of the series which
shall be payable upon declaration of acceleration thereof pursuant to
Section 5.2 or the method by which such portion shall be determined;
(13) if other than as provided in Section 3.7, the Person to
whom any interest on any Registered Security of the series shall be
payable and the manner in which, or the Person to whom, any interest on
any Bearer Securities of the series shall be payable;
(14) provisions, if any, granting special rights to the
Holders of Securities of the series upon the occurrence of such events
as may be specified;
(15) any deletions from, modifications of or additions to the
Events of Default set forth in Section 5.1 or covenants of the Company
set forth in Article 9 pertaining to the Securities of the series;
(16) under what circumstances, if any, and with what
procedures and documentation the Company will pay additional amounts on
the Securities and interest coupons, if any, of that series held by a
Person who is not a U.S. Person (including any modification of the
definition of such term) in respect of taxes, assessments or similar
charges withheld or deducted and, if so, whether the Company will have
the option to redeem such Securities rather than pay such additional
amounts (and the terms of any such option);
(17) whether Securities of the series shall be issuable as
Registered Securities or Bearer Securities (with or without interest
coupons), or both, and any restrictions applicable to the offering,
sale, transfer or delivery of Bearer Securities and, if other than as
provided in Section 3.5, the terms upon which Bearer
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Securities of a series may be exchanged for Registered Securities of
the same series and vice versa;
(18) the date as of which any Bearer Securities of the series
and any temporary global Security representing Outstanding Securities
of the series shall be dated if other than the date of original
issuance of the first Security of the series to be issued;
(19) the forms of the Securities and interest coupons, if any,
of the series;
(20) the applicability, if any, to the Securities and interest
coupons, if any, of or within the series of Sections 4.4 and 4.5, or
such other means of defeasance or covenant defeasance as may be
specified for the Securities and interest coupons, if any, of such
series, and whether, for the purpose of such defeasance or covenant
defeasance, the term "Government Obligations" shall include obligations
referred to in the definition of such term which are not obligations of
the United States or an agency or instrumentality of the United States;
(21) if other than the Trustee, the identity of the Registrar
and any Paying Agent;
(22) if the Securities of the series shall be issued in whole
or in part in global form, (i) the Depositary for such global
Securities, (ii) whether beneficial owners of interests in any
Securities of the series in global form may exchange such interests for
certificated Securities of such series, to be registered in the names
of or to be held by such beneficial owners or their nominees and to be
of like tenor of any authorized form and denomination, and (iii) if
other than as provided in Section 3.5, the circumstances under which
any such exchange may occur;
(23) any restrictions on the registration, transfer or
exchange of the Securities;
(24) if the Securities of the series may be issued or
delivered (whether upon original issuance or upon exchange of a
temporary Security of such series or otherwise), or any installment of
principal or interest is payable, only upon receipt of certain
certificates or other documents or satisfaction of other conditions in
addition to those specified in this Indenture, the form and terms of
such certificates, documents or conditions;
(25) the terms and conditions of any right to convert or
exchange Securities of the series into or for Equity Securities of the
Company, including
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provisions for the payment of interest on Securities being converted or
exchanged as contemplated by Section 3.7(d) and Section 14.2;
(26) whether the Securities are secured or unsecured, and if
secured, the security and related terms in connection therewith;
(27) the definition of "Unrestricted Subsidiary" to be used
for such series; and
(28) any other terms of the series including any terms which
may be required by or advisable under United States laws or regulations
or advisable (as determined by the Company) in connection with the
marketing of Securities of the series.
(c) Subject to Section 1.12 and any controlling provision of
the Trust Indenture Act, in the event of any inconsistency between the terms of
this Indenture and the terms applicable to a series of Securities established in
the manner permitted by Section 3.1(b), the (i) Board Resolution, (ii) Officer's
Certificate or (iii) supplemental indenture setting forth such conflicting term
shall prevail.
(d) All Securities of any one series and interest coupons, if
any, appertaining thereto shall be substantially identical except as to
denomination and except as may otherwise be provided (i) by a Board Resolution,
(ii) by action taken pursuant to a Board Resolution and (subject to Section 3.3)
set forth, or determined in the manner provided, in the related Officers'
Certificate or (iii) in an indenture supplemental hereto. All Securities of any
one series need not be issued at the same time and, unless otherwise provided, a
series may be reopened, without the consent of the Holders, for issuances of
additional Securities of such series.
(e) If any of the terms of the Securities of any series are
established by action taken pursuant to a Board Resolution, a copy of such Board
Resolution shall be delivered to the Trustee at or prior to the delivery of the
Officers' Certificate setting forth, or providing the manner for determining,
the terms of the Securities of such series, and an appropriate record of any
action taken pursuant thereto in connection with the issuance of any Securities
of such series shall be delivered to the Trustee prior to the authentication and
delivery thereof.
Section 3.2. Denominations. Unless otherwise provided as
contemplated by Section 3.1(b), any Registered Securities of a series
denominated in Dollars shall be issuable in denominations of U.S. $1,000 and any
integral multiple thereof and any Bearer Securities of a series denominated in
Dollars shall be issuable in the denomination of U.S. $5,000 and any integral
multiple thereof. Securities
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denominated in a Foreign Currency shall be issuable in such denominations as are
established with respect to such Securities in or pursuant to this Indenture.
Section 3.3. Execution, Authentication, Delivery and Dating.
Securities shall be executed on behalf of the Company by the Chairman of the
Board, the President, the Chief Executive Officer, the Chief Operating Officer,
the Chief Financial Officer or any Vice President of the Company, and need not
be attested. The signatures of any of these officers on the Securities may be
manual or facsimile. The interest coupons, if any, of Bearer Securities shall
bear the facsimile signature of the Chairman of the Board, the President, the
Chief Executive Officer, the Chief Operating Officer, the Chief Financial
Officer or any Vice President of the Company, and need not be attested.
Securities and interest coupons bearing the manual or
facsimile signatures of individuals who were at any time Officers of the Company
shall bind the Company, notwithstanding that such individuals or any of them
have ceased to be Officers prior to the authentication and delivery of such
Securities or were not Officers at the date of such Securities.
At any time and from time to time, the Company may deliver
Securities, together with any interest coupons appertaining thereto, of any
series executed by the Company and having endorsed (by attachment or imprint)
thereon the Senior Subordinated Guarantees executed as provided in Section 16.2
by the Guarantors to the Trustee for authentication, together with a Company
Order for the authentication and delivery of such Securities with such Senior
Subordinated Guarantees endorsed thereon, and the Trustee in accordance with
such Company Order shall authenticate and deliver such Securities with such
Senior Subordinated Guarantees endorsed thereon to or upon the order of the
Company (as set forth in such Company Order); provided, however, that, in the
case of Securities of a series offered in a Periodic Offering, the Trustee shall
authenticate and deliver such Securities from time to time in accordance with
such other procedures (including, without limitation, the receipt by the Trustee
of oral or electronic instructions from the Company or its duly authorized
agents, promptly confirmed in writing) acceptable to the Trustee as may be
specified by or pursuant to a Company Order delivered to the Trustee prior to
the time of the first authentication of Securities of such series.
If the form or terms of the Securities with the Senior
Subordinated Guarantees endorsed thereon of a series have been established by or
pursuant to one or more Board Resolutions or one or more indentures supplemental
hereto as permitted by Sections 2.1 and 3.1, in authenticating such Securities
with Senior Subordinated Guarantees endorsed thereon and accepting the
additional responsibilities under this Indenture in relation to such Securities
with Senior Subordinated Guarantees endorsed
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thereon, the Trustee shall be entitled to receive, and (subject to section
315(a) through (d) of the Trust Indenture Act) shall be fully protected in
relying upon,
(i) an Opinion of Counsel stating:
(1) if the form or forms of such Securities and any interest
coupons with Senior Subordinated Guarantees endorsed thereon have been
established by or pursuant to a Board Resolution as permitted by
Section 2.1, that such forms have been established in conformity with
the provisions of this Indenture;
(2) if the terms of such Securities and any interest coupons
have been, or, in the case of Securities of a series with Senior
Subordinated Guarantees endorsed thereon offered in a Periodic
Offering, will be, established by or pursuant to a Board Resolution as
permitted by Section 3.1, that such terms have been, or, in the case of
Securities of a series with Senior Subordinated Guarantees endorsed
thereon offered in a Periodic Offering, will be, established in
conformity with the provisions of this Indenture, subject, in the case
of Securities with Senior Subordinated Guarantees endorsed thereon
offered in a Periodic Offering, to any conditions specified in such
Opinion of Counsel;
(3) if the form or terms of such Securities have been
established in an indenture supplemental hereto, that such supplemental
indenture has been duly authorized, executed and delivered by the
Company and the Guarantors and, when duly authorized, executed and
delivered by the Trustee, will constitute a legal, valid and binding
obligation enforceable against the Company and the Guarantors in
accordance with its terms, subject to (i) bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and other similar laws
of general applicability relating to or affecting the enforcement of
creditors' rights and to general principles of equity (regardless of
whether enforcement is sought in a proceeding in equity or at law), and
(ii) such other reasonable exceptions as may be specified in such
Opinion of Counsel; and
(4) that such Securities, together with any interest coupons
appertaining thereto, and the Senior Subordinated Guarantees when
issued by the Company and the Guarantors and (in the case of the
Securities) authenticated and delivered by the Trustee in the manner
and subject to any conditions specified in such Opinion of Counsel,
will constitute valid and legally binding obligations of the Company
and the Guarantors, respectively, enforceable against the Company and
the Guarantors in accordance with their terms, subject to (i)
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium
and other similar laws of general applicability relating to or
affecting the enforcement of creditors' rights and to general equity
principles (regardless of whether enforcement is sought in a
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proceeding in equity or at law) and except further as enforcement
thereof may be limited by (A) requirements that a claim with respect to
any Securities or Senior Subordinated Guarantees denominated other than
in Dollars (or a Foreign Currency or currency unit judgment in respect
of such claim) be converted into Dollars at a rate of exchange
prevailing on a date determined pursuant to applicable law or (B)
governmental authority to limit, delay or prohibit the making of
payments in Foreign Currencies or currency units or payments outside
the United States, and (ii) such other reasonable exceptions as may be
specified in such Opinion of Counsel; and
(ii) an Officers' Certificate stating that all conditions
precedent provided for in this Indenture relating to the issuance of such
Securities have been complied with and that, to the knowledge of the signers of
such certificate, no Event of Default with respect to such Securities shall have
occurred and be continuing.
Notwithstanding that such form or terms have been so
established, the Trustee shall have the right to decline to authenticate such
Securities if, in the opinion of the Trustee (after consultation with counsel),
the issue of such Securities pursuant to this Indenture will materially
adversely affect the Trustee's own rights, duties or immunities under this
Indenture or otherwise or if the Trustee determines that such authentication may
not lawfully be made.
Notwithstanding the provisions of Section 3.1 and of the two
preceding paragraphs, if all of the Securities of any series are not to be
issued at one time, it shall not be necessary to deliver the Officers'
Certificate otherwise required pursuant to Section 3.1 or the Company Order and
Opinion of Counsel otherwise required pursuant to the two preceding paragraphs
in connection with the authentication of each Security of such series if such
documents, with appropriate modifications to cover such future issuances, are
delivered at or prior to the authentication upon original issuance of the first
Security of such series to be issued.
With respect to Securities with Senior Subordinated Guarantees
endorsed thereon of a series offered in a Periodic Offering, the Trustee may
rely, as to the authorization by the Company of any of such Securities and by
the Guarantors of any such Senior Subordinated Guarantees endorsed thereon, the
form and terms thereof and the legality, validity, binding effect and
enforceability thereof, upon the Opinion of Counsel and the other documents
delivered pursuant to Sections 2.1 and 3.1 and this Section, as applicable, in
connection with the first authentication of Securities of such series.
If the Company shall establish pursuant to Section 3.1 that
the Securities of a series are to be issued in whole or in part in global form,
then the Company and the
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Guarantors shall execute and the Trustee shall, in accordance with this Section
and the Company Order with respect to such series, authenticate and deliver one
or more Securities with Senior Subordinated Guarantees endorsed thereon in
global form that (i) shall represent and shall be denominated in an amount equal
to the aggregate principal amount of the Outstanding Securities of such series
to be represented by such Security or Securities in global form, (ii) shall be
registered, if a Registered Security, in the name of the Depositary for such
Security or Securities in global form or the nominee of such Depositary, (iii)
shall be delivered by the Trustee to such Depositary or pursuant to such
Depositary's instruction and (iv) shall bear the legend set forth in Section
2.5.
Each Depositary designated pursuant to Section 3.1 for a
Registered Security in global form must, at the time of its designation and at
all times while it serves as Depositary, be a clearing agency registered under
the Securities Exchange Act of 1934 and any other applicable statute or
regulation. If requested by the Company, the Trustee shall enter into an
agreement with a Depositary governing the respective duties and rights of such
Depositary and the Trustee with regard to Securities with Senior Subordinated
Guarantees endorsed thereon issued in global form.
Each Registered Security shall be dated the date of its
authentication and each Bearer Security shall be dated as of the date specified
pursuant to Section 3.1.
No Security or interest coupon appertaining thereto or Senior
Subordinated Guarantee endorsed thereon shall be entitled to any benefits under
this Indenture or be valid or obligatory for any purpose until such Security has
been authenticated by the manual signature of one of the authorized signatories
of the Trustee or an Authenticating Agent. Such signature upon any Security with
Senior Subordinated Guarantees endorsed thereon shall be conclusive evidence,
and the only evidence, that such Security has been duly authenticated and
delivered under this Indenture and is entitled to the benefits of this Indenture
and that each Senior Subordinated Guarantee endorsed thereon has been duly
endorsed thereon and delivered under this Indenture. Except as permitted by
Section 3.6 or 3.7, the Trustee shall not authenticate and deliver any Bearer
Security unless all appurtenant interest coupons for interest then matured have
been detached and cancelled.
Notwithstanding the foregoing, if any Security shall have been
authenticated and delivered hereunder but never issued and sold by the Company,
and the Company shall deliver such Security to the Trustee for cancellation as
provided in Section 3.9 together with a written statement (which need not comply
with Section 1.2 hereof and need not be accompanied by an Officers' Certificate
or an Opinion of Counsel) stating that such Security has never been issued and
sold by the Company, for all purposes of this Indenture such Security shall be
deemed never to have been authenticated and delivered hereunder and shall not be
entitled to the benefits of this Indenture.
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Section 3.4. Temporary Securities. Pending the preparation of
definitive Securities of any series, the Company and the Guarantors may execute
and, upon Company Order, the Trustee shall authenticate and deliver temporary
Securities with Senior Subordinated Guarantees endorsed thereon of such series
which are printed, lithographed, typewritten, mimeographed or otherwise
produced, in any authorized denomination, substantially of the tenor and form,
with or without interest coupons, of the definitive Securities with Senior
Subordinated Guarantees endorsed thereon in lieu of which they are issued and
with such appropriate insertions, omissions, substitutions and other variations
as the officers executing such Securities and such Senior Subordinated
Guarantees may determine, as conclusively evidenced by their execution of such
Securities and interest coupons, if any and such Senior Subordinated Guarantees.
In the case of Securities of any series, such temporary Securities may be in
global form, representing all or a portion of the Outstanding Securities of such
series.
Except in the case of temporary Securities in global form,
each of which shall be exchanged in accordance with the provisions thereof, if
temporary Securities of any series are issued, the Company and the Guarantors
will cause definitive Securities with Senior Subordinated Guarantees endorsed
thereon of such series to be prepared without unreasonable delay. After
preparation of definitive Securities of such series, the temporary Securities of
such series shall be exchangeable for definitive Securities of such series upon
surrender of the temporary Securities of such series at the office or agency of
the Company pursuant to Section 9.2 in a Place of Payment for such series,
without charge to the Holder. Upon surrender for cancellation of any one or more
temporary Securities of any series (accompanied by any unmatured interest
coupons appertaining thereto), the Company and the Guarantors shall execute and
the Trustee shall authenticate and deliver in exchange therefor a like principal
amount of definitive Securities with Senior Subordinated Guarantees endorsed
thereon of the same series of authorized denominations and of like tenor;
provided, however, that no definitive Bearer Security shall be delivered in
exchange for a temporary Registered Security; and provided, further, that no
definitive Bearer Security shall be delivered in exchange for a temporary Bearer
Security unless such delivery shall occur outside the United States. Until so
exchanged, the temporary Securities of any series shall in all respects be
entitled to the same benefits under this Indenture as definitive Securities of
such series except as otherwise specified as contemplated by Section 3.1.
Section 3.5. Registration, Transfer and Exchange. The Company
shall cause to be kept at the Corporate Trust Office of the Trustee or in any
office or agency to be maintained by the Company in accordance with Section 9.2
in a Place of Payment a register (the "Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Registered Securities and the registration of transfers of
Registered Securities. The Register shall be in written form or any other form
capable of being converted into written form within a reasonable time.
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The Trustee is hereby initially appointed "Registrar" for the purpose of
registering Registered Securities and transfers of Registered Securities as
herein provided.
Upon surrender for registration of transfer of any Registered
Security of any series at the office or agency maintained pursuant to Section
9.2 in a Place of Payment for that series, the Company and the Guarantors shall
execute, and the Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Registered Securities with
Senior Subordinated Guarantees endorsed thereon of the same series, of any
authorized denominations and of a like aggregate principal amount and tenor and
containing identical terms and provisions.
Bearer Securities (except for any temporary global Bearer
Securities) or any interest coupons appertaining thereto (except for interest
coupons attached to any temporary global Bearer Security) shall be transferable
by delivery.
At the option of the Holder, Registered Securities of any
series (except a Registered Security in global form) may be exchanged for other
Registered Securities of the same series, of any authorized denominations, of a
like aggregate principal amount and tenor and containing identical terms and
provisions, upon surrender of the Registered Securities to be exchanged at such
office or agency. Whenever any Registered Securities are so surrendered for
exchange, the Company and the Guarantors shall execute, and the Trustee shall
authenticate and deliver, the Registered Securities with Senior Subordinated
Guarantees endorsed thereon which the Holder making the exchange is entitled to
receive. Unless otherwise specified as contemplated by Section 3.1, Bearer
Securities may not be issued in exchange for Registered Securities.
Unless otherwise specified as contemplated by Section 3.1, at
the option of the Holder, Bearer Securities of such series may be exchanged for
Registered Securities (if the Securities of such series are issuable in
registered form) or Bearer Securities (if Bearer Securities of such series are
issuable in more than one denomination and such exchanges are permitted by such
series) of the same series, of any authorized denominations, of like aggregate
principal amount and tenor and containing identical terms and conditions, upon
surrender of the Bearer Securities to be exchanged at any such office or agency,
with all unmatured interest coupons and all matured interest coupons in default
thereto appertaining. If the Holder of a Bearer Security is unable to produce
any such unmatured interest coupon or coupons or matured interest coupon or
coupons in default, such exchange may be effected if the Bearer Securities are
accompanied by payment in funds acceptable to the Company and the Trustee in an
amount equal to the face amount of such missing interest coupon or coupons, or
the surrender of such missing interest coupon or interest coupons may be waived
by the Company, the Guarantors and the Trustee if there be furnished to them
such security or indemnity as they may require to save each of them and any
Paying Agent harmless. If thereafter the Holder of such
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Security shall surrender to any Paying Agent any such missing interest coupon in
respect of which such a payment shall have been made, such Holder shall be
entitled to receive the amount of such payment; provided, however, that, except
as otherwise provided in Section 9.2, interest represented by interest coupons
shall be payable only upon presentation and surrender of those interest coupons
at an office or agency located outside the United States. Notwithstanding the
foregoing, in case any Bearer Security of any series is surrendered at any such
office or agency in exchange for a Registered Security of the same series after
the close of business at such office or agency on (i) any Regular Record Date
and before the opening of business at such office or agency on the relevant
Interest Payment Date, or (ii) any Special Record Date and before the opening of
business at such office or agency on the related date for payment of Defaulted
Interest, such Bearer Security shall be surrendered without the interest coupon
relating to such Interest Payment Date or proposed date of payment, as the case
may be (or, if such interest coupon is so surrendered with such Bearer Security,
such interest coupon shall be returned to the Person so surrendering the Bearer
Security), and interest or Defaulted Interest, as the case may be, will not be
payable on such Interest Payment Date or proposed date for payment, as the case
may be, in respect of the Registered Security issued in exchange for such Bearer
Security, but will be payable only to the Holder of such interest coupon, when
due in accordance with the provisions of this Indenture.
Notwithstanding anything herein to the contrary, the exchange
of Bearer Securities for Registered Securities shall be subject to applicable
laws and regulations in effect at the time of exchange. Neither the Company, the
Guarantors, the Trustee nor the Registrar shall exchange any Bearer Securities
for Registered Securities if it has received an Opinion of Counsel that as a
result of such exchange the Company would suffer adverse consequences under the
United States Federal income tax laws and regulations then in effect and the
Company has delivered to the Trustee a Company Order directing the Trustee not
to make such exchanges thereafter, unless and until the Trustee receives a
subsequent Company Order to the contrary. The Company shall deliver copies of
such Company Order to the Registrar.
Notwithstanding any other provision of this Section, unless
and until it is exchanged in whole or in part for Securities in certificated
form, a Security in global form representing all or a portion of the Securities
of a series may not be transferred except as a whole by the Depositary for such
series to a nominee of such Depositary or by a nominee of such Depositary to
such Depositary or another nominee of such Depositary or by such Depositary or
any such nominee to a successor Depositary for such series or a nominee of such
successor Depositary.
If at any time the Depositary for the Securities of a series
notifies the Company that it is unwilling or unable to continue as Depositary
for the Securities of such series or if at any time the Depositary for the
Securities of such series shall no longer
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be eligible under Section 3.3, the Company shall appoint a successor Depositary
with respect to the Securities of such series. If a successor Depositary for the
Securities of such series is not appointed by the Company prior to the
resignation of the Depositary and, in any event, within 90 days after the
Company receives such notice or becomes aware of such ineligibility, the
Company's designation of the Depositary pursuant to Section 3.1(b)(22) shall no
longer be effective with respect to the Securities of such series and the
Company and the Guarantors shall execute, and the Trustee, upon receipt of a
Company Order for the authentication and delivery of certificated Securities
with Senior Subordinated Guarantees endorsed thereon of such series of like
tenor, shall authenticate and deliver, Securities with Senior Subordinated
Guarantees endorsed thereon of such series of like tenor in certificated form,
in authorized denominations and in an aggregate principal amount equal to the
principal amount of the Security or Securities of such series of like tenor in
global form in exchange for such Security or Securities in global form.
The Company may at any time in its sole discretion determine
that Securities issued in global form shall no longer be represented by such a
Security or Securities in global form. In such event the Company and the
Guarantors shall execute, and the Trustee, upon receipt of a Company Order for
the authentication and delivery of certificated Securities with Senior
Subordinated Guarantees endorsed thereon of such series of like tenor, shall
authenticate and deliver, Securities with Senior Subordinated Guarantees
endorsed thereon of such series of like tenor in certificated form, in
authorized denominations and in an aggregate principal amount equal to the
principal amount of the Security or Securities of such series of like tenor in
global form in exchange for such Security or Securities in global form.
If specified by the Company pursuant to Section 3.1 with
respect to a series of Securities, the Depositary for such series may surrender
a Security in global form of such series in exchange in whole or in part for
Securities of such series in certificated form on such terms as are acceptable
to the Company, the Guarantors and such Depositary. Thereupon, the Company and
the Guarantors shall execute, and the Trustee shall authenticate and deliver,
without service charge,
(i) to each Person specified by such Depositary a new
certificated Security or Securities with Senior Subordinated Guarantees endorsed
thereon of the same series of like tenor, of any authorized denomination as
requested by such Person in aggregate principal amount equal to and in exchange
for such Person's beneficial interest in the Security in global form; and
(ii) to such Depositary a new Security with Senior
Subordinated Guarantees endorsed thereon in global form of like tenor in a
denomination equal to the difference, if any, between the principal amount of
the surrendered Security in global
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form and the aggregate principal amount of certificated Securities delivered to
Holders thereof.
Upon the exchange of a Security with Senior Subordinated
Guarantees endorsed thereon in global form for Securities with Senior
Subordinated Guarantees endorsed thereon in certificated form, such Security
with Senior Subordinated Guarantees endorsed thereon in global form shall be
cancelled by the Trustee. Unless expressly provided with respect to the of
Securities any series that such Security may be exchanged for Bearer Securities,
Securities with Senior Subordinated Guarantees endorsed thereon in certificated
form issued in exchange for a Security with Senior Subordinated Guarantees
endorsed thereon in global form pursuant to this Section shall be registered in
such names and in such authorized denominations as the Depositary for such
Security with Senior Subordinated Guarantees endorsed thereon in global form,
pursuant to instructions from its direct or indirect participants or otherwise,
shall instruct the Trustee in writing. The Trustee shall deliver such Securities
with Senior Subordinated Guarantees endorsed thereon to the Persons in whose
names such Securities with Senior Subordinated Guarantees endorsed thereon are
so registered.
Whenever any Securities are surrendered for exchange, the
Company and the Guarantors shall execute, and the Trustee shall authenticate and
deliver, the Securities with Senior Subordinated Guarantees endorsed thereon
which the Holder making the exchange is entitled to receive.
All Securities with Senior Subordinated Guarantees endorsed
thereon issued upon any registration of transfer or upon any exchange of
Securities with Senior Subordinated Guarantees endorsed thereon shall be the
valid obligations of the Company and the Guarantors, evidencing the same debt,
and entitled to the same benefits under this Indenture, as the Securities with
Senior Subordinated Guarantees endorsed thereon surrendered upon such
registration of transfer or exchange.
Every Registered Security presented or surrendered for
registration of transfer or for exchange shall (if so required by the Company,
the Guarantors, the Registrar or the Trustee) be duly endorsed, or be
accompanied by a written instrument of transfer in form satisfactory to the
Company, the Guarantors, the Registrar and the Trustee duly executed by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of
transfer or for any exchange of Securities, but the Company may require payment
of a sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any registration or transfer or exchange of
Securities, other than exchanges pursuant to Section 3.4, 8.6 or 11.7 not
involving any transfer.
