AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON ____________, 1998
REGISTRATION NO. 333-_______
===========================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-------------------
ALLIED WASTE INDUSTRIES, INC.
ALLIED WASTE NORTH AMERICA, INC.
SUBSIDIARY GUARANTORS LISTED ON SCHEDULES A THROUGH O HERETO
(EXACT NAMES OF REGISTRANTS AS SPECIFIED IN THEIR CHARTERS)
-------------------
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.)
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)
STEVEN M. 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 10004
(212) 859-8000
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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. [_]
-------------------
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
- ------------------------------------------- ---------------------- ------------------- ----------------------- ---------------
Proposed Maximum Proposed Maximum Amount of
Title of Each Class of Securities Maximum Amount to Be Offering Price Aggregate Offering Registration
to Be Registered (FN1) Registered (FN2)(FN3) Per Unit (FN3) Price (FN3)(FN4) Fee (FN3)
- ------------------------------------------- ---------------------- ------------------- ----------------------- ---------------
<S> <C> <C> <C> <C>
Allied Common Stock, $.01 par value.......
Allied Preferred Stock, $.10 par value....
Allied Debt Securities, Allied Warrants...
Allied Guarantees of AWNA Debt Securities
(FN5).....................................
Subsidiary Guarantees of AWNA Debt
Securities (FN5)..........................
Allied Guarantees of Subsidiary
Guarantees (FN5)..........................
AWNA Debt Securities......................
- ------------------------------------------- ---------------------- ------------------- ----------------------- ---------------
Total............................. $800,000,000(FN6)(FN7) (FN6) $800,000,000(FN6)(FN7)(FN8) $236,000
- ------------------------------------------- ---------------------- ------------------- ----------------------- ---------------
<FN>
(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 Form 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.
</FN>
</TABLE>
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.
PURSUANT TO THE PROVISIONS OF RULE 429 OF THE SECURITIES ACT OF 1933,
AS AMENDED, THE PROSPECTUS CONTAINED IN THE REGISTRATION STATEMENT ALSO
RELATES TO UP TO $455,345,000 IN SECURITIES COVERED BY THE REGISTRANT'S
REGISTRATION STATEMENT ON FORM S-3 (REG. NO. 333-30559). THE REGISTRATION
FEES WITH RESPECT THERETO WERE PREVIOUSLY PAID.
===========================================================================
SCHEDULE A
SUBSIDIARY GUARANTORS
Able Sanitation, Inc. Metropolitan Disposal, Inc.
Adrian Landfill, Inc. Monarch Disposal, Inc.
Aegis of Brunswick County, Inc. Newton County Development Corp.
Allied Cartage, Inc. Northwest Recycling, Inc.
Allied Waste Industries (Southwest), Inc. Oakland Heights Development, Inc.
Allied Waste Industries of Illinois, Inc. Ooms Bros. Disposal Service, Inc.
Allied Waste Industries of Indiana, Inc. Otay Landfill, Inc.
Allied Waste Industries of Plymouth, Inc. Ottawa County Landfill, Inc.
Allied Waste of California, Inc. Palomar Transfer Station, Inc.
Allied Waste of New Jersey, Inc. R. 18, Inc.
Allied Waste Rural Sanitation, Inc. Rabanco Acquisition Company
Americal, Inc. Rabanco Acquisition Company Two
American Materials Recycling Corp. Rabanco Acquisition Company Three
American Transfer Company, Inc. Rabanco Acquisition Company Four
Apache Junction Landfill Corporation Rabanco Acquisition Company Five
Area Disposal, Inc. Rabanco Acquisition Company Six
Belleville Landfill, Inc. Rabanco Acquisition Company Seven
Borrego Landfill, Inc. Rabanco Acquisition Company Eight
Brickyard Disposal & Recycling, Inc. Rabanco Acquisition Company Nine
Celina Landfill, Inc. Rabanco Acquisition Company Ten
Central Sanitary Landfill, Inc. Rabanco Acquisition Company Eleven
Chambers Development of North Carolina, Inc. Rabanco Acquisition Company Twelve
Champion Recycling, Inc. Ramona Landfill, Inc.
Cherokee Run Landfill, Inc. RCS, Inc.
Citizens Disposal, Inc. Recycling Associates, Inc.
Clarkston Disposal, Inc. Reliable Rubbish Disposal, Inc.
Community Refuse Disposal, Inc. Roxana Landfill, Inc.
CRX, Inc. Rural Sanitation of North Carolina, Inc.
Denver Regional Landfill, Inc. S & S Environmental, Inc.
Dinverno, Inc. Sanitran, Inc.
Dinverno Recycling, Inc. San Marcos NCRRF, Inc.
Dopheide Sanitary Service, Inc. Sanitary Disposal Service, Inc.
Duncan Disposal Service, Inc. Saugus Disposal, Inc.
East Coast Waste Systems, Inc. Sauk Trail Development, Inc.
ECDC Environmental of Humbolt County, Inc. Selas Enterprises Ltd.
ECDC Holdings, Inc. Streator Area Landfill, Inc.
Enviro Carting, Inc. Sycamore Landfill, Inc.
Enviro Recycling, Corp. Total Solid Waste Recyclers, Inc.
Environmental Development Corp. Turnpike Leasing, Inc.
Environmental Reclamation Company
Golden Eagle Disposals, Inc. United Waste Systems of Central Michigan, Inc.
Harland's Sanitary Landfill, Inc. Upper Rock Island County Landfill, Inc.
Illiana Disposal Service, Inc. Vining Disposal Service, Inc.
Illinois Landfill, Inc. Vinnie Monte's Waste Systems, Inc.
Industrial Services of Illinois, Inc. Wayne County Landfill IL, Inc.
Laidlaw Waste Systems (Dallas) Inc. Williams County Landfill, Inc.
Laidlaw Waste Systems (Fort Worth) Inc. World Sanitation Corporation
Laidway Waste Systems (Houston) Inc.
Laidlaw Waste Systems (Kansas City) Inc.
Laidlaw Waste Systems (Texas) Inc.
Lee County Landfill, Inc.
Louis Pinto & Son, Inc., Sanitation Contractors
MCM Sanitation, Inc.
SCHEDULE B
SUBSIDIARY GUARANTORS
AAWI, Inc.
Allied Acquisition Pennsylvania, Inc.
Allied Acquisition Two, Inc.
Allied Enviro Engineering, Inc. (Tex. corp.)
Allied Enviroengineering, Inc. (Del. corp.)
Allied Waste Alabama, Inc.
Allied Waste Company, Inc.
Allied Waste Hauling of Georgia, Inc.
Allied Waste Industries (Arizona), Inc.
Allied Waste Industries (Colorado), Inc.
Allied Waste Industries (New Mexico), Inc.
Allied Waste Industries of Alamosa, Inc.
Allied Waste Industries of Georgia, Inc.
Allied Waste Industries of New York, Inc.
Allied Waste Industries of Northwest Indiana, Inc.
Allied Waste Industries of Tennessee, Inc.
Allied Waste Landfill Holdings, Inc.
Allied Waste of Long Island, Inc.
Allied Waste Services, Inc. (MA)
Allied Waste Services, Inc. (TX)
Allied Waste Systems, Inc. (Del. corp.)
Allied Waste Transportation, Inc.
Autoshred, Inc.
AWIN Management, Inc.
City Garbage, Inc.
Containerized, Inc. of Texas
Cousins Carting, Inc.
EOS Environmental, Inc.
L&M Disposal, Inc.
Nationswaste Catawba Regional Landfill, Inc.
Nationswaste, Inc.
Northeast Sanitary Landfill, Inc.
Organized Sanitary Collectors and Recyclers, Inc.
Oscar's Collection Systems of Fremont, Inc.
Pinal County Landfill Corp.
S & S Recycling, Inc.
Service Waste, Inc.
Super Services Waste Management, Inc.
Tricil (N.Y.), Inc.
W.J. Flyte Corporation
Wastehaul, Inc.
SCHEDULE C
SUBSIDIARY GUARANTORS
Allied Waste Systems Holdings, Inc.
SCHEDULE D
SUBSIDIARY GUARANTORS
Allied Waste North America, Inc.
SCHEDULE E
SUBSIDIARY GUARANTORS
Allied Nova Scotia, Inc.
SCHEDULE F
SUBSIDIARY GUARANTORS
AWIN Leasing Company, Inc.
SCHEDULE G
SUBSIDIARY GUARANTORS
Allied Services, LLC
Allied Waste of New Jersey, LLC
Anderson Regional Landfill, LLC
Anson County Landfill NC, LLC
Bridgeton Landfill, LLC
Brunswick Waste Management Facility, LLC
Butler County Landfill, LLC
Crow Landfill TX, LLC
ECDC Environmental, L.C.
Ellis County Landfill TX, LLC
Ellis Scott Landfill MO, LLC
Great Plains Landfill OK, LLC
Jefferson City Landfill, LLC
Lee County Landfill SC, LLC
Lemons Landfill, LLC
Northeast Landfill, LLC
Oklahoma City Landfill, LLC
Pinecrest Landfill OK, LLC
Show-Me Landfill, LLC
Southeast Landfill, LLC
SCHEDULE H
SUBSIDIARY GUARANTORS
Consolidated Processing, Inc.
SCHEDULE I
SUBSIDIARY GUARANTORS
Camelot Landfill TX, LP
Crow Landfill TX, L.P.
Ellis County Landfill TX, L.P.
Fort Worth Landfill TX, LP
Mesquite Landfill TX, LP
Pine Hill Farms Landfill TX, LP
Turkey Creek Landfill TX, LP
SCHEDULE J
SUBSIDIARY GUARANTORS
Allied Gas Recovery Systems, L.L.C.
SCHEDULE K
SUBSIDIARY GUARANTORS
Allied Waste Holdings (Canada) Ltd.
SCHEDULE L
SUBSIDIARY GUARANTORS
County Line Landfill Partnership
SCHEDULE M
SUBSIDIARY GUARANTORS
Illiana Disposal Partnership
SCHEDULE N
SUBSIDIARY GUARANTORS
Key Waste Indiana Partnership
SCHEDULE O
SUBSIDIARY GUARANTORS
Newton County Landfill Partnership
[RED HERRING]
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.
SUBJECT TO COMPLETION, DATED _________
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 subordinated debt securities ("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 Allied Debt
Securities 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 subordinated debt securities
("Subordinated AWNA Debt Securities", and together with the Subordinated
Allied Debt Securities, the "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 Subordinated AWNA Debt
Securities, on a subordinated basis (the "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 Subordinated
Guarantees will be unconditionally guaranteed on a senior and subordinated
basis, respectively, by Allied (the "Allied Senior Guarantee" and the
"Allied Subordinated Guarantee", respectively, and, together with the
Senior Guarantees and the 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 $1,255,345,000 (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, premium,
if any, and interest, if any, on such Debt Securities will be payable,
whether such Debt Securities are Senior Debt Securities or 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 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 subordinated obligations of Allied or
AWNA, as the case may be, and (iv) the Subordinated Guarantees and the
Allied 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 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 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.
All of the Securities offered hereby may, subject to certain
conditions, also be offered and sold from time to time pursuant to this
Prospectus by Selling Security Holders (as defined herein). See "Selling
Security Holders" and "Plan of Distribution" for information relating to
sales of Securities pursuant to this Prospectus by Selling Security
Holders.
-------------------
The date of this Prospectus is , 1998.
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 any 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.
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,
1997;
2. Quarterly Report on Form 10-Q for the quarter ended March 31,
1998;
3. Current Report on Form 8-K filed with the Commission on May
18, 1998;
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; and
5. Proxy Statement related to the annual meeting held on May 28,
1998.
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.
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 vertical integration strategy depends on its ability to
identify and acquire or develop 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 a material adverse effect on
Allied's future results of operations. In connection with Allied's
acquisition of existing landfills, it is often necessary to expend
considerable time, effort and money to obtain permits required to increase
the capacity of these landfills. Allied cannot predict whether or not it
will be able to obtain the governmental approvals necessary to establish
new or expand existing landfills and, if it does, whether or not it will be
economically beneficial to do so. 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 or long-haul the
waste at a higher cost to Allied's landfills, which could have a material
adverse effect on Allied's landfill revenues and collection expenses.
LIMITED OPERATING HISTORY IN REGARD TO ACQUIRED BUSINESSES
Allied has a limited operating history with regard to a significant
portion of its operations. During 1997, Allied acquired 65 companies, which
collectively comprised approximately $369.1 million in annual revenues and
sold 37 operations representing approximately $127.9 million in annual
revenues. The acquired net revenue represents approximately 27.6% of
Allied's revenue in 1997. Subsequent to December 31, 1997 through June 15,
1998, Allied acquired 21 companies, which collectively comprised
approximately $65.5 million in annual revenues. In addition, Allied entered
into a merger agreement with the Rabanco Companies in April 1998 which had
approximately $175 million in annual revenues.
Allied expects to continue to acquire appropriate landfills,
collection operations and transfer stations in the future. The financial
position and results of operations of Allied will depend to a large extent
on Allied's ability to integrate acquired operations effectively and to
realize expected financial benefits and operational efficiencies. There can
be no assurance that Allied's efforts to integrate 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 an Amended and Restated Bank Agreement (the
"Senior Credit Facility") dated June 18, 1998 with Goldman Sachs Credit
Partners, L.P. and Credit Suisse First Boston as co-syndication agents,
Citibank, N.A., as issuing bank and Citicorp USA, Inc., as administrative
agent, and the other bank lenders named therein and its equipment lease
facilities. Because of the capital intensive nature of the solid waste
industry, Allied may require additional equity and/or debt financing in
order to provide for cash in excess of the cash generated from operations
for future operations, capital expenditures, acquisitions, debt repayment
obligations and/or financial assurance obligations. A substantial portion
of Allied's available cash will be required to be applied to service
indebtedness, which is expected to include approximately $197.3 million in
annual principal and interest payments. During 1998, Allied also expects to
spend approximately $210 million for capital, closure and post-closure, and
remediation expenditures related to its landfill operations. Amounts
expended on capital, closure and post-closure and remediation expenditures
will increase as a result of any acquisitions or expansions of Allied's
operations. As a result of these expenditures, 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. Based upon the current level of operations and anticipated
growth, management of Allied believes that available cash flow, together
with available borrowing under the Senior Credit Facility and other sources
of liquidity, will be adequate to meet Allied's anticipated future
requirements for working capital, letters-of-credit, capital, closure,
post-closure and remediation expenditures and scheduled payments of
principal of, and interest on debt incurred under the Senior Credit
Facility, and interest on AWNA's $525 million of 10.25% Senior Subordinated
Notes due 2006 (the "AWNA Notes") and, commencing December 1, 2002, on
Allied's $418 million face value 11.30% Senior Discount Notes due 2007 (the
"Allied Notes"). However, the principal payments at maturity on the AWNA
Notes, the Allied Notes and any future debt securities offered herein 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 Senior Credit
Facility, 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.
COMPETITION FROM OTHER COMPANIES AND MUNICIPALITIES; LANDFILL ALTERNATIVES
The non-hazardous waste collection and disposal industry is led by
five large national waste management companies, Waste Management, Inc.,
Browning-Ferris Industries, Inc., Republic Industries, Inc., USA Waste
Services and Allied, and includes numerous regional and local companies
such as American Disposal Services, Inc., Superior Services, Inc. and Waste
Industries, Inc., all of which contribute to the high level of competition
that characterizes the industry. Some of the large national waste
management companies have considerably greater financial and operational
resources than Allied. In addition, counties and municipalities 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 will require counties to adopt
comprehensive plans to reduce, through waste planning, composting and
recycling or other programs, the volume of solid waste deposited in
landfills within the next few years.
The solid waste collection and disposal industry is currently
undergoing significant consolidation, and Allied encounters competition
through pricing and service in its efforts to acquire landfills and
collection operations. Accordingly, it may become uneconomical for Allied
to make further acquisitions, or Allied may be unable to locate or acquire
suitable acquisition candidates at price levels and on terms and conditions
that Allied considers appropriate, particularly in markets Allied does not
already serve.
SUBSTANTIAL LEVERAGE; ABILITY TO SERVICE DEBT
Allied has substantial indebtedness with significant debt service
requirements and is highly leveraged. At March 31, 1998, Allied's
consolidated debt was approximately $1.4 billion. 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, capital, closure, post-closure and remediation
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 $1.1 billion Senior Credit Facility at variable rates that have not
been hedged, Allied will be vulnerable to increases in interest rates. At
March 31, 1998, approximately $457.8 million in aggregate borrowings were
outstanding under the Senior Credit Facility. All borrowings under the
Senior Credit Facility will mature in 2003.
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 Senior
Credit Facility 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.
If for any reason, including a shortfall in anticipated operating
results or proceeds from assets sales, Allied were unable to meet its debt
service obligations, it would be in default under the terms of certain of
its debt agreements. 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
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 Allied's subsidiaries and
substantially all of the assets of Allied. Any default with respect to any
of Allied's debt could result in a default under other debt or result in
the bankruptcy of Allied.
RESTRICTIONS IMPOSED BY THE SENIOR CREDIT FACILITY, THE ALLIED NOTES AND
THE AWNA NOTES
The Senior Credit Facility 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 Senior Credit Facility also requires
Allied to maintain certain net worth, debt to equity, and cash flow to debt
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 Senior Credit Facility or either or both of
the indentures relating to the Allied Notes, the AWNA Notes and the debt
securities to be issued herein. In the event of any such default under the
Senior Credit Facility, the lenders under the Senior Credit Facility could
elect to declare all borrowings outstanding under the Senior Credit
Facility, 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 Senior Credit Facility, the
Allied Notes or the AWNA Notes were to be accelerated, the assets of Allied
and/or AWNA may not be sufficient to repay amounts due on other debt
securities then outstanding.
RELIANCE ON MANAGEMENT
Allied is highly dependent upon its senior management team. In
addition, as Allied continues to grow, its requirements for operations
management with waste industry experience will also increase. The
availability of such experienced management at compensation levels that are
within industry norms is not known. The loss of the services of any member
of senior management or the inability to hire experienced operations
management could have a material adverse effect on Allied.
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 pursuant to the U.S. Resource Conservation
and Recovery Act of 1976, as amended, 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 and
county boundaries. In the future, Allied's collection, transfer and
landfill operations may also be affected by legislation that may be
proposed in the United States Congress that would authorize the states to
enact legislation governing interstate shipments of waste. Such proposed
federal legislation may allow individual states to prohibit the disposal of
out-of-state waste or to limit the amount of out-of-state waste that could
be imported for disposal and would require states, under certain
circumstances, to reduce the amounts of waste exported to other states. If
this or similar legislation is enacted, states in which Allied will operate
landfills could act to limit or prohibit the importation of out-of-state
waste or exportation of waste. Such state actions could adversely affect
landfills within these states that receive a significant portion of waste
originating from out-of-state. Management believes that several states have
proposed or have considered adopting legislation that would regulate the
interstate transportation and disposal of waste in their landfills. Many
states have also adopted legislative and regulatory measures to mandate or
encourage waste reduction at the source and waste recycling.
As a condition to the Laidlaw Acquisition, Allied engaged Emcon
Environmental Services, Inc. ("Emcon"), an independent environmental
consultant, to conduct environmental assessments of the Laidlaw Acquired
Businesses. In its report (the "Emcon Environmental Report"), Emcon
identified several contaminated properties under the management of the
Laidlaw Acquired Businesses, including 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 the
information then available, 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, AWNA and Laidlaw, among
others, relating to the Laidlaw Acquisition (the "Laidlaw Acquisition
Agreement") with respect to the environmental matters (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 on the closing date. The Laidlaw Acquisition Agreement further
provided that Laidlaw's indemnification obligations with respect to
environmental matters would be limited to the amount by which the aggregate
of all such damages exceeded a $1 million basket, without giving effect to
any materiality qualifications. At the closing of the Laidlaw Acquisition,
Allied and Laidlaw entered into a special environmental indemnity (the
"Special Environmental Indemnity"), which was subsequently amended to
provide an indemnity for damages arising out of the Etobicoke, Ontario and
Delafield, Wisconsin sites that will be limited to a three-year period from
the closing of the Laidlaw Acquisition and to an amount in excess of a $25
million basket with such $25 million basket to be reduced by any damages to
which the $1 million basket in the Laidlaw Acquisition Agreement applies.
Laidlaw's indemnity for properties located at Gary Lagoons, Indiana remains
intact and is not subject to the three-year limitation or any basket.
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. 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. Allied carries environmental impairment liability insurance
for all of its operating landfills except one owned and four operated
sites. The environmental impairment liability insurance is in the amount of
up to $5 million for the policy term in excess of a $1 million deductible
per claim. 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 Senior Credit Facility or other sources of liquidity.
There can be no assurance that Allied would be able to fund any such claim
from operations, the Senior Credit Facility or elsewhere.
LAIDLAW TAX INDEMNIFICATION
Laidlaw has disclosed to Allied the existence of a tax controversy
(the "Tax Controversy") relating to disallowed deductions in income tax
returns in the amount of more than $385 million with the United States
Internal Revenue Service involving the consolidated U.S. federal income tax
liability for the fiscal years ended August 31, 1986, 1987 and 1988 of the
members of an affiliated group of corporations (the "LTI U.S. Consolidated
Tax Group") within the meaning of Section 1504(c) of the Internal Revenue
Code ("IRC"), of which Laidlaw Transportation, Inc. ("LTI") is the common
parent corporation (which includes LTI, those Laidlaw Acquired Businesses
which are incorporated in the U.S. (the "LSW U.S. Subsidiaries"), and other
U.S. subsidiaries of LTI which were not acquired in the Laidlaw
Acquisition). The LTI U.S. Consolidated Tax Group has also received notice
that fiscal years 1992, 1993 and 1994 will be examined regarding the Tax
Controversy. Under Treasury Regulations promulgated under Section 1502 of
the IRC, each member of the LTI U.S. Consolidated Tax Group, including each
LSW Subsidiary, is or could be severally liable for United States federal
income tax liabilities of the entire LTI 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 certain of its
subsidiaries (the "Laidlaw Group") 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 the Laidlaw Group to indemnify Allied in respect
of amounts at issue in the Tax Controversy is a general, unsecured
obligation of the Laidlaw Group. The ability of the Laidlaw Group to pay
and fulfill such indemnification obligation will depend on the financial
condition of the Laidlaw Group 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 interfere with
collection and landfill operations, delay the development of landfill
capacity and/or reduce the volume of waste generated by Allied's customers.
In addition, particularly harsh weather conditions may result in the
temporary suspension of certain of Allied's operations. 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.
DISCLOSURE REGARDING FORWARD LOOKING STATEMENTS
This Prospectus contains certain statements that are "Forward Looking
Statements" within the meaning of Section 27A of the Securities Act and
Section 21E of the Exchange Act. Those statements include, among other
things, the discussions of Allied's business strategy and expectations
concerning market position, future operations, margins, profitability,
liquidity and capital resources, as well as statements concerning the
integration of the operations of businesses and assets that have been
acquired by Allied and the achievement of financial benefits and
operational efficiencies in connection therewith. Although Allied believes
that the expectations reflected in such Forward Looking Statements are
reasonable, they can give no assurance that such expectations will prove to
be correct. Generally, these statements relate to business plans or
strategies, projected or anticipated benefits or other consequences of such
plans or strategies, number of acquisitions and projected or anticipated
benefits from acquisitions made by or to be made by Allied, or projections
involving anticipated revenues, expenses, earnings, levels of capital
expenditures or other aspects of operating results and financial
conditions. All phases of the operations of Allied are subject to a number
of uncertainties, risks and other influences, many of which are outside the
control of Allied and any one of which, or a combination of which, could
materially affect the results of Allied's operations and whether the
Forward Looking Statements made by Allied ultimately prove to be accurate.
Important factors that could cause actual results to differ materially from
Allied's expectations are disclosed in "Risk Factors."
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 ENDED
YEAR ENDED DECEMBER 31, MARCH 31,
-------------------------------------- --------------------
1993 1994 1995 1996 1997 1998
---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C>
Ratio of earnings to fixed charges............................. 1.4x (FN1) 1.5x (FN2) 1.4x 1.4x
Ratio of earnings to fixed charges and preferred stock
dividends..................................................... 1.2x (FN1) 1.1x (FN2) 1.4x 1.4x (FN3)
- ----------
<FN>
(1) Earnings were insufficient to cover fixed charges and fixed charges
and preferred stock dividends by $5,461,000 and $11,187,000,
respectively.
(2) Earnings were insufficient to cover fixed charges and fixed charges
and preferred stock dividends by $80,300,000 and $81,381,000,
respectively.
(3) There was no preferred stock outstanding during 1998.
</FN>
</TABLE>
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, as 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, 1998, Allied had outstanding 104,872,477 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 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
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.
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
Subordinated Allied Debt Securities or the Subordinated AWNA Debt
Securities, specific references to "Subordinated Allied Debt Securities" or
"Subordinated AWNA Debt Securities" will be made, otherwise references to
"Subordinated Debt Securities" shall be deemed to apply to both the
Subordinated Allied Debt Securities and the 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 Subordinated Allied Debt Securities offered hereby are to be
issued in one or more series under an Indenture (as amended or
supplemented, the "Subordinated Allied Indenture") to be entered into
between Allied and First Trust National Association, as trustee (the
"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 Nationa1 Association, as trustee (the "Senior AWNA Trustee" and,
together with the Senior Allied Trustee, the "Senior Trustees"). The
Subordinated AWNA Debt Securities offered hereby are to be issued in one or
more series under an Indenture (as amended or supplemented, the
"Subordinated AWNA Indenture" and, together with the Subordinated Allied
Indenture, the "Subordinated Indentures") to be entered into between AWNA,
Allied, as guarantor, the Subsidiary Guarantors and First Trust National
Association, as trustee (the "Subordinated AWNA Trustee" and, together with
the Subordinated Allied Trustee, the "Subordinated Trustees"). The Senior
Indentures and the Subordinated Indentures are referred to collectively
herein as the "Indentures" and the Senior Trustees and the 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
Allied 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 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 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 subordinated obligations of Allied or AWNA, as the case may be,
and (iv) the Subordinated Guarantees and the Allied 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 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 Subordinated Indentures" and the Prospectus
Supplement relating to any offering of 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 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
agreement 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 agreement
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 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 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
bookentry 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 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 Subordinated
AWNA Indenture or the 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 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 (as defined herein) 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 Subordinated Indenture).
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 agreement 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 (as defined herein) 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 (as defined below) 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 Securities. If the principal of and interest on 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 Subordinated Indenture. (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 an agreement 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 an agreement 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 agreements 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 agreements 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 Subordinated Indentures,
to modify the subordination provisions thereof in a manner not adverse to
the holders of 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)
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
Subordinated Indenture, modify the subordination provisions thereof in a
manner adverse to the holders of 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 agreements 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 SUBORDINATED INDENTURES
The payment of the principal of, premium, if any, and interest on the
Subordinated Debt Securities will, in certain circumstances as set forth in
the applicable 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, 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 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 Subordinated Debt
Securities) on account of the principal of, premium, if any, or interest on
the Subordinated Debt Securities or on account of the purchase or
redemption or other acquisition of Subordinated Debt Securities by Allied,
AWNA or any subsidiary of Allied. In the event that, notwithstanding the
foregoing, the applicable Subordinated Trustee or the holder of any
Subordinated Debt Securities receives any Securities Payment before all
Senior Debt of Allied, or 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 Subordinated Allied Indenture and the 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, 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 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 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 Subordinated
Allied Indenture and the Subordinated AWNA Indenture)
In any event, not more than one blockage period with respect to any
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 Subordinated Trustee or any holder of the applicable
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 Subordinated
Allied Indenture and the 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 Subordinated
Debt Securities may recover less, ratably, than holders of such Senior Debt
and may recover more, ratably, than the holders of the applicable
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 Senior Credit Facility, (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 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 the case may be, or, in the case of the 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 Senior Credit
Facility, 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
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 Allied 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 Subordinated Debt Securities upon any
defeasance or agreement defeasance of such Subordinated Debt Securities as
described under "--Defeasance and Agreement Defeasance."
The 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 Subordinated Indenture provides that the foregoing subordination
provisions, insofar as they relate to any particular issue of Subordinated
Securities, may be changed prior to such issuance. Any such change would be
described in the Prospectus Supplement relating to such Subordinated
Securities. (Section 3.1 of the 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, premium, if any, and interest on the
Senior AWNA Debt Securities. Allied and the Subsidiary Guarantors will,
jointly and severally, on a subordinated basis, unconditionally guarantee
(the "Subordinated Guarantees") the due and punctual payment of principal
of, premium, if any, and interest on the 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
Subordinated Guarantees will be unconditionally guaranteed on a senior and
subordinated basis, respectively, by Allied (the "Allied Senior Guarantee"
and "Allied Subordinated Guarantee," respectively, and, together with the
Senior Guarantees and the 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 Subordinated Guarantees and the
Allied 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 subordinated obligations of the Guarantors and Allied,
respectively. No payment will be made by any Guarantor under its
Subordinated Guarantee or by Allied on its Allied Subordinated Guarantee in
respect of the Subordinated AWNA Debt Securities during any period that
payments by AWNA on the Subordinated AWNA Debt Securities are suspended by
the subordination provisions of the Subordinated AWNA Indenture. (Sections
15.1, 15.2 and 15.3 of the Allied Subordinated Indenture and Sections 16.1,
16.2 and 16.3 of the AWNA 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 Allied 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 Subordinated AWNA Debt Securities under the
related Subordinated Guarantees of such Guarantor and Allied 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 AGREEMENT 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 moneys 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, (i)
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)
Defeasance of Certain Agreements 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 agreements 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 agreements 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, (i) Allied or AWNA, as the case
may be, 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 Subordinated Indenture, in order to
be discharged or omit compliance with certain agreements 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 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 agreements 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 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% AWNA Notes due 2007 and the
Indenture dated as of December 1, 1996 (the "10.25% Indenture") relating to
AWNA's 10.25% 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 10.25% 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
10.25% 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 of, premium, if any, or interest, if
any, on the Debt Securities purchasable upon such exercise.
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.
SELLING SECURITY HOLDERS
This Prospectus has also been prepared for use by persons who may be
entitled to offer such Securities under circumstances requiring the use of
a prospectus (such persons being referred to as "Selling Security
Holders"); provided, however, that no Selling Security Holder will be
authorized to use this Prospectus for an offer of such Securities without
first obtaining Allied's consent. Allied may consent to the use of this
Prospectus by Selling Security Holders for a limited period of time and
subject to limitations and conditions, which may be varied by agreement
between Allied and the Selling Security Holders. Information identifying
any such Selling Security Holder and disclosing such information concerning
the Selling Security Holder and the Securities to be sold as may then be
required by the Securities Act and the rules of the Commission will be set
forth in a supplement to this Prospectus.
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.
The distribution of the Securities may be effected on Nasdaq or such
other national securities exchange or quotation service on which the
Securities may be listed or quoted at the time of sale, in the
over-the-counter market, in private transactions or pursuant to
underwriting agreements. Such distribution, including resales, may be
effected in one or more of the following methods: (i) ordinary brokers'
transactions, which may include long or short sales; (ii) transactions
involving cross or block trades or otherwise on Nasdaq; (iii) purchases by
brokers, dealers or underwriters as principal and resale for their own
accounts pursuant to this Prospectus; (iv) "at the market" to or through
market makers or into an existing market for the Securities; (v) in other
ways not involving market makers or established trading markets, including
direct sales to purchasers or sales effected through agents; (vi) through
transactions in options, swaps or other derivatives (whether
exchange-listed or otherwise); or (vii) any combination of the foregoing,
or by any other legally available means.
Agreements with Selling Security Holders permitting use of this
Prospectus may provide that any such offering be effected in an orderly
manner through securities dealers, acting as broker or dealer, selected by
Allied; that Selling Security Holders enter into custody agreements with
one or more banks with respect to the Securities offered; and that sales be
made only by one or more of the methods described in this Prospectus, as
appropriately supplemented or amended when required. The Selling Security
Holders may be deemed to be underwriters within the meaning of the
Securities Act.
In connection with the sale of Securities, underwriters or agents may
receive compensation from Allied, AWNA, Selling Security Holders 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 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 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, AWNA or the Selling Security
Holders will be described, in the related Prospectus Supplement.
Upon Allied being notified by a Selling Security Holder that it
proposed to make a block trade, a prospectus supplement, if required, will
be filed pursuant to Rule 424 under the Securities Act, disclosing the name
of the broker or dealer, the number of shares of Common Stock involved, the
price at which such shares of Common Stock are being sold by such Selling
Security Holder, and the commissions to be paid by such Selling Security
Holder to such broker or dealer.
To comply with the securities laws of certain jurisdictions, if
applicable, the Securities will be offered or sold in such jurisdictions
only through registered or licensed brokers or dealers. In addition, in
certain jurisdictions, such securities may not be offered or sold unless
they have been registered or qualified for sale in such jurisdictions or
any exemption from registration or qualification is available and is
complied with.
Under agreements which may be entered into by Allied, AWNA and/or the
Selling Security Holders, underwriters and agents who participate in the
distribution of Securities may be entitled to indemnification by Allied,
AWNA and the Selling Security Holders against certain liabilities,
including liabilities under the Securities Act.
If so indicated in the related Prospectus Supplement, Allied, AWNA or
the Selling Security Holders will authorize underwriters or other persons
acting as Allied's, AWNA's or the Selling Security Holders' agents to
solicit offers by certain institutions to purchase Securities from Allied,
AWNA or the Selling Security Holders 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, AWNA or the Selling Security Holders. The obligation 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.
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.
===================================== ======================================
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 ALLIED WASTE
REFERENCE IN THIS PROSPECTUS OR IN INDUSTRIES, INC.
ANY PROSPECTUS SUPPLEMENT IN
CONNECTION WITH THE OFFERING COVERED COMMON STOCK, PREFERRED STOCK,
BY THIS PROSPECTUS AND ANY DEBT SECURITIES AND WARRANTS
PROSPECTUS SUPPLEMENT. IF GIVEN OR
MADE, SUCH INFORMATION OR ALLIED WASTE
REPRESENTATIONS MUST NOT BE RELIED NORTH AMERICA, INC.
UPON AS HAVING BEEN AUTHORIZED. THIS
PROSPECTUS AND ANY PROSPECTUS DEBT SECURITIES
SUPPLEMENT DO NOT CONSTITUTE AN
OFFER TO SELL, OR THE SOLICITATION PAYMENT OF PRINCIPAL, PREMIUM, IF ANY,
OF AN OFFER TO BUY ANY SECURITIES AND INTEREST UNCONDITIONALLY GUARANTEED
OTHER THAN THOSE TO WHICH THEY BY ALLIED WASTE INDUSTRIES, INC. AND
RELATE, IN ANY JURISDICTION WHERE, SUBSIDIARY GUARANTORS
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 [AW Logo]
PAGE
Available Information.............1
Incorporation of Certain
Documents by Reference.........2 -------------------
Use of Proceeds...................2 PROSPECTUS
Risk Factors......................2 -------------------
Disclosure Regarding Forward
Looking Statements.............8
Ratio of Earnings to Fixed
Charges and Earnings to
Fixed Charges and Preferred
Stock Dividends............. 8
Description of Capital Stock......9
Description of Debt
Securities and Guarantees.....10 , 1998
Description of Warrants..........22
Selling Security Holders.........23
Plan of Distribution.............24
Validity of Securities...........25
Experts..........................25
===================================== ======================================
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION*
SEC registration fee.......................... $ 236,000
Nasdaq listing fee............................ 35,000
Blue sky fees and expenses.................... 15,000
Legal fees and expenses....................... 600,000
Accounting fees and expenses.................. 200,000
Printing and engraving expenses............... 400,000
Transfer agent and registrar fees and expenses 10,000
Trustees' fees and expenses................... 15,000
Rating agency fees............................ 100,000
Miscellaneous................................. 39,000
-------------
Total....................................... $1,650,000
=============
- -------------------
* 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>
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.
Number Description
- ------ -----------
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 as of May 13, 1997 (Incorporated
herein by reference to Exhibit 3.2 to Allied's Quarterly Report on
Form 10-Q for the quarter ended June 30, 1997).
4.3 Form of Senior Indenture between Allied and First Trust National
Association, as trustee.
4.4 Form of 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 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.
12.2 Statement regarding computation of ratio of earnings to fixed charges
and preferred stock dividends.
23.1 Consent of Arthur Andersen LLP.
23.2 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 (included on Pages II-4 through II-6 of this Registration
Statement).
24.2 Power of Attorney for the Subsidiary Guarantors relating to subsequent
amendments (included on Pages II-7 through II-21 of this Registration
Statement).
25.1 Form T-1 Statement of Eligibility Under Trust Indenture Act of 1939 of
First Trust National Association.
25.2 Form T-1 Statement of Eligibility Under Trust Indenture Act of 1939 of
First Trust National Association.
25.3 Form T-1 Statement of Eligibility Under Trust Indenture Act of 1939 of
First Trust National Association.
25.4 Form T-1 Statement of Eligibility Under Trust Indenture Act of 1939 of
First Trust National Association.
- -------------------
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
II-2
<PAGE>
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 (I)
(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.
(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-3
<PAGE>
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 23rd day of June, 1998.
Allied Waste Industries, Inc.
By: /s/ HENRY L. HIRVELA
------------------------------
Henry L. Hirvela
Vice President - Chief
Financial Officer
POWER OF ATTORNEY
Each of the undersigned hereby appoints Thomas H. Van Weelden, Henry
L. Hirvela, James S. Eng 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 on June 23, 1998.
SIGNATURE TITLE
--------- -----
/s/ ROGER A. RAMSEY Chairman of the Board of Directors
- ----------------------------------
Roger A. Ramsey
/s/ THOMAS H. VAN WEELDEN Director, President and Chief Executive
- ---------------------------------- Officer (Principal Executive Officer)
Thomas H. Van Weelden
/s/ HENRY L. HIRVELA Vice President - Chief Financial Officer
- ---------------------------------- (Principal Financial Officer)
Henry L. Hirvela
/s/ JAMES S. ENG Corporate Controller (Principal
- ---------------------------------- Accounting Officer)
James S. Eng
/s/ NOLAN LEHMANN Director
- ----------------------------------
Nolan Lehmann
/s/ ALAN B. SHEPARD Director
- ----------------------------------
Alan B. Shepard
/s/ MICHAEL GROSS Director
- ----------------------------------
Michael Gross
/s/ DAVID B. KAPLAN Director
- ----------------------------------
David B. Kaplan
II-4
<PAGE>
Director
- ----------------------------------
Antony P. Ressler
/s/ HOWARD A. LIPSON Director
- ----------------------------------
Howard A. Lipson
/s/ DENNIS HENDRIX Director
- ----------------------------------
Dennis Hendrix
/s/ WARREN B. RUDMAN Director
- ----------------------------------
Warren B. Rudman
/s/ VINCENT TESE Director
- ----------------------------------
Vincent Tese
II-5
<PAGE>
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 23rd day of June, 1998.
Allied Waste North America, Inc.
By: /s/ HENRY L. HIRVELA
----------------------------------
Henry L. Hirvela
Vice President - Chief
Financial Officer
POWER OF ATTORNEY
Each of the undersigned hereby appoints Thomas H. Van Weelden, Henry
L. Hirvela, James S. Eng 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 on June 23, 1998.
SIGNATURE TITLE
--------- -----
/s/ ROGER A. RAMSEY Chairman of the Board of
- ---------------------------------- Directors
Roger A. Ramsey
/s/ THOMAS H. VAN WEELDEN Director, President and Chief Executive
- ---------------------------------- Officer (Principal Executive
Thomas H. Van Weelden Officer)
/s/ HENRY L. HIRVELA Director, Vice President - Chief
- ---------------------------------- Financial Officer (Principal
Henry L. Hirvela Financial Officer)
/s/ JAMES S. ENG Corporate Controller (Principal
- ---------------------------------- Accounting Officer)
James S. Eng
II-6
<PAGE>
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 23rd day of June, 1998.
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 Thomas H. Van Weelden, Henry
L. Hirvela, James S. Eng 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 June 23, 1998.
SIGNATURE TITLE
--------- -----
/s/ DONALD W. SLAGER Director and Executive Vice President
- ---------------------------------- (Principal Executive Officer)
Donald W. Slager
/s/ G. THOMAS ROCHFORD, JR. Director and Treasurer (Principal
- ---------------------------------- Financial Officer and Principal
G. Thomas Rochford, Jr. Accounting Officer)
/s/ JAMES S. ENG Director
- ----------------------------------
James S. Eng
II-7
<PAGE>
SIGNATURES
----------
Pursuant to the requirements of the Securities Act of 1933, each of
the Subsidiary Guarantors listed on Schedule B 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 23rd day of June, 1998.
On behalf of each Subsidiary
Guarantor listed on Schedule B
hereto.
By: /s/ DONALD W. SLAGER
----------------------------------
Donald W. Slager
President
POWER OF ATTORNEY
Each of the undersigned hereby appoints Thomas H. Van Weelden, Henry
L. Hirvela, James S. Eng 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 B hereto on June 23, 1998.
SIGNATURE TITLE
--------- -----
/s/ DONALD W. SLAGER Director and President
- ---------------------------------- (Principal Executive Officer)
Donald W. Slager
/s/ G. THOMAS ROCHFORD, JR. Director and Treasurer (Principal
- ---------------------------------- Financial Officer and Principal
G. Thomas Rochford, Jr. Accounting Officer)
/s/ JAMES S. ENG Director
- ----------------------------------
James S. Eng
II-8
<PAGE>
SIGNATURES
----------
Pursuant to the requirements of the Securities Act of 1933, each of
the Subsidiary Guarantors listed on Schedule C 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 23rd day of June, 1998.
On behalf of each Subsidiary
Guarantor listed on Schedule C
hereto.
By: /s/ PETER S. HATHAWAY
----------------------------------
Peter S. Hathaway
President
POWER OF ATTORNEY
Each of the undersigned hereby appoints Thomas H. Van Weelden, Henry
L. Hirvela, James S. Eng 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 C hereto on June 23, 1998.
SIGNATURE TITLE
--------- -----
/s/ PETER S. HATHAWAY Director and President (Principal
- ---------------------------------- Executive Officer, Principal
Peter S. Hathaway Financial Officer and Principal
Accounting Officer)
/s/ STEVEN M. HELM Director and Secretary
- ----------------------------------
Steven M. Helm
/s/ MICHAEL HANNON Director
- ----------------------------------
Michael Hannon
II-9
<PAGE>
SIGNATURES
----------
Pursuant to the requirements of the Securities Act of 1933, each of
the Subsidiary Guarantors listed on Schedule D 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 23rd day of June, 1998.
On behalf of each Subsidiary
Guarantor listed on Schedule D
hereto.
By: /s/ THOMAS H. VAN WEELDEN
----------------------------------
Thomas H. Van Weelden
President
POWER OF ATTORNEY
Each of the undersigned hereby appoints Thomas H. Van Weelden, Henry
L. Hirvela, James S. Eng 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 D hereto on June 23, 1998.
SIGNATURE TITLE
--------- -----
/s/ THOMAS H. VAN WEELDEN Director and President (Principal
- ---------------------------------- Executive Officer)
Thomas H. Van Weelden
/s/ G. THOMAS ROCHFORD, JR. Treasurer (Principal Financial Officer
- ---------------------------------- and Principal Accounting Officer)
G. Thomas Rochford, Jr.
/s/ STEVEN M. HELM Director
- ----------------------------------
Steven M. Helm
/s/ HENRY H. HIRVELA Director
- ----------------------------------
Henry H. Hirvela
II-10
<PAGE>
SIGNATURES
----------
Pursuant to the requirements of the Securities Act of 1933, each of
the Subsidiary Guarantors listed on Schedule E 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 23rd day of June, 1998.
On behalf of each Subsidiary
Guarantor listed on Schedule E
hereto.
By: /s/ HENRY H. HIRVELA
----------------------------------
Henry H. Hirvela
President
POWER OF ATTORNEY
Each of the undersigned hereby appoints Thomas H. Van Weelden, Henry
L. Hirvela, James S. Eng 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 E hereto on June 23, 1998.
SIGNATURE TITLE
--------- -----
/s/ HENRY H. HIRVELA Direcotr and President
- ---------------------------------- (Principal Executive Officer)
Henry H. Hirvela
/s/ G. THOMAS ROCHFORD, JR. Treasurer (Principal Financial Officer
- ---------------------------------- and Principal Accounting Officer)
G. Thomas Rochford, Jr.
II-11
<PAGE>
SIGNATURES
----------
Pursuant to the requirements of the Securities Act of 1933, each of
the Subsidiary Guarantors listed on Schedule F 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 23rd day of June, 1998.
On behalf of each Subsidiary
Guarantor listed on Schedule F
hereto.
By: /s/ JAMES S. ENG
----------------------------------
James S. Eng
President
POWER OF ATTORNEY
Each of the undersigned hereby appoints Thomas H. Van Weelden, Henry
L. Hirvela, James S. Eng 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 F hereto on June 23, 1998.
SIGNATURE TITLE
--------- -----
/s/ JAMES S. ENG Director and President (Principal
- ---------------------------------- Executive Officer)
James S. Eng
/s/ G. THOMAS ROCHFORD, JR. Director and Treasurer (Principal
- ---------------------------------- Financial Officer and Principal
G. Thomas Rochford, Jr. Accounting Officer)
/s/ DONALD W. SLAGER Director
- ----------------------------------
Donald W. Slager
II-12
<PAGE>
SIGNATURES
----------
Pursuant to the requirements of the Securities Act of 1933, each of
the Subsidiary Guarantors listed on Schedule G 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 23rd day of June, 1998.
On behalf of each Subsidiary
Guarantor listed on Schedule G
hereto.
By: /s/ DONALD W. SLAGER
----------------------------------
Donald W. Slager
Executive Vice President
POWER OF ATTORNEY
Each of the undersigned hereby appoints Thomas H. Van Weelden, Henry
L. Hirvela, James S. Eng 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 G hereto on June 23, 1998.
SIGNATURE TITLE
--------- -----
/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/ HENRY L. HIRVELA Managing Member
- ----------------------------------
Allied Waste North America, Inc.
By Henry L. Hirvela
Attorney-in-fact
II-13
<PAGE>
SIGNATURES
----------
Pursuant to the requirements of the Securities Act of 1933, each of
the Subsidiary Guarantors listed on Schedule H 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 23rd day of June, 1998.
On behalf of each Subsidiary
Guarantor listed on Schedule H
hereto.
By: /s/ DONALD W. SLAGER
----------------------------------
Donald W. Slager
President
POWER OF ATTORNEY
Each of the undersigned hereby appoints Thomas H. Van Weelden, Henry
L. Hirvela, James S. Eng 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 H hereto on June 23, 1998.
SIGNATURE TITLE
--------- -----
/s/ DONALD W. SLAGER Director and President
- ---------------------------------- (Principal Executive Officer)
Donald W. Slager
/s/ G. THOMAS ROCHFORD, JR. Director and Treasurer (Principal
- ---------------------------------- Financial Officer and Principal
G. Thomas Rochford, Jr. Accounting Officer)
/s/ JAMES S. ENG Director
- ----------------------------------
James S. Eng
/s/ DOUG BORRO Director
- ----------------------------------
Doug Borro
Director
- ----------------------------------
Ward Hearst
/s/ JO LYNN WHITE Director
- ----------------------------------
Jo Lynn White
II-14
<PAGE>
SIGNATURES
----------
Pursuant to the requirements of the Securities Act of 1933, each of
the Subsidiary Guarantors listed on Schedule I 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 23rd day of June, 1998.
On behalf of each Subsidiary
Guarantor listed on Schedule I
hereto.
By Allied Waste Landfill Holdings,
Inc., General Partner
By: /s/ JAMES S. ENG
----------------------------------
James S. Eng
Attorney-in-fact
POWER OF ATTORNEY
The undersigned hereby appoints Thomas H. Van Weelden, Henry L.
Hirvela, James S. Eng 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 I hereto on June 23, 1998.
SIGNATURE TITLE
--------- -----
/s/ JAMES S. ENG General Partner
- ----------------------------------
Allied Waste Landfill Holdings, Inc.
By James S. Eng,
Attorney-in-fact
II-15
<PAGE>
SIGNATURES
----------
Pursuant to the requirements of the Securities Act of 1933, each of
the Subsidiary Guarantors listed on Schedule J 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 23rd day of June, 1998.
On behalf of each Subsidiary Guarantor listed on
Schedule J hereto.
By: /s/ DONALD W. SLAGER
------------------------------
Donald W. Slager
President
POWER OF ATTORNEY
The undersigned hereby appoints Thomas H. Van Weelden, Henry L.
Hirvela, James S. Eng 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 J hereto on June 23, 1998.
SIGNATURE TITLE
--------- -----
/s/ DONALD W. SLAGER President (Principal Executive Officer)
- ----------------------------------
Donald W. Slager
/s/ G. THOMAS ROCHFORD, JR. Treasurer (Principal Financial Officer
- ---------------------------------- and Principal Accounting Officer)
G. Thomas Rochford, Jr.
II-16
<PAGE>
SIGNATURES
----------
Pursuant to the requirements of the Securities Act of 1933, each of
the Subsidiary Guarantors listed on Schedule K 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 23rd day of June, 1998.
On behalf of each Subsidiary Guarantor listed on
Schedule K hereto.
By: /s/ ROGER A. RAMSEY
------------------------------
Roger A. Ramsey
President
POWER OF ATTORNEY
The undersigned hereby appoints Thomas H. Van Weelden, Henry L.
Hirvela, James S. Eng 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 K hereto on June 23, 1998.
SIGNATURE TITLE
--------- -----
/s/ ROGER A. RAMSEY Director, President and Chief
- ---------------------------------- Executive Officer (Principal
Roger A. Ramsey Executive Officer)
/s/ HENRY H. HIRVELA Director, Vice President -
- ---------------------------------- Finance (Principal Financial Officer)
Henry H. Hirvela
/s/ G. THOMAS ROCHFORD, JR. Treasurer (Principal
- ---------------------------------- Accounting Officer)
G. Thomas Rochford, Jr.
/s/ THOMAS H. VAN WEELDEN Director
- ----------------------------------
Thomas H. Van Weelden
II-17
<PAGE>
SIGNATURES
----------
Pursuant to the requirements of the Securities Act of 1933, each of
the Subsidiary Guarantors listed on Schedule L 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 23rd day of June, 1998.
On behalf of each Subsidiary Guarantor listed on
Schedule L hereto.
By Allied Waste Landfill Holdings, Inc., General Partner
By: /s/ JAMES S. ENG
------------------------------
James S. Eng
Attorney-in-fact
By Allied Waste Industries of Indiana, Inc., General Partner
By: /s/ JAMES S. ENG
------------------------------
James S. Eng
Attorney-in-fact
POWER OF ATTORNEY
The undersigned hereby appoints Thomas H. Van Weelden, Henry L.
Hirvela, James S. Eng 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 L hereto on June 23, 1998.
SIGNATURE TITLE
--------- -----
/s/ JAMES S. ENG General Partner
- ----------------------------------
Allied Waste Landfill Holdings, Inc.
By James S. Eng,
Attorney-in-fact
/s/ JAMES S. ENG General Partner
- ----------------------------------
Allied Waste Industries of Indiana,
Inc.
By James S. Eng,
Attorney-in-fact
II-18
<PAGE>
SIGNATURES
----------
Pursuant to the requirements of the Securities Act of 1933, each of
the Subsidiary Guarantors listed on Schedule M 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 23rd day of June, 1998.
On behalf of each Subsidiary Guarantor listed on
Schedule M hereto.
By Allied Waste Landfill Holdings, Inc., General Partner
By: /s/ JAMES S. ENG
------------------------------
James S. Eng
Attorney-in-fact
By Illiana Disposal Services, Inc., General Partner
By: /s/ JAMES S. ENG
------------------------------
James S. Eng
Attorney-in-fact
POWER OF ATTORNEY
The undersigned hereby appoints Thomas H. Van Weelden, Henry L.
Hirvela, James S. Eng 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 M hereto on June 23, 1998.
SIGNATURE TITLE
--------- -----
/s/ JAMES S. ENG General Partner
- ----------------------------------
Allied Waste Landfill Holdings,
Inc.
By James S. Eng,
Attorney-in-fact
/s/ JAMES S. ENG General Partner
- ----------------------------------
Illiana Disposal Services, Inc.
By James S. Eng,
Attorney-in-fact
II-19
<PAGE>
SIGNATURES
----------
Pursuant to the requirements of the Securities Act of 1933, each of
the Subsidiary Guarantors listed on Schedule N 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 23rd day of June, 1998.
On behalf of each Subsidiary Guarantor listed on
Schedule N hereto.
By Allied Waste Landfill Holdings, Inc., General Partner
By: /s/ JAMES S. ENG
------------------------------
James S. Eng
Attorney-in-fact
By Allied Waste Industries of Plymouth, Inc., General
Partner
By: /s/ JAMES S. ENG
------------------------------
James S. Eng
Attorney-in-fact
POWER OF ATTORNEY
The undersigned hereby appoints Thomas H. Van Weelden, Henry L.
Hirvela, James S. Eng 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 N hereto on June 23, 1998.