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The Company and the Guarantors shall not be required (i) to
issue, register the transfer of, or exchange any Securities with Senior
Subordinated Guarantees endorsed thereon for a period beginning at the opening
of business 15 days before any selection for redemption of Securities of like
tenor and of the series of which such Security is a part and ending at the close
of business on the earliest date on which the relevant notice of redemption is
deemed to have been given to all Holders of Securities of like tenor and of such
series to be redeemed; (ii) to register the transfer of or exchange any
Registered Security with Senior Subordinated Guarantees endorsed thereon so
selected for redemption, in whole or in part, except the unredeemed portion of
any Security being redeemed in part; or (iii) to exchange any Bearer Security
with Senior Subordinated Guarantees endorsed thereon so selected for redemption,
except that such a Bearer Security may be exchanged for a Registered Security of
that series and like tenor; provided that such Registered Security shall be
simultaneously surrendered for redemption.
The foregoing provisions relating to registration, transfer
and exchange may be modified, supplemented or superseded with respect to any
series of Securities by a Board Resolution or in one or more indentures
supplemental hereto.
Section 3.6. Replacement Securities . If a mutilated Security
or a Security with a mutilated interest coupon appertaining to it is surrendered
to the Trustee, together with, in proper cases, such security or indemnity as
may be required by the Company, the Guarantors or the Trustee to save each of
them harmless, the Company and the Guarantors shall execute and the Trustee
shall authenticate and deliver a replacement Registered Security with Senior
Subordinated Guarantees endorsed thereon, if such surrendered Security was a
Registered Security, or a replacement Bearer Security with Senior Subordinated
Guarantees endorsed thereon with interest coupons corresponding to the interest
coupons appertaining to the surrendered Security, if such surrendered Security
was a Bearer Security, of the same series and date of maturity.
If there shall be delivered to the Company, the Guarantors and
the Trustee (i) evidence to their satisfaction of the destruction, loss or theft
of any Security or interest coupon and (ii) such security or indemnity as may be
required by them to save each of them and any agent of any of them harmless,
then, in the absence of notice to the Company or the Trustee that such Security
or interest coupon has been acquired by a bona fide purchaser, the Company and
the Guarantors shall execute and the Trustee shall authenticate and deliver in
lieu of any such destroyed, lost or stolen Security or in exchange for the
Security to which a destroyed, lost or stolen interest coupon appertains (with
all appurtenant interest coupons not destroyed, lost or stolen), a replacement
Registered Security with Senior Subordinated Guarantees endorsed thereon, if
such Holder's claim appertains to a Registered Security with Senior Subordinated
Guarantees endorsed thereon, or a replacement Bearer Security with Senior
Subordinated Guarantees
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endorsed thereon with interest coupons corresponding to the interest coupons
appertaining to the destroyed, lost or stolen Bearer Security or the Bearer
Security to which such lost, destroyed or stolen interest coupon appertains, if
such Holder's claim appertains to a Bearer Security, of the same series and
principal amount, containing identical terms and provisions and bearing a number
not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security
or interest coupon has become or is about to become due and payable, the Company
and the Guarantors in their discretion may, instead of issuing a new Security or
interest coupon with Senior Subordinated Guarantees endorsed thereon, pay such
Security or interest coupon; provided, however, that payment of principal of and
any premium or interest on Bearer Securities shall, except as otherwise provided
in Section 9.2, be payable only at an office or agency located outside the
United States and, unless otherwise specified as contemplated by Section 3.1,
any interest on Bearer Securities shall be payable only upon presentation and
surrender of the interest coupons appertaining thereto.
Upon the issuance of any new Security under this Section, the
Company and the Guarantors may require the payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in relation thereto and
any other expenses (including the fees and expenses of the Trustee, its agents
and counsel) connected therewith.
Every new Security with Senior Subordinated Guarantees
endorsed thereon of any series with its interest coupons, if any, issued
pursuant to this Section in lieu of any destroyed, lost or stolen Security, or
in exchange for a Security to which a destroyed, lost or stolen interest coupon
appertains, shall constitute an original additional contractual obligation of
the Company and the relevant Guarantor, whether or not the destroyed, lost or
stolen Security and its interest coupon, if any, or the destroyed, lost or
stolen interest coupon, shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities of that series and their interest coupons, if any,
duly issued hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Securities or
interest coupons.
Section 3.7. Payment of Interest; Interest Rights Preserved .
(a) Unless otherwise provided as contemplated by Section 3.1, interest, if any,
on any Registered Security which is payable, and is punctually paid or duly
provided for, on any Interest Payment Date shall be paid to the Person in whose
name that Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest at the office or
agency maintained for such purpose pursuant to Section
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9.2; provided, however, that at the option of the Company, interest on any
series of Registered Securities that bears interest may be paid (i) by check
mailed to the address of the Person entitled thereto as it shall appear on the
Register of Holders of Securities of such series or (ii) at the expense of the
Company, by wire transfer to an account maintained by the Person entitled
thereto as specified in the Register of Holders of Securities of such series.
Unless otherwise provided as contemplated by Section 3.1, (i)
interest, if any, on Bearer Securities shall be paid only against presentation
and surrender of the interest coupons for such interest installments as are
evidenced thereby as they mature and (ii) original issue discount, if any, on
Bearer Securities shall be paid only against presentation and surrender of such
Securities; in either case at the office of a Paying Agent located outside the
United States, unless the Company shall have otherwise instructed the Trustee in
writing, provided that any such instruction for payment in the United States
does not cause any Bearer Security to be treated as a "registration-required
obligation" under United States laws and regulations. The interest, if any, on
any temporary Bearer Security shall be paid, as to any installment of interest
evidenced by an interest coupon attached thereto only upon presentation and
surrender of such interest coupon and, as to other installments of interest,
only upon presentation of such Security for notation thereon of the payment of
such interest. If at the time a payment of principal of or interest, if any, on
a Bearer Security or interest coupon shall become due, the payment of the full
amount so payable at the office or offices of all the Paying Agents outside the
United States is illegal or effectively precluded because of the imposition of
exchange controls or other similar restrictions on the payment of such amount in
Dollars, then the Company may instruct the Trustee in writing to make such
payments at a Paying Agent located in the United States, provided that provision
for such payment in the United States would not cause such Bearer Security to be
treated as a "registration-required obligation" under United States laws and
regulations.
(b) Unless otherwise provided as contemplated by Section 3.1,
any interest on Securities of any series which is payable, but is not punctually
paid or duly provided for, on any Interest Payment Date in the case of
Registered Securities and upon presentation and surrender of the applicable
interest coupon in accordance with the second paragraph of Section 3.7(a) in the
case of Bearer Securities (herein called "Defaulted Interest"), shall forthwith
cease to be payable to the Holders of Registered Securities on the relevant
Regular Record Date by virtue of their having been such Holders, or to the
Holders of Bearer Securities by virtue of their having presented the applicable
interest coupon on such Interest Payment Date, and such Defaulted Interest may
be paid by the Company, at its election in each case, as provided in clause (1)
or (2) below:
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(1) In the case of Registered Securities,
the Company may elect to make payment of such Defaulted
Interest to the Persons in whose names such Registered
Securities (or their respective Predecessor Securities) are
registered at the close of business on a Special Record Date
for the payment of such Defaulted Interest, which shall be
fixed in the following manner. The Company shall notify the
Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each such Registered Security and the
date of the proposed payment, and shall deposit with the
Trustee an amount of money equal to the aggregate amount
proposed to be paid in respect of such Defaulted Interest or
shall make arrangements satisfactory to the Trustee for such
deposit prior to the date of the proposed payment, such money
when deposited to be held in trust for the benefit of the
Persons entitled to such Defaulted Interest as in this clause
(1) provided. Thereupon the Trustee shall fix a Special Record
Date for the payment of such Defaulted Interest which shall be
not more than 15 days and not less than 10 days prior to the
date of the proposed payment and not less than 10 days after
the receipt by the Trustee of the notice of the proposed
payment. The Trustee shall promptly notify the Company of such
Special Record Date and, in the name and at the expense of the
Company, shall cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor to be
mailed, first-class postage prepaid, to each Holder of such
Registered Securities at his or her address as it appears in
the Register, not less than 10 days prior to such Special
Record Date. Notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor having been so
mailed, such Defaulted Interest shall be paid to the Persons
in whose names such Registered Securities (or their respective
Predecessor Securities) are registered at the close of
business on such Special Record Date and shall no longer be
payable pursuant to the following clause (2).
(2)(x) In the case of Registered Securities,
the Company may make payment of such Defaulted Interest to the
Persons in whose names such Registered Securities (or their
respective Predecessor Securities) are registered at the close
of business on a specified date in any other lawful manner not
inconsistent with the requirements of any securities exchange
on which such Registered Securities may be listed, and upon
such notice as may be required by such exchange, if, after
notice given by the Company to the Trustee of the proposed
payment pursuant to this clause (2)(x), such manner of payment
shall be deemed practicable by the Trustee; or (y) unless
otherwise provided as contemplated by Section 3.1, in the case
of Bearer Securities, the Company may make payment of
Defaulted Interest on such Bearer Securities in any lawful
manner not inconsistent with the requirements of any
securities exchange on which such Bearer Securities may be
listed, and upon such notice as may be required by such
exchange, if, after notice
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given by the Company to the Trustee of the proposed payment
pursuant to this clause (2)(y), such manner of payment shall
be deemed practicable by the Trustee.
(c) Subject to the foregoing provisions of this Section and
Section 3.5, each Security delivered under this Indenture upon registration of
transfer of or in exchange for or in lieu of any other Security shall carry the
rights to interest accrued and unpaid, and to accrue, which were carried by such
other Security.
(d) In the case of any Registered Security which is converted
or exchanged after any Regular Record Date and on or prior to the next
succeeding Interest Payment Date (other than any Security the principal of (or
premium, if any on) which shall become due and payable, whether at Stated
Maturity or by declaration of acceleration, call for redemption, or otherwise,
prior to such Interest Payment Date), interest whose Stated Maturity is on such
Interest Payment Date shall be payable on such Interest Payment Date
notwithstanding such conversion or exchange and such interest (whether or not
punctually paid or duly provided for) shall be paid to the Person in whose name
that Registered Security (or any one or more Predecessor Securities) is
registered at the close of business on such Regular Record Date, unless
otherwise provided with respect to Securities of that series pursuant to Section
3.1(b).
Section 3.8. Persons Deemed Owners . Unless otherwise provided
as contemplated by Section 3.1, prior to due presentment of any Registered
Security for registration of transfer, the Company, the Guarantors, the Trustee
and any agent of the Company, any Guarantor or the Trustee may treat the Person
in whose name such Registered Security is registered as the owner of such
Registered Security for the purpose of receiving payment of principal of,
premium, if any, and (subject to Section 3.7) interest on such Registered
Security and for all other purposes whatsoever, whether or not such Registered
Security be overdue, and neither the Company, any Guarantor, the Trustee nor any
agent of the Company, any Guarantor or the Trustee shall be affected by notice
to the contrary.
Unless otherwise provided as contemplated by Section 3.1, the
Company, the Guarantors, the Trustee and any agent of the Company, any Guarantor
or the Trustee may treat the bearer of any Bearer Security and the bearer of any
interest coupon as the absolute owner of such Bearer Security or interest coupon
for the purpose of receiving payment thereof or on account thereof and for all
other purposes whatsoever, whether or not such Bearer Security or interest
coupon be overdue, and neither the Company, the Guarantors, the Trustee nor any
agent of the Company, any Guarantor or the Trustee shall be affected by notice
to the contrary.
None of the Company, the Guarantors, the Trustee or any agent
of the Company, any Guarantor shall have any responsibility or liability for any
aspect of the
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records relating to or payments made on account of beneficial
ownership interests of a Security in global form, or for maintaining,
supervising or reviewing any records relating to such beneficial ownership
interests. No holder of any beneficial interest in any Security in global form,
held on its behalf by or through a Depositary, shall have any rights under this
Indenture with respect to such Security in global form, and such Depositary may
be treated by the Company, the Guarantors, the Trustee and any agent of the
Company, any Guarantor or the Trustee as the owner of such Security in global
form for all purposes whatsoever. With respect to any Security in global form,
nothing herein shall prevent the Company, the Guarantors or the Trustee, or any
agent of the Company, any Guarantor or the Trustee, from giving effect to any
written certification, proxy or other authorization furnished by any Depositary
(or its nominee), as a Holder, with respect to such Security in global form or
impair, as between such Depositary and owners of beneficial interests in such
Security in global form, the operation of customary practices governing the
exercise of the rights of such Depositary (or its nominee) as Holder of such
Security in global form.
Section 3.9. Cancellation . All Securities and interest
coupons appertaining thereto, if any, surrendered for payment, redemption,
conversion, registration of transfer or exchange or for credit against any
sinking fund payment shall, if surrendered to any Person other than the Trustee,
be delivered to the Trustee and, together with the Senior Subordinated
Guarantees endorsed thereon, shall be promptly cancelled by it. The Company may
at any time deliver to the Trustee for cancellation any Securities, together
with interest coupons appertaining thereto, if any, previously authenticated and
delivered hereunder which the Company may have acquired in any manner
whatsoever, and may deliver to the Trustee (or to any other Person for delivery
to the Trustee) for cancellation any Securities, together with interest coupons
appertaining thereto, if any, previously authenticated hereunder which the
Company has not issued and sold, and all Securities and interest coupons so
delivered shall, together with the Senior Subordinated Guarantees endorsed
thereon, be promptly cancelled by the Trustee. No Securities shall be
authenticated in lieu of or in exchange for any Securities cancelled as provided
in this Section 3.9, except as expressly permitted by this Indenture. All
cancelled Securities and interest coupons held by the Trustee shall, together
with the Senior Subordinated Guarantees endorsed thereon, be disposed of in
accordance with its customary procedures, and the Trustee shall thereafter
deliver to the Company a certificate with respect to such disposition.
Section 3.10. Computation of Interest . Except as otherwise
specified as contemplated by Section 3.1, interest on the Securities of each
series shall be computed on the basis of a 360-day year of twelve 30-day months.
Section 3.11. CUSIP Numbers . The Company in issuing the
Securities may use "CUSIP" numbers (if then generally in use and in addition to
the other
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identification numbers printed on the Securities), and, in such case, the
Trustee shall use "CUSIP" numbers in notices of redemption as a convenience to
Holders; provided that any such notice may state that no representation is made
as to the correctness of such numbers either as printed on the Securities or as
contained in any notice of a redemption and that reliance may be placed only on
the other identification numbers printed on the Securities, and any such
redemption shall not be affected by any defect in or omission of such numbers.
Section 3.12. Currency and Manner of Payment in Respect of
Securities . Unless otherwise specified with respect to any Securities pursuant
to Section 3.1, payment of the principal of, premium, if any, and interest, if
any, on any Security of such series will be made in the currency or currencies
or currency unit or units in which such Security is payable. The provisions of
this Section 3.12 may be modified or superseded pursuant to Section 3.1 with
respect to any Securities.
ARTICLE 4
SATISFACTION, DISCHARGE AND DEFEASANCE
Section 4.1. Termination of Company's Obligations Under the
Indenture . This Indenture shall upon a Company Request cease to be of further
effect with respect to Securities of or within any series and any interest
coupons appertaining thereto (except as to (i) rights of registration, transfer
or exchange of such Securities, (ii) rights of replacement of such Securities
which may have been lost, stolen or mutilated as herein expressly provided for,
(iii) rights of holders of Securities to receive payments of principal thereof
and interest thereon, upon the Stated Maturity thereof (but not upon
acceleration), and rights of the Holders to receive mandatory sinking fund
payments, if any, (iv) rights of holders of Securities to convert or exchange
Securities, (v) rights, obligations, duties and immunities of the Trustee
hereunder, (vi) any rights of the Holders of Securities of such series as
beneficiaries hereof with respect to the property so deposited with the Trustee
payable to all or any of them, and (vii) the obligations of the Company under
Section 9.2) and the Trustee, upon payment of all amounts due it under Section
6.7, at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture with respect to such
Securities and any interest coupons appertaining thereto when
(1) either (A) all such Securities
previously authenticated and delivered and all interest
coupons appertaining thereto (other than (i) such interest
coupons appertaining to Bearer Securities surrendered in
exchange for Registered Securities and maturing after such
exchange, surrender of which is not required or has been
waived as provided in Section 3.5, (ii) such Securities and
interest coupons which have been destroyed, lost or stolen and
which have been replaced or paid as provided in Section 3.6,
(iii) such interest coupons appertaining to Bearer
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Securities called for redemption and maturing after the
relevant Redemption Date, surrender of which has been waived
as provided in Section 11.6 and (iv) such Securities and
interest coupons for whose payment money in the currency or
currencies or currency unit or units in which such Securities
are payable has theretofore been deposited in trust or
segregated and held in trust by the Company and thereafter
repaid to the Company or discharged from such trust, as
provided in Section 9.3) have been delivered to the Trustee
for cancellation; or (B) all Securities of such series and, in
the case of (i) or (ii) below, any interest coupons
appertaining thereto not theretofore delivered to the Trustee
for cancellation:
(i) have become due and payable, or
(ii) will become due and payable at their
Stated Maturity within one year, or
(iii) are to be called for redemption within
one year under arrangements satisfactory to the
Trustee for the giving of notice of redemption by the
Trustee in the name, and at the expense, of the
Company,
and the Company, in the case of (i), (ii) or (iii) above, has irrevocably
deposited or caused to be deposited with the Trustee as trust funds in trust for
the purpose an amount in the currency or currencies or currency unit or units in
which the Securities of such series are payable, sufficient to pay and discharge
the entire indebtedness on such Securities and such interest coupons not
theretofore delivered to the Trustee for cancellation, for principal, premium,
if any, and interest, with respect thereto, to the date of such deposit (in the
case of Securities which have become due and payable) or to the Stated Maturity
or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company and the Guarantors; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and
discharge of this Indenture as to such series have been complied with.
Notwithstanding the satisfaction and discharge of this
Indenture, the obligation of the Company to the Trustee and any predecessor
Trustee under Section 6.7, the obligations of the Company to any Authenticating
Agent under Section 6.14 and, if money shall have been deposited with the
Trustee pursuant to subclause (B) of clause (1) of this Section, the obligations
of the Trustee under Section 4.2, Section 9.2 and the last paragraph of Section
9.3 shall survive.
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Section 4.2. Application of Trust Funds . Subject to the
provisions of the last paragraph of Section 9.3, all money deposited with the
Trustee pursuant to Section 4.1 shall be held in trust and applied by it, in
accordance with the provisions of the Securities, the interest coupons
appertaining thereto, if any, and this Indenture, to the payment, either
directly or through any Paying Agent (including the Company acting as its own
Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of
the principal, premium, if any and any interest for whose payment such money has
been deposited with or received by the Trustee, but such money need not be
segregated from other funds except as otherwise provided herein and except to
the extent required by law.
Section 4.3. Applicability of Defeasance Provisions; Company's
Option to Effect Defeasance or Covenant Defeasance . Except as otherwise
specified as contemplated by Section 3.1 for the Securities of any series, the
provisions of Sections 4.4 through 4.9 inclusive, with such modifications
thereto as may be specified pursuant to Section 3.1 with respect to any series
of Securities, shall be applicable to the Securities and any interest coupons
appertaining thereto.
Section 4.4. Defeasance and Discharge . On and after the date
on which the conditions set forth in Section 4.6 are satisfied with respect to
the Securities of or within any series, the Company shall be deemed to have paid
and been discharged from its obligations with respect to such Securities and any
interest coupons appertaining thereto (hereinafter "defeasance"). For this
purpose, such defeasance means that (i) the Company shall be deemed to have paid
and discharged the entire indebtedness represented by such Securities and any
interest coupons appertaining thereto which shall thereafter be deemed to be
"Outstanding" only for the purposes of Sections 4.7 and 4.9 and the other
Sections of this Indenture referred to in clause (ii) (B) of this Section, and
to have satisfied all its other obligations under such Securities and any
interest coupons appertaining thereto and this Indenture insofar as such
Securities and any interest coupons appertaining thereto are concerned (and the
Trustee, upon payment of all amounts due it under Section 6.7, at the expense of
the Company, shall on a Company Order execute proper instruments acknowledging
the same) and (ii) the Guarantors shall be released from all of their
obligations under their Senior Subordinated Guarantees and under Article 16 of
this Indenture, except the following which shall survive until otherwise
terminated or discharged hereunder: (A) the rights of Holders of such Securities
and any interest coupons appertaining thereto to receive, solely from the trust
funds described in Section 4.6(a) and as more fully set forth in such Section,
payments in respect of the principal of, premium, if any, and interest, if any,
on such Securities or any interest coupons appertaining thereto when such
payments are due; (B) the Company's obligations with respect to such Securities
under Sections 3.4, 3.5, 3.6, 9.2 and 9.3 and with respect to the payment of
additional amounts, if any, payable with respect to such Securities as specified
pursuant to Section 3.1(b)(16); (C) the Company's obligations with respect to a
conversion or exchange of such Securities; (D) the rights, powers, trusts,
duties and
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immunities of the Trustee hereunder and (E) this Article 4. Subject to
compliance with this Article 4, the Company may defease the Securities of any
series and any interest coupons appertaining thereto under this Section 4.4
notwithstanding a prior covenant defeasance (as defined herein) under Section
4.5 with respect to such Securities and any interest coupons appertaining
thereto. Following a defeasance, payment of such Securities may not be
accelerated because of an Event of Default.
Section 4.5. Covenant Defeasance . On and after the date on
which the conditions set forth in Section 4.6 are satisfied with respect to the
Securities of or within any series, (i) the Company shall be released from its
obligations under Sections 7.1 and 9.4 and, if specified pursuant to Section
3.1, its obligations under any other covenant, with respect to such Securities
and any interest coupons appertaining thereto, (ii) the occurrence of any event
specified in Sections 5.1(d) or 5.1(i) (in each case, with respect to any of the
obligations described in clause (i) above) or 5.1(e) shall be deemed not to be
or result in a Default or Event of Default (hereinafter, "covenant defeasance"),
and such Securities and any interest coupons appertaining thereto shall
thereafter be deemed to be not "Outstanding" for the purposes of any request,
demand, authorization, direction, notice, waiver, consent or declaration or Act
of Holders (and the consequences of any thereof) in connection with Section 7.1
or 9.4, such other covenant specified pursuant to Section 3.1, or Sections
5.1(d) or 5.1(i) (in each case, with respect to any of the obligations described
in clause (i) above) or 5.1(e), but shall continue to be deemed "Outstanding"
for all other purposes hereunder and (iii) the provisions of Article Fifteen
shall cease to be effective as to such Securities to the extent provided
therein. For this purpose, such covenant defeasance means that, with respect to
such Securities and any interest coupons appertaining thereto, the Company may
omit to comply with and shall have no liability in respect of any term,
condition or limitation set forth in any such Section or such other covenant,
whether directly or indirectly, by reason of any reference elsewhere herein to
any such Section or such other covenant or by reason of reference in any such
Section or such other covenant to any other provision herein or in any other
document and such omission to comply shall not constitute a Default or an Event
of Default under Section 5.1(d), 5.1(e) or 5.1(i) or otherwise, as the case may
be, but, except as specified above, the remainder of this Indenture and such
Securities and any interest coupons appertaining thereto shall be unaffected
thereby.
Section 4.6. Conditions to Defeasance or Covenant Defeasance .
The following shall be the conditions to application of either Section 4.4 or
Section 4.5 to the then Outstanding Securities of or within a series:
(a) The Company shall irrevocably have deposited or caused to
be deposited with the Trustee (or another trustee satisfying the requirements of
Section 6.9 who shall agree to comply with the provisions of Sections 4.3
through 4.9 inclusive and the last paragraph of Section 9.3 applicable to the
Trustee, for purposes of such sections
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also a "Trustee") as trust funds in trust for the purpose of making the
following payments, specifically pledged as security for, and dedicated solely
to, the benefit of the Holders of such Securities and any interest coupons
appertaining thereto, (A) money in an amount, or (B) Government Obligations
which through the scheduled payment of principal and interest in respect thereof
in accordance with their terms will provide, not later than one day before the
due date of any payment, money in an amount, or (C) a combination thereof, in an
amount sufficient in the opinion of a nationally recognized firm of independent
certified public accountants expressed in a written opinion with respect thereto
delivered to the Trustee, to pay and discharge, and which shall be applied by
the Trustee (or other qualifying trustee) to pay and discharge, (x) the
principal of (premium, if any) and each installment of interest, if any, on the
outstanding Securities and any interest coupons appertaining thereto on the
Stated Maturity of such principal or installment of interest and (y) any
mandatory sinking fund payments applicable to such Securities on the day on
which such payments are due and payable in accordance with the terms of this
Indenture and of such Securities and any interest coupons appertaining thereto.
(b) In the case of an election under Section 4.4, the Company
shall have delivered to the Trustee an Opinion of Counsel stating that (x) the
Company has received from, or there has been published by, the Internal Revenue
Service a ruling, or (y) since the date of this Indenture there has been a
change in the applicable Federal income tax law, in either case to the effect
that, and based thereon such opinion shall confirm that, the Holders of the
Outstanding Securities and any interest coupons appertaining thereto will not
recognize gain or loss for Federal income tax purposes as a result of such
deposit, defeasance and discharge and will be subject to Federal income tax on
the same amount, in the same manner and at the same times as would have been the
case if such deposit, defeasance and discharge had not occurred.
(c) In the case of an election under Section 4.5, the Company
shall have delivered to the Trustee an Opinion of Counsel to the effect that the
Holders of the Outstanding Securities and any interest coupons appertaining
thereto will not recognize gain or loss for Federal income tax purposes as a
result of such deposit and 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.
(d) The Company shall have delivered to the Trustee an
Officer's Certificate to the effect that the Securities, if then listed on any
securities exchange or approved for trading in any automated quotation system,
will not be delisted or disapproved for such trading as a result of such
deposit.
(e) At the time of such deposit: (A) no default in the payment
of all or a
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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.
(f) No Event of Default or event which with notice or lapse of
time or both would become an Event of Default shall have occurred and be
continuing on the date of such deposit or, insofar as subsections 5.1(g) and (h)
are concerned, at any time during the period ending on the 91st day after the
date of such deposit (it being understood that this condition shall not be
deemed satisfied until the expiration of such period).