SIGNATURE TITLE
--------- -----
/s/ JAMES S. ENG General Partner
- ----------------------------------
Allied Waste Landfill Holdings,
Inc.
By James S. Eng,
Attorney-in-fact
/s/ JAMES S. ENG General Partner
- ----------------------------------
Allied Waste Industries of
Plymouth, Inc.
By James S. Eng,
Attorney-in-fact
II-20
<PAGE>
SIGNATURES
----------
Pursuant to the requirements of the Securities Act of 1933, each of
the Subsidiary Guarantors listed on Schedule O 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 23rd day of June, 1998.
On behalf of each Subsidiary Guarantor listed on
Schedule O hereto.
By Allied Waste Landfill Holdings, Inc., General Partner
By: /s/ JAMES S. ENG
------------------------------
James S. Eng
Attorney-in-fact
By Newton County Development Corp., General Partner
By: /s/ JAMES S. ENG
------------------------------
James S. Eng
Attorney-in-fact
POWER OF ATTORNEY
The undersigned hereby appoints Thomas H. Van Weelden, Henry L.
Hirvela, James S. Eng 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 O hereto on June 23, 1998.
SIGNATURE TITLE
--------- -----
/s/ JAMES S. ENG General Partner
- ----------------------------------
Allied Waste Landfill Holdings,
Inc.
By James S. Eng,
Attorney-in-fact
/s/ JAMES S. ENG General Partner
- ----------------------------------
Newton County Development Corp.
By James S. Eng,
Attorney-in-fact
II-21
<PAGE>
EXHIBIT INDEX
Number Description
- ------ -----------
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 as of May 13, 1997 (Incorporated
herein by reference to Exhibit 3.2 to Allied's Quarterly Report on
Form 10-Q for the quarter ended June 30, 1997).
4.3 Form of Senior Indenture between Allied and First Trust National
Association, as trustee.
4.4 Form of 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 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.
12.2 Statement regarding computation of ratio of earnings to fixed charges
and preferred stock dividends.
23.1 Consent of Arthur Andersen LLP.
23.2 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 (included on Pages II-4 through II-6 of this Registration
Statement).
24.2 Power of Attorney for the Subsidiary Guarantors relating to subsequent
amendments (included on Pages II-7 through II-21 of this Registration
Statement).
25.1 Form T-1 Statement of Eligibility Under Trust Indenture Act of 1939 of
First Trust National Association.
25.2 Form T-1 Statement of Eligibility Under Trust Indenture Act of 1939 of
First Trust National Association.
25.3 Form T-1 Statement of Eligibility Under Trust Indenture Act of 1939 of
First Trust National Association.
25.4 Form T-1 Statement of Eligibility Under Trust Indenture Act of 1939 of
First Trust National Association.
II-22
EXHIBIT 4.3
===========================================================================
ALLIED WASTE INDUSTRIES, INC., as Issuer
to
FIRST TRUST NATIONAL ASSOCIATION, as Trustee
SENIOR INDENTURE
Dated as of _________________, 1998
Providing for Issuance of
Senior Debt Securities in Series
===========================================================================
Reconciliation and tie between Senior Indenture, dated as of _____________,
1998 (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
(a)(1)(B).................................5.7
(b).......................................5.9; 5.10
(c).......................................TIA
317(a)(1).......................................5.3
(a)(2)....................................5.4
(b).......................................9.3
318(a)..........................................1.12
(b).......................................TIA
(c).......................................1.12; TIA
This reconciliation and tie section does not constitute part of the
Indenture.
TABLE OF CONTENTS
Page
Recitals..................................................................1
ARTICLE 1
Definitions and Other Provisions of General Application...................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...............15
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................................17
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..........................................18
Section 1.15. Independence of Agreements..........................18
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......................................19
Section 2.3. Global Securities...................................20
Section 2.4. Form of Legend for Global Securities................20
ARTICLE 3
The Securities...........................................................21
Section 3.1. Amount Unlimited; Issuable in Series................21
Section 3.2. Denominations.......................................25
Section 3.3. Execution, Authentication, Delivery and
Dating..............................................25
Section 3.4. Temporary Securities................................29
Section 3.5. Registration, Transfer and Exchange.................29
Section 3.6. Replacement Securities..............................34
Section 3.7. Payment of Interest; Interest Rights
Preserved...........................................35
Section 3.8. Persons Deemed Owners...............................37
Section 3.9. Cancellation........................................38
Section 3.10. Computation of Interest.............................39
Section 3.11. CUSIP Numbers.......................................39
Section 3.12. Currency and Manner of Payment in Respect
of Securities.......................................39
ARTICLE 4
Satisfaction, Discharge and Defeasance...................................39
Section 4.1. Termination of Company's Obligations Under
the Indenture.......................................39
Section 4.2. Application of Trust Funds..........................41
Section 4.3. Applicability of Defeasance Provisions;
Company's Option to Effect Defeasance or
Agreement Defeasance................................41
Section 4.4. Defeasance and Discharge............................41
Section 4.5. Agreement Defeasance................................42
Section 4.6. Conditions to Defeasance or Covenant
Defeasance..........................................43
Section 4.7. Deposited Money and Government Obligations
to Be Held in Trust.................................44
Section 4.8. Repayment to Company................................45
Section 4.9. Indemnity for Government Obligations................45
Section 4.10. Reinstatement.......................................45
ARTICLE 5
Defaults and Remedies....................................................46
Section 5.1. Events of Default...................................46
Section 5.2. Acceleration; Rescission and Annulment..............48
Section 5.3. Collection of Indebtedness and Suits for
Enforcement by Trustee..............................49
Section 5.4. Trustee May File Proofs of Claim....................50
Section 5.5. Trustee May Enforce Claims Without
Possession of Securities............................50
Section 5.6. Delay or Omission Not Waiver........................51
Section 5.7. Waiver of Past Defaults.............................51
Section 5.8. Control by Majority.................................51
Section 5.9. Limitation on Suits by Holders......................51
Section 5.10. Rights of Holders to Receive Payment................52
Section 5.11. Application of Money Collected......................52
Section 5.12. Restoration of Rights and Remedies..................53
Section 5.13. Rights and Remedies Cumulative......................53
Section 5.14. Undertaking for Costs...............................54
Section 5.15. Waiver of Stay, Extension or Usury Laws.............54
ARTICLE 6
The Trustee ...........................................................54
Section 6.1. Certain Duties and Responsibilities.................54
Section 6.2. Notice of Defaults..................................54
Section 6.3. Certain Rights of Trustee...........................55
Section 6.4. Not Responsible for Recitals or Issuance of
Securities..........................................56
Section 6.5. May Hold Securities.................................56
Section 6.6. Money Held in Trust.................................56
Section 6.7. Compensation and Reimbursement......................56
Section 6.8. Conflicting Interests...............................57
Section 6.9. Corporate Trustee Required; Eligibility.............57
Section 6.10. Resignation and Removal; Appointment of
Successor...........................................57
Section 6.11. Acceptance of Appointment by Successor..............59
Section 6.12. Merger, Conversion, Consolidation or
Succession to Business..............................60
Section 6.13. Preferential Collection of Claims Against
Company.............................................60
Section 6.14. Appointment of Authenticating Agent.................61
ARTICLE 7
Consolidation, Merger or Sale of Assets by the Company...................62
Section 7.1. Consolidation, Merger or Sale of Assets
Permitted...........................................62
Section 7.2. Successor Substituted...............................63
ARTICLE 8
Supplemental Indentures..................................................64
Section 8.1. Supplemental Indentures Without Consent of
Holders.............................................64
Section 8.2. Supplemental Indentures With Consent of
Holders.............................................65
Section 8.3. Compliance with Trust Indenture Act.................67
Section 8.4. Execution of Supplemental Indentures................67
Section 8.5. Effect of Supplemental Indentures...................67
Section 8.6. Reference in Securities to Supplemental
Indentures..........................................67
Section 8.7. Notice of Supplemental Indentures...................67
ARTICLE 9
Agreements ...........................................................68
Section 9.1. Payment of Principal, Premium, if any, and
Interest............................................68
Section 9.2. Maintenance of Office or Agency.....................68
Section 9.3. Money for Securities Payments to Be Held in
Trust; Unclaimed Money..............................69
Section 9.4. Corporate Existence.................................71
Section 9.5. Annual Review Certificate...........................71
Section 9.6. Maintenance of Properties...........................71
Section 9.7. Payment of Taxes and Other Claims...................72
Section 9.8. Waiver of Certain Agreements........................72
ARTICLE 10
Holders' Lists and Reports by Trustee and Company........................72
Section 10.1. Company to Furnish Trustee Names and
Addresses of Holders................................72
Section 10.2. Preservation of Information, Communications
to Holders..........................................73
Section 10.3. Reports by Trustee..................................73
Section 10.4. Reports by the Company..............................73
ARTICLE 11
Redemption ...........................................................74
Section 11.1. Applicability of Article............................74
Section 11.2. Election to Redeem; Notice to Trustee...............74
Section 11.3. Selection of Securities to Be Redeemed..............74
Section 11.4. Notice of Redemption................................75
Section 11.5. Deposit of Redemption Price.........................76
Section 11.6. Securities Payable on Redemption Date...............76
Section 11.7. Securities Redeemed in Part.........................77
ARTICLE 12
Sinking Funds ...........................................................78
Section 12.1. Applicability of Article............................78
Section 12.2. Satisfaction of Sinking Fund Payments with
Securities..........................................78
Section 12.3. Redemption of Securities for Sinking Fund...........78
ARTICLE 13
Meetings of Holders of Securities........................................79
Section 13.1. Purposes for Which Meetings May Be Called...........79
Section 13.2. Call, Notice and Place of Meetings..................79
Section 13.3. Persons Entitled to Vote at Meetings................79
Section 13.4. Quorum; Action......................................80
Section 13.5. Determination of Voting Rights; Conduct and
Adjournment of Meetings.............................81
Section 13.6. Counting Votes and Recording Action of
Meetings............................................82
ARTICLE 14
Conversion or Exchange of Securities.....................................82
Section 14.1. Applicability of Article............................82
Section 14.2. Exercise of Conversion or Exchange Privilege........83
Section 14.3. No Fractional Equity Securities.....................84
Section 14.4. Adjustment of Conversion or Exchange Price;
Consolidation or Merger.............................85
Section 14.5. Notice of Certain Corporate Actions.................85
Section 14.6. Reservation of Equity Securities....................86
Section 14.7. Payment of Certain Taxes Upon Conversion or
Exchange............................................87
Section 14.8. Duties of Trustee Regarding Conversion or
Exchange............................................87
Section 14.9. Repayment of Certain Funds Upon Conversion
or Exchange.........................................87
ARTICLE 15
Jurisdiction and Consent to Service of Process...........................88
Section 15.1. Jurisdiction and Consent to Service of
Process.............................................88
SENIOR INDENTURE (the "Indenture"), dated as of ___________,
1998, 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 agreed as follows for the
equal and ratable benefit of the Holders of the Securities or of any series
thereof:
ARTICLE 1
Definitions and Other Provisions of General Application
Section 1.1. Definitions. (a) For all purposes of this Indenture,
except as otherwise expressly provided or unless the context otherwise
requires:
(1) the terms defined in this Article have the meanings assigned
to them in this Article and include the plural as well as the
singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles as in effect in the United States of America
from time to time; provided that when two or more principles are so
generally accepted, it shall mean that set of principles consistent
with those in use by the Company; and
(4) the words "herein", "hereof" and "hereunder" and other words
of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
"Affiliate" of any specified Person means any Person directly or
indirectly controlling or controlled by, or under direct or indirect common
control with, such specified Person. For purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Agent" means any Paying Agent or Registrar.
"Applicable Procedures" means, with respect to any transfer or
transaction involving a Global Security or beneficial interest therein, the
rules and procedures of the Depositary for such Security, in each case to
the extent applicable to such transaction and as in effect from time to
time.
"Authenticating Agent" means any authenticating agent appointed
by the Trustee pursuant to Section 6.14.
"Authorized Newspaper" means a newspaper of general circulation,
in the official language of the country of publication or in the English
language, customarily published on each Business Day whether or not
published on Saturdays, Sundays or holidays. Whenever successive
publications in an Authorized Newspaper are required hereunder they may be
made (unless otherwise expressly provided herein) on the same or different
days of the week and in the same or different Authorized Newspapers.
"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 use) real or personal property by such Person which
is required to be classified and accounted for as a capital lease or a
liability on a balance sheet of such Person in accordance with generally
accepted accounting principles. The stated maturity of such obligation
shall be the date of the last payment of rent or any other amount due under
such lease prior to the first date upon which such lease may be terminated
by the lessee without payment of a penalty. The principal amount of such
obligation shall be the capitalized amount thereof that would appear on a
balance sheet of such Person in accordance with generally accepted
accounting principles.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Exchange Act or, if at any
time after the execution of this Indenture such Commission is not existing
and performing the duties now assigned to it under the Trust Indenture Act,
then the body performing such duties at such time.
"Company" means the Person named as the Company in the first
paragraph of this Indenture until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
means such successor.
"Company Order" and "Company Request" mean, respectively, a
written order or request signed in the name of the Company by two Officers,
one of whom must be the Chairman of the Board, the President, the Chief
Executive Officer, the Chief Operating Officer, the Chief Financial
Officer, a Vice President, the Treasurer or the Secretary of the Company.
"consent", "waive" and "rescind", when used with respect to the
consent, waiver or rescission of or by the Holders of a specified
percentage in aggregate principal amount of Securities of any series, shall
mean any of (i) a favorable vote with respect to such consent, waiver or
rescission, at any meeting of Holders of Securities of such series duly
called and held in accordance with the provisions of Article 13, by the
Holders of the applicable percentage in aggregate principal amount of such
Securities specified in the second paragraph of Section 13.4; (ii) written
consents, waivers or rescissions of or by the Holders of such specified
percentage in aggregate principal amount of such Securities; and (iii) a
combination of the favorable vote with respect to such consent, waiver or
rescission, at any meeting of Holders of Securities of such series duly
called and held in accordance with the provisions of Article 13, by the
Holders of less than the applicable percentage in aggregate principal
amount of such Securities specified in the second paragraph of Section 13.4
and written consents, waivers or rescissions of other Holders of such
Securities, where the sum of the percentage of such Holders so voting in
favor and the percentage of such Holders signing such written consents,
waivers or rescissions is equal to at least such specified percentage.
"Corporate Trust Office" means an office of the Trustee in New
York, New York at which at any particular time its corporate trust business
shall be administered, which office at the date hereof is located at 100
Wall Street, 20th Floor, New York, New York 10005, Attention: Corporate
Trust Administration.
"corporation" shall mean a corporation, association, joint-stock
company or business trust.
"currency unit" for all purposes of this Indenture shall include
any composite currency, including, without limitation, ECU.
"Debt" means (without duplication), with respect to any Person,
whether recourse is to all or a portion of the assets of such Person, (i)
every obligation of such Person for money borrowed, (ii) every obligation
of such Person evidenced by bonds, debentures, notes or other similar
instruments, including obligations Incurred in connection with the
acquisition of property, assets or businesses, (iii) every reimbursement
obligation of such Person with respect to letters of credit, bankers'
acceptances or similar facilities issued for the account of such Person,
(iv) every obligation of such Person issued or assumed as the deferred
purchase price of property or services (but excluding trade accounts
payable or accrued liabilities arising in the ordinary course of business),
(v) every Capital Lease Obligation of such Person, (vi) the maximum fixed
redemption or repurchase price of Redeemable Interests of such Person at
the time of determination, (vii) every net payment obligation of such
Person under interest rate swap or similar agreements or foreign currency
hedge, exchange or similar agreements at the time of determination and
(viii) every obligation of the type referred to in Clauses (i) through
(vii) of another Person and all dividends of another Person the payment of
which, in either case, such Person has Guaranteed or for which such Person
is responsible or liable, directly or indirectly, jointly or severally, as
obligor, Guarantor or otherwise.
"Default" means, with respect to Securities of any series, any
event which is, or after notice or passage of time, or both, would be, an
Event of Default with respect to Securities of such series.
"Depositary", when used with respect to any Global Securities,
means the Person designated as Depositary by the Company pursuant to
Section 3.1(b) until a successor Depositary shall have become such pursuant
to the applicable provisions of this Indenture, and thereafter shall mean
or include each Person which is then a Depositary hereunder, and if at any
time there is more than one such Person, shall be a collective reference to
such Persons.
"Dollar" means the currency of the United States that at the time
of payment is legal tender for the payment of public and private debts.
"ECU" means the European Currency Unit as defined and revised
from time to time by the Council of the European Communities.
"European Monetary System" means the European Monetary System
established by the Resolution of December 5, 1978 of the Council of the
European Communities.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"Exchange Rate Certificate" means a certificate, signed by a
Responsible Officer of the Trustee, setting forth (i) the applicable Market
Exchange Rate or the applicable bid quotation and (ii) the Dollar amount of
principal, premium, if any, and interest, if any (on an aggregate basis and
on the basis of a Security having the lowest denomination principal amount
in the relevant currency or currency unit), that would be payable with
respect to a Security of the applicable series on the basis of such Market
Exchange Rate or the applicable bid quotation.
"Foreign Currency" means any currency issued by the government of
one or more countries other than the United States or by any recognized
confederation or association of such governments.
"Global Security" shall have the meaning set forth in Section
2.3.
"Government Obligations" means securities that are (x) direct
obligations of the United States of America for the payment of which its
full faith and credit is pledged or (y) obligations of a Person controlled
or supervised by and acting as an agency or instrumentality of the United
States of America the payment of which is unconditionally guaranteed as a
full faith and credit obligation by the United States of America, which, in
either case (x) or (y), are not callable or redeemable at the option of the
issuer thereof, and shall also include a depository receipt issued by a
bank (as defined in Section 3(a)(2) of the Securities Act of 1933, as
amended) as custodian with respect to any such Government Obligation or a
specific payment of principal of or interest on any such Government
Obligation held by such custodian for the account of the holder of such
depository receipt, provided that (except as required by law) such
custodian is not authorized to make any deduction from the amount payable
to the holder of such depository receipt from any amount received by the
custodian in respect of the Government Obligation or the specific payment
of principal of or interest on the Government Obligation evidenced by such
depository receipt.
"Guaranty" or "Guarantee" by any Person means any obligation,
contingent or otherwise, of such Person guaranteeing any Debt, or dividends
or distributions on any equity security, of any other Person (the "primary
obligor") in any manner, whether directly or indirectly, and including,
without limitation, any obligation of such Person (i) to purchase or pay
(or advance or supply funds for the purchase or payment of) such Debt or to
purchase (or to advance or supply funds for the purchase of) any security
for the payment of such Debt, (ii) to purchase property, securities or
services for the purpose of assuring the holder of such Debt of the payment
of such Debt or (iii) to maintain working capital, equity capital or other
financial statement condition or liquidity of the primary obligor so as to
enable the primary obligor to pay such Debt (and "Guaranteed" and
"Guaranteeing" shall have meanings correlative to the foregoing); provided,
however, that the Guaranty by any Person shall not include endorsements by
such Person for collection or deposit, in either case, in the ordinary
course of business.
"Holder" means, with respect to a Bearer Security, a bearer
thereof or of an interest coupon appertaining thereto and, with respect to
a Registered Security, a Person in whose name a Security is registered on
the Register.
"Incur" means, with respect to any Debt of any Person, to create,
issue, incur (by conversion, exchange or otherwise), assume, Guarantee or
otherwise become liable in respect of such Debt, or the taking of any other
action which would cause such Debt, in accordance with generally accepted
accounting principles to be recorded on the balance sheet of such Person
(and "Incurrence", "Incurred", "Incurrable" and "Incurring" shall have
meanings correlative to the foregoing), provided that, the Debt of any
other Person becoming a Restricted Subsidiary of such Person will be deemed
for this purpose to have been Incurred by such Person at the time such
other Person becomes a Restricted Subsidiary of such Person; provided,
further, that a change in generally accepted accounting principles that
results in an obligation of such Person that exists at such time becoming
Debt shall not be deemed an Incurrence of such Debt.
"Indenture" means this instrument as originally executed and as
it may from time to time be supplemented or amended by one or more
indentures supplemental hereto entered into pursuant to the applicable
provisions hereof, including, for all purposes of this instrument and any
such supplemental indenture, the provisions of the Trust Indenture Act that
are deemed to be a part of and govern this instrument and any such
supplemental indenture, respectively. The term "Indenture" shall also
include the terms of particular series of Securities established as
contemplated by Section 3.1.
"Indexed Security" means a Security the terms of which provide
that the principal amount thereof payable at Stated Maturity is based, at
least in part, upon the performance or value of a specified market index,
reference security or other variable and may be more or less than the
principal face amount thereof at original issuance.
"interest", when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means
interest payable after Maturity and, when used with respect to any other
Security, means the interest payable thereon in accordance with its terms.
"Interest Payment Date", when used with respect to any Security,
means the Stated Maturity of an installment of interest on such Security.
"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.
"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
agreement defeasance as provided in Article 4; and
(iv) Securities which have been replaced or paid pursuant to
Section 3.6 or in exchange for or in lieu of which other Securities have
been authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to the
Trustee proof satisfactory to it that such Securities are held by a bona
fide purchaser in whose hands such Securities are valid obligations of the
Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request,
demand, authorization, direction, notice, consent or waiver hereunder, or
whether sufficient funds are available for redemption or for any other
purpose, and for the purpose of making the calculations required by Section
313 of the Trust Indenture Act, (w) the principal amount of any Original
Issue Discount Securities that may be counted in making such determination
or calculation and that shall be deemed to be Outstanding for such purpose
shall be equal to the amount of principal thereof that would be (or shall
have been declared to be) due and payable, at the time of such
determination, upon a declaration of acceleration of the Maturity thereof
pursuant to Section 5.2, (x) the principal amount of any Security
denominated in a Foreign Currency that may be counted in making such
determination or calculation and that shall be deemed Outstanding for such
purpose shall be equal to the Dollar equivalent, determined as of the date
such Security is originally issued by the Company as set forth in an
Exchange Rate Certificate, of the principal amount (or, in the case of an
Original Issue Discount Security, the Dollar equivalent as of such date of
original issuance of the amount determined as provided in clause (w) above)
of such Security, (y) the principal amount of any Indexed Security that may
be counted in making such determination or calculation and that shall be
deemed Outstanding for such purpose shall be equal to the principal face
amount of such Indexed Security at original issuance, unless otherwise
provided with respect to such Security pursuant to Section 3.1, and (z)
Securities owned by the Company 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.
"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.
"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."
"Wholly Owned Restricted Subsidiary" means a Restricted
Subsidiary all of the outstanding Capital Stock or other ownership
interests of which (other than directors' qualifying shares) shall at the
time be owned by the Company or by one or more Wholly Owned Restricted
Subsidiaries or by the Company and one or more Wholly Owned Restricted
Subsidiaries.
(b) The following terms shall have the meanings specified in the
Sections referred to opposite such term below:
Term Section
---- -------
"Act" 1.4(a)
"agreement defeasance" 4.5
"Common Stock" 14.1(b)(i)
"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
Section 1.2. Compliance Certificates and Opinions. Upon any
application or request by the Company to the Trustee to take any action
under any provision of this Indenture, the Company shall furnish to the
Trustee such certificates and opinions as may be required under the Trust
Indenture Act (including Section 314(c) of the Trust Indenture Act). Each
such certificate or opinion shall be given in the form of an Officers'
Certificate, if to be given by an officer or officers of the Company, or an
Opinion of Counsel, if to be given by counsel, and shall comply with the
requirements of the Trust Indenture Act and any other requirements set
forth in this Indenture.
Every certificate or opinion with respect to compliance with a
condition or agreement provided for in this Indenture (other than pursuant
to Section 2.3, 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 agreement and the definitions herein
relating thereto;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(c) a statement that, in the opinion of each such individual, he
or she has made such examination or investigation as is necessary to enable
him or her to express an informed opinion as to whether or not such
condition or agreement has been complied with; and
(d) a statement as to whether, in the opinion of each such
individual, such condition or agreement has been complied with.
Section 1.3. Form of Documents Delivered to Trustee. In any case
where several matters are required to be certified by, or covered by an
opinion of, any specified Person, it is not necessary that all such matters
be certified by, or covered by the opinion of, only one such Person, or
that they be so certified or covered by only one document, but one such
Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may
certify or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or
opinion of, or representations by, counsel, unless such officer knows, or
in the exercise of reasonable care should know, that the certificate or
opinion or representations with respect to the matters upon which his or
her certificate or opinion is based are erroneous. Any such certificate or
opinion or any Opinion of Counsel may be based, insofar as it relates to
factual matters, upon a certificate or opinion of, or representations by,
an officer or officers of the Company stating that the information with
respect to such factual matters is in the possession of the Company, unless
such officer or counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations as to such matters
are erroneous.
Any certificate, statement or opinion of an officer of the
Company or of counsel may be based, insofar as it relates to accounting
matters, upon a certificate or opinion of or representations by an
accountant or firm of accountants in the employ of the Company, unless such
officer or counsel, as the case may be, knows, or in the exercise of
reasonable care should know, that the certificate or opinion or
representations with respect to the accounting matters upon which his
certificate, statement or opinion is based are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be
consolidated and form one instrument.
Section 1.4. Acts of Holders. (a) Any request, demand,
authorization, direction, notice, consent, waiver or other action provided
by this Indenture to be given or taken by Holders may be embodied in and
evidenced by one or more instruments of substantially similar tenor signed
(either physically or by means of a facsimile or an electronic
transmission, provided, in the case of an electronic transmission, that it
is transmitted through the facilities of a Depositary) by such Holders in
person or by agent or proxy duly appointed in writing. If Securities of a
series are issuable as Bearer Securities, any request, demand,
authorization, direction, notice, consent, waiver or other action provided
by this Indenture to be given or taken by Holders of Securities of such
series may, alternatively, be embodied in and evidenced by the record of
Holders of Securities of such series voting in favor thereof pursuant to
the second paragraph of Section 13.4, either in person or by proxies duly
appointed in writing, at any meeting of Holders of Securities of such
series duly called and held in accordance with the provisions of Article
13, or a combination of such instruments and any such record. Except as
herein otherwise expressly provided, such action shall become effective
when such instrument or instruments or record or both are received (either
physically or, if the Securities are held through the facilities of a
Depositary, by means of a facsimile or an electronic transmission,
provided, in the case of an electronic transmission, that it is transmitted
through the facilities of a Depositary) by the Trustee and, where it is
hereby expressly required, to the Company. Such instrument or instruments
and record (and the action embodied therein and evidenced thereby) are
herein sometimes referred to as the "Act" of the Holders signing such
instrument or instruments or so voting at such meeting. The Company and the
Trustee may assume that any Act of a Holder has not been modified or
revoked unless written notice to the contrary is received prior to the time
that the action to which such Act relates has become effective. Proof of
execution of any such instrument or of a writing appointing any such agent
shall be sufficient for any purpose of this Indenture and (subject to
Section 315 of the Trust Indenture Act) conclusive in favor of the Trustee
and the Company, if made in the manner provided in this Section. The record
of any meeting of Holders of Securities shall be proved in the manner
provided in Section 13.6.
(b) The fact and date of the execution by any Person of any such
instrument or writing and the authority of the Person executing the same
may be proved in any manner which the Trustee deems sufficient.
(c) The ownership of Bearer Securities may be proved by the
production of such Bearer Securities or by a certificate executed by any
trust company, bank, banker or other depository, wherever situated, if such
certificate shall be deemed by the Trustee to be satisfactory, showing that
at the date therein mentioned such Person had on deposit with such trust
company, bank, banker or other depository, or exhibited to it, the Bearer
Securities therein described; or such facts may be proved by the
certificate or affidavit of the Person holding such Bearer Securities, if
such certificate or affidavit is deemed by the Trustee to be satisfactory.
The Trustee and the Company may assume that such ownership of any Bearer
Security continues until (i) another such certificate or affidavit bearing
a later date issued in respect of the same Bearer Security is produced,
(ii) such Bearer Security is produced to the Trustee by some other Person,
(iii) such Bearer Security is surrendered in exchange for a Registered
Security or (iv) such Bearer Security is no longer Outstanding. The
ownership of Bearer Securities may also be proved in any other manner which
the Trustee deems sufficient.
(d) The ownership of Registered Securities shall be proved by the
Register.
(e) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall bind every
future Holder of the same Security and any interest coupons appertaining
thereto and the Holder of every Security or interest coupon issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof
in respect of anything done, omitted or suffered to be done by the Trustee
or the Company in reliance thereon, whether or not notation of such Act is
made upon such Security or interest coupon.
(f) If the Company shall solicit from the Holders any request,
demand, authorization, direction, notice, consent, waiver or other Act, the
Company may, at its option, by or pursuant to a Board Resolution, fix in
advance a record date for the determination of Holders of Registered
Securities entitled to give such request, demand, authorization, direction,
notice, consent, waiver or other Act, but the Company shall have no
obligation to do so. Notwithstanding Section 316(c) of the Trust Indenture
Act, any such record date shall be the record date specified in or pursuant
to such Board Resolution, which shall be a date not more than 30 days prior
to the first solicitation of Holders generally in connection therewith and
no later than the date such first solicitation is completed. If such a
record date is fixed, such request, demand, authorization, direction,
notice, consent, waiver or other Act may be given before or after such
record date, but only the Holders of Registered Securities of record at the
close of business on such record date shall be deemed to be Holders for the
purposes of determining whether Holders of the requisite proportion of
Outstanding Securities have authorized or agreed or consented to such
request, demand, authorization, direction, notice, consent, waiver or other
Act, and for that purpose the Outstanding Securities shall be computed as
of such record date; provided that no such authorization, agreement or
consent by the Holders on such record date shall be deemed effective unless
it shall become effective pursuant to the provisions of this Indenture not
later than six months after the record date.
Without limiting the foregoing, a Holder entitled to give or take
any action hereunder with regard to any particular Security may do so with
regard to all or any part of the principal amount of such Security or by
one or more duly appointed agents, each of which may do so pursuant to such
appointment with regard to all or any part of the principal amount of such
Security to which such appointment relates.
Section 1.5. Notices, Etc., to Trustee 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 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.
Any request, demand, authorization, direction, notice, consent or
waiver required or permitted under this Indenture shall be in the English
language, except that any published notice may be in an official language
of the country of publication.
Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such
notice, either before or after the event, and such waiver shall be
equivalent of such notice. Waivers of notice by Holders shall be filed with
the Trustee, but such filing shall not be a condition precedent to the
validity of any action taken in reliance upon such waiver.
Section 1.7. Headings and Table of Contents. The Article and
Section headings herein and the Table of Contents are for convenience only
and shall not affect the construction hereof.
Section 1.8. Successors and Assigns. All covenants and agreements
in this Indenture by the parties hereto shall bind their respective
successors and assigns and inure to the benefit of their respective
successors and assigns, whether so expressed or not.
Section 1.9. Separability. In case any provision of this
Indenture or the Securities 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, any Registrar, any Paying Agent 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 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 DEEMED TO BE CONTRACTS MADE AND TO BE PERFORMED ENTIRELY
IN THE STATE OF NEW YORK, AND FOR ALL PURPOSES SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF SAID STATE WITHOUT REGARD TO THE
CONFLICTS OF LAW RULES OF SUCH STATE. This Indenture is subject to the
Trust Indenture Act and if and to the extent that any provision hereof
limits, qualifies or conflicts with the Trust Indenture Act, the Trust
Indenture Act shall control. Whether or not this Indenture is required to
be qualified under the Trust Indenture Act, the provisions of the Trust
Indenture Act required to be included in an indenture in order for such
indenture to be so qualified shall be deemed to be included in this
Indenture with the same effect as if such provisions were set forth herein
and any provisions hereof which may not be included in an indenture which
is so qualified shall be deemed to be deleted or modified to the extent
such provisions would be required to be deleted or modified in an indenture
so qualified.
Section 1.13. Legal Holidays. In any case where any Interest
Payment Date, Redemption Date, sinking fund payment date, Stated Maturity
or Maturity of any Security shall not be a Business Day at any Place of
Payment, then (notwithstanding any other provision of this Indenture or of
any Security or interest coupon other than a provision in the Securities of
any series which specifically states that such provision shall apply in
lieu of this Section), payment of principal, premium, if any, or interest
need not be made at such Place of Payment on such date, but may be made on
the next succeeding Business Day at such Place of Payment with the same
force and effect as if made on such date; provided that no interest shall
accrue on the amount so payable for the period from and after such Interest
Payment Date, Redemption Date, sinking fund payment date, Stated Maturity
or Maturity, as the case may be, if such amount is so paid on the next
succeeding Business Day.
Section 1.14. Moneys of Different Currencies to Be Segregated.
The Trustee shall segregate all moneys, funds and accounts held by the
Trustee hereunder in one currency from any moneys, funds and accounts held
by the Trustee hereunder in any other currencies, notwithstanding any
provision herein which would otherwise permit the Trustee to commingle such
amounts.
Section 1.15. Independence of Agreements. All agreements in this
Indenture shall be given independent effect so that if a particular action
or condition is not permitted by any such agreement, the fact that it would
be permitted by an exception to, or be otherwise within the limitations of,
another agreement shall not avoid the occurrence of a Default or an Event
of Default if such action is taken or condition exists.
Section 1.16. Counterparts. This Indenture may be executed in any
number of counterparts, each of which shall be an original, but such
counterparts shall together constitute but one and the same instrument.
ARTICLE 2
SECURITY 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.
FIRST TRUST NATIONAL ASSOCIATION,
as Trustee
By:
------------------------------
Authorized Signatory
Section 2.3. Global Securities. If Securities of or within a
series are issuable in whole or in part in global form (each, a "Global
Security"), any such Global Security may provide that it shall represent
the aggregate or specified amount of Outstanding Securities from time to
time endorsed thereon and may also provide that the aggregate amount of
Outstanding Securities represented thereby may from time to time be reduced
or increased to reflect exchanges for certificated securities. Any
endorsement of a Global Security to reflect the amount, or any increase or
decrease in the amount, or changes in the rights of Holders, of Outstanding
Securities represented thereby, shall be made in such manner and by such
Person or Persons as shall be specified therein or in the Company Order to
be delivered to the Trustee pursuant to Section 3.3 or 3.4. Subject to the
provisions of Section 3.3, Section 3.4, if applicable, and Section 3.5, the
Trustee shall deliver and redeliver any Global Security in the manner and
upon instructions given by the Person or Persons specified therein or in
the applicable Company Order. Any instructions by the Company with respect
to endorsement or delivery or redelivery of a Global Security shall be in
writing but need not comply with Section 1.2 hereof and need not be
accompanied by an Officers' Certificate or an Opinion of Counsel.
The provisions of the last paragraph of Section 3.3 shall apply
to any Global Security if such Security was never issued and sold by the
Company and the Company delivers to the Trustee the Global Security
together with written instructions (which need not comply with Section 1.2
hereof and need not be accompanied by an Officers' Certificate or an
Opinion of Counsel) with regard to the reduction in the principal amount of
Securities represented thereby, together with the written statement
contemplated by the last paragraph of Section 3.3.
Notwithstanding the provisions of Section 2.1 and 3.7, unless
otherwise specified as contemplated by Section 3.1, payment of principal
of, premium, if any, and interest on any Registered Security in permanent
global form shall be made to the registered holder thereof.
Section 2.4. Form of Legend for Global Securities. Any Global
Security authenticated and delivered hereunder shall bear a legend in
substantially the following form or in such other form as may be specified
in accordance with Section 3.1:
"THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A
DEPOSITARY OR A NOMINEE OF A DEPOSITARY. UNLESS AND UNTIL IT IS EXCHANGED
IN WHOLE OR IN PART FOR SECURITIES IN CERTIFICATED FORM, THIS SECURITY MAY
NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE
DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER
NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY."
ARTICLE 3
THE SECURITIES
Section 3.1. Amount Unlimited; Issuable in Series. (a) The
aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited. The Securities may be issued
from time to time in one or more series.
(b) The following matters shall be established with respect to
each series of Securities issued hereunder (i) by a Board Resolution, (ii)
by action taken pursuant to a Board Resolution and (subject to Section 3.3)
set forth, or determined in the manner provided, in an Officers'
Certificate or (iii) in one or more indentures supplemental hereto:
(1) the title of the Securities of the series (which title shall
distinguish the Securities of the series from all other series of
Securities);
(2) any limit upon the aggregate principal amount of the
Securities of the series which may be authenticated and delivered under
this Indenture (which limit shall not pertain to Securities authenticated
and delivered upon registration of transfer of, or in exchange for, or in
lieu of, other Securities of the series pursuant to Section 3.4, 3.5, 3.6,
8.6 or 11.7 or any Securities that, pursuant to Section 3.3, are deemed
never to have been authenticated and delivered hereunder);
(3) the date or dates on which the principal of and premium, if
any, on the Securities of the series is payable or the method or methods of
determination thereof;
(4) the rate or rates at which the Securities of the series shall
bear interest, if any, or the method or methods of calculating such rate or
rates of interest, the date or dates from which such interest shall accrue
or the method or methods by which such date or dates shall be determined,
the Interest Payment Dates on which any such interest shall be payable, the
right, if any, of the Company to defer or extend an Interest Payment Date
and, with respect to Registered Securities, the Regular Record Date, if
any, for the interest payable on any Registered Security on any Interest
Payment Date, and the basis upon which interest shall be calculated if
other than that of a 360-day year of twelve 30-day months;
(5) the place or places where the principal of, premium, if any,
and interest, if any, on Securities of the series shall be payable, any
Registered Securities of the series may be surrendered for registration of
transfer, Securities of the series may be surrendered for exchange and
notices and demands to or upon the Company in respect of the Securities of
the series and this Indenture may be served (in the case of Bearer
Securities) 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 are to be made,
the terms and conditions of such payments and the manner in which the
exchange rate with respect to such payments shall be determined, and the
particular provisions applicable thereto in lieu of the provisions of
Section 3.12;
(11) if the amount of payments of principal of, premium, if any,
and interest, if any, on the Securities of the series shall be determined
with reference to an index, formula or other method (which index, formula
or method may be based, without limitation, on a currency or currencies
(including currency unit or units) other than that in which the Securities
of the series are denominated or designated to be payable), the index,
formula or other method by which such amounts shall be determined and any
special voting or defeasance provisions in connection therewith;
(12) if other than the entire principal amount thereof, the
portion of the principal amount of such Securities of the series which
shall be payable upon declaration of acceleration thereof pursuant to
Section 5.2 or the method by which such portion shall be determined;
(13) if other than as provided in Section 3.7, the Person to whom
any interest on any Registered Security of the series shall be payable and
the manner in which, or the Person to whom, any interest on any Bearer
Securities of the series shall be payable;
(14) provisions, if any, granting special rights to the Holders
of Securities of the series upon the occurrence of such events as may be
specified;
(15) any deletions from, modifications of or additions to the
Events of Default set forth in Section 5.1 or agreements of the Company set
forth in Article 9 pertaining to the Securities of the series;
(16) under what circumstances, if any, and with what procedures
and documentation the Company will pay additional amounts on the Securities
and interest coupons, if any, of that series held by a Person who is not a
U.S. Person (including any modification of the definition of such term) in
respect of taxes, assessments or similar charges withheld or deducted and,
if so, whether the Company will have the option to redeem such Securities
rather than pay such additional amounts (and the terms of any such option);
(17) whether Securities of the series shall be issuable as
Registered Securities or Bearer Securities (with or without interest
coupons), or both, and any restrictions applicable to the offering, sale,
transfer or delivery of Bearer Securities and, if other than as provided in
Section 3.5, the terms upon which Bearer Securities of a series may be
exchanged for Registered Securities of the same series and vice versa;
(18) the date as of which any Bearer Securities of the series and
any temporary Global Security representing Outstanding Securities of the
series shall be dated if other than the date of original issuance of the
first Security of the series to be issued;
(19) the forms of the Securities and interest coupons, if any, of
the series;
(20) the applicability, if any, to the Securities and interest
coupons, if any, of or within the series of Sections 4.4 and 4.5, or such
other means of defeasance or agreement defeasance as may be specified for
the Securities and interest coupons, if any, of such series;
(21) if other than the Trustee, the identity of the Registrar and
any Paying Agent;
(22) if the Securities of the series shall be issued in whole or
in part in global form, (i) the Depositary for such Global Securities, (ii)
whether beneficial owners of interests in the Global Securities may
exchange such interests for certificated Securities of such series, to be
registered in the names of or to be held by such beneficial owners or their
nominees and to be of like tenor of any authorized form and denomination,
and (iii) if other than as provided in Section 3.5, the circumstances under
which any such exchange may occur;
(23) any restrictions on the registration, transfer or exchange
of the Securities;
(24) if the Securities of the series may be issued or delivered
(whether upon original issuance or upon exchange of a temporary Security of
such series or otherwise), or any installment of principal or interest is
payable, only upon receipt of certain certificates or other documents or
satisfaction of other conditions in addition to those specified in this
Indenture, the form and terms of such certificates, documents or
conditions;
(25) the terms and conditions of any right to convert or exchange
Securities of the series into or for Equity Securities of the Company
including provisions for the payment of interest on Securities being
converted or exchanged as contemplated by Section 3.7(d) and Section 14.2;
(26) whether the Securities are secured or unsecured, and if
secured, the security and related terms in connection therewith;
(27) the definition of "Unrestricted Subsidiary" to be used for
such series; and
(28) any other terms of the series including any terms which may
be required by or advisable under United States laws or regulations or
advisable (as determined by the Company) in connection with the marketing
of Securities of the series.
(c) Subject to Section 1.12 and any controlling provision of the
Trust Indenture Act, in the event of any inconsistency between the terms of
this Indenture and the terms applicable to a series of Securities
established in the manner permitted by Section 3.1(b), the (i) Board
Resolution, (ii) Officers' Certificate or (iii) supplemental indenture
setting forth such conflicting term shall prevail.
(d) All Securities of any one series and interest coupons, if
any, appertaining thereto shall be substantially identical except as to
denomination and except as may otherwise be provided (i) by a Board
Resolution, (ii) by action taken pursuant to a Board Resolution and
(subject to Section 3.3) set forth, or determined in the manner provided,
in the related Officers' Certificate or (iii) in an indenture supplemental
hereto. All Securities of any one series need not be issued at the same
time and, unless otherwise provided, a series may be reopened, without the
consent of the Holders, for issuances of additional Securities of such
series.
(e) If any of the terms of the Securities of any series are
established by action taken pursuant to a Board Resolution, a copy of such
Board Resolution shall be delivered to the Trustee at or prior to the
delivery of the Officers' Certificate setting forth, or providing the
manner for determining, the terms of the Securities of such series, and an
appropriate record of any action taken pursuant thereto in connection with
the issuance of any Securities of such series shall be delivered to the
Trustee prior to the authentication and delivery thereof.
Section 3.2. Denominations. Unless otherwise provided as
contemplated by Section 3.1(b), any Registered Securities of a series
denominated in Dollars shall be issuable in denominations of U.S. $1,000
and any integral multiple thereof and any Bearer Securities of a series
denominated in Dollars shall be issuable in the denomination of U.S. $5,000
and any integral multiple thereof. Securities denominated in a Foreign
Currency shall be issuable in such denominations as are established with
respect to such Securities in or pursuant to this Indenture.
Section 3.3. Execution, Authentication, Delivery and Dating.
Securities shall be executed on behalf of the Company by the Chairman of
the Board, the President, the Chief Executive Officer, the Chief Operating
Officer, the Chief Financial Officer or any Vice President of the Company,
and need not be attested. The signatures of any of these officers on the
Securities may be manual or facsimile. The interest coupons, if any, of
Bearer Securities shall bear the facsimile signature of the Chairman of the
Board, the President, the Chief Executive Officer, the Chief Operating
Officer, the Chief Financial Officer or any Vice President of the Company,
and need not be attested.
Securities and interest coupons bearing the manual or facsimile
signatures of individuals who were at any time Officers of the Company
shall bind the Company, notwithstanding that such individuals or any of
them have ceased to be Officers prior to the authentication and delivery of
such Securities or were not Officers at the date of such Securities.
At any time and from time to time, the Company may deliver
Securities, together with any interest coupons appertaining thereto, of any
series executed by the Company 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, 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.
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 as Global
Securities, 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 Global Securities that (i)
shall represent and shall be denominated in an amount equal to the
aggregate principal amount of the Outstanding Securities of such series to
be represented by such Global Security or Securities, (ii) shall be
registered, if a Registered Security, in the name of the Depositary for
such Global Security or Securities or the nominee of such Depositary, (iii)
shall be delivered by the Trustee to such Depositary or pursuant to such
Depositary's instruction and (iv) shall bear the legend set forth in
Section 2.4.
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 Exchange Act and any other applicable statute or regulation. If
requested by the Company, the Trustee shall enter into an agreement with a
Depositary governing the respective duties and rights of such Depositary
and the Trustee with regard to Global Securities.
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
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 Global Securities, representing all or a portion of the Outstanding
Securities of such series.
Except in the case of temporary Global Securities, each of which
shall be exchanged in accordance with the provisions thereof, if temporary
Securities of any series are issued, the Company 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.
Each Global Security authenticated under this Indenture shall be
registered in the name of the Depositary or a nominee thereof and delivered
to such Depositary or nominee thereof or to a successor of such Depositary
or nominee thereof, and each such Global Security shall constitute a single
Security for all purposes of this Indenture.
Upon surrender for registration of transfer of any Registered
Security of any series at the office or agency maintained pursuant to
Section 9.2 in a Place of Payment for that series, the Company 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 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 Global Security representing all or a portion of the Securities of
a series may not be transferred except as a whole by the Depositary for
such series to a nominee of such Depositary or by a nominee of such
Depositary to such Depositary or another nominee of such Depositary or by
such Depositary or any such nominee to a successor Depositary for such
series or a nominee of such successor Depositary.
If at any time the Depositary for the Securities of a series
notifies the Company that it is unwilling or unable to continue as
Depositary for the Securities of such series or if at any time the
Depositary for the Securities of such series shall no longer be eligible
under Section 3.3, the Company shall appoint a successor Depositary with
respect to the Securities of such series. If a successor Depositary for the
Securities of such series is not appointed by the Company prior to the
resignation of the Depositary and, in any event, within 90 days after the
Company receives such notice or becomes aware of such ineligibility, the
Company's designation of the Depositary pursuant to Section 3.1(b)(22)
shall no longer be effective with respect to the Securities of such series
and the Company 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
Global Security or Securities of such series of like tenor in exchange for
such Global Security or Securities.
The Company may at any time in its sole discretion determine that
Global Securities shall no longer be represented by such a Global Security
or Securities. In such event the Company 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 Global Security or Securities of such series of
like tenor in exchange for such Global Security or Securities.
If specified by the Company pursuant to Section 3.1 with respect
to a series of Securities, the Depositary for such series may surrender a
Global Security of such series in exchange in whole or in part for
Securities of such series in certificated form on such terms as are
acceptable to the Company 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 Global Security of like tenor
in a denomination equal to the difference, if any, between the
principal amount of the surrendered Global Security and the
aggregate principal amount of certificated Securities delivered
to Holders thereof.
Upon the exchange of a Global Security for Securities in
certificated form, such Global Security 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 Global Security pursuant to this
Section shall be registered in such names and in such authorized
denominations as the Depositary for such Global Security, 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
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 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 instructed the Trustee in writing, provided that any
such instruction for payment in the United States does not cause any Bearer
Security to be treated as a "registration-required obligation" under United
States laws and regulations. The interest, if any, on any temporary Bearer
Security shall be paid, as to any installment of interest evidenced by an
interest coupon attached thereto only upon presentation and surrender of
such interest coupon and, as to other installments of interest, only upon
presentation of such Security for notation thereon of the payment of such
interest. If at the time a payment of principal of or interest, if any, on
a Bearer Security or interest coupon shall become due, the payment of the
full amount so payable at the office or offices of all the Paying Agents
outside the United States is illegal or effectively precluded because of
the imposition of exchange controls or other similar restrictions on the
payment of such amount in Dollars, then the Company may instruct the
Trustee in writing to make such payments at a Paying Agent located in the
United States, provided that provision for such payment in the United
States would not cause such Bearer Security to be treated as a
"registration-required obligation" under United States laws and
regulations.
(b) Unless otherwise provided as contemplated by Section 3.1, any
interest on Securities of any series which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date in the
case of Registered Securities and upon presentation and surrender of the
applicable interest coupon in accordance with the second paragraph of
Section 3.7(a) in the case of Bearer Securities (herein called "Defaulted
Interest"), shall forthwith cease to be payable to the Holders of
Registered Securities on the relevant Regular Record Date by virtue of
their having been such Holders, or to the Holders of Bearer Securities by
virtue of their having presented the applicable interest coupon on such
Interest Payment Date, and such Defaulted Interest may be paid by the
Company, at its election in each case, as provided in clause (1) or (2)
below:
(1) In the case of Registered Securities, the Company may elect
to make payment of such Defaulted Interest to the Persons in whose
names such Registered Securities (or their respective Predecessor
Securities) are registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest, which shall be
fixed in the following manner. The Company shall notify the Trustee in
writing of the amount of Defaulted Interest proposed to be paid on
each such Registered Security and the date of the proposed payment,
and shall deposit with the Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements satisfactory to the Trustee for
such deposit prior to the date of the proposed payment, such money
when deposited to be held in trust for the benefit of the Persons
entitled to such Defaulted Interest as in this clause (1) provided.
Thereupon the Trustee shall fix a Special Record Date for the payment
of such Defaulted Interest which shall be not more than 15 days and
not less than 10 days prior to the date of the proposed payment and
not less than 10 days after the receipt by the Trustee of the notice
of the proposed payment. The Trustee shall promptly notify the Company
of such Special Record Date and, in the name and at the expense of the
Company, shall cause notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor to be mailed,
first-class postage prepaid, to each Holder of such Registered
Securities at his or her address as it appears in the Register, not
less than 10 days prior to such Special Record Date. Notice of the
proposed payment of such Defaulted Interest and the Special Record
Date therefor having been so mailed, such Defaulted Interest shall be
paid to the Persons in whose names such Registered Securities (or
their respective Predecessor Securities) are registered at the close
of business on such Special Record Date and shall no longer be payable
pursuant to the following clause (2).
(2)(x) In the case of Registered Securities, the Company may make
payment of such Defaulted Interest to the Persons in whose names such
Registered Securities (or their respective Predecessor Securities) are
registered at the close of business on a specified date in any other
lawful manner not inconsistent with the requirements of any securities
exchange on which such Registered Securities may be listed, and upon
such notice as may be required by such exchange, if, after notice
given by the Company to the Trustee of the proposed payment pursuant
to this clause (2)(x), such manner of payment shall be deemed
practicable by the Trustee; or (y) unless otherwise provided as
contemplated by Section 3.1, in the case of Bearer Securities, the
Company may make payment of Defaulted Interest on such Bearer
Securities in any lawful manner not inconsistent with the requirements
of any securities exchange on which such Bearer Securities may be
listed, and upon such notice as may be required by such exchange, if,
after notice given by the Company to the Trustee of the proposed
payment pursuant to this clause (2)(y), such manner of payment shall
be deemed practicable by the Trustee.
(c) Subject to the foregoing provisions of this Section and
Section 3.5, each Security delivered under this Indenture upon registration
of transfer of or in exchange for or in lieu of any other Security shall
carry the rights to interest accrued and unpaid, and to accrue, which were
carried by such other Security.
(d) In the case of any Registered Security which is converted or
exchanged after any Regular Record Date and on or prior to the next
succeeding Interest Payment Date (other than any Security the principal of,
or premium, if any, on which shall become due and payable, whether at
Stated Maturity or by declaration of acceleration, call for redemption or
otherwise prior to such Interest Payment Date), interest whose Stated
Maturity is on such Interest Payment Date shall be payable on such Interest
Payment Date notwithstanding such conversion or exchange and such interest
(whether or not punctually paid or duly provided for) shall be paid to the
Person in whose name that Registered Security (or any one or more
Predecessor Securities) is registered at the close of business on such
Regular Record Date, unless otherwise provided with respect to Securities
of that series pursuant to Section 3.1(b).
Section 3.8. Persons Deemed Owners. Unless otherwise provided as
contemplated by Section 3.1, prior to due presentment of any Registered
Security for registration of transfer, the Company, the 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 Global Security, or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests. No
holder of any beneficial interest in any Global Security, held on its
behalf by or through a Depositary, shall have any rights under this
Indenture with respect to such Global Security, and such Depositary may be
treated by the Company, the Trustee and any agent of the Company or the
Trustee as the owner of such Global Security for all purposes whatsoever.
With respect to any Global Security, nothing herein shall prevent the
Company 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 Global Security or impair, as between such Depositary and owners of
beneficial interests in such Global Security, the operation of customary
practices governing the exercise of the rights of such Depositary (or its
nominee) as Holder of such Global Security.