(g) Such defeasance or 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).
(h) 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.
(i) The Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for relating to either the defeasance under
Section 4.4 or the covenant defeasance under Section 4.5 (as the case may be)
have been complied with.
(j) 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 registered under such act or exempt from registration
thereunder.
(k) Such defeasance or covenant defeasance shall be effected
in compliance with any additional or substitute terms, conditions or limitations
which may be imposed on the Company in connection therewith as contemplated by
Section 3.1.
Section 4.7. Deposited Money and Government Obligations to Be
Held in Trust . Subject to the provisions of the last paragraph of Section 9.3,
all money and Government Obligations (or other property as may be provided
pursuant to Section 3.1)
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(including the proceeds thereof) deposited with the Trustee pursuant to Section
4.6 in respect of any Securities of any series and any interest coupons
appertaining thereto shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Securities and any interest coupons
appertaining thereto and this Indenture, to the payment, either directly or
through any Paying Agent (including the Company acting as its own Paying Agent)
as the Trustee may determine, to the Holders of such Securities and any interest
coupons appertaining thereto of all sums due and to become due thereon in
respect of principal, premium, if any, and interest, if any, but such money need
not be segregated from other funds except as provided herein and except to the
extent required by law.
Section 4.8. Repayment to Company . Subject to the delivery by
the Company of any written certification required by the last paragraph of this
Section 4.8, the Trustee (and any Paying Agent) shall promptly pay to the
Company upon Company Request any excess money or securities held by them at any
time.
The provisions of the last paragraph of Section 9.3 shall
apply to any money or securities held by the Trustee or any Paying Agent under
this Article 4 that remain unclaimed for two years after the Maturity of any
series of Securities for which money or securities have been deposited pursuant
to Section 4.6(a).
Anything in this Article to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or Government Obligations held by it as provided in Section
4.6 with respect to any Securities which, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, are in excess of the amount
thereof which would then be required to be deposited to effect the defeasance or
covenant defeasance, as the case may be, with respect to such Securities.
Section 4.9. Indemnity for Government Obligations . The
Company shall pay, and shall indemnify the Trustee against, any tax, fee or
other charge imposed on or assessed against Government Obligations deposited
pursuant to this Article or the principal and interest received in respect
thereof other than any such tax, fee or other charge which by law is for the
account of the Holders of the Outstanding Securities.
Section 4.10. Reinstatement . If the Trustee (or Paying Agent)
is unable to apply any money or Government Obligations in accordance with
Section 4.6 by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application, then
the Company's obligations under this Indenture and the Securities shall be
revived and reinstated, with present and prospective effect, as though no
deposit had occurred pursuant to Section 4.6, until such time as the Trustee (or
Paying Agent) is permitted to apply all such money or Government
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Obligations in accordance with Section 4.6; provided, however, that if the
Company makes any payment to the Trustee (or Paying Agent) of principal,
premium, if any, or interest on any Security following the reinstatement of its
obligations, the Trustee (or Paying Agent) shall promptly pay any such amount to
the Holders of the Securities and the Company shall be subrogated to the rights
of the Holders of such Securities to receive such payment from the money and
Government Obligations held by the Trustee (or Paying Agent).
ARTICLE 5
DEFAULTS AND REMEDIES
Section 5.1. Events of Default . An "Event of Default," with
respect to the Securities of any series, means any one of the following events
(whatever the reason for such Event of Default and whether it shall be
occasioned by the provisions of Article 15 or be voluntary or involuntary or be
effected by operation of law or pursuant to any judgment, decree or order of any
court or any order, rule or regulation of any administrative or governmental
body):
(a) default in the payment of interest on any Security of that
series or any interest coupon appertaining thereto or any additional amount
payable with respect to any Security of that series as specified pursuant to
Section 3.1(b)(16) when the same becomes due and payable and such default
continues for a period of 30 days; or
(b) default in the payment of the principal of (or any
installment of the principal of) or any premium on any Security of that series
when the same becomes due and payable at its Maturity; or
(c) default in the deposit of any sinking fund payment, when
and as due by the terms of a Security of that series; or
(d) default in the performance, or breach, of any 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 elsewhere
in this Section specifically dealt with) or the Securities, and continuance of
such default or breach for a period of 60 days after there has been given, in
the manner provided in Section 1.6, to the Company by the Trustee or to the
Company and the Trustee by the Holders of at least 10% in principal amount of
the Outstanding Securities of the series, a written notice specifying such
default or breach and requiring it to be remedied and stating that such notice
is a "Notice of Default" hereunder; or
(e) a default or defaults under the terms of any bond(s),
debenture(s), note(s) or other evidence(s) of, or obligations constituting, Debt
by the Company, any
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Guarantor or any Restricted Subsidiary, or under any mortgage(s), indenture(s),
agreement(s) or instrument(s) under which there may be issued or by which there
may be secured or evidenced, any Debt of the Company, any Guarantor or any
Restricted Subsidiary with a principal amount then outstanding, individually or
in the aggregate, in excess of $25 million, whether such Debt now exists or is
hereafter Incurred, which default or defaults constitute a failure to pay any
portion of the principal or similar amount of such Debt when due and payable
after the expiration of any applicable grace period with respect thereto or
results in such Debt becoming or being declared due and payable prior to the
date on which it would otherwise have become due and payable; or
(f) a final judgment or final judgments (not subject to
appeal) for the payment of money are entered against the Company, Allied or any
Restricted Subsidiary in an aggregate amount in excess of $25 million by a court
or courts of competent jurisdiction, which judgments remain unstayed,
undischarged or unbonded for a period of 60 days after the entry of such
judgment or judgments; or
(g) the entry by a court having jurisdiction in the premises
of (A) a decree or order for relief in respect of the Company, Allied or any
Restricted Subsidiary in an involuntary case or proceeding under any applicable
Federal or state bankruptcy, insolvency, reorganization or other similar law or
(B) a decree or order adjudging the Company, Allied or any Restricted Subsidiary
a bankrupt or insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjustment or composition of or in respect of the
Company, Allied or any Restricted Subsidiary under any applicable Federal or
state law, or appointing a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company, Allied or any Restricted
Subsidiary or of any substantial part of the property of the Company, Allied or
any Restricted Subsidiary, or ordering the winding up or liquidation of the
affairs of the Company, Allied or any Restricted Subsidiary, and the continuance
of any such decree or order for relief or any such other decree or order
unstayed and in effect for a period of 60 consecutive days; or
(h) the commencement by the Company, Allied or any Restricted
Subsidiary of a voluntary case or proceeding under any applicable Federal or
state bankruptcy, insolvency, reorganization or other similar law or of any
other case or proceeding to be adjudicated a bankrupt or insolvent, or the
consent by the Company, Allied or any Restricted Subsidiary to the entry of a
decree or order for relief in respect of the Company, Allied or any Restricted
Subsidiary in an involuntary case or proceeding under any applicable Federal or
state bankruptcy, insolvency, reorganization or other similar law or to the
commencement of any bankruptcy or insolvency case or proceeding against the
Company, Allied or any Restricted Subsidiary or the filing by the Company,
Allied or any Restricted Subsidiary of a petition or answer or consent seeking
reorganization or relief under any applicable Federal or state law, or the
consent by the
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Company, Allied or any Restricted Subsidiary to the filing of such a petition or
to the appointment of or taking possession by a custodian, receiver, liquidator,
assignee, trustee, sequestrator or similar official of the Company, Allied or
any Restricted Subsidiary or of any substantial part of the property of the
Company, Allied or any Restricted Subsidiary, or the making by the Company,
Allied or any Restricted Subsidiary of an assignment for the benefit of
creditors, or the admission by the Company, Allied or any Restricted Subsidiary
in writing of its inability to pay its debts generally as they become due, or
the taking of corporate action by the Company, Allied or any Restricted
Subsidiary in furtherance of any such action; or
(i) any other Event of Default provided as contemplated by
Section 3.1 with respect to Securities of that series.
Section 5.2. Acceleration; Rescission and Annulment . If an
Event of Default with respect to the Securities of any series at the time
Outstanding (other than an Event of Default specified in clause (g) or (h) of
Section 5.1) occurs and is continuing, the Trustee or the Holders of at least
25% in aggregate principal amount of all of the Outstanding Securities of that
series, by written notice received by the Company (and, if given by the Holders,
received by the Trustee), may declare the principal (or, if the Securities of
that series are Original Issue Discount Securities or Indexed Securities, such
portion of the principal amount as may be specified in the terms of that series)
of and accrued interest, if any, on all the Securities of that series to be due
and payable and upon any such declaration such principal (or, in the case of
Original Issue Discount Securities or Indexed Securities, such specified amount)
and interest, if any, shall be immediately due and payable, provided that the
payment of principal and interest on such Securities shall remain subordinated
to the extent provided in Article 15. If an Event of Default specified in clause
(g) or (h) of Section 5.1 with respect to the Securities of any series at the
time Outstanding occurs and is continuing, then the principal (or, if the
Securities of that series are Original Issue Discount Securities or Indexed
Securities, such portion of the principal amount as may be specified in the
terms of that series) of and accrued interest, if any, on all the Securities of
that series shall ipso facto be immediately due and payable without any
declaration or act on the part of the Trustee or any Holder of such Securities,
provided that the payment of principal and interest on such Securities shall
remain subordinated to the extent provided in Article 15.
At any time after such a declaration of acceleration 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 of that series, by
written notice to the Company and the Trustee, may rescind and annul such
declaration and its consequences if
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(1) the Company or any of the Guarantors has paid or deposited
with the Trustee a sum sufficient to pay
(A) all overdue interest on all Securities of that
series,
(B) the principal of (and premium, if any, on) any
Securities of that series which have become due otherwise than
by such declaration of acceleration and any interest thereon
at the rate borne by the Securities of that series,
(C) to the extent that payment of such interest is
lawful, interest upon overdue interest at the rate provided
therefor in the Securities of that series, and
(D) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel;
and
(2) all Events of Default, other than the nonpayment of the
principal of Securities of that series which have become due solely by
such declaration of acceleration, have been cured or waived as provided
in Section 5.7.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Section 5.3. Collection of Indebtedness and Suits for
Enforcement by Trustee . The Company covenants that if
(a) default is made in the payment of any interest on any
Security or interest coupon, if any, when such interest becomes due and payable
and such default continues for a period of 30 days, or
(b) default is made in the payment of the principal of (or
premium, if any, on) any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities or interest coupons, if any, the whole amount then
due and payable on such Securities for principal, premium, if any, and interest
and, to the extent that payment of such interest shall be legally enforceable,
interest on any overdue principal, premium, if any, and on any overdue interest,
at the rate or rates prescribed therefor in such Securities or interest coupons,
if any, and, in addition thereto, such further amount as
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shall be sufficient to cover the costs and expenses of collection, including all
amounts due the Trustee, its agents and counsel under Section 6.7.
If the Company or any Guarantor fails to pay such amounts
forthwith upon such demand, the Trustee, in its own name and as trustee of an
express trust, may institute a judicial proceeding for the collection of the
sums so due and unpaid and may prosecute such proceeding to judgment or final
decree, and may enforce the same against the Company, any Guarantor or any other
obligor upon the Securities and collect the moneys adjudged or decreed to be
payable in the manner provided by law out of the property of the Company, any
Guarantor or any other obligor upon the Securities, wherever situated.
If an Event of Default with respect to Securities of any
series occurs and is continuing, the Trustee may in its discretion proceed to
protect and enforce its rights and the rights of the Holders of Securities of
such series by such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to secure any other proper remedy,
subject, however, to Section 5.8.
Section 5.4. Trustee May File Proofs of Claim . In case of any
judicial proceeding relative to the Company (or any Guarantor or any other
obligor upon the Securities), its property or its creditors (or of any Guarantor
or its creditors), the Trustee shall be entitled and empowered, by intervention
in such proceeding or otherwise, to take any and all actions authorized under
the Trust Indenture Act in order to have claims of the Holders and the Trustee
allowed in any such proceeding. In particular, the Trustee shall be authorized
to collect and receive any moneys or other property payable or deliverable on
any such claims and to distribute the same; and any custodian, receiver,
assignee, trustee, liquidator, sequestrator or other similar official in any
such judicial proceeding is hereby authorized by each Holder to make such
payments to the Trustee and, in the event that the Trustee shall consent to the
making of such payments directly to the Holders, to pay to the Trustee any
amount due it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 6.7.
No provision of this Indenture shall be deemed to authorize
the Trustee to authorize or consent to or accept or adopt on behalf of any
Holder of a Security or interest coupon any plan of reorganization, arrangement,
adjustment or composition affecting the Securities or the rights of any Holder
of a Security or interest coupon thereof or to authorize the Trustee to vote in
respect of the claim of any Holder of a Security or interest coupon in any such
proceeding; provided, however, that the Trustee may, on behalf of the Holders,
vote for the election of a trustee in bankruptcy or similar official and be a
member of a creditors' or other similar committee.
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Section 5.5. Trustee May Enforce Claims Without Possession of
Securities . All rights of action and claims under this Indenture or the
Securities or any Senior Subordinated Guarantee may be prosecuted and enforced
by the Trustee without the possession of any of the Securities or the production
thereof in any proceeding relating thereto, and any such proceeding instituted
by the Trustee shall be brought in its own name as trustee of an express trust,
and any recovery of judgment shall, after provision for the payment of the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, be for the ratable benefit of the Holders of the
Securities in respect of which such judgment has been recovered.
Section 5.6. Delay or Omission Not Waiver . No delay or
omission by the Trustee or any Holder of any Securities to exercise any right or
remedy accruing upon an Event of Default shall impair any such right or remedy
or constitute a waiver of or acquiescence in any such Event of Default.
Section 5.7. Waiver of Past Defaults . The Holders of not less
than a majority in aggregate principal amount of Outstanding Securities of any
series by written notice to the Trustee may waive on behalf of the Holders of
all Securities of such series and any interest coupons appertaining thereto a
past Default or Event of Default with respect to that series and its
consequences except a Default or Event of Default (i) in the payment of the
principal of, premium, if any, or interest on any Security of such series or any
interest coupon appertaining thereto or (ii) in respect of a covenant or
provision hereof which pursuant to Article 8 cannot be amended or modified
without the consent of the Holder of each Outstanding Security of such series
affected. Upon any such waiver, such Default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
Section 5.8. Control by Majority . The Holders of not less
than a majority in aggregate principal amount of the Outstanding Securities of
each series affected (with each such series voting as a class) shall have the
right to direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee or exercising any trust or power conferred on it
with respect to Securities of that series; provided, however, that (i) the
Trustee may refuse to follow any direction that conflicts with any governmental
rule or law or this Indenture, (ii) the Trustee may refuse to follow any
direction that is unduly prejudicial to the rights of the Holders of Securities
of such series not consenting, or that would in the good faith judgment of the
Trustee have a substantial likelihood of involving the Trustee in personal
liability without adequate indemnity having been offered therefor and (iii)
subject to Section 6.1, the Trustee may take any other action deemed proper by
the Trustee which is not inconsistent with such direction.
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Section 5.9. Limitation on Suits by Holders . No Holder of any
Security of any series or any interest coupons appertaining thereto shall have
any right to institute any proceeding, judicial or otherwise, with respect to
this Indenture, or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless:
(a) the Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the Securities of that
series;
(b) the Holders of at least 25% in aggregate principal amount
of the Outstanding Securities of that series have made a written request to the
Trustee to institute proceedings in respect of such Event of Default in its own
name as Trustee hereunder;
(c) such Holder or Holders have offered to the Trustee
indemnity satisfactory to the Trustee against any loss, liability or expense to
be, or which may be, incurred by the Trustee in pursuing the remedy;
(d) the Trustee for 60 days after its receipt of such notice,
request and the offer of indemnity has failed to institute any such proceedings;
and
(e) during such 60-day period, the Holders of a majority in
aggregate principal amount of the Outstanding Securities of that series have not
given to the Trustee a direction inconsistent with such written request.
No one or more Holders of Securities of a series shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such
Holders.
Section 5.10. Rights of Holders to Receive Payment .
Notwithstanding any other provision of this Indenture, but subject to Section
9.2, the right of any Holder of a Security or interest coupon to receive payment
of principal of, premium, if any, and, subject to Sections 3.5 and 3.7, interest
on the Security, on or after the respective due dates expressed in the Security
(or, in case of redemption, on the Redemption Dates), the right of any Holder of
an interest coupon to receive payment of interest due as provided in such
interest coupon, or to bring suit for the enforcement of any such payment on or
after such respective dates, and the right, if any, to convert or exchange such
Security in accordance with Article 14, shall not be impaired or affected
without the consent of such Holder.
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Section 5.11. Application of Money Collected . If the Trustee
collects any money pursuant to this Article, it shall pay out the money in the
following order, at the date or dates fixed by the Trustee and, in case of the
distribution of such money on account of principal, premium, if any, or
interest, upon presentation of the Securities and interest coupons, if any, and
the notation thereon of the payment if only partially paid and upon surrender
thereof if fully paid:
First: to the Trustee for amounts due under Section 6.7;
Second: to Holders of Securities and interest coupons in
respect of which or for the benefit of which such money has been
collected for amounts due and unpaid on such Securities for principal
of, premium, if any, and interest, ratably, without preference or
priority of any kind, according to the amounts due and payable on such
Securities for principal, premium, if any, and interest, respectively;
and
Third: the balance, if any, to the Company.
The Holders of each series of Securities denominated in ECU,
any other currency unit or a Foreign Currency and any matured interest coupons
relating thereto shall be entitled to receive a ratable portion of the amount
determined by the Trustee by converting the principal amount Outstanding of such
series of Securities and matured but unpaid interest on such series of
Securities in the currency in which such series of Securities is denominated
into Dollars at the Market Exchange Rate as of the date of declaration of
acceleration of Maturity of the Securities (or, if the default consists of a
failure to pay the principal of such Securities on the Stated Maturity thereof,
as of the Stated Maturity date).
The Trustee may fix a record date and payment date for any
payment to Holders pursuant to this Section 5.11. At least 15 days before such
record date, the Trustee shall mail to each Holder and the Company a notice that
states the record date, the payment date and the amount to be paid.
Section 5.12. Restoration of Rights and Remedies . If the
Trustee or any Holder has instituted any proceeding to enforce any right or
remedy under this Indenture and such proceeding has been discontinued or
abandoned for any reason, or has been determined adversely to the Trustee or to
such Holder, then and in every such case, subject to any determination in such
proceeding, the Company, the Trustee and the Holders shall be restored severally
and respectively to their former positions hereunder and thereafter all rights
and remedies of the Trustee and the Holders shall continue as though no such
proceeding had been instituted.
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Section 5.13. Rights and Remedies Cumulative . Except as
otherwise provided with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities in the last paragraph of Section 3.6, no
right or remedy herein conferred upon or reserved to the Trustee or the Holders
is intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at law
or in equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
Section 5.14. Undertaking for Costs . In any suit for the
enforcement of any right or remedy under this Indenture, or in any suit against
the Trustee for any action taken, suffered or omitted by it as Trustee, a court
may require any party litigant in such suit to file an undertaking to pay the
costs of such suit, and may assess costs against any such party litigant, in the
manner and to the extent provided in the Trust Indenture Act; provided, however,
that neither this Section nor the Trust Indenture Act shall be deemed to
authorize any court to require such an undertaking or to make such an assessment
in any suit instituted by the Company or any Guarantor, any Guarantor, the
Trustee or any Holder, or group of Holders, holding in the aggregate at least
10% in principal amount of the Outstanding Securities 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.
Section 5.15. Waiver of Stay, Extension or Usury Laws . Each
of the Company and the Guarantors covenants (to the extent that it may lawfully
do so) that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay or extension law
or any usury or other law wherever enacted, now or at any time hereafter in
force, which would prohibit or forgive the Company from paying all or any
portion of the principal, of, and premium, if any, or interest on the Securities
contemplated herein or in the Securities or which may affect the covenants or
the performance of this Indenture or prohibit or forgive any Guarantor from
performance under its Senior Subordinated Guarantee; and each of the Company and
the Guarantors (to the extent that it may lawfully do so) hereby expressly
waives all benefit or advantage of any such law, and covenants that it will not
hinder, delay or impede the execution of any power herein granted to the
Trustee, but will suffer and permit the execution of every such power as though
no such law had been enacted.
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ARTICLE 6
THE TRUSTEE
Section 6.1. Certain Duties and Responsibilities . The duties
and responsibilities of the Trustee shall be as provided by the Trust Indenture
Act. Notwithstanding the foregoing, no provision of this Indenture shall require
the Trustee to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the exercise
of any of its rights or powers, if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against such risk
or liability is not reasonably assured to it. Whether or not therein expressly
so provided, every provision of this Indenture relating to the conduct or
affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section.
Section 6.2. Notice of Defaults . If a Default occurs
hereunder with respect to Securities of any series, the Trustee shall give the
Holders of Securities of such series notice of such Default as and to the extent
provided by the Trust Indenture Act; provided, however, that in the case of any
Default of the character specified in Section 5.1(d) with respect to Securities
of such series, no such notice to Holders shall be given until at least 30 days
after the occurrence thereof.
Section 6.3. Certain Rights of Trustee . Subject to the
provisions of Section 6.1:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document believed by it
to be genuine and to have been signed or presented by the proper party or
parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order, and any
resolution of the Board of Directors shall be sufficiently evidenced by a Board
Resolution;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad faith on
its part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in
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reliance thereon;
(e) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless such Holders
shall have offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which might be incurred by it in compliance with
such request or direction;
(f) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document, but
the Trustee, in its discretion, may make such further inquiry or investigation
into such facts or matters as it may see fit, and, if the Trustee shall
determine to make such further inquiry or investigation, it shall be entitled to
examine the books, records and premises of the Company, personally or by agent
or attorney;
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys and the Trustee shall not be responsible for any misconduct
or negligence on the part of any agent or attorney appointed with due care by it
hereunder; and
(h) except with respect to Section 9.1, the Trustee shall have
no duty to inquire as to the performance by the Company or any Guarantor of the
covenants set forth in Article 9 beyond its good faith review of any
certificates or other notices received by it from the Company or any Guarantor.
Section 6.4. Not Responsible for Recitals or Issuance of
Securities. The recitals contained herein and in the Securities and in the
Senior Subordinated Guarantees endorsed thereon, except the Trustee's
certificates of authentication, shall be taken as the statements of the Company
or the Guarantors, as the case may be, and neither the Trustee nor any
Authenticating Agent assumes any responsibility for their correctness. The
Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Securities or the Senior Subordinated Guarantees endorsed
thereon. Neither the Trustee nor any Authenticating Agent shall be accountable
for the use or application by the Company of Securities or the proceeds thereof.
Section 6.5. May Hold Securities. The Trustee, any
Authenticating Agent, any Paying Agent, any Security Registrar or any other
agent of the Company, any
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Guarantor or the Trustee, in its individual or any other capacity, may become
the owner or pledgee of Securities and, subject to the definition of
"Outstanding" set forth in Section 1.1, and subject to Sections 6.8 and 6.13,
may otherwise deal with the Company, any Guarantor and any other obligor upon
the Securities and the Senior Subordinated Guarantees with the same rights it
would have if it were not Trustee, Authenticating Agent, Paying Agent, Security
Registrar or such other agent.
Section 6.6. Money Held in Trust. Money held by the Trustee in
trust hereunder need not be segregated from other funds except to the extent
required by law or by the provisions of this Indenture. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed with the Company or any Guarantor, as the case may be.
Section 6.7. Compensation and Reimbursement. The Company
agrees
(a) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which compensation shall
not be limited by any provision of law in regard to the compensation of a
trustee of an express trust);
(b) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance with
any provision of this Indenture (including the reasonable compensation and the
expenses and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad faith;
and (c) to indemnify the Trustee for, and to hold it harmless against, any loss,
liability or expense incurred without negligence or bad faith on its part,
arising out of or in connection with the acceptance or administration of the
trust or trusts hereunder, including the costs and expenses of defending itself
against any claim or liability in connection with the exercise or performance of
any of its powers or duties hereunder.
Section 6.8. Conflicting Interests. If the Trustee has or
shall acquire a conflicting interest within the meaning of the Trust Indenture
Act, the Trustee shall either eliminate such interest or resign, to the extent
and in the manner provided by, and subject to the provisions of, the Trust
Indenture Act and this Indenture. To the extent permitted by such Act, the
Trustee shall not be deemed to have a conflicting interest by virtue of being a
trustee under this Indenture with respect to Securities of more than one series
or a trustee under (i) the Indenture dated as of May 15, 1997 between Allied and
the Trustee relating to the Allied's 11.30% Senior Discount Notes Due 2007, (ii)
the Indenture dated as of December 1, 1996 by and among the Company, Allied, as
guarantor, the Subsidiary Guarantors named therein and the Trustee relating to
the Company's 10 1/4% Senior Subordinated Notes due 2006, (iii) the Indenture
dated as of , 1997 between Allied and the Trustee relating to Allied's senior
debt securities, (iv) the Indenture dated as of , 1997 by and among Allied and
the Trustee relating to Allied's senior
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subordinated debt securities and (v) the Indenture dated as of , 1997 by and
among the Company, Allied, as guarantor, the Subsidiary Guarantors named therein
and the Trustee relating to the Company's senior debt securities.
Section 6.9. Corporate Trustee Required; Eligibility. There
shall at all times be a Trustee hereunder which shall be a Person that is
eligible pursuant to the Trust Indenture Act to act as such, has a combined
capital and surplus of at least $25,000,000 and has its Corporate Trust Office
located in the Borough of Manhattan, The City of New York. If such Person
publishes reports of condition at least annually, pursuant to law or to the
requirements of its supervising or examining authority, then for the purposes of
this Section, the combined capital and surplus of such Person shall be deemed to
be its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, it shall resign immediately in
the manner and with the effect hereinafter specified in this Article.
Section 6.10. Resignation and Removal; Appointment of
Successor. No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 6.11.
The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to the
Company. If the instrument of acceptance by a successor Trustee required by
Section 6.11 shall not have been delivered to the Trustee within 30 days after
the giving of such notice of resignation, the resigning Trustee may petition any
court of competent jurisdiction for the appointment of a successor Trustee with
respect to the Securities of such series.