Section 3.9. Cancellation. All Securities and interest coupons
appertaining thereto, if any, surrendered for payment, redemption,
conversion, registration of transfer or exchange or for credit against any
sinking fund payment shall, if surrendered to any Person other than the
Trustee, be delivered to the Trustee and 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
replacement of such Securities which may have been lost, stolen or
mutilated as herein expressly provided for, (iii) rights of holders of
Securities to receive payments of principal thereof and interest thereon,
upon the Stated Maturity thereof (but not upon acceleration), and rights of
the Holders to receive mandatory sinking fund payments, if any, (iv) rights
of holders of Securities to convert or exchange Securities, (v) rights,
obligations, duties and immunities of the Trustee hereunder, (vi) any
rights of the Holders of Securities of such series as beneficiaries hereof
with respect to the property so deposited with the Trustee payable to all
or any of them, and (vii) the obligations of the Company under Section 9.2)
and the Trustee, upon payment of all amounts due it under Section 6.7, at
the expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture with respect to such
Securities and any interest coupons appertaining thereto when
(1) either
(A) all such Securities previously authenticated and
delivered and all interest coupons appertaining thereto (other
than (i) such interest coupons appertaining to Bearer Securities
surrendered in exchange for Registered Securities and maturing
after such exchange, surrender of which is not required or has
been waived as provided in Section 3.5, (ii) such Securities and
interest coupons which have been destroyed, lost or stolen and
which have been replaced or paid as provided in Section 3.6,
(iii) such interest coupons appertaining to Bearer Securities
called for redemption and maturing after the relevant Redemption
Date, surrender of which has been waived as provided in Section
11.6 and (iv) such Securities and interest coupons for whose
payment money in the currency or currencies or currency unit or
units in which such Securities are payable has theretofore been
deposited in trust or segregated and held in trust by the Company
and thereafter repaid to the Company or discharged from such
trust, as provided in Section 9.3) have been delivered to the
Trustee for cancellation; or
(B) all Securities of such series and, in the case of (i) or
(ii) below, any interest coupons appertaining thereto not
theretofore delivered to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated
Maturity within one year, or
(iii) are to be called for redemption within one year
under arrangements satisfactory to the Trustee for the
giving of notice of redemption by the Trustee in the name,
and at the expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above, has
irrevocably deposited or caused to be deposited with the Trustee
as trust funds in trust for the purpose an amount in the currency
or currencies or currency unit or units in which the Securities
of such series are payable, sufficient to pay and discharge the
entire indebtedness on such Securities and such interest coupons
not theretofore delivered to the Trustee for cancellation, for
principal, premium, if any, and interest, with respect thereto,
to the date of such deposit (in the case of Securities which have
become due and payable) or to the Stated Maturity or Redemption
Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the satisfaction
and discharge of this Indenture as to such series have been complied
with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligation of the Company to the Trustee and any predecessor Trustee under
Section 6.7, the obligations of the Company to any Authenticating Agent
under Section 6.14 and, if money shall have been deposited with the Trustee
pursuant to subclause (B) of clause (1) of this Section, the obligations of
the Trustee under Section 4.2, Section 9.2 and the last paragraph of
Section 9.3 shall survive.
Section 4.2. Application of Trust Funds. Subject to the
provisions of the last paragraph of Section 9.3, all money deposited with
the Trustee pursuant to Section 4.1 shall be held in trust and applied by
it, in accordance with the provisions of the Securities, the interest
coupons appertaining thereto, if any, and this Indenture, to the payment,
either directly or through any Paying Agent (including the Company acting
as its own Paying Agent) as the Trustee may determine, to the Persons
entitled thereto, of the principal, premium, if any and any interest for
whose payment such money has been deposited with or received by the
Trustee, but such money need not be segregated from other funds except as
otherwise provided herein and except to the extent required by law.
Section 4.3. Applicability of Defeasance Provisions; Company's
Option to Effect Defeasance or Agreement Defeasance. Except as otherwise
specified as contemplated by Section 3.1 for the Securities of any series,
the provisions of Sections 4.4 through 4.9 inclusive, with such
modifications thereto as may be specified pursuant to Section 3.1 with
respect to any series of Securities, shall be applicable to the Securities
and any interest coupons appertaining thereto.
Section 4.4. Defeasance and Discharge. On and after the date on
which the conditions set forth in Section 4.6 are satisfied with respect to
the Securities of or within any series, the Company shall be deemed to have
paid and been discharged from its obligations with respect to such
Securities and any interest coupons appertaining thereto (hereinafter
"defeasance"). For this purpose, such defeasance means that 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 agreement defeasance (as defined herein) under
Section 4.5 with respect to such Securities and any interest coupons
appertaining thereto. Following a defeasance, payment of such Securities
may not be accelerated because of an Event of Default.
Section 4.5. Agreement Defeasance. On and after the date on which
the conditions set forth in Section 4.6 are satisfied with respect to the
Securities of or within any series, (i) the Company shall be released from
its obligations under Section 7.1 and, if specified pursuant to Section
3.1, its obligations under any other agreement, with respect to such
Securities and any interest coupons appertaining thereto and (ii) the
occurrence of any event specified in Section 5.1(d) or 5.1(i) (in each
case, with respect to any of the obligations described in clause (i) above)
or 5.1(e) shall be deemed not to be or result in a Default or Event of
Default (hereinafter, "agreement defeasance"), and such Securities and any
interest coupons appertaining thereto shall thereafter be deemed to be not
"Outstanding" for the purposes of any request, demand, authorization,
direction, notice, waiver, consent or declaration or Act of Holders (and
the consequences of any thereof) in connection with Section 7.1, such other
agreement specified pursuant to Section 3.1, or Section 5.1(d) or 5.1(i)
(in each case, with respect to any of the obligations described in clause
(i) above) or 5.1(e), but shall continue to be deemed "Outstanding" for all
other purposes hereunder. For this purpose, such agreement defeasance means
that, with respect to such Securities and any interest coupons appertaining
thereto, the Company may omit to comply with and shall have no liability in
respect of any term, condition or limitation set forth in any such Section
or such other agreement, whether directly or indirectly, by reason of any
reference elsewhere herein to any such Section or such other agreement or
by reason of reference in any such Section or such other agreement to any
other provision herein or in any other document and such omission to comply
shall not constitute a Default or an Event of Default under Section 5.1(d),
5.1(e) or 5.1(i) or otherwise, as the case may be, but, except as specified
above, the remainder of this Indenture and such Securities and any interest
coupons appertaining thereto shall be unaffected thereby.
Section 4.6. Conditions to Defeasance or 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.
(b) In the case of an election under Section 4.4, the Company
shall have delivered to the Trustee an Opinion of Counsel stating that
(x) the Company has received from, or there has been published by, the
Internal Revenue Service a ruling, or (y) since the date of this
Indenture there has been a change in the applicable Federal income tax
law, in either case to the effect that, and based thereon such opinion
shall confirm that, the Holders of the Outstanding Securities and any
interest coupons appertaining thereto will not recognize gain or loss
for Federal income tax purposes as a result of such deposit,
defeasance and discharge and will be subject to Federal income tax on
the same amount, in the same manner and at the same times as would
have been the case if such deposit, defeasance and discharge had not
occurred.
(c) In the case of an election under Section 4.5, the Company
shall have delivered to the Trustee an Opinion of Counsel to the
effect that the Holders of the Outstanding Securities and any interest
coupons appertaining thereto will not recognize gain or loss for
Federal income tax purposes as a result of such deposit and agreement
defeasance and will be subject to Federal income tax on the same
amount, in the same manner and at the same times as would have been
the case if such deposit and agreement defeasance had not occurred.
(d) The Company shall have delivered to the Trustee an Officer's
Certificate to the effect that the Securities, if then listed on any
securities exchange or approved for trading in any automated quotation
system, will not be delisted or disapproved for such trading as a
result of such deposit.
(e) 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 agreement defeasance shall not cause the
Trustee to have a conflicting interest within the meaning of the Trust
Indenture Act (assuming all Securities are in default within the
meaning of such Act).
(g) Such defeasance or agreement defeasance shall not result in a
breach or violation of, or constitute a default under, any other
agreement or instrument to which the Company is a party or by which it
is bound.
(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 agreement defeasance under Section 4.5 (as
the case may be) have been complied with.
(i) Such defeasance or agreement defeasance shall not result in
the trust arising from such deposit constituting an investment company
as defined in the Investment Company Act of 1940, as amended from time
to time, or such trust shall be registered under such act or exempt
from registration thereunder.
(j) Such defeasance or agreement defeasance shall be effected in
compliance with any additional or substitute terms, conditions or
limitations which may be imposed on the Company in connection
therewith as contemplated by Section 3.1.
Section 4.7. Deposited Money and Government Obligations to Be
Held in Trust. Subject to the provisions of the last paragraph of Section
9.3, all money and Government Obligations (or other property as may be
provided pursuant to Section 3.1) (including the proceeds thereof)
deposited with the Trustee pursuant to Section 4.6 in respect of any
Securities of any series and any interest coupons appertaining thereto
shall be held in trust and applied by the Trustee, in accordance with the
provisions of such Securities and any interest coupons appertaining thereto
and this Indenture, to the payment, either directly or through any Paying
Agent (including the Company acting as its own Paying Agent) as the Trustee
may determine, to the Holders of such Securities and any interest coupons
appertaining thereto of all sums due and to become due thereon in respect
of principal, premium, if any, and interest, if any, but such money need
not be segregated from other funds except as provided herein and except to
the extent required by law.
Section 4.8. Repayment to Company. Subject to the delivery by the
Company of any written certification required by the last paragraph of this
Section 4.8, the Trustee (and any Paying Agent) shall promptly pay to the
Company upon Company Request any excess money or securities held by them at
any time.
The provisions of the last paragraph of Section 9.3 shall apply
to any money or securities held by the Trustee or any Paying Agent under
this Article 4 that remain unclaimed for two years after the Maturity of
any series of Securities for which money or securities have been deposited
pursuant to Section 4.6(a).
Anything in this Article to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or Government Obligations held by it as provided in
Section 4.6 with respect to any Securities which, in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, are in excess of
the amount thereof which would then be required to be deposited to effect
the defeasance or agreement defeasance, as the case may be, with respect to
such Securities.
Section 4.9. Indemnity for Government Obligations. The Company
shall pay, and shall indemnify the Trustee against, any tax, fee or other
charge imposed on or assessed against Government Obligations deposited
pursuant to this Article or the principal and interest received in respect
thereof other than any such tax, fee or other charge which by law is for
the account of the Holders of the Outstanding Securities.
Section 4.10. Reinstatement. If the Trustee (or Paying Agent) is
unable to apply any money or Government Obligations in accordance with
Section 4.6 by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application,
then the Company's obligations under this Indenture and the Securities
shall be revived and reinstated, with present and prospective effect, as
though no deposit had occurred pursuant to Section 4.6, until such time as
the Trustee (or Paying Agent) is permitted to apply all such money or
Government Obligations in accordance with Section 4.6; provided, however,
that if the Company makes any payment to the Trustee (or Paying Agent) of
principal of, premium, if any, or interest on any Security following the
reinstatement of its obligations, the Trustee (or Paying Agent) shall
promptly pay any such amount to the Holders of the Securities and the
Company shall be subrogated to the rights of the Holders of such Securities
to receive such payment from the money and Government Obligations held by
the Trustee (or Paying Agent).
ARTICLE 5
DEFAULTS AND REMEDIES
Section 5.1. Events of Default. An "Event of Default," with
respect to the Securities of any series, means any one of the following
events (whatever the reason for such Event of Default and whether it shall
be 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 agreement or
warranty of the Company in this Indenture (other than an agreement or
warranty a default in whose performance or whose breach is elsewhere
in this Section specifically dealt with) or the Securities, and
continuance of such default or breach for a period of 60 days after
there has been given, in the manner provided in Section 1.6, to the
Company by the Trustee or to the Company and the Trustee by the
Holders of at least 10% in principal amount of the Outstanding
Securities of the series, a written notice specifying such default or
breach and requiring it to be remedied and stating that such notice is
a "Notice of Default" hereunder; or
(e) a default or defaults under the terms of any bond(s),
debenture(s), note(s) or other evidence(s) of, or obligations
constituting, Debt by the Company 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,
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, premium, if any, and
accrued interest, if any, on all the Securities of that series to be due
and payable and upon any such declaration such principal (or, in the case
of Original Issue Discount Securities or Indexed Securities, such specified
amount), premium, if any, and interest, if any, shall be immediately due
and payable. If an Event of Default specified in clause (g) or (h) of
Section 5.1 with respect to the Securities of any series at the time
Outstanding occurs and is continuing, then the principal (or, if the
Securities of that series are Original Issue Discount Securities or Indexed
Securities, such portion of the principal amount as may be specified in the
terms of that series) of, premium, if any, and accrued interest, if any, on
all the Securities of that series shall 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 not less than a majority in aggregate principal amount of the
Outstanding Securities of that series, by written notice to the Company and
the Trustee, may rescind and annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest on all Securities of that series,
(B) the principal of, and premium, if any, on any Securities
of that series which have become due otherwise than by such
declaration of acceleration and any interest thereon at the rate
borne by the Securities of that series,
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate provided therefor in
the Securities of that series, and
(D) all sums paid or advanced by the Trustee hereunder and
the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel;
and
(2) all Events of Default, other than the nonpayment of the
principal of Securities of that series which have become due solely by
such declaration of acceleration, have been cured or waived as
provided in Section 5.7.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Section 5.3. Collection of Indebtedness and Suits for Enforcement
by Trustee. The Company agrees that if
(a) default is made in the payment of any interest on any
Security or interest coupon, if any, when such interest becomes due
and payable and such default continues for a period of 30 days, or
(b) default is made in the payment of the principal of, or
premium, if any, on any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the
benefit of the Holders of such Securities or interest coupons, if any,
the whole amount then due and payable on such Securities for
principal, premium, if any, and interest and, to the extent that
payment of such interest shall be legally enforceable, interest on any
overdue principal, premium, if any, and on any overdue interest, at
the rate or rates prescribed therefor in such Securities or interest
coupons, if any, and, in addition thereto, such further amount as
shall be sufficient to cover the costs and expenses of collection,
including all amounts due the Trustee, its agents and counsel under
Section 6.7.
If the Company 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 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,
and any recovery of judgment shall, after provision for the payment of the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, be for the ratable benefit of the Holders
of the Securities in respect of which such judgment has been recovered.
Section 5.6. Delay or Omission Not Waiver. No delay or omission
by the Trustee or any Holder of any Securities to exercise any right or
remedy accruing upon an Event of Default shall impair any such right or
remedy or constitute a waiver of or acquiescence in any such Event of
Default.
Section 5.7. Waiver of Past Defaults. The Holders of not less
than a majority in aggregate principal amount of Outstanding Securities of
any series by written notice to the Trustee may waive on behalf of the
Holders of all Securities of such series and any interest coupons
appertaining thereto a past Default or Event of Default with respect to
that series and its consequences except a Default or Event of Default (i)
in the payment of the principal of, premium, if any, or interest on any
Security of such series or any interest coupon appertaining thereto or (ii)
in respect of an agreement or provision hereof which pursuant to Article 8
cannot be amended or modified without the consent of the Holder of each
Outstanding Security of such series affected. Upon any such waiver, such
Default shall cease to exist, and any Event of Default arising therefrom
shall be deemed to have been cured, for every purpose of this Indenture but
no such waiver shall extend to any subsequent or other default or impair
any right consequent thereon.
Section 5.8. Control by Majority. The Holders of not less than a
majority in aggregate principal amount of the Outstanding Securities of
each series affected (with each such series voting as a class) shall have
the right to direct the time, method and place of conducting any proceeding
for any remedy available to the Trustee or exercising any trust or power
conferred on it with respect to Securities of that series; provided,
however, that (i) the Trustee may refuse to follow any direction that
conflicts with any governmental rule or law or this Indenture, (ii) the
Trustee may refuse to follow any direction that is unduly prejudicial to
the rights of the Holders of Securities of such series not consenting, or
that would in the good faith judgment of the Trustee have a substantial
likelihood of involving the Trustee in personal liability without adequate
indemnity having been offered therefor and (iii) subject to Section 6.1,
the Trustee may take any other action deemed proper by the Trustee which is
not inconsistent with such direction.
Section 5.9. Limitation on Suits by Holders. No Holder of any
Security of any series or any interest coupons appertaining thereto shall
have any right to institute any proceeding, judicial or otherwise, with
respect to this Indenture, or for the appointment of a receiver or trustee,
or for any other remedy hereunder, unless:
(a) the Holder has previously given written notice to the Trustee
of a continuing Event of Default with respect to the Securities of
that series;
(b) the Holders of at least 25% in aggregate principal amount of
the Outstanding Securities of that series have made a written request
to the Trustee to institute proceedings in respect of such Event of
Default in its own name as Trustee hereunder;
(c) such Holder or Holders have offered to the Trustee indemnity
satisfactory to the Trustee against any loss, liability or expense to
be, or which may be, incurred by the Trustee in pursuing the remedy;
(d) the Trustee for 60 days after its receipt of such notice,
request and the offer of indemnity has failed to institute any such
proceedings; and
(e) during such 60-day period, the Holders of a majority in
aggregate principal amount of the Outstanding Securities of that
series have not given to the Trustee a direction inconsistent with
such written request.
No one or more Holders of Securities of a series shall have any
right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other
of such Holders, or to obtain or to seek to obtain priority or preference
over any other of such Holders or to enforce any right under this
Indenture, except in the manner herein provided and for the equal and
ratable benefit of all of such Holders.
Section 5.10. Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, but subject to
Section 9.2, each of the right of any Holder of a Security or interest
coupon to receive payment of principal of, premium, if any, and, subject to
Sections 3.5 and 3.7, interest on the Security, on or after the respective
due dates expressed in the Security (or, in case of redemption or a
required repurchase by the Company under the terms of the relevant
Securities, on the Redemption Dates or specified repurchase dates), the
right of any Holder of an interest coupon to receive payment of interest
due as provided in such interest coupon, or to bring suit for the
enforcement of any such payment on or after such respective dates, and the
right, if any, to convert or exchange such Security in accordance with
Article 14, is unconditional and shall not be impaired or affected without
the consent of such Holder.
Section 5.11. Application of Money Collected. If the Trustee
collects any money pursuant to this Article, it shall pay out the money in
the following order, at the date or dates fixed by the Trustee and, in case
of the distribution of such money on account of principal, premium, if any,
or interest, upon presentation of the Securities and interest coupons, if
any, and the notation thereon of the payment if only partially paid and
upon surrender thereof if fully paid:
First: to the Trustee for amounts due under Section 6.7;
Second: to Holders of Securities and interest coupons in respect
of which or for the benefit of which such money has been collected for
amounts due and unpaid on such Securities for principal of, premium,
if any, and interest, ratably, without preference or priority of any
kind, according to the amounts due and payable on such Securities for
principal, premium, if any, and interest, respectively; and
Third: the balance, if any, to the Company.
The Holders of each series of Securities denominated in ECU, any
other currency unit or a Foreign Currency and any matured interest coupons
relating thereto shall be entitled to receive a ratable portion of the
amount determined by the Trustee by converting the principal amount
Outstanding of such series of Securities and matured but unpaid interest on
such series of Securities in the currency in which such series of
Securities is denominated into Dollars at the Market Exchange Rate as of
the date of declaration of acceleration of Maturity of the Securities (or,
if the default consists of a failure to pay the principal of such
Securities on the Stated Maturity thereof, as of the Stated Maturity date).
The Trustee may fix a record date and payment date for any
payment to Holders pursuant to this Section 5.11. At least 15 days before
such record date, the Trustee shall mail to each Holder and the Company a
notice that states the record date, the payment date and the amount to be
paid.
Section 5.12. Restoration of Rights and Remedies. If the Trustee
or any Holder has instituted any proceeding to enforce any right or remedy
under this Indenture and such proceeding has been discontinued or abandoned
for any reason, or has been determined adversely to the Trustee or to such
Holder, then and in every such case, subject to any determination in such
proceeding, the Company, the Trustee and the Holders shall be restored
severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and the Holders shall
continue as though no such proceeding had been instituted.
Section 5.13. Rights and Remedies Cumulative. Except as otherwise
provided with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities in the last paragraph of Section 3.6,
no right or remedy herein conferred upon or reserved to the Trustee or the
Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and
in addition to every other right and remedy given hereunder or now or
hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not
prevent the concurrent assertion or employment of any other appropriate
right or remedy.
Section 5.14. Undertaking for Costs. In any suit for the
enforcement of any right or remedy under this Indenture, or in any suit
against the Trustee for any action taken, suffered or omitted by it as
Trustee, a court may require any party litigant in such suit to file an
undertaking to pay the costs of such suit, and may assess costs against any
such party litigant, in the manner and to the extent provided in the Trust
Indenture Act; provided, however, that neither this Section nor the Trust
Indenture Act shall be deemed to authorize any court to require such an
undertaking or to make such an assessment in any suit instituted by the
Company, the Trustee or any Holder, or group of Holders, holding in the
aggregate at least 10% in principal amount of the Outstanding Securities of
the relevant series or in any suit instituted by any Holder for the
enforcement of principal of, 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 or any required repurchase by the
Company, on or after the Redemption Date or specified repurchase date).
Section 5.15. Waiver of Stay, Extension or Usury Laws. The
Company agrees (to the extent that it may lawfully do so) that it will not
at any time insist upon, or plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay or extension law or any usury or
other law wherever enacted, now or at any time hereafter in force, which
would prohibit or forgive the Company from paying all or any portion of the
principal of, premium, if any, or interest on the Securities contemplated
herein or in the Securities or which may affect the agreements or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any
such law, and agrees that it will not hinder, delay or impede the execution
of any power herein granted to the Trustee, but will suffer and permit the
execution of every such power as though no such law had been enacted.
ARTICLE 6
THE TRUSTEE
Section 6.1. Certain Duties and Responsibilities. The duties and
responsibilities of the Trustee shall be as provided by the Trust Indenture
Act. Notwithstanding the foregoing, no provision of this Indenture shall
require the Trustee to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties hereunder, or
in the exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity
against such risk or liability is not reasonably assured to it. Whether or
not therein expressly so provided, every provision of this Indenture
relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of this
Section.
Section 6.2. Notice of Defaults. If a Default occurs hereunder
with respect to Securities of any series, the Trustee shall give the
Holders of Securities of such series notice of such Default as and to the
extent provided by the Trust Indenture Act; provided, however, that in the
case of any Default of the character specified in Section 5.1(d) with
respect to Securities of such series, no such notice to Holders shall be
given until at least 30 days after the occurrence thereof.
Section 6.3. Certain Rights of Trustee. Subject to the provisions
of Section 6.1:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or other
paper or document believed by it to be genuine and to have been signed
or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order,
and any resolution of the Board of Directors shall be sufficiently
evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior
to taking, suffering or omitting any action hereunder, the Trustee
(unless other evidence be herein specifically prescribed) may, in the
absence of bad faith on its part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the written advice
of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless
such Holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or other
paper or document, but the Trustee, in its discretion, may make such
further inquiry or investigation into such facts or matters as it may
see fit, and, if the Trustee shall determine to make such further
inquiry or investigation, it shall be entitled to examine the books,
records and premises of the Company, personally or by agent or
attorney;
(g) the Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through
agents or attorneys and the Trustee shall not be responsible for any
misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder; and
(h) except with respect to Section 9.1, the Trustee shall have no
duty to inquire as to the performance by the Company of the agreements
set forth in Article 9 beyond its good faith review of any
certificates or other notices received by it from the Company.
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
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, or (iii) any other indenture
specified in (A) a Board Resolution, (B) an action take pursuant to a Board
Resolution and (subject to Section 3.3) set forth in an Officers'
Certificate or (C) one or more indentures supplemental hereto.
Section 6.9. Corporate Trustee Required; Eligibility. There shall
at all times be a Trustee hereunder which shall be a Person that is
eligible pursuant to the Trust Indenture Act to act as such, has a combined
capital and surplus of at least $25,000,000 and has its Corporate Trust
Office located in the Borough of Manhattan, The City of New York. If such
Person publishes reports of condition at least annually, pursuant to law or
to the requirements of its supervising or examining authority, then for the
purposes of this Section, the combined capital and surplus of such Person
shall be deemed to be its combined capital and surplus as set forth in its
most recent report of condition so published. If at any time the Trustee
shall cease to be eligible in accordance with the provisions of this
Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
Section 6.10. Resignation and Removal; Appointment of Successor.
No resignation or removal of the Trustee and no appointment of a successor
Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 6.11.
The Trustee may resign at any time with respect to the Securities
of one or more series by giving written notice thereof to the Company. If
the instrument of acceptance by a successor Trustee required by Section
6.11 shall not have been delivered to the Trustee within 30 days after the
giving of such notice of resignation, the resigning Trustee may petition
any court of competent jurisdiction for the appointment of a successor
Trustee with respect to the Securities of such series.
The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal
amount of the Outstanding Securities of such series, delivered to the
Trustee and to the Company.
If at any time:
(a) the Trustee shall fail to comply with Section 6.8 after
written request therefor by the Company or by any Holder who has been
a bona fide Holder of a Security for at least six months, or
(b) the Trustee shall cease to be eligible under Section 6.9 and
shall fail to resign after written request therefor by the Company or
by any such Holder, or
(c) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of
its property shall be appointed or any public officer shall take
charge or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation,
then, in any such case, (1) the Company by a Board Resolution may remove
the Trustee with respect to all Securities, or (2) subject to Section 5.14,
any Holder who has been a bona fide Holder of a Security for at least six
months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the removal of the Trustee
with respect to all Securities and the appointment of a successor Trustee
or Trustees.
If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause,
with respect to the Securities of one or more series, the Company, by a
Board Resolution, shall promptly appoint a successor Trustee or Trustees
with respect to the Securities of that or those series (it being understood
that any such successor Trustee may be appointed with respect to the
Securities of one or more or all of such series and that at any time there
shall be only one Trustee with respect to the Securities of any particular
series) and shall comply with the applicable requirements of Section 6.11.
If, within one year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee with respect to the
Securities of any series shall be appointed by Act of the Holders of a
majority in principal amount of the Outstanding Securities of such series
delivered to the Company and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of such appointment in
accordance with the applicable requirements of Section 6.11, become the
successor Trustee with respect to the Securities of such series and to that
extent supersede the successor Trustee appointed by the Company. If no
successor Trustee with respect to the Securities of any series shall have
been so appointed by the Company or the Holders and accepted appointment in
the manner required by Section 6.11, any Holder who has been a bona fide
Holder of a Security of such series for at least six months may, on behalf
of himself and all others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor Trustee with
respect to the Securities of such series. The Company shall give notice of
each resignation and each removal of the Trustee with respect to the
Securities of any series and each appointment of a successor Trustee with
respect to the Securities of any series to all Holders of Securities of
such series in the manner provided in Section 1.6. Each notice shall
include the name of the successor Trustee with respect to the Securities of
such series and the address of its Corporate Trust Office.
Section 6.11. Acceptance of Appointment by Successor. In case of
the appointment hereunder of a successor Trustee with respect to all
Securities, every such successor Trustee so appointed shall execute,
acknowledge and deliver to the Company 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 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
obligatory for all purposes as if authenticated by the Trustee hereunder.
Wherever reference is made in this Indenture to the authentication and
delivery of Securities by the Trustee or the Trustee's certificate of
authentication, such reference shall be deemed to include authentication
and delivery on behalf of the Trustee by an Authenticating Agent and a
certificate of authentication executed on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent shall be acceptable to the
Company and shall at all times be a corporation organized and doing
business under the laws of the United States of America, any State thereof
or the District of Columbia, authorized under such laws to act as
Authenticating Agent, having a combined capital and surplus of not less
than $25,000,000 and subject to supervision or examination by Federal or
State authority. If such Authenticating Agent publishes reports of
condition at least annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this Section,
the combined capital and surplus of such Authenticating Agent shall be
deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. If at any time an Authenticating
Agent shall cease to be eligible in accordance with the provisions of this
Section, such Authenticating Agent shall resign immediately in the manner
and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged
or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any corporation succeeding to the
corporate agency or corporate trust business of an Authenticating Agent,
shall continue to be an Authenticating Agent, provided such corporation
shall be otherwise eligible under this Section, without the execution or
filing of any paper or any further act on the part of the Trustee or the
Authenticating Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Company. The Trustee may at any
time terminate the agency of an Authenticating Agent by giving written
notice thereof to such Authenticating Agent and to the Company. Upon
receiving such a notice of resignation or upon such a termination, or in
case at any time such Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, the Trustee may appoint a
successor Authenticating Agent which shall be acceptable to the Company and
shall give notice of such appointment in the manner provided in Section 1.6
to all Holders of Securities of the series with respect to which such
Authenticating Agent will serve. Any successor Authenticating Agent upon
acceptance of its appointment hereunder shall become vested with all the
rights, powers and duties of its predecessor hereunder, with like effect as
if originally named as an Authenticating Agent. No successor Authenticating
Agent shall be appointed unless eligible under the provisions of this
Section.
The Trustee agrees to pay to each Authenticating Agent from time
to time reasonable compensation for its services under this Section, and
the Trustee shall be entitled to be reimbursed for such payments, subject
to the provisions of Section 6.7.
If an appointment with respect to one or more series is made
pursuant to this Section, the Securities of such series may have endorsed
thereon, in addition to the Trustee's certificate of authentication, an
alternative certificate of authentication in the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
-----------------------------,
As Trustee
By:
--------------------------,
As Authenticating Agent
By:
---------------------------
Authorized Signatory
ARTICLE 7
CONSOLIDATION, MERGER OR SALE OF ASSETS BY THE COMPANY
Section 7.1. Consolidation, Merger or Sale of Assets Permitted.
The Company (a) shall not, and shall not permit any Restricted Subsidiary
to, consolidate with or merge into any Person, in the case of a Restricted
Subsidiary, in a transaction in which such Restricted Subsidiary remains a
Restricted Subsidiary, unless such Restricted Subsidiary consolidates with
or merges into a Wholly Owned Restricted Subsidiary; (b) shall not permit
any Person other than a Wholly Owned Restricted Subsidiary to consolidate
with or merge into (i) the Company or (ii) any Restricted Subsidiary in a
transaction in which such Restricted Subsidiary remains a Restricted
Subsidiary; (c) shall not, directly or indirectly, in one or a series of
transactions, transfer, convey, sell, lease or otherwise dispose of all or
substantially all of the properties and assets of the Company and its
Subsidiaries on a consolidated basis; and (d) shall not, and shall not
permit any Restricted Subsidiary to, in one or a series of transactions,
acquire Capital Stock of or other ownership interests in any other Person
such that such other Person becomes a Restricted Subsidiary; unless in any
such transaction (or series) contemplated by Clause (a), (b), (c) or (d)
above:
(a) in case the Company shall consolidate with or merge into
another Person or shall directly or indirectly, in one or a series of
transactions, transfer, convey, sell, lease or otherwise dispose of
all or substantially all of its properties and assets as an entirety,
the Person formed by such consolidation or into which the Company is
merged or the Person which acquires by transfer, conveyance, sale,
lease or other disposition all or substantially all of the properties
and assets of the Company and its Subsidiaries on a consolidated basis
(for purposes of this Article 7, a "Successor Company") shall be a
corporation, partnership, limited liability company or trust, shall be
organized and validly existing under the laws of the United States of
America, any State thereof or the District of Columbia and shall
expressly assume by an indenture supplemental hereto executed and
delivered to the Trustee, in form satisfactory to the Trustee, the due
and punctual payment of the principal of, premium, if any, and
interest on all the Securities and the performance of every agreement
of this Indenture on the part of the Company to be performed or
observed;
(b) immediately after giving effect to such consolidation,
merger, sale, transfer, lease or other disposition, no Default or
Event of Default shall have occurred and be continuing; and
(c) with respect to any series of Securities, the Company
satisfies such other conditions, if any, established with respect to
such series of Securities pursuant to and in accordance with Section
3.1.
The Company shall deliver to the Trustee prior to the proposed
consolidation, merger, sale, transfer, lease or other disposition an
Officers' Certificate to the foregoing effect and an Opinion of Counsel
stating that the proposed consolidation, merger, sale, transfer, lease or
other disposition and such supplemental indenture comply with this
Indenture and that all conditions precedent to the consummation of such
transaction under this Section 7.1 have been met.
Section 7.2. Successor Substituted. Upon any consolidation of the
Company with, or merger of the Company into, any other Person or any
transfer, conveyance, sale, lease or other disposition of all or
substantially all of the properties and assets of the Company and its
Subsidiaries on a consolidated basis, in each case in accordance with
Section 7.1, the Successor Company shall succeed to, and be substituted
for, and may exercise every right and power of, the Company under this
Indenture and under the Securities and any interest coupons appertaining
thereto with the same effect as if such Successor Company had been named as
the Company herein, and thereafter, except in the case of a lease, the
predecessor Person (if still in existence) shall be relieved of all
obligations and agreements under this Indenture and the Securities and any
interest coupons appertaining thereto.
ARTICLE 8
SUPPLEMENTAL INDENTURES
Section 8.1. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company 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 agreements and
obligations of the Company herein and in the Securities and any
interest coupons appertaining thereto; or
(b) to add to the agreements of the Company for the benefit of
the Holders of all or any series of Securities (and if such agreements
are to be for the benefit of less than all series of Securities,
stating that such agreements are expressly being included solely for
the benefit of such series) or to surrender any right or power herein
conferred upon the Company; or
(c) to add any additional Events of Default with respect to all
or any series of Securities; or
(d) to add to or change any of the provisions of this Indenture
to such extent as shall be necessary to facilitate the issuance or
administration of Bearer Securities (including, without limitation, to
provide that Bearer Securities may be registrable as to principal
only) or to facilitate the issuance or administration of Global
Securities; or
(e) to change or eliminate any of the provisions of this
Indenture in respect of one or more series of Securities, provided
that any such change or elimination shall become effective only when
there is no Security Outstanding of any series created prior to the
execution of such supplemental indenture which is entitled to the
benefit of such provision; or
(f) to secure any series of Securities; or
(g) to establish the form or terms of Securities of any series as
permitted by Sections 2.1 and 3.1; or
(h) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one
or more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee,
pursuant to the requirements of Section 6.11; or
(i) if allowed without penalty under applicable laws and
regulations, to permit payment in the United States (including any of
the States thereof and the District of Columbia), its territories, its
possessions and other areas subject to its jurisdiction of principal
of, premium, if any, or interest, if any, on Bearer Securities or
interest coupons, if any; or
(j) to cure any ambiguity, to correct or supplement any provision
herein which may be inconsistent with any other provision herein or to
make any other provisions with respect to matters or questions arising
under this Indenture which shall not be inconsistent with the
provisions of this Indenture, provided such action shall not adversely
affect in any material respect the interests of the Holders of
Securities of any series; or
(k) to make provision not adverse to the Holders of Outstanding
Securities of any series with respect to any conversion or exchange
rights of Holders pursuant to the requirements of Article 14,
including providing for the conversion or exchange of the Securities
into any Equity Securities of 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
on, if any, or any installment of principal of or premium, if any, or
interest on, any Security, or reduce the principal amount thereof or
the rate of interest thereon or any premium payable upon the
redemption thereof or upon any required repurchase by the Company, or
change the manner in which the amount of any principal thereof or
premium, if any, or interest thereon is determined or reduce the
amount of the principal of any Original Issue Discount Security or
Indexed Security that would be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 5.2, or
change the currency or currency unit in which any Securities or any
premium or the interest thereon is payable, or impair the right to
institute suit for the enforcement of any such payment on or after the
Stated Maturity thereof (or, in the case of redemption or any required
repurchase of Securities by the Company, on or after the Redemption
Date or specified repurchase date);
(b) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for
any such supplemental indenture, or the consent of whose Holders is
required for any waiver (of compliance with certain provisions of this
Indenture or certain defaults hereunder and their consequences)
provided for in this Indenture, or reduce the requirements of Section
13.4 for quorum or voting;
(c) change any obligation of the Company to maintain an office or
agency in the places and for the purposes specified in Section 9.2;
(d) make any change that adversely affects any right to convert
or exchange any Security to which the provisions of Article 14 are
applicable or, except as provided in this Indenture, decrease the
conversion or exchange rate or increase the conversion or exchange
price of any such Security; 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
agreement or other provision of this Indenture which has expressly been
included solely for the benefit of one or more particular series of
Securities, or which modifies the rights of the Holders of Securities of
such series with respect to such agreement or other provision, shall be
deemed not to affect the rights under this Indenture of the Holders of
Securities of any other series.
It is not necessary under this Section 8.2, 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.
Section 8.5. Effect of Supplemental Indentures. Upon the
execution of any supplemental indenture under this Article, this Indenture
shall be modified in accordance therewith, and such supplemental indenture
shall form a part of this Indenture for all purposes; and every Holder of
Securities theretofore or thereafter authenticated and delivered hereunder
and of any interest coupon appertaining thereto shall be bound thereby.
Section 8.6. Reference in Securities to Supplemental Indentures.
Securities, including any interest coupons, of any series authenticated and
delivered after the execution of any supplemental indenture pursuant to
this Article may, and shall if required by the Trustee, bear a notation in
form approved by the Trustee as to any matter provided for in such
supplemental indenture. If the Company shall so determine, new Securities
including any interest coupons of any series so modified as to conform, in
the opinion of the Company, to any such supplemental indenture may be
prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities including any interest
coupons of such series.
Section 8.7. Notice of Supplemental Indentures. Promptly after
the execution by the Company and the Trustee of any supplemental indenture
pursuant to the provisions of Section 8.2, the Company shall give notice
thereof to the Holders of each Outstanding Security affected, in the manner
provided for in Section 1.6, setting forth in general terms the substance
of such supplemental indenture. Any failure of the Company to give such
notice, or any defect therein, shall not, however, in any way impair or
affect the validity of any such supplemental indenture.
ARTICLE 9
AGREEMENTS
Section 9.1. Payment of Principal, Premium, if any, and Interest.
The Company 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, received by no later than the close of business on such due date,
or if the Trustee or Paying Agent otherwise holds, on that date money
designated for and sufficient to pay the installment.
Section 9.2. Maintenance of Office or Agency. Unless otherwise
specified as contemplated by Section 3.1, if Securities of a series are
issued as Registered Securities, the Company will maintain in each Place of
Payment for that series of Securities an office or agency where Securities
of that series may be presented or surrendered for payment, where
Securities of that series may be surrendered for registration of transfer
or exchange or conversion and where notices and demands to or upon the
Company 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 for the purpose by the Company in accordance
with this Indenture is illegal or effectively precluded by exchange
controls or other similar restrictions.
Unless otherwise specified as contemplated by Section 3.1, the
Company may also from time to time designate one or more other offices or
agencies where the Securities (including any interest coupons, if any) of
one or more series may be presented or surrendered for any or all such
purposes and may from time to time rescind such designations; provided,
however, that no such designation or rescission shall in any manner relieve
the Company of its obligation to maintain an office or agency in each Place
of Payment for Securities (including any interest coupons, if any) of any
series for such purposes. The Company will give prompt written notice to
the Trustee of any such designation or rescission and of any change in the
location of any such other office or agency.
Unless otherwise specified as contemplated by Section 3.1, the
Trustee shall initially serve as Paying Agent.
Section 9.3. Money for Securities Payments to Be Held in Trust;
Unclaimed Money. If the Company shall at any time act as its own Paying
Agent with respect to any series of Securities and any interest coupons
appertaining thereto, it will, on or before each due date of the principal
of, premium, if any, or interest on any of the Securities of that series,
segregate and hold in trust for the benefit of the Persons entitled thereto
a sum sufficient to pay the principal, premium, if any, or interest so
becoming due until such sums shall be paid to such Persons or otherwise
disposed of as herein provided and will promptly notify the Trustee in
writing of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities and any interest coupons appertaining thereto, it
will, prior to each due date of the principal of or any premium or interest
on any Securities of that series, deposit with a Paying Agent a sum
sufficient to pay such amount, such sum to be held as provided by the Trust
Indenture Act, and (unless such Paying Agent is the Trustee) the Company
will promptly notify the Trustee of its action or failure so to act.
The Company will cause each Paying Agent for any series of
Securities other than the Trustee to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee, subject
to the provisions of this Section, that such Paying Agent will:
(a) comply with the provisions of the Trust Indenture Act
applicable to it as a Paying Agent;
(b) hold all sums held by it for the payment of the principal of,
premium, if any, or interest on Securities of that series in trust for
the benefit of the Persons entitled thereto until such sums shall be
paid to such Persons or otherwise disposed of as herein provided;
(c) give the Trustee notice of any default by the Company (or any
other obligor upon the Securities of that series) in the making of any
payment of principal of, premium, if any, or interest on the
Securities of that series; and
(d) at any time during the continuance of any such default, upon
the written request of the Trustee, forthwith pay to the Trustee all
sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay,
or by Company Order direct any Paying Agent to pay, to the Trustee all sums
held in trust by the Company or such Paying Agent, such sums to be held by
the Trustee upon the terms set forth in this Indenture; and, upon such
payment by any Paying Agent to the Trustee, such Paying Agent shall be
released from all further liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then
held by the Company, in trust for the payment of any principal of or
premium or interest on any Security of any series and remaining unclaimed
for two years after such principal, premium, if any, or interest has become
due and payable shall be paid to the Company on Company Request, or (if
then held by the Company) shall be discharged from such trust; and the
Holder of such Security and interest coupon, if any, shall thereafter, as
an unsecured general creditor, look only to the Company for payment
thereof, and all liability of the Trustee or such Paying Agent with respect
to such trust money, and all liability of the Company as trustee thereof,
shall thereupon cease; provided, however, that the Trustee or such Paying
Agent, before being required to make any such repayment, may in the name
and at the expense of the Company cause to be published once, in an
Authorized Newspaper in each Place of Payment with respect to such series,
or cause to be mailed to such Holder, notice that such money remains
unclaimed and that, after a date specified therein, which shall not be less
than 30 days from the date of such publication, any unclaimed balance of
such money then remaining will be repaid to the Company.
Section 9.4. Corporate Existence. Subject to Article 7, the
Company will at all times do or cause to be done all things necessary to
preserve and keep in full force and effect its corporate existence and its
rights and franchises; provided that nothing in this Section 9.4 shall
prevent the abandonment or termination of any right or franchise of the
Company if it shall be determined that such abandonment or termination is
desirable in the conduct of the business of the Company.
Section 9.5. Annual Review Certificate. The Company agrees to
deliver to the Trustee, within 90 days after the end of each fiscal year of
the Company, a certificate from the principal executive officer, principal
financial officer or principal accounting officer of the Company stating
that a review of the activities of the Company during such year and of
performance under this Indenture has been made under his or her supervision
and to the best of his or her knowledge, based on such review, 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.
The Company shall deliver to the Trustee, as soon as possible and
in any event within 30 days after the Company becomes aware of the
occurrence of an Event of Default or an event which, with notice or the
lapse of time or both, would constitute an Event of Default, an Officers'
Certificate setting forth the details of such Event of Default or Default,
and the action which the Company proposes to take with respect thereto.
Section 9.6. Maintenance of Properties. The Company will cause
all properties used or useful in the conduct of its business or the
business of any Subsidiary to be maintained and kept in good condition,
repair and working order, normal wear and tear excepted, and supplied with
all necessary equipment and will cause to be made all necessary repairs,
renewals, replacements, betterments and improvements thereof, all as in the
judgment of the Company may be necessary so that the business carried on in
connection therewith may be properly and advantageously conducted at all
times; provided, however, that nothing in this Section 9.6 shall prevent
the Company from discontinuing the operation or maintenance of any of such
properties, or disposing of any of them, if such discontinuance or
disposition is, in the judgment of the Company, desirable in the conduct of
its business or the business of any Subsidiary.
Section 9.7. Payment of Taxes and Other Claims. The Company will
pay or discharge or cause to be paid or discharged, before the same shall
become delinquent, (1) all taxes, assessments and governmental charges
levied or imposed upon the Company or any Subsidiary or upon the income,
profits or property of the Company or any Subsidiary, and (2) all lawful
claims for labor, materials and supplies which, if unpaid, might by law
become a material lien upon the property of the Company or any Subsidiary;
provided, however, that the Company shall not be required to pay or
discharge or cause to be paid or discharged any such tax, assessment,
charge or claim whose amount, applicability or validity is being contested
in good faith by appropriate proceedings.
Section 9.8. Waiver of Certain Agreements. Except as otherwise
specified as contemplated by Section 3.1 for Securities of such series, the
Company may, with respect to the Securities of any series, omit in any
particular instance to comply with any term, provision or condition set
forth in any agreement provided pursuant to Section 3.1(b)(15), 8.1(b) or
8.1(g) for the benefit of the Holders of such series if before the time for
such compliance the Holders of at least a majority in principal amount of
the Outstanding Securities of such series shall, by act of such Holders in
accordance with Section 1.4, either waive such compliance in such instance
or generally waive compliance with such term, provision or condition, but
no such waiver shall extend to or affect such term, provision or condition
except to the extent so expressly waived, and, until such waiver shall
become effective, the obligations of the Company and the duties of the
Trustee in respect of any such term, provision or condition shall remain in
full force and effect.
ARTICLE 10
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 10.1. Company to Furnish Trustee Names and Addresses of
Holders. The Company will furnish or cause to be furnished to the Trustee:
(a) semi-annually, not more than 15 days after each Regular
Record Date for any series, a list, in such form as the Trustee may
reasonably require, of the names and addresses of the Holders of Registered
Securities of such series as of such Regular Record Date; and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a list
of similar form and content for any or all series as of a date not more
than 15 days prior to the time such list is furnished;
excluding from any such list names and addresses possessed by the Trustee
in its capacity as Registrar.
Section 10.2. Preservation of Information, Communications to
Holders. (a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders of Registered
Securities contained in the most recent list furnished to the Trustee as
provided in Section 10.1 and the names and addresses of Holders of
Registered Securities received by the Trustee in its capacity as Registrar.
The Trustee may destroy any list furnished to it as provided in Section
10.1 upon receipt of a new list so furnished.
(b) The rights of Holders of Securities to communicate with other
Holders with respect to their rights under this Indenture or under the
Securities, and the corresponding rights and privileges of the Trustee,
shall be as provided in the Trust Indenture Act.
(c) Every Holder of Securities and interest coupons appertaining
thereto, by receiving and holding the same, agrees with the Company and the
Trustee that neither the Company 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 pursuant to
Section 13 or 15(d) of the Exchange Act shall be filed with the Trustee
within 15 days after the same is so required to be filed with the
Commission. Notwithstanding anything contrary herein, the Trustee shall
have no duty to review such documents for purposes of determining
compliance with any provisions of this Indenture.
ARTICLE 11
REDEMPTION
Section 11.1. Applicability of Article. Securities (including
interest coupons, if any) of any series which are redeemable before their
Stated Maturity shall be redeemable in accordance with their terms and
(except as otherwise specified as contemplated by Section 3.1 for
Securities of any series) in accordance with this Article.
Section 11.2. Election to Redeem; Notice to Trustee. The election
of the Company to redeem any Securities, including interest coupons, if
any, that, at the time of such election, may be redeemed at the option of
the Company, shall be evidenced by a Board Resolution. In the case of any
such redemption at the election of the Company of less than all the
Securities or interest coupons, if any, of any series, the Company shall,
at least 45 days prior to the Redemption Date fixed by the Company (unless
a shorter notice shall be satisfactory to the Trustee), notify the Trustee
of such Redemption Date, of the principal amount of Securities of such
series to be redeemed and, if applicable, of the tenor of the Securities to
be redeemed. In the case of any redemption of Securities (i) prior to the
expiration of any restriction on such redemption provided in the terms of
such Securities or elsewhere in this Indenture or (ii) pursuant to an
election of the Company which is subject to a condition specified in the
terms of such Securities, the Company shall furnish the Trustee with an
Officers' Certificate evidencing compliance with such restriction or
condition.
Section 11.3. Selection of Securities to Be Redeemed. Unless
otherwise specified as contemplated by Section 3.1, if less than all the
Securities (including interest coupons, if any) of a series with the same
terms are to be redeemed, the Trustee, not more than 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.
If any Security that is convertible or exchangeable is selected
for partial redemption and is converted or exchanged in part before
termination of the conversion or exchange right with respect to the portion
of the Security so selected, the converted or exchanged portion of such
Security shall be deemed (so far as applicable) to be the portion selected
for redemption. Securities which have been converted or exchanged during a
selection of Securities to be redeemed shall be treated by the Trustee as
Outstanding for the purpose of such selection.
Section 11.4. Notice of Redemption. Unless otherwise specified as
contemplated by Section 3.1, notice of redemption shall be given in the
manner provided in Section 1.6 not less than 30 days nor more than 60 days
prior to the Redemption Date to the Holders of the Securities to be
redeemed.
All notices of redemption shall state:
(a) the Redemption Date;
(b) the Redemption Price;
(c) if less than all the Outstanding Securities of a series are
to be redeemed, the identification (and, in the case of partial
redemption, the principal amounts) of the particular Security or
Securities to be redeemed;
(d) the Place or Places of Payment where such Securities,
together in the case of Bearer Securities with all interest coupons
appertaining thereto, if any, maturing on or after the Redemption
Date, are to be surrendered for payment of the Redemption Price;
(e) that Securities of the series called for redemption and all
unmatured interest coupons, if any, appertaining thereto must be
surrendered to the Paying Agent to collect the Redemption Price;
(f) that, on the Redemption Date, the Redemption Price will
become due and payable upon each such Security, or the portion
thereof, to be redeemed and, if applicable, that interest thereon will
cease to accrue on and after said date;
(g) that the redemption is from a sinking fund, if such is the
case;
(h) that, unless otherwise specified in such notice, Bearer
Securities of any series, if any, surrendered for redemption must be
accompanied by all interest coupons maturing subsequent to the
Redemption Date or the amount of any such missing interest coupon or
interest coupons will be deducted from the Redemption Price, unless
security or indemnity satisfactory to the Company, the Trustee and any
Paying Agent is furnished;
(i) the CUSIP number, if any, of the Securities;
(j) if applicable, the conversion or exchange price, the date on
which the right to convert or exchange the Securities (or portions
thereof to be redeemed) will terminate and the place or places where
such Securities may be surrendered for conversion or exchange; and
(k) the procedures that a Holder must follow to surrender the
Securities so to be redeemed.
Notice of redemption of Securities to be redeemed shall be given by the
Company or, at the Company's request, by the Trustee in the name and at the
expense of the Company.
Section 11.5. Deposit of Redemption Price. On or prior to any
Redemption Date, the Company shall deposit with the Trustee or with a
Paying Agent (or, if the Company is acting as its own Paying Agent,
segregate and hold in trust as provided in Section 9.3) an amount of money
in the currency or currencies (including currency unit or units) in which
the Securities of such series are payable (except as otherwise specified
pursuant to Section 3.1 for the Securities of such series) sufficient to
pay on the Redemption Date the Redemption Price of, and (unless the
Redemption Date shall be an Interest Payment Date) interest accrued to the
Redemption Date on, all Securities or portions thereof which are to be
redeemed on that date.
Unless any Security by its terms prohibits any redemption
obligation from being satisfied by delivering and crediting Securities
(including Securities redeemed otherwise than through a sinking fund), the
Company may deliver such Securities to the Trustee for crediting of an
amount equal to the then applicable Redemption Price for such Securities
against such payment obligation in accordance with the terms of such
Securities and this Indenture.
Section 11.6. Securities Payable on Redemption Date. Notice of
redemption having been given as aforesaid, the Securities so to be redeemed
shall, on the Redemption Date, become due and payable at the Redemption
Price therein specified, and from and after such date (unless the Company
shall default in the payment of the Redemption Price and accrued interest)
such Securities shall cease to bear interest and the interest coupons for
any such interest appertaining to any Bearer Security so to be redeemed,
except to the extent provided below, shall be void. Except as provided in
the next succeeding paragraph, upon surrender of any such Security,
including interest coupons, if any, for redemption in accordance with said
notice, such Security shall be paid by the Company at the Redemption Price,
together with accrued interest to the Redemption Date; provided, however,
that installments of interest on Bearer Securities whose Stated Maturity is
on or prior to the Redemption Date shall be payable only at an office or
agency located outside the United States and its possessions (except as
otherwise provided in Section 9.2) and, unless otherwise specified as
contemplated by Section 3.1, only upon presentation and surrender of
interest coupons for such interest; and provided, further, that, unless
otherwise specified as contemplated by Section 3.1, installments of
interest on Registered Securities that are due and payable on Interest
Payment Dates that are on or prior to the Redemption Date shall be payable
to the Holders of such Securities, or one or more Predecessor Securities,
registered as such at the close of business on the relevant Regular Record
Dates according to their terms and the provisions of Section 3.7.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant interest coupons maturing after the
Redemption Date, such Bearer Security may be paid after deducting from the
Redemption Price an amount equal to the face amount of all such missing
interest coupons, or the surrender of such missing interest coupon or
interest coupons may be waived by the Company and the Trustee if there be
furnished to them such security or indemnity as they may require to save
each of them and any Paying Agent harmless. If thereafter the Holder of
such Bearer Security shall surrender to the Trustee or any Paying Agent any
such missing interest coupon in respect of which a deduction shall have
been made from the Redemption Price, such Holder shall be entitled to
receive the amount so deducted; provided, however, that interest
represented by interest coupons shall be payable only at an office or
agency located outside of the United States (except as otherwise provided
pursuant to Section 9.2) and, unless otherwise specified as contemplated by
Section 3.1, only upon presentation and surrender of those interest
coupons.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal and premium, if any, shall,
until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Security.