The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal amount
of the Outstanding Securities of such series, delivered to the Trustee and to
the Company.
If at any time:
(a) the Trustee shall fail to comply with Section 6.8 after
written request therefor by the Company or by any Holder who has been a bona
fide Holder of a Security for at least six months, or
(b) the Trustee shall cease to be eligible under Section 6.9
and shall fail to resign after written request therefor by the Company or by any
such Holder, or
(c) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its property
shall be appointed or
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any public officer shall take charge or control of the Trustee or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation,
then, in any such case, (1) the Company by a Board Resolution
may remove the Trustee with respect to all Securities, or (2) subject to Section
5.14, any Holder who has been a bona fide Holder of a Security for at least six
months may, on behalf of himself and all others similarly situated, petition any
court of competent jurisdiction for the removal of the Trustee with respect to
all Securities and the appointment of a successor Trustee or Trustees.
If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, with
respect to the Securities of one or more series, the Company, by a Board
Resolution, shall promptly appoint a successor Trustee or Trustees with respect
to the Securities of that or those series (it being understood that any such
successor Trustee may be appointed with respect to the Securities of one or more
or all of such series and that at any time there shall be only one Trustee with
respect to the Securities of any particular series) and shall comply with the
applicable requirements of Section 6.11. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of any series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance
of such appointment in accordance with the applicable requirements of Section
6.11, become the successor Trustee with respect to the Securities of such series
and to that extent supersede the successor Trustee appointed by the Company. If
no successor Trustee with respect to the Securities of any series shall have
been so appointed by the Company or the Holders and accepted appointment in the
manner required by Section 6.11, any Holder who has been a bona fide Holder of a
Security of such series for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction for
the appointment of a successor Trustee with respect to the Securities of such
series. The Company shall give notice of each resignation and each removal of
the Trustee with respect to the Securities of any series and each appointment of
a successor Trustee with respect to the Securities of any series to all Holders
of Securities of such series in the manner provided in Section 1.6. Each notice
shall include the name of the successor Trustee with respect to the Securities
of such series and the address of its Corporate Trust Office.
Section 6.11. Acceptance of Appointment by Successor. In case
of the appointment hereunder of a successor Trustee with respect to all
Securities, every such successor Trustee so appointed shall execute, acknowledge
and deliver to the Company, the Guarantors and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and
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such successor Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of the retiring
Trustee; but, on the request of the Company or the successor Trustee, such
retiring Trustee shall, upon payment of its charges, execute and deliver an
instrument transferring to such successor Trustee all the rights, powers and
trusts of the retiring Trustee and shall duly assign, transfer and deliver to
such successor Trustee all property and money held by such retiring Trustee
hereunder.
In case of the appointment hereunder of a successor Trustee
with respect to the Securities of one or more (but not all) series, the Company,
the Guarantors the retiring Trustee and each successor Trustee with respect to
the Securities of one or more series shall execute and deliver an indenture
supplemental hereto wherein each successor Trustee shall accept such appointment
and which (1) shall contain such provisions as shall be necessary or desirable
to transfer and confirm to, and to vest in, each successor Trustee all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates, (2) if the retiring Trustee is not retiring with respect to all
Securities, shall contain such provisions as shall be deemed necessary or
desirable to confirm that all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series as to
which the retiring Trustee is not retiring shall continue to be vested in the
retiring Trustee, and (3) shall add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the administration
of the trusts hereunder by more than one Trustee, it being understood that
nothing herein or in such supplemental indenture shall constitute such Trustees
co-trustees of the same trust and that each such Trustee shall be trustee of a
trust or trusts hereunder separate and apart from any trust or trusts hereunder
administered by any other such Trustee; and upon the execution and delivery of
such supplemental indenture the resignation or removal of the retiring Trustee
shall become effective to the extent provided therein and each such successor
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee with respect
to the Securities of that or those series to which the appointment of such
successor Trustee relates; but, on request of the Company, any Guarantor or any
successor Trustee, such retiring Trustee shall duly assign, transfer and deliver
to such successor Trustee all property and money held by such retiring Trustee
hereunder with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates.
Upon request of any such successor Trustee, the Company and
the Guarantors shall execute any and all instruments for more fully and
certainly vesting in and confirming to such successor Trustee all such rights,
powers and trusts referred to in the first or second preceding paragraph, as the
case may be.
No successor Trustee shall accept its appointment unless at
the time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
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Section 6.12. Merger, Conversion, Consolidation or Succession
to Business. Any corporation into which the Trustee may be merged or converted
or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to all or substantially all the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.
Section 6.13. Preferential Collection of Claims Against
Company. If and when the Trustee shall be or become a creditor of the Company or
any Guarantor (or any other obligor upon the Securities or the Senior
Subordinated Guarantees endorsed thereon), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims against
the Company (or any Guarantor or any such other obligor).
Section 6.14. Appointment of Authenticating Agent. The Trustee
may appoint an Authenticating Agent or Agents with respect to one or more series
of Securities which shall be authorized to act on behalf of the Trustee to
authenticate Securities of such series issued upon original issue and upon
exchange, registration of transfer or partial redemption thereof or pursuant to
Section 3.6, and Securities so authenticated and the Senior Subordinated
Guarantees endorsed thereon shall be entitled to the benefits of this Indenture
and shall be valid and obligatory for all purposes as if authenticated by the
Trustee hereunder. Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the Trustee's
certificate of authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an Authenticating Agent
and a certificate of authentication executed on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent shall be acceptable to the
Company and shall at all times be a corporation organized and doing business
under the laws of the United States of America, any State thereof or the
District of Columbia, authorized under such laws to act as Authenticating Agent,
having a combined capital and surplus of not less than $25,000,000 and subject
to supervision or examination by Federal or State authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this
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Section, such Authenticating Agent shall resign immediately in the manner and
with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any corporation succeeding to the
corporate agency or corporate trust business of an Authenticating Agent, shall
continue to be an Authenticating Agent, provided such corporation shall be
otherwise eligible under this Section, without the execution or filing of any
paper or any further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving
written notice thereof to the Trustee and to the Company. The Trustee may at any
time terminate the agency of an Authenticating Agent by giving written notice
thereof to such Authenticating Agent and to the Company. Upon receiving such a
notice of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall give notice of such
appointment in the manner provided in Section 1.6 to all Holders of Securities
of the series with respect to which such Authenticating Agent will serve. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Trustee agrees to pay to each Authenticating Agent from
time to time reasonable compensation for its services under this Section, and
the Trustee shall be entitled to be reimbursed for such payments, subject to the
provisions of Section 6.7.
If an appointment with respect to one or more series is made
pursuant to this Section, the Securities of such series may have endorsed
thereon, in addition to the Trustee's certificate of authentication, an
alternative certificate of authentication in the following form:
This is one of the Securities with the Senior Subordinated
Guarantees endorsed thereon of the series designated therein referred to in the
within-mentioned Indenture.
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_____________________________________________,
As Trustee
By:__________________________________________,
As Authenticating Agent
By:__________________________________________
Authorized Signatory
ARTICLE 7
CONSOLIDATION, MERGER OR SALE OF ASSETS BY THE COMPANY
Section 7.1. Consolidation, Merger or Sale of Assets Permitted
. Except as permitted by Sections 16.3 and 16.4(c), neither the Company nor any
Guarantor shall consolidate with or merge into, or sell, transfer, lease or
otherwise dispose of its properties and assets as, or substantially as, an
entirety to, any Person, and neither the Company nor any Guarantor shall permit
any Person to consolidate with or merge into the Company or any Guarantor,
unless:
(a) (1) the Company or the Guarantor, as the case may be, will
be the surviving entity or (2) the Person formed by or surviving any such
consolidation or merger (if other than the Company or the Guarantor, as the case
may be), or to which such sale, transfer, lease or other disposition shall have
been made, is an entity organized and existing under the laws of the United
States, any State thereof or the District of Columbia;
(b) the Person formed by or surviving any such consolidation
or merger (if other than the Company or the Guarantor, as the case may be), or
to which such sale, transfer, lease or other disposition shall have been made,
expressly assumes by supplemental indenture all the obligations of the Company
or the Guarantor, as the case may be, under the Securities, the Senior
Subordinated Guarantees and this Indenture, and the Securities, the Senior
Subordinated Guarantees and this Indenture will remain in full force and effect
as so supplemented;
(c) immediately after giving effect to such consolidation,
merger, sale, transfer, lease or other disposition, no Default or Event of
Default exists; and
(d) with respect to any series of Securities, the Company
satisfies such other conditions, if any, established with respect to such series
of Securities pursuant to and in accordance with Section 3.1.
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Unless such proposed consolidation, merger, sale, transfer,
lease or other disposition is permitted by Section 16.3 or is a transaction in
which Subsidiary Guarantors will be automatically released from its Guarantee in
accordance with Section 16.4(c), the Company or the Guarantor, as the case may
be, shall deliver to the Trustee prior to the proposed consolidation, merger,
sale, transfer, lease or other disposition an Officers' Certificate to the
foregoing effect and an Opinion of Counsel stating that the proposed
consolidation, merger, sale, transfer, lease or other disposition and such
supplemental indenture comply with this Indenture and that all conditions
precedent to the consummation of such transaction under this Section 7.1 have
been met.
Upon any consolidation of the Company or the Guarantor, as the
case may be, with, or merger of the Company or the Guarantor, as the case may
be, into, any other Person or any sale, transfer, lease or other disposition of
properties and assets of the Company or the Guarantor, as the case may be, as,
or substantially as, an entirety in accordance with this Section 7.1, the
successor Person formed by such consolidation or into which the Company or the
Guarantor, as the case may be, is merged or to which such sale, transfer, lease
or other disposition is made shall (unless Section 16.4(c) applies) succeed to
and be substituted for, and may exercise every right and power of, the Company
or the Guarantor, as the case may be, hereunder and under the Securities and any
interest coupons appertaining thereto with the same effect as if such successor
Person had been named hereunder and thereunder and thereafter, except in the
case of a lease, the predecessor Person shall be relieved of all obligations and
covenants under this Indenture and the Securities.
ARTICLE 8
SUPPLEMENTAL INDENTURES
Section 8.1. Supplemental Indentures Without Consent of
Holders. Without the consent of any Holders, the Company, the Guarantors and the
Trustee, at any time and from time to time, may enter into indentures
supplemental hereto, in form reasonably satisfactory to the Trustee, for any of
the following purposes:
(a) to evidence the succession of another Person to the
Company or any Guarantor and the assumption by any such successor of the
covenants and obligations of the Company or any Guarantor herein and in the
Securities and any interest coupons appertaining thereto; or
(b) to add to the covenants of the Company for the benefit of
the Holders of all or any series of Securities (and if such covenants are to be
for the benefit of less than all series of Securities, stating that such
covenants are expressly being included solely for the benefit of such series) or
to surrender any right or power herein conferred
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upon the Company; or
(c) to add any additional Events of Default with respect to
all or any series of Securities; or
(d) to add to or change any of the provisions of this
Indenture to such extent as shall be necessary to facilitate the issuance or
administration of Bearer Securities (including, without limitation, to provide
that Bearer Securities may be registrable as to principal only) or to facilitate
the issuance or administration of Securities in global form; or
(e) to change or eliminate any of the provisions of this
Indenture in respect of one or more series of Securities, provided that any such
change or elimination shall become effective only when there is no Security
Outstanding of any series created prior to the execution of such supplemental
indenture which is entitled to the benefit of such provision; or
(f) to secure any series of Securities; or
(g) to establish the form or terms of Securities of any series
as permitted by Sections 2.1 and 3.1; or
(h) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or more
series and to add to or change any of the provisions of this Indenture as shall
be necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, pursuant to the requirements of Section
6.11; or
(i) if allowed without penalty under applicable laws and
regulations, to permit payment in the United States (including any of the States
thereof and the District of Columbia), its territories, its possessions and
other areas subject to its jurisdiction of principal, premium, if any, or
interest, if any, on Bearer Securities or interest coupons, if any; or
(j) to cure any ambiguity, to correct or supplement any
provision herein which may be inconsistent with any other provision herein or to
make any other provisions with respect to matters or questions arising under
this Indenture which shall not be inconsistent with the provisions of this
Indenture, provided such action shall not adversely affect in any material
respect the interests of the Holders of Securities of any series; or
(k) to make provision not adverse to the Holders of
Outstanding Securities of any series with respect to any conversion or exchange
rights of Holders
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pursuant to the requirements of Article 14, including providing for the
conversion or exchange of the Securities into any Equity Securities of Allied;
or
(l) to modify, eliminate or add to the provisions of this
Indenture to such extent as shall be necessary to effect the qualification of
this Indenture under the Trust Indenture Act or under any similar federal
statute subsequently enacted, and to add to this Indenture such other provisions
as may be expressly required under the Trust Indenture Act; or
(m) to add new Subsidiary Guarantors pursuant to Section 16.5.
Section 8.2. Supplemental Indentures With Consent of Holders.
With the consent of the Holders of not less than a majority of the aggregate
principal amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company, the
Company, the Guarantors and the Trustee may enter into an indenture or
indentures supplemental hereto to add any provisions to or to change in any
manner or eliminate any provisions of this Indenture or of any other indenture
supplemental hereto or to modify in any manner the rights of the Holders of
Securities of such series; provided, however, that without the consent of the
Holder of each Outstanding Security affected thereby, an amendment under this
Section may not:
(a) change the Stated Maturity of the principal of, or
premium, if any, on, or any installment of principal of or premium, if any, or
interest on, any Security, or reduce the principal amount thereof or the rate of
interest thereon or any premium payable upon the redemption thereof, or change
the manner in which the amount of any principal thereof or premium, if any, or
interest thereon is determined or reduce the amount of the principal of any
Original Issue Discount Security or Indexed Security that would be due and
payable upon a declaration of acceleration of the Maturity thereof pursuant to
Section 5.2, or change the currency or currency unit in which any Securities or
any premium or the interest thereon is payable, or impair the right to institute
suit for the enforcement of any such payment on or after the Stated Maturity
thereof (or, in the case of redemption, on or after the Redemption Date);
(b) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of whose Holders is required
for any such supplemental indenture, or the consent of whose Holders is required
for any waiver (of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences) provided for in this
Indenture, or reduce the requirements of Section 13.4 for quorum or voting;
(c) change any obligation of the Company to maintain an office
or agency in the places and for the purposes specified in Section 9.2;
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(d) make any change that adversely affects any right to
convert or exchange any Security to which the provisions of Article 14 are
applicable or, except as provided in this Indenture, decrease the conversion or
exchange rate or increase the conversion or exchange price of any such Security;
(e) modify the provisions in Article 15 of this Indenture with
respect to the subordination of Outstanding Securities of any series in a manner
adverse to the Holders thereof; or
(f) make any change in this Section 8.2, Section 5.7 or
Section 9.6 except to increase any percentage or to provide that certain other
provisions of this Indenture cannot be modified or waived with the consent of
the Holders of each Outstanding Security affected thereby provided, however,
that this clause shall not be deemed to require the consent of any Holder of a
Security or coupon with respect to changes in the references to "the Trustee"
and concomitant changes in this Section and Section 9.6 or the deletion of this
proviso, in accordance with the requirements of Sections 6.11 and 8.1(h).
A supplemental indenture which changes or eliminates any
covenant or other provision of this Indenture which has expressly been included
solely for the benefit of one or more particular series of Securities, or which
modifies the rights of the Holders of Securities of such series with respect to
such covenant or other provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Securities of any other series.
It is not necessary under this Section 8.2 for the Holders to
consent to the particular form of any proposed supplemental indenture, but it is
sufficient if they consent to the substance thereof.
Section 8.3. Compliance with Trust Indenture Act. Every
amendment to this Indenture or the Securities of one or more series shall be set
forth in a supplemental indenture that complies with the Trust Indenture Act as
then in effect.
Section 8.4. Execution of Supplemental Indentures. In
executing, or accepting the additional trusts created by, any supplemental
indenture permitted by this Article or the modification thereby of the trusts
created by this Indenture, the Trustee shall be entitled to receive, and
(subject to Section 6.1) shall be fully protected in relying upon, an Officers'
Certificate and an Opinion of Counsel stating that the execution of such
supplemental indenture is authorized or permitted by this Indenture. The Trustee
may, but shall not be obligated to, enter into any such supplemental indenture
which affects the Trustee's own rights, duties or immunities under this
Indenture or otherwise.
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Section 8.5. Effect of Supplemental Indentures. Upon the
execution of any supplemental indenture under this Article, this Indenture shall
be modified in accordance therewith, and such supplemental indenture shall form
a part of this Indenture for all purposes; and every Holder of Securities
theretofore or thereafter authenticated and delivered hereunder and of any
interest coupon appertaining thereto shall be bound thereby.
Section 8.6. Reference in Securities to Supplemental
Indentures. Securities, including any interest coupons, of any series
authenticated and delivered after the execution of any supplemental indenture
pursuant to this Article may, and shall if required by the Trustee, bear a
notation in form approved by the Trustee as to any matter provided for in such
supplemental indenture. If the Company shall so determine, new Securities
including any interest coupons of any series so modified as to conform, in the
opinion of the Company, to any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered by the Trustee in
exchange for Outstanding Securities including any interest coupons of such
series.
Section 8.7. Notice of Supplemental Indentures. Promptly after
the execution by the Company and the Trustee of any supplemental indenture
pursuant to the provisions of Section 8.2, the Company shall give notice thereof
to the Holders of each Outstanding Security affected, in the manner provided for
in Section 1.6, setting forth in general terms the substance of such
supplemental indenture. Any failure of the Company to give such notice, or any
defect therein, shall not, however, in any way impair or affect the validity of
any such supplemental indenture.
ARTICLE 9
COVENANTS
Section 9.1. Payment of Principal, Premium, if any, and
Interest. The Company covenants and agrees for the benefit of the Holders of
each series of Securities that it will duly and punctually pay the principal of,
premium, if any, and interest, together with additional amounts, if any, on the
Securities of that series in accordance with the terms of the Securities of such
series, any interest coupons appertaining thereto and this Indenture; provided,
however, that amounts properly withheld under the Internal Revenue Code of 1986,
as amended, by any Person from a payment to any Holder of Securities, after
having requested such Holder to provide applicable information that would allow
such Person to make such payment without withholding, shall be considered as
having been paid by the Company to such Holder for purposes of this Indenture.
An installment of principal, premium, if any, or interest shall be considered
paid on the date it is due if there shall have been sent to the Trustee or
Paying Agent by wire transfer, or if
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the Trustee or Paying Agent otherwise holds, on that date money designated for
and sufficient to pay the installment.
Section 9.2. Maintenance of Office or Agency. Unless otherwise
specified as contemplated by Section 3.1, if Securities of a series are issued
as Registered Securities, the Company will maintain in each Place of Payment for
that series of Securities an office or agency where Securities of that series
may be presented or surrendered for payment, where Securities of that series may
be surrendered for registration of transfer or exchange and where notices and
demands to or upon the Company or any Guarantor in respect of the Securities or
the Senior Subordinated Guarantees of that series and this Indenture may be
served. Unless otherwise specified as contemplated by Section 3.1, if Securities
of a series are issuable as Bearer Securities, the Company will maintain, (i)
subject to any laws or regulations applicable thereto, an office or agency in a
Place of Payment for that series which is located outside the United States
where Securities of that series and related interest coupons may be presented
and surrendered for payment; provided, however, that if the Securities of that
series are listed on The International Stock Exchange of the United Kingdom and
the Republic of Ireland Limited, the Luxembourg Stock Exchange or any other
stock exchange located outside the United States and such stock exchange shall
so require, the Company will maintain a Paying Agent for the Securities of that
series in London, Luxembourg or any other required city located outside the
United States, as the case may be, so long as the Securities of that series are
listed on such exchange, and (ii) subject to any laws or regulations applicable
thereto, an office or agency in a Place of Payment for that series which is
located outside the United States, where Securities of that series may be
surrendered for exchange and where notices and demands to or upon the Company in
respect of the Securities of that series and this Indenture may be served. The
Company will give prompt written notice to the Trustee of the location, and any
change in the location, of any such office or agency. If at any time the Company
shall fail to maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the Corporate Trust Office of the
Trustee, and the Company and each Guarantor hereby appoints the Trustee as its
agent to receive all such presentations, surrenders, notices and demands.
Unless otherwise specified as contemplated by Section 3.1, no
payment of principal, premium or interest on Bearer Securities shall be made at
any office or agency of the Company in the United States, by check mailed to any
address in the United States, by transfer to an account located in the United
States or upon presentation or surrender in the United States of a Bearer
Security or interest coupon for payment, even if the payment would be credited
to an account located outside the United States; provided, however, that, if the
Securities of a series are denominated and payable in Dollars, payment of
principal of and any premium or interest on any such Bearer Security shall be
made at the
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office of the Company's Paying Agent in the Borough of Manhattan, The City of
New York, if (but only if) payment in Dollars of the full amount of such
principal, premium or interest, as the case may be, at all offices or agencies
outside the United States maintained for the purpose by the Company in
accordance with this Indenture is illegal or effectively precluded by exchange
controls or other similar restrictions.
Unless otherwise specified as contemplated by Section 3.1, the
Company may also from time to time designate one or more other offices or
agencies where the Securities (including any interest coupons, if any) of one or
more series may be presented or surrendered for any or all such purposes and may
from time to time rescind such designations; provided, however, that no such
designation or rescission shall in any manner relieve the Company of its
obligation to maintain an office or agency in each Place of Payment for
Securities (including any interest coupons, if any) of any series for such
purposes. The Company will give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location of any such other
office or agency.
Unless otherwise specified as contemplated by Section 3.1, the
Trustee shall initially serve as Paying Agent.
Section 9.3. Money for Securities Payments to Be Held in
Trust; Unclaimed Money. If the Company shall at any time act as its own Paying
Agent with respect to any series of Securities and any interest coupons
appertaining thereto, it will, on or before each due date of the principal of,
premium, if any, or interest on any of the Securities of that series, segregate
and hold in trust for the benefit of the Persons entitled thereto a sum
sufficient to pay the principal, premium, if any, or interest so becoming due
until such sums shall be paid to such Persons or otherwise disposed of as herein
provided and will promptly notify the Trustee in writing of its action or
failure so to act.
Whenever the Company shall have one or more Paying Agents for
any series of Securities and any interest coupons appertaining thereto, it will,
prior to each due date of the principal of or any premium or interest on any
Securities of that series, deposit with a Paying Agent a sum sufficient to pay
such amount, such sum to be held as provided by the Trust Indenture Act, and
(unless such Paying Agent is the Trustee) the Company will promptly notify the
Trustee of its action or failure so to act.
The Company will cause each Paying Agent for any series of
Securities other than the Trustee to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee, subject to
the provisions of this Section, that such Paying Agent will:
(a) comply with the provisions of the Trust Indenture Act
applicable to
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it as a Paying Agent;
(b) hold all sums held by it for the payment of the principal
of, premium, if any, or interest on Securities of that series in trust for the
benefit of the Persons entitled thereto until such sums shall be paid to such
Persons or otherwise disposed of as herein provided;
(c) give the Trustee notice of any default by the Company (or
any other obligor upon the Securities of that series) in the making of any
payment of principal, premium, if any, or interest on the Securities of that
series; and
(d) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the Trustee all sums
so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the terms set forth in this Indenture; and, upon such payment by any Paying
Agent to the Trustee, such Paying Agent shall be released from all further
liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of any principal of or
premium or interest on any Security of any series and remaining unclaimed for
two years after such principal, premium, if any, or interest has become due and
payable shall be paid to the Company on Company Request, or (if then held by the
Company) shall be discharged from such trust; and the Holder of such Security
and interest coupon, if any, shall thereafter, as an unsecured general creditor,
look only to the Company for payment thereof, and all liability of the Trustee
or such Paying Agent with respect to such trust money, and all liability of the
Company as trustee thereof, shall thereupon cease; provided, however, that the
Trustee or such Paying Agent, before being required to make any such repayment,
may in the name and at the expense of the Company cause to be published once, in
an Authorized Newspaper in each Place of Payment with respect to such series, or
cause to be mailed to such Holder, notice that such money remains unclaimed and
that, after a date specified therein, which shall not be less than 30 days from
the date of such publication, any unclaimed balance of such money then remaining
will be repaid to the Company.
Section 9.4. Corporate Existence. Subject to Article 7, the
Company will at all times do or cause to be done all things necessary to
preserve and keep in full force and effect its corporate existence and its
rights and franchises; provided that nothing in this Section 9.4 shall prevent
the abandonment or termination of any right or franchise
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of the Company if it shall be determined that such abandonment or termination is
desirable in the conduct of the business of the Company.
Section 9.5. Annual Review Certificate. The Company covenants
and agrees to deliver to the Trustee, within 90 days after the end of each
fiscal year of the Company, a certificate from the principal executive officer,
principal financial officer or principal accounting officer of the Company
stating that a review of the activities of the Company during such year and of
performance under this Indenture has been made under his or her supervision and
to the best of his or her knowledge, based on such review, each of the Company
and the Guarantors has fulfilled all of its obligations under this Indenture
throughout such year, or, if there has been a default in the fulfillment of any
such obligation, specifying each such default known to him or her and the nature
and status thereof. For purposes of this Section 9.5, such compliance shall be
determined without regard to any period of grace or requirement of notice
provided under this Indenture.
Section 9.6. Waiver of Certain Covenants. Except as otherwise
specified as contemplated by Section 3.1 for Securities of such series, the
Company or any Guarantor may, with respect to the Securities of any series, omit
in any particular instance to comply with any term, provision or condition set
forth in any covenant provided pursuant to Section 3.1(b)(15), 8.1(b) or 8.1(g)
for the benefit of the Holders of such series if before the time for such
compliance the Holders of at least a majority in principal amount of the
Outstanding Securities of such series shall, by act of such Holders in
accordance with Section 1.4, either waive such compliance in such instance or
generally waive compliance with such term, provision or condition, but no such
waiver shall extend to or affect such term, provision or condition except to the
extent so expressly waived, and, until such waiver shall become effective, the
obligations of the Company and each of the Guarantors and the duties of the
Trustee in respect of any such term, provision or condition shall remain in full
force and effect.