Section 11.7. Securities Redeemed in Part. Upon surrender of a
Security that is redeemed in part at any Place of Payment therefor (with,
if the Company or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company and the Trustee
duly executed by, the Holder thereof or his or her attorney duly authorized
in writing), the Company shall execute and the Trustee shall authenticate
and deliver to the Holder of that Security, without service charge, a new
Security or Securities of the same series, having the same form, terms and
Stated Maturity, in any authorized denomination equal in aggregate
principal amount to the unredeemed portion of the principal amount of the
Security surrendered.
ARTICLE 12
SINKING FUNDS
Section 12.1. Applicability of Article. The provisions of this
Article shall be applicable to any sinking fund for the retirement of
Securities of a series except as otherwise specified as contemplated by
Section 3.1 for Securities of such series.
The minimum amount of any sinking fund payment provided for by
the terms of Securities of any series is herein referred to as a "mandatory
sinking fund payment," and any payment in excess of such minimum amount
provided for by the terms of Securities of any series is herein referred to
as an "optional sinking fund payment." If provided for by the terms of
Securities of any series, the cash amount of any sinking fund payment may
be subject to reduction as provided in Section 12.2. Each sinking fund
payment shall be applied to the redemption of Securities of any series as
provided for by the terms of Securities of such series.
Section 12.2. Satisfaction of Sinking Fund Payments with
Securities. The Company (i) may deliver Outstanding Securities of a series
(other than any previously called for redemption) together, in the case of
Bearer Securities of such series, with all unmatured interest coupons
appertaining thereto and (ii) may apply as a credit Securities of a series
which have been (x) redeemed either at the election of the Company pursuant
to the terms of such Securities or through the application of permitted
optional sinking fund payments pursuant to the terms of such Securities,
(y) converted or exchanged pursuant to Article 14 or (z) previously
delivered to the Trustee and cancelled without reissuance pursuant to
Section 3.9, in each case in satisfaction of all or any part of any sinking
fund payment with respect to the Securities of such series required to be
made pursuant to the terms of such Securities as provided for by the terms
of such series; provided that such Securities have not been previously so
credited. Such Securities shall be received and credited for such purpose
by the Trustee at the Redemption Price specified in such Securities for
redemption through operation of the sinking fund and the amount of such
sinking fund payment shall be reduced accordingly.
Section 12.3. Redemption of Securities for Sinking Fund. Not less
than 45 days prior to each sinking fund payment date for any series of
Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing sinking fund payment
for that series pursuant to the terms of that series, the portion thereof,
if any, which is to be satisfied by payment of cash and the portion
thereof, if any, which is to be satisfied by delivering and crediting
Securities of that series pursuant to Section 12.2 and stating the basis
for such credit and that such Securities have not been previously so
credited, and will also deliver to the Trustee any Securities to be so
delivered. Not less than 30 days before each such sinking fund payment date
the Trustee shall select the Securities to be redeemed upon such sinking
fund payment date in the manner specified in Section 11.3 and cause notice
of the redemption thereof to be given in the name of and at the expense of
the Company in the manner provided in Section 11.4. Such notice having been
duly given, the redemption of such Securities shall be made upon the terms
and in the manner stated in Sections 11.6 and 11.7.
ARTICLE 13
MEETINGS OF HOLDERS OF SECURITIES
Section 13.1. Purposes for Which Meetings May Be Called. A
meeting of Holders of Securities of any series may be called at any time
and from time to time pursuant to this Article to make, give or take any
request, demand, authorization, direction, notice, consent, election,
waiver or other action provided by this Indenture to be made, given or
taken by Holders of Securities of such series.
Section 13.2. Call, Notice and Place of Meetings. (a) The Trustee
may at any time call a meeting of Holders of Securities of any series for
any purpose specified in Section 13.1, to be held at such time and at such
place in The City of New York or in such other place as may be acceptable
to the Company. Notice of every meeting of Holders of Securities, setting
forth the time and the place of such meeting and in general terms the
action proposed to be taken at such meeting, shall be given, in the manner
provided in Section 1.6, not less than 20 nor more than 180 days prior to
the date fixed for the meeting.
(b) In case at any time the Company, pursuant to a Board
Resolution shall have requested the Trustee to call a meeting of the
Holders of Securities of any series for any purpose specified in Section
13.1, by written request setting forth in reasonable detail the action
proposed to be taken at the meeting, and the Trustee shall not have made
the first publication of the notice of such meeting within 20 days after
receipt of such request or shall not thereafter proceed to cause the
meeting to be held as provided herein, then the Company may determine the
time and the place in The City of New York or such other place as may be
acceptable to the Company for such meeting and may call such meeting for
such purposes by giving notice thereof as provided in paragraph (a) of this
Section 13.2.
Section 13.3. Persons Entitled to Vote at Meetings. To be
entitled to vote at any meeting of Holders of Securities of any series, a
Person shall be (a) a Holder of one or more Outstanding Securities of such
series, or (b) a Person appointed by an instrument in writing as proxy for
a Holder or Holders of one or more Outstanding Securities of such series by
such Holder or Holders. The only Persons who shall be entitled to be
present or to speak at any meeting of Holders shall be the Persons entitled
to vote at such meeting and their counsel, any representatives of the
Trustee and its counsel and any representatives of the Company and its
counsel.
Section 13.4. Quorum; Action. The Persons entitled to vote a
majority in principal amount of the Outstanding Securities of a series
shall constitute a quorum for a meeting of Holders of Securities of such
series; provided, however, that if any action is to be taken at such
meeting with respect to a consent or waiver which this Indenture expressly
provides may be given by the Holders of not less than a specified
percentage in principal amount of the Outstanding Securities of a series,
the Persons entitled to vote such specified percentage in principal amount
of the Outstanding Securities of such series shall constitute a quorum. In
the absence of a quorum within 30 minutes after the time appointed for any
such meeting, the meeting may be adjourned for a period of not less than 10
days as determined by the chairman of the meeting prior to the adjournment
of such meeting. In the absence of a quorum at the reconvening of any such
adjourned meeting, such adjourned meeting may be further adjourned for a
period of not less than 10 days; at the reconvening of any meeting
adjourned or further adjourned for lack of a quorum, the persons entitled
to vote 25% in aggregate principal amount of the then Outstanding
Securities of the relevant series shall constitute a quorum for the taking
of any action set forth in the notice of the original meeting. Notice of
the reconvening of any adjourned meeting shall be given as provided in
Section 13.2(b), except that such notice need be given only once not less
than five days prior to the date on which the meeting is scheduled to be
reconvened.
Except as limited by the proviso to Section 8.2, any resolution
presented to a meeting or adjourned meeting duly reconvened at which a
quorum is present as aforesaid may be adopted by the affirmative vote of
the Holders of a majority in principal amount of the Outstanding Securities
of that series, provided, however, that, except as limited by the proviso
to Section 8.2, any resolution with respect to any request, demand,
authorization, direction, notice, consent, waiver or other action which
this Indenture expressly provides may be made, given or taken by the
Holders of a specified percentage, which is less than a majority, in
principal amount of the Outstanding Securities of a series may be adopted
at a meeting or an adjourned meeting duly reconvened and at which a quorum
is present as aforesaid by the affirmative vote of the Holders of such
specified percentage in principal amount of the Outstanding Securities of
that series.
Any resolution passed or decision taken at any meeting of Holders
of Securities of any series duly held in accordance with this Section 13.4
shall be binding on all the Holders of Securities of such series and the
related coupons, whether or not present or represented at the meeting.
Notwithstanding the foregoing provisions of this Section 13.4,
if any action is to be taken at a meeting of Holders of Securities of any
series with respect to any request, demand, authorization, direction,
notice, consent, waiver or other action that this Indenture expressly
provides may be made, given or taken by the Holders of a specified
percentage in principal amount of all Outstanding Securities affected
thereby, or of the Holders of such series and one or more additional
series:
(1) there shall be no minimum quorum requirement for such meeting
and
(2) the principal amount of the Outstanding Securities of such
series that vote in favor of such request, demand, authorization,
direction, notice, consent, waiver or other action shall be taken into
account in determining whether such request, demand, authorization,
direction, notice, consent, waiver or other action has been made, given or
taken under this Indenture.
Section 13.5. Determination of Voting Rights; Conduct and
Adjournment of Meetings. (a) Notwithstanding any other provisions of this
Indenture, the Trustee may make such reasonable regulations as it may deem
advisable for any meeting of Holders of Securities of any series in regard
to proof of the holding of Securities of such series and of the appointment
of proxies and in regard to the appointment and duties of inspectors of
votes, the submission and examination of proxies, certificates and other
evidence of the right to vote, and such other matters concerning the
conduct of the meeting as it shall deem appropriate. Except as otherwise
permitted or required by any such regulations, the holding of Securities
shall be proved in the manner specified in Section 1.4 and the appointment
of any proxy shall be provided in the manner specified in Section 1.4 or by
having the signature of the Person executing the proxy witnessed or
guaranteed by any trust company, bank or banker authorized by Section 1.4
to certify to the holding of Bearer Securities. Such regulations may
provide that written instruments appointing proxies, regular on their face,
may be presumed valid and genuine without the proof specified in Section
1.4 or other proof.
(b) The Trustee shall, by an instrument in writing, appoint a
temporary chairman (which may be a Responsible Officer of the Trustee) of
the meeting, unless the meeting shall have been called by the Company as
provided in Section 13.2(b), in which case the Company shall in like manner
appoint a temporary chairman. A permanent chairman and a permanent
secretary of the meeting shall be elected by vote of the Persons entitled
to vote a majority in principal amount of the Outstanding Securities of
such series represented at the meeting.
(c) At any meeting each Holder of a Security of such series or
proxy shall be entitled to one vote for each U.S. $1,000 principal amount
of Securities held or represented by him or her; provided, however, that no
vote shall be cast or counted at any meeting in respect of any Security
challenged as not Outstanding and ruled by the chairman of the meeting to
be not Outstanding. The chairman of the meeting shall have no right to
vote, except as a Holder of a Security or proxy.
(d) Any meeting of Holders of Securities of a series duly called
pursuant to Section 13.2 at which a quorum is present may be adjourned from
time to time by Persons entitled to vote a majority in principal amount of
the Outstanding Securities of such series represented at the meeting, and
the meeting may be held as so adjourned without further notice.
Section 13.6. Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of Holders of
Securities of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers
of the Outstanding Securities held or represented by them. The permanent
chairman of the meeting shall appoint an inspector of votes who shall count
all votes cast at the meeting for or against any resolution and who shall
make and file with the secretary of the meeting its verified written
reports in duplicate of all votes cast at the meeting. A record of the
proceedings of each meeting of Holders of Securities shall be prepared by
the applicable secretary of the meeting and there shall be attached to said
record the original report of the inspector of votes on any vote by ballot
taken thereat and affidavits by one or more Persons having knowledge of the
facts, setting forth a copy of the notice of the meeting and showing that
said notice was given as provided in Section 13.2 and, if applicable,
Section 13.4. At least two copies of such record shall be signed and
verified by the affidavits of the permanent chairman and secretary of the
meeting and one copy thereof shall be delivered to the Company and the
other to the Trustee to be preserved by the Trustee, the latter to have
attached thereto the ballots voted at the meeting. Any record so signed and
verified shall be conclusive evidence of the matters therein stated.
ARTICLE 14
CONVERSION OR EXCHANGE OF SECURITIES
Section 14.1. Applicability of Article. (a) The provisions of
this Article 14 shall be applicable to the Securities of any series which
are convertible or exchangeable into Equity Securities of 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 (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.
Any requirements for notice, surrender or delivery of Securities
pursuant to this Article Fourteen shall, with respect to any Global
Security, be subject to any Applicable Procedures.
Section 14.3. No Fractional Equity Securities. No fractional
Equity Security of 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 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 (i) otherwise
than exclusively in cash out of its retained earnings or (ii) exclusively
in cash out of its retained earnings in an amount that, under the terms of
such Securities, would require an adjustment in the exchange or conversion
price of such Securities; or
(b) 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 (other than a subdivision or combination of its outstanding
shares of such Equity Securities), or of any consolidation or merger to
which the Company is a party and for which approval of any shareholders of
the Company is required, or of the sale of all or substantially all of the
assets of the Company;
(d) of the voluntary or involuntary dissolution, liquidation or
winding up of the Company; or
(e) the Company or any Subsidiary of the Company shall commence a
tender or exchange offer for all or a portion of the Company's outstanding
shares of Equity Securities (or shall amend any such tender or exchange
offer);
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 or (iii) the date on which such tender or
exchange offer commenced, the date on which such tender or exchange offer
is scheduled to expire unless extended, the consideration offered and the
other material terms thereof (or the material terms of any amendment
thereto). If at any time the Trustee shall not be the conversion or
exchange agent, a copy of such notice shall also forthwith be filed by 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, solely 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 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 agreements 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, premium, if any, and interest, if any, on any of
the Securities (including funds deposited for redemption pursuant to
Article 11 or for any sinking fund referred to in Article 12 hereof) and
which shall not be required for such purposes because of the conversion or
exchange of such Securities as provided in this Article 14 shall after such
conversion or exchange be repaid to the Company by the Trustee upon the
Company's written request by Company Request.
ARTICLE 15
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 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 or 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.
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:
EXHIBIT 4.4
===========================================================
ALLIED WASTE INDUSTRIES, INC., as Issuer
to
FIRST TRUST NATIONAL ASSOCIATION, as Trustee
SUBORDINATED INDENTURE
Dated as of _________________, 1998
Providing for Issuance of
Subordinated Debt Securities in Series
===========================================================
Reconciliation and tie between Subordinated Indenture, dated as
of _____________, 1998 (the "Indenture") and the Trust Indenture Act of
1939, as amended.
Trust Indenture Act Indenture
of 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
(a)(1)(B)............................................. 5.7
(b)................................................... 5.9; 5.10
(c)................................................... TIA
317 (a)(1)................................................ 5.3
(a)(2)................................................ 5.4
(b)................................................... 9.3
318 (a)................................................... 1.12
(b)................................................... TIA
(c)................................................... 1.12; TIA
- -------------------
This reconciliation and tie section does not constitute part of the
Indenture.
TABLE OF CONTENTS
Page
Recitals 1
ARTICLE 1 Definitions and Other Provisions of General Application...........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 and Company..................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...........................................18
Section 1.10. Benefits of Indenture..................................19
Section 1.11. Incorporators, Stockholders, Officers and
Directors of the Company Exempt from
Individual Liability...................................19
Section 1.12. Governing Law; Conflict with Trust
Indenture Act..........................................19
Section 1.13. Legal Holidays.........................................20
Section 1.14. Moneys of Different Currencies to Be
Segregated.............................................20
Section 1.15. Independence of Agreements.............................20
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.........................................21
Section 2.3. Global Securities......................................22
Section 2.4. Form of Legend for Global Securities...................22
ARTICLE 3 The Securities..................................................23
Section 3.1. Amount Unlimited; Issuable in Series...................23
Section 3.2. Denominations..........................................27
Section 3.3. Execution, Authentication, Delivery and
Dating.................................................28
Section 3.4. Temporary Securities...................................31
Section 3.5. Registration, Transfer and Exchange....................32
Section 3.6. Replacement Securities.................................36
Section 3.7. Payment of Interest; Interest Rights
Preserved..............................................38
Section 3.8. Persons Deemed Owners..................................40
Section 3.9. Cancellation...........................................41
Section 3.10. Computation of Interest................................42
Section 3.11. CUSIP Numbers..........................................42
Section 3.12. Currency and Manner of Payment in Respect
of Securities..........................................42
ARTICLE 4 Satisfaction, Discharge and Defeasance..........................42
Section 4.1. Termination of Company's Obligations Under
the Indenture..........................................42
Section 4.2. Application of Trust Funds.............................44
Section 4.3. Applicability of Defeasance Provisions;
Company's Option to Effect Defeasance or
Agreement Defeasance...................................44
Section 4.4. Defeasance and Discharge...............................44
Section 4.5. Agreement Defeasance...................................45
Section 4.6. Conditions to Defeasance or Agreement
Defeasance.............................................46
Section 4.7. Deposited Money and Government Obligations
to Be Held in Trust....................................48
Section 4.8. Repayment to Company...................................48
Section 4.9. Indemnity for Government Obligations...................49
Section 4.10. Reinstatement.........................................49
ARTICLE 5 Defaults and Remedies...........................................49
Section 5.1. Events of Default......................................49
Section 5.2. Acceleration; Rescission and Annulment.................51
Section 5.3. Collection of Indebtedness and Suits for
Enforcement by Trustee.................................53
Section 5.4. Trustee May File Proofs of Claim.......................54
Section 5.5. Trustee May Enforce Claims Without
Possession of Securities...............................54
Section 5.6. Delay or Omission Not Waiver...........................55
Section 5.7. Waiver of Past Defaults................................55
Section 5.8. Control by Majority....................................55
Section 5.9. Limitation on Suits by Holders.........................55
Section 5.10. Rights of Holders to Receive Payment..................56
Section 5.11. Application of Money Collected........................57
Section 5.12. Restoration of Rights and Remedies....................57
Section 5.13. Rights and Remedies Cumulative........................58
Section 5.14. Undertaking for Costs.................................58
Section 5.15. Waiver of Stay, Extension or Usury Laws...............58
ARTICLE 6 The Trustee......................................................59
Section 6.1. Certain Duties and Responsibilities....................59
Section 6.2. Notice of Defaults.....................................59
Section 6.3. Certain Rights of Trustee..............................59
Section 6.4. Not Responsible for Recitals or Issuance of
Securities.............................................60
Section 6.5. May Hold Securities....................................60
Section 6.6. Money Held in Trust....................................61
Section 6.7. Compensation and Reimbursement.........................61
Section 6.8. Conflicting Interests..................................61
Section 6.9. Corporate Trustee Required; Eligibility................62
Section 6.10. Resignation and Removal; Appointment of
Successor..............................................62
Section 6.11. Acceptance of Appointment by Successor.................64
Section 6.12. Merger, Conversion, Consolidation or
Succession to Business.................................65
Section 6.13. Preferential Collection of Claims Against
Company................................................65
Section 6.14. Appointment of Authenticating Agent....................65
ARTICLE 7 Consolidation, Merger or Sale of Assets by the Company..........67
Section 7.1. Consolidation, Merger or Sale of Assets
Permitted..............................................67
Section 7.2 Successor Substituted.....................................68
ARTICLE 8 Supplemental Indentures..........................................69
Section 8.1. Supplemental Indentures Without Consent of
Holders................................................69
Section 8.2. Supplemental Indentures With Consent of
Holders................................................70
Section 8.3. Compliance with Trust Indenture Act....................72
Section 8.4. Execution of Supplemental Indentures...................72
Section 8.5. Effect of Supplemental Indentures......................72
Section 8.6. Reference in Securities to Supplemental
Indentures.............................................72
Section 8.7. Notice of Supplemental Indentures......................73
ARTICLE 9 Agreements.......................................................73
Section 9.1. Payment of Principal, Premium, if any, and
Interest...............................................73
Section 9.2. Maintenance of Office or Agency........................73
Section 9.3. Money for Securities Payments to Be Held in
Trust; Unclaimed Money.................................75
Section 9.4. Corporate Existence....................................76
Section 9.5. Annual Review Certificate..............................76
Section 9.6 Maintenance of Properties..............................77
Section 9.7 Payment of Taxes and Other Claims......................77
Section 9.8 Waiver of Certain Agreements...........................77
ARTICLE 10 Holders' Lists and Reports by Trustee and Company..............78
Section 10.1. Company to Furnish Trustee Names and
Addresses of Holders...................................78
Section 10.2. Preservation of Information, Communications
to Holders.............................................78
Section 10.3. Reports by Trustee.....................................79
Section 10.4. Reports by the Company.................................79
ARTICLE 11 Redemption.....................................................80
Section 11.1. Applicability of Article...............................80
Section 11.2. Election to Redeem; Notice to Trustee..................80
Section 11.3. Selection of Securities to Be Redeemed.................80
Section 11.4. Notice of Redemption...................................81
Section 11.5. Deposit of Redemption Price............................82
Section 11.6. Securities Payable on Redemption Date..................83
Section 11.7. Securities Redeemed in Part............................84
ARTICLE 12 Sinking Funds..................................................84
Section 12.1. Applicability of Article...............................84
Section 12.2. Satisfaction of Sinking Fund Payments with
Securities.............................................84
Section 12.3. Redemption of Securities for Sinking Fund..............85
ARTICLE 13 Meetings of Holders of Securities...............................85
Section 13.1. Purposes for Which Meetings May Be Called..............85
Section 13.2. Call, Notice and Place of Meetings.....................85
Section 13.3. Persons Entitled to Vote at Meetings...................86
Section 13.4. Quorum; Action.........................................86
Section 13.5. Determination of Voting Rights; Conduct and
Adjournment of Meetings................................88
Section 13.6. Counting Votes and Recording Action of
Meetings...............................................88
ARTICLE 14 Conversion or Exchange of Securities...........................89
Section 14.1. Applicability of Article...............................89
Section 14.2. Exercise of Conversion or Exchange Privilege...........89
Section 14.3. No Fractional Equity Securities........................91
Section 14.4. Adjustment of Conversion or Exchange Price;
Consolidation or Merger................................92
Section 14.5. Notice of Certain Corporate Actions....................92
Section 14.6. Reservation of Equity Securities.......................94
Section 14.7. Payment of Certain Taxes Upon Conversion or
Exchange...............................................94
Section 14.8. Duties of Trustee Regarding Conversion or
Exchange...............................................94
Section 14.9. Repayment of Certain Funds Upon Conversion
or Exchange............................................95
ARTICLE 15 Subordination of Securities....................................95
Section 15.1. Securities Subordinate to Senior Debt..................95
Section 15.2. Payment Over of Proceeds Upon Dissolution,
Etc....................................................95
Section 15.3. No Payment When Senior Debt in Default.................96
Section 15.4. Certain Payments Permitted.............................97
Section 15.5. Subrogation to Rights of Holders of Senior
Debt...................................................98
Section 15.6. Provisions Solely to Define Relative Rights............98
Section 15.7. Trustee to Effectuate Subordination....................98
Section 15.8. No Waiver of Subordination Provisions..................99
Section 15.9. Notice to Trustee......................................99
Section 15.10. Reliance on Judicial Order or Certificate
of Liquidating Agent...................................100
Section 15.11. Trustee Not Fiduciary for Holders of
Senior Debt............................................100
Section 15.12. Rights of Trustee as Holder of Senior
Debt; Preservation of Trustee's Rights.................100
Section 15.13. Article Applicable to Paying Agents....................101
Section 15.14. Defeasance of this Article 15..........................101
ARTICLE 16 Jurisdiction and Consent to Service of Process.................101
Section 16.1. Jurisdiction and Consent to Service of
Process................................................101
SUBORDINATED INDENTURE (the "Indenture"), dated as of
___________, 1998, 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 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 agreed as follows for the
equal and ratable benefit of the Holders of the Securities or of any series
thereof:
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
Section 1.1. Definitions (a) For all purposes of this Indenture,
except as otherwise expressly provided or unless the context otherwise
requires:
(1) the terms defined in this Article have the meanings assigned
to them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles as in effect in the United States of America from time to time;
provided that when two or more principles are so generally accepted, it
shall mean that set of principles consistent with those in use by the
Company; and
(4) the words "herein", "hereof" and "hereunder" and other words
of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
"Affiliate" of any specified Person means any Person directly or
indirectly controlling or controlled by, or under direct or indirect common
control with, such specified Person. For purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Agent" means any Paying Agent or Registrar.
"Applicable Procedures" means, with respect to any transfer or
transaction involving a Global Security or beneficial interest therein, the
rules and procedures of the Depositary for such Security, in each case to
the extent applicable to such transaction and as in effect from time to
time.
"Authenticating Agent" means any authenticating agent appointed
by the Trustee pursuant to Section 6.14.
"Authorized Newspaper" means a newspaper of general circulation,
in the official language of the country of publication or in the English
language, customarily published on each Business Day whether or not
published on Saturdays, Sundays or holidays. Whenever successive
publications in an Authorized Newspaper are required hereunder they may be
made (unless otherwise expressly provided herein) on the same or different
days of the week and in the same or different Authorized Newspapers.
"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 use) real or personal property by such Person which
is required to be classified and accounted for as a capital lease or a
liability on a balance sheet of such Person in accordance with generally
accepted accounting principles. The stated maturity of such obligation
shall be the date of the last payment of rent or any other amount due under
such lease prior to the first date upon which such lease may be terminated
by the lessee without payment of a penalty. The principal amount of such
obligation shall be the capitalized amount thereof that would appear on a
balance sheet of such Person in accordance with generally accepted
accounting principles.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Exchange Act or, if at any
time after the execution of this Indenture such Commission is not existing
and performing the duties now assigned to it under the Trust Indenture Act,
then the body performing such duties at such time.
"Company" means the Person named as the Company in the first
paragraph of this Indenture until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
means such successor.
"Company Order" and "Company Request" mean, respectively, a
written order or request signed in the name of the Company by two Officers,
one of whom must be the Chairman of the Board, the President, the Chief
Executive Officer, the Chief Operating Officer, the Chief Financial
Officer, a Vice President, the Treasurer or the Secretary of the Company.
"consent", "waive" and "rescind", when used with respect to the
consent, waiver or rescission of or by the Holders of a specified
percentage in aggregate principal amount of Securities of any series, shall
mean any of (i) a favorable vote with respect to such consent, waiver or
rescission, at any meeting of Holders of Securities of such series duly
called and held in accordance with the provisions of Article 13, by the
Holders of the applicable percentage in aggregate principal amount of such
Securities specified in the second paragraph of Section 13.4; (ii) written
consents, waivers or rescissions of or by the Holders of such specified
percentage in aggregate principal amount of such Securities; and (iii) a
combination of the favorable vote with respect to such consent, waiver or
rescission, at any meeting of Holders of Securities of such series duly
called and held in accordance with the provisions of Article 13, by the
Holders of less than the applicable percentage in aggregate principal
amount of such Securities specified in the second paragraph of Section 13.4
and written consents, waivers or rescissions of other Holders of such
Securities, where the sum of the percentage of such Holders so voting in
favor and the percentage of such Holders signing such written consents,
waivers or rescissions is equal to at least such specified percentage.
"Corporate Trust Office" means an office of the Trustee in New
York, New York at which at any particular time its corporate trust business
shall be administered, which office at the date hereof is located at 100
Wall Street, 20th Floor, New York, New York 10005, Attention: Corporate
Trust Administration.
"corporation" shall mean a corporation, association, joint-stock
company or business trust.
"Credit Agreement" means the Amended and Restated Credit
Agreement dated June 5, 1997 among AWNA, 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 any Global Securities
means the Person designated as Depositary by the Company pursuant to
Section 3.1(b) until a successor Depositary shall have become such pursuant
to the applicable provisions of this Indenture, and thereafter shall mean
or include each Person which is then a Depositary hereunder, and if at any
time there is more than one such Person, shall be a collective reference to
such Persons.
"Dollar" means the currency of the United States that at the time
of payment is legal tender for the payment of public and private debts.
"ECU" means the European Currency Unit as defined and revised
from time to time by the Council of the European Communities.
"European Monetary System" means the European Monetary System
established by the Resolution of December 5, 1978 of the Council of the
European Communities.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"Exchange Rate Certificate" means a certificate, signed by a
Responsible Officer of the Trustee, setting forth (i) the applicable Market
Exchange Rate or the applicable bid quotation and (ii) the Dollar amount of
principal, 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.
"Global Security" shall have the meaning set forth in Section
2.3.
"Government Obligations" means securities that are (x) direct
obligations of the United States of America for the payment of which its
full faith and credit is pledged or (y) obligations of a Person controlled
or supervised by and acting as an agency or instrumentality of the United
States of America the payment of which is unconditionally guaranteed as a
full faith and credit obligation by the United States of America, which, in
either case (x) or (y), are not callable or redeemable at the option of the
issuer thereof, and shall also include a depository receipt issued by a
bank (as defined in Section 3(a)(2) of the Securities Act of 1933, as
amended) as custodian with respect to any such Government Obligation or a
specific payment of principal of or interest on any such Government
Obligation held by such custodian for the account of the holder of such
depository receipt, provided that (except as required by law) such
custodian is not authorized to make any deduction from the amount payable
to the holder of such depository receipt from any amount received by the
custodian in respect of the Government Obligation or the specific payment
of principal of or interest on the Government Obligation evidenced by such
depository receipt.
"Guaranty" or "Guarantee" by any Person means any obligation,
contingent or otherwise, of such Person guaranteeing any Debt, or dividends
or distributions on any equity security, of any other Person (the "primary
obligor") in any manner, whether directly or indirectly, and including,
without limitation, any obligation of such Person (i) to purchase or pay
(or advance or supply funds for the purchase or payment of) such Debt or to
purchase (or to advance or supply funds for the purchase of) any security
for the payment of such Debt, (ii) to purchase property, securities or
services for the purpose of assuring the holder of such Debt of the payment
of such Debt or (iii) to maintain working capital, equity capital or other
financial statement condition or liquidity of the primary obligor so as to
enable the primary obligor to pay such Debt (and "Guaranteed" and
"Guaranteeing" shall have meanings correlative to the foregoing); provided,
however, that the Guaranty by any Person shall not include endorsements by
such Person for collection or deposit, in either case, in the ordinary
course of business.
"Holder" means, with respect to a Bearer Security, a bearer
thereof or of an interest coupon appertaining thereto and, with respect to
a Registered Security, a Person in whose name a Security is registered on
the Register.
"Incur" means, with respect to any Debt of any Person, to create,
issue, incur (by conversion, exchange or otherwise), assume, Guarantee or
otherwise become liable in respect of such Debt, or the taking of any other
action which would cause such Debt, in accordance with generally accepted
accounting principles to be recorded on the balance sheet of such Person
(and "Incurrence", "Incurred", "Incurrable" and "Incurring" shall have
meanings correlative to the foregoing), provided that, the Debt of any
other Person becoming a Restricted Subsidiary of such Person will be deemed
for this purpose to have been Incurred by such Person at the time such
other Person becomes a Restricted Subsidiary of such Person; provided,
further, that a change in generally accepted accounting principles that
results in an obligation of such Person that exists at such time becoming
Debt shall not be deemed an Incurrence of such Debt.
"Indenture" means this instrument as originally executed and as
it may from time to time be supplemented or amended by one or more
indentures supplemental hereto entered into pursuant to the applicable
provisions hereof, including, for all purposes of this instrument and any
such supplemental indenture, the provisions of the Trust Indenture Act that
are deemed to be a part of and govern this instrument and any such
supplemental indenture, respectively. The term "Indenture" shall also
include the terms of particular series of Securities established as
contemplated by Section 3.1.
"Indexed Security" means a Security the terms of which provide
that the principal amount thereof payable at Stated Maturity is based, at
least in part, upon the performance or value of a specified market index,
reference security or other variable and may be more or less than the
principal face amount thereof at original issuance.
"interest", when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means
interest payable after Maturity and, when used with respect to any other
Security, means the interest payable thereon in accordance with its terms.
"Interest Payment Date", when used with respect to any Security,
means the Stated Maturity of an installment of interest on such Security.
"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.
"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
agreement defeasance as provided in Article 4; and
(iv) Securities which have been replaced or paid pursuant to
Section 3.6 or in exchange for or in lieu of which other Securities have
been authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to the
Trustee proof satisfactory to it that such Securities are held by a bona
fide purchaser in whose hands such Securities are valid obligations of the
Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request,
demand, authorization, direction, notice, consent or waiver hereunder, or
whether sufficient funds are available for redemption or for any other
purpose, and for the purpose of making the calculations required by Section
313 of the Trust Indenture Act, (w) the principal amount of any Original
Issue Discount Securities that may be counted in making such determination
or calculation and that shall be deemed to be Outstanding for such purpose
shall be equal to the amount of principal thereof that would be (or shall
have been declared to be) due and payable, at the time of such
determination, upon a declaration of acceleration of the Maturity thereof
pursuant to Section 5.2, (x) the principal amount of any Security
denominated in a Foreign Currency that may be counted in making such
determination or calculation and that shall be deemed Outstanding for such
purpose shall be equal to the Dollar equivalent, determined as of the date
such Security is originally issued by the Company as set forth in an
Exchange Rate Certificate, of the principal amount (or, in the case of an
Original Issue Discount Security, the Dollar equivalent as of such date of
original issuance of the amount determined as provided in clause (w) above)
of such Security, (y) the principal amount of any Indexed Security that may
be counted in making such determination or calculation and that shall be
deemed Outstanding for such purpose shall be equal to the principal face
amount of such Indexed Security at original issuance, unless otherwise
provided with respect to such Security pursuant to Section 3.1, and (z)
Securities owned by the Company 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.
"Redeemable Interest" of any Person means any equity security of
or other ownership interest in such Person that by its terms (or by the
terms of any security into which it is convertible or for which it is
exchangeable) or otherwise (including upon the occurrence of an event)
matures or is required to be redeemed (pursuant to any sinking fund
obligation or otherwise) or is convertible into or exchangeable for Debt or
is redeemable at the option of the holder thereof, in whole or in part, at
any time prior to the final Stated Maturity of the Securities.
"Redemption Date", when used with respect to any Security to be
redeemed, means the date fixed for such redemption pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, in whole or in part, means the price at which it is to be
redeemed pursuant to this Indenture.
"Registered Security" means any Security issued hereunder and
registered as to principal and interest in the Register.
"Regular Record Date" for the interest payable on any Interest
Payment Date on the Securities of or within any series means the date
specified for that purpose as contemplated by Section 3.1.
"Responsible Officer", when used with respect to the Trustee,
shall mean any vice president, the secretary, any assistant secretary, the
treasurer, any assistant treasurer, any trust officer or assistant trust
officer, or any officer of the Trustee customarily performing functions
similar to those performed by any of the above designated officers and also
shall mean, with respect to a particular corporate trust matter, any
officer to whom such matter is referred because of his knowledge of and
familiarity with the particular subject.
"Restricted Subsidiary" means (i) at any date, a Subsidiary of
the Company that is not an Unrestricted Subsidiary as of such date and (ii)
for any period, a Subsidiary of the Company that for any portion of such
period is not an Unrestricted Subsidiary, provided that such term shall
mean such Subsidiary only for such portion of such period.
"Security" or "Securities" has the meaning stated in the first
recital of this Indenture and more particularly means a Security or
Securities of the Company issued, authenticated and delivered under this
Indenture.
"Senior Debt" means (i) with respect to the Company 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 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."
"Wholly Owned Restricted Subsidiary" means a Restricted
Subsidiary all of the outstanding Capital Stock or other ownership
interests of which (other than directors' qualifying shares) shall at the
time be owned by the Company or by one or more Wholly Owned Restricted
Subsidiaries or by the Company and one or more Wholly Owned Restricted
Subsidiaries.
(b) The following terms shall have the meanings specified in the
Sections referred to opposite such term below:
Term Section
---- -------
"Act" 1.4(a)
"agreement defeasance" 4.5
"Common Stock" 14.1(b)(i)
"Company Securities Payment" 15.2
"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 agreement 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 agreement and the definitions herein
relating thereto;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(c) a statement that, in the opinion of each such individual, he
or she has made such examination or investigation as is necessary to enable
him or her to express an informed opinion as to whether or not such
condition or agreement has been complied with; and
(d) a statement as to whether, in the opinion of each such
individual, such condition or agreement has been complied with.
Section 1.3. Form of Documents Delivered to Trustee. In any case
where several matters are required to be certified by, or covered by an
opinion of, any specified Person, it is not necessary that all such matters
be certified by, or covered by the opinion of, only one such Person, or
that they be so certified or covered by only one document, but one such
Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may
certify or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or
opinion of, or representations by, counsel, unless such officer knows, or
in the exercise of reasonable care should know, that the certificate or
opinion or representations with respect to the matters upon which his or
her certificate or opinion is based are erroneous. Any such certificate or
opinion or any Opinion of Counsel may be based, insofar as it relates to
factual matters, upon a certificate or opinion of, or representations by,
an officer or officers of the Company stating that the information with
respect to such factual matters is in the possession of the Company, unless
such officer or counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations as to such matters
are erroneous.
Any certificate, statement or opinion of an officer of the
Company or of counsel may be based, insofar as it relates to accounting
matters, upon a certificate or opinion of or representations by an
accountant or firm of accountants in the employ of the Company, unless such
officer or counsel, as the case may be, knows, or in the exercise of
reasonable care should know, that the certificate or opinion or
representations with respect to the accounting matters upon which his
certificate, statement or opinion is based are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be
consolidated and form one instrument.
Section 1.4. Acts of Holders. (a) Any request, demand,
authorization, direction, notice, consent, waiver or other action provided
by this Indenture to be given or taken by Holders may be embodied in and
evidenced by one or more instruments of substantially similar tenor signed
(either physically or by means of a facsimile or an electronic
transmission, provided, in the case of an electronic transmission, that it
is transmitted through the facilities of a Depositary) by such Holders in
person or by agent or proxy duly appointed in writing. If Securities of a
series are issuable as Bearer Securities, any request, demand,
authorization, direction, notice, consent, waiver or other action provided
by this Indenture to be given or taken by Holders of Securities of such
series may, alternatively, be embodied in and evidenced by the record of
Holders of Securities of such series voting in favor thereof pursuant to
the second paragraph of Section 13.4, either in person or by proxies duly
appointed in writing, at any meeting of Holders of Securities of such
series duly called and held in accordance with the provisions of Article
13, or a combination of such instruments and any such record. Except as
herein otherwise expressly provided, such action shall become effective
when such instrument or instruments or record or both are received (either
physically or, if the Securities are held through the facilities of a
Depositary, by means of a facsimile or an electronic transmission,
provided, in the case of an electronic transmission, that it is transmitted
through the facilities of a Depositary) by the Trustee and, where it is
hereby expressly required, to the Company. Such instrument or instruments
and record (and the action embodied therein and evidenced thereby) are
herein sometimes referred to as the "Act" of the Holders signing such
instrument or instruments or so voting at such meeting. The Company and the
Trustee may assume that any Act of a Holder has not been modified or
revoked unless written notice to the contrary is received prior to the time
that the action to which such Act relates has become effective. Proof of
execution of any such instrument or of a writing appointing any such agent
shall be sufficient for any purpose of this Indenture and (subject to
Section 315 of the Trust Indenture Act) conclusive in favor of the Trustee
and the Company, if made in the manner provided in this Section. The record
of any meeting of Holders of Securities shall be proved in the manner
provided in Section 13.6.
(b) The fact and date of the execution by any Person of any such
instrument or writing and the authority of the Person executing the same
may be proved in any manner which the Trustee deems sufficient.
(c) The ownership of Bearer Securities may be proved by the
production of such Bearer Securities or by a certificate executed by any
trust company, bank, banker or other depository, wherever situated, if such
certificate shall be deemed by the Trustee to be satisfactory, showing that
at the date therein mentioned such Person had on deposit with such trust
company, bank, banker or other depository, or exhibited to it, the Bearer
Securities therein described; or such facts may be proved by the
certificate or affidavit of the Person holding such Bearer Securities, if
such certificate or affidavit is deemed by the Trustee to be satisfactory.
The Trustee and the Company may assume that such ownership of any Bearer
Security continues until (i) another such certificate or affidavit bearing
a later date issued in respect of the same Bearer Security is produced,
(ii) such Bearer Security is produced to the Trustee by some other Person,
(iii) such Bearer Security is surrendered in exchange for a Registered
Security or (iv) such Bearer Security is no longer Outstanding. The
ownership of Bearer Securities may also be proved in any other manner which
the Trustee deems sufficient.
(d) The ownership of Registered Securities shall be proved by the
Register.
(e) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall bind every
future Holder of the same Security and any interest coupons appertaining
thereto and the Holder of every Security or interest coupon issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof
in respect of anything done, omitted or suffered to be done by the Trustee
or the Company in reliance thereon, whether or not notation of such Act is
made upon such Security or interest coupon.
(f) If the Company shall solicit from the Holders any request,
demand, authorization, direction, notice, consent, waiver or other Act, the
Company may, at its option, by or pursuant to a Board Resolution, fix in
advance a record date for the determination of Holders of Registered
Securities entitled to give such request, demand, authorization, direction,
notice, consent, waiver or other Act, but the Company shall have no
obligation to do so. Notwithstanding Section 316(c) of the Trust Indenture
Act, any such record date shall be the record date specified in or pursuant
to such Board Resolution, which shall be a date not more than 30 days prior
to the first solicitation of Holders generally in connection therewith and
no later than the date such first solicitation is completed. If such a
record date is fixed, such request, demand, authorization, direction,
notice, consent, waiver or other Act may be given before or after such
record date, but only the Holders of Registered Securities of record at the
close of business on such record date shall be deemed to be Holders for the
purposes of determining whether Holders of the requisite proportion of
Outstanding Securities have authorized or agreed or consented to such
request, demand, authorization, direction, notice, consent, waiver or other
Act, and for that purpose the Outstanding Securities shall be computed as
of such record date; provided that no such authorization, agreement or
consent by the Holders on such record date shall be deemed effective unless
it shall become effective pursuant to the provisions of this Indenture not
later than six months after the record date.
Without limiting the foregoing, a Holder entitled to give or take
any action hereunder with regard to any particular Security may do so with
regard to all or any part of the principal amount of such Security or by
one or more duly appointed agents, each of which may do so pursuant to such
appointment with regard to all or any part of the principal amount of such
Security to which such appointment relates.
Section 1.5. Notices, Etc., to Trustee 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 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.
Any request, demand, authorization, direction, notice, consent or
waiver required or permitted under this Indenture shall be in the English
language, except that any published notice may be in an official language
of the country of publication.
Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such
notice, either before or after the event, and such waiver shall be
equivalent of such notice. Waivers of notice by Holders shall be filed with
the Trustee, but such filing shall not be a condition precedent to the
validity of any action taken in reliance upon such waiver.
Section 1.7. Headings and Table of Contents. The Article and
Section headings herein and the Table of Contents are for convenience only
and shall not affect the construction hereof.
Section 1.8. Successors and Assigns. All agreements in this
Indenture by the parties hereto shall bind their respective successors and
assigns and inure to the benefit of their respective successors and
assigns, whether so expressed or not.
Section 1.9. Separability. In case any provision of this
Indenture or the Securities 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, any Registrar, any Paying Agent 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 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.
Section 1.12. Governing Law; Conflict with Trust Indenture Act.
THIS INDENTURE, THE SECURITIES AND ANY INTEREST COUPONS APPERTAINING
THERETO SHALL BE DEEMED TO BE CONTRACTS MADE AND TO BE PERFORMED ENTIRELY
IN THE STATE OF NEW YORK, AND FOR ALL PURPOSES SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF SAID STATE WITHOUT REGARD TO THE
CONFLICTS OF LAW RULES OF SAID STATE. This Indenture is subject to the
Trust Indenture Act and if and to the extent that any provision hereof
limits, qualifies or conflicts with the Trust Indenture Act, the Trust
Indenture Act shall control. Whether or not this Indenture is required to
be qualified under the Trust Indenture Act, the provisions of the Trust
Indenture Act required to be included in an indenture in order for such
indenture to be so qualified shall be deemed to be included in this
Indenture with the same effect as if such provisions were set forth herein
and any provisions hereof which may not be included in an indenture which
is so qualified shall be deemed to be deleted or modified to the extent
such provisions would be required to be deleted or modified in an indenture
so qualified.
Section 1.13. Legal Holidays. In any case where any Interest
Payment Date, Redemption Date, sinking fund payment date, Stated Maturity
or Maturity of any Security shall not be a Business Day at any Place of
Payment, then (notwithstanding any other provision of this Indenture or of
any Security or interest coupon other than a provision in the Securities of
any series which specifically states that such provision shall apply in
lieu of this Section), payment of principal, premium, if any, or interest
need not be made at such Place of Payment on such date, but may be made on
the next succeeding Business Day at such Place of Payment with the same
force and effect as if made on such date; provided that no interest shall
accrue on the amount so payable for the period from and after such Interest
Payment Date, Redemption Date, sinking fund payment date, Stated Maturity
or Maturity, as the case may be, if such amount is so paid on the next
succeeding Business Day.
Section 1.14. Moneys of Different Currencies to Be Segregated.
The Trustee shall segregate all moneys, funds and accounts held by the
Trustee hereunder in one currency from any moneys, funds and accounts held
by the Trustee hereunder in any other currencies, notwithstanding any
provision herein which would otherwise permit the Trustee to commingle such
amounts.
Section 1.15. Independence of Agreements. All agreements in this
Indenture shall be given independent effect so that if a particular action
or condition is not permitted by any such agreement, the fact that it would
be permitted by an exception to, or be otherwise within the limitations of,
another agreement shall not avoid the occurrence of a Default or an Event
of Default if such action is taken or condition exists.
Section 1.16. Counterparts. This Indenture may be executed in any
number of counterparts, each of which shall be an original, but such
counterparts shall together constitute but one and the same instrument.
ARTICLE 2
SECURITY 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.
FIRST TRUST NATIONAL ASSOCIATION,
as Trustee
By:______________________________
Authorized Signatory
Section 2.3. Global Securities. If Securities of or within a
series are issuable in whole or in part in global form (each, a "Global
Security"), any such Global Security may provide that it shall represent
the aggregate or specified amount of Outstanding Securities from time to
time endorsed thereon and may also provide that the aggregate amount of
Outstanding Securities represented thereby may from time to time be reduced
or increased to reflect exchanges for certificated securities. Any
endorsement of a Global Security to reflect the amount, or any increase or
decrease in the amount, or changes in the rights of Holders, of Outstanding
Securities represented thereby, shall be made in such manner and by such
Person or Persons as shall be specified therein or in the Company Order to
be delivered to the Trustee pursuant to Section 3.3 or 3.4. Subject to the
provisions of Section 3.3, Section 3.4, if applicable, and Section 3.5, the
Trustee shall deliver and redeliver any Global Security in the manner and
upon instructions given by the Person or Persons specified therein or in
the applicable Company Order. Any instructions by the Company with respect
to endorsement or delivery or redelivery of a Global Security shall be in
writing but need not comply with Section 1.2 hereof and need not be
accompanied by an Officers' Certificate or an Opinion of Counsel.
The provisions of the last paragraph of Section 3.3 shall apply
to any Global Security if such Security was never issued and sold by the
Company and the Company delivers to the Trustee the Global Security
together with written instructions (which need not comply with Section 1.2
hereof and need not be accompanied by an Officers' Certificate or an
Opinion of Counsel) with regard to the reduction in the principal amount of
Securities represented thereby, together with the written statement
contemplated by the last paragraph of Section 3.3.
Notwithstanding the provisions of Section 2.1 and 3.7, unless
otherwise specified as contemplated by Section 3.1, payment of principal
of, premium, if any, and interest on any Registered Security in permanent
global form shall be made to the registered holder thereof.
Section 2.4. Form of Legend for Global Securities. Any Global
Security authenticated and delivered hereunder shall bear a legend in
substantially the following form or in such other form as may be specified
in accordance with Section 3.1:
"THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A
DEPOSITARY OR A NOMINEE OF A DEPOSITARY. UNLESS AND UNTIL IT IS
EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN CERTIFICATED FORM,
THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE
DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR
BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A
NOMINEE OF SUCH SUCCESSOR DEPOSITARY."
ARTICLE 3
THE SECURITIES
Section 3.1. Amount Unlimited; Issuable in Series. (a) The
aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited. The Securities may be issued
from time to time in one or more series.
(b) The following matters shall be established with respect to
each series of Securities issued hereunder (i) by a Board Resolution, (ii)
by action taken pursuant to a Board Resolution and (subject to Section 3.3)
set forth, or determined in the manner provided, in an Officers'
Certificate or (iii) in one or more indentures supplemental hereto:
(1) the title of the Securities of the series (which title shall
distinguish the Securities of the series from all other series of
Securities);
(2) any limit upon the aggregate principal amount of the
Securities of the series which may be authenticated and delivered under
this Indenture (which limit shall not pertain to Securities authenticated
and delivered upon registration of transfer of, or in exchange for, or in
lieu of, other Securities of the series pursuant to Section 3.4, 3.5, 3.6,
8.6 or 11.7 or any Securities that, pursuant to Section 3.3, are deemed
never to have been authenticated and delivered hereunder);
(3) the date or dates on which the principal of and premium, if
any, on the Securities of the series is payable or the method or methods of
determination thereof;
(4) the rate or rates at which the Securities of the series shall
bear interest, if any, or the method or methods of calculating such rate or
rates of interest, the date or dates from which such interest shall accrue
or the method or methods by which such date or dates shall be determined,
the Interest Payment Dates on which any such interest shall be payable, the
right, if any, of the Company to defer or extend an Interest Payment Date
and, with respect to Registered Securities, the Regular Record Date, if
any, for the interest payable on any Registered Security on any Interest
Payment Date, and the basis upon which interest shall be calculated if
other than that of a 360-day year of twelve 30-day months;
(5) the place or places where the principal of, premium, if any,
and interest, if any, on Securities of the series shall be payable, any
Registered Securities of the series may be surrendered for registration of
transfer, Securities of the series may be surrendered for exchange and
notices and demands to or upon the Company in respect of the Securities of
the series and this Indenture may be served and (in the case of Bearer
Securities) where notices to Holders pursuant to Section 1.6 will be
published;
(6) the period or periods within which, the price or prices at
which, the currency or currencies (including currency unit or units) in
which, and the other terms and conditions upon which, Securities of the
series may be redeemed, in whole or in part, at the option of the Company
and, if other than as provided in Section 11.3, the manner in which the
particular Securities of such series (if less than all Securities of such
series are to be redeemed) are to be selected for redemption;
(7) the obligation, if any, of the Company to redeem or purchase
Securities of the series pursuant to any sinking fund or analogous
provisions or upon the happening of a specified event or at the option of a
Holder thereof and the period or periods within which, the price or prices
at which, the currency or currencies (including currency unit or units) in
which, and the other terms and conditions upon which, Securities of the
series shall be redeemed or purchased, in whole or in part, pursuant to
such obligation;
(8) if other than denominations of $1,000 and any integral
multiple thereof, if Registered Securities, and if other than denominations
of $5,000 and any integral multiple thereof, if Bearer Securities, the
denominations in which Securities of the series shall be issuable;
(9) if other than Dollars, the currency or currencies (including
currency unit or units) in which the principal of, premium, if any, and
interest, if any, on the Securities of the series shall be payable, or in
which the Securities of the series shall be denominated, and the particular
provisions applicable thereto in accordance with, in addition to, or in
lieu of the provisions of Section 3.12;
(10) if the payments of principal of, premium, if any, or
interest, if any, on the Securities of the series are to be made, at the
election of the Company or a Holder, in a currency or currencies (including
currency unit or units) other than that in which such Securities are
denominated or designated to be payable, the currency or currencies
(including currency unit or units) in which such payments are to be made,
the terms and conditions of such payments and the manner in which the
exchange rate with respect to such payments shall be determined, and the
particular provisions applicable thereto in lieu of the provisions of
Section 3.12;
(11) if the amount of payments of principal of, premium, if any,
and interest, if any, on the Securities of the series shall be determined
with reference to an index, formula or other method (which index, formula
or method may be based, without limitation, on a currency or currencies
(including currency unit or units) other than that in which the Securities
of the series are denominated or designated to be payable), the index,
formula or other method by which such amounts shall be determined and any
special voting or defeasance provisions in connection therewith;
(12) if other than the entire principal amount thereof, the
portion of the principal amount of such Securities of the series which
shall be payable upon declaration of acceleration thereof pursuant to
Section 5.2 or the method by which such portion shall be determined;
(13) if other than as provided in Section 3.7, the Person to whom
any interest on any Registered Security of the series shall be payable and
the manner in which, or the Person to whom, any interest on any Bearer
Securities of the series shall be payable;
(14) provisions, if any, granting special rights to the Holders
of Securities of the series upon the occurrence of such events as may be
specified;
(15) any deletions from, modifications of or additions to the
Events of Default set forth in Section 5.1 or agreements of the Company set
forth in Article 9 pertaining to the Securities of the series;
(16) under what circumstances, if any, and with what procedures
and documentation the Company will pay additional amounts on the Securities
and interest coupons, if any, of that series held by a Person who is not a
U.S. Person (including any modification of the definition of such term) in
respect of taxes, assessments or similar charges withheld or deducted and,
if so, whether the Company will have the option to redeem such Securities
rather than pay such additional amounts (and the terms of any such option);
(17) whether Securities of the series shall be issuable as
Registered Securities or Bearer Securities (with or without interest
coupons), or both, and any restrictions applicable to the offering, sale,
transfer or delivery of Bearer Securities and, if other than as provided in
Section 3.5, the terms upon which Bearer Securities of a series may be
exchanged for Registered Securities of the same series and vice versa;
(18) the date as of which any Bearer Securities of the series and
any temporary Global Security representing Outstanding Securities of the
series shall be dated if other than the date of original issuance of the
first Security of the series to be issued;
(19) the forms of the Securities and interest coupons, if any, of
the series;
(20) the applicability, if any, to the Securities and interest
coupons, if any, of or within the series of Sections 4.4 and 4.5, or such
other means of defeasance or agreement defeasance as may be specified for
the Securities and interest coupons, if any, of such series;
(21) if other than the Trustee, the identity of the Registrar and
any Paying Agent;
(22) if the Securities of the series shall be issued in whole or
in part in global form, (i) the Depositary for such Global Securities, (ii)
whether beneficial owners of interests in the Global Securities may
exchange such interests for certificated Securities of such series, to be
registered in the names of or to be held by such beneficial owners or their
nominees and to be of like tenor of any authorized form and denomination,
and (iii) if other than as provided in Section 3.5, the circumstances under
which any such exchange may occur;
(23) any restrictions on the registration, transfer or exchange
of the Securities;
(24) if the Securities of the series may be issued or delivered
(whether upon original issuance or upon exchange of a temporary Security of
such series or otherwise), or any installment of principal or interest is
payable, only upon receipt of certain certificates or other documents or
satisfaction of other conditions in addition to those specified in this
Indenture, the form and terms of such certificates, documents or
conditions;
(25) the terms and conditions of any right to convert or exchange
Securities of the series into or for Equity Securities of the Company,
including provisions for the payment of interest on securities being
converted or exchanged as contemplated by Section 3.7(d) and Section 14.2;
(26) whether the Securities are secured or unsecured, and if
secured, the security and related terms in connection therewith;
(27) the definition of "Unrestricted Subsidiary" to be used for
such series; and
(28) any other terms of the series including any terms which may
be required by or advisable under United States laws or regulations or
advisable (as determined by the Company) in connection with the marketing
of Securities of the series.