ARTICLE 10
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 10.1. Company to Furnish Trustee Names and Addresses
of Holders. The Company will furnish or cause to be furnished to the Trustee:
(a) semi-annually, not more than 15 days after each Regular
Record Date for any series, a list, in such form as the Trustee may
reasonably require, of the names and addresses of the Holders of
Registered Securities of such series as of such Regular Record Date;
and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a
list
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of similar form and content for any or all series as of a date not more
than 15 days prior to the time such list is furnished;
excluding from any such list names and addresses possessed by the Trustee in its
capacity as Registrar.
Section 10.2. Preservation of Information, Communications to
Holders. (a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders of Registered Securities
contained in the most recent list furnished to the Trustee as provided in
Section 10.1 and the names and addresses of Holders of Registered Securities
received by the Trustee in its capacity as Registrar. The Trustee may destroy
any list furnished to it as provided in Section 10.1 upon receipt of a new list
so furnished.
(b) The rights of Holders of Securities to communicate with
other Holders with respect to their rights under this Indenture or under the
Securities, and the corresponding rights and privileges of the Trustee, shall be
as provided in the Trust Indenture Act.
(c) Every Holder of Securities and interest coupons
appertaining thereto, by receiving and holding the same, agrees with the Company
and the Trustee that neither the Company, the Guarantors nor the Trustee nor any
agent of any of them shall be held accountable by reason of the disclosure of
information as to the names and addresses of the Holders of Securities made
pursuant to the Trust Indenture Act.
Section 10.3. Reports by Trustee. (a) The Trustee shall
transmit to Holders of Securities such reports concerning the Trustee and its
actions under this Indenture as may be required pursuant to the Trust Indenture
Act, at the times and in the manner provided pursuant thereto.
(b) Reports so required to be transmitted at stated intervals
of not more than 12 months shall be transmitted no later than July 15 in each
calendar year, commencing with the first July 15 after the first issuance of
Securities under this Indenture.
(c) A copy of each such report shall, at the time of such
transmission to Holders of Securities, be filed by the Trustee with each stock
exchange upon which the Securities of any series may then be listed and also
with the Commission. The Company will notify the Trustee whenever the Securities
of any series are listed on any stock exchange.
Section 10.4. Reports by the Company and the Guarantors. The
Company and each of the Guarantors shall file with the Trustee and the
Commission, and
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transmit to the Holders, such information, documents and other reports, and such
summaries thereof, as may be required pursuant to the Trust Indenture Act at the
times and in the manner provided pursuant to such Act; provided that any such
information, documents or reports required to be filed with the Commission
pursuant to Section 13 or 15(d) of the 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. Notwithstanding anything contrary herein, the Trustee shall
have no duty to review such documents for purposes of determining compliance
with any provisions of this Indenture.
ARTICLE 11
REDEMPTION
Section 11.1. Applicability of Article. Securities (including
interest coupons, if any) of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified as contemplated by Section 3.1 for Securities of any series)
in accordance with this Article.
Section 11.2. Election to Redeem; Notice to Trustee. The
election of the Company to redeem any Securities, including interest coupons, if
any, that, at the time of such election, may be redeemed at the option of the
Company, shall be evidenced by a Board Resolution. In the case of any such
redemption at the election of the Company of less than all the Securities or
interest coupons, if any, of any series, the Company shall, at least 45 days
prior to the Redemption Date fixed by the Company (unless a shorter notice shall
be satisfactory to the Trustee), notify the Trustee of such Redemption Date, of
the principal amount of Securities of such series to be redeemed and, if
applicable, of the tenor of the Securities to be redeemed. In the case of any
redemption of Securities (i) prior to the expiration of any restriction on such
redemption provided in the terms of such Securities or elsewhere in this
Indenture or (ii) pursuant to an election of the Company which is subject to a
condition specified in the terms of such Securities, the Company shall furnish
the Trustee with an Officers' Certificate evidencing compliance with such
restriction or condition.
Section 11.3. Selection of Securities to Be Redeemed. Unless
otherwise specified as contemplated by Section 3.1, if less than all the
Securities (including interest coupons, if any) of a series with the same terms
are to be redeemed, the Trustee, not more than 45 days prior to the Redemption
Date, shall select the Securities of the series to be redeemed in such manner as
the Trustee shall deem fair and appropriate. The Trustee shall make the
selection from Securities of the series that are Outstanding and that have not
previously been called for redemption and may provide for the selection for
redemption of portions (equal to the minimum authorized denomination for
Securities, including interest coupons, if any, of that series or any integral
multiple thereof) of the
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principal amount of Securities, including interest coupons, if any, of such
series of a denomination larger than the minimum authorized denomination for
Securities of that series, provided that the unredeemed portion of the principal
amount of any Security shall be in an authorized denomination (which shall not
be less than the minimum authorized denomination) for such Security. The Trustee
shall promptly notify the Company in writing of the Securities selected by the
Trustee for redemption and, in the case of any Securities selected for partial
redemption, the principal amount thereof to be redeemed. If the Company shall so
direct, Securities registered in the name of the Company, any Guarantor, any
Affiliate or any Subsidiary of the Company or any Guarantor shall not be
included in the Securities selected for redemption.
For purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities (including
interest coupons, if any) shall relate, in the case of any Securities (including
interest coupons, if any) redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities (including interest coupons,
if any) which has been or is to be redeemed.
Section 11.4. Notice of Redemption. Unless otherwise specified
as contemplated by Section 3.1, notice of redemption shall be given in the
manner provided in Section 1.6 not less than 30 days nor more than 60 days prior
to the Redemption Date to the Holders of the Securities to be redeemed.
All notices of redemption shall state:
(a) the Redemption Date;
(b) the Redemption Price;
(c) if less than all the Outstanding Securities of a series
are to be redeemed, the identification (and, in the case of partial redemption,
the principal amounts) of the particular Security or Securities to be redeemed;
(d) the Place or Places of Payment where such Securities,
together in the case of Bearer Securities with all interest coupons appertaining
thereto, if any, maturing on or after the Redemption Date, are to be surrendered
for payment of the Redemption Price;
(e) that Securities of the series called for redemption and
all unmatured interest coupons, if any, appertaining thereto must be surrendered
to the Paying Agent to collect the Redemption Price;
(f) that, on the Redemption Date, the Redemption Price will
become due and payable upon each such Security, or the portion thereof, to be
redeemed and, if
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applicable, that interest thereon will cease to accrue on and after said date;
(g) that the redemption is from a sinking fund, if such is the
case;
(h) that, unless otherwise specified in such notice, Bearer
Securities of any series, if any, surrendered for redemption must be accompanied
by all interest coupons maturing subsequent to the Redemption Date or the amount
of any such missing interest coupon or interest coupons will be deducted from
the Redemption Price, unless security or indemnity satisfactory to the Company,
the Trustee and any Paying Agent is furnished;
(i) the CUSIP number, if any, of the Securities;
(j) if applicable, the conversion or exchange price, the date
on which the right to convert or exchange the Securities (or portions thereof to
be redeemed) will terminate and the place or places where such Securities may be
surrendered for conversion or exchange; and
(k) the procedures that a Holder must follow to surrender the
Securities so to be redeemed.
Notice of redemption of Securities to be redeemed shall be
given by the Company or, at the Company's request, by the Trustee in the name
and at the expense of the Company.
Section 11.5. Deposit of Redemption Price. On or prior to any
Redemption Date, the Company shall deposit with the Trustee or with a Paying
Agent (or, if the Company is acting as its own Paying Agent, segregate and hold
in trust as provided in Section 9.3) an amount of money in the currency or
currencies (including currency unit or units) in which the Securities of such
series are payable (except as otherwise specified pursuant to Section 3.1 for
the Securities of such series) sufficient to pay on the Redemption Date the
Redemption Price of, and (unless the Redemption Date shall be an Interest
Payment Date) interest accrued to the Redemption Date on, all Securities or
portions thereof which are to be redeemed on that date.
Unless any Security by its terms prohibits any redemption
obligation from being satisfied by delivering and crediting Securities
(including Securities redeemed otherwise than through a sinking fund), the
Company may deliver such Securities to the Trustee for crediting of an amount
equal to the then applicable Redemption Price for such Securities against such
payment obligation in accordance with the terms of such Securities and this
Indenture.
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Section 11.6. Securities Payable on Redemption Date. Notice of
redemption having been given as aforesaid, the Securities so to be redeemed
shall, on the Redemption Date, become due and payable at the Redemption Price
therein specified, and from and after such date (unless the Company shall
default in the payment of the Redemption Price and accrued interest) such
Securities shall cease to bear interest and the interest coupons for any such
interest appertaining to any Bearer Security so to be redeemed, except to the
extent provided below, shall be void. Except as provided in the next succeeding
paragraph, upon surrender of any such Security, including interest coupons, if
any, for redemption in accordance with said notice, such Security shall be paid
by the Company at the Redemption Price, together with accrued interest to the
Redemption Date; provided, however, that installments of interest on Bearer
Securities whose Stated Maturity is on or prior to the Redemption Date shall be
payable only at an office or agency located outside the United States and its
possessions (except as otherwise provided in Section 9.2) and, unless otherwise
specified as contemplated by Section 3.1, only upon presentation and surrender
of interest coupons for such interest; and provided, further, that, unless
otherwise specified as contemplated by Section 3.1, installments of interest on
Registered Securities that are due and payable on Interest Payment Dates that
are on or prior to the Redemption Date shall be payable to the Holders of such
Securities, or one or more Predecessor Securities, registered as such at the
close of business on the relevant Regular Record Dates according to their terms
and the provisions of Section 3.7.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant interest coupons maturing after the Redemption
Date, such Bearer Security may be paid after deducting from the Redemption Price
an amount equal to the face amount of all such missing interest coupons, or the
surrender of such missing interest coupon or interest coupons may be waived by
the Company and the Trustee if there be furnished to them such security or
indemnity as they may require to save each of them and any Paying Agent
harmless. If thereafter the Holder of such Bearer Security shall surrender to
the Trustee or any Paying Agent any such missing interest coupon in respect of
which a deduction shall have been made from the Redemption Price, such Holder
shall be entitled to receive the amount so deducted; provided, however, that
interest represented by interest coupons shall be payable only at an office or
agency located outside of the United States (except as otherwise provided
pursuant to Section 9.2) and, unless otherwise specified as contemplated by
Section 3.1, only upon presentation and surrender of those interest coupons.
If any Security called for redemption shall not be so paid
upon surrender thereof for redemption, the principal (and premium, if any)
shall, until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Security.
Section 11.7. Securities Redeemed in Part. Upon surrender of a
Security that is redeemed in part at any Place of Payment therefor (with, if the
Company
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or the Trustee so requires, due endorsement by, or a written instrument of
transfer in form satisfactory to the Company and the Trustee duly executed by,
the Holder thereof or his or her attorney duly authorized in writing), the
Company shall execute and the Trustee shall authenticate and deliver to the
Holder of that Security, without service charge, a new Security or Securities
(each with a Senior Subordinated Guarantee of each Guarantor executed by each
such Guarantor and endorsed thereon) of the same series, having the same form,
terms and Stated Maturity, in any authorized denomination equal in aggregate
principal amount to the unredeemed portion of the principal amount of the
Security surrendered.
ARTICLE 12
SINKING FUNDS
Section 12.1. Applicability of Article. The provisions of this
Article shall be applicable to any sinking fund for the retirement of Securities
of a series except as otherwise specified as contemplated by Section 3.1 for
Securities of such series.
The minimum amount of any sinking fund payment provided for by
the terms of Securities of any series is herein referred to as a "mandatory
sinking fund payment," and any payment in excess of such minimum amount provided
for by the terms of Securities of any series is herein referred to as an
"optional sinking fund payment." If provided for by the terms of Securities of
any series, the cash amount of any sinking fund payment may be subject to
reduction as provided in Section 12.2. Each sinking fund payment shall be
applied to the redemption of Securities of any series as provided for by the
terms of Securities of such series.
Section 12.2. Satisfaction of Sinking Fund Payments with
Securities. The Company (i) may deliver Outstanding Securities of a series
(other than any previously called for redemption) together, in the case of
Bearer Securities of such series, with all unmatured interest coupons
appertaining thereto and (ii) may apply as a credit Securities of a series which
have been (x) redeemed either at the election of the Company pursuant to the
terms of such Securities or through the application of permitted optional
sinking fund payments pursuant to the terms of such Securities, (y) converted or
exchanged pursuant to Article 14 or (z) previously delivered to the Trustee and
cancelled without reissuance pursuant to Section 3.9, in each case in
satisfaction of all or any part of any sinking fund payment with respect to the
Securities of such series required to be made pursuant to the terms of such
Securities as provided for by the terms of such series; provided that such
Securities have not been previously so credited. Such Securities shall be
received and credited for such purpose by the Trustee at the Redemption Price
specified in such Securities for redemption through operation of the sinking
fund and the amount of such sinking fund payment shall be reduced accordingly.
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Section 12.3. Redemption of Securities for Sinking Fund. Not
less than 45 days prior to each sinking fund payment date for any series of
Securities, the Company will deliver to the Trustee an Officers' Certificate
specifying the amount of the next ensuing sinking fund payment for that series
pursuant to the terms of that series, the portion thereof, if any, which is to
be satisfied by payment of cash and the portion thereof, if any, which is to be
satisfied by delivering and crediting Securities of that series pursuant to
Section 12.2 and stating the basis for such credit and that such Securities have
not been previously so credited, and will also deliver to the Trustee any
Securities to be so delivered. Not less than 30 days before each such sinking
fund payment date the Trustee shall select the Securities to be redeemed upon
such sinking fund payment date in the manner specified in Section 11.3 and cause
notice of the redemption thereof to be given in the name of and at the expense
of the Company in the manner provided in Section 11.4. Such notice having been
duly given, the redemption of such Securities shall be made upon the terms and
in the manner stated in Sections 11.6 and 11.7.
ARTICLE 13
MEETINGS OF HOLDERS OF SECURITIES
Section 13.1. Purposes for Which Meetings May Be Called. A
meeting of Holders of Securities of any series may be called at any time and
from time to time pursuant to this Article to make, give or take any request,
demand, authorization, direction, notice, consent, election, waiver or other
action provided by this Indenture to be made, given or taken by Holders of
Securities of such series.
Section 13.2. Call, Notice and Place of Meetings. (a) The
Trustee may at any time call a meeting of Holders of Securities of any series
for any purpose specified in Section 13.1, to be held at such time and at such
place in The City of New York or in such other place as may be acceptable to the
Company. Notice of every meeting of Holders of Securities, setting forth the
time and the place of such meeting and in general terms the action proposed to
be taken at such meeting, shall be given, in the manner provided in Section 1.6,
not less than 20 nor more than 180 days prior to the date fixed for the meeting.
(b) In case at any time the Company, pursuant to a Board
Resolution, shall have requested the Trustee to call a meeting of the Holders of
Securities of any series for any purpose specified in Section 13.1, by written
request setting forth in reasonable detail the action proposed to be taken at
the meeting, and the Trustee shall not have made the first publication of the
notice of such meeting within 20 days after receipt of such request or shall not
thereafter proceed to cause the meeting to be held as provided herein, then the
Company may determine the time and the place in The City of New York or such
other place as may be acceptable to the Company for such meeting and may call
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such meeting for such purposes by giving notice thereof as provided in paragraph
(a) of this Section 13.2.
Section 13.3. Persons Entitled to Vote at Meetings. To be
entitled to vote at any meeting of Holders of Securities of any series, a Person
shall be (a) a Holder of one or more Outstanding Securities of such series, or
(b) a Person appointed by an instrument in writing as proxy for a Holder or
Holders of one or more Outstanding Securities of such series by such Holder or
Holders. The only Persons who shall be entitled to be present or to speak at any
meeting of Holders shall be the Persons entitled to vote at such meeting and
their counsel, any representatives of the Trustee and its counsel and any
representatives of the Company and its counsel.
Section 13.4. Quorum; Action. The Persons entitled to vote a
majority in principal amount of the Outstanding Securities of a series shall
constitute a quorum for a meeting of Holders of Securities of such series;
provided, however, that if any action is to be taken at such meeting with
respect to a consent or waiver which this Indenture expressly provides may be
given by the Holders of not less than a specified percentage in principal amount
of the Outstanding Securities of a series, the Persons entitled to vote such
specified percentage in principal amount of the Outstanding Securities of such
series shall constitute a quorum. In the absence of a quorum within 30 minutes
after the time appointed for any such meeting, the meeting may be adjourned for
a period of not less than 10 days as determined by the chairman of the meeting
prior to the adjournment of such meeting. In the absence of a quorum at the
reconvening of any such adjourned meeting, such adjourned meeting may be further
adjourned for a period of not less than 10 days; at the reconvening of any
meeting adjourned or further adjourned for lack of a quorum, the persons
entitled to vote 25% in aggregate principal amount of the then Outstanding
Securities of the relevant series shall constitute a quorum for the taking of
any action set forth in the notice of the original meeting. Notice of the
reconvening of any adjourned meeting shall be given as provided in Section
13.2(b), except that such notice need be given only once not less than five days
prior to the date on which the meeting is scheduled to be reconvened.
Except as limited by the proviso to Section 8.2, any
resolution presented to a meeting or adjourned meeting duly reconvened at which
a quorum is present as aforesaid may be adopted by the affirmative vote of the
Holders of a majority in principal amount of the Outstanding Securities of that
series; provided, however, that, except as limited by the proviso to Section
8.2, any resolution with respect to any request, demand, authorization,
direction, notice, consent, waiver or other action which this Indenture
expressly provides may be made, given or taken by the Holders of a specified
percentage, which is less than a majority, in principal amount of the
Outstanding Securities of a series may be adopted at a meeting or an adjourned
meeting duly reconvened and at which a
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quorum is present as aforesaid by the affirmative vote of the Holders of such
specified percentage in principal amount of the Outstanding Securities of that
series.
Any resolution passed or decision taken at any meeting of
Holders of Securities of any series duly held in accordance with this Section
13.4 shall be binding on all the Holders of Securities of such series and the
related coupons, whether or not present or represented at the meeting.
Notwithstanding the foregoing provisions of this Sections
13.4, if any action is to be taken at a meeting of Holders of Securities of any
series with respect to any request, demand, authorization, direction, notice,
consent, waiver or other action that this Indenture expressly provides may be
made, given or taken by the Holders of a specified percentage in principal
amount of all Outstanding Securities affected thereby, or of the Holders of such
series and one or more additional series:
(1) there shall be no minimum quorum requirement for such
meeting and
(2) the principal amount of the Outstanding Securities of such
series that vote in favor of such request, demand, authorization,
direction, notice, consent, waiver or other action shall be taken into
account in determining whether such request, demand, authorization,
direction, notice, consent, waiver or other action has been made, given
or taken under this Indenture.
Section 13.5. Determination of Voting Rights; Conduct and
Adjournment of Meetings. (a) Notwithstanding any other provisions of this
Indenture, the Trustee may make such reasonable regulations as it may deem
advisable for any meeting of Holders of Securities of any series in regard to
proof of the holding of Securities of such series and of the appointment of
proxies and in regard to the appointment and duties of inspectors of votes, the
submission and examination of proxies, certificates and other evidence of the
right to vote, and such other matters concerning the conduct of the meeting as
it shall deem appropriate. Except as otherwise permitted or required by any such
regulations, the holding of Securities shall be proved in the manner specified
in Section 1.4 and the appointment of any proxy shall be provided in the manner
specified in Section 1.4 or by having the signature of the Person executing the
proxy witnessed or guaranteed by any trust company, bank or banker authorized by
Section 1.4 to certify to the holding of Bearer Securities. Such regulations may
provide that written instruments appointing proxies, regular on their face, may
be presumed valid and genuine without the proof specified in Section 1.4 or
other proof.
(b) The Trustee shall, by an instrument in writing, appoint a
temporary chairman (which may be a Responsible Officer of the Trustee) of the
meeting, unless the
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meeting shall have been called by the Company as provided in Section 13.2(b), in
which case the Company shall in like manner appoint a temporary chairman. A
permanent chairman and a permanent secretary of the meeting shall be elected by
vote of the Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the meeting.
(c) At any meeting each Holder of a Security of such series or
proxy shall be entitled to one vote for each U.S. $5,000 principal amount of
Securities held or represented by him or her; provided, however, that no vote
shall be cast or counted at any meeting in respect of any Security challenged as
not Outstanding and ruled by the chairman of the meeting to be not Outstanding.
The chairman of the meeting shall have no right to vote, except as a Holder of a
Security or proxy.
(d) Any meeting of Holders of Securities of a series duly
called pursuant to Section 13.2 at which a quorum is present may be adjourned
from time to time by Persons entitled to vote a majority in principal amount of
the Outstanding Securities of such series represented at the meeting, and the
meeting may be held as so adjourned without further notice.
Section 13.6. Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of Holders of Securities
of any series shall be by written ballots on which shall be subscribed the
signatures of the Holders of Securities of such series or of their
representatives by proxy and the principal amounts and serial numbers of the
Outstanding Securities held or represented by them. The permanent chairman of
the meeting shall appoint an inspector of votes who shall count all votes cast
at the meeting for or against any resolution and who shall make and file with
the secretary of the meeting its verified written reports in duplicate of all
votes cast at the meeting. A record of the proceedings of each meeting of
Holders of Securities shall be prepared by the applicable secretary of the
meeting and there shall be attached to said record the original report of the
inspector of votes on any vote by ballot taken thereat and affidavits by one or
more Persons having knowledge of the facts, setting forth a copy of the notice
of the meeting and showing that said notice was given as provided in Section
13.2 and, if applicable, Section 13.4. At least two copies of such record shall
be signed and verified by the affidavits of the permanent chairman and secretary
of the meeting and one copy thereof shall be delivered to the Company and the
other to the Trustee to be preserved by the Trustee, the latter to have attached
thereto the ballots voted at the meeting. Any record so signed and verified
shall be conclusive evidence of the matters therein stated.
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ARTICLE 14
CONVERSION OR EXCHANGE OF SECURITIES
Section 14.1. Applicability of Article. (a) The provisions of
this Article 14 shall be applicable to the Securities of any series which are
convertible or exchangeable into Equity Securities of Allied, and to the
issuance of such Equity Securities upon the conversion or exchange of such
Securities, except as otherwise specified as contemplated by Section 3.1 for the
Securities of such series.
(b) The term "Equity Securities" shall mean all or any of the
following, authorized from time to time: (i) Allied's Common Stock, $.01 par
value (the "Common Stock"), (ii) Allied's Preferred Stock, $.10 par value (the
"Preferred Stock"), and (iii) any other equity securities of Allied.
Section 14.2. Exercise of Conversion or Exchange Privilege.
(a) In order to exercise a conversion or exchange privilege, the Holder of a
Security of a series with such privilege shall surrender such Security,
together, in the case of any Bearer Security, with all unmatured interest
coupons and any matured interest coupons in default appertaining thereto, to the
Company at the office or agency maintained for that purpose pursuant to Section
9.2, accompanied by written notice to Allied and the Company that the Holder
elects to convert or exchange such Security or a specified portion thereof. Such
notice shall also state, if different from the name and address of such Holder,
the name or names (with address) in which the certificate or certificates for
Equity Securities which shall be issuable on such conversion or exchange shall
be issued. Registered Securities surrendered for conversion or exchange shall
(if so required by Allied, the Company or the Trustee) be duly endorsed by or
accompanied by instruments of transfer in forms satisfactory to Allied, the
Company and the Trustee duly executed by the registered Holder or its attorney
duly authorized in writing.
(b) As promptly as practicable after the receipt of such
notice and of any payment required pursuant to a Board Resolution establishing
the terms of any series of Securities and, subject to Section 3.3, set forth, or
determined in the manner provided, in an Officers' Certificate, or established
in one or more indentures supplemental hereto setting forth the terms of such
series of Security, and the surrender of such Security in accordance with such
reasonable regulations as Allied and the Company may prescribe, Allied shall
issue and shall deliver, at the office or agency at which such Security is
surrendered, to such Holder or on its written order, a certificate or
certificates for the number of Equity Securities issuable upon the conversion or
exchange of such Security (or specified portion thereof), in accordance with the
provisions of such Board Resolution, Officers' Certificate or supplemental
indenture, and cash as provided therein in respect of any fractional share of
such Equity Security otherwise issuable upon such conversion or exchange.
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(c) Such conversion or exchange shall be deemed to have been
effected immediately prior to the close of business on the date on which such
notice and such payment, if required, shall have been received in proper order
for conversion or exchange by Allied and the Company and such Security shall
have been surrendered as aforesaid and at such time the rights of the Holder of
such Security as such Security Holder shall cease and the person or persons in
whose name or names any certificate or certificates for Equity Securities of
Allied shall be issuable upon such conversion or exchange shall be deemed to
have become the Holder or Holders of record of the Equity Securities represented
thereby. Except as set forth above and subject to paragraph (d) of Section 3.7,
no payment or adjustment shall be made upon any conversion or exchange on
account of any interest accrued on the Securities surrendered for conversion or
exchange, or on account of any dividends on the Equity Securities of Allied
issued upon such conversion or exchange if the record date for the payment of
such dividends occurs prior to or on the date on which such conversion or
exchange shall be deemed to have been effected.
In the case of any Security which is converted or exchanged in
part only, upon such conversion or exchange the Company shall execute and the
Trustee shall authenticate and deliver to or on the order of the Holder thereof,
at the expense of the Company, a new Security or Securities of the same series,
of authorized denominations, in aggregate principal amount equal to the
unconverted or unexchanged portion of such Security.