(c) Subject to Section 1.12 and any controlling provision of the
Trust Indenture Act, in the event of any inconsistency between the terms of
this Indenture and the terms applicable to a series of Securities
established in the manner permitted by Section 3.1(b), the (i) Board
Resolution, (ii) Officers' Certificate or (iii) supplemental indenture
setting forth such conflicting term shall prevail.
(d) All Securities of any one series and interest coupons, if
any, appertaining thereto shall be substantially identical except as to
denomination and except as may otherwise be provided (i) by a Board
Resolution, (ii) by action taken pursuant to a Board Resolution and
(subject to Section 3.3) set forth, or determined in the manner provided,
in the related Officers' Certificate or (iii) in an indenture supplemental
hereto. All Securities of any one series need not be issued at the same
time and, unless otherwise provided, a series may be reopened, without the
consent of the Holders, for issuances of additional Securities of such
series.
(e) If any of the terms of the Securities of any series are
established by action taken pursuant to a Board Resolution, a copy of such
Board Resolution shall be delivered to the Trustee at or prior to the
delivery of the Officers' Certificate setting forth, or providing the
manner for determining, the terms of the Securities of such series, and an
appropriate record of any action taken pursuant thereto in connection with
the issuance of any Securities of such series shall be delivered to the
Trustee prior to the authentication and delivery thereof.
Section 3.2. Denominations. Unless otherwise provided as
contemplated by Section 3.1(b), any Registered Securities of a series
denominated in Dollars shall be issuable in denominations of U.S. $1,000
and any integral multiple thereof and any Bearer Securities of a series
denominated in Dollars shall be issuable in the denomination of U.S. $5,000
and any integral multiple thereof. Securities denominated in a Foreign
Currency shall be issuable in such denominations as are established with
respect to such Securities in or pursuant to this Indenture.
Section 3.3. Execution, Authentication, Delivery and Dating.
Securities shall be executed on behalf of the Company by the Chairman of
the Board, the President, the Chief Executive Officer, the Chief Operating
Officer, the Chief Financial Officer or any Vice President of the Company,
and need not be attested. The signatures of any of these officers on the
Securities may be manual or facsimile. The interest coupons, if any, of
Bearer Securities shall bear the facsimile signature of the Chairman of the
Board, the President, the Chief Executive Officer, the Chief Operating
Officer, the Chief Financial Officer or any Vice President of the Company,
and need not be attested.
Securities and interest coupons bearing the manual or facsimile
signatures of individuals who were at any time Officers of the Company
shall bind the Company, notwithstanding that such individuals or any of
them have ceased to be Officers prior to the authentication and delivery of
such Securities or were not Officers at the date of such Securities.
At any time and from time to time, the Company may deliver
Securities, together with any interest coupons appertaining thereto, of any
series executed by the Company 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,
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.
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 as Global
Securities, 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 Global Securities that (i)
shall represent and shall be denominated in an amount equal to the
aggregate principal amount of the Outstanding Securities of such series to
be represented by such Global Security or Securities, (ii) shall be
registered, if a Registered Security, in the name of the Depositary for
such Global Security or Securities or the nominee of such Depositary, (iii)
shall be delivered by the Trustee to such Depositary or pursuant to such
Depositary's instruction and (iv) shall bear the legend set forth in
Section 2.4.
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 Exchange Act and any other applicable statute or regulation. If
requested by the Company, the Trustee shall enter into an agreement with a
Depositary governing the respective duties and rights of such Depositary
and the Trustee with regard to Global Securities.
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
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 Global Securities, representing all or a portion of the Outstanding
Securities of such series.
Except in the case of temporary Global Securities, each of which
shall be exchanged in accordance with the provisions thereof, if temporary
Securities of any series are issued, the Company 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.
Each Global Security authenticated under this Indenture shall be
registered in the name of the Depositary or a nominee thereof and delivered
to such Depositary or nominee thereof or to a successor of such Depositary
or nominee thereof, and each such Global Security shall constitute a single
Security for all purposes of this Indenture.
Upon surrender for registration of transfer of any Registered
Security of any series at the office or agency maintained pursuant to
Section 9.2 in a Place of Payment for that series, the Company 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 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 Global Security representing all or a portion of the Securities of
a series may not be transferred except as a whole by the Depositary for
such series to a nominee of such Depositary or by a nominee of such
Depositary to such Depositary or another nominee of such Depositary or by
such Depositary or any such nominee to a successor Depositary for such
series or a nominee of such successor Depositary.
If at any time the Depositary for the Securities of a series
notifies the Company that it is unwilling or unable to continue as
Depositary for the Securities of such series or if at any time the
Depositary for the Securities of such series shall no longer be eligible
under Section 3.3, the Company shall appoint a successor Depositary with
respect to the Securities of such series. If a successor Depositary for the
Securities of such series is not appointed by the Company prior to the
resignation of the Depositary and, in any event, within 90 days after the
Company receives such notice or becomes aware of such ineligibility, the
Company's designation of the Depositary pursuant to Section 3.1(b)(22)
shall no longer be effective with respect to the Securities of such series
and the Company 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
Global Security or Securities of such series of like tenor in exchange for
such Global Security or Securities.
The Company may at any time in its sole discretion determine that
Securities issued in global form shall no longer be represented by such a
Global Security or Securities. 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 Global Security or
Securities of such series of like tenor in exchange for such Global
Security or Securities.
If specified by the Company pursuant to Section 3.1 with respect
to a series of Securities, the Depositary for such series may surrender a
Global Security of such series in exchange in whole or in part for
Securities of such series in certificated form on such terms as are
acceptable to the Company 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 Global Security; and
(ii) to such Depositary a new Global Security of like tenor in a
denomination equal to the difference, if any, between the principal
amount of the surrendered Global Security and the aggregate principal
amount of certificated Securities delivered to Holders thereof.
Upon the exchange of a Global Security for Securities in
certificated form, such Global Security 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 Global Security pursuant to this
Section shall be registered in such names and in such authorized
denominations as the Depositary for such Global Security, 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
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 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 instructed the Trustee in writing, provided that any
such instruction for payment in the United States does not cause any Bearer
Security to be treated as a "registration-required obligation" under United
States laws and regulations. The interest, if any, on any temporary Bearer
Security shall be paid, as to any installment of interest evidenced by an
interest coupon attached thereto only upon presentation and surrender of
such interest coupon and, as to other installments of interest, only upon
presentation of such Security for notation thereon of the payment of such
interest. If at the time a payment of principal of or interest, if any, on
a Bearer Security or interest coupon shall become due, the payment of the
full amount so payable at the office or offices of all the Paying Agents
outside the United States is illegal or effectively precluded because of
the imposition of exchange controls or other similar restrictions on the
payment of such amount in Dollars, then the Company may instruct the
Trustee in writing to make such payments at a Paying Agent located in the
United States, provided that provision for such payment in the United
States would not cause such Bearer Security to be treated as a
"registration-required obligation" under United States laws and
regulations.
(b) Unless otherwise provided as contemplated by Section 3.1, any
interest on Securities of any series which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date in the
case of Registered Securities and upon presentation and surrender of the
applicable interest coupon in accordance with the second paragraph of
Section 3.7(a) in the case of Bearer Securities (herein called "Defaulted
Interest"), shall forthwith cease to be payable to the Holders of
Registered Securities on the relevant Regular Record Date by virtue of
their having been such Holders, or to the Holders of Bearer Securities by
virtue of their having presented the applicable interest coupon on such
Interest Payment Date, and such Defaulted Interest may be paid by the
Company, at its election in each case, as provided in clause (1) or (2)
below:
(1) In the case of Registered Securities, the Company may elect
to make payment of such Defaulted Interest to the Persons in whose
names such Registered Securities (or their respective Predecessor
Securities) are registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest, which shall be
fixed in the following manner. The Company shall notify the Trustee in
writing of the amount of Defaulted Interest proposed to be paid on
each such Registered Security and the date of the proposed payment,
and shall deposit with the Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements satisfactory to the Trustee for
such deposit prior to the date of the proposed payment, such money
when deposited to be held in trust for the benefit of the Persons
entitled to such Defaulted Interest as in this clause (1) provided.
Thereupon the Trustee shall fix a Special Record Date for the payment
of such Defaulted Interest which shall be not more than 15 days and
not less than 10 days prior to the date of the proposed payment and
not less than 10 days after the receipt by the Trustee of the notice
of the proposed payment. The Trustee shall promptly notify the Company
of such Special Record Date and, in the name and at the expense of the
Company, shall cause notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor to be mailed,
first-class postage prepaid, to each Holder of such Registered
Securities at his or her address as it appears in the Register, not
less than 10 days prior to such Special Record Date. Notice of the
proposed payment of such Defaulted Interest and the Special Record
Date therefor having been so mailed, such Defaulted Interest shall be
paid to the Persons in whose names such Registered Securities (or
their respective Predecessor Securities) are registered at the close
of business on such Special Record Date and shall no longer be payable
pursuant to the following clause (2).
(2)(x) In the case of Registered Securities, the Company may make
payment of such Defaulted Interest to the Persons in whose names such
Registered Securities (or their respective Predecessor Securities) are
registered at the close of business on a specified date in any other
lawful manner not inconsistent with the requirements of any securities
exchange on which such Registered Securities may be listed, and upon
such notice as may be required by such exchange, if, after notice
given by the Company to the Trustee of the proposed payment pursuant
to this clause (2)(x), such manner of payment shall be deemed
practicable by the Trustee; or (y) unless otherwise provided as
contemplated by Section 3.1, in the case of Bearer Securities, the
Company may make payment of Defaulted Interest on such Bearer
Securities in any lawful manner not inconsistent with the requirements
of any securities exchange on which such Bearer Securities may be
listed, and upon such notice as may be required by such exchange, if,
after notice given by the Company to the Trustee of the proposed
payment pursuant to this clause (2)(y), such manner of payment shall
be deemed practicable by the Trustee.
(c) Subject to the foregoing provisions of this Section and
Section 3.5, each Security delivered under this Indenture upon registration
of transfer of or in exchange for or in lieu of any other Security shall
carry the rights to interest accrued and unpaid, and to accrue, which were
carried by such other Security.
(d) In the case of any Registered Security 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.
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 Global Security, or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests. No
holder of any beneficial interest in any Global Security, held on its
behalf by or through a Depositary, shall have any rights under this
Indenture with respect to such Global Security, and such Depositary may be
treated by the Company, the Trustee and any agent of the Company or the
Trustee as the owner of such Global Security for all purposes whatsoever.
With respect to any Global Security, nothing herein shall prevent the
Company 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 Global Security or impair, as between such Depositary and owners of
beneficial interests in such Global Security, the operation of customary
practices governing the exercise of the rights of such Depositary (or its
nominee) as Holder of such Global Security.
Section 3.9. Cancellation. All Securities and interest coupons
appertaining thereto, if any, surrendered for payment, redemption,
conversion, registration of transfer or exchange or for credit against any
sinking fund payment shall, if surrendered to any Person other than the
Trustee, be delivered to the Trustee and 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
replacement of such Securities which may have been lost, stolen or
mutilated as herein expressly provided for, (iii) rights of holders of
Securities to receive payments of principal thereof and interest thereon,
upon the Stated Maturity thereof (but not upon acceleration), and rights of
the Holders to receive mandatory sinking fund payments, if any, (iv) rights
of holders of Securities to convert or exchange Securities, (v) rights,
obligations, duties and immunities of the Trustee hereunder, (vi) any
rights of the Holders of Securities of such series as beneficiaries hereof
with respect to the property so deposited with the Trustee payable to all
or any of them, and (vii) the obligations of the Company under Section 9.2)
and the Trustee, upon payment of all amounts due it under Section 6.7, at
the expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture with respect to such
Securities and any interest coupons appertaining thereto when,
(1) either (A) all such Securities previously authenticated and
delivered and all interest coupons appertaining thereto (other than
(i) such interest coupons appertaining to Bearer Securities
surrendered in exchange for Registered Securities and maturing after
such exchange, surrender of which is not required or has been waived
as provided in Section 3.5, (ii) such Securities and interest coupons
which have been destroyed, lost or stolen and which have been replaced
or paid as provided in Section 3.6, (iii) such interest coupons
appertaining to Bearer Securities called for redemption and maturing
after the relevant Redemption Date, surrender of which has been waived
as provided in Section 11.6 and (iv) such Securities and interest
coupons for whose payment money in the currency or currencies or
currency unit or units in which such Securities are payable has
theretofore been deposited in trust or segregated and held in trust by
the Company and thereafter repaid to the Company or discharged from
such trust, as provided in Section 9.3) have been delivered to the
Trustee for cancellation; or (B) all Securities of such series and, in
the case of (i) or (ii) below, any interest coupons appertaining
thereto not theretofore delivered to the Trustee for cancellation:
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity
within one year, or
(iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice
of redemption by the Trustee in the name, and at the expense, of
the Company,
and the Company, in the case of (i), (ii) or (iii) above, has irrevocably
deposited or caused to be deposited with the Trustee as trust funds in
trust for the purpose an amount in the currency or currencies or currency
unit or units in which the Securities of such series are payable,
sufficient to pay and discharge the entire indebtedness on such Securities
and such interest coupons not theretofore delivered to the Trustee for
cancellation, for principal, premium, if any, and interest, with respect
thereto, to the date of such deposit (in the case of Securities which have
become due and payable) or to the Stated Maturity or Redemption Date, as
the case may be;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the satisfaction
and discharge of this Indenture as to such series have been complied
with.
Notwithstanding the satisfaction and discharge of this Indenture,
the obligation of the Company to the Trustee and any predecessor Trustee
under Section 6.7, the obligations of the Company to any Authenticating
Agent under Section 6.14 and, if money shall have been deposited with the
Trustee pursuant to subclause (B) of clause (1) of this Section, the
obligations of the Trustee under Section 4.2, Section 9.2 and the last
paragraph of Section 9.3 shall survive.
Section 4.2. Application of Trust Funds. Subject to the
provisions of the last paragraph of Section 9.3, all money deposited with
the Trustee pursuant to Section 4.1 shall be held in trust and applied by
it, in accordance with the provisions of the Securities, the interest
coupons appertaining thereto, if any, and this Indenture, to the payment,
either directly or through any Paying Agent (including the Company acting
as its own Paying Agent) as the Trustee may determine, to the Persons
entitled thereto, of the principal, premium, if any and any interest for
whose payment such money has been deposited with or received by the
Trustee, but such money need not be segregated from other funds except as
otherwise provided herein and except to the extent required by law.
Section 4.3. Applicability of Defeasance Provisions; Company's
Option to Effect Defeasance or Agreement Defeasance. Except as otherwise
specified as contemplated by Section 3.1 for the Securities of any series,
the provisions of Sections 4.4 through 4.9 inclusive, with such
modifications thereto as may be specified pursuant to Section 3.1 with
respect to any series of Securities, shall be applicable to the Securities
and any interest coupons appertaining thereto.
Section 4.4. Defeasance and Discharge. On and after the date on
which the conditions set forth in Section 4.6 are satisfied with respect to
the Securities of or within any series, the Company shall be deemed to have
paid and been discharged from its obligations with respect to such
Securities and any interest coupons appertaining thereto (hereinafter
"defeasance"). For this purpose, such defeasance means that 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: (i) the rights of Holders of such
Securities and any interest coupons appertaining thereto to receive, solely
from the trust funds described in Section 4.6(a) and as more fully set
forth in such Section, payments in respect of the principal of, premium, if
any, and interest, if any, on such Securities or any interest coupons
appertaining thereto when such payments are due; (ii) the Company's
obligations with respect to such Securities under Sections 3.4, 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); (iii) the Company's obligations with respect to a conversion or
exchange of such Securities; (iv) the rights, powers, trusts, duties and
immunities of the Trustee hereunder and (v) this Article 4. Subject to
compliance with this Article 4, the Company may defease the Securities of
any series and any interest coupons appertaining thereto under this Section
4.4 notwithstanding a prior agreement defeasance (as defined herein) under
Section 4.5 with respect to such Securities and any interest coupons
appertaining thereto. Following a defeasance, payment of such Securities
may not be accelerated because of an Event of Default.
Section 4.5. Agreement Defeasance. On and after the date on which
the conditions set forth in Section 4.6 are satisfied with respect to the
Securities of or within any series, (i) the Company shall be released from
its obligations under Section 7.1 and, if specified pursuant to Section
3.1, its obligations under any other agreement, with respect to such
Securities and any interest coupons appertaining thereto, (ii) the
occurrence of any event specified in Section 5.1(d) or 5.1(i) (in each
case, with respect to any of the obligations described in clause (i) above)
or 5.1(e) shall be deemed not to be or result in a Default or Event of
Default (hereinafter, "agreement defeasance"), and such Securities and any
interest coupons appertaining thereto shall thereafter be deemed to be not
"Outstanding" for the purposes of any request, demand, authorization,
direction, notice, waiver, consent or declaration or Act of Holders (and
the consequences of any thereof) in connection with Section 7.1, such other
agreement specified pursuant to Section 3.1, or Section 5.1(d) or 5.1(i)
(in each case, with respect to any of the obligations described in clause
(i) above) or 5.1(e), but shall continue to be deemed "Outstanding" for all
other purposes hereunder and (iii) the provisions of Article 15 shall cease
to be effective as to such Securities to the extent provided therein. For
this purpose, such agreement defeasance means that, with respect to such
Securities and any interest coupons appertaining thereto, the Company may
omit to comply with and shall have no liability in respect of any term,
condition or limitation set forth in any such Section or such other
agreement, whether directly or indirectly, by reason of any reference
elsewhere herein to any such Section or such other agreement or by reason
of reference in any such Section or such other agreement to any other
provision herein or in any other document and such omission to comply shall
not constitute a Default or an Event of Default under Section 5.1(d),
5.1(e) or 5.1(i) or otherwise, as the case may be, but, except as specified
above, the remainder of this Indenture and such Securities and any interest
coupons appertaining thereto shall be unaffected thereby.
Section 4.6. Conditions to Defeasance or Agreement Defeasance.
The following shall be the conditions to application of either Section 4.4
or Section 4.5 to the then Outstanding Securities of or within a series:
(a) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements
of Section 6.9 who shall agree to comply with the provisions of Sections
4.3 through 4.9 inclusive and the last paragraph of Section 9.3 applicable
to the Trustee, for purposes of such sections also a "Trustee") as trust
funds in trust for the purpose of making the following payments,
specifically pledged as security for, and dedicated solely to, the benefit
of the Holders of such Securities and any interest coupons appertaining
thereto, (A) money in an amount, or (B) Government Obligations which
through the scheduled payment of principal and interest in respect thereof
in accordance with their terms will provide, not later than one day before
the due date of any payment, money in an amount, or (C) a combination
thereof, in an amount sufficient in the opinion of a nationally recognized
firm of independent certified public accountants expressed in a written
opinion with respect thereto delivered to the Trustee, to pay and
discharge, and which shall be applied by the Trustee (or other qualifying
trustee) to pay and discharge, (x) the principal of, premium, if any, and
each installment of interest, if any, on the outstanding Securities and any
interest coupons appertaining thereto on the Stated Maturity of such
principal or installment of interest and (y) any mandatory sinking fund
payments applicable to such Securities on the day on which such payments
are due and payable in accordance with the terms of this Indenture and of
such Securities and any interest coupons appertaining thereto.
(b) In the case of an election under Section 4.4, the Company
shall have delivered to the Trustee an Opinion of Counsel stating that (x)
the Company has received from, or there has been published by, the Internal
Revenue Service a ruling, or (y) since the date of this Indenture there has
been a change in the applicable Federal income tax law, in either case to
the effect that, and based thereon such opinion shall confirm that, the
Holders of the Outstanding Securities and any interest coupons appertaining
thereto will not recognize gain or loss for Federal income tax purposes as
a result of such deposit, defeasance and discharge and will be subject to
Federal income tax on the same amount, in the same manner and at the same
times as would have been the case if such deposit, defeasance and discharge
had not occurred.
(c) In the case of an election under Section 4.5, the Company
shall have delivered to the Trustee an Opinion of Counsel to the effect
that the Holders of the Outstanding Securities and any interest coupons
appertaining thereto will not recognize gain or loss for Federal income tax
purposes as a result of such deposit and agreement defeasance and will be
subject to Federal income tax on the same amount, in the same manner and at
the same times as would have been the case if such deposit and agreement
defeasance had not occurred.
(d) The Company shall have delivered to the Trustee an Officer's
Certificate to the effect that the Securities, if then listed on any
securities exchange or approved for trading in any automated quotation
system, will not be delisted or disapproved for such trading as a result of
such deposit.
(e) At the time of such deposit: (A) no default in the payment of
all or a portion of principal of, premium, if any, or interest on any
Senior Debt of the Company shall have occurred and be continuing, and no
event of default with respect to any Senior Debt of the Company shall have
occurred and be continuing and shall have resulted in such Senior Debt
becoming or being declared due and payable prior to the date on which it
would otherwise have become due and payable and (B) no other event of
default with respect to any Senior Debt of the Company shall have occurred
and be continuing permitting (after notice or the lapse of time, or both)
the holders of such Senior Debt (or a trustee on behalf of the holders
thereof) to declare such Senior Debt due and payable prior to the date on
which it would otherwise have become due and payable, or, in the case of
either Clause (A) or Clause (B) above, each such default or event of
default shall have been cured or waived or shall have ceased to exist.
(f) No Event of Default or event which with notice or lapse of
time or both would become an Event of Default shall have occurred and be
continuing on the date of such deposit or, insofar as subsections 5.1(g)
and (h) are concerned, at any time during the period ending on the 91st day
after the date of such deposit (it being understood that this condition
shall not be deemed satisfied until the expiration of such period).
(g) Such defeasance or agreement defeasance shall not cause the
Trustee to have a conflicting interest within the meaning of the Trust
Indenture Act (assuming all Securities are in default within the meaning of
such Act).
(h) Such defeasance or agreement defeasance shall not result in a
breach or violation of, or constitute a default under, any other agreement
or instrument to which the Company is a party or by which it is bound.
(i) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to either the defeasance under Section 4.4
or the agreement defeasance under Section 4.5 (as the case may be) have
been complied with.
(j) Such defeasance or agreement defeasance shall not result in
the trust arising from such deposit constituting an investment company as
defined in the Investment Company Act of 1940, as amended from time to
time, or such trust shall be registered under such act or exempt from
registration thereunder.
(k) Such defeasance or agreement defeasance shall be effected in
compliance with any additional or substitute terms, conditions or
limitations which may be imposed on the Company in connection therewith as
contemplated by Section 3.1.
Section 4.7. Deposited Money and Government Obligations to Be
Held in Trust. Subject to the provisions of the last paragraph of Section
9.3, all money and Government Obligations (or other property as may be
provided pursuant to Section 3.1) (including the proceeds thereof)
deposited with the Trustee pursuant to Section 4.6 in respect of any
Securities of any series and any interest coupons appertaining thereto
shall be held in trust and applied by the Trustee, in accordance with the
provisions of such Securities and any interest coupons appertaining thereto
and this Indenture, to the payment, either directly or through any Paying
Agent (including the Company acting as its own Paying Agent) as the Trustee
may determine, to the Holders of such Securities and any interest coupons
appertaining thereto of all sums due and to become due thereon in respect
of principal, premium, if any, and interest, if any, but such money need
not be segregated from other funds except as provided herein and except to
the extent required by law.
Section 4.8. Repayment to Company. Subject to the delivery by the
Company of any written certification required by the last paragraph of this
Section 4.8, the Trustee (and any Paying Agent) shall promptly pay to the
Company upon Company Request any excess money or securities held by them at
any time.
The provisions of the last paragraph of Section 9.3 shall apply
to any money or securities held by the Trustee or any Paying Agent under
this Article 4 that remain unclaimed for two years after the Maturity of
any series of Securities for which money or securities have been deposited
pursuant to Section 4.6(a).
Anything in this Article to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or Government Obligations held by it as provided in
Section 4.6 with respect to any Securities which, in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, are in excess of
the amount thereof which would then be required to be deposited to effect
the defeasance or agreement defeasance, as the case may be, with respect to
such Securities.
Section 4.9. Indemnity for Government Obligations. The Company
shall pay, and shall indemnify the Trustee against, any tax, fee or other
charge imposed on or assessed against Government Obligations deposited
pursuant to this Article or the principal and interest received in respect
thereof other than any such tax, fee or other charge which by law is for
the account of the Holders of the Outstanding Securities.
Section 4.10. Reinstatement. If the Trustee (or Paying Agent) is
unable to apply any money or Government Obligations in accordance with
Section 4.6 by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application,
then the Company's obligations under this Indenture and the Securities
shall be revived and reinstated, with present and prospective effect, as
though no deposit had occurred pursuant to Section 4.6, until such time as
the Trustee (or Paying Agent) is permitted to apply all such money or
Government Obligations in accordance with Section 4.6; provided, however,
that if the Company makes any payment to the Trustee (or Paying Agent) of
principal, premium, if any, or interest on any Security following the
reinstatement of its obligations, the Trustee (or Paying Agent) shall
promptly pay any such amount to the Holders of the Securities and the
Company shall be subrogated to the rights of the Holders of such Securities
to receive such payment from the money and Government Obligations held by
the Trustee (or Paying Agent).
ARTICLE 5
DEFAULTS AND REMEDIES
Section 5.1. Events of Default. An "Event of Default," with
respect to the Securities of any series, means any one of the following
events (whatever the reason for such Event of Default and whether it shall
be occasioned by the provisions of Article 15 or be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(a) default in the payment of interest on any Security of that
series or any interest coupon appertaining thereto or any additional amount
payable with respect to any Security of that series as specified pursuant
to Section 3.1(b)(16) when the same becomes due and payable and such
default continues for a period of 30 days; or
(b) default in the payment of the principal of (or any
installment of the principal of) or any premium on any Security of that
series when the same becomes due and payable at its Maturity; or
(c) default in the deposit of any sinking fund payment, when and
as due by the terms of a Security of that series; or
(d) default in the performance, or breach, of any agreement or
warranty of the Company in this Indenture (other than an agreement or
warranty a default in whose performance or whose breach is elsewhere in
this Section specifically dealt with) or the Securities, and continuance of
such default or breach for a period of 60 days after there has been given,
in the manner provided in Section 1.6, to the Company by the Trustee or to
the Company and the Trustee by the Holders of at least 10% in principal
amount of the Outstanding Securities of the series, a written notice
specifying such default or breach and requiring it to be remedied and
stating that such notice is a "Notice of Default" hereunder; or
(e) a default or defaults under the terms of any bond(s),
debenture(s), note(s) or other evidence(s) of, or obligations constituting,
Debt by the Company 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, 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, premium, if any, and
accrued interest, if any, on all the Securities of that series to be due
and payable and upon any such declaration such principal (or, in the case
of Original Issue Discount Securities or Indexed Securities, such specified
amount), premium, if any, and interest, if any, shall be immediately due
and payable, provided that the payment of principal and interest on such
Securities shall remain subordinated to the extent provided in Article 15.
If an Event of Default specified in clause (g) or (h) of Section 5.1 with
respect to the Securities of any series at the time Outstanding occurs and
is continuing, then the principal (or, if the Securities of that series are
Original Issue Discount Securities or Indexed Securities, such portion of
the principal amount as may be specified in the terms of that series) of,
premium, if any, and accrued interest, if any, on all the Securities of
that series shall be immediately due and payable without any declaration or
act on the part of the Trustee or any Holder of such Securities, provided
that the payment of principal and interest on such Securities shall remain
subordinated to the extent provided in Article 15.
At any time after such a declaration of acceleration has been
made and before a judgment or decree for payment of the money due has been
obtained by the Trustee as hereinafter in this Article provided, the
Holders of not less than a majority in aggregate principal amount of the
Outstanding Securities of that series, by written notice to the Company and
the Trustee, may rescind and annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest on all Securities of that series,
(B) the principal of, and premium, if any, on any Securities
of that series which have become due otherwise than by such
declaration of acceleration and any interest thereon at the rate
borne by the Securities of that series,
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate provided therefor in
the Securities of that series, and
(D) all sums paid or advanced by the Trustee hereunder and
the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel;
and
(2) all Events of Default, other than the nonpayment of the
principal of Securities of that series which have become due solely by
such declaration of acceleration, have been cured or waived as
provided in Section 5.7.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Section 5.3. Collection of Indebtedness and Suits for Enforcement
by Trustee. The Company agrees that if
(a) default is made in the payment of any interest on any
Security or interest coupon, if any, when such interest becomes due and
payable and such default continues for a period of 30 days, or
(b) default is made in the payment of the principal of, or
premium, if any, on any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of
the Holders of such Securities or interest coupons, if any, the whole
amount then due and payable on such Securities for principal, premium, if
any, and interest and, to the extent that payment of such interest shall be
legally enforceable, interest on any overdue principal, premium, if any,
and on any overdue interest, at the rate or rates prescribed therefor in
such Securities or interest coupons, if any, and, in addition thereto, such
further amount as shall be sufficient to cover the costs and expenses of
collection, including all amounts due the Trustee, its agents and counsel
under Section 6.7.
If the Company 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 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,
and any recovery of judgment shall, after provision for the payment of the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, be for the ratable benefit of the Holders
of the Securities in respect of which such judgment has been recovered.
Section 5.6. Delay or Omission Not Waiver. No delay or omission
by the Trustee or any Holder of any Securities to exercise any right or
remedy accruing upon an Event of Default shall impair any such right or
remedy or constitute a waiver of or acquiescence in any such Event of
Default.
Section 5.7. Waiver of Past Defaults. The Holders of not less
than a majority in aggregate principal amount of Outstanding Securities of
any series by written notice to the Trustee may waive on behalf of the
Holders of all Securities of such series and any interest coupons
appertaining thereto a past Default or Event of Default with respect to
that series and its consequences except a Default or Event of Default (i)
in the payment of the principal of, premium, if any, or interest on any
Security of such series or any interest coupon appertaining thereto or (ii)
in respect of an agreement or provision hereof which pursuant to Article 8
cannot be amended or modified without the consent of the Holder of each
Outstanding Security of such series affected. Upon any such waiver, such
Default shall cease to exist, and any Event of Default arising therefrom
shall be deemed to have been cured, for every purpose of this Indenture but
no such waiver shall extend to any subsequent or other default or impair
any right consequent thereon.
Section 5.8. Control by Majority. The Holders of not less than a
majority in aggregate principal amount of the Outstanding Securities of
each series affected (with each such series voting as a class) shall have
the right to direct the time, method and place of conducting any proceeding
for any remedy available to the Trustee or exercising any trust or power
conferred on it with respect to Securities of that series; provided,
however, that (i) the Trustee may refuse to follow any direction that
conflicts with any governmental rule or law or this Indenture, (ii) the
Trustee may refuse to follow any direction that is unduly prejudicial to
the rights of the Holders of Securities of such series not consenting, or
that would in the good faith judgment of the Trustee have a substantial
likelihood of involving the Trustee in personal liability without adequate
indemnity having been offered therefor and (iii) subject to Section 6.1,
the Trustee may take any other action deemed proper by the Trustee which is
not inconsistent with such direction.
Section 5.9. Limitation on Suits by Holders. No Holder of any
Security of any series or any interest coupons appertaining thereto shall
have any right to institute any proceeding, judicial or otherwise, with
respect to this Indenture, or for the appointment of a receiver or trustee,
or for any other remedy hereunder, unless:
(a) the Holder has previously given written notice to the Trustee
of a continuing Event of Default with respect to the Securities of that
series;
(b) the Holders of at least 25% in aggregate principal amount of
the Outstanding Securities of that series have made a written request to
the Trustee to institute proceedings in respect of such Event of Default in
its own name as Trustee hereunder;
(c) such Holder or Holders have offered to the Trustee indemnity
satisfactory to the Trustee against any loss, liability or expense to be,
or which may be, incurred by the Trustee in pursuing the remedy;
(d) the Trustee for 60 days after its receipt of such notice,
request and the offer of indemnity has failed to institute any such
proceedings; and
(e) during such 60-day period, the Holders of a majority in
aggregate principal amount of the Outstanding Securities of that series
have not given to the Trustee a direction inconsistent with such written
request.
No one or more Holders of Securities of a series shall have any
right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other
of such Holders, or to obtain or to seek to obtain priority or preference
over any other of such Holders or to enforce any right under this
Indenture, except in the manner herein provided and for the equal and
ratable benefit of all of such Holders.
Section 5.10. Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, but subject to
Section 9.2, each of the right of any Holder of a Security or interest
coupon to receive payment of principal of, premium, if any, and, subject to
Sections 3.5 and 3.7, interest on the Security, on or after the respective
due dates expressed in the Security (or, in case of redemption or a
required repurchase by the Company under the terms of the relevant
Securities, on the Redemption Dates or specified repurchase dates), the
right of any Holder of an interest coupon to receive payment of interest
due as provided in such interest coupon, or to bring suit for the
enforcement of any such payment on or after such respective dates, and the
right, if any, to convert or exchange such Security in accordance with
Article 14, is unconditional and shall not be impaired or affected without
the consent of such Holder.
Section 5.11. Application of Money Collected. If the Trustee
collects any money pursuant to this Article, it shall pay out the money in
the following order, at the date or dates fixed by the Trustee and, in case
of the distribution of such money on account of principal, premium, if any,
or interest, upon presentation of the Securities and interest coupons, if
any, and the notation thereon of the payment if only partially paid and
upon surrender thereof if fully paid:
First: to the Trustee for amounts due under Section 6.7;
Second: to Holders of Securities and interest coupons in respect
of which or for the benefit of which such money has been collected for
amounts due and unpaid on such Securities for principal of, premium, if
any, and interest, ratably, without preference or priority of any kind,
according to the amounts due and payable on such Securities for principal,
premium, if any, and interest, respectively; and
Third: the balance, if any, to the Company.
The Holders of each series of Securities denominated in ECU, any
other currency unit or a Foreign Currency and any matured interest coupons
relating thereto shall be entitled to receive a ratable portion of the
amount determined by the Trustee by converting the principal amount
Outstanding of such series of Securities and matured but unpaid interest on
such series of Securities in the currency in which such series of
Securities is denominated into Dollars at the Market Exchange Rate as of
the date of declaration of acceleration of Maturity of the Securities (or,
if the default consists of a failure to pay the principal of such
Securities on the Stated Maturity thereof, as of the Stated Maturity date).
The Trustee may fix a record date and payment date for any
payment to Holders pursuant to this Section 5.11. At least 15 days before
such record date, the Trustee shall mail to each Holder and the Company a
notice that states the record date, the payment date and the amount to be
paid.
Section 5.12. Restoration of Rights and Remedies. If the Trustee
or any Holder has instituted any proceeding to enforce any right or remedy
under this Indenture and such proceeding has been discontinued or abandoned
for any reason, or has been determined adversely to the Trustee or to such
Holder, then and in every such case, subject to any determination in such
proceeding, the Company, the Trustee and the Holders shall be restored
severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and the Holders shall
continue as though no such proceeding had been instituted.
Section 5.13. Rights and Remedies Cumulative. Except as otherwise
provided with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities in the last paragraph of Section 3.6,
no right or remedy herein conferred upon or reserved to the Trustee or the
Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and
in addition to every other right and remedy given hereunder or now or
hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not
prevent the concurrent assertion or employment of any other appropriate
right or remedy.
Section 5.14. Undertaking for Costs. In any suit for the
enforcement of any right or remedy under this Indenture, or in any suit
against the Trustee for any action taken, suffered or omitted by it as
Trustee, a court may require any party litigant in such suit to file an
undertaking to pay the costs of such suit, and may assess costs against any
such party litigant, in the manner and to the extent provided in the Trust
Indenture Act; provided, however, that neither this Section nor the Trust
Indenture Act shall be deemed to authorize any court to require such an
undertaking or to make such an assessment in any suit instituted by the
Company, the Trustee or any Holder, or group of Holders, holding in the
aggregate at least 10% in principal amount of the Outstanding Securities of
the relevant series or in any suit instituted by any Holder for the
enforcement of principal of, 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 or any required repurchase by the
Company, on or after the Redemption Date or specified repurchase date).
Section 5.15. Waiver of Stay, Extension or Usury Laws. The
Company agrees (to the extent that it may lawfully do so) that it will not
at any time insist upon, or plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay or extension law or any usury or
other law wherever enacted, now or at any time hereafter in force, which
would prohibit or forgive the Company from paying all or any portion of the
principal of, and premium, if any, or interest on the Securities
contemplated herein or in the Securities or which may affect the agreements
or the performance of this Indenture; and the Company (to the extent that
it may lawfully do so) hereby expressly waives all benefit or advantage of
any such law, and agrees that it will not hinder, delay or impede the
execution of any power herein granted to the Trustee, but will suffer and
permit the execution of every such power as though no such law had been
enacted.
ARTICLE 6
THE TRUSTEE
Section 6.1. Certain Duties and Responsibilities. The duties and
responsibilities of the Trustee shall be as provided by the Trust Indenture
Act. Notwithstanding the foregoing, no provision of this Indenture shall
require the Trustee to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties hereunder, or
in the exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity
against such risk or liability is not reasonably assured to it. Whether or
not therein expressly so provided, every provision of this Indenture
relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of this
Section.
Section 6.2. Notice of Defaults. If a Default occurs hereunder
with respect to Securities of any series, the Trustee shall give the
Holders of Securities of such series notice of such Default as and to the
extent provided by the Trust Indenture Act; provided, however, that in the
case of any Default of the character specified in Section 5.1(d) with
respect to Securities of such series, no such notice to Holders shall be
given until at least 30 days after the occurrence thereof.
Section 6.3. Certain Rights of Trustee. Subject to the provisions
of Section 6.1:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or presented
by the proper party or parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order, and
any resolution of the Board of Directors shall be sufficiently evidenced by
a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may, in the absence of
bad faith on its part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the written advice
of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless such
Holders shall have offered to the Trustee reasonable security or indemnity
against the costs, expenses and liabilities which might be incurred by it
in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further inquiry
or investigation into such facts or matters as it may see fit, and, if the
Trustee shall determine to make such further inquiry or investigation, it
shall be entitled to examine the books, records and premises of the
Company, personally or by agent or attorney;
(g) the Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder; and
(h) except with respect to Section 9.1, the Trustee shall have no
duty to inquire as to the performance by the Company of the agreements set
forth in Article 9 beyond its good faith review of any certificates or
other notices received by it from the Company.
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 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
10.25% Senior Subordinated Notes due 2006, or (iii) any other indenture
specified in (A) a Board Resolution, (B) an action taken pursuant to a
Board Resolution and (subject to Section 3.3) set forth in an Officers'
Certificate or (C) one or more indentures supplemental hereto.
Section 6.9. Corporate Trustee Required; Eligibility. There shall
at all times be a Trustee hereunder which shall be a Person that is
eligible pursuant to the Trust Indenture Act to act as such, has a combined
capital and surplus of at least $25,000,000 and has its Corporate Trust
Office located in the Borough of Manhattan, The City of New York. If such
Person publishes reports of condition at least annually, pursuant to law or
to the requirements of its supervising or examining authority, then for the
purposes of this Section, the combined capital and surplus of such Person
shall be deemed to be its combined capital and surplus as set forth in its
most recent report of condition so published. If at any time the Trustee
shall cease to be eligible in accordance with the provisions of this
Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
Section 6.10. Resignation and Removal; Appointment of Successor.
No resignation or removal of the Trustee and no appointment of a successor
Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 6.11.
The Trustee may resign at any time with respect to the Securities
of one or more series by giving written notice thereof to the Company. If
the instrument of acceptance by a successor Trustee required by Section
6.11 shall not have been delivered to the Trustee within 30 days after the
giving of such notice of resignation, the resigning Trustee may petition
any court of competent jurisdiction for the appointment of a successor
Trustee with respect to the Securities of such series.
The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal
amount of the Outstanding Securities of such series, delivered to the
Trustee and to the Company.
If at any time:
(a) the Trustee shall fail to comply with Section 6.8 after
written request therefor by the Company or by any Holder who has been a
bona fide Holder of a Security for at least six months, or
(b) the Trustee shall cease to be eligible under Section 6.9 and
shall fail to resign after written request therefor by the Company or by
any such Holder, or
(c) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (1) the Company by a Board Resolution may remove
the Trustee with respect to all Securities, or (2) subject to Section 5.14,
any Holder who has been a bona fide Holder of a Security for at least six
months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the removal of the Trustee
with respect to all Securities and the appointment of a successor Trustee
or Trustees.
If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause,
with respect to the Securities of one or more series, the Company, by a
Board Resolution, shall promptly appoint a successor Trustee or Trustees
with respect to the Securities of that or those series (it being understood
that any such successor Trustee may be appointed with respect to the
Securities of one or more or all of such series and that at any time there
shall be only one Trustee with respect to the Securities of any particular
series) and shall comply with the applicable requirements of Section 6.11.
If, within one year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee with respect to the
Securities of any series shall be appointed by Act of the Holders of a
majority in principal amount of the Outstanding Securities of such series
delivered to the Company and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of such appointment in
accordance with the applicable requirements of Section 6.11, become the
successor Trustee with respect to the Securities of such series and to that
extent supersede the successor Trustee appointed by the Company. If no
successor Trustee with respect to the Securities of any series shall have
been so appointed by the Company or the Holders and accepted appointment in
the manner required by Section 6.11, any Holder who has been a bona fide
Holder of a Security of such series for at least six months may, on behalf
of himself and all others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor Trustee with
respect to the Securities of such series. The Company shall give notice of
each resignation and each removal of the Trustee with respect to the
Securities of any series and each appointment of a successor Trustee with
respect to the Securities of any series to all Holders of Securities of
such series in the manner provided in Section 1.6. Each notice shall
include the name of the successor Trustee with respect to the Securities of
such series and the address of its Corporate Trust Office.
Section 6.11. Acceptance of Appointment by Successor. In case of
the appointment hereunder of a successor Trustee with respect to all
Securities, every such successor Trustee so appointed shall execute,
acknowledge and deliver to the Company 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 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
obligatory for all purposes as if authenticated by the Trustee hereunder.
Wherever reference is made in this Indenture to the authentication and
delivery of Securities by the Trustee or the Trustee's certificate of
authentication, such reference shall be deemed to include authentication
and delivery on behalf of the Trustee by an Authenticating Agent and a
certificate of authentication executed on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent shall be acceptable to the
Company and shall at all times be a corporation organized and doing
business under the laws of the United States of America, any State thereof
or the District of Columbia, authorized under such laws to act as
Authenticating Agent, having a combined capital and surplus of not less
than $25,000,000 and subject to supervision or examination by Federal or
State authority. If such Authenticating Agent publishes reports of
condition at least annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this Section,
the combined capital and surplus of such Authenticating Agent shall be
deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. If at any time an Authenticating
Agent shall cease to be eligible in accordance with the provisions of this
Section, such Authenticating Agent shall resign immediately in the manner
and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged
or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any corporation succeeding to the
corporate agency or corporate trust business of an Authenticating Agent,
shall continue to be an Authenticating Agent, provided such corporation
shall be otherwise eligible under this Section, without the execution or
filing of any paper or any further act on the part of the Trustee or the
Authenticating Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Company. The Trustee may at any
time terminate the agency of an Authenticating Agent by giving written
notice thereof to such Authenticating Agent and to the Company. Upon
receiving such a notice of resignation or upon such a termination, or in
case at any time such Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, the Trustee may appoint a
successor Authenticating Agent which shall be acceptable to the Company and
shall give notice of such appointment in the manner provided in Section 1.6
to all Holders of Securities of the series with respect to which such
Authenticating Agent will serve. Any successor Authenticating Agent upon
acceptance of its appointment hereunder shall become vested with all the
rights, powers and duties of its predecessor hereunder, with like effect as
if originally named as an Authenticating Agent. No successor Authenticating
Agent shall be appointed unless eligible under the provisions of this
Section.
The Trustee agrees to pay to each Authenticating Agent from time
to time reasonable compensation for its services under this Section, and
the Trustee shall be entitled to be reimbursed for such payments, subject
to the provisions of Section 6.7.
If an appointment with respect to one or more series is made
pursuant to this Section, the Securities of such series may have endorsed
thereon, in addition to the Trustee's certificate of authentication, an
alternative certificate of authentication in the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
---------------------------,
As Trustee
By:,---------------------------
As Authenticating Agent
By:---------------------------
Authorized Signatory
ARTICLE 7
CONSOLIDATION, MERGER OR SALE OF ASSETS BY THE COMPANY
Section 7.1. Consolidation, Merger or Sale of Assets Permitted.
The Company (a) shall not, and shall not permit any Restricted Subsidiary
to, consolidate with or merge into any Person, in the case of a Restricted
Subsidiary, in a transaction in which such Restricted Subsidiary remains a
Restricted Subsidiary, unless such Restricted Subsidiary consolidates with
or merges into a Wholly Owned Restricted Subsidiary; (b) shall not permit
any Person other than a Wholly Owned Restricted Subsidiary to consolidate
with or merge into (i) the Company or (ii) any Restricted Subsidiary in a
transaction in which such Restricted Subsidiary remains a Restricted
Subsidiary; (c) shall not, directly or indirectly, in one or a series of
transactions, transfer, convey, sell, lease or otherwise dispose of all or
substantially all of the properties and assets of the Company and its
Subsidiaries on a consolidated basis; and (d) shall not, and shall not
permit any Restricted Subsidiary to, in one or a series of transactions,
acquire Capital Stock of or other ownership interests in any other Person
such that such other Person becomes a Restricted Subsidiary; unless in any
such transaction (or series) contemplated by Clause (a), (b), (c) or (d)
above:
(a) in case the Company shall consolidate with or merge into
another Person or shall directly or indirectly, in one or a series of
transactions, transfer, convey, sell, lease or otherwise dispose of
all or substantially all of its properties and assets as an entirety,
the Person formed by such consolidation or into which the Company is
merged or the Person which acquires by transfer, conveyance, sale,
lease or other disposition all or substantially all of the properties
and assets of the Company and its Subsidiaries on a consolidated basis
(for purposes of this Article 7, a "Successor Company") shall be a
corporation, partnership, limited liability company or trust, shall be
organized and validly existing under the laws of the United States of
America, any State thereof or the District of Columbia and shall
expressly assume by an indenture supplemental hereto executed and
delivered to the Trustee, in form satisfactory to the Trustee, the due
and punctual payment of the principal of, and premium, if any, and
interest on all the Securities and the performance of every agreement
of this Indenture on the part of the Company to be performed or
observed;
(b) immediately after giving effect to such consolidation,
merger, sale, transfer, lease or other disposition, no Default or
Event of Default shall have occurred and be continuing; and
(c) with respect to any series of Securities, the Company
satisfies such other conditions, if any, established with respect to
such series of Securities pursuant to and in accordance with Section
3.1.
The Company shall deliver to the Trustee prior to the proposed
consolidation, merger, sale, transfer, lease or other disposition an
Officers' Certificate to the foregoing effect and an Opinion of Counsel
stating that the proposed consolidation, merger, sale, transfer, lease or
other disposition and such supplemental indenture comply with this
Indenture and that all conditions precedent to the consummation of such
transaction under this Section 7.1 have been met.
Section 7.2. Successor Substituted. Upon any consolidation of the
Company with, or merger of the Company into, any other Person or any
transfer, conveyance, sale, lease or other disposition of all or
substantially all of the properties and assets of the Company and its
Subsidiaries on a consolidated basis, in each case in accordance with
Section 7.1, the Successor Company shall succeed to, and be substituted
for, and may exercise every right and power of, the Company under this
Indenture and under the Securities and any interest coupons appertaining
thereto with the same effect as if such Successor Company had been named as
the Company herein, and thereafter, except in the case of a lease, the
predecessor Person (if still in existence) shall be relieved of all
obligations and agreements under this Indenture and the Securities and any
interest coupons appertaining thereto.
ARTICLE 8
SUPPLEMENTAL INDENTURES
Section 8.1. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company 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 agreements and obligations
of the Company herein and in the Securities and any interest coupons
appertaining thereto; or
(b) to add to the agreements of the Company for the benefit of
the Holders of all or any series of Securities (and if such agreements are
to be for the benefit of less than all series of Securities, stating that
such agreements are expressly being included solely for the benefit of such
series) or to surrender any right or power herein conferred upon the
Company; or
(c) to add any additional Events of Default with respect to all
or any series of Securities; or
(d) to add to or change any of the provisions of this Indenture
to such extent as shall be necessary to facilitate the issuance or
administration of Bearer Securities (including, without limitation, to
provide that Bearer Securities may be registrable as to principal only) or
to facilitate the issuance or administration of Global Securities; or
(e) to change or eliminate any of the provisions of this
Indenture in respect of one or more series of Securities, provided that any
such change or elimination shall become effective only when there is no
Security Outstanding of any series created prior to the execution of such
supplemental indenture which is entitled to the benefit of such provision;
or
(f) to secure any series of Securities; or
(g) to establish the form or terms of Securities of any series as
permitted by Sections 2.1 and 3.1; or
(h) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of this Indenture
as shall be necessary to provide for or facilitate the administration of
the trusts hereunder by more than one Trustee, pursuant to the requirements
of Section 6.11; or
(i) if allowed without penalty under applicable laws and
regulations, to permit payment in the United States (including any of the
States thereof and the District of Columbia), its territories, its
possessions and other areas subject to its jurisdiction of principal,
premium, if any, or interest, if any, on Bearer Securities or interest
coupons, if any; or
(j) to cure any ambiguity, to correct or supplement any provision
herein which may be inconsistent with any other provision herein or to make
any other provisions with respect to matters or questions arising under
this Indenture which shall not be inconsistent with the provisions of this
Indenture, provided such action shall not adversely affect in any material
respect the interests of the Holders of Securities of any series; or
(k) to make provision not adverse to the Holders of Outstanding
Securities of any series with respect to any conversion or exchange rights
of Holders pursuant to the requirements of Article 14, including providing
for the conversion or exchange of the Securities into any Equity Securities
of 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 upon any required repurchase by the Company, or change the manner in
which the amount of any principal thereof or premium, if any, or interest
thereon is determined or reduce the amount of the principal of any Original
Issue Discount Security or Indexed Security that would be due and payable
upon a declaration of acceleration of the Maturity thereof pursuant to
Section 5.2, or change the currency or currency unit in which any
Securities or any premium or the interest thereon is payable, or impair the
right to institute suit for the enforcement of any such payment on or after
the Stated Maturity thereof (or, in the case of redemption, on or after the
Redemption Date or specified repurchase date);
(b) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any
such supplemental indenture, or the consent of whose Holders is required
for any waiver (of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences) provided for in this
Indenture, or reduce the requirements of Section 13.4 for quorum or voting;
(c) change any obligation of the Company to maintain an office or
agency in the places and for the purposes specified in Section 9.2;
(d) make any change that adversely affects any right to convert
or exchange any Security to which the provisions of Article 14 are
applicable or, except as provided in this Indenture, decrease the
conversion or exchange rate or increase the conversion or exchange price of
any such Security;
(e) modify the provisions in Article 15 of this Indenture with
respect to the subordination of Outstanding Securities of any series in a
manner adverse to the Holders thereof; or
(f) make any change in this Section 8.2, Section 5.7 or Section
9.6 except to increase any percentage or to provide that certain other
provisions of this Indenture cannot be modified or waived with the consent
of the Holders of each Outstanding Security affected thereby; provided,
however, that this clause shall not be deemed to require the consent of any
Holder of a Security or coupon with respect to changes in the references to
"the Trustee" and concomitant changes in this Section and Section 9.6 or
the deletion of this proviso, in accordance with the requirements of
Sections 6.11 and 8.1(h).
A supplemental indenture which changes or eliminates any
agreement or other provision of this Indenture which has expressly been
included solely for the benefit of one or more particular series of
Securities, or which modifies the rights of the Holders of Securities of
such series with respect to such agreement or other provision, shall be
deemed not to affect the rights under this Indenture of the Holders of
Securities of any other series.
It is not necessary under this Section 8.2 for the Holders to
consent to the particular form of any proposed supplemental indenture, but
it is sufficient if they consent to the substance thereof.
Section 8.3. Compliance with Trust Indenture Act. Every amendment
to this Indenture or the Securities of one or more series shall be set
forth in a supplemental indenture that complies with the Trust Indenture
Act as then in effect.
Section 8.4. Execution of Supplemental Indentures. In executing,
or accepting the additional trusts created by, any supplemental indenture
permitted by this Article or the modification thereby of the trusts created
by this Indenture, the Trustee shall be entitled to receive, and (subject
to Section 6.1) shall be fully protected in relying upon, an Officers'
Certificate and an Opinion of Counsel stating that the execution of such
supplemental indenture is authorized or permitted by this Indenture. The
Trustee may, but shall not be obligated to, enter into any such
supplemental indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
Section 8.5. Effect of Supplemental Indentures. Upon the
execution of any supplemental indenture under this Article, this Indenture
shall be modified in accordance therewith, and such supplemental indenture
shall form a part of this Indenture for all purposes; and every Holder of
Securities theretofore or thereafter authenticated and delivered hereunder
and of any interest coupon appertaining thereto shall be bound thereby.
Section 8.6. Reference in Securities to Supplemental Indentures.
Securities, including any interest coupons, of any series authenticated and
delivered after the execution of any supplemental indenture pursuant to
this Article may, and shall if required by the Trustee, bear a notation in
form approved by the Trustee as to any matter provided for in such
supplemental indenture. If the Company shall so determine, new Securities
including any interest coupons of any series so modified as to conform, in
the opinion of the Company, to any such supplemental indenture may be
prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities including any interest
coupons of such series.
Section 8.7. Notice of Supplemental Indentures. Promptly after
the execution by the Company and the Trustee of any supplemental indenture
pursuant to the provisions of Section 8.2, the Company shall give notice
thereof to the Holders of each Outstanding Security affected, in the manner
provided for in Section 1.6, setting forth in general terms the substance
of such supplemental indenture. Any failure of the Company to give such
notice, or any defect therein, shall not, however, in any way impair or
affect the validity of any such supplemental indenture.
ARTICLE 9
AGREEMENTS
Section 9.1. Payment of Principal, Premium, if any, and Interest.
The Company agrees for the benefit of the Holders of each series of
Securities that it will duly and punctually pay the principal of, premium,
if any, and interest, together with additional amounts, if any, on the
Securities of that series in accordance with the terms of the Securities of
such series, any interest coupons appertaining thereto and this Indenture;
provided, however, that amounts properly withheld under the Internal
Revenue Code of 1986, as amended, by any Person from a payment to any
Holder of Securities, after having requested such Holder to provide
applicable information that would allow such Person to make such payment
without withholding, shall be considered as having been paid by the Company
to such Holder for purposes of this Indenture. An installment of principal,
premium, if any, or interest shall be considered paid on the date it is due
if there shall have been sent to the Trustee or Paying Agent by wire
transfer, received by no later than the close of business on such due date,
or if the Trustee or Paying Agent otherwise holds, on that date money
designated for and sufficient to pay the installment.
Section 9.2. Maintenance of Office or Agency. Unless otherwise
specified as contemplated by Section 3.1, if Securities of a series are
issued as Registered Securities, the Company will maintain in each Place of
Payment for that series of Securities an office or agency where Securities
of that series may be presented or surrendered for payment, where
Securities of that series may be surrendered for registration of transfer
or exchange or conversion and where notices and demands to or upon the
Company 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 for the purpose by the Company in accordance
with this Indenture is illegal or effectively precluded by exchange
controls or other similar restrictions.
Unless otherwise specified as contemplated by Section 3.1, the
Company may also from time to time designate one or more other offices or
agencies where the Securities (including any interest coupons, if any) of
one or more series may be presented or surrendered for any or all such
purposes and may from time to time rescind such designations; provided,
however, that no such designation or rescission shall in any manner relieve
the Company of its obligation to maintain an office or agency in each Place
of Payment for Securities (including any interest coupons, if any) of any
series for such purposes. The Company will give prompt written notice to
the Trustee of any such designation or rescission and of any change in the
location of any such other office or agency.
Unless otherwise specified as contemplated by Section 3.1, the
Trustee shall initially serve as Paying Agent.
Section 9.3. Money for Securities Payments to Be Held in Trust;
Unclaimed Money. If the Company shall at any time act as its own Paying
Agent with respect to any series of Securities and any interest coupons
appertaining thereto, it will, on or before each due date of the principal
of, premium, if any, or interest on any of the Securities of that series,
segregate and hold in trust for the benefit of the Persons entitled thereto
a sum sufficient to pay the principal, premium, if any, or interest so
becoming due until such sums shall be paid to such Persons or otherwise
disposed of as herein provided and will promptly notify the Trustee in
writing of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities and any interest coupons appertaining thereto, it
will, prior to each due date of the principal of or any premium or interest
on any Securities of that series, deposit with a Paying Agent a sum
sufficient to pay such amount, such sum to be held as provided by the Trust
Indenture Act, and (unless such Paying Agent is the Trustee) the Company
will promptly notify the Trustee of its action or failure so to act.
The Company will cause each Paying Agent for any series of
Securities other than the Trustee to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee, subject
to the provisions of this Section, that such Paying Agent will:
(a) comply with the provisions of the Trust Indenture Act
applicable to it as a Paying Agent;
(b) hold all sums held by it for the payment of the principal of,
premium, if any, or interest on Securities of that series in trust for the
benefit of the Persons entitled thereto until such sums shall be paid to
such Persons or otherwise disposed of as herein provided;
(c) give the Trustee notice of any default by the Company (or any
other obligor upon the Securities of that series) in the making of any
payment of principal, premium, if any, or interest on the Securities of
that series; and
(d) at any time during the continuance of any such default, upon
the written request of the Trustee, forthwith pay to the Trustee all sums
so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay,
or by Company Order direct any Paying Agent to pay, to the Trustee all sums
held in trust by the Company or such Paying Agent, such sums to be held by
the Trustee upon the terms set forth in this Indenture; and, upon such
payment by any Paying Agent to the Trustee, such Paying Agent shall be
released from all further liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then
held by the Company, in trust for the payment of any principal of or
premium or interest on any Security of any series and remaining unclaimed
for two years after such principal, premium, if any, or interest has become
due and payable shall be paid to the Company on Company Request, or (if
then held by the Company) shall be discharged from such trust; and the
Holder of such Security and interest coupon, if any, shall thereafter, as
an unsecured general creditor, look only to the Company for payment
thereof, and all liability of the Trustee or such Paying Agent with respect
to such trust money, and all liability of the Company as trustee thereof,
shall thereupon cease; provided, however, that the Trustee or such Paying
Agent, before being required to make any such repayment, may in the name
and at the expense of the Company cause to be published once, in an
Authorized Newspaper in each Place of Payment with respect to such series,
or cause to be mailed to such Holder, notice that such money remains
unclaimed and that, after a date specified therein, which shall not be less
than 30 days from the date of such publication, any unclaimed balance of
such money then remaining will be repaid to the Company.
Section 9.4. Corporate Existence. Subject to Article 7, the
Company will at all times do or cause to be done all things necessary to
preserve and keep in full force and effect its corporate existence and its
rights and franchises; provided that nothing in this Section 9.4 shall
prevent the abandonment or termination of any right or franchise of the
Company if it shall be determined that such abandonment or termination is
desirable in the conduct of the business of the Company.
Section 9.5. Annual Review Certificate. The Company agrees to
deliver to the Trustee, within 90 days after the end of each fiscal year of
the Company, a certificate from the principal executive officer, principal
financial officer or principal accounting officer of the Company stating
that a review of the activities of the Company during such year and of
performance under this Indenture has been made under his or her supervision
and to the best of his or her knowledge, based on such review, 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.
The Company shall deliver to the Trustee, as soon as possible and
in any event within 30 days after the Company becomes aware of the
occurrence of an Event of Default or an event which, with notice or the
lapse of time or both, would constitute an Event of Default, an Officers'
Certificate setting forth the details of such Event of Default or Default,
and the action which the Company proposes to take with respect thereto.
Section 9.6. Maintenance of Properties. The Company will cause all
properties used or useful in the conduct of its business or the business of
any Subsidiary to be maintained and kept in good condition, repair and
working order, normal wear and tear excepted, and supplied with all
necessary equipment and will cause to be made all necessary repairs,
renewals, replacements, betterments and improvements thereof, all as in the
judgment of the Company may be necessary so that the business carried on in
connection therewith may be properly and advantageously conducted at all
times; provided, however, that nothing in this Section 9.6 shall prevent
the Company from discontinuing the operation or maintenance of any of such
properties, or disposing of any of them, if such discontinuance or
disposition is, in the judgment of the Company, desirable in the conduct of
its business or the business of any Subsidiary.
Section 9.7. Payment of Taxes and Other Claims. The Company will
pay or discharge or cause to be paid or discharged, before the same shall
become delinquent, (1) all taxes, assessments and governmental charges
levied or imposed upon the Company or any Subsidiary or upon the income,
profits or property of the Company or any Subsidiary, and (2) all lawful
claims for labor, materials and supplies which, if unpaid, might by law
become a material lien upon the property of the Company or any Subsidiary;
provided, however, that the Company shall not be required to pay or
discharge or cause to be paid or discharged any such tax, assessment,
charge or claim whose amount, applicability or validity is being contested
in good faith by appropriate proceedings.
Section 9.8. Waiver of Certain Agreements. Except as otherwise
specified as contemplated by Section 3.1 for Securities of such series, the
Company may, with respect to the Securities of any series, omit in any
particular instance to comply with any term, provision or condition set
forth in any agreement provided pursuant to Section 3.1(b)(15), 8.1(b) or
8.1(g) for the benefit of the Holders of such series if before the time for
such compliance the Holders of at least a majority in principal amount of
the Outstanding Securities of such series shall, by act of such Holders in
accordance with Section 1.4, either waive such compliance in such instance
or generally waive compliance with such term, provision or condition, but
no such waiver shall extend to or affect such term, provision or condition
except to the extent so expressly waived, and, until such waiver shall
become effective, the obligations of the Company and the duties of the
Trustee in respect of any such term, provision or condition shall remain in
full force and effect.
ARTICLE 10
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 10.1. Company to Furnish Trustee Names and Addresses of
Holders. The Company will furnish or cause to be furnished to the Trustee:
(a) semi-annually, not more than 15 days after each Regular
Record Date for any series, a list, in such form as the Trustee
may reasonably require, of the names and addresses of the Holders
of Registered Securities of such series as of such Regular Record
Date; and
(b) at such other times as the Trustee may request in
writing, within 30 days after the receipt by the Company of any
such request, a list of similar form and content for any or all
series as of a date not more than 15 days prior to the time such
list is furnished;
excluding from any such list names and addresses possessed by the Trustee
in its capacity as Registrar.
Section 10.2. Preservation of Information, Communications to
Holders. (a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders of Registered
Securities contained in the most recent list furnished to the Trustee as
provided in Section 10.1 and the names and addresses of Holders of
Registered Securities received by the Trustee in its capacity as Registrar.
The Trustee may destroy any list furnished to it as provided in Section
10.1 upon receipt of a new list so furnished.
(b) The rights of Holders of Securities to communicate with other
Holders with respect to their rights under this Indenture or under the
Securities, and the corresponding rights and privileges of the Trustee,
shall be as provided in the Trust Indenture Act.
(c) Every Holder of Securities and interest coupons appertaining
thereto, by receiving and holding the same, agrees with the Company and the
Trustee that neither the Company 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 pursuant to
Section 13 or 15(d) of the Exchange Act shall be filed with the Trustee
within 15 days after the same is so required to be filed with the
Commission. Notwithstanding anything contrary herein, the Trustee shall
have no duty to review such documents for purposes of determining
compliance with any provisions of this Indenture.
ARTICLE 11
REDEMPTION
Section 11.1. Applicability of Article. Securities (including
interest coupons, if any) of any series which are redeemable before their
Stated Maturity shall be redeemable in accordance with their terms and
(except as otherwise specified as contemplated by Section 3.1 for
Securities of any series) in accordance with this Article.
Section 11.2. Election to Redeem; Notice to Trustee. The election
of the Company to redeem any Securities, including interest coupons, if
any, that, at the time of such election, may be redeemed at the option of
the Company, shall be evidenced by a Board Resolution. In the case of any
such redemption at the election of the Company of less than all the
Securities or interest coupons, if any, of any series, the Company shall,
at least 45 days prior to the Redemption Date fixed by the Company (unless
a shorter notice shall be satisfactory to the Trustee), notify the Trustee
of such Redemption Date, of the principal amount of Securities of such
series to be redeemed and, if applicable, of the tenor of the Securities to
be redeemed. In the case of any redemption of Securities (i) prior to the
expiration of any restriction on such redemption provided in the terms of
such Securities or elsewhere in this Indenture or (ii) pursuant to an
election of the Company which is subject to a condition specified in the
terms of such Securities, the Company shall furnish the Trustee with an
Officers' Certificate evidencing compliance with such restriction or
condition.
Section 11.3. Selection of Securities to Be Redeemed. Unless
otherwise specified as contemplated by Section 3.1, if less than all the
Securities (including interest coupons, if any) of a series with the same
terms are to be redeemed, the Trustee, not more than 60 days prior to the
Redemption Date, shall select the Securities of the series to be redeemed
in such manner as the Trustee shall deem fair and appropriate. The Trustee
shall make the selection from Securities of the series that are Outstanding
and that have not previously been called for redemption and may provide for
the selection for redemption of portions (equal to the minimum authorized
denomination for Securities, including interest coupons, if any, of that
series or any integral multiple thereof) of the principal amount of
Securities, including interest coupons, if any, of such series of a
denomination larger than the minimum authorized denomination for Securities
of that series, provided that the unredeemed portion of the principal
amount of any Security shall be in an authorized denomination (which shall
not be less than the minimum authorized denomination) for such Security.
The Trustee shall promptly notify the Company in writing of the Securities
selected by the Trustee for redemption and, in the case of any Securities
selected for partial redemption, the principal amount thereof to be
redeemed. If the Company shall so direct, Securities registered in the name
of the Company 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.
If any Security that is convertible or exchangeable is selected
for partial redemption and is converted or exchanged in part before
termination of the conversion or exchange right with respect to the portion
of the Security so selected, the converted or exchanged portion of such
Security shall be deemed (so far as applicable) to be the portion selected
for redemption. Securities which have been converted or exchanged during a
selection of Securities to be redeemed shall be treated by the Trustee as
Outstanding for the purpose of such selection.
Section 11.4. Notice of Redemption. Unless otherwise specified as
contemplated by Section 3.1, notice of redemption shall be given in the
manner provided in Section 1.6 not less than 30 days nor more than 60 days
prior to the Redemption Date to the Holders of the Securities to be
redeemed.
All notices of redemption shall state:
(a) the Redemption Date;
(b) the Redemption Price;
(c) if less than all the Outstanding Securities of a series are
to be redeemed, the identification (and, in the case of partial redemption,
the principal amounts) of the particular Security or Securities to be
redeemed;
(d) the Place or Places of Payment where such Securities,
together in the case of Bearer Securities with all interest coupons
appertaining thereto, if any, maturing on or after the Redemption Date, are
to be surrendered for payment of the Redemption Price;
(e) that Securities of the series called for redemption and all
unmatured interest coupons, if any, appertaining thereto must be
surrendered to the Paying Agent to collect the Redemption Price;
(f) that, on the Redemption Date, the Redemption Price will
become due and payable upon each such Security, or the portion thereof, to
be redeemed and, if applicable, that interest thereon will cease to accrue
on and after said date;
(g) that the redemption is from a sinking fund, if such is the
case;
(h) that, unless otherwise specified in such notice, Bearer
Securities of any series, if any, surrendered for redemption must be
accompanied by all interest coupons maturing subsequent to the Redemption
Date or the amount of any such missing interest coupon or interest coupons
will be deducted from the Redemption Price, unless security or indemnity
satisfactory to the Company, the Trustee and any Paying Agent is furnished;
(i) the CUSIP number, if any, of the Securities;
(j) if applicable, the conversion or exchange price, the date on
which the right to convert or exchange the Securities (or portions thereof
to be redeemed) will terminate and the place or places where such
Securities may be surrendered for conversion or exchange; and
(k) the procedures that a Holder must follow to surrender the
Securities so to be redeemed.
Notice of redemption of Securities to be redeemed shall be given
by the Company or, at the Company's request, by the Trustee in the name and
at the expense of the Company.
Section 11.5. Deposit of Redemption Price. On or prior to any
Redemption Date, the Company shall deposit with the Trustee or with a
Paying Agent (or, if the Company is acting as its own Paying Agent,
segregate and hold in trust as provided in Section 9.3) an amount of money
in the currency or currencies (including currency unit or units) in which
the Securities of such series are payable (except as otherwise specified
pursuant to Section 3.1 for the Securities of such series) sufficient to
pay on the Redemption Date the Redemption Price of, and (unless the
Redemption Date shall be an Interest Payment Date) interest accrued to the
Redemption Date on, all Securities or portions thereof which are to be
redeemed on that date.
Unless any Security by its terms prohibits any redemption
obligation from being satisfied by delivering and crediting Securities
(including Securities redeemed otherwise than through a sinking fund), the
Company may deliver such Securities to the Trustee for crediting of an
amount equal to the then applicable Redemption Price for such Securities
against such payment obligation in accordance with the terms of such
Securities and this Indenture.
Section 11.6. Securities Payable on Redemption Date. Notice of
redemption having been given as aforesaid, the Securities so to be redeemed
shall, on the Redemption Date, become due and payable at the Redemption
Price therein specified, and from and after such date (unless the Company
shall default in the payment of the Redemption Price and accrued interest)
such Securities shall cease to bear interest and the interest coupons for
any such interest appertaining to any Bearer Security so to be redeemed,
except to the extent provided below, shall be void. Except as provided in
the next succeeding paragraph, upon surrender of any such Security,
including interest coupons, if any, for redemption in accordance with said
notice, such Security shall be paid by the Company at the Redemption Price,
together with accrued interest to the Redemption Date; provided, however,
that installments of interest on Bearer Securities whose Stated Maturity is
on or prior to the Redemption Date shall be payable only at an office or
agency located outside the United States and its possessions (except as
otherwise provided in Section 9.2) and, unless otherwise specified as
contemplated by Section 3.1, only upon presentation and surrender of
interest coupons for such interest; and provided, further, that, unless
otherwise specified as contemplated by Section 3.1, installments of
interest on Registered Securities that are due and payable on Interest
Payment Dates that are on or prior to the Redemption Date shall be payable
to the Holders of such Securities, or one or more Predecessor Securities,
registered as such at the close of business on the relevant Regular Record
Dates according to their terms and the provisions of Section 3.7.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant interest coupons maturing after the
Redemption Date, such Bearer Security may be paid after deducting from the
Redemption Price an amount equal to the face amount of all such missing
interest coupons, or the surrender of such missing interest coupon or
interest coupons may be waived by the Company and the Trustee if there be
furnished to them such security or indemnity as they may require to save
each of them and any Paying Agent harmless. If thereafter the Holder of
such Bearer Security shall surrender to the Trustee or any Paying Agent any
such missing interest coupon in respect of which a deduction shall have
been made from the Redemption Price, such Holder shall be entitled to
receive the amount so deducted; provided, however, that interest
represented by interest coupons shall be payable only at an office or
agency located outside of the United States (except as otherwise provided
pursuant to Section 9.2) and, unless otherwise specified as contemplated by
Section 3.1, only upon presentation and surrender of those interest
coupons.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal, and premium, if any,
shall, until paid, bear interest from the Redemption Date at the rate
prescribed therefor in the Security.
Section 11.7. Securities Redeemed in Part. Upon surrender of a
Security that is redeemed in part at any Place of Payment therefor (with,
if the Company or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company and the Trustee
duly executed by, the Holder thereof or his or her attorney duly authorized
in writing), the Company shall execute and the Trustee shall authenticate
and deliver to the Holder of that Security, without service charge, a new
Security or Securities of the same series, having the same form, terms and
Stated Maturity, in any authorized denomination equal in aggregate
principal amount to the unredeemed portion of the principal amount of the
Security surrendered.
ARTICLE 12
SINKING FUNDS
Section 12.1. Applicability of Article. The provisions of this
Article shall be applicable to any sinking fund for the retirement of
Securities of a series except as otherwise specified as contemplated by
Section 3.1 for Securities of such series.
The minimum amount of any sinking fund payment provided for by
the terms of Securities of any series is herein referred to as a "mandatory
sinking fund payment," and any payment in excess of such minimum amount
provided for by the terms of Securities of any series is herein referred to
as an "optional sinking fund payment." If provided for by the terms of
Securities of any series, the cash amount of any sinking fund payment may
be subject to reduction as provided in Section 12.2. Each sinking fund
payment shall be applied to the redemption of Securities of any series as
provided for by the terms of Securities of such series.
Section 12.2. Satisfaction of Sinking Fund Payments with
Securities. The Company (i) may deliver Outstanding Securities of a series
(other than any previously called for redemption) together, in the case of
Bearer Securities of such series, with all unmatured interest coupons
appertaining thereto and (ii) may apply as a credit Securities of a series
which have been (x) redeemed either at the election of the Company pursuant
to the terms of such Securities or through the application of permitted
optional sinking fund payments pursuant to the terms of such Securities,
(y) converted or exchanged pursuant to Article 14 or (z) previously
delivered to the Trustee and cancelled without reissuance pursuant to
Section 3.9, in each case in satisfaction of all or any part of any sinking
fund payment with respect to the Securities of such series required to be
made pursuant to the terms of such Securities as provided for by the terms
of such series; provided that such Securities have not been previously so
credited. Such Securities shall be received and credited for such purpose
by the Trustee at the Redemption Price specified in such Securities for
redemption through operation of the sinking fund and the amount of such
sinking fund payment shall be reduced accordingly.
Section 12.3. Redemption of Securities for Sinking Fund. Not less
than 45 days prior to each sinking fund payment date for any series of
Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing sinking fund payment
for that series pursuant to the terms of that series, the portion thereof,
if any, which is to be satisfied by payment of cash and the portion
thereof, if any, which is to be satisfied by delivering and crediting
Securities of that series pursuant to Section 12.2 and stating the basis
for such credit and that such Securities have not been previously so
credited, and will also deliver to the Trustee any Securities to be so
delivered. Not less than 30 days before each such sinking fund payment date
the Trustee shall select the Securities to be redeemed upon such sinking
fund payment date in the manner specified in Section 11.3 and cause notice
of the redemption thereof to be given in the name of and at the expense of
the Company in the manner provided in Section 11.4. Such notice having been
duly given, the redemption of such Securities shall be made upon the terms
and in the manner stated in Sections 11.6 and 11.7.
ARTICLE 13
MEETINGS OF HOLDERS OF SECURITIES
Section 13.1. Purposes for Which Meetings May Be Called. A
meeting of Holders of Securities of any series may be called at any time
and from time to time pursuant to this Article to make, give or take any
request, demand, authorization, direction, notice, consent, election,
waiver or other action provided by this Indenture to be made, given or
taken by Holders of Securities of such series.
Section 13.2. Call, Notice and Place of Meetings. (a) The Trustee
may at any time call a meeting of Holders of Securities of any series for
any purpose specified in Section 13.1, to be held at such time and at such
place in The City of New York or in such other place as may be acceptable
to the Company. Notice of every meeting of Holders of Securities, setting
forth the time and the place of such meeting and in general terms the
action proposed to be taken at such meeting, shall be given, in the manner
provided in Section 1.6, not less than 20 nor more than 180 days prior to
the date fixed for the meeting.
(b) In case at any time the Company, pursuant to a Board
Resolution, shall have requested the Trustee to call a meeting of the
Holders of Securities of any series for any purpose specified in Section
13.1, by written request setting forth in reasonable detail the action
proposed to be taken at the meeting, and the Trustee shall not have made
the first publication of the notice of such meeting within 20 days after
receipt of such request or shall not thereafter proceed to cause the
meeting to be held as provided herein, then the Company may determine the
time and the place in The City of New York or such other place as may be
acceptable to the Company for such meeting and may call such meeting for
such purposes by giving notice thereof as provided in paragraph (a) of this
Section 13.2.
Section 13.3. Persons Entitled to Vote at Meetings. To be
entitled to vote at any meeting of Holders of Securities of any series, a
Person shall be (a) a Holder of one or more Outstanding Securities of such
series, or (b) a Person appointed by an instrument in writing as proxy for
a Holder or Holders of one or more Outstanding Securities of such series by
such Holder or Holders. The only Persons who shall be entitled to be
present or to speak at any meeting of Holders shall be the Persons entitled
to vote at such meeting and their counsel, any representatives of the
Trustee and its counsel and any representatives of the Company and its
counsel.
Section 13.4. Quorum; Action. The Persons entitled to vote a
majority in principal amount of the Outstanding Securities of a series
shall constitute a quorum for a meeting of Holders of Securities of such
series; provided, however, that if any action is to be taken at such
meeting with respect to a consent or waiver which this Indenture expressly
provides may be given by the Holders of not less than a specified
percentage in principal amount of the Outstanding Securities of a series,
the Persons entitled to vote such specified percentage in principal amount
of the Outstanding Securities of such series shall constitute a quorum. In
the absence of a quorum within 30 minutes after the time appointed for any
such meeting, the meeting may be adjourned for a period of not less than 10
days as determined by the chairman of the meeting prior to the adjournment
of such meeting. In the absence of a quorum at the reconvening of any such
adjourned meeting, such adjourned meeting may be further adjourned for a
period of not less than 10 days; at the reconvening of any meeting
adjourned or further adjourned for lack of a quorum, the persons entitled
to vote 25% in aggregate principal amount of the then Outstanding
Securities of the relevant series shall constitute a quorum for the taking
of any action set forth in the notice of the original meeting. Notice of
the reconvening of any adjourned meeting shall be given as provided in
Section 13.2(b), except that such notice need be given only once not less
than five days prior to the date on which the meeting is scheduled to be
reconvened.
Except as limited by the proviso to Section 8.2, any resolution
presented to a meeting or adjourned meeting duly reconvened at which a
quorum is present as aforesaid may be adopted by the affirmative vote of
the Holders of a majority in principal amount of the Outstanding Securities
of that series; provided, however, that, except as limited by the proviso
to Section 8.2, any resolution with respect to any request, demand,
authorization, direction, notice, consent, waiver or other action which
this Indenture expressly provides may be made, given or taken by the
Holders of a specified percentage, which is less than a majority, in
principal amount of the Outstanding Securities of a series may be adopted
at a meeting or an adjourned meeting duly reconvened and at which a quorum
is present as aforesaid by the affirmative vote of the Holders of such
specified percentage in principal amount of the Outstanding Securities of
that series.
Any resolution passed or decision taken at any meeting of Holders
of Securities of any series duly held in accordance with this Section 13.4
shall be binding on all the Holders of Securities of such series and the
related coupons, whether or not present or represented at the meeting.
Notwithstanding the foregoing provisions of this Sections 13.4,
if any action is to be taken at a meeting of Holders of Securities of any
series with respect to any request, demand, authorization, direction,
notice, consent, waiver or other action that this Indenture expressly
provides may be made, given or taken by the Holders of a specified
percentage in principal amount of all Outstanding Securities affected
thereby, or of the Holders of such series and one or more additional
series:
(1) there shall be no minimum quorum requirement for such meeting
and
(2) the principal amount of the Outstanding Securities of such
series that vote in favor of such request, demand, authorization,
direction, notice, consent, waiver or other action shall be taken into
account in determining whether such request, demand, authorization,
direction, notice, consent, waiver or other action has been made, given or
taken under this Indenture.
Section 13.5. Determination of Voting Rights; Conduct and
Adjournment of Meetings. (a) Notwithstanding any other provisions of this
Indenture, the Trustee may make such reasonable regulations as it may deem
advisable for any meeting of Holders of Securities of any series in regard
to proof of the holding of Securities of such series and of the appointment
of proxies and in regard to the appointment and duties of inspectors of
votes, the submission and examination of proxies, certificates and other
evidence of the right to vote, and such other matters concerning the
conduct of the meeting as it shall deem appropriate. Except as otherwise
permitted or required by any such regulations, the holding of Securities
shall be proved in the manner specified in Section 1.4 and the appointment
of any proxy shall be provided in the manner specified in Section 1.4 or by
having the signature of the Person executing the proxy witnessed or
guaranteed by any trust company, bank or banker authorized by Section 1.4
to certify to the holding of Bearer Securities. Such regulations may
provide that written instruments appointing proxies, regular on their face,
may be presumed valid and genuine without the proof specified in Section
1.4 or other proof.
(b) The Trustee shall, by an instrument in writing, appoint a
temporary chairman (which may be a Responsible Officer of the Trustee) of
the meeting, unless the meeting shall have been called by the Company as
provided in Section 13.2(b), in which case the Company shall in like manner
appoint a temporary chairman. A permanent chairman and a permanent
secretary of the meeting shall be elected by vote of the Persons entitled
to vote a majority in principal amount of the Outstanding Securities of
such series represented at the meeting.
(c) At any meeting each Holder of a Security of such series or
proxy shall be entitled to one vote for each U.S. $1,000 principal amount
of Securities held or represented by him or her; provided, however, that no
vote shall be cast or counted at any meeting in respect of any Security
challenged as not Outstanding and ruled by the chairman of the meeting to
be not Outstanding. The chairman of the meeting shall have no right to
vote, except as a Holder of a Security or proxy.
(d) Any meeting of Holders of Securities of a series duly called
pursuant to Section 13.2 at which a quorum is present may be adjourned from
time to time by Persons entitled to vote a majority in principal amount of
the Outstanding Securities of such series represented at the meeting, and
the meeting may be held as so adjourned without further notice.
Section 13.6. Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of Holders of
Securities of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers
of the Outstanding Securities held or represented by them. The permanent
chairman of the meeting shall appoint an inspector of votes who shall count
all votes cast at the meeting for or against any resolution and who shall
make and file with the secretary of the meeting its verified written
reports in duplicate of all votes cast at the meeting. A record of the
proceedings of each meeting of Holders of Securities shall be prepared by
the applicable secretary of the meeting and there shall be attached to said
record the original report of the inspector of votes on any vote by ballot
taken thereat and affidavits by one or more Persons having knowledge of the
facts, setting forth a copy of the notice of the meeting and showing that
said notice was given as provided in Section 13.2 and, if applicable,
Section 13.4. At least two copies of such record shall be signed and
verified by the affidavits of the permanent chairman and secretary of the
meeting and one copy thereof shall be delivered to the Company and the
other to the Trustee to be preserved by the Trustee, the latter to have
attached thereto the ballots voted at the meeting. Any record so signed and
verified shall be conclusive evidence of the matters therein stated.
ARTICLE 14
CONVERSION OR EXCHANGE OF SECURITIES
Section 14.1. Applicability of Article. (a) The provisions of
this Article 14 shall be applicable to the Securities of any series which
are convertible or exchangeable into Equity Securities of 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 (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.
Any requirements for notice, surrender or delivery of Securities
pursuant to this Article Fourteen shall, with respect to any Global
Security, be subject to any Applicable Procedures.
Section 14.3. No Fractional Equity Securities. No fractional
Equity Security of 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 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 (i) payable
otherwise than exclusively in cash out of its retained earnings,
or (ii) exclusively in cash out of its retained earnings in an
amount that, under the terms of such Securities, would require an
adjustment in the exchange or conversion price of such
Securities; or
(b) 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 (other than a subdivision or combination of its
outstanding shares of such Equity Securities), or of any
consolidation or merger to which the Company is a party and for
which approval of any shareholders of the Company is required, or
of the sale of all or substantially all of the assets of the
Company; or
(d) of the voluntary or involuntary dissolution, liquidation
or winding up of the Company; or
(e) the Company or any Subsidiary of the Company shall
commence a tender or exchange offer for all or a portion of the
Company's outstanding shares of Equity Securities (or shall amend
any such tender or exchange offer);
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 20 days (or 10 days in any case specified in
clause (a) or (b) above) prior to the applicable record date hereinafter
specified, a notice stating (i) the date on which a record is to be taken
for the purpose of such dividend, distribution, rights, options or
warrants, or, if a record is not to be taken, the date as of which the
Holders of such Equity Securities of record to be entitled to such
dividend, distribution, rights, options or warrants are to be determined,
or (ii) the date on which such reclassification, consolidation, merger,
share exchange, sale, dissolution, liquidation or winding up is expected to
become effective, and the date as of which it is expected that holders of
such Equity Securities of record shall be entitled to exchange such Equity
Securities for securities, cash or other property deliverable upon such
reclassification, consolidation, merger, share exchange, sale, dissolution,
liquidation or winding up or (iii) the date on which such tender or
exchange offer commenced, the date on which such tender or exchange offer
is scheduled to expire unless extended, the consideration offered and the
other material terms thereof (or the material terms of any amendment
thereto). If at any time the Trustee shall not be the conversion or
exchange agent, a copy of such notice shall also forthwith be filed by 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, solely 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 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 agreements 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 redemption pursuant to
Article 11 or for any sinking fund referred to in Article 12 hereof) and
which shall not be required for such purposes because of the conversion or
exchange of such Securities as provided in this Article 14 shall after such
conversion or exchange be repaid to the Company by the Trustee upon the
Company's written request by Company Request.
ARTICLE 15
SUBORDINATION OF SECURITIES
Section 15.1. Securities Subordinate to Senior Debt. The Company
agrees, and each Holder of a Security, by his acceptance thereof, likewise
agrees, that, to the extent and in the manner hereinafter set forth in this
Article (subject to the provisions of Article 4), the payment of the
principal of, premium, if any, and interest on the Securities and any other
obligations in respect of the Securities (including any obligation to
repurchase Securities) are hereby expressly made subordinate and subject in
right of payment to the prior payment in full of all Senior Debt of the
Company.
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, premium, if any,
or interest on or other obligations in respect of the Securities or on
account of any purchase or redemption or other acquisition of Securities by
the Company or any Subsidiary of the Company (all such payments,
distributions, purchases and acquisitions herein referred to, individually
and collectively, as a "Company Securities Payment"), and to that end the
holders of Senior Debt of the Company shall be entitled to receive, for
application to the payment thereof, any Company Securities Payment which
may be payable or deliverable in respect of the Securities in any such
Company Proceeding.
In the event that, notwithstanding the foregoing provisions of
this Section, the Trustee or the Holder of any Security shall have received
any Securities Payment before all Senior Debt of the Company 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, 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 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 can 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, 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 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, 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 agreements of this Indenture,
regardless of any knowledge thereof any such holder may have or be
otherwise charged with.
Without in any way limiting the generality of the foregoing
paragraph, the holders of Senior Debt may, at any time and from time to
time, without the consent of or notice to the Trustee or the Holders of the
Securities, without incurring responsibility to the Holders of the
Securities and without impairing or releasing the subordination provided in
this Article or the obligations hereunder of the Holders of the Securities
to the holders of Senior Debt, do any one or more of the following: (i)
change the manner, place or terms of payment or extend the time of payment
of, or renew or alter or increase, Senior Debt, or otherwise amend or
supplement in any manner Senior Debt or any instrument evidencing the same
or any agreement under which Senior Debt is outstanding; (ii) sell,
exchange, release or otherwise deal with any property pledged, mortgaged or
otherwise securing Senior Debt; (iii) release any Person liable in any
manner for the collection of Senior Debt; and (iv) exercise or refrain from
exercising any rights against the Company 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 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 agreement defeasance in Article 4 and,
anything herein to the contrary notwithstanding, upon the effectiveness of
any such defeasance or agreement defeasance, the Securities then
Outstanding 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 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 or 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.
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:
EXHIBIT 4.5
===========================================================================
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 _________________, 1998
Providing for Issuance of
Senior Debt Securities in Series
===========================================================================
Reconciliation and tie between Senior Indenture, dated as of _____________,
1998 (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
(a)(1)(B).................................5.7
(b).......................................5.9; 5.10
(c).......................................TIA
317(a)(1).......................................5.3
(a)(2)....................................5.4
(b).......................................9.3
318(a)..........................................1.12
(b).......................................TIA
(c).......................................1.12; TIA
This reconciliation and tie section does not constitute part of the
Indenture.
TABLE OF CONTENTS
-----------------
Page
----
Recitals..................................................................1
ARTICLE 1
Definitions and Other Provisions of General Application...................1
Section 1.1. Definitions..........................................1
Section 1.2. Compliance Certificates and Opinions................14
Section 1.3. Form of Documents Delivered to Trustee..............14
Section 1.4. Acts of Holders.....................................15
Section 1.5. Notices, Etc., to Trustee, Company and
Guarantors.........................................17
Section 1.6. Notice to Holders; Waiver...........................18
Section 1.7. Headings and Table of Contents......................19
Section 1.8. Successor and Assigns...............................19
Section 1.9. Separability........................................19
Section 1.10. Benefits of Indenture...............................19
Section 1.11. Incorporators, Officers and Directors of the
Company Exempt from Individual Liability...........19
Section 1.12. Governing Law; Conflict with Trust Indenture
Act................................................20
Section 1.13. Legal Holidays......................................20
Section 1.14. Moneys of Different Currencies to Be
Segregated.........................................20
Section 1.15. Independence of Agreements..........................21
Section 1.16. Counterparts........................................21
ARTICLE 2
Security and Senior 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 Guarantee............................22
Section 2.4. Global Securities...................................26
Section 2.5. Form of Legend for Global Securities................27
ARTICLE 3
The Securities...........................................................27
Section 3.1. Amount Unlimited; Issuable in Series................27
Section 3.2. Denominations.......................................32
Section 3.3. Execution, Authentication, Delivery and
Dating.............................................32
Section 3.4. Temporary Securities................................36
Section 3.5. Registration, Transfer and Exchange.................37
Section 3.6. Replacement Securities..............................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
Agreement Defeasance ..............................50
Section 4.4. Defeasance and Discharge............................50
Section 4.5. Agreement Defeasance................................51
Section 4.6. Conditions to Defeasance or Agreement
Defeasance.........................................51
Section 4.7. Deposited Money and Government Obligations
to Be Held in Trust................................53
Section 4.8. Repayment to Company................................53
Section 4.9. Indemnity for Government Obligations................54
Section 4.10. Reinstatement.......................................54
ARTICLE 5
Defaults and Remedies....................................................54
Section 5.1. Events of Default...................................54
Section 5.2. Acceleration; Rescission and Annulment..............56
Section 5.3. Collection of Indebtedness and Suits for
Enforcement by Trustee.............................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........................59
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
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..............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
Section 7.2. Successor Substituted...............................73
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
Agreements ...........................................................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
Section 9.6. Maintenance of Properties...........................81
Section 9.7. Payments of Taxes and Other Claims..................82
Section 9.8. Waiver of Certain Agreements........................82
ARTICLE 10
Holders' Lists and Reports by Trustee and Company........................83
Section 10.1. Company to Furnish Trustee Names and
Addresses of Holders...............................83
Section 10.2. Preservation of Information, Communications
to Holders.........................................83
Section 10.3. Reports by Trustee..................................83
Section 10.4. Reports by the Company and the Guarantors...........84
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..............85
Section 11.4. Notice of Redemption................................86
Section 11.5. Deposit of Redemption Price.........................87
Section 11.6. Securities Payable on Redemption Date...............87
Section 11.7. Securities Redeemed in Part.........................88
ARTICLE 12
Sinking Funds ...........................................................89
Section 12.1. Applicability of Article............................89
Section 12.2. Satisfaction of Sinking Fund Payments with
Securities.........................................89
Section 12.3. Redemption of Securities for Sinking Fund...........89
ARTICLE 13
Meetings of Holders of Securities........................................90
Section 13.1. Purposes for Which Meetings May Be Called...........90
Section 13.2. Call, Notice and Place of Meetings..................90
Section 13.3. Persons Entitled to Vote at Meetings................90
Section 13.4. Quorum; Action......................................91
Section 13.5. Determination of Voting Rights; Conduct and
Adjournment of Meetings............................92
Section 13.6. Counting Votes and Recording Action of
Meetings...........................................93
ARTICLE 14
Conversion or Exchange of Securities.....................................93
Section 14.1. Applicability of Article............................93
Section 14.2. Exercise of Conversion or Exchange Privilege........94
Section 14.3. No Fractional Equity Securities.....................95
Section 14.4. Adjustment of Conversion or Exchange Price;
Consolidation or Merger............................96
Section 14.5. Notice of Certain Corporate Actions.................97
Section 14.6. Reservation of Equity Securities....................98
Section 14.7. Payment of Certain Taxes Upon Conversion or
Exchange...........................................98
Section 14.8. Duties of Trustee Regarding Conversion or
Exchange...........................................98
Section 14.9. Repayment of Certain Funds Upon Conversion
or Exchange........................................99
ARTICLE 15
Senior Guarantee.........................................................99
Section 15.1. Senior Guarantee....................................99
Section 15.2. Execution and Delivery of Senior Guarantees........102
Section 15.3. Subsidiary Guarantors May Consolidate,
Etc., on Certain Terms............................103
Section 15.4. Release of Guarantors..............................103
Section 15.5. Additional Guarantors..............................104
ARTICLE 16
Jurisdiction and Consent to Service of Process..........................104
Section 16.1. Jurisdiction and Consent to Service of
Process...........................................104
SENIOR INDENTURE (the "Indenture"), dated as of ___________,
1998, among ALLIED WASTE NORTH AMERICA, INC., a corporation duly organized
and existing under the laws of the State of Delaware (the "Company"),
having its principal office at 15880 North 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 agreed as follows for the
equal and ratable benefit of the Holders of the Securities or of any series
thereof:
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.1. Definitions. (a) For all purposes of this
Indenture, except as otherwise expressly provided or unless the context
otherwise requires:
(1) the terms defined in this Article have the meanings assigned
to them in this Article and include the plural as well as the
singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles as in effect in the United States of America
from time to time; provided that when two or more principles are so
generally accepted, it shall mean that set of principles consistent
with those in use by the Company; and
(4) the words "herein", "hereof" and "hereunder" and other words
of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
"Affiliate" of any specified Person means any Person directly or
indirectly controlling or controlled by, or under direct or indirect common
control with, such specified Person. For purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Agent" means any Paying Agent or Registrar.
"Allied" means Allied Waste Industries, Inc., a Delaware
corporation.
"Allied Guarantee" means the unconditional guarantee, on a 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 Guarantors'
obligations under the Subsidiary Guarantees.
"Applicable Procedures" means, with respect to any transfer or
transaction involving a Global Security or beneficial interest therein, the
rules and procedures of the Depositary for such Security, in each case to
the extent applicable to such transaction and as in effect from time to
time.
"Authenticating Agent" means any authenticating agent appointed
by the Trustee pursuant to Section 6.14.
"Authorized Newspaper" means a newspaper of general circulation,
in the official language of the country of publication or in the English
language, customarily published on each Business Day whether or not
published on Saturdays, Sundays or holidays. Whenever successive
publications in an Authorized Newspaper are required hereunder they may be
made (unless otherwise expressly provided herein) on the same or different
days of the week and in the same or different Authorized Newspapers.
"Bearer Security" means any Security issued hereunder which is
payable to bearer.
"Board of Directors" means, with respect to the Company or any
Guarantor, either the board of directors of the Company or of such
Guarantor, as the case may be, or any duly authorized committee of that
board. Except as otherwise provided or unless the context otherwise
requires, each reference herein to the "Board of Directors" shall mean the
Board of Directors of the Company.
"Board Resolution" of the Company or any Guarantor means a copy
of a resolution certified by the Secretary or an Assistant Secretary of the
Company or such Guarantor, as the case may be, to have been duly adopted by
its Board of Directors and to be in full force and effect on the date of
such certification, and delivered to the Trustee. Except as otherwise
expressly provided or unless the context otherwise requires, each reference
herein to a "Board Resolution" shall mean a Board Resolution of the
Company.
"Business Day", when used with respect to any Place of Payment or
any other particular location referred to in this Indenture or in the
Securities, means, unless otherwise specified with respect to any
Securities pursuant to Section 3.1, each Monday, Tuesday, Wednesday,
Thursday and Friday which is not a day on which banking institutions in
that Place of Payment or particular location are authorized or obligated by
law, regulation or executive order to close.
"Capital Lease Obligation" of any Person means the obligation to
pay rent or other payment amounts under a lease of (or other arrangements
conveying the right to use) real or personal property by such Person which
is required to be classified and accounted for as a capital lease or a
liability on a balance sheet of such Person in accordance with generally
accepted accounting principles. The stated maturity of such obligation
shall be the date of the last payment of rent or any other amount due under
such lease prior to the first date upon which such lease may be terminated
by the lessee without payment of a penalty. The principal amount of such
obligation shall be the capitalized amount thereof that would appear on a
balance sheet of such Person in accordance with generally accepted
accounting principles.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Exchange Act or, if at any
time after the execution of this Indenture such Commission is not existing
and performing the duties now assigned to it under the Trust Indenture Act,
then the body performing such duties at such time.
"Company" means the Person named as the Company in the first
paragraph of this Indenture until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
means such successor.
"Company Order" and "Company Request" mean, respectively, a
written order or request signed in the name of the Company by two Officers,
one of whom must be the Chairman of the Board, the President, the Chief
Executive Officer, the Chief Operating Officer, the Chief Financial
Officer, a Vice President, the Treasurer or the Secretary of the Company.
"consent", "waive" and "rescind", when used with respect to the
consent, waiver or rescission of or by the Holders of a specified
percentage in aggregate principal amount of Securities of any series, shall
mean any of (i) a favorable vote with respect to such consent, waiver or
rescission, at any meeting of Holders of Securities of such series duly
called and held in accordance with the provisions of Article 13, by the
Holders of the applicable percentage in aggregate principal amount of such
Securities specified in the second paragraph of Section 13.4; (ii) written
consents, waivers or rescissions of or by the Holders of such specified
percentage in aggregate principal amount of such Securities; and (iii) a
combination of the favorable vote with respect to such consent, waiver or
rescission, at any meeting of Holders of Securities of such series duly
called and held in accordance with the provisions of Article 13, by the
Holders of less than the applicable percentage in aggregate principal
amount of such Securities specified in the second paragraph of Section 13.4
and written consents, waivers or rescissions of other Holders of such
Securities, where the sum of the percentage of such Holders so voting in
favor and the percentage of such Holders signing such written consents,
waivers or rescissions is equal to at least such specified percentage.
"Corporate Trust Office" means an office of the Trustee in New
York, New York at which at any particular time its corporate trust business
shall be administered, which office at the date hereof is located at 100
Wall Street, 20th Floor, New York, New York 10005, Attention: Corporate
Trust Administration.
"corporation" shall mean a corporation, association, joint-stock
company or business trust.
"currency unit" for all purposes of this Indenture shall include
any composite currency, including, without limitation, ECU.
"Debt" means (without duplication), with respect to any Person,
whether recourse is to all or a portion of the assets of such Person, (i)
every obligation of such Person for money borrowed, (ii) every obligation
of such Person evidenced by bonds, debentures, notes or other similar
instruments, including obligations Incurred in connection with the
acquisition of property, assets or businesses, (iii) every reimbursement
obligation of such Person with respect to letters of credit, bankers'
acceptances or similar facilities issued for the account of such Person,
(iv) every obligation of such Person issued or assumed as the deferred
purchase price of property or services (but excluding trade accounts
payable or accrued liabilities arising in the ordinary course of business),
(v) every Capital Lease Obligation of such Person, (vi) the maximum fixed
redemption or repurchase price of Redeemable Interests of such Person at
the time of determination, (vii) every net payment obligation of such
Person under interest rate swap or similar agreements or foreign currency
hedge, exchange or similar agreements at the time of determination and
(viii) every obligation of the type referred to in Clauses (i) through
(vii) of another Person and all dividends of another Person the payment of
which, in either case, such Person has Guaranteed or for which such Person
is responsible or liable, directly or indirectly, jointly or severally, as
obligor, Guarantor or otherwise.
"Default" means, with respect to securities of any series, any
event which is, or after notice or passage of time, or both, would be, an
Event of Default with respect to Securities of such Series.
"Depositary", when used with respect to any global Securities,
means the Person designated as Depositary by the Company pursuant to
Section 3.1(b) until a successor Depositary shall have become such pursuant
to the applicable provisions of this Indenture, and thereafter shall mean
or include each Person which is then a Depositary hereunder, and if at any
time there is more than one such Person, shall be a collective reference to
such Persons.
"Dollar" means the currency of the United States that at the time
of payment is legal tender for the payment of public and private debts.
"ECU" means the European Currency Unit as defined and revised
from time to time by the Council of the European Communities.
"European Monetary System" means the European Monetary System
established by the Resolution of December 5, 1978 of the Council of the
European Communities.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"Exchange Rate Certificate" means a certificate, signed by a
Responsible Officer of the Trustee, setting forth (i) the applicable Market
Exchange Rate or the applicable bid quotation and (ii) the Dollar amount of
principal of, premium, if any, and interest, if any (on an aggregate basis
and on the basis of a Security having the lowest denomination principal
amount in the relevant currency or currency unit), that would be payable
with respect to a Security of the applicable series on the basis of such
Market Exchange Rate or the applicable bid quotation.
"Foreign Currency" means any currency issued by the government of
one or more countries other than the United States or by any recognized
confederation or association of such governments.
"Global Security" shall have the meaning set forth in Section
2.3.
"Government Obligations" means securities that are (x) direct
obligations of the United States of America for the payment of which its
full faith and credit is pledged or (y) obligations of a Person controlled
or supervised by and acting as an agency or instrumentality of the United
States of America the payment of which is unconditionally guaranteed as a
full faith and credit obligation by the United States of America, which, in
either case (x) or (y), are not callable or redeemable at the option of the
issuer thereof, and shall also include a depository receipt issued by a
bank (as defined in Section 3(a)(2) of the Securities Act of 1933, as
amended) as custodian with respect to any such Government Obligation or a
specific payment of principal of or interest on any such Government
Obligation held by such custodian for the account of the holder of such
depository receipt, provided that (except as required by law) such
custodian is not authorized to make any deduction from the amount payable
to the holder of such depository receipt from any amount received by the
custodian in respect of the Government Obligation or the specific payment
of principal of or interest on the Government Obligation evidenced by such
depository receipt.
"Guarantors" means Allied and the Subsidiary Guarantors.
"Guaranty" or "Guarantee" by any Person means any obligation,
contingent or otherwise, of such Person guaranteeing any Debt, or dividends
or distributions on any equity security, of any other Person (the "primary
obligor") in any manner, whether directly or indirectly, and including,
without limitation, any obligation of such Person (i) to purchase or pay
(or advance or supply funds for the purchase or payment of) such Debt or to
purchase (or to advance or supply funds for the purchase of) any security
for the payment of such Debt, (ii) to purchase property, securities or
services for the purpose of assuring the holder of such Debt of the payment
of such Debt or (iii) to maintain working capital, equity capital or other
financial statement condition or liquidity of the primary obligor so as to
enable the primary obligor to pay such Debt (and "Guaranteed" and
"Guaranteeing" shall have meanings correlative to the foregoing); provided,
however, that the Guaranty by any Person shall not include endorsements by
such Person for collection or deposit, in either case, in the ordinary
course of business.
"Holder" means, with respect to a Bearer Security, a bearer
thereof or of an interest coupon appertaining thereto and, with respect to
a Registered Security, a Person in whose name a Security is registered on
the Register.
"Incur" means, with respect to any Debt of any Person, to create,
issue, incur (by conversion, exchange or otherwise), assume, Guarantee or
otherwise become liable in respect of such Debt, or the taking of any other
action which would cause such Debt, in accordance with generally accepted
accounting principles to be recorded on the balance sheet of such Person
(and "Incurrence", "Incurred", "Incurrable" and "Incurring" shall have
meanings correlative to the foregoing), provided that, the Debt of any
other Person becoming a Restricted Subsidiary of such Person will be deemed
for this purpose to have been Incurred by such Person at the time such
other Person becomes a Restricted Subsidiary of such Person; provided
further, that a change in generally accepted accounting principles that
results in an obligation of such Person that exists at such time becoming
Debt shall not be deemed an Incurrence of such Debt.
"Indenture" means this instrument as originally executed and as
it may from time to time be supplemented or amended by one or more
indentures supplemental hereto entered into pursuant to the applicable
provisions hereof, including, for all purposes of this instrument and any
such supplemental indenture, the provisions of the Trust Indenture Act that
are deemed to be a part of and govern this instrument and any such
supplemental indenture, respectively. The term "Indenture" shall also
include the terms of particular series of Securities established as
contemplated by Section 3.1.
"Indexed Security" means a Security the terms of which provide
that the principal amount thereof payable at Stated Maturity is based, at
least in part, upon the performance or value of a specified market index,
reference security or other variable and may be more or less than the
principal face amount thereof at original issuance.
"interest", when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means
interest payable after Maturity and, when used with respect to any other
Security, means the interest payable thereon in accordance with its terms.
"Interest Payment Date", when used with respect to any Security,
means the Stated Maturity of an installment of interest on such Security.