Section 14.3. No Fractional Equity Securities. No fractional
Equity Security of Allied shall be issued upon conversions or exchanges of
Securities of any series. If more than one Security shall be surrendered for
conversion or exchange at one time by the same Holder, the number of full shares
of the Equity Security which shall be issuable upon conversion or exchange shall
be computed on the basis of the aggregate principal amount of the Securities (or
specified portions thereof to the extent permitted hereby) so surrendered. If,
except for the provisions of this Section 14.3, any Holder of a Security or
Securities would be entitled to a fractional share of any Equity Security of
Allied upon the conversion or exchange of such Security or Securities, or
specified portions thereof, Allied or the Company shall pay to such Holder an
amount in cash equal to the current market value of such fractional share
computed, (i) if such Equity Security is listed or admitted to unlisted trading
privileges on a national securities exchange, on the basis of the last reported
sale price regular way on the principal exchange where such Equity Security is
listed or admitted, on the last trading day prior to the date of conversion or
exchange upon which such a sale shall have been effected, (ii) if such Equity
Security is not at the time so listed or admitted on a national securities
exchange but is quoted on the National Market System of the National Association
of Securities Dealers, Inc. ("NASDAQ"), on the basis of the average of the last
bid and asked prices of such Equity Security on NASDAQ on the last trading day
prior to the date of conversion
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or exchange, (iii) if such Equity Security is not at the time so listed or
admitted to unlisted trading privileges on a national securities exchange or
quoted on NASDAQ, on the basis of the average of the last bid and asked prices
of such Equity Security in the over-the- counter market, on the last trading day
prior to the date of conversion or exchange, as reported by the National
Quotation Bureau Incorporated or similar organization if the National Quotation
Bureau Incorporated is no longer reporting such information, or (iv) in
accordance with the terms of the supplemental indenture or Board Resolutions
setting the terms of the Securities of such series. For purposes of this
Section, "trading day" shall mean each Monday, Tuesday, Wednesday, Thursday and
Friday other than any day on which the applicable Equity Security is not traded
or quoted on a national securities exchange, or if the applicable Equity
Security is not traded or quoted on a national securities exchange, on NASDAQ or
the principal exchange or market on which the applicable Equity Security is
traded or quoted.
Section 14.4. Adjustment of Conversion or Exchange Price;
Consolidation or Merger. The conversion or exchange price of Securities of any
series that is convertible or exchangeable into an Equity Security of Allied
shall be adjusted for any stock dividends, stock splits, reclassifications,
combinations or similar transactions, and the securities, assets or other
property into or for which such Securities may be converted or exchanged as a
result of any consolidation, merger, combination or similar transaction shall be
determined, in accordance with the terms of the supplemental indenture or Board
Resolutions setting the terms of the Securities of such series.
Whenever the conversion or exchange price is adjusted, Allied
and the Company shall compute the adjusted conversion or exchange price in
accordance with the terms of the applicable Board Resolution or supplemental
indenture and shall prepare an Officers' Certificate setting forth the adjusted
conversion or exchange price and showing in reasonable detail the facts upon
which such adjustment is based. Whenever the securities, assets or other
property into or for which Securities of any series may be converted or
exchanged are changed as a result of any consolidation, merger or similar
transaction, Allied and the Company shall determine the nature and amount of
such securities, assets or other property in accordance with the terms of the
applicable Board Resolution or supplemental indenture and shall prepare an
Officer's Certificate describing such securities, assets or other property and
stating the amount of such securities, assets or other property into or for
which such Securities have become convertible or exchangeable. Such certificates
shall forthwith be filed at each office or agency maintained for the purpose of
conversion or exchange of Securities pursuant to Section 9.2 and, if different,
with the Trustee. Allied and the Company shall forthwith cause a notice setting
forth the adjusted conversion or exchange price or describing such securities,
assets or other property, as applicable, to be mailed, first class postage
prepaid, to each Holder of Registered Securities of such series at its address
appearing on the
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Register and to any conversion or exchange agent other than the Trustee and
shall give notice to Holders of Bearer Securities as provided in Section 1.6.
Section 14.5. Notice of Certain Corporate Actions. If any
series of Securities which are directly or indirectly convertible or
exchangeable for any Equity Securities are Outstanding, in case:
(a) Allied shall declare a dividend (or any other
distribution) on any class of such Equity Securities payable otherwise
than in cash out of its retained earnings; or
(b) Allied shall authorize the granting to the holders of any
class of such Equity Securities of rights, options or warrants to
subscribe for or purchase any shares of capital stock of any class or
of any other rights; or
(c) of any reclassification of any class of such Equity
Securities, or of the sale of all or substantially all of the assets of
Allied; or
(d) of the voluntary or involuntary dissolution, liquidation
or winding up of Allied;
then Allied and the Company shall cause to be filed with the Trustee, and shall
cause to be mailed to all Holders at their addresses as they shall appear in the
Register and shall give notice to Holders of Bearer Securities as provided in
Section 1.6, at least 15 days (or 10 days in any case specified in clause (a) or
(b) above) prior to the applicable record date hereinafter specified, a notice
stating (i) the date on which a record is to be taken for the purpose of such
dividend, distribution, rights, options or warrants, or, if a record is not to
be taken, the date as of which the Holders of such Equity Securities of record
to be entitled to such dividend, distribution, rights, options or warrants are
to be determined, or (ii) the date on which such reclassification,
consolidation, merger, share exchange, sale, dissolution, liquidation or winding
up is expected to become effective, and the date as of which it is expected that
holders of such Equity Securities of record shall be entitled to exchange such
Equity Securities for securities, cash or other property deliverable upon such
reclassification, consolidation, merger, share exchange, sale, dissolution,
liquidation or winding up. If at any time the Trustee shall not be the
conversion or exchange agent, a copy of such notice shall also forthwith be
filed by Allied and the Company with the Trustee.
Section 14.6. Reservation of Equity Securities. Allied shall
at all times reserve and keep available, free from preemptive rights, out of its
authorized but unissued Equity Securities, for the purpose of effecting the
conversion or exchange of Securities, the full number of Equity Securities of
Allied then issuable upon the conversion or
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exchange of all Outstanding Securities of any series that has conversion or
exchange rights.
Section 14.7. Payment of Certain Taxes Upon Conversion or
Exchange. Allied and the Company will pay any and all taxes that may be payable
in respect of the issue or delivery of Allied's Equity Securities on conversion
or exchange of Securities pursuant hereto. Allied and the Company shall not,
however, be required to pay any tax which may be payable in respect of any
transfer involved in the issue and delivery of its Equity Securities in a name
other than that of the Holder of the Security or Securities to be converted or
exchanged, and no such issue or delivery shall be made unless and until the
Person requesting such issue has paid to Allied and the Company the amount of
any such tax, or has established, to the satisfaction of Allied and the Company,
that such tax has been paid.
Section 14.8. Duties of Trustee Regarding Conversion or
Exchange. Neither the Trustee nor any conversion or exchange agent shall at any
time be under any duty or responsibility to any Holder of Securities of any
series that is convertible or exchangeable into Equity Securities of Allied to
determine whether any facts exist which may require any adjustment of the
conversion or exchange price, or with respect to the nature or extent of any
such adjustment when made, or with respect to the method employed, whether
herein or in any supplemental indenture, any resolutions of the Board of
Directors or written instrument executed by one or more officers of Allied and
the Company provided to be employed in making the same. Neither the Trustee nor
any conversion or exchange agent shall be accountable with respect to the
validity or value (or the kind or amount) of any Equity Securities of Allied, or
of any securities or property, which may at any time be issued or delivered upon
the conversion or exchange of any Securities and neither the Trustee nor any
conversion or exchange agent makes any representation with respect thereto.
Subject to the provisions of Section 6.1, neither the Trustee nor any conversion
or exchange agent shall be responsible for any failure of Allied or the Company
to issue, transfer or deliver any of Allied's Equity Securities or stock
certificates or other securities or property upon the surrender of any Security
for the purpose of conversion or exchange or to comply with any of the covenants
of Allied and the Company contained in this Article 14 or in the applicable
supplemental indenture, resolutions of the Board of Directors or written
instrument executed by one or more duly authorized officers of Allied and the
Company.
Section 14.9. Repayment of Certain Funds Upon Conversion or
Exchange. Any funds which at any time have been deposited by the Company or on
its behalf with the Trustee or any Paying Agent for the purpose of paying the
principal of, and premium, if any, and interest, if any, on any of the
Securities (including funds deposited for any sinking fund referred to in
Article 12 hereof) and which shall not be required for such purposes because of
the conversion or exchange of such Securities as
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provided in this Article 14 shall after such conversion or exchange be repaid to
the Company by the Trustee upon the Company's written request by Company
Request.
ARTICLE 15
SUBORDINATION OF SECURITIES AND SENIOR SUBORDINATED GUARANTEES
Section 15.1. Securities Subordinate to Senior Debt. The
Company covenants and agrees, and each Holder of a Security, by his acceptance
thereof, likewise covenants and agrees, that, to the extent and in the manner
hereinafter set forth in this Article (subject to the provisions of Article 4),
(i) the payment of the principal of (and premium, if any) and interest on the
Securities and any other obligations in respect of the Securities (including any
obligation to repurchase Securities) are hereby expressly made subordinate and
subject in right of payment to the prior payment in full of all Senior Debt of
the Company, and (ii) the payment of each Guarantor's obligations in respect of
its Senior Subordinated Guarantee is hereby expressly made subordinate and
subject in right of payment to the prior payment in full of all the obligations
of such Guarantor under all Senior Debt of such Guarantor.
Section 15.2. Payment Over of Proceeds Upon Dissolution, Etc.
In the event of (a) any insolvency or bankruptcy case or proceeding, or any
receivership, liquidation, reorganization or other similar case or proceeding in
connection therewith, relative to the Company or to its creditors, as such, or
to its assets, or (b) any liquidation, dissolution or other winding up of the
Company, whether voluntary or involuntary and whether or not involving
insolvency or bankruptcy, or (c) any assignment for the benefit of creditors or
any other marshaling of assets and liabilities of the Company, then and in any
such event specified in (a), (b) or (c) above (each such event, if any, herein
sometimes referred to as a "Company Proceeding") the holders of all Senior Debt
of the Company shall first be entitled to receive payment in full of all amounts
due or to become due on or in respect of all such Senior Debt, or provision
shall be made for such payment in cash or cash equivalents or otherwise in a
manner satisfactory to the holders of such Senior Debt, before the Holders of
the Securities are entitled to receive any payment or distribution of any kind
or character from the Company, whether in cash, property or securities
(including any payment or distribution which may be payable or deliverable by
reason of the payment of any other Debt of the Company subordinated to the
payment of the Securities on account of principal of (or premium, if any) or
interest on or other obligations in respect of the Securities or on account of
any purchase or other acquisition of Securities by the Company or Allied or any
Subsidiary of the Company (all such payments, distributions, purchases and
acquisitions herein referred to, individually and collectively, as a "Company
Securities Payment"), and to that end the holders of Senior Debt of the Company
shall be entitled to receive, for application to the payment thereof,
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any Company Securities Payment which may be payable or deliverable in respect of
the Securities in any such Company Proceeding.
In the event of (a) any insolvency or bankruptcy case or
proceeding, or any receivership, liquidation, reorganization or other similar
case or proceeding in connection therewith, relative to any Guarantor or to its
creditors, as such, or to its assets, or (b) any liquidation, dissolution or
other winding up of any Guarantor, whether voluntary or involuntary and whether
or not involving insolvency or bankruptcy, or (c) any assignment for the benefit
of creditors or any other marshaling of assets and liabilities of any Guarantor,
then and in any such event specified in (a), (b) or (c) above (each such event,
if any, herein sometimes referred to as a "Guarantor Proceeding"; the Company
Proceeding and the Guarantor Proceeding each may be referred to as a
"Proceeding") the holders of all Senior Debt of such Guarantor shall first be
entitled to receive payment in full of all amounts due or to become due on or in
respect of all such Senior Debt, or provision shall be made for such payment in
cash or cash equivalents or otherwise in a manner satisfactory to the holders of
such Senior Debt, before the Holders of the Securities are entitled to receive
any payment or distribution of any kind or character from such Guarantor,
whether in cash, property or securities (including any payment or distribution
which may be payable or deliverable by reason of the payment of any other Debt
of such Guarantor subordinated to the payment of its Senior Subordinated
Guarantee by such Guarantor) on account of its Senior Subordinated Guarantee
(all such payments and distributions herein referred to, individually and
collectively, as a "Guarantor Securities Payment"; any of the Company Securities
Payment and the Guarantor Securities Payment each may be referred to as a
"Securities Payment"), and to that end the holders of Senior Debt of such
Guarantor shall be entitled to receive, for application to the payment thereof,
any Guarantor Securities Payment which may be payable or deliverable in respect
of the Senior Subordinated Guarantee by such Guarantor in any such Guarantor
Proceeding.
In the event that, notwithstanding the foregoing provisions of
this Section, the Trustee or the Holder of any Security shall have received any
Securities Payment before all Senior Debt the Company or the Guarantor, as
applicable, is paid in full or payment thereof provided for in cash or cash
equivalents or otherwise in a manner satisfactory to the holders of such Senior
Debt, then and in such event such Securities Payment shall be paid over or
delivered forthwith to the holders of Senior Debt for application to the payment
of such Senior Debt remaining unpaid, to the extent necessary to pay such Senior
Debt in full, after giving effect to any concurrent payment or distribution to
or for the holders of such Senior Debt.
The consolidation of the Company or any Guarantor with, or the
merger of the Company or any Guarantor with, another Person or the liquidation
or dissolution of the Company or any Guarantor following the conveyance or
transfer of all or
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substantially all of its properties and assets as an entirety to another Person
upon the terms and conditions set forth in Article 7 shall not be deemed a
Proceeding for the purposes of this Section if the Person formed by such
consolidation or with which the Company or any Guarantor merges or the Person
which acquires by conveyance or transfer such properties and assets as an
entirety, as the case may be, shall, as a part of such consolidation, merger,
conveyance or transfer, comply with the conditions set forth in Article 7.
Section 15.3. No Payment When Senior Debt in Default. In the
event that any Company Senior Payment Default (as defined below) shall have
occurred and be continuing, then no Company Securities Payment shall be made
unless and until such Company Senior Payment Default shall have been cured or
waived or shall have ceased to exist or all amounts then due and payable in
respect of Senior Debt of the Company shall have been paid in full, or provision
shall have been made for such payment in cash or otherwise in a manner
satisfactory to the holders of such Senior Debt. "Company Senior Payment
Default" means (i) any default in the payment of principal of (or premium, if
any) or interest on any Senior Debt of the Company and (ii) any event of default
with respect to Senior Debt of the Company which has resulted in such Senior
Debt becoming or being declared due and payable prior to the date on which it
would otherwise have become due and payable.
In the event that any Guarantor Senior Payment Default (as
defined below) with respect to any Guarantor shall have occurred and be
continuing, then no Guarantor Securities Payment shall be made by such Guarantor
unless and until such Guarantor Senior Payment Default shall have been cured or
waived or shall have ceased to exist or all amounts then due and payable in
respect of the Senior Debt of such Guarantor shall have been paid in full, or
provision shall have been made for such payment in cash or otherwise in a manner
satisfactory to the holders of Senior Debt of such Guarantor. "Guarantor Senior
Payment Default" means, with respect to any Guarantor, (i) any default in the
payment of principal of (or premium, if any) or interest on any Senior Debt of
such Guarantor and (ii) any event of default with respect to Senior Debt of such
Guarantor which has resulted in such Senior Debt becoming or being declared due
and payable prior to the date on which it would otherwise have become due and
payable. Any Company Senior Payment Default or Guarantor Senior Payment Default
may be referred to herein as a "Senior Payment Default".
In the event that any Company Senior Nonmonetary Default (as
defined below) shall have occurred and be continuing, then, upon the receipt by
the Company and the Trustee of written notice of such Company Senior Nonmonetary
Default from the Agent Banks under the Credit Agreement (or if such Credit
Agreement has been terminated, from any holder of Senior Debt of the Company
with a principal amount in excess of $50,000,000), no Company Securities Payment
shall be made during the period
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(the "Company Payment Blockage Period") commencing on the date of such receipt
of such written notice and ending on the earlier of (i) the date on which such
Company Senior Nonmonetary Default shall have been cured or waived or shall have
ceased to exist and any acceleration of Senior Debt of the Company shall have
been rescinded or annulled or the Senior Debt of the Company to which such
Company Senior Nonmonetary Default relates shall have been discharged or (ii)
the 179th day after the date of such receipt of such written notice. No more
than one Company Payment Blockage Period may be commenced with respect to the
Securities during any consecutive 360-day period. For all purposes of this
paragraph, no Senior Nonmonetary Default that existed or was continuing on the
date of commencement of any Company Payment Blockage Period shall be, or be
made, the basis for the commencement of a subsequent Company Payment Blockage
Period whether or not within a period of 360 consecutive days by holders of
Senior Debt of the Company or their representatives unless such Company Senior
Nonmonetary Default shall have been cured for a period of not less than 90
consecutive days. "Company Senior Nonmonetary Default" means the occurrence or
existence and continuance of any event of default, or of any event which, after
notice or lapse of time (or both), would become an event of default, under the
terms of any instrument pursuant to which any Senior Debt of the Company is
outstanding, permitting (after notice or lapse of time or both) one or more
holders of such Senior Debt (or a trustee or agent on behalf of the holders
thereof) to declare such Senior Debt due and payable prior to the date on which
it would otherwise become due and payable, other than a Company Senior Payment
Default.
In the event that a Guarantor Senior Nonmonetary Default (as
defined below) with respect to any Guarantor shall have occurred and be
continuing, then, upon the receipt by such Guarantor and the Trustee of written
notice of such Guarantor Senior Nonmonetary Default from a holder of Senior Debt
of such Guarantor with a principal amount in excess of $50 million, no Guarantor
Securities Payment shall be made by such Guarantor during the period (a
"Guarantor Payment Blockage Period") commencing on the date of such receipt of
such written notice and ending on the earlier of (i) the date on which such
Guarantor Senior Nonmonetary Default shall have been cured or waived or shall
have ceased to exist and any acceleration of Senior Debt of such Guarantor shall
have been rescinded or annulled or the Senior Debt of such Guarantor to which
such Guarantor Senior Nonmonetary Default relates shall have been discharged or
(ii) the 179th day after the date of such receipt of such written notice. No
more than one Guarantor Payment Blockage Period may be commenced with respect to
the Securities during any 360-day period. For all purposes of this paragraph, no
Guarantor Senior Nonmonetary Default with respect to a Guarantor that existed or
was continuing on the date of commencement of any Guarantor Payment Blockage
Period with respect to such Guarantor shall be, or be made, the basis for the
commencement of a subsequent Guarantor Payment Blockage Period with respect to
such Guarantor whether or not within
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a period of 360 consecutive days by holders of Senior Debt of such Guarantor or
their representatives unless such Guarantor Senior Nonmonetary Default shall
have been cured for a period of not less than 90 consecutive days. A "Guarantor
Senior Nonmonetary Default" means, with respect to any Guarantor, the occurrence
or existence and continuance of any event of default, or of any event which,
after notice or lapse of time (or both), would become an event of default, under
the terms of any instrument pursuant to which any Senior Debt of such Guarantor
is outstanding, permitting (after notice or lapse of time or both) one or more
holders of such Senior Debt (or a trustee or agent on behalf of the holders
thereof) to declare such Senior Debt due and payable prior to the date on which
it would otherwise become due and payable, other than a Guarantor Senior Payment
Default. Any Company Senior Nonmonetary Default or Guarantor Senior Nonmonetary
Default may be referred to herein as a "Senior Nonmonetary Default".
In the event that, notwithstanding the foregoing, the Company
or any Guarantor shall make any Company Securities Payment or Guarantor
Securities Payment, as the case may be, to the Trustee or any Holder prohibited
by the foregoing provisions of this Section, then and in such event such
Securities Payment shall be paid over and delivered forthwith to the holders of
the Senior Debt of the Company or the Guarantor, as the case may be.
The provisions of this Section shall not apply to any
Securities Payment with respect to which Section 15.2 would be applicable.
Section 15.4. Certain Payments Permitted. Nothing contained in
this Article or elsewhere in this Indenture or in any of the Securities or the
Senior Subordinated Guarantees endorsed thereon shall prevent the Company or any
Guarantor, at any time except during the pendency of any Proceeding referred to
in Section 15.2 or under the conditions described in Section 15.3, from making
Securities Payments.
Section 15.5. Subrogation to Rights of Holders of Senior Debt.
Subject to the payment in full in cash of all amounts due or to become due on or
in respect of Senior Debt of the Company or a Guarantor, as the case may be, or
the provision for such payment in cash or cash equivalents or otherwise in a
manner satisfactory to the holders of such Senior Debt, the Holders of the
Securities shall be subrogated to the rights of the holders of such Senior Debt
to receive payments and distributions of cash, property and securities
applicable to such Senior Debt until the principal of (and premium, if any) and
interest on the Securities or the obligation under such Guarantor's Senior
Subordinated Guarantee, as the case may be, shall be paid in full. For purposes
of such subrogation, no payments or distributions to the holders of the Senior
Debt of the Company or a Guarantor of any cash, property or securities to which
the Holders of the Securities or the Trustee would be entitled except for the
provisions of this Article, and no payments over pursuant to the provisions of
this Article to the holders of Senior Debt of the Company or such Guarantor, as
the case may be, by Holders of the Securities or the Trustee, shall, as among
the Company or
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such Guarantor, as the case may be, its creditors other than holders of Senior
Debt and the Holders of the Securities, be deemed to be a payment or
distribution by the Company or such Guarantor, as applicable, to or on account
of the Senior Debt of the Company or such Guarantor, as the case may be.
Section 15.6. Provisions Solely to Define Relative Rights. The
provisions of this Article are and are intended solely for the purpose of
defining the relative rights of the Holders on the one hand and the holders of
Senior Debt on the other hand. Nothing contained in this Article or elsewhere in
this Indenture or in the Securities is intended to or shall (a) impair, as among
the Company or any Guarantor, as applicable, its creditors other than holders of
Senior Debt and the Holders of the Securities with the Guarantees endorsed
thereon, the obligation of the Company or any Guarantor, as applicable, which is
absolute and unconditional (and which, subject to the rights under this Article
of the holders of Senior Debt, is intended to rank equally with all other
general obligations of the Company), to pay to the Holders of the Securities the
principal of (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 and creditors of the Company or any Guarantor,
as applicable, other than the holders of Senior Debt; or (c) prevent the Trustee
or the Holder of any Security from exercising all remedies otherwise permitted
by applicable law upon default under this Indenture, subject to the rights, if
any, under this Article of the holders of Senior Debt to receive cash, property
and securities otherwise payable or deliverable to the Trustee or such Holder.
Section 15.7. Trustee to Effectuate Subordination. Each Holder
of a Security by his acceptance thereof authorizes and directs the Trustee on
his behalf to take such action as may be necessary or appropriate to effectuate
the subordination provided in this Article and appoints the Trustee his
attorney-in-fact for any and all such purposes.
Section 15.8. No Waiver of Subordination Provisions. No right
of any present or future holder of any Senior Debt to enforce subordination as
herein provided shall at any time in any way be prejudiced or impaired by any
act or failure to act on the part of the Company or any Guarantor or by any act
or failure to act, in good faith, by any such holder, or by any noncompliance by
the Company or any Guarantor with the terms, provisions and 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
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provided in this Article or the obligations hereunder of the Holders of the
Securities to the holders of Senior Debt, do any one or more of the following:
(i) change the manner, place or terms of payment or extend the time of payment
of, or renew or alter or increase, Senior Debt, or otherwise amend or supplement
in any manner Senior Debt or any instrument evidencing the same or any agreement
under which Senior Debt is outstanding; (ii) sell, exchange, release or
otherwise deal with any property pledged, mortgaged or otherwise securing Senior
Debt; (iii) release any Person liable in any manner for the collection of Senior
Debt; and (iv) exercise or refrain from exercising any rights against the
Company, the Guarantors and any other Person.
Section 15.9. Notice to Trustee. The Company shall give prompt
written notice to the Trustee of any fact known to the Company which would
prohibit the making of any payment to or by the Trustee in respect of the
Securities or any of the Senior Subordinated Guarantees. Notwithstanding the
provisions of this Article or any other provision of this Indenture, the Trustee
shall not be charged with knowledge of the existence of any facts which would
prohibit the making of any payment to or by the Trustee in respect of the
Securities or any of the Senior Subordinated Guarantees, unless and until the
Trustee shall have received written notice thereof from the Company or a holder
of Senior Debt or from any trustee therefor; and, prior to the receipt of any
such written notice, the Trustee, subject to the provisions of Section 6.1,
shall be entitled in all respects to assume that no such facts exist, provided
that nothing in this Section 15.9 shall impair the subordination provisions of
this Article Fifteen.
Subject to the provisions of Section 6.1, the Trustee shall be
entitled to rely on the delivery to it of a written notice by a Person
representing himself to be a holder of Senior Debt (or a trustee, representative
or agent therefor) to establish that such notice has been given by a holder of
Senior Debt (or a trustee, representative or agent therefor). In the event that
the Trustee determines in good faith that further evidence is required with
respect to the right of any Person as a holder of Senior Debt to participate in
any payment or distribution pursuant to this Article, the Trustee may request
such Person to furnish evidence to the reasonable satisfaction of the Trustee as
to the amount of Senior Debt held by such Person, the extent to which such
Person is entitled to participate in such payment or distribution and any other
facts pertinent to the rights of such Person under this Article, and if such
evidence is not furnished, the Trustee may defer any payment to such Person
pending judicial determination as to the right of such Person to receive such
payment.
Section 15.10. Reliance on Judicial Order or Certificate of
Liquidating Agent. Upon any payment or distribution of assets or securities of
the Company or any Guarantor referred to in this Article, the Trustee, subject
to the provisions of Section 6.1, and the Holders of the Securities shall be
entitled to rely upon any order or decree entered by any court of competent
jurisdiction in which such proceeding is pending, or a
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certificate of the trustee in bankruptcy, receiver, liquidating trustee,
custodian, assignee for the benefit of creditors, agent or other Person making
such payment or distribution, delivered to the Trustee or to the Holders of
Securities, for the purpose of ascertaining the Persons entitled to participate
in such payment or distribution, the holders of the Senior Debt and other
indebtedness of the Company or any Guarantor, as the case may be, the amount
thereof or payable thereon, the amount or amounts paid or distributed thereon
and all other facts pertinent thereto or to this Article.