"Lien" means, with respect to any property or assets, any
mortgage or deed of trust, pledge, hypothecation, assignment, deposit
arrangement, security interest, lien, charge, easement or title exception,
encumbrance, preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever on or with
respect to such property or assets (including any conditional sale or other
title retention agreement having substantially the same economic effect as
any of the foregoing).
"Market Exchange Rate" means, unless otherwise specified with
respect to any Securities pursuant to Section 3.1, (i) for a conversion of
any currency unit into Dollars, the exchange rate between the relevant
currency unit and Dollars calculated by the method specified pursuant to
Section 3.1 for the Securities of the relevant series, and (ii) for a
conversion of any Foreign Currency into Dollars, the applicable exchange
rate between such Foreign Currency and Dollars set forth under the heading,
"Currency Trading -- Exchange Rates" in the "Money & Investing" section of
The Wall Street Journal (or in such other section of The Wall Street
Journal in which foreign currency exchange rates may be regularly published
from time to time) as of the most recent available date, in each case as
determined by the Trustee. Unless otherwise specified with respect to any
Securities pursuant to Section 3.1, in the event of the unavailability of
any of the exchange rates provided for in the foregoing clauses (i) and
(ii), the Trustee shall use the average of the quotations from at least
three major banks acceptable to the Company in The City of New York (which
may include any such bank acting as Trustee under this Indenture), or such
other quotations as the Trustee and the Company shall deem appropriate.
"Maturity", when used with respect to any Security, means the
date on which the principal of such Security or an installment of principal
becomes due and payable as therein or herein provided, whether at the
Stated Maturity or by declaration of acceleration, call for redemption or
otherwise.
"Officer" means the Chairman of the Board, the President, the
Chief Executive Officer, the Chief Operating Officer, the Chief Financial
Officer, any Vice President, the Treasurer, any Assistant Treasurer, the
Secretary or any Assistant Secretary of the Company.
"Officers' Certificate" of the Company or of any Guarantor means
a certificate signed by the Chairman of the Board, a Vice Chairman of the
Board, the President or a Vice President, and by the Treasurer, an
Assistant Treasurer, the Secretary or an Assistant Secretary, of the
Company or such Guarantor, as the case may be, and delivered to the
Trustee. Unless the context otherwise requires, each reference herein to an
"Officers' Certificate" shall mean an Officers' Certificate of the Company.
References herein, or in any Security or 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.
"Outstanding", when used with respect to Securities, means, as of
the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or delivered
to the Trustee for cancellation;
(ii) Securities, or portions thereof, for whose payment or
redemption money in the necessary amount has been theretofore deposited
with the Trustee or any Paying Agent (other than the Company or any
Guarantor) in trust or set aside and segregated in trust by the Company or
a Guarantor (if the Company or a Guarantor, as the case may be, shall act
as a Paying Agent) for the Holders of such Securities and any interest
coupons appertaining thereto, provided that, if such Securities are to be
redeemed, notice of such redemption has been duly given pursuant to this
Indenture or provisions therefor satisfactory to the Trustee have been
made;
(iii) Securities, except to the extent provided in Sections 4.4
and 4.5, with respect to which the Company has effected defeasance and/or
agreement defeasance as provided in Article 4; and
(iv) Securities which have been replaced or paid pursuant to
Section 3.6 or in exchange for or in lieu of which other Securities have
been authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to the
Trustee proof satisfactory to it that such Securities are held by a bona
fide purchaser in whose hands such Securities are valid obligations of the
Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request,
demand, authorization, direction, notice, consent or waiver hereunder, or
whether sufficient funds are available for redemption or for any other
purpose, and for the purpose of making the calculations required by Section
313 of the Trust Indenture Act, (w) the principal amount of any Original
Issue Discount Securities that may be counted in making such determination
or calculation and that shall be deemed to be Outstanding for such purpose
shall be equal to the amount of principal thereof that would be (or shall
have been declared to be) due and payable, at the time of such
determination, upon a declaration of acceleration of the Maturity thereof
pursuant to Section 5.2, (x) the principal amount of any Security
denominated in a Foreign Currency that may be counted in making such
determination or calculation and that shall be deemed Outstanding for such
purpose shall be equal to the Dollar equivalent, determined as of the date
such Security is originally issued by the Company as set forth in an
Exchange Rate Certificate, of the principal amount (or, in the case of an
Original Issue Discount Security, the Dollar equivalent as of such date of
original issuance of the amount determined as provided in clause (w) above)
of such Security, (y) the principal amount of any Indexed Security that may
be counted in making such determination or calculation and that shall be
deemed Outstanding for such purpose shall be equal to the principal face
amount of such Indexed Security at original issuance, unless otherwise
provided with respect to such Security pursuant to Section 3.1, and (z)
Securities owned by the Company, any Guarantor or any other obligor upon
the Securities or any Affiliate of the Company, of any Guarantor or of such
other obligor shall be disregarded and deemed not to be Outstanding, except
that, in determining whether the Trustee shall be protected in making such
calculation or in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Securities which the Trustee
knows to be so owned shall be so disregarded. Securities so owned which
have been pledged in good faith may be regarded as Outstanding if the
pledgee establishes to the satisfaction of the Trustee the pledgee's right
so to act with respect to such Securities and that the pledgee is not the
Company, any Guarantor or any other obligor upon the Securities or any
Affiliate of the Company, of any Guarantor or of such other obligor.
"Paying Agent" means any Person authorized by the Company to pay
the principal of, premium, if any, interest, if any, and any other payments
due on any Securities on behalf of the Company.
"Periodic Offering" means an offering of Securities of a series
from time to time the specific terms of which Securities, including,
without limitation, the rate or rates of interest or formula or formulae
for determining the rate or rates of interest thereon, if any, the Maturity
thereof, the redemption provisions, if any, and any other terms specified
as contemplated by Section 3.1, with respect thereto, are to be determined
by the Company upon the issuance of such Securities.
"Person" means any individual, corporation, partnership, joint
venture, limited liability company, association, joint-stock company,
trust, other entity, unincorporated organization or government or any
agency or political subdivision thereof.
"Place of Payment", when used with respect to the Securities of
or within any series, means the place or places where the principal of,
premium, if any, interest and any other payments due on such Securities are
payable as specified as contemplated by Sections 3.1 and 9.2.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that
evidenced by such particular Security; and, for the purposes of this
definition, any Security authenticated and delivered under Section 3.6 in
exchange for or in lieu of a mutilated, destroyed, lost or stolen Security
shall be deemed to evidence the same debt as the mutilated, destroyed, lost
or stolen Security.
"Redeemable Interest" of any Person means any equity security of
or other ownership interest in such Person that by its terms (or by the
terms of any security into which it is convertible or for which it is
exchangeable) or otherwise (including upon the occurrence of an event)
matures or is required to be redeemed (pursuant to any sinking fund
obligation or otherwise) or is convertible into or exchangeable for Debt or
is redeemable at the option of the holder thereof, in whole or in part, at
any time prior to the final Stated Maturity of the Securities.
"Redemption Date", when used with respect to any Security to be
redeemed, means the date fixed for such redemption pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, in whole or in part, means the price at which it is to be
redeemed pursuant to this Indenture.
"Registered Security" means any Security issued hereunder and
registered as to principal and interest in the Register.
"Regular Record Date" for the interest payable on any Interest
Payment Date on the Securities of or within any series means the date
specified for that purpose as contemplated by Section 3.1.
"Responsible Officer", when used with respect to the Trustee,
shall mean any vice president, the secretary, any assistant secretary, the
treasurer, any assistant treasurer, any trust officer or assistant trust
officer, or any officer of the Trustee customarily performing functions
similar to those performed by any of the above designated officers and also
shall mean, with respect to a particular corporate trust matter, any
officer to whom such matter is referred because of his knowledge of and
familiarity with the particular subject.
"Restricted Subsidiary" means (i) at any date, a Subsidiary of
the Company that is not an Unrestricted Subsidiary as of such date and (ii)
for any period, a Subsidiary of the Company that for any portion of such
period is not an Unrestricted Subsidiary, provided that such term shall
mean such Subsidiary only for such portion of such period.
"Security" or "Securities" has the meaning stated in the first
recital of this Indenture and more particularly means a Security or
Securities of the Company issued, authenticated and delivered under this
Indenture.
"Senior 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 of, 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 (including the States thereof and the District of
Columbia), its territories, its possessions and other areas subject to its
jurisdiction.
"Unrestricted Subsidiary", with respect to any series of
Securities, shall have the meaning established in accordance with Section
3.1(b) with respect to such series of Securities.
"U.S. Person" means, unless otherwise specified with respect to
the Securities of any series as contemplated by Section 3.1, a citizen or
resident of the United States, a corporation, partnership or other entity
created or organized in or under the laws of the United States or any
political subdivision thereof, or an estate or trust, the income of which
is subject to United States federal income taxation regardless of its
source.
"Vice President", when used with respect to the Company or any
Guarantor, means any Vice President of such Person whether or not
designated by a number or a word or words added before or after the title
"Vice President."
"Wholly Owned Restricted Subsidiary" means a Restricted
Subsidiary all of the outstanding Capital Stock or other ownership
interests of which (other than directors' qualifying shares) shall at the
time be owned by the Company or by one or more Wholly Owned Restricted
Subsidiaries or by the Company and one or more Wholly Owned Restricted
Subsidiaries.
(b) The following terms shall have the meanings specified in the
Sections referred to opposite such term below:
Term Section
---- -------
"Act" 1.4(a)
"agreement defeasance" 4.5
"Common Stock" 14.1(b)(i)
"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
Section 1.2. Compliance Certificates and Opinions. Upon any
application or request by the Company to the Trustee to take any action
under any provision of this Indenture, the Company shall furnish to the
Trustee such certificates and opinions as may be required under the Trust
Indenture Act (including Section 314(c) of the Trust Indenture Act). Each
such certificate or opinion shall be given in the form of an Officers'
Certificate, if to be given by an officer or officers of the Company, or an
Opinion of Counsel, if to be given by counsel, and shall comply with the
requirements of the Trust Indenture Act and any other requirements set
forth in this Indenture.
Every certificate or opinion with respect to compliance with a
condition or agreement provided for in this Indenture (other than pursuant
to Section 2.4, the last paragraph of Section 3.3 and Section 9.5) shall
include:
(a) a statement that each individual signing such certificate or
opinion has read such condition or agreement and the definitions herein
relating thereto;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(c) a statement that, in the opinion of each such individual, he
or she has made such examination or investigation as is necessary to enable
him or her to express an informed opinion as to whether or not such
condition or agreement has been complied with; and
(d) a statement as to whether, in the opinion of each such
individual, such condition or agreement has been complied with.
Section 1.3. Form of Documents Delivered to Trustee. In any case
where several matters are required to be certified by, or covered by an
opinion of, any specified Person, it is not necessary that all such matters
be certified by, or covered by the opinion of, only one such Person, or
that they be so certified or covered by only one document, but one such
Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may
certify or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or
opinion of, or representations by, counsel, unless such officer knows, or
in the exercise of reasonable care should know, that the certificate or
opinion or representations with respect to the matters upon which his or
her certificate or opinion is based are erroneous. Any such certificate or
opinion or any Opinion of Counsel may be based, insofar as it relates to
factual matters, upon a certificate or opinion of, or representations by,
an officer or officers of the Company stating that the information with
respect to such factual matters is in the possession of the Company, unless
such officer or counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations as to such matters
are erroneous.
Any certificate, statement or opinion of an officer of the
Company or of counsel may be based, insofar as it relates to accounting
matters, upon a certificate or opinion of or representations by an
accountant or firm of accountants in the employ of the Company, unless such
officer or counsel, as the case may be, knows, or in the exercise of
reasonable care should know, that the certificate or opinion or
representations with respect to the accounting matters upon which his
certificate, statement or opinion is based are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be
consolidated and form one instrument.
Section 1.4. Acts of Holders. (a) Any request, demand,
authorization, direction, notice, consent, waiver or other action provided
by this Indenture to be given or taken by Holders may be embodied in and
evidenced by one or more instruments of substantially similar tenor signed
(either physically or by means of a facsimile or an electronic
transmission, provided, in the case of an electronic transmission, that it
is transmitted through the facilities of a Depositary) by such Holders in
person or by agent or proxy duly appointed in writing. If Securities of a
series are issuable as Bearer Securities, any request, demand,
authorization, direction, notice, consent, waiver or other action provided
by this Indenture to be given or taken by Holders of Securities of such
series may, alternatively, be embodied in and evidenced by the record of
Holders of Securities of such series voting in favor thereof pursuant to
the second paragraph of Section 13.4, either in person or by proxies duly
appointed in writing, at any meeting of Holders of Securities of such
series duly called and held in accordance with the provisions of Article
13, or a combination of such instruments and any such record. Except as
herein otherwise expressly provided, such action shall become effective
when such instrument or instruments or record or both are received (either
physically or, if the Securities are held through the facilities of a
Depositary, by means of a facsimile or an electronic transmission,
provided, in the case of an electronic transmission, that it is transmitted
through the facilities of a Depositary) by the Trustee and, where it is
hereby expressly required, to the Company. Such instrument or instruments
and record (and the action embodied therein and evidenced thereby) are
herein sometimes referred to as the "Act" of the Holders signing such
instrument or instruments or so voting at such meeting. The Company and the
Trustee may assume that any Act of a Holder has not been modified or
revoked unless written notice to the contrary is received prior to the time
that the action to which such Act relates has become effective. Proof of
execution of any such instrument or of a writing appointing any such agent
shall be sufficient for any purpose of this Indenture and (subject to
Section 315 of the Trust Indenture Act) conclusive in favor of the Trustee
and the Company, if made in the manner provided in this Section. The record
of any meeting of Holders of Securities shall be proved in the manner
provided in Section 13.6.
(b) The fact and date of the execution by any Person of any such
instrument or writing and the authority of the Person executing the same
may be proved in any manner which the Trustee deems sufficient.
(c) The ownership of Bearer Securities may be proved by the
production of such Bearer Securities or by a certificate executed by any
trust company, bank, banker or other depository, wherever situated, if such
certificate shall be deemed by the Trustee to be satisfactory, showing that
at the date therein mentioned such Person had on deposit with such trust
company, bank, banker or other depository, or exhibited to it, the Bearer
Securities therein described; or such facts may be proved by the
certificate or affidavit of the Person holding such Bearer Securities, if
such certificate or affidavit is deemed by the Trustee to be satisfactory.
The Trustee and the Company may assume that such ownership of any Bearer
Security continues until (i) another such certificate or affidavit bearing
a later date issued in respect of the same Bearer Security is produced,
(ii) such Bearer Security is produced to the Trustee by some other Person,
(iii) such Bearer Security is surrendered in exchange for a Registered
Security or (iv) such Bearer Security is no longer Outstanding. The
ownership of Bearer Securities may also be proved in any other manner which
the Trustee deems sufficient.
(d) The ownership of Registered Securities shall be proved by the
Register.
(e) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall bind every
future Holder of the same Security and any interest coupons appertaining
thereto and the Holder of every Security or interest coupon issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof
in respect of anything done, omitted or suffered to be done by the Trustee
or the Company in reliance thereon, whether or not notation of such Act is
made upon such Security or interest coupon.
(f) If the Company shall solicit from the Holders any request,
demand, authorization, direction, notice, consent, waiver or other Act, the
Company may, at its option, by or pursuant to a Board Resolution, fix in
advance a record date for the determination of Holders of Registered
Securities entitled to give such request, demand, authorization, direction,
notice, consent, waiver or other Act, but the Company shall have no
obligation to do so. Notwithstanding Section 316(c) of the Trust Indenture
Act, any such record date shall be the record date specified in or pursuant
to such Board Resolution, which shall be a date not more than 30 days prior
to the first solicitation of Holders generally in connection therewith and
no later than the date such first solicitation is completed. If such a
record date is fixed, such request, demand, authorization, direction,
notice, consent, waiver or other Act may be given before or after such
record date, but only the Holders of Registered Securities of record at the
close of business on such record date shall be deemed to be Holders for the
purposes of determining whether Holders of the requisite proportion of
Outstanding Securities have authorized or agreed or consented to such
request, demand, authorization, direction, notice, consent, waiver or other
Act, and for that purpose the Outstanding Securities shall be computed as
of such record date; provided that no such authorization, agreement or
consent by the Holders on such record date shall be deemed effective unless
it shall become effective pursuant to the provisions of this Indenture not
later than six months after the record date.
Without limiting the foregoing, a Holder entitled to give or take
any action hereunder with regard to any particular Security may do so with
regard to all or any part of the principal amount of such Security or by
one or more duly appointed agents, each of which may do so pursuant to such
appointment with regard to all or any part of the principal amount of such
Security to which such appointment relates.
Section 1.5. Notices, Etc., to Trustee, Company and Guarantors.
Any request, demand, authorization, direction, notice, consent, waiver or
Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with,
(a) the Trustee by any Holder or by the Company or any Guarantor
shall be sufficient for every purpose hereunder if made, given, furnished
or filed in writing to or with the Trustee at its Corporate Trust Office,
Attention: Corporate Trust Department, or at any other address previously
furnished in writing to the Holders or the Company by the Trustee, or, with
respect to notices by the Company, transmitted by facsimile transmission
(confirmed by guaranteed overnight courier) to the following facsimile
number: (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.
In any case where notice to Holders is given by mail or by
publication, neither the failure to mail or publish such notice, nor any
defect in any notice so mailed or published, to any particular Holder shall
affect the sufficiency of such notice with respect to other Holders of
Registered Securities or of Bearer Securities. Any notice mailed to a
Holder in the manner herein prescribed shall be conclusively deemed to have
been received by such Holder, whether or not such Holder actually receives
such notice.
If by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice as
provided above, then such notification as shall be made with the approval
of the Trustee shall constitute a sufficient notification for every purpose
hereunder. If it is impossible or, in the opinion of the Trustee,
impracticable to give any notice by publication in the manner herein
required, then such publication in lieu thereof as shall be made with the
approval of the Trustee shall constitute a sufficient publication of such
notice.
Any request, demand, authorization, direction, notice, consent or
waiver required or permitted under this Indenture shall be in the English
language, except that any published notice may be in an official language
of the country of publication.
Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such
notice, either before or after the event, and such waiver shall be
equivalent of such notice. Waivers of notice by Holders shall be filed with
the Trustee, but such filing shall not be a condition precedent to the
validity of any action taken in reliance upon such waiver.
Section 1.7. Headings and Table of Contents. The Article and
Section headings herein and the Table of Contents are for convenience only
and shall not affect the construction hereof.
Section 1.8. Successors and Assigns. All agreements in this
Indenture by the parties hereto shall bind their respective successors and
assigns and inure to the benefit of their respective successors and
assigns, whether so expressed or not.
Section 1.9. Separability. In case any provision of this
Indenture or the Securities or the 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.
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, any Registrar, any
Paying Agent, 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 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 DEEMED TO BE CONTRACTS
MADE AND TO BE PERFORMED ENTIRELY IN THE STATE OF NEW YORK, AND FOR ALL
PURPOSES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
SAID STATE WITHOUT REGARD TO THE CONFLICTS OF LAW RULES OF SAID STATE. This
Indenture is subject to the Trust Indenture Act and if and to the extent
that any provision hereof limits, qualifies or conflicts with the Trust
Indenture Act, the Trust Indenture Act shall control. Whether or not this
Indenture is required to be qualified under the Trust Indenture Act, the
provisions of the Trust Indenture Act required to be included in an
indenture in order for such indenture to be so qualified shall be deemed to
be included in this Indenture with the same effect as if such provisions
were set forth herein and any provisions hereof which may not be included
in an indenture which is so qualified shall be deemed to be deleted or
modified to the extent such provisions would be required to be deleted or
modified in an indenture so qualified.
Section 1.13. Legal Holidays. In any case where any Interest
Payment Date, Redemption Date, sinking fund payment date, Stated Maturity
or Maturity of any Security shall not be a Business Day at any Place of
Payment, then (notwithstanding any other provision of this Indenture or of
any Security or interest coupon or any 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 shall accrue on the amount so payable for the
period from and after such Interest Payment Date, Redemption Date, sinking
fund payment date, Stated Maturity or Maturity, as the case may be, if such
amount is so paid on the next succeeding Business Day.
Section 1.14. Moneys of Different Currencies to Be Segregated.
The Trustee shall segregate all moneys, funds and accounts held by the
Trustee hereunder in one currency from any moneys, funds and accounts held
by the Trustee hereunder in any other currencies, notwithstanding any
provision herein which would otherwise permit the Trustee to commingle such
amounts.
Section 1.15. Independence of Agreements. All agreements in this
Indenture shall be given independent effect so that if a particular action
or condition is not permitted by any such agreement, the fact that it would
be permitted by an exception to, or be otherwise within the limitations of,
another agreement shall not avoid the occurrence of a Default or an Event
of Default if such action is taken or condition exists.
Section 1.16. Counterparts. This Indenture may be executed in
any number of counterparts, each of which shall be an original, but such
counterparts shall together constitute but one and the same instrument.
ARTICLE 2
SECURITY AND 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, 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, premium, if any, and
interest on such Security when and as the same shall become due and
payable, whether at the Stated Maturity, by acceleration, call for
redemption, purchase or otherwise, according to the terms thereof and of
the Indenture referred to therein. In case of the failure of the Company
punctually to make any such payment, each of the Guarantors hereby jointly
and severally agrees to cause such payment to be made punctually when and
as the same shall become due and payable, whether at the Stated Maturity or
by acceleration, call for redemption, purchase or otherwise, and as if such
payment were made by the Company. Further, in the case of the failure of
any Subsidiary Guarantor punctually to make any payment required of it
hereunder, Allied agrees to cause such payment to be made when and as the
same shall become due and payable, as if such payment were made by such
Subsidiary Guarantor.
Each of the Guarantors hereby jointly and severally agrees that
its obligations hereunder shall be unconditional, irrespective of the
validity, regularity or enforceability of such Security or the Indenture,
the absence of any action to enforce the same, any creation, exchange,
release or non-perfection of any Lien on any collateral for, or any release
or amendment or waiver of any term of any other Guarantee of, or any
consent to departure from any requirement of any other Guarantee of, all or
of any of the Securities, the election by the Trustee or any of the Holders
in any proceeding under Chapter 11 of the Bankruptcy Code of the
application of Section 1111(b)(2) of the Bankruptcy Code, any borrowing or
grant of a security interest by the Company, as debtor-in-possession, under
Section 364 of the Bankruptcy Code, the disallowance, under Section 502 of
the Bankruptcy Code, of all or any portion of the claims of the Trustee or
any of the Holders for payment of any of the Securities, any waiver or
consent by the Holder of such Security or by the Trustee or either of them
with respect to any provisions thereof or of the Indenture, the obtaining
of any judgment against the Company (or with respect to the Allied
Subsidiary Guarantee, any Subsidiary Guarantor) or any action to enforce
the same or any other circumstances which might otherwise constitute a
legal or equitable discharge or defense of a Guarantor. Each of the
Guarantors hereby waives the benefits of diligence, presentment, demand of
payment, any requirement that the Trustee or any of the Holders protect,
secure, perfect or insure any security interest in or other Lien on any
property subject thereto or exhaust any right or take any action against
the Company (or, with respect to the Allied Subsidiary Guarantee, any
Subsidiary Guarantor) or any other Person or any collateral, filing of
claims with a court in the event of insolvency or bankruptcy of the Company
(or, with respect to the Allied Subsidiary Guarantee, any Subsidiary
Guarantor), any right to require a proceeding first against the Company
(or, with respect to the Allied Subsidiary Guarantee, any Subsidiary
Guarantor), protest or notice with respect to such Security (or, with
respect to the Allied Subsidiary Guarantee, the Subsidiary Guarantees) or
the indebtedness evidenced thereby and all demands whatsoever, and agrees
that this 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 of, premium, if any, or interest on
such Security (or, with respect to the Allied Subsidiary Guarantee, the
Subsidiary Guarantees) whether at its Stated Maturity, by acceleration,
call for redemption, purchase or otherwise, legal proceedings may be
instituted by the Trustee on behalf of, or by, the Holder of such Security
(or, with respect to the Allied Subsidiary Guarantee, the Subsidiary
Guarantees), subject to the terms and conditions set forth in the
Indenture, directly against each or any of the Guarantors (or, with respect
to the Allied Subsidiary Guarantee, against Allied) to enforce this Senior
Guarantee without first proceeding against the Company (or, with respect to
the Allied Subsidiary Guarantee, against any Subsidiary Guarantor). Each
Guarantor agrees that if, after the occurrence and during the continuance
of an Event of Default, the Trustee or any of the Holders are prevented by
applicable law from exercising their respective rights to accelerate the
maturity of the Securities, to collect interest on the Securities or to
enforce or exercise any other right or remedy with respect to the
Securities (or, with respect to the Allied Subsidiary Guarantee, to enforce
or exercise the Subsidiary Guarantees), or the Trustee or the Holders are
prevented from taking any action to realize on any collateral, such
Guarantor agrees to pay to the Trustee for the account of the Holders, upon
demand therefor, the amount that would otherwise have been due and payable
had such rights and remedies been permitted to be exercised by the Trustee
or any of the Holders.
No reference herein to the Indenture and no provision of this
Senior Guarantee or of the Indenture shall alter or impair (i) the Senior
Guarantee of any Guarantor, which is absolute and unconditional, of the due
and punctual payment of the principal of, premium, if any, and interest on
the Security upon which this Senior Guarantee is endorsed, or (ii) the
Allied Subsidiary Guarantee, which is absolute and unconditional, of the
due and punctual performance by the Subsidiary Guarantors of their
obligations under the Subsidiary Guarantees.
Each Guarantor shall be subrogated to all rights of the Holder of
such Security against the Company (or, with respect to the Allied
Subsidiary Guarantee, any Subsidiary Guarantor) in respect of any amounts
paid by such Guarantor on account of such Security (or, with respect to the
Allied Subsidiary Guarantee, on account of the Subsidiary Guarantees)
pursuant to the provisions of its 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, 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 Guarantor) for liquidation or reorganization, should the Company
(or, with respect to the Allied Subsidiary Guarantee, any Subsidiary
Guarantor) become insolvent or make an assignment for the benefit of
creditors or should a receiver or trustee be appointed for all or any
significant part of the Company's assets (or with respect to the Allied
Subsidiary Guarantee, the assets of any Subsidiary Guarantor) and shall, to
the fullest extent permitted by law, continue to be effective or be
reinstated, as the case may be, if at any time payment and performance of
the Securities (or, with respect to the Allied Subsidiary Guarantee, any
Subsidiary Guarantee) is, pursuant to applicable law, rescinded or reduced
in amount, or must otherwise be restored or returned by any obligee on the
Securities, whether as a "voidable preference," "fraudulent transfer" or
otherwise, all as though such payment or performance had not been made. In
the event that any payment, or any part thereof, is rescinded, reduced,
restored or returned, the Securities shall, to the fullest extent permitted
by law, be reinstated and deemed reduced only by such amount paid and not
so rescinded, reduced, restored or returned.
The Guarantors shall have the right to seek contribution from any
non-paying Guarantor so long as the exercise of such right does not impair
the rights of the Holders under this 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,
and Allied will be deemed to have guaranteed the Subsidiary Guarantee of
such Person, with the same effect as if such Subsidiary Guarantor was named
below and had executed and delivered this Subsidiary Guarantee.
All terms used in this 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.
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. Global Securities. If Securities of or within a
series are issuable in whole or in part in global form (each, a "Global
Security"), any such Global Security may provide that it shall represent
the aggregate or specified amount of Outstanding Securities from time to
time endorsed thereon and may also provide that the aggregate amount of
Outstanding Securities represented thereby may from time to time be reduced
or increased to reflect exchanges for certificated securities. Any
endorsement of a Global Security to reflect the amount, or any increase or
decrease in the amount, or changes in the rights of Holders, of Outstanding
Securities represented thereby, shall be made in such manner and by such
Person or Persons as shall be specified therein or in the Company Order to
be delivered to the Trustee pursuant to Section 3.3 or 3.4. Subject to the
provisions of Section 3.3, Section 3.4, if applicable, and Section 3.5, the
Trustee shall deliver and redeliver any Global Security in the manner and
upon instructions given by the Global Person or Persons specified therein
or in the applicable Company Order. Any instructions by the Company with
respect to endorsement or delivery or redelivery of a Global Security shall
be in writing but need not comply with Section 1.2 hereof and need not be
accompanied by an Officers' Certificate or an Opinion of Counsel.
The provisions of the last paragraph of Section 3.3 shall apply
to any Global Security if such Security was never issued and sold by the
Company and the Company delivers to the Trustee the Global Security
together with written instructions (which need not comply with Section 1.2
hereof and need not be accompanied by an Officers' Certificate or an
Opinion of Counsel) with regard to the reduction in the principal amount of
Securities represented thereby, together with the written statement
contemplated by the last paragraph of Section 3.3.
Notwithstanding the provisions of Section 2.1 and 3.7, unless
otherwise specified as contemplated by Section 3.1, payment of principal
of, premium, if any, and interest on any Registered Security in permanent
global form shall be made to the registered holder thereof.
Section 2.5. Form of Legend for Global Securities. Any Security
global form authenticated and delivered hereunder shall bear a legend in
substantially the following form or in such other form as may be specified
in accordance with Section 3.1:
"THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A
DEPOSITARY OR A NOMINEE OF A DEPOSITARY. UNLESS AND UNTIL IT IS EXCHANGED
IN WHOLE OR IN PART FOR SECURITIES IN CERTIFICATED FORM, THIS SECURITY MAY
NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE
DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER
NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY."
ARTICLE 3
THE SECURITIES
Section 3.1. Amount Unlimited; Issuable in Series. (a) The
aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited. The Securities may be issued
from time to time in one or more series.
(b) The following matters shall be established with respect to
each series of Securities issued hereunder (i) by a Board Resolution, (ii)
by action taken pursuant to a Board Resolution and (subject to Section 3.3)
set forth, or determined in the manner provided, in an Officers'
Certificate or (iii) in one or more indentures supplemental hereto:
(1) the title of the Securities of the series (which title shall
distinguish the Securities of the series from all other series of
Securities);
(2) any limit upon the aggregate principal amount of the
Securities of the series which may be authenticated and delivered
under this Indenture (which limit shall not pertain to Securities
authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, other Securities of the series pursuant
to Section 3.4, 3.5, 3.6, 8.6 or 11.7 or any Securities that, pursuant
to Section 3.3, are deemed never to have been authenticated and
delivered hereunder);
(3) the date or dates on which the principal of and premium, if
any, on the Securities of the series is payable or the method or
methods of determination thereof;
(4) the rate or rates at which the Securities of the series shall
bear interest, if any, or the method or methods of calculating such
rate or rates of interest, the date or dates from which such interest
shall accrue or the method or methods by which such date or dates
shall be determined, the Interest Payment Dates on which any such
interest shall be payable, the right, if any, of the Company to defer
or extend an Interest Payment Date and, with respect to Registered
Securities, the Regular Record Date, if any, for the interest payable
on any Registered Security on any Interest Payment Date, and the basis
upon which interest shall be calculated if other than that of a
360-day year of twelve 30-day months;
(5) the place or places where the principal of, premium, if any,
and interest, if any, on Securities of the series shall be payable,
any Registered Securities of the series may be surrendered for
registration of transfer, Securities of the series may be surrendered
for exchange and notices and demands to or upon the Company in respect
of the Securities of the series and this Indenture may be served and
(in the case of Bearer Securities) where notices to Holders pursuant
to Section 1.6 will be published;
(6) the period or periods within which, the price or prices at
which, the currency or currencies (including currency unit or units)
in which, and the other terms and conditions upon which, Securities of
the series may be redeemed, in whole or in part, at the option of the
Company and, if other than as provided in Section 11.3, the manner in
which the particular Securities of such series (if less than all
Securities of such series are to be redeemed) are to be selected for
redemption;
(7) the obligation, if any, of the Company to redeem or purchase
Securities of the series pursuant to any sinking fund or analogous
provisions or upon the happening of a specified event or at the option
of a Holder thereof and the period or periods within which, the price
or prices at which, the currency or currencies (including currency
unit or units) in which, and the other terms and conditions upon
which, Securities of the series shall be redeemed or purchased, in
whole or in part, pursuant to such obligation;
(8) if other than denominations of $1,000 and any integral
multiple thereof, if Registered Securities, and if other than
denominations of $5,000 and any integral multiple thereof, if Bearer
Securities, the denominations in which Securities of the series shall
be issuable;
(9) if other than Dollars, the currency or currencies (including
currency unit or units) in which the principal of, premium, if any,
and interest, if any, on the Securities of the series shall be
payable, or in which the Securities of the series shall be
denominated, and the particular provisions applicable thereto in
accordance with, in addition to, or in lieu of the provisions of
Section 3.12;
(10) if the payments of principal of, premium, if any, or
interest, if any, on the Securities of the series are to be made, at
the election of the Company or a Holder, in a currency or currencies
(including currency unit or units) other than that in which such
Securities are denominated or designated to be payable, the currency
or currencies (including currency unit or units) in which such
payments are to be made, the terms and conditions of such payments and
the manner in which the exchange rate with respect to such payments
shall be determined, and the particular provisions applicable thereto
in lieu of the provisions of Section 3.12;
(11) if the amount of payments of principal of, premium, if any,
and interest, if any, on the Securities of the series shall be
determined with reference to an index, formula or other method (which
index, formula or method may be based, without limitation, on a
currency or currencies (including currency unit or units) other than
that in which the Securities of the series are denominated or
designated to be payable), the index, formula or other method by which
such amounts shall be determined and any special voting or defeasance
provisions in connection therewith;
(12) if other than the entire principal amount thereof, the
portion of the principal amount of such Securities of the series which
shall be payable upon declaration of acceleration thereof pursuant to
Section 5.2 or the method by which such portion shall be determined;
(13) if other than as provided in Section 3.7, the Person to whom
any interest on any Registered Security of the series shall be payable
and the manner in which, or the Person to whom, any interest on any
Bearer Securities of the series shall be payable;
(14) provisions, if any, granting special rights to the Holders
of Securities of the series upon the occurrence of such events as may
be specified;
(15) any deletions from, modifications of or additions to the
Events of Default set forth in Section 5.1 or agreements of the
Company set forth in Article 9 pertaining to the Securities of the
series;
(16) under what circumstances, if any, and with what procedures
and documentation the Company will pay additional amounts on the
Securities and interest coupons, if any, of that series held by a
Person who is not a U.S. Person (including any modification of the
definition of such term) in respect of taxes, assessments or similar
charges withheld or deducted and, if so, whether the Company will have
the option to redeem such Securities rather than pay such additional
amounts (and the terms of any such option);
(17) whether Securities of the series shall be issuable as
Registered Securities or Bearer Securities (with or without interest
coupons), or both, and any restrictions applicable to the offering,
sale, transfer or delivery of Bearer Securities and, if other than as
provided in Section 3.5, the terms upon which Bearer Securities of a
series may be exchanged for Registered Securities of the same series
and vice versa;
(18) the date as of which any Bearer Securities of the series and
any temporary Global Security representing Outstanding Securities of
the series shall be dated if other than the date of original issuance
of the first Security of the series to be issued;
(19) the forms of the Securities and interest coupons, if any, of
the series;
(20) the applicability, if any, to the Securities and interest
coupons, if any, of or within the series of Sections 4.4 and 4.5, or
such other means of defeasance or agreement defeasance as may be
specified for the Securities and interest coupons, if any, of such
series;
(21) if other than the Trustee, the identity of the Registrar and
any Paying Agent;
(22) if the Securities of the series shall be issued in whole or
in part in global form, (i) the Depositary for Global Securities, (ii)
whether beneficial owners of interests in the Global Securities may
exchange such interests for certificated Securities of such series, to
be registered in the names of or to be held by such beneficial owners
or their nominees and to be of like tenor of any authorized form and
denomination, and (iii) if other than as provided in Section 3.5, the
circumstances under which any such exchange may occur;
(23) any restrictions on the registration, transfer or exchange
of the Securities;
(24) if the Securities of the series may be issued or delivered
(whether upon original issuance or upon exchange of a temporary
Security of such series or otherwise), or any installment of principal
or interest is payable, only upon receipt of certain certificates or
other documents or satisfaction of other conditions in addition to
those specified in this Indenture, the form and terms of such
certificates, documents or conditions;
(25) the terms and conditions of any right to convert or exchange
Securities of the series into or for Equity Securities of the Company,
including provisions for the payment of interest on Securities being
converted or exchanged as contemplated by Section 3.7(d) and Section
14.2;
(26) whether the Securities are secured or unsecured, and if
secured, the security and related terms in connection therewith;
(27) the definition of "Unrestricted Subsidiary" to be used for
such series; and
(28) any other terms of the series including any terms which may
be required by or advisable under United States laws or regulations or
advisable (as determined by the Company) in connection with the
marketing of Securities of the series.
(c) Subject to Section 1.12 and any controlling provision of the
Trust Indenture Act, in the event of any inconsistency between the terms of
this Indenture and the terms applicable to a series of Securities
established in the manner permitted by Section 3.1(b), the (i) Board
Resolution, (ii) Officers' Certificate or (iii) supplemental indenture
setting forth such conflicting term shall prevail.
(d) All Securities of any one series and interest coupons, if
any, appertaining thereto shall be substantially identical except as to
denomination and except as may otherwise be provided (i) by a Board
Resolution, (ii) by action taken pursuant to a Board Resolution and
(subject to Section 3.3) set forth, or determined in the manner provided,
in the related Officers' Certificate or (iii) in an indenture supplemental
hereto. All Securities of any one series need not be issued at the same
time and, unless otherwise provided, a series may be reopened, without the
consent of the Holders, for issuances of additional Securities of such
series.
(e) If any of the terms of the Securities of any series are
established by action taken pursuant to a Board Resolution, a copy of such
Board Resolution shall be delivered to the Trustee at or prior to the
delivery of the Officers' Certificate setting forth, or providing the
manner for determining, the terms of the Securities of such series, and an
appropriate record of any action taken pursuant thereto in connection with
the issuance of any Securities of such series shall be delivered to the
Trustee prior to the authentication and delivery thereof.
Section 3.2. Denominations. Unless otherwise provided as
contemplated by Section 3.1(b), any Registered Securities of a series
denominated in Dollars shall be issuable in denominations of U.S. $1,000
and any integral multiple thereof and any Bearer Securities of a series
denominated in Dollars shall be issuable in the denomination of U.S. $5,000
and any integral multiple thereof. Securities denominated in a Foreign
Currency shall be issuable in such denominations as are established with
respect to such Securities in or pursuant to this Indenture.
Section 3.3. Execution, Authentication, Delivery and Dating.
Securities shall be executed on behalf of the Company by the Chairman of
the Board, the President, the Chief Executive Officer, the Chief Operating
Officer, the Chief Financial Officer or any Vice President of the Company,
and need not be attested. The signatures of any of these officers on the
Securities may be manual or facsimile. The interest coupons, if any, of
Bearer Securities shall bear the facsimile signature of the Chairman of the
Board, the President, the Chief Executive Officer, the Chief Operating
Officer, the Chief Financial Officer or any Vice President of the Company,
and need not be attested.
Securities and interest coupons bearing the manual or facsimile
signatures of individuals who were at any time Officers of the Company
shall bind the Company, notwithstanding that such individuals or any of
them have ceased to be Officers prior to the authentication and delivery of
such Securities or were not Officers at the date of such Securities.
At any time and from time to time, the Company may deliver
Securities, together with any interest coupons appertaining thereto, of any
series executed by the Company and having endorsed (by attachment or
imprint) thereon the 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 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.
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 as Global
Securities, then the Company and the Guarantors shall execute and the
Trustee shall, in accordance with this Section and the Company Order with
respect to such series, authenticate and deliver one or more Global
Securities with Senior Guarantees endorsed thereon that (i) shall represent
and shall be denominated in an amount equal to the aggregate principal
amount of the Outstanding Securities of such series to be represented by
such Global Security or Securities, (ii) shall be registered, if a
Registered Security, in the name of the Depositary for such Global Security
or Securities or the nominee of such Depositary, (iii) shall be delivered
by the Trustee to such Depositary or pursuant to such Depositary's
instruction and (iv) shall bear the legend set forth in Section 2.5.
Each Depositary designated pursuant to Section 3.1 for a
Registered Security in global form must, at the time of its designation and
at all times while it serves as Depositary, be a clearing agency registered
under the Exchange Act and any other applicable statute or regulation. If
requested by the Company, the Trustee shall enter into an agreement with a
Depositary governing the respective duties and rights of such Depositary
and the Trustee with regard to Global Securities with Senior Guarantees
endorsed thereon.
Each Registered Security shall be dated the date of its
authentication and each Bearer Security shall be dated as of the date
specified pursuant to Section 3.1.
No Security or interest coupon appertaining thereto or 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
Global Securities, representing all or a portion of the Outstanding
Securities of such series.
Except in the case of temporary Global Securities, each of which
shall be exchanged in accordance with the provisions thereof, if temporary
Securities of any series are issued, the Company and the Guarantors will
cause definitive Securities with 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.
Each Global Security authenticated under this Indenture shall be
registered in the name of the Depositary or a nominee thereof and delivered
to such Depositary or nominee thereof or to a successor of such Depositary
or nominee thereof, and each such Global Security shall constitute a single
Security for all purposes of this Indenture.
Upon surrender for registration of transfer of any Registered
Security of any series at the office or agency maintained pursuant to
Section 9.2 in a Place of Payment for that series, the Company and the
Guarantors shall execute, and the Trustee shall authenticate and deliver,
in the name of the designated transferee or transferees, one or more new
Registered Securities with 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.
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 returned to the Person so surrendering the Bearer
Security), and interest or Defaulted Interest, as the case may be, will not
be payable on such Interest Payment Date or proposed date for payment, as
the case may be, in respect of the Registered Security issued in exchange
for such Bearer Security, but will be payable only to the Holder of such
interest coupon, when due in accordance with the provisions of this
Indenture.
Notwithstanding anything herein to the contrary, the exchange of
Bearer Securities for Registered Securities shall be subject to applicable
laws and regulations in effect at the time of exchange. Neither the
Company, the Guarantors, the Trustee nor the Registrar shall exchange any
Bearer Securities for Registered Securities if it has received an Opinion
of Counsel that as a result of such exchange the Company would suffer
adverse consequences under the United States Federal income tax laws and
regulations then in effect and the Company has delivered to the Trustee a
Company Order directing the Trustee not to make such exchanges thereafter,
unless and until the Trustee receives a subsequent Company Order to the
contrary. The Company shall deliver copies of such Company Order to the
Registrar.
Notwithstanding any other provision of this Section, unless and
until it is exchanged in whole or in part for Securities in certificated
form, a Global Security representing all or a portion of the Securities of
a series may not be transferred except as a whole by the Depositary for
such series to a nominee of such Depositary or by a nominee of such
Depositary to such Depositary or another nominee of such Depositary or by
such Depositary or any such nominee to a successor Depositary for such
series or a nominee of such successor Depositary.
If at any time the Depositary for the Securities of a series
notifies the Company that it is unwilling or unable to continue as
Depositary for the Securities of such series or if at any time the
Depositary for the Securities of such series shall no longer be eligible
under Section 3.3, the Company shall appoint a successor Depositary with
respect to the Securities of such series. If a successor Depositary for the
Securities of such series is not appointed by the Company prior to the
resignation of the Depositary and, in any event, within 90 days after the
Company receives such notice or becomes aware of such ineligibility, the
Company's designation of the Depositary pursuant to Section 3.1(b)(22)
shall no longer be effective with respect to the Securities of such series
and the Company and the Guarantors shall execute, and the Trustee, upon
receipt of a Company Order for the authentication and delivery of
certificated Securities with 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 Global Security or
Securities of such series of like tenor in exchange for such Global
Security or Securities in global form.
The Company may at any time in its sole discretion determine that
Global Securities shall no longer be represented by such a Global Security
or Securities. In such event the Company and the Guarantors shall execute,
and the Trustee, upon receipt of a Company Order for the authentication and
delivery of certificated Securities with 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 Global Security or
Securities of such series of like tenor 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
Global Security of such series in exchange in whole or in part for
Securities of such series in certificated form on such terms as are
acceptable to the Company, the Guarantors and such Depositary. Thereupon,
the Company and the Guarantors shall execute, and the Trustee shall
authenticate and deliver, without service charge,
(i) to each Person specified by such Depositary a new
certificated Security or Securities with 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 Global Security; and
(ii) to such Depositary a new Global Security with Senior
Guarantees endorsed thereon of like tenor in a denomination equal
to the difference, if any, between the principal amount of the
surrendered Global Security and the aggregate principal amount of
certificated Securities delivered to Holders thereof.
Upon the exchange of a Global Security with Senior Guarantees
endorsed thereon for Securities with Senior Guarantees endorsed thereon in
certificated form, such Global Security with Senior Guarantees endorsed
thereon shall be cancelled by the Trustee. Unless expressly provided with
respect to the Securities of any series that such Security may be exchanged
for Bearer Securities, Securities with Senior Guarantees endorsed thereon
in certificated form issued in exchange for a Global Security with Senior
Guarantees endorsed thereon pursuant to this Section shall be registered in
such names and in such authorized denominations as the Depositary for such
Global Security with Senior Guarantees endorsed thereon, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee in writing. The Trustee shall deliver such Securities
with Senior Guarantees endorsed thereon to the 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.
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. 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 temporary Bearer
Security shall be paid, as to any installment of interest evidenced by an
interest coupon attached thereto only upon presentation and surrender of
such interest coupon and, as to other installments of interest, only upon
presentation of such Security for notation thereon of the payment of such
interest. If at the time a payment of principal of or interest, if any, on
a Bearer Security or interest coupon shall become due, the payment of the
full amount so payable at the office or offices of all the Paying Agents
outside the United States is illegal or effectively precluded because of
the imposition of exchange controls or other similar restrictions on the
payment of such amount in Dollars, then the Company may instruct the
Trustee in writing to make such payments at a Paying Agent located in the
United States, provided that provision for such payment in the United
States would not cause such Bearer Security to be treated as a
"registration-required obligation" under United States laws and
regulations.
(b) Unless otherwise provided as contemplated by Section 3.1, any
interest on Securities of any series which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date in the
case of Registered Securities and upon presentation and surrender of the
applicable interest coupon in accordance with the second paragraph of
Section 3.7(a) in the case of Bearer Securities (herein called "Defaulted
Interest"), shall forthwith cease to be payable to the Holders of
Registered Securities on the relevant Regular Record Date by virtue of
their having been such Holders, or to the Holders of Bearer Securities by
virtue of their having presented the applicable interest coupon on such
Interest Payment Date, and such Defaulted Interest may be paid by the
Company, at its election in each case, as provided in clause (1) or (2)
below:
(1) In the case of Registered Securities, the Company may elect
to make payment of such Defaulted Interest to the Persons in whose
names such Registered Securities (or their respective Predecessor
Securities) are registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest, which shall be
fixed in the following manner. The Company shall notify the Trustee in
writing of the amount of Defaulted Interest proposed to be paid on
each such Registered Security and the date of the proposed payment,
and shall deposit with the Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements satisfactory to the Trustee for
such deposit prior to the date of the proposed payment, such money
when deposited to be held in trust for the benefit of the Persons
entitled to such Defaulted Interest as in this clause (1) provided.
Thereupon the Trustee shall fix a Special Record Date for the payment
of such Defaulted Interest which shall be not more than 15 days and
not less than 10 days prior to the date of the proposed payment and
not less than 10 days after the receipt by the Trustee of the notice
of the proposed payment. The Trustee shall promptly notify the Company
of such Special Record Date and, in the name and at the expense of the
Company, shall cause notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor to be mailed,
first-class postage prepaid, to each Holder of such Registered
Securities at his or her address as it appears in the Register, not
less than 10 days prior to such Special Record Date. Notice of the
proposed payment of such Defaulted Interest and the Special Record
Date therefor having been so mailed, such Defaulted Interest shall be
paid to the Persons in whose names such Registered Securities (or
their respective Predecessor Securities) are registered at the close
of business on such Special Record Date and shall no longer be payable
pursuant to the following clause (2).
(2)(x) In the case of Registered Securities, the Company may make
payment of such Defaulted Interest to the Persons in whose names such
Registered Securities (or their respective Predecessor Securities) are
registered at the close of business on a specified date in any other
lawful manner not inconsistent with the requirements of any securities
exchange on which such Registered Securities may be listed, and upon
such notice as may be required by such exchange, if, after notice
given by the Company to the Trustee of the proposed payment pursuant
to this clause (2)(x), such manner of payment shall be deemed
practicable by the Trustee; or (y) unless otherwise provided as
contemplated by Section 3.1, in the case of Bearer Securities, the
Company may make payment of Defaulted Interest on such Bearer
Securities in any lawful manner not inconsistent with the requirements
of any securities exchange on which such Bearer Securities may be
listed, and upon such notice as may be required by such exchange, if,
after notice given by the Company to the Trustee of the proposed
payment pursuant to this clause (2)(y), such manner of payment shall
be deemed practicable by the Trustee.
(c) Subject to the foregoing provisions of this Section and
Section 3.5, each Security delivered under this Indenture upon registration
of transfer of or in exchange for or in lieu of any other Security shall
carry the rights to interest accrued and unpaid, and to accrue, which were
carried by such other Security.
(d) In the case of any Registered Security 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).
Section 3.8. Persons Deemed Owners. Unless otherwise provided as
contemplated by Section 3.1, prior to due presentment of any Registered
Security for registration of transfer, the Company, the Guarantors, the
Trustee and any agent of the Company, any Guarantor or the Trustee may
treat the Person in whose name such Registered Security is registered as
the owner of such Registered Security for the purpose of receiving payment
of principal of, premium, if any, and (subject to Section 3.7) interest on
such Registered Security and for all other purposes whatsoever, whether or
not such Registered Security be overdue, and neither the Company, any
Guarantor, the Trustee nor any agent of the Company, any Guarantor or the
Trustee shall be affected by notice to the contrary.
Unless otherwise provided as contemplated by Section 3.1, the
Company, the Guarantors, the Trustee and any agent of the Company, any
Guarantor or the Trustee may treat the bearer of any Bearer Security and
the bearer of any interest coupon as the absolute owner of such Bearer
Security or interest coupon for the purpose of receiving payment thereof or
on account thereof and for all other purposes whatsoever, whether or not
such Bearer Security or interest coupon be overdue, and neither the
Company, the Guarantors, the Trustee nor any agent of the Company, any
Guarantor or the Trustee shall be affected by notice to the contrary.
None of the Company, the Guarantors, the Trustee or any agent of
the Company, any Guarantor or the Trustee shall have any responsibility or
liability for any aspect of the records relating to or payments made on
account of beneficial ownership interests of a Global Security, or for
maintaining, supervising or reviewing any records relating to such
beneficial ownership interests. No holder of any beneficial interest in any
Global Security, held on its behalf by or through a Depositary, shall have
any rights under this Indenture with respect to such Global Security, and
such Depositary may be treated by the Company, the Guarantors, the Trustee
and any agent of the Company, any Guarantor or the Trustee as the owner of
such Global Security for all purposes whatsoever. With respect to any
Global Security, nothing herein shall prevent the Company, the Guarantors
or the Trustee, or any agent of the Company, any Guarantor or the Trustee,
from giving effect to any written certification, proxy or other
authorization furnished by any Depositary (or its nominee), as a Holder,
with respect to such Global Security or impair, as between such Depositary
and owners of beneficial interests in such Global Security, the operation
of customary practices governing the exercise of the rights of such
Depositary (or its nominee) as Holder of such Global Security.
Section 3.9. Cancellation. All Securities and interest coupons
appertaining thereto, if any, surrendered for payment, redemption,
conversion, registration of transfer or exchange or for credit against any
sinking fund payment shall, if surrendered to any Person other than the
Trustee, be delivered to the Trustee and, together with the Senior
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 to (i) rights of
registration, transfer or exchange of such Securities, (ii) rights of
replacement of such Securities which may have been lost, stolen or
mutilated as herein expressly provided for, (iii) rights of holders of
Securities to receive payments of principal thereof and interest thereon,
upon the Stated Maturity thereof (but not upon acceleration), and rights of
the Holders to receive mandatory sinking fund payments, if any, (iv) rights
of holders of Securities to convert or exchange Securities, (v) rights,
obligations, duties and immunities of the Trustee hereunder, (vi) any
rights of the Holders of Securities of such series as beneficiaries hereof
with respect to the property so deposited with the Trustee payable to all
or any of them, and (vii) the obligations of the Company under Section 9.2)
and the Trustee, upon payment of all amounts due it under Section 6.7, at
the expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture with respect to such
Securities and any interest coupons appertaining thereto when
(1) either (A) all such Securities previously authenticated and
delivered and all interest coupons appertaining thereto (other than
(i) such interest coupons appertaining to Bearer Securities
surrendered in exchange for Registered Securities and maturing after
such exchange, surrender of which is not required or has been waived
as provided in Section 3.5, (ii) such Securities and interest coupons
which have been destroyed, lost or stolen and which have been replaced
or paid as provided in Section 3.6, (iii) such interest coupons
appertaining to Bearer Securities called for redemption and maturing
after the relevant Redemption Date, surrender of which has been waived
as provided in Section 11.6 and (iv) such Securities and interest
coupons for whose payment money in the currency or currencies or
currency unit or units in which such Securities are payable has
theretofore been deposited in trust or segregated and held in trust by
the Company and thereafter repaid to the Company or discharged from
such trust, as provided in Section 9.3) have been delivered to the
Trustee for cancellation; or
(B) all Securities of such series and, in the case of (i) or (ii)
below, any interest coupons appertaining thereto not theretofore
delivered to the Trustee for cancellation:
(i) have become due and payable, or
(ii) will become due and payable at their Stated
Maturity within one year, or
(iii) are to be called for redemption within one year
under arrangements satisfactory to the Trustee for the
giving of notice of redemption by the Trustee in the name,
and at the expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above, has
irrevocably deposited or caused to be deposited with the Trustee
as trust funds in trust for the purpose an amount in the currency
or currencies or currency unit or units in which the Securities
of such series are payable, sufficient to pay and discharge the
entire indebtedness on such Securities and such interest coupons
not theretofore delivered to the Trustee for cancellation, for
principal, premium, if any, and interest, with respect thereto,
to the date of such deposit (in the case of Securities which have
become due and payable) or to the Stated Maturity or Redemption
Date, as the case may be; (2) the Company has paid or caused to
be paid all other sums payable hereunder by the Company and the
Guarantors; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the satisfaction
and discharge of this Indenture as to such series have been complied
with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligation of the Company to the Trustee and any predecessor Trustee under
Section 6.7, the obligations of the Company to any Authenticating Agent
under Section 6.14 and, if money shall have been deposited with the Trustee
pursuant to subclause (B) of clause (1) of this Section, the obligations of
the Trustee under Section 4.2, Section 9.2 and the last paragraph of
Section 9.3 shall survive.