Section 15.11. Trustee Not Fiduciary for Holders of Senior
Debt. The Trustee shall not be deemed to owe any fiduciary duty to the holders
of Senior Debt and shall not be liable to any such holders if it shall in good
faith mistakenly pay over or distribute to Holders of Securities or to the
Company or any Guarantor or to any other Person cash, property or securities to
which any holders of Senior Debt shall be entitled by virtue of this Article or
otherwise.
Section 15.12. Rights of Trustee as Holder of Senior Debt;
Preservation of Trustee's Rights. The Trustee in its individual capacity shall
be entitled to all the rights set forth in this Article with respect to any
Senior Debt which may at any time be held by it, to the same extent as any other
holder of Senior Debt, and nothing in this Indenture shall deprive the Trustee
of any of its rights as such holder.
Nothing in this Article shall apply to claims of, or payments
to, the Trustee under or pursuant to Section 6.7.
Section 15.13. Article Applicable to Paying Agents. In case at
any time any Paying Agent other than the Trustee shall have been appointed by
the Company and be then acting hereunder, the term "Trustee" as used in this
Article shall in such case (unless the context otherwise requires) be construed
as extending to and including such Paying Agent within its meaning as fully for
all intents and purposes as if such Paying Agent were named in this Article in
addition to or in place of the Trustee; provided, however, that Section 15.12
shall not apply to the Company, any Guarantor or any Affiliate of the Company or
of any Guarantor if it or such Affiliate acts as Paying Agent.
Section 15.14. Defeasance of this Article 15. The
subordination of the Securities and the Senior Subordinated Guarantees provided
by this Article 15 is expressly made subject to the provisions for defeasance or
covenant defeasance in Article 4 and, anything herein to the contrary
notwithstanding, upon the effectiveness of any such defeasance or covenant
defeasance, the Securities then Outstanding and the Senior Subordinated
Guarantees relating thereto shall thereupon cease to be subordinated pursuant to
this Article 15.
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ARTICLE 16
SENIOR SUBORDINATED GUARANTEE
Section 16.1. Senior Subordinated Guarantee. Each of Allied
and the Subsidiary Guarantors hereby jointly and severally unconditionally
guarantees on a senior subordinated basis to each Holder of a Security
authenticated and delivered by the Trustee, and to the Trustee on behalf of such
Holder, the due and punctual payment of the principal of (and premium, if any)
and interest on such Security when and as the same shall become due and payable,
whether at the Stated Maturity or by acceleration, call for redemption, purchase
or otherwise, in accordance with the terms of such Security and of this
Indenture. In case of the failure of the Company punctually to make any such
payment, each of Allied and the Subsidiary Guarantors hereby jointly and
severally agrees to cause such payment to be made punctually when and as the
same shall become due and payable, whether at the Stated Maturity or by
acceleration, call for redemption, purchase or otherwise, and as if such payment
were made by the Company.
Each of the Guarantors hereby jointly and severally agrees
that its obligations hereunder shall be unconditional, irrespective of the
validity, regularity or enforceability of any Security or this Indenture, the
absence of any action to enforce the same, any creation, exchange, release or
nonperfection of any Lien on any collateral for, or any release or amendment or
waiver of any term of any other Guarantee of, or any consent to departure from
any requirement of any other Guarantee, of all or any of the Securities, the
election by the Trustee or any of the Holders in any proceeding under Chapter 11
of Title 11 of the United States Code (the "Bankruptcy Code") of the application
of Section 1111(b)(2) of the Bankruptcy Code, any borrowing or grant of a
security interest by the Company, as debtor in possession, under Section 364 of
the Bankruptcy Code, the disallowance, under Section 502 of the Bankruptcy Code,
of all or any portion of the claims of the Trustee or any of the Holders for
payment of any of the Securities, any waiver or consent by the Holder of any
Security or by the Trustee with respect to any provisions thereof or of this
Indenture, the obtaining of any judgment against the Company (or, with respect
to the Allied Subsidiary
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Guarantee, any Subsidiary Guarantees) or any action to enforce the same or any
other circumstances which might otherwise constitute a legal or equitable
discharge or defense of a guarantor. Each of the Guarantors hereby waives the
benefits of diligence, presentment, demand of payment, any requirement that the
Trustee or any of the Holders protect, secure, perfect or insure any security
interest in or other Lien on any property subject thereto or exhaust any right
or take any action against the Company (or, with respect to the Allied
Subsidiary Guarantee, any Subsidiary Guarantees) or any other Person or any
collateral, filing of claims with a court in the event of insolvency or
bankruptcy of the Company (or, with respect to the Allied Subsidiary Guarantee,
any Subsidiary Guarantees), any right to require a proceeding first against the
Company (or, with respect to the Allied Subsidiary Guarantee, any Subsidiary
Guarantees), protest or notice with respect to any Security (or, with respect to
the Allied Subsidiary Guarantee, any Subsidiary Guarantees) 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 (or,
with respect to the Allied Subsidiary Guarantee, any Subsidiary Guarantees)
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 (or, with respect to the Allied Subsidiary Guarantee,
any Subsidiary Guarantees), whether at its Stated Maturity or by acceleration,
call for redemption, purchase or otherwise, legal proceedings may be instituted
by the Trustee on behalf of, or by, the Holder of such Security (or, with
respect to the Allied Subsidiary Guarantee, any Subsidiary Guarantees), subject
to the terms and conditions set forth in this Indenture, directly against each
or any of the Guarantors to enforce its Senior Subordinated Guarantee without
first proceeding against the Company. Each Guarantor agrees that if, after the
occurrence and during the continuance of an Event of Default, the Trustee or any
of the Holders are prevented by applicable law from exercising their respective
rights to accelerate the maturity of the Securities (or, with respect to the
Allied Subsidiary Guarantee, any Subsidiary Guarantees), to collect interest on
the Securities (or, with respect to the Allied Subsidiary Guarantee, any
Subsidiary Guarantees) or to enforce or exercise any other right or remedy with
respect to the Securities (or, with respect to the Allied Subsidiary Guarantee,
any Subsidiary Guarantees), or the Trustee or the Holders are prevented from
taking any action to realize on any collateral, such Guarantor agrees to pay to
the Trustee for the account of the Holders, upon demand therefor, the amount
that would otherwise have been due and payable had such rights and remedies been
permitted to be exercised by the Trustee or any of the Holders.
No provision of any Senior 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 (or, with respect to the Allied Subsidiary
Guarantee, any Subsidiary Guarantor) in respect of any amounts paid by such
Guarantor on account of such Security (or, with respect to the Allied Subsidiary
Guarantor, the Subsidiary Guarantees) pursuant to the provisions of its Senior
Subordinated Guarantee or this Indenture; Allied shall be subrogated to all
rights of the Holders of the Securities with respect to which the allied
subsidiary Guarantor is issued against the Subsidiary Guarantors in respect of
amounts paid by it on behalf of the Subsidiary Guarantees pursuant to the
provisions of the Allied
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<PAGE> 115
Subsidiary 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 Subsidiary Guarantee, any
Subsidiary Guarantor) for liquidation or reorganization, should the Company (or,
with respect to the Allied Subsidiary Guarantee, any Subsidiary Guarantor)
become insolvent or make an assignment for the benefit of creditors or should a
receiver or trustee be appointed for all or any significant part of the assets
of the Company 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 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
officer, director, employer or incorporator.
To the extent that any Subsidiary Guarantor shall be required
to pay any amounts on account of the Securities pursuant to its Senior
Subordinated Guarantee in excess of the greater of (i) the amount of the
economic benefit actually received by such Subsidiary Guarantor from the
issuance of the Securities and (ii) an amount calculated as the product of (A)
the aggregate amount payable by the Subsidiary Guarantors on account of the
Securities pursuant to their Senior Subordinated Guarantees times (B) the
proportion (expressed as a fraction) that such Subsidiary Guarantor's net worth
at the date enforcement of its Senior Subordinated Guarantee is sought bears to
the aggregate net 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.
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<PAGE> 116
The Guarantors shall have the right to seek contribution from
any nonpaying Guarantor so long as the exercise or such right does not impair
the rights of the Holders under any Senior Subordinated Guarantee.
Section 16.2. Execution and Delivery of Senior Subordinated
Guarantees. The Senior Subordinated Guarantees to be endorsed on the Securities
shall include the terms of the Senior Subordinated Guarantee set forth in
Section 16.1 and any other terms that may be set forth in the form established
pursuant to Section 2.3. Each of the Guarantors hereby agrees to execute its
Senior Subordinated Guarantee, in a form established pursuant to Section 2.3, to
be endorsed on each Security authenticated and delivered by the Trustee.
The Senior Subordinated Guarantee shall be executed on behalf
of each respective Guarantor by any one of such Guarantor's Chairman of the
Board, Vice Chairman of the Board, President or Vice Presidents, attested by its
Secretary or Assistant Secretary. The signature of any or all of these officers
on the Senior Subordinated Guarantee may be manual or facsimile and may be
pursuant to a duly executed power of attorney.
A Senior Subordinated Guarantee bearing the manual or
facsimile signatures of individuals who were at any time the proper officers of
a Guarantor shall bind such Guarantor, notwithstanding that such individuals or
any of them have ceased to hold such offices prior to the authentication and
delivery of the Security on which such Senior Subordinated Guarantee is endorsed
or did not hold such offices at the date of such Senior Subordinated Guarantee.
The delivery of any Security by the Trustee, after the
authentication thereof hereunder, shall constitute due delivery of the Senior
Subordinated Guarantee endorsed thereon on behalf of the Guarantors. Each of the
Guarantors hereby jointly and severally agrees that its Senior Subordinated
Guarantee set forth in Section 16.1 shall remain in full force and effect
notwithstanding any failure to endorse a Senior Subordinated Guarantee on any
Security.
Section 16.3. Subsidiary Guarantors May Consolidate, Etc., on
Certain Terms. Nothing contained in this Indenture or in any of the Securities
shall prevent any consolidation or merger of a Subsidiary Guarantor with or into
the Company or a Guarantor or shall prevent any sale or conveyance of the
property of a Subsidiary Guarantor as an entirety or substantially as an
entirety to the Company or a Guarantor.
Section 16.4. Release of Guarantors. (a) Concurrently with any
consolidation or merger of a Subsidiary Guarantor or any sale or conveyance of
the property of a Subsidiary Guarantor as an entirety or substantially as an
entirety, in each
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<PAGE> 117
case as permitted by Section 16.3, and upon delivery by the Company to the
Trustee of an Officers' Certificate and an Opinion of Counsel to the effect that
such consolidation, merger, sale or conveyance was made in accordance with
Section 16.3, the Trustee shall execute any documents reasonably required in
order to evidence the release of such Subsidiary Guarantor from its obligations
under its Subsidiary Guarantees endorsed on the Securities and under this
Article 16. Any Subsidiary Guarantor not released from its obligations under its
Subsidiary Guarantees endorsed on the Securities and under this Article 16 shall
remain liable for the full amount of principal of (and premium, if any) and
interest on the Securities and for the other obligations of a Subsidiary
Guarantor under its Subsidiary Guarantees endorsed on the Securities and under
this Article 16.
(b) Concurrently with the defeasance of the Securities under
Section 4.4 or the covenant defeasance of the Securities under Section 4.5, the
Guarantors shall be released from all of their obligations under their Senior
Subordinated Guarantees endorsed on the Securities and under this Article 16.
(c) Upon the consummation of any transaction (whether
involving a sale or other disposition of securities, a merger or otherwise)
whereby any Subsidiary Guarantor ceases to be a Restricted Subsidiary and which
transaction is otherwise in compliance with the provisions of this Indenture,
such Subsidiary Guarantor shall automatically be released from all obligations
under its Subsidiary Guarantees endorsed on the Securities and under this
Article 16 and the surviving entity in such transaction or the entity to which
such Subsidiary Guarantor is conveyed shall not (unless such transaction
otherwise results in the sale, transfer or disposition of the properties and
assets of the Company substantially as an entirety) be required to assume the
obligations of such Subsidiary Guarantor.
Section 16.5. Additional Guarantors. The Company shall cause
each Person that becomes a Restricted Subsidiary after the date of this
Indenture, upon becoming a Restricted Subsidiary, to become a Subsidiary
Guarantor with respect to the Securities. Any such Person shall become a
Subsidiary Guarantor by executing and delivering to the Trustee (a) a
supplemental indenture, in form and substance satisfactory to the Trustee, which
subjects such Person to the provisions of this Indenture as a Subsidiary
Guarantor and (b) an Opinion of Counsel to the effect that such supplemental
indenture has been duly authorized and executed by such Person and constitutes
the legal, valid, binding and enforceable obligation of such Person (subject to
such customary exceptions concerning creditors' rights and equitable principles
as may be acceptable to the Trustee in its discretion).
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<PAGE> 118
ARTICLE 17
JURISDICTION AND CONSENT TO SERVICE OF PROCESS
Section 7.1. Jurisdiction and Consent to Service of Process.
(a) Each of the Company and the Guarantors hereby irrevocably and
unconditionally submits, for itself and its property, to the nonexclusive
jurisdiction of any New York State court or Federal court of the United States
of America sitting in New York City, and any appellate court from any thereof,
in any action or proceeding arising out of or relating to the Securities, the
Senior Subordinated Guarantees, this Indenture, or for recognition or
enforcement of any judgment, and each of such Persons hereby irrevocably and
unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such New York State or, to the extent
permitted by law, in such Federal court. Each of the Company and the Guarantors
agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by law. Nothing in this Article 17 shall affect any
right that any Holder or the Trustee may otherwise have to bring any action or
proceeding relating to the Securities, the Senior Subordinated Guarantees, this
Indenture Agreement against the Company, any Guarantor or their respective
properties in the courts of any jurisdiction.
(b) Each of the Company and the Guarantors hereby irrevocably
and unconditionally waives, to the fullest extent it may legally and effectively
do so, any objection which it may now or hereafter have to the laying of venue
of any suit, action or proceeding arising out of or relating to the Securities,
the Senior Subordinated Guarantees, this Indenture in any New York State or
Federal court. Each of the Company and the Guarantors hereby irrevocably waives,
to the fullest extent permitted by law, the defense of an inconvenient forum to
the maintenance of such action or proceeding in any such court.
(c) Each of the Company and the Guarantors irrevocably
consents to service of process in the manner provided for notices in Section 15.
Nothing in this Agreement will affect the right of any Holder or the Trustee to
serve process in any other manner permitted by law.
--------------------
This instrument may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
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<PAGE> 119
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.
ALLIED WASTE NORTH AMERICA, INC.
By: ____________________________
Name:
Title:
Attest:
_____________________________
Name:
Title:
ALLIED WASTE INDUSTRIES, INC.
as Guarantor of the Securities and as
Guarantor of the obligations of the
Subsidiary Guarantors under the
Subsidiary Guarantees
By: ___________________________
Name:
Title:
Attest:
_____________________________
Name:
Title:
Each of the Subsidiary Guarantors listed
on Schedule I hereto, as Guarantor
By*:___________________________
Name:
Title:
Attest*:
_____________________________
Name:
Title:
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<PAGE> 120
FIRST TRUST NATIONAL ASSOCIATION
By: ___________________________
Name:
Title:
Attest:
_____________________________
Name:
Title:
*Signing as duly authorized officer for each such Subsidiary
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<PAGE> 1
[FRIED, FRANK, HARRIS, SHRIVER & JACOBSON LETTERHEAD]
EXHIBIT 5.1
212-859-8000
August 8, 1997 (FAX: 212-859-4000)
Allied Waste Industries, Inc.
Allied Waste North America, Inc.
Subsidiary Guarantors Listed on Schedule A hereto
15880 North Greenway-Hayden Loop, Suite 100
Scottsdale, Arizona 85260
Ladies and Gentlemen:
We are acting as special counsel to Allied Waste Industries, Inc., a
Delaware corporation (the "Company"), its wholly-owned subsidiary, Allied Waste
North America, Inc., a Delaware corporation ("AWNA"), and each of the
subsidiaries of AWNA listed on Schedule A hereto (the "Subsidiary Guarantors")
in connection with the Registration Statement on Form S-3 (the "Registration
Statement") under the Securities Act of 1933, as amended (the "Securities Act"),
with respect to the contemplated issuance by the Company and/or AWNA from time
to time of up to U.S. $800,000,000 aggregate public offering price or the
equivalent thereof in one or more foreign currencies, currency units or
composite currencies of (i) shares of the Company's Common Stock, par value $.01
per share (the "Common Stock"), (ii) shares of the Company's Preferred Stock,
par value $.10 per share (the "Preferred Stock"), (iii) senior debt securities
of the Company (the "Senior Company Debt Securities"), to be issued pursuant to
an indenture (the "Senior Company Indenture") to be entered into between the
Company and First Trust National Association, as trustee (the "Senior Company
Trustee"), (iv) senior subordinated debt securities of the Company (the "Senior
Subordinated Company Debt Securities" and, together with the Senior Company Debt
Securities, the "Company Debt Securities") to be issued pursuant to an indenture
(the "Senior Subordinated Company Indenture" and, together with the Senior
Company Indenture, the "Company Indentures") to be entered into between the
Company and First Trust National Association, as trustee (the "Senior
Subordinated Company Trustee" and, together with the Senior Company Trustee, the
"Company Trustees"), (v) warrants to purchase Common Stock, Preferred Stock or
Company Debt Securities as shall be designated by the Company at the time of the
offering
<PAGE> 2
Allied Waste Industries, Inc. - 2 - August 8, 1997
Allied Waste North America, Inc.
Subsidiary Guarantors Listed
on Schedule A hereto
(the "Warrants"), (vi) senior debt securities of AWNA (the "Senior AWNA Debt
Securities"), which shall be unconditionally guaranteed, jointly and severally,
on a senior basis, as to the payment of principal, premium, if any, and interest
by the Company and the Subsidiary Guarantors (the "Senior Guarantees"), to be
issued pursuant to an indenture (the "Senior AWNA Indenture") to be entered into
by and among AWNA, the Company, the Subsidiary Guarantors and First Trust
National Association, as trustee (the "Senior AWNA Trustee"), (vii) senior
subordinated debt securities of AWNA (the "Senior Subordinated AWNA Debt
Securities" and, together with the Senior AWNA Debt Securities, the "AWNA Debt
Securities") which shall be unconditionally guaranteed, jointly and severally,
on a senior subordinated basis, as to payment of principal, premium, if any, and
interest by the Company and the Subsidiary Guarantors (the "Senior Subordinated
Guarantees"), to be issued pursuant to an Indenture (the "Senior Subordinated
AWNA Indenture" and, together with the Senior AWNA Indenture, the "AWNA
Indentures"), to be entered into by AWNA, the Company, the Subsidiary Guarantors
and First Trust National Association, as trustee (the "Senior Subordinated AWNA
Trustee" and, together with the Senior AWNA Trustee, the "AWNA Trustees"). The
Subsidiary Guarantors' obligations under the Senior Guarantees and the Senior
Subordinated Guarantees will be unconditionally guaranteed on a senior and
senior subordinated basis, respectively, by the Company (the"Allied Senior
Guarantee" and "Allied Senior Subordinated Guarantee," respectively, and,
together with the Senior Guarantees and the Senior Subordinated Guarantees, the
"Guarantees"). The Company Debt Securities and the AWNA Debt Securities are
referred to collectively herein as the "Debt Securities" and the Company
Indentures and the AWNA Indentures are referred to collectively herein as the
"Indentures." Capitalized terms used herein have the meanings set forth in the
Registration Statement, unless otherwise defined herein.
We have examined the originals, or certified, conformed or
reproduction copies, of all such records, agreements, instruments and documents
as we have deemed relevant or necessary as the basis for the opinions
hereinafter expressed. In all such examinations, we have assumed the genuineness
of all signatures, the authenticity of all original or certified copies and the
conformity to original or certified copies of all copies submitted to us as
conformed or reproduction copies. We also have assumed, with respect to all
parties to agreements or instruments relevant hereto other than the Company,
AWNA and the Subsidiary Guarantors, that such parties had the requisite power
and authority
<PAGE> 3
Allied Waste Industries, Inc. - 3 - August 8, 1997
Allied Waste North America, Inc.
Subsidiary Guarantors Listed
on Schedule A hereto
(corporate or otherwise) to execute, deliver and perform such agreements or
instruments, that such agreements or instruments have been duly authorized by
all requisite action (corporate or otherwise), executed and delivered by such
parties and that such agreements or instruments are the valid, binding and
enforceable obligations of such parties. As to various questions of fact
relevant to such opinions, we have relied upon, and have assumed the accuracy
of, certificates and oral or written statements and other information of or from
public officials, officers or representatives of the Company, AWNA and the
Subsidiary Guarantors, and others.
Based upon the foregoing and subject to the limitations set forth
herein, we are of the opinion that:
1. The shares of Common Stock, when the terms of the issuance and
sale thereof have been duly approved by the Board of Directors of the Company in
conformity with the Company's Amended and Restated Certificate of Incorporation
(the "Certificate of Incorporation"), and when issued and delivered against
payment therefor for an amount in excess of the par value thereof, and, if
issued upon the exercise or conversion of any Warrants or Debt Securities,
issued and delivered as contemplated by the terms thereof and of the Warrant
Agreement or the applicable Indenture, respectively, relating thereto, will be
validly issued, fully paid and non-assessable.
2. Upon the fixing of the designations, relative rights, preferences
and limitations of any series of Preferred Stock by the Board of Directors of
the Company and proper and valid filing with the Office of the Secretary of
State of the State of Delaware, Division of Corporations, of a Certificate of
Designations setting forth the powers, designations, preferences and relative,
participating, optional or other rights, if any, or the qualifications,
limitations or restrictions thereof, if any, with respect to such series of
Preferred Stock, all in accordance with Section 151 of the General Corporation
Law of the State of Delaware and in conformity with the Certificate of
Incorporation and upon the approval by the Board of Directors of the Company of
the specific terms of the issuance, all necessary corporate action on the part
of the Company will have been taken to authorize the issuance and sale of such
series of Preferred Stock proposed to be sold by the Company, and when such
shares of Preferred Stock are issued and delivered against payment therefor for
an amount in excess of the par value
<PAGE> 4
Allied Waste Industries, Inc. - 4 - August 8, 1997
Allied Waste North America, Inc.
Subsidiary Guarantors Listed
on Schedule A hereto
thereof, and, if issued upon the exercise or conversion of any Warrants or Debt
Securities, issued and delivered as contemplated by the terms thereof and of the
Warrant Agreement or the applicable Indenture, respectively, relating thereto,
such shares will be validly issued, fully paid and non-assessable.
3. Assuming the Senior Company Indenture is duly executed and
delivered by the Company and duly authorized, executed and delivered by the
Senior Company Trustee, when the terms of the Senior Company Debt Securities and
their issue and sale have been duly established in conformity with the Senior
Company Indenture so as not to violate any applicable law or agreement or
instrument then binding on the Company, the Senior Company Debt Securities have
been duly executed and authenticated in accordance with the terms of the Senior
Company Indenture and issued and sold as contemplated in the Registration
Statement, and, if issued upon the exercise or conversion of any Warrants,
issued and delivered as contemplated by the terms thereof and of the Warrant
Agreement relating thereto, the Senior Company Debt Securities will constitute
valid and binding obligations of the Company, subject to (i) bankruptcy,
insolvency, reorganization, fraudulent transfer, moratorium or other laws now or
hereafter in effect affecting creditors' rights generally and (ii) general
principles of equity (including, without limitation, standards of materiality,
good faith, fair dealing and reasonableness), whether considered in a proceeding
in equity or at law.
4. Assuming the Senior Subordinated Company Indenture is duly
executed and delivered by the Company and duly authorized, executed and
delivered by the Senior Subordinated Company Trustee, when the terms of the
Senior Subordinated Company Debt Securities and their issue and sale have been
duly established in conformity with the Senior Subordinated Company Indenture so
as not to violate any applicable law or agreement or instrument then binding on
the Company, the Senior Subordinated Company Debt Securities have been duly
executed and authenticated in accordance with the terms of the Senior
Subordinated Company Indenture and issued and sold as contemplated in the
Registration Statement, and, if issued upon the exercise or conversion of any
Warrants, issued and delivered as contemplated by the terms thereof and of the
Warrant Agreement relating thereto, the Senior Subordinated Company Debt
Securities will constitute valid and binding obligations of the Company, subject
to (i) bankruptcy, insolvency, reorganization, fraudulent transfer, moratorium
or other laws now or hereafter in effect affecting creditors' rights generally
and (ii) general
<PAGE> 5
Allied Waste Industries, Inc. - 5 - August 8, 1997
Allied Waste North America, Inc.
Subsidiary Guarantors Listed
on Schedule A hereto
principles of equity (including, without limitation, standards of materiality,
good faith, fair dealing and reasonableness), whether considered in a proceeding
in equity or at law.
5. When the issuance, execution and delivery by the Company of any
of the Warrants shall have been duly authorized by all necessary corporate
action of the Company, the Warrant Agreement relating thereto shall have been
executed and delivered by the respective parties thereto and such Warrants shall
have been duly executed and delivered by the Company, countersigned by the
Warrant Agent relating thereto and sold as contemplated by the Registration
Statement and the Warrant Agreement relating thereto, assuming that the terms of
such Warrants are in compliance with then applicable law, such Warrants will be
validly issued and will be enforceable against the Company in accordance with
their terms, subject to (i) bankruptcy, insolvency, reorganization, fraudulent
transfer, moratorium or other laws now or hereafter in effect affecting
creditors' rights generally and (ii) general principles of equity (including,
without limitation, standards of materiality, good faith, fair dealing and
reasonableness), whether considered in a proceeding in equity or at law.
6. Assuming that the Senior AWNA Indenture is duly executed and
delivered by AWNA, the Company and the Subsidiary Guarantors and duly
authorized, executed and delivered by the Senior AWNA Trustee, when the terms of
the Senior AWNA Debt Securities and their issue and sale and the related Senior
Guarantees and Allied Senior Guarantee have been duly established in conformity
with the Senior AWNA Indenture so as not to violate any applicable law or
agreement or instrument then binding on AWNA, the Company or the Subsidiary
Guarantors, the Senior Guarantees and the Allied Senior Guarantee have been
endorsed on the Senior AWNA Debt Securities and executed in accordance with the
terms of the Senior AWNA Indenture and the Senior AWNA Debt Securities have been
duly executed and authenticated in accordance with the terms of the Senior AWNA
Indenture and issued and sold as contemplated in the Registration Statement,
and, if issued upon the exercise or conversion of any Warrants, issued and
delivered as contemplated by the terms thereof and of the Warrant Agreement
relating thereto, the Senior AWNA Debt Securities will constitute valid and
binding obligations of AWNA, the Company and the Subsidiary Guarantors, the
Senior Guarantees will constitute valid and binding obligations of the Company
and the Subsidiary Guarantors, and the Allied Senior
<PAGE> 6
Allied Waste Industries, Inc. - 6 - August 8, 1997
Allied Waste North America, Inc.
Subsidiary Guarantors Listed
on Schedule A hereto
Guarantee will constitute a valid and binding obligation of the Company, subject
in each case to (i) bankruptcy, insolvency, reorganization, fraudulent transfer,
moratorium or other laws now or hereafter in effect affecting creditors' rights
generally and (ii) general principles of equity (including, without limitation,
standards of materiality, good faith, fair dealing and reasonableness), whether
considered in a proceeding in equity or at law.
7. Assuming that the Senior Subordinated AWNA Indenture is duly
executed and delivered by AWNA, the Company and the Subsidiary Guarantors and
duly authorized, executed and delivered by the Senior Subordinated AWNA Trustee,
when the terms of the Senior Subordinated AWNA Debt Securities and their issue
and sale and the related Senior Subordinated Guarantees and Allied Senior
Subordinated Guarantee have been duly established in conformity with the Senior
Subordinated AWNA Indenture so as not to violate any applicable law or agreement
or instrument then binding on AWNA, the Company or the Subsidiary Guarantors,
the Senior Subordinated Guarantees and the Allied Senior Subordinated Guarantee
have been endorsed on the Senior Subordinated AWNA Debt Securities and executed
in accordance with the terms of the Senior Subordinated AWNA Indenture and the
Senior Subordinated AWNA Debt Securities have been duly executed and
authenticated in accordance with the terms of the Senior Subordinated AWNA
Indenture and issued and sold as contemplated in the Registration Statement,
and, if issued upon the exercise or conversion of any Warrants, issued and
delivered as contemplated by the terms thereof and of the Warrant Agreement
relating thereto, the Senior Subordinated AWNA Debt Securities will constitute
valid and binding obligations of AWNA, the Company and the Subsidiary
Guarantors, the Senior Subordinated Guarantees will constitute valid and binding
obligations of the Company and the Subsidiary Guarantors, and the Allied Senior
Subordinated Guarantee will constitute a valid and binding obligation of the
Company subject in each case to (i) bankruptcy, insolvency, reorganization,
fraudulent transfer, moratorium or other laws now or hereafter in effect
affecting creditors' rights generally and (ii) general principles of equity
(including, without limitation, standards of materiality, good faith, fair
dealing and reasonableness), whether considered in a proceeding in equity or at
law.
We express no opinion as to the legality, validity, binding effect
or enforceability of any provision of the Debt Securities, the Indentures or the
<PAGE> 7
Allied Waste Industries, Inc. - 7 - August 8, 1997
Allied Waste North America, Inc.
Subsidiary Guarantors Listed
on Schedule A hereto
Guarantees providing for payments thereunder in a currency other than currency
of the United States of America to the extent that a court of competent
jurisdiction will under applicable law convert any judgment rendered in such
other currency into currency of the United States of America or to the extent
that payment in a currency other than currency of the United States of America
is contrary to applicable law. In this connection, we note that, as of the date
of this opinion, in the case of a Debt Security denominated in a foreign
currency, a state court in the State of New York rendering a judgment on such
Debt Security would be required under Section 27 of the New York Judiciary Law
to render such judgment in the foreign currency in which the Debt Security is
denominated, and such judgment would be converted into United States dollars at
the exchange rate prevailing on the date of entry of the judgment.
This opinion is expressly limited to the laws of the State of New
York and, to the extent required by the foregoing opinion, the General
Corporation Law of the State of Delaware.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the references to this firm under the captions
"Validity of Securities" in the Prospectus and "Validity of Securities" in any
Prospectus Supplement forming a part of the Registration Statement. In giving
these consents, we do not hereby admit that we are in the category of persons
whose consent is required under Section 7 of the Securities Act.
The opinions expressed herein are solely for the benefit of the
Company, AWNA, the Subsidiary Guarantors and First Trust National Association,
as trustee under each of the Indentures (who may rely on this letter as though
it were an addressee) and may not be relied upon in any manner or for any
purpose by any other person and may not be quoted in whole or in part without
our prior written consent.
Very truly yours,
FRIED, FRANK, HARRIS, SHRIVER & JACOBSON
By: /s/ David C. Golay
-------------------------------------
David C. Golay
<PAGE> 8
Schedule A
Subsidiary Guarantors
A and W Disposal Service, Inc.
AAWI, Inc.
Acme Scavenger Service, Inc.
Aegis of Brunswick County, Inc.
Allied Enviro Engineering, Inc. (Tex. corp.)
Allied Enviroengineering, Inc. (Del. corp.)
Allied Waste Alabama, Inc.
Allied Waste Hauling of Georgia, Inc.
Allied Waste Industries (Arizona), Inc.
Allied Waste Industries (Colorado), Inc.
Allied Waste Industries (Midwest), Inc.
Allied Waste Industries (Missouri), Inc.
Allied Waste Industries (New Mexico), Inc.
Allied Waste Industries (Southwest), Inc.
Allied Waste Industries of Alamosa, Inc.
Allied Waste Industries of Georgia, Inc.
Allied Waste Industries of Illinois, Inc.
Allied Waste Industries of Indiana, Inc.
Allied Waste Industries of Northwest Indiana, Inc.
Allied Waste Industries of Plymouth, Inc.
Allied Waste Industries of Tennessee, Inc.
Allied Waste Industries of Virginia, Inc.
Allied Waste Industries of Wyoming, Inc.
Allied Waste of California, Inc.
Allied Waste Services, Inc.
Allied Waste Systems, Inc. (Del. corp.)
Allied Waste Systems, Inc. (Ill. corp.)
Apache Junction Landfill Corporation
Autoshred, Inc.
AWIN Finance Company, Inc.
Best Disposal Services, Inc.
Bluff Trash Service, Inc.
Brickyard Disposal & Recycling, Inc.
Bulldog Johnny, Inc.
Cardinal Ridge Development, Inc.
Cass County Disposal, Inc.
CATPAC Two, Inc.
Chuck's Disposal Service, Inc.
Citiwaste, Inc.
City Garbage, Inc.
Clayco Sanitation Company
Community Refuse Disposal, Inc.
Consolidated Processing, Inc.
Container Corporation of Carolina
CRX, Inc.
Dempsey Waste Systems, Inc.
Dopheide Sanitary Service, Inc.
Duckett Disposal, Inc.
Duke Refuse Disposal, Inc.
Environmental Control, Inc.
Environmental Development Corp.
Environmental Reclamation Company
EOS Environmental, Inc.
Haul-All Sanitation, Inc.
Illiana Disposal Service, Inc.
Illinois Development Corporation
Illinois Landfill, Inc.
John Spot Portable Services, Inc.
Johnny on the Spot--Portable Toilets, Inc.
K&H Disposal, Inc.
L&M Disposal, Inc.
Laidlaw Gas Recovery Corporation II, Inc.
Laidlaw Gas Recovery Corporation, Inc.
Laidlaw Gas Recovery Systems, Inc.
Laidlaw Waste Systems (Adrian) Inc.
Laidlaw Waste Systems (Bellefontaine) Inc.
Laidlaw Waste Systems (Belleville) Inc.
Laidlaw Waste Systems (Bridgeton) Inc.
Laidlaw Waste Systems (Celina) Inc.
Laidlaw Waste Systems (Chiquita) Inc.
Laidlaw Waste Sytstems (Colorado) Inc.
Laidlaw Waste Systems (Dallas) Inc.
Laidlaw Waste Systems (Fort Worth) Inc.
Laidlaw Waste Systems (Houston) Inc.
Laidlaw Waste Systems (Jefferson City) Inc.
Laidlaw Waste Systems (Kansas City) Inc.
Laidlaw Waste Systems (Madison) Inc.
Laidlaw Waste Systems (Michigan) Inc.
Laidlaw Waste Systems (Oklahoma City) Inc.
Laidlaw Waste Systems (Texas) Inc.
Laidlaw Waste Systems (Valley View) Inc.
Laidlaw Waste Systems Holdings, Inc.
Laidlaw Waste Systems, Inc.
Lee County Landfill, Inc.
Lemons Landfill Corporation
Lemons Waste Systems, Inc.
Midwest Land Development Corp.
Midwest Landfill Corporation
Midwest Waste, Inc.
Midwest Waste Industrial, Inc.
Midwest Waste RDF, Inc.
Mr. Potty, Inc.
National Waste Industries, Inc.
National Waste Services, Inc.
Newton County Development Corp.
North American Recycling, Inc.
Ooms Bros. Disposal Service, Inc.
Organized Sanitary Collectors and Recyclers, Inc.
Oscar's Collection Systems of Fremont, Inc.
Ozark Foothills Regional Recycling Facility, Inc.
Pen-Rob, Inc.
Peter Laning Sons, Inc.
Pinal County Landfill Corp.
Poplar Bluff Construction and Development Company, Inc.
Post Disposal Service, Inc.
R. 18, Inc.
RCS, Inc.
Sanco, Inc.
Sanico, Inc.
Sanitary Waste Services, Inc.
Selas Enterprises Ltd.
Service Waste, Inc.
South Holland Scavenger Service, Inc.
South Suburban Disposal, Inc.
Southern States Environmental Services, Inc.
Southwest Disposal Service, Inc.
Streator Area Landfill, Inc.
Sun Services & Liquid Waste Removal, Inc.
Superior Scavenger, Inc.
Super Services Waste Management, Inc.
T. and W. Disposal Company, Inc.
Tricil (N.Y.), Inc.
Upper Rock Island County Landfill, Inc.
USI/Hustlers, Inc.
Van Weelden Brothers, Inc.
Vermilion Waste Systems, Inc.
W. J. Flyte Corporation
Wastehaul, Inc.
Wayne Disposal - Canton, Inc.
Wayne Disposal - Oakland, Inc.
Willey Enterprises, Inc.
Williams County Landfill, Inc.
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our report dated March 26, 1997
included in Allied Waste Industries, Inc.'s Form 10-K for the year ended
December 31, 1996 and to all references to our firm included in this
registration statement.
ARTHUR ANDERSEN LLP
Phoenix, Arizona,
August 6, 1997
<PAGE> 1
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
LAIDLAW SOLID WASTE MANAGEMENT GROUP
We consent to the incorporation by reference in Amendment No. 1 of
Registration Statement No. 333-30559 of Allied Waste Industries, Inc. on Form
S-3 dated of August 8, 1997, our report dated September 30, 1996, to the
Directors of Laidlaw Inc. on the balance sheets of the Laidlaw Solid Waste
Management Group as at August 31, 1995 and 1996 and the statements of operations
and cash flows for years ended August 31, 1994, 1995 and 1996, which report is
incorporated in the Form 8K/A-4 dated of February 19, 1997.
This letter is provided to securities regulatory authorities pursuant to
the requirements of their securities legislation and is not for any other
purpose.
/s/ COOPERS & LYBRAND
--------------------------------------
Coopers & Lybrand
Chartered Accountants
August 8, 1997
Hamilton, Canada
<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------
FORM T-1
Statement of Eligibility Under the
Trust Indenture Act of 1939 of a Corporation
Designated to Act as Trustee
FIRST TRUST NATIONAL ASSOCIATION
(Exact name of Trustee as specified in its charter)
United States 41-0257700
(State of Incorporation) (I.R.S. Employer
Identification No.)
First Trust Center
180 East Fifth Street
St. Paul, Minnesota 55101
(Address of Principal Executive Offices) (Zip Code)
ALLIED WASTE INDUSTRIES, INC.
(Exact name of Registrant as specified in its charter)
Delaware 88-0228636
(State of Incorporation) (I.R.S. Employer
Identification No.)
15880 North Greenway-Hayden Loop, Suite 100
Scottsdale, AZ 85260
(Address of Principal Executive Offices) (Zip Code)
SENIOR SUBORDINATED DEBT SECURITIES
(Title of the Indenture Securities)
<PAGE> 2
GENERAL
1. General Information Furnish the following information as to the
Trustee.
(a) Name and address of each examining or supervising
authority to which it is subject.
Comptroller of the Currency
Washington, D.C.
(b) Whether it is authorized to exercise corporate trust
powers.
Yes
2. AFFILIATIONS WITH OBLIGOR AND UNDERWRITERS If the obligor or any
underwriter for the obligor is an affiliate of the Trustee, describe
each such affiliation.
None
See Note following Item 16.
Items 3-15 are not applicable because to the best of the Trustee's
knowledge the obligor is not in default under any Indenture for which
the Trustee acts as Trustee.
16. LIST OF EXHIBITS List below all exhibits filed as a part of this
statement of eligibility and qualification.
1. Copy of Articles of Association.*
2. Copy of Certificate of Authority to Commence Business.*
3. Authorization of the Trustee to exercise corporate trust
powers (included in Exhibits 1 and 2; no separate
instrument).*
4. Copy of existing By-Laws.*
5. Copy of each Indenture referred to in Item 4. N/A.
6. The consents of the Trustee required by Section 321(b) of
the act.
7. Copy of the latest report of condition of the Trustee published
pursuant to law or the requirements of its supervising or examining
authority is incorporated by reference to Registration Number
333-24029.
* Incorporated by reference to Registration Number 22-27000.
<PAGE> 3
NOTE
The answers to this statement insofar as such answers relate to
what persons have been underwriters for any securities of the obligors within
three years prior to the date of filing this statement, or what persons are
owners of 10% or more of the voting securities of the obligors, or affiliates,
are based upon information furnished to the Trustee by the obligors. While the
Trustee has no reason to doubt the accuracy of any such information, it cannot
accept any responsibility therefor.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939,
the Trustee, First Trust National Association, an Association organized and
existing under the laws of the United States, has duly caused this statement of
eligibility and qualification to be signed on its behalf by the undersigned,
thereunto duly authorized, and its seal to be hereunto affixed and attested, all
in the City of Saint Paul and State of Minnesota on the 6th day of August, 1997.
FIRST TRUST NATIONAL ASSOCIATION
[FIRST TRUST NATIONAL ASSOCIATION CORPORATE SEAL]
/s/ Richard H. Prokosch
--------------------------------
Richard H. Prokosch
Trust Officer
/s/ J T Kaufman
- --------------------------------
J T Kaufman
Assistant Secretary
<PAGE> 4
EXHIBIT 6
CONSENT
In accordance with Section 321(b) of the Trust Indenture Act of
1939, the undersigned, FIRST TRUST NATIONAL ASSOCIATION hereby consents that
reports of examination of the undersigned by Federal, State, Territorial or
District authorities may be furnished by such authorities to the Securities and
Exchange Commission upon its request therefor.
Dated: August 6, 1997
FIRST TRUST NATIONAL ASSOCIATION
/s/ Richard H. Prokosch
--------------------------------
Richard H. Prokosch
Trust Officer
<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------
FORM T-1
Statement of Eligibility Under the
Trust Indenture Act of 1939 of a Corporation
Designated to Act as Trustee
FIRST TRUST NATIONAL ASSOCIATION
(Exact name of Trustee as specified in its charter)
United States 41-0257700
(State of Incorporation) (I.R.S. Employer
Identification No.)
First Trust Center
180 East Fifth Street
St. Paul, Minnesota 55101
(Address of Principal Executive Offices) (Zip Code)
ALLIED WASTE NORTH AMERICA, INC.
(Exact name of Registrant as specified in its charter)
Delaware 86-0843596
(State of Incorporation) (I.R.S. Employer
Identification No.)
15880 North Greenway-Hayden Loop, Suite 100
Scottsdale, AZ 85260
(Address of Principal Executive Offices) (Zip Code)
SENIOR SUBORDINATED DEBT SECURITIES
(Title of the Indenture Securities)
<PAGE> 2
GENERAL
1. General Information Furnish the following information as to the
Trustee.
(a) Name and address of each examining or supervising
authority to which it is subject.
Comptroller of the Currency
Washington, D.C.
(b) Whether it is authorized to exercise corporate trust
powers.
Yes
2. AFFILIATIONS WITH OBLIGOR AND UNDERWRITERS If the obligor or any
underwriter for the obligor is an affiliate of the Trustee, describe
each such affiliation.
None
See Note following Item 16.
Items 3-15 are not applicable because to the best of the Trustee's
knowledge the obligor is not in default under any Indenture for which
the Trustee acts as Trustee.
16. LIST OF EXHIBITS List below all exhibits filed as a part of this
statement of eligibility and qualification.
1. Copy of Articles of Association.*
2. Copy of Certificate of Authority to Commence Business.*
3. Authorization of the Trustee to exercise corporate trust
powers (included in Exhibits 1 and 2; no separate
instrument).*
4. Copy of existing By-Laws.*
5. Copy of each Indenture referred to in Item 4. N/A.
6. The consents of the Trustee required by Section 321(b) of
the act.
7. Copy of the latest report of condition of the Trustee published
pursuant to law or the requirements of its supervising or examining
authority is incorporated by reference to Registration Number
333-24029.
* Incorporated by reference to Registration Number 22-27000.
<PAGE> 3
NOTE
The answers to this statement insofar as such answers relate to
what persons have been underwriters for any securities of the obligors within
three years prior to the date of filing this statement, or what persons are
owners of 10% or more of the voting securities of the obligors, or affiliates,
are based upon information furnished to the Trustee by the obligors. While the
Trustee has no reason to doubt the accuracy of any such information, it cannot
accept any responsibility therefor.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939,
the Trustee, First Trust National Association, an Association organized and
existing under the laws of the United States, has duly caused this statement of
eligibility and qualification to be signed on its behalf by the undersigned,
thereunto duly authorized, and its seal to be hereunto affixed and attested, all
in the City of Saint Paul and State of Minnesota on the 6th day of August, 1997.
FIRST TRUST NATIONAL ASSOCIATION
[FIRST TRUST NATIONAL ASSOCIATION CORPORATE SEAL]
/s/ Richard H. Prokosch
--------------------------------
Richard H. Prokosch
Trust Officer
/s/ J T Kaufman
- ------------------------------
J T Kaufman
Assistant Secretary
<PAGE> 4
EXHIBIT 6
CONSENT
In accordance with Section 321(b) of the Trust Indenture Act of
1939, the undersigned, FIRST TRUST NATIONAL ASSOCIATION hereby consents that
reports of examination of the undersigned by Federal, State, Territorial or
District authorities may be furnished by such authorities to the Securities and
Exchange Commission upon its request therefor.
Dated: August 6, 1997
FIRST TRUST NATIONAL ASSOCIATION
/s/ Richard H. Prokosch
--------------------------------
Richard H. Prokosch
Trust Officer
<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------
FORM T-1
Statement of Eligibility Under the
Trust Indenture Act of 1939 of a Corporation
Designated to Act as Trustee
FIRST TRUST NATIONAL ASSOCIATION
(Exact name of Trustee as specified in its charter)
United States 41-0257700
(State of Incorporation) (I.R.S. Employer
Identification No.)
First Trust Center
180 East Fifth Street
St. Paul, Minnesota 55101
(Address of Principal Executive Offices) (Zip Code)
ALLIED WASTE NORTH AMERICA, INC.
(Exact name of Registrant as specified in its charter)
Delaware 86-0843596
(State of Incorporation) (I.R.S. Employer
Identification No.)
15880 North Greenway-Hayden Loop, Suite 100
Scottsdale, AZ 85260
(Address of Principal Executive Offices) (Zip Code)
SENIOR DEBT SECURITIES
(Title of the Indenture Securities)
<PAGE> 2
GENERAL
1. General Information Furnish the following information as to the
Trustee.
(a) Name and address of each examining or supervising authority
to which it is subject.
Comptroller of the Currency
Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
Yes
2. AFFILIATIONS WITH OBLIGOR AND UNDERWRITERS If the obligor or any
underwriter for the obligor is an affiliate of the Trustee, describe
each such affiliation.
None
See Note following Item 16.
Items 3-15 are not applicable because to the best of the Trustee's
knowledge the obligor is not in default under any Indenture for which
the Trustee acts as Trustee.
16. LIST OF EXHIBITS List below all exhibits filed as a part of this
statement of eligibility and qualification.
1. Copy of Articles of Association.*
2. Copy of Certificate of Authority to Commence Business.*
3. Authorization of the Trustee to exercise corporate trust
powers (included in Exhibits 1 and 2; no separate
instrument).*
4. Copy of existing By-Laws.*
5. Copy of each Indenture referred to in Item 4. N/A.
6. The consents of the Trustee required by Section 321(b) of
the act.
7. Copy of the latest report of condition of the Trustee published
pursuant to law or the requirements of its supervising or examining
authority is incorporated by reference to Registration Number
333-24029.
* Incorporated by reference to Registration Number 22-27000.
<PAGE> 3
NOTE
The answers to this statement insofar as such answers relate to
what persons have been underwriters for any securities of the obligors within
three years prior to the date of filing this statement, or what persons are
owners of 10% or more of the voting securities of the obligors, or affiliates,
are based upon information furnished to the Trustee by the obligors. While the
Trustee has no reason to doubt the accuracy of any such information, it cannot
accept any responsibility therefor.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939,
the Trustee, First Trust National Association, an Association organized and
existing under the laws of the United States, has duly caused this statement of
eligibility and qualification to be signed on its behalf by the undersigned,
thereunto duly authorized, and its seal to be hereunto affixed and attested, all
in the City of Saint Paul and State of Minnesota on the 6th day of August, 1997.
FIRST TRUST NATIONAL ASSOCIATION
[FIRST TRUST NATIONAL ASSOCIATION CORPORATE SEAL]
/s/ Richard H. Prokosch
--------------------------------
Richard H. Prokosch
Trust Officer
/s/ J T Kaufman
- ---------------------------
J T Kaufman
Assistant Secretary
<PAGE> 4
EXHIBIT 6
CONSENT
In accordance with Section 321(b) of the Trust Indenture Act of
1939, the undersigned, FIRST TRUST NATIONAL ASSOCIATION hereby consents that
reports of examination of the undersigned by Federal, State, Territorial or
District authorities may be furnished by such authorities to the Securities and
Exchange Commission upon its request therefor.
Dated: August 6, 1997
FIRST TRUST NATIONAL ASSOCIATION
/s/ Richard H. Prokosch
--------------------------------
Richard H. Prokosch
Trust Officer
<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------
FORM T-1
Statement of Eligibility Under the
Trust Indenture Act of 1939 of a Corporation
Designated to Act as Trustee
FIRST TRUST NATIONAL ASSOCIATION
(Exact name of Trustee as specified in its charter)
United States 41-0257700
(State of Incorporation) (I.R.S. Employer
Identification No.)
First Trust Center
180 East Fifth Street
St. Paul, Minnesota 55101
(Address of Principal Executive Offices) (Zip Code)
ALLIED WASTE INDUSTRIES, INC.
(Exact name of Registrant as specified in its charter)
Delaware 88-0228636
(State of Incorporation) (I.R.S. Employer
Identification No.)
15880 North Greenway-Hayden Loop, Suite 100
Scottsdale, AZ 85260
(Address of Principal Executive Offices) (Zip Code)
SENIOR DEBT SECURITIES
(Title of the Indenture Securities)
<PAGE> 2
GENERAL
1. General Information Furnish the following information as to the
Trustee.
(a) Name and address of each examining or supervising authority
to which it is subject.
Comptroller of the Currency
Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
Yes
2. AFFILIATIONS WITH OBLIGOR AND UNDERWRITERS If the obligor or any
underwriter for the obligor is an affiliate of the Trustee, describe
each such affiliation.
None
See Note following Item 16.
Items 3-15 are not applicable because to the best of the Trustee's
knowledge the obligor is not in default under any Indenture for which
the Trustee acts as Trustee.
16. LIST OF EXHIBITS List below all exhibits filed as a part of this
statement of eligibility and qualification.
1. Copy of Articles of Association.*
2. Copy of Certificate of Authority to Commence Business.*
3. Authorization of the Trustee to exercise corporate trust
powers (included in Exhibits 1 and 2; no separate
instrument).*
4. Copy of existing By-Laws.*
5. Copy of each Indenture referred to in Item 4. N/A.
6. The consents of the Trustee required by Section 321(b) of
the act.
7. Copy of the latest report of condition of the Trustee published
pursuant to law or the requirements of its supervising or examining
authority is incorporated by reference to Registration Number
333-24029.
* Incorporated by reference to Registration Number 22-27000.
<PAGE> 3
NOTE
The answers to this statement insofar as such answers relate to
what persons have been underwriters for any securities of the obligors within
three years prior to the date of filing this statement, or what persons are
owners of 10% or more of the voting securities of the obligors, or affiliates,
are based upon information furnished to the Trustee by the obligors. While the
Trustee has no reason to doubt the accuracy of any such information, it cannot
accept any responsibility therefor.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939,
the Trustee, First Trust National Association, an Association organized and
existing under the laws of the United States, has duly caused this statement of
eligibility and qualification to be signed on its behalf by the undersigned,
thereunto duly authorized, and its seal to be hereunto affixed and attested, all
in the City of Saint Paul and State of Minnesota on the 6th day of August, 1997.
FIRST TRUST NATIONAL ASSOCIATION
[FIRST TRUST NATIONAL ASSOCIATION CORPORATE SEAL]
/s/ Richard H. Prokosch
--------------------------------
Richard H. Prokosch
Trust Officer
/s/ J T Kaufman
- -----------------------------
J T Kaufman
Assistant Secretary
<PAGE> 4
EXHIBIT 6
CONSENT
In accordance with Section 321(b) of the Trust Indenture Act of
1939, the undersigned, FIRST TRUST NATIONAL ASSOCIATION hereby consents that
reports of examination of the undersigned by Federal, State, Territorial or
District authorities may be furnished by such authorities to the Securities and
Exchange Commission upon its request therefor.
Dated: August 6, 1997
FIRST TRUST NATIONAL ASSOCIATION
/s/ Richard H. Prokosch
--------------------------------
Richard H. Prokosch
Trust Officer