Section 4.2. Application of Trust Funds. Subject to the
provisions of the last paragraph of Section 9.3, all money deposited with
the Trustee pursuant to Section 4.1 shall be held in trust and applied by
it, in accordance with the provisions of the Securities, the interest
coupons appertaining thereto, if any, and this Indenture, to the payment,
either directly or through any Paying Agent (including the Company acting
as its own Paying Agent) as the Trustee may determine, to the Persons
entitled thereto, of the principal, premium, if any and any interest for
whose payment such money has been deposited with or received by the
Trustee, but such money need not be segregated from other funds except as
otherwise provided herein and except to the extent required by law.
Section 4.3. Applicability of Defeasance Provisions; Company's
Option to Effect Defeasance or Agreement Defeasance. Except as otherwise
specified as contemplated by Section 3.1 for the Securities of any series,
the provisions of Sections 4.4 through 4.9 inclusive, with such
modifications thereto as may be specified pursuant to Section 3.1 with
respect to any series of Securities, shall be applicable to the Securities
and any interest coupons appertaining thereto.
Section 4.4. Defeasance and Discharge. On and after the date on
which the conditions set forth in Section 4.6 are satisfied with respect to
the Securities of or within any series, the Company shall be deemed to have
paid and been discharged from its obligations with respect to such
Securities and any interest coupons appertaining thereto (hereinafter
"defeasance"). For this purpose, such defeasance means that (i) the Company
shall be deemed to have paid and discharged the entire indebtedness
represented by such Securities and any interest coupons appertaining
thereto which shall thereafter be deemed to be "Outstanding" only for the
purposes of Sections 4.7 and 4.9 and the other Sections of this Indenture
referred to in clause (ii)(B) of this Section, and to have satisfied all
its other obligations under such Securities and any interest coupons
appertaining thereto and this Indenture insofar as such Securities and any
interest coupons appertaining thereto are concerned (and the Trustee, upon
payment of all amounts due it under Section 6.7, at the expense of the
Company, shall on a Company Order execute proper instruments acknowledging
the same) and (ii) the Guarantors shall be released from all of their
obligations under their 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 agreement defeasance (as defined herein) under
Section 4.5 with respect to such Securities and any interest coupons
appertaining thereto. Following a defeasance, payment of such Securities
may not be accelerated because of an Event of Default.
Section 4.5. Agreement Defeasance. On and after the date on
which the conditions set forth in Section 4.6 are satisfied with respect to
the Securities of or within any series, (i) the Company shall be released
from its obligations under Section 7.1 and, if specified pursuant to
Section 3.1, its obligations under any other agreement, with respect to
such Securities and any interest coupons appertaining thereto and (ii) the
occurrence of any event specified in Section 5.1(d) or 5.1(i) (in each
case, with respect to any of the obligations described in clause (i) above)
or 5.1(e) shall be deemed not to be or result in a Default or Event of
Default (hereinafter, "agreement defeasance"), and such Securities and any
interest coupons appertaining thereto shall thereafter be deemed to be not
"Outstanding" for the purposes of any request, demand, authorization,
direction, notice, waiver, consent or declaration or Act of Holders (and
the consequences of any thereof) in connection with Section 7.1, such other
agreement specified pursuant to Section 3.1, or Section 5.1(d) or 5.1(i)
(in each case, with respect to any of the obligations described in clause
(i) above) or 5.1(e), but shall continue to be deemed "Outstanding" for all
other purposes hereunder. For this purpose, such agreement defeasance means
that, with respect to such Securities and any interest coupons appertaining
thereto, the Company may omit to comply with and shall have no liability in
respect of any term, condition or limitation set forth in any such Section
or such other agreement, whether directly or indirectly, by reason of any
reference elsewhere herein to any such Section or such other agreement or
by reason of reference in any such Section or such other agreement to any
other provision herein or in any other document and such omission to comply
shall not constitute a Default or an Event of Default under Section 5.1(d),
5.1(e) or 5.1(i) or otherwise, as the case may be, but, except as specified
above, the remainder of this Indenture and such Securities and any interest
coupons appertaining thereto shall be unaffected thereby.
Section 4.6. Conditions to Defeasance or Agreement Defeasance.
The following shall be the conditions to application of either Section 4.4
or Section 4.5 to the then Outstanding Securities of or within a series:
(a) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements
of Section 6.9 who shall agree to comply with the provisions of Sections
4.3 through 4.9 inclusive and the last paragraph of Section 9.3 applicable
to the Trustee, for purposes of such sections also a "Trustee") as trust
funds in trust for the purpose of making the following payments,
specifically pledged as security for, and dedicated solely to, the benefit
of the Holders of such Securities and any interest coupons appertaining
thereto, (A) money in an amount, or (B) Government Obligations which
through the scheduled payment of principal and interest in respect thereof
in accordance with their terms will provide, not later than one day before
the due date of any payment, money in an amount, or (C) a combination
thereof, in an amount sufficient in the opinion of a nationally recognized
firm of independent certified public accountants expressed in a written
opinion with respect thereto delivered to the Trustee, to pay and
discharge, and which shall be applied by the Trustee (or other qualifying
trustee) to pay and discharge, (x) the principal of, premium, if any, and
each installment of interest, if any, on the outstanding Securities and any
interest coupons appertaining thereto on the Stated Maturity of such
principal or installment of interest and (y) any mandatory sinking fund
payments applicable to such Securities on the day on which such payments
are due and payable in accordance with the terms of this Indenture and of
such Securities and any interest coupons appertaining thereto.
(b) In the case of an election under Section 4.4, the Company
shall have delivered to the Trustee an Opinion of Counsel stating that (x)
the Company has received from, or there has been published by, the Internal
Revenue Service a ruling, or (y) since the date of this Indenture there has
been a change in the applicable Federal income tax law, in either case to
the effect that, and based thereon such opinion shall confirm that, the
Holders of the Outstanding Securities and any interest coupons appertaining
thereto will not recognize gain or loss for Federal income tax purposes as
a result of such deposit, defeasance and discharge and will be subject to
Federal income tax on the same amount, in the same manner and at the same
times as would have been the case if such deposit, defeasance and discharge
had not occurred.
(c) In the case of an election under Section 4.5, the Company
shall have delivered to the Trustee an Opinion of Counsel to the effect
that the Holders of the Outstanding Securities and any interest coupons
appertaining thereto will not recognize gain or loss for Federal income tax
purposes as a result of such deposit and agreement defeasance and will be
subject to Federal income tax on the same amount, in the same manner and at
the same times as would have been the case if such deposit and agreement
defeasance had not occurred.
(d) The Company shall have delivered to the Trustee an Officer's
Certificate to the effect that the Securities, if then listed on any
securities exchange or approved for trading in any automated quotation
system, will not be delisted or disapproved for such trading as a result of
such deposit.
(e) 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 agreement defeasance shall not cause the
Trustee to have a conflicting interest within the meaning of the Trust
Indenture Act (assuming all Securities are in default within the meaning of
such Act).
(g) Such defeasance or agreement defeasance shall not result in a
breach or violation of, or constitute a default under, any other agreement
or instrument to which the Company is a party or by which it is bound.
(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 agreement defeasance under Section 4.5 (as the case may be) have
been complied with.
(i) Such defeasance or agreement defeasance shall not result in
the trust arising from such deposit constituting an investment company as
defined in the Investment Company Act of 1940, as amended from time to
time, or such trust shall be registered under such act or exempt from
registration thereunder.
(j) Such defeasance or agreement defeasance shall be effected in
compliance with any additional or substitute terms, conditions or
limitations which may be imposed on the Company in connection therewith as
contemplated by Section 3.1.
Section 4.7. Deposited Money and Government Obligations to Be
Held in Trust. Subject to the provisions of the last paragraph of Section
9.3, all money and Government Obligations (or other property as may be
provided pursuant to Section 3.1) (including the proceeds thereof)
deposited with the Trustee pursuant to Section 4.6 in respect of any
Securities of any series and any interest coupons appertaining thereto
shall be held in trust and applied by the Trustee, in accordance with the
provisions of such Securities and any interest coupons appertaining thereto
and this Indenture, to the payment, either directly or through any Paying
Agent (including the Company acting as its own Paying Agent) as the Trustee
may determine, to the Holders of such Securities and any interest coupons
appertaining thereto of all sums due and to become due thereon in respect
of principal, premium, if any, and interest, if any, but such money need
not be segregated from other funds except as provided herein and except to
the extent required by law.
Section 4.8. Repayment to Company. Subject to the delivery by
the Company of any written certification required by the last paragraph of
this Section 4.8, the Trustee (and any Paying Agent) shall promptly pay to
the Company upon Company Request any excess money or securities held by
them at any time.
The provisions of the last paragraph of Section 9.3 shall apply
to any money or securities held by the Trustee or any Paying Agent under
this Article 4 that remain unclaimed for two years after the Maturity of
any series of Securities for which money or securities have been deposited
pursuant to Section 4.6(a).
Anything in this Article to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or Government Obligations held by it as provided in
Section 4.6 with respect to any Securities which, in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, are in excess of
the amount thereof which would then be required to be deposited to effect
the defeasance or agreement defeasance, as the case may be, with respect to
such Securities.
Section 4.9. Indemnity for Government Obligations. The Company
shall pay, and shall indemnify the Trustee against, any tax, fee or other
charge imposed on or assessed against Government Obligations deposited
pursuant to this Article or the principal and interest received in respect
thereof other than any such tax, fee or other charge which by law is for
the account of the Holders of the Outstanding Securities.
Section 4.10. Reinstatement. If the Trustee (or Paying Agent) is
unable to apply any money or Government Obligations in accordance with
Section 4.6 by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application,
then the Company's obligations under this Indenture and the Securities
shall be revived and reinstated, with present and prospective effect, as
though no deposit had occurred pursuant to Section 4.6, until such time as
the Trustee (or Paying Agent) is permitted to apply all such money or
Government Obligations in accordance with Section 4.6; provided, however,
that if the Company makes any payment to the Trustee (or Paying Agent) of
principal of, premium, if any, or interest on any Security following the
reinstatement of its obligations, the Trustee (or Paying Agent) shall
promptly pay any such amount to the Holders of the Securities and the
Company shall be subrogated to the rights of the Holders of such Securities
to receive such payment from the money and Government Obligations held by
the Trustee (or Paying Agent).
ARTICLE 5
DEFAULTS AND REMEDIES
Section 5.1. Events of Default. An "Event of Default," with
respect to the Securities of any series, means any one of the following
events (whatever the reason for such Event of Default and whether it shall
be 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 agreement or
warranty of the Company or any Guarantor in this Indenture (other than an
agreement or warranty a default in whose performance or whose breach is
elsewhere in this Section specifically dealt with) or the Securities, and
continuance of such default or breach for a period of 60 days after there
has been given, in the manner provided in Section 1.6, to the Company by
the Trustee or to the Company and the Trustee by the Holders of at least
10% in principal amount of the Outstanding Securities of the series, a
written notice specifying such default or breach and requiring it to be
remedied and stating that such notice is a "Notice of Default" hereunder;
or
(e) a default or defaults under the terms of any bond(s),
debenture(s), note(s) or other evidence(s) of, or obligations constituting,
Debt by the Company, any Guarantor or any Restricted Subsidiary, or under
any mortgage(s), indenture(s), agreement(s) or instrument(s) under which
there may be issued or by which there may be secured or evidenced, any Debt
of the Company, any Guarantor or any Restricted Subsidiary with a principal
amount then outstanding, individually or in the aggregate, in excess of $25
million, whether such Debt now exists or is hereafter Incurred, which
default or defaults constitute a failure to pay any portion of the
principal or similar amount of such Debt when due and payable after the
expiration of any applicable grace period with respect thereto or results
in such Debt becoming or being declared due and payable prior to the date
on which it would otherwise have become due and payable; or
(f) a final judgment or final judgments (not subject to appeal)
for the payment of money are entered against the Company, Allied or any
Restricted Subsidiary in an aggregate amount in excess of $25 million by a
court or courts of competent jurisdiction, which judgments remain unstayed,
undischarged or unbonded for a period of 60 days after the entry of such
judgment or judgments; or
(g) the entry by a court having jurisdiction in the premises of
(A) a decree or order for relief in respect of the Company, Allied or any
Restricted Subsidiary in an involuntary case or proceeding under any
applicable Federal or state bankruptcy, insolvency, reorganization or other
similar law or (B) a decree or order adjudging the Company, Allied or any
Restricted Subsidiary a bankrupt or insolvent, or approving as properly
filed a petition seeking reorganization, arrangement, adjustment or
composition of or in respect of the Company, Allied or any Restricted
Subsidiary under any applicable Federal or state law, or appointing a
custodian, receiver, liquidator, assignee, trustee, sequestrator or other
similar official of the Company, Allied or any Restricted Subsidiary or of
any substantial part of the property of the Company, Allied or any
Restricted Subsidiary, or ordering the winding up or liquidation of the
affairs of the Company, Allied or any Restricted Subsidiary, and the
continuance of any such decree or order for relief or any such other decree
or order unstayed and in effect for a period of 60 consecutive days; or
(h) the commencement by the Company, Allied or any Restricted
Subsidiary of a voluntary case or proceeding under any applicable Federal
or state bankruptcy, insolvency, reorganization or other similar law or of
any other case or proceeding to be adjudicated a bankrupt or insolvent, or
the consent by the Company, Allied or any Restricted Subsidiary to the
entry of a decree or order for relief in respect of the Company, Allied or
any Restricted Subsidiary in an involuntary case or proceeding under any
applicable Federal or state bankruptcy, insolvency, reorganization or other
similar law or to the commencement of any bankruptcy or insolvency case or
proceeding against the Company, Allied or any Restricted Subsidiary or the
filing by the Company, Allied or any Restricted Subsidiary of a petition or
answer or consent seeking reorganization or relief under any applicable
Federal or state law, or the consent by the Company, Allied or any
Restricted Subsidiary to the filing of such a petition or to the
appointment of or taking possession by a custodian, receiver, liquidator,
assignee, trustee, sequestrator or similar official of the Company, Allied
or any Restricted Subsidiary or of any substantial part of the property of
the Company, Allied or any Restricted Subsidiary, or the making by the
Company, Allied or any Restricted Subsidiary of an assignment for the
benefit of creditors, or the admission by the Company, Allied or any
Restricted Subsidiary in writing of its inability to pay its debts
generally as they become due, or the taking of corporate action by the
Company, Allied or any Restricted Subsidiary in furtherance of any such
action; or
(i) any other Event of Default provided as contemplated by
Section 3.1 with respect to Securities of that series.
Section 5.2. Acceleration; Rescission and Annulment. If an Event
of Default with respect to the Securities of any series at the time
Outstanding (other than an Event of Default specified in clause (g) or (h)
of Section 5.1) occurs and is continuing, the Trustee or the Holders of at
least 25% in aggregate principal amount of all of the Outstanding
Securities of that series, by written notice received by the Company (and,
if given by the Holders, received by the Trustee), may declare the
principal (or, if the Securities of that series are Original Issue Discount
Securities or Indexed Securities, such portion of the principal amount as
may be specified in the terms of that series) of, premium, if any, and
accrued interest, if any, on all the Securities of that series to be due
and payable and upon any such declaration such principal (or, in the case
of Original Issue Discount Securities or Indexed Securities, such specified
amount), premium, if any, and interest, if any, shall be immediately due
and payable. If an Event of Default specified in clause (g) or (h) of
Section 5.1 with respect to the Securities of any series at the time
Outstanding occurs and is continuing, then the principal (or, if the
Securities of that series are Original Issue Discount Securities or Indexed
Securities, such portion of the principal amount as may be specified in the
terms of that series) of, premium, if any, and accrued interest, if any, on
all the Securities of that series shall be immediately due and payable
without any declaration or act on the part of the Trustee or any Holder of
such Securities.
At any time after such a declaration of acceleration has been
made and before a judgment or decree for payment of the money due has been
obtained by the Trustee as hereinafter in this Article provided, the
Holders of not less than a majority in aggregate principal amount of the
Outstanding Securities of that series, by written notice to the Company and
the Trustee, may rescind and annul such declaration and its consequences if
(1) the Company or any of the Guarantors has paid or deposited
with the Trustee a sum sufficient to pay
(A) all overdue interest on all Securities of that series,
(B) the principal of (and premium, if any, on) any
Securities of that series which have become due otherwise than by
such declaration of acceleration and any interest thereon at the
rate borne by the Securities of that series,
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate provided therefor in
the Securities of that series, and
(D) all sums paid or advanced by the Trustee hereunder and
the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel;
and
(2) all Events of Default, other than the nonpayment of the
principal of Securities of that series which have become due solely by such
declaration of acceleration, have been cured or waived as provided in
Section 5.7.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Section 5.3. Collection of Indebtedness and Suits for Enforcement
by Trustee. The Company agrees that if
(a) default is made in the payment of any interest on any
Security or interest coupon, if any, when such interest becomes due
and payable and such default continues for a period of 30 days, or
(b) default is made in the payment of the principal of (or
premium, if any, on) any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of
the Holders of such Securities or interest coupons, if any, the whole
amount then due and payable on such Securities for principal, premium, if
any, and interest and, to the extent that payment of such interest shall be
legally enforceable, interest on any overdue principal, premium, if any,
and on any overdue interest, at the rate or rates prescribed therefor in
such Securities or interest coupons, if any, and, in addition thereto, such
further amount as shall be sufficient to cover the costs and expenses of
collection, including all amounts due the Trustee, its agents and counsel
under Section 6.7.
If the Company or any Guarantor fails to pay such amounts
forthwith upon such demand, the Trustee, in its own name and as trustee of
an express trust, may institute a judicial proceeding for the collection of
the sums so due and unpaid and may prosecute such proceeding to judgment or
final decree, and may enforce the same against the Company, any Guarantor, or
any other obligor upon the Securities and collect the moneys adjudged or
decreed to be payable in the manner provided by law out of the property of
the Company, any Guarantor or any other obligor upon the Securities,
wherever situated.
If an Event of Default with respect to Securities of any series
occurs and is continuing, the Trustee may in its discretion proceed to
protect and enforce its rights and the rights of the Holders of Securities
of such series by such appropriate judicial proceedings as the Trustee
shall deem most effectual to protect and enforce any such rights, whether
for the specific enforcement of any agreement in this Indenture or in aid
of the exercise of any power granted herein, or to secure any other proper
remedy, subject, however, to Section 5.8.
Section 5.4. Trustee May File Proofs of Claim. In case of any
judicial proceeding relative to the Company (or any Guarantor or any other
obligor upon the Securities), its property or its creditors (or of any
Guarantor or its creditors), the Trustee shall be entitled and empowered,
by intervention in such proceeding or otherwise, to take any and all
actions authorized under the Trust Indenture Act in order to have claims of
the Holders and the Trustee allowed in any such proceeding. In particular,
the Trustee shall be authorized to collect and receive any moneys or other
property payable or deliverable on any such claims and to distribute the
same; and any custodian, receiver, assignee, trustee, liquidator,
sequestrator or other similar official in any such judicial proceeding is
hereby authorized by each Holder to make such payments to the Trustee and,
in the event that the Trustee shall consent to the making of such payments
directly to the Holders, to pay to the Trustee any amount due it for the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee
under Section 6.7.
No provision of this Indenture shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any
Holder of a Security or interest coupon any plan of reorganization,
arrangement, adjustment or composition affecting the Securities or the
rights of any Holder of a Security or interest coupon thereof or to
authorize the Trustee to vote in respect of the claim of any Holder of a
Security or interest coupon in any such proceeding; provided, however, that
the Trustee may, on behalf of the Holders, vote for the election of a
trustee in bankruptcy or similar official and be a member of a creditors'
or other similar committee.
Section 5.5. Trustee May Enforce Claims Without Possession of
Securities. All rights of action and claims under this Indenture or the
Securities or any 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 an agreement or provision hereof which pursuant to Article 8
cannot be amended or modified without the consent of the Holder of each
Outstanding Security of such series affected. Upon any such waiver, such
Default shall cease to exist, and any Event of Default arising therefrom
shall be deemed to have been cured, for every purpose of this Indenture but
no such waiver shall extend to any subsequent or other default or impair
any right consequent thereon.
Section 5.8. Control by Majority. The Holders of not less than a
majority in aggregate principal amount of the Outstanding Securities of
each series affected (with each such series voting as a class) shall have
the right to direct the time, method and place of conducting any proceeding
for any remedy available to the Trustee or exercising any trust or power
conferred on it with respect to Securities of that series; provided,
however, that (i) the Trustee may refuse to follow any direction that
conflicts with any governmental rule or law or this Indenture, (ii) the
Trustee may refuse to follow any direction that is unduly prejudicial to
the rights of the Holders of Securities of such series not consenting, or
that would in the good faith judgment of the Trustee have a substantial
likelihood of involving the Trustee in personal liability without adequate
indemnity having been offered therefor and (iii) subject to Section 6.1,
the Trustee may take any other action deemed proper by the Trustee which is
not inconsistent with such direction.
Section 5.9. Limitation on Suits by Holders. No Holder of any
Security of any series or any interest coupons appertaining thereto shall
have any right to institute any proceeding, judicial or otherwise, with
respect to this Indenture, or for the appointment of a receiver or trustee,
or for any other remedy hereunder, unless:
(a) the Holder has previously given written notice to the Trustee
of a continuing Event of Default with respect to the Securities of
that series;
(b) the Holders of at least 25% in aggregate principal amount of
the Outstanding Securities of that series have made a written request
to the Trustee to institute proceedings in respect of such Event of
Default in its own name as Trustee hereunder;
(c) such Holder or Holders have offered to the Trustee indemnity
satisfactory to the Trustee against any loss, liability or expense to
be, or which may be, incurred by the Trustee in pursuing the remedy;
(d) the Trustee for 60 days after its receipt of such notice,
request and the offer of indemnity has failed to institute any such
proceedings; and
(e) during such 60-day period, the Holders of a majority in
aggregate principal amount of the Outstanding Securities of that
series have not given to the Trustee a direction inconsistent with
such written request.
No one or more Holders of Securities of a series shall have any
right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other
of such Holders, or to obtain or to seek to obtain priority or preference
over any other of such Holders or to enforce any right under this
Indenture, except in the manner herein provided and for the equal and
ratable benefit of all of such Holders.
Section 5.10. Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, but subject to
Section 9.2, each of the right of any Holder of a Security or interest
coupon to receive payment of principal of, premium, if any, and, subject to
Sections 3.5 and 3.7, interest on the Security, on or after the respective
due dates expressed in the Security (or, in case of redemption or a
required repurchase by the Company under the terms of the relevant
Securities, on the Redemption Dates or specified repurchase dates), the
right of any Holder of an interest coupon to receive payment of interest
due as provided in such interest coupon, or to bring suit for the
enforcement of any such payment on or after such respective dates, and the
right, if any, to convert or exchange such Security in accordance with
Article 14, is unconditional and shall not be impaired or affected without
the consent of such Holder.
Section 5.11. Application of Money Collected. If the Trustee
collects any money pursuant to this Article, it shall pay out the money in
the following order, at the date or dates fixed by the Trustee and, in case
of the distribution of such money on account of principal, premium, if any,
or interest, upon presentation of the Securities and interest coupons, if
any, and the notation thereon of the payment if only partially paid and
upon surrender thereof if fully paid:
First: to the Trustee for amounts due under Section 6.7;
Second: to Holders of Securities and interest coupons in respect
of which or for the benefit of which such money has been collected for
amounts due and unpaid on such Securities for principal of, premium,
if any, and interest, ratably, without preference or priority of any
kind, according to the amounts due and payable on such Securities for
principal, premium, if any, and interest, respectively; and
Third: the balance, if any, to the Company.
The Holders of each series of Securities denominated in ECU, any
other currency unit or a Foreign Currency and any matured interest coupons
relating thereto shall be entitled to receive a ratable portion of the
amount determined by the Trustee by converting the principal amount
Outstanding of such series of Securities and matured but unpaid interest on
such series of Securities in the currency in which such series of
Securities is denominated into Dollars at the Market Exchange Rate as of
the date of declaration of acceleration of Maturity of the Securities (or,
if the default consists of a failure to pay the principal of such
Securities on the Stated Maturity thereof, as of the Stated Maturity date).
The Trustee may fix a record date and payment date for any
payment to Holders pursuant to this Section 5.11. At least 15 days before
such record date, the Trustee shall mail to each Holder and the Company a
notice that states the record date, the payment date and the amount to be
paid.
Section 5.12. Restoration of Rights and Remedies. If the Trustee
or any Holder has instituted any proceeding to enforce any right or remedy
under this Indenture and such proceeding has been discontinued or abandoned
for any reason, or has been determined adversely to the Trustee or to such
Holder, then and in every such case, subject to any determination in such
proceeding, the Company, the Trustee and the Holders shall be restored
severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and the Holders shall
continue as though no such proceeding had been instituted.
Section 5.13. Rights and Remedies Cumulative. Except as
otherwise provided with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities in the last paragraph of Section 3.6,
no right or remedy herein conferred upon or reserved to the Trustee or the
Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and
in addition to every other right and remedy given hereunder or now or
hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not
prevent the concurrent assertion or employment of any other appropriate
right or remedy.
Section 5.14. Undertaking for Costs. In any suit for the
enforcement of any right or remedy under this Indenture, or in any suit
against the Trustee for any action taken, suffered or omitted by it as
Trustee, a court may require any party litigant in such suit to file an
undertaking to pay the costs of such suit, and may assess costs against any
such party litigant, in the manner and to the extent provided in the Trust
Indenture Act; provided, however, that neither this Section nor the Trust
Indenture Act shall be deemed to authorize any court to require such an
undertaking or to make such an assessment in any suit instituted by the
Company or any Guarantor, any Guarantor, the Trustee or any Holder, or
group of Holders, holding in the aggregate at least 10% in principal amount
of the Outstanding Securities of the relevant series or in any suit
instituted by any Holder for the enforcement of principal of, premium, if
any, or interest on any Security on or after the respective Stated
Maturities expressed in such Security (or, in the case of redemption or any
required repurchase by the Company, on or after the Redemption Date or
specified repurchase date).
Section 5.15. Waiver of Stay, Extension or Usury Laws. Each of
the Company and the Guarantors agrees (to the extent that it may lawfully
do so) that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay or extension
law or any usury or other law wherever enacted, now or at any time
hereafter in force, which would prohibit or forgive the Company from paying
all or any portion of the principal of, and premium, if any, or interest on
the Securities contemplated herein or in the Securities or which may affect
the agreements or the performance of this Indenture or prohibit or forgive
any Guarantor from performance under its 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
agrees that it will not hinder, delay or impede the execution of any power
herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE 6
THE TRUSTEE
Section 6.1. Certain Duties and Responsibilities. The duties and
responsibilities of the Trustee shall be as provided by the Trust Indenture
Act. Notwithstanding the foregoing, no provision of this Indenture shall
require the Trustee to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties hereunder, or
in the exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity
against such risk or liability is not reasonably assured to it. Whether or
not therein expressly so provided, every provision of this Indenture
relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of this
Section.
Section 6.2. Notice of Defaults. If a Default occurs hereunder
with respect to Securities of any series, the Trustee shall give the
Holders of Securities of such series notice of such Default as and to the
extent provided by the Trust Indenture Act; provided, however, that in the
case of any Default of the character specified in Section 5.1(d) with
respect to Securities of such series, no such notice to Holders shall be
given until at least 30 days after the occurrence thereof.
Section 6.3. Certain Rights of Trustee. Subject to the
provisions of Section 6.1:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or other
paper or document believed by it to be genuine and to have been signed
or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order,
and any resolution of the Board of Directors shall be sufficiently
evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior
to taking, suffering or omitting any action hereunder, the Trustee
(unless other evidence be herein specifically prescribed) may, in the
absence of bad faith on its part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the written advice
of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless
such Holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or other
paper or document, but the Trustee, in its discretion, may make such
further inquiry or investigation into such facts or matters as it may
see fit, and, if the Trustee shall determine to make such further
inquiry or investigation, it shall be entitled to examine the books,
records and premises of the Company, personally or by agent or
attorney;
(g) the Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through
agents or attorneys and the Trustee shall not be responsible for any
misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder; and
(h) except with respect to Section 9.1, the Trustee shall have no
duty to inquire as to the performance by the Company or any Guarantor
of the agreements set forth in Article 9 beyond its good faith review
of any certificates or other notices received by it from the Company
or any Guarantor.
Section 6.4. Not Responsible for Recitals or Issuance of
Securities. The recitals contained herein and in the Securities and in the
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 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, or (iii) any other indenture specified
in (A) a Board Resolution, (B) an action taken pursuant to a Board
Resolution and (subject to Section 3.3) set forth in an Officers'
Certificate or (C) one or more indentures supplemental hereto.
Section 6.9. Corporate Trustee Required; Eligibility. There
shall at all times be a Trustee hereunder which shall be a Person that is
eligible pursuant to the Trust Indenture Act to act as such, has a combined
capital and surplus of at least $25,000,000 and has its Corporate Trust
Office located in the Borough of Manhattan, The City of New York. If such
Person publishes reports of condition at least annually, pursuant to law or
to the requirements of its supervising or examining authority, then for the
purposes of this Section, the combined capital and surplus of such Person
shall be deemed to be its combined capital and surplus as set forth in its
most recent report of condition so published. If at any time the Trustee
shall cease to be eligible in accordance with the provisions of this
Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
Section 6.10. Resignation and Removal; Appointment of Successor.
No resignation or removal of the Trustee and no appointment of a successor
Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 6.11.
The Trustee may resign at any time with respect to the Securities
of one or more series by giving written notice thereof to the Company. If
the instrument of acceptance by a successor Trustee required by Section
6.11 shall not have been delivered to the Trustee within 30 days after the
giving of such notice of resignation, the resigning Trustee may petition
any court of competent jurisdiction for the appointment of a successor
Trustee with respect to the Securities of such series.
The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal
amount of the Outstanding Securities of such series, delivered to the
Trustee and to the Company.
If at any time:
(a) the Trustee shall fail to comply with Section 6.8 after
written request therefor by the Company or by any Holder who has been
a bona fide Holder of a Security for at least six months, or
(b) the Trustee shall cease to be eligible under Section 6.9 and
shall fail to resign after written request therefor by the Company or
by any such Holder, or
(c) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of
its property shall be appointed or any public officer shall take
charge or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation,
then, in any such case, (1) the Company by a Board Resolution may remove
the Trustee with respect to all Securities, or (2) subject to Section 5.14,
any Holder who has been a bona fide Holder of a Security for at least six
months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the removal of the Trustee
with respect to all Securities and the appointment of a successor Trustee
or Trustees.
If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause,
with respect to the Securities of one or more series, the Company, by a
Board Resolution, shall promptly appoint a successor Trustee or Trustees
with respect to the Securities of that or those series (it being understood
that any such successor Trustee may be appointed with respect to the
Securities of one or more or all of such series and that at any time there
shall be only one Trustee with respect to the Securities of any particular
series) and shall comply with the applicable requirements of Section 6.11.
If, within one year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee with respect to the
Securities of any series shall be appointed by Act of the Holders of a
majority in principal amount of the Outstanding Securities of such series
delivered to the Company and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of such appointment in
accordance with the applicable requirements of Section 6.11, become the
successor Trustee with respect to the Securities of such series and to that
extent supersede the successor Trustee appointed by the Company. If no
successor Trustee with respect to the Securities of any series shall have
been so appointed by the Company or the Holders and accepted appointment in
the manner required by Section 6.11, any Holder who has been a bona fide
Holder of a Security of such series for at least six months may, on behalf
of himself and all others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor Trustee with
respect to the Securities of such series. The Company shall give notice of
each resignation and each removal of the Trustee with respect to the
Securities of any series and each appointment of a successor Trustee with
respect to the Securities of any series to all Holders of Securities of
such series in the manner provided in Section 1.6. Each notice shall
include the name of the successor Trustee with respect to the Securities of
such series and the address of its Corporate Trust Office.
Section 6.11. Acceptance of Appointment by Successor. In case of
the appointment hereunder of a successor Trustee with respect to all
Securities, every such successor Trustee so appointed shall execute,
acknowledge and deliver to the Company, the Guarantors and to the retiring
Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective and
such successor Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of the
retiring Trustee; but, on the request of the Company or the successor
Trustee, such retiring Trustee shall, upon payment of its charges, execute
and deliver an instrument transferring to such successor Trustee all the
rights, powers and trusts of the retiring Trustee and shall duly assign,
transfer and deliver to such successor Trustee all property and money held
by such retiring Trustee hereunder.
In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company,
the Guarantors the retiring Trustee and each successor Trustee with respect
to the Securities of one or more series shall execute and deliver an
indenture supplemental hereto wherein each successor Trustee shall accept
such appointment and which (1) shall contain such provisions as shall be
necessary or desirable to transfer and confirm to, and to vest in, each
successor Trustee all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates, (2) if the retiring Trustee
is not retiring with respect to all Securities, shall contain such
provisions as shall be deemed necessary or desirable to confirm that all
the rights, powers, trusts and duties of the retiring Trustee with respect
to the Securities of that or those series as to which the retiring Trustee
is not retiring shall continue to be vested in the retiring Trustee, and
(3) shall add to or change any of the provisions of this Indenture as shall
be necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein
or in such supplemental indenture shall constitute such Trustees
co-trustees of the same trust and that each such Trustee shall be trustee
of a trust or trusts hereunder separate and apart from any trust or trusts
hereunder administered by any other such Trustee; and upon the execution
and delivery of such supplemental indenture the resignation or removal of
the retiring Trustee shall become effective to the extent provided therein
and each such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee with respect to the Securities of that or
those series to which the appointment of such successor Trustee relates;
but, on request of the Company, any Guarantor or any successor Trustee,
such retiring Trustee shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such retiring Trustee
hereunder with respect to the Securities of that or those series to which
the appointment of such successor Trustee relates.
Upon request of any such successor Trustee, the Company and the
Guarantors shall execute any and all instruments for more fully and
certainly vesting in and confirming to such successor Trustee all such
rights, powers and trusts referred to in the first or second preceding
paragraph, as the case may be.
No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
Section 6.12. Merger, Conversion, Consolidation or Succession to
Business. Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which the Trustee
shall be a party, or any corporation succeeding to all or substantially all
the corporate trust business of the Trustee, shall be the successor of the
Trustee hereunder, provided such corporation shall be otherwise qualified
and eligible under this Article, without the execution or filing of any
paper or any further act on the part of any of the parties hereto. In case
any Securities shall have been authenticated, but not delivered, by the
Trustee then in office, any successor by merger, conversion or
consolidation to such authenticating Trustee may adopt such authentication
and deliver the Securities so authenticated with the same effect as if such
successor Trustee had itself authenticated such Securities.
Section 6.13. Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the Company or any
Guarantor (or any other obligor upon the Securities or the 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 in its most recent report of condition so published. If at any
time an Authenticating Agent shall cease to be eligible in accordance with
the provisions of this Section, such Authenticating Agent shall resign
immediately in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged
or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any corporation succeeding to the
corporate agency or corporate trust business of an Authenticating Agent,
shall continue to be an Authenticating Agent, provided such corporation
shall be otherwise eligible under this Section, without the execution or
filing of any paper or any further act on the part of the Trustee or the
Authenticating Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Company. The Trustee may at any
time terminate the agency of an Authenticating Agent by giving written
notice thereof to such Authenticating Agent and to the Company. Upon
receiving such a notice of resignation or upon such a termination, or in
case at any time such Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, the Trustee may appoint a
successor Authenticating Agent which shall be acceptable to the Company and
shall give notice of such appointment in the manner provided in Section 1.6
to all Holders of Securities of the series with respect to which such
Authenticating Agent will serve. Any successor Authenticating Agent upon
acceptance of its appointment hereunder shall become vested with all the
rights, powers and duties of its predecessor hereunder, with like effect as
if originally named as an Authenticating Agent. No successor Authenticating
Agent shall be appointed unless eligible under the provisions of this
Section.
The Trustee agrees to pay to each Authenticating Agent from time
to time reasonable compensation for its services under this Section, and
the Trustee shall be entitled to be reimbursed for such payments, subject
to the provisions of Section 6.7.
If an appointment with respect to one or more series is made
pursuant to this Section, the Securities of such series may have endorsed
thereon, in addition to the Trustee's certificate of authentication, an
alternative certificate of authentication in the following form:
This is one of the Securities with the 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.
The Company (a) shall not, and shall not permit any Restricted Subsidiary
to, consolidate with or merge into any Person, in the case of a Restricted
Subsidiary, in a transaction in which such Restricted Subsidiary remains a
Restricted Subsidiary, unless such Restricted Subsidiary consolidates with
or merges into a Wholly Owned Restricted Subsidiary; (b) shall not permit
any Person other than a Wholly Owned Restricted Subsidiary to consolidate
with or merge into (i) the Company or (ii) any Restricted Subsidiary in a
transaction in which such Restricted Subsidiary remains a Restricted
Subsidiary; (c) shall not, directly or indirectly, in one or a series of
transactions, transfer, convey, sell, lease or otherwise dispose of all or
substantially all of the properties and assets of the Company and its
Subsidiaries on a consolidated basis; and (d) shall not, and shall not
permit any Restricted Subsidiary to, in one or a series of transactions,
acquire Capital Stock of or other ownership interests in any other Person
such that such other Person becomes a Restricted Subsidiary; unless in any
such transaction (or series) contemplated by Clause (a), (b), (c) or (d)
above:
(a) in case the Company shall consolidate with or merge into
another Person or shall directly or indirectly, in one or a series of
transactions, transfer, convey, sell, lease or otherwise dispose of
all or substantially all of its properties and assets as an entirety,
the Person formed by such consolidation or into which the Company is
merged or the Person which acquires by transfer, conveyance, sale,
lease or other disposition all or substantially all of the properties
and assets of the Company and its Subsidiaries on a consolidated basis
(for purposes of this Article 7, a "Successor Company") shall be a
corporation, partnership, limited liability company or trust, shall be
organized and validly existing under the laws of the United States of
America, any State thereof or the District of Columbia and shall
expressly assume by an indenture supplemental hereto executed and
delivered to the Trustee, in form satisfactory to the Trustee, the due
and punctual payment of the principal of, premium, if any, and
interest on all the Securities and the performance of every agreement
of this Indenture on the part of the Company to be performed or
observed;
(b) immediately after giving effect to such consolidation,
merger, sale, transfer, lease or other disposition, no Default or
Event of Default shall have occurred and be continuing; and
(c) with respect to any series of Securities, the Company
satisfies such other conditions, if any, established with respect to
such series of Securities pursuant to and in accordance with Section
3.1.
The Company shall deliver to the Trustee prior to the proposed
consolidation, merger, sale, transfer, lease or other disposition an
Officers' Certificate to the foregoing effect and an Opinion of Counsel
stating that the proposed consolidation, merger, sale, transfer, lease or
other disposition and such supplemental indenture comply with this
Indenture and that all conditions precedent to the consummation of such
transaction under this Section 7.1 have been met.
Section 7.2. Successor Substituted. Upon any consolidation of the
Company with, or merger of the Company into, any other Person or any
transfer, conveyance, sale, lease or other disposition of all or
substantially all of the properties and assets of the Company and its
Subsidiaries on a consolidated basis, in each case in accordance with
Section 7.1, the Successor Company shall succeed to, and be substituted
for, and may exercise every right and power of, the Company under this
Indenture and under the Securities and any interest coupons appertaining
thereto with the same effect as if such Successor Company had been named as
the Company herein, and thereafter, except in the case of a lease, the
predecessor Person (if still in existence) shall be relieved of all
obligations and agreements under this Indenture and the Securities and any
interest coupons appertaining thereto.
ARTICLE 8
SUPPLEMENTAL INDENTURES
Section 8.1. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, the Guarantors and the
Trustee, at any time and from time to time, may enter into indentures
supplemental hereto, in form reasonably satisfactory to the Trustee, for
any of the following purposes:
(a) to evidence the succession of another Person to the Company
and the assumption by any such successor of the agreements and
obligations of the Company or any Guarantor herein and in the
Securities and any interest coupons appertaining thereto; or
(b) to add to the agreements of the Company for the benefit of
the Holders of all or any series of Securities (and if such agreements
are to be for the benefit of less than all series of Securities,
stating that such agreements are expressly being included solely for
the benefit of such series) or to surrender any right or power herein
conferred upon the Company; or
(c) to add any additional Events of Default with respect to all
or any series of Securities; or
(d) to add to or change any of the provisions of this Indenture
to such extent as shall be necessary to facilitate the issuance or
administration of Bearer Securities (including, without limitation, to
provide that Bearer Securities may be registrable as to principal
only) or to facilitate the issuance or administration of Global
Securities; or
(e) to change or eliminate any of the provisions of this
Indenture in respect of one or more series of Securities, provided
that any such change or elimination shall become effective only when
there is no Security Outstanding of any series created prior to the
execution of such supplemental indenture which is entitled to the
benefit of such provision; or
(f) to secure any series of Securities; or
(g) to establish the form or terms of Securities of any series as
permitted by Sections 2.1 and 3.1; or
(h) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one
or more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee,
pursuant to the requirements of Section 6.11; or
(i) if allowed without penalty under applicable laws and
regulations, to permit payment in the United States (including any of
the States thereof and the District of Columbia), its territories, its
possessions and other areas subject to its jurisdiction of principal
of, premium, if any, or interest, if any, on Bearer Securities or
interest coupons, if any; or
(j) to cure any ambiguity, to correct or supplement any provision
herein which may be inconsistent with any other provision herein or to
make any other provisions with respect to matters or questions arising
under this Indenture which shall not be inconsistent with the
provisions of this Indenture, provided such action shall not adversely
affect in any material respect the interests of the Holders of
Securities of any series; or
(k) to make provision not adverse to the Holders of Outstanding
Securities of any series with respect to any conversion or exchange
rights of Holders pursuant to the requirements of Article 14,
including providing for the conversion or exchange of the Securities
into any Equity Securities of Allied; or
(l) to modify, eliminate or add to the provisions of this
Indenture to such extent as shall be necessary to effect the
qualification of this Indenture under the Trust Indenture Act or under
any similar federal statute subsequently enacted, and to add to this
Indenture such other provisions as may be expressly required under the
Trust Indenture Act.
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 any required repurchase by the Company, or
change the manner in which the amount of any principal thereof or
premium, if any, or interest thereon is determined or reduce the
amount of the principal of any Original Issue Discount Security or
Indexed Security that would be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 5.2, or
change the currency or currency unit in which any Securities or any
premium or the interest thereon is payable, or impair the right to
institute suit for the enforcement of any such payment on or after the
Stated Maturity thereof (or, in the case of redemption or any required
repurchase of Securities by the Company, on or after the Redemption
Date or specified repurchase date);
(b) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for
any such supplemental indenture, or the consent of whose Holders is
required for any waiver (of compliance with certain provisions of this
Indenture or certain defaults hereunder and their consequences)
provided for in this Indenture, or reduce the requirements of Section
13.4 for quorum or voting;
(c) change any obligation of the Company to maintain an office or
agency in the places and for the purposes specified in Section 9.2;
(d) make any change that adversely affects any right to convert
or exchange any Security to which the provisions of Article 14 are
applicable or, except as provided in this Indenture, decrease the
conversion or exchange rate or increase the conversion or exchange
price of any such Security; 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
agreement or other provision of this Indenture which has expressly been
included solely for the benefit of one or more particular series of
Securities, or which modifies the rights of the Holders of Securities of
such series with respect to such agreement or other provision, shall be
deemed not to affect the rights under this Indenture of the Holders of
Securities of any other series.
It is not necessary under this Section 8.2 for the Holders to
consent to the particular form of any proposed supplemental indenture, but
it is sufficient if they consent to the substance thereof.
Section 8.3. Compliance with Trust Indenture Act. Every
amendment to this Indenture or the Securities of one or more series shall
be set forth in a supplemental indenture that complies with the Trust
Indenture Act as then in effect.
Section 8.4. Execution of Supplemental Indentures. In executing,
or accepting the additional trusts created by, any supplemental indenture
permitted by this Article or the modification thereby of the trusts created
by this Indenture, the Trustee shall be entitled to receive, and (subject
to Section 6.1) shall be fully protected in relying upon, an Officers'
Certificate and an Opinion of Counsel stating that the execution of such
supplemental indenture is authorized or permitted by this Indenture. The
Trustee may, but shall not be obligated to, enter into any such
supplemental indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
Section 8.5. Effect of Supplemental Indentures. Upon the
execution of any supplemental indenture under this Article, this Indenture
shall be modified in accordance therewith, and such supplemental indenture
shall form a part of this Indenture for all purposes; and every Holder of
Securities theretofore or thereafter authenticated and delivered hereunder
and of any interest coupon appertaining thereto shall be bound thereby.
Section 8.6. Reference in Securities to Supplemental Indentures.
Securities, including any interest coupons, of any series authenticated and
delivered after the execution of any supplemental indenture pursuant to
this Article may, and shall if required by the Trustee, bear a notation in
form approved by the Trustee as to any matter provided for in such
supplemental indenture. If the Company shall so determine, new Securities
including any interest coupons of any series so modified as to conform, in
the opinion of the Company, to any such supplemental indenture may be
prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities including any interest
coupons of such series.
Section 8.7. Notice of Supplemental Indentures. Promptly after
the execution by the Company and the Trustee of any supplemental indenture
pursuant to the provisions of Section 8.2, the Company shall give notice
thereof to the Holders of each Outstanding Security affected, in the manner
provided for in Section 1.6, setting forth in general terms the substance
of such supplemental indenture. Any failure of the Company to give such
notice, or any defect therein, shall not, however, in any way impair or
affect the validity of any such supplemental indenture.
ARTICLE 9
AGREEMENTS
Section 9.1. Payment of Principal, Premium, if any, and Interest.
The Company agrees for the benefit of the Holders of each series of
Securities that it will duly and punctually pay the principal of, premium,
if any, and interest, together with additional amounts, if any, on the
Securities of that series in accordance with the terms of the Securities of
such series, any interest coupons appertaining thereto and this Indenture;
provided, however, that amounts properly withheld under the Internal
Revenue Code of 1986, as amended, by any Person from a payment to any
Holder of Securities, after having requested such Holder to provide
applicable information that would allow such Person to make such payment
without withholding, shall be considered as having been paid by the Company
to such Holder for purposes of this Indenture. An installment of principal,
premium, if any, or interest shall be considered paid on the date it is due
if there shall have been sent to the Trustee or Paying Agent by wire
transfer, received by no later than the close of business on such due date,
or if the Trustee or Paying Agent otherwise holds, on that date money
designated for and sufficient to pay the installment.
Section 9.2. Maintenance of Office or Agency. Unless otherwise
specified as contemplated by Section 3.1, if Securities of a series are
issued as Registered Securities, the Company will maintain in each Place of
Payment for that series of Securities an office or agency where Securities
of that series may be presented or surrendered for payment, where
Securities of that series may be surrendered for registration of transfer
or exchange or conversion and where notices and demands to or upon the
Company or any Guarantor in respect of the Securities or the 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 interest, as the case may be, at all offices or agencies outside
the United States maintained for the purpose by the Company in accordance
with this Indenture is illegal or effectively precluded by exchange
controls or other similar restrictions.
Unless otherwise specified as contemplated by Section 3.1, the
Company may also from time to time designate one or more other offices or
agencies where the Securities (including any interest coupons, if any) of
one or more series may be presented or surrendered for any or all such
purposes and may from time to time rescind such designations; provided,
however, that no such designation or rescission shall in any manner relieve
the Company of its obligation to maintain an office or agency in each Place
of Payment for Securities (including any interest coupons, if any) of any
series for such purposes. The Company will give prompt written notice to
the Trustee of any such designation or rescission and of any change in the
location of any such other office or agency.
Unless otherwise specified as contemplated by Section 3.1, the
Trustee shall initially serve as Paying Agent.
Section 9.3. Money for Securities Payments to Be Held in Trust;
Unclaimed Money. If the Company shall at any time act as its own Paying
Agent with respect to any series of Securities and any interest coupons
appertaining thereto, it will, on or before each due date of the principal
of, premium, if any, or interest on any of the Securities of that series,
segregate and hold in trust for the benefit of the Persons entitled thereto
a sum sufficient to pay the principal, premium, if any, or interest so
becoming due until such sums shall be paid to such Persons or otherwise
disposed of as herein provided and will promptly notify the Trustee in
writing of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities and any interest coupons appertaining thereto, it
will, prior to each due date of the principal of or any premium or interest
on any Securities of that series, deposit with a Paying Agent a sum
sufficient to pay such amount, such sum to be held as provided by the Trust
Indenture Act, and (unless such Paying Agent is the Trustee) the Company
will promptly notify the Trustee of its action or failure so to act.
The Company will cause each Paying Agent for any series of
Securities other than the Trustee to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee, subject
to the provisions of this Section, that such Paying Agent will:
(a) comply with the provisions of the Trust Indenture Act
applicable to it as a Paying Agent;
(b) hold all sums held by it for the payment of the principal of,
premium, if any, or interest on Securities of that series in trust for
the benefit of the Persons entitled thereto until such sums shall be
paid to such Persons or otherwise disposed of as herein provided;
(c) give the Trustee notice of any default by the Company (or any
other obligor upon the Securities of that series) in the making of any
payment of principal, premium, if any, or interest on the Securities
of that series; and
(d) at any time during the continuance of any such default, upon
the written request of the Trustee, forthwith pay to the Trustee all
sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay,
or by Company Order direct any Paying Agent to pay, to the Trustee all sums
held in trust by the Company or such Paying Agent, such sums to be held by
the Trustee upon the terms set forth in this Indenture; and, upon such
payment by any Paying Agent to the Trustee, such Paying Agent shall be
released from all further liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then
held by the Company, in trust for the payment of any principal of or
premium or interest on any Security of any series and remaining unclaimed
for two years after such principal, premium, if any, or interest has become
due and payable shall be paid to the Company on Company Request, or (if
then held by the Company) shall be discharged from such trust; and the
Holder of such Security and interest coupon, if any, shall thereafter, as
an unsecured general creditor, look only to the Company for payment
thereof, and all liability of the Trustee or such Paying Agent with respect
to such trust money, and all liability of the Company as trustee thereof,
shall thereupon cease; provided, however, that the Trustee or such Paying
Agent, before being required to make any such repayment, may in the name
and at the expense of the Company cause to be published once, in an
Authorized Newspaper in each Place of Payment with respect to such series,
or cause to be mailed to such Holder, notice that such money remains
unclaimed and that, after a date specified therein, which shall not be less
than 30 days from the date of such publication, any unclaimed balance of
such money then remaining will be repaid to the Company.
Section 9.4. Corporate Existence. Subject to Article 7, the
Company will at all times do or cause to be done all things necessary to
preserve and keep in full force and effect its corporate existence and its
rights and franchises; provided that nothing in this Section 9.4 shall
prevent the abandonment or termination of any right or franchise of the
Company if it shall be determined that such abandonment or termination is
desirable in the conduct of the business of the Company.
Section 9.5. Annual Review Certificate. The Company agrees to
deliver to the Trustee, within 90 days after the end of each fiscal year of
the Company, a certificate from the principal executive officer, principal
financial officer or principal accounting officer of the Company stating
that a review of the activities of the Company during such year and of
performance under this Indenture has been made under his or her supervision
and to the best of his or her knowledge, based on such review, each of the
Company and the Guarantors has fulfilled all of its obligations under this
Indenture throughout such year, or, if there has been a default in the
fulfillment of any such obligation, specifying each such default known to
him or her and the nature and status thereof. For purposes of this Section
9.5, such compliance shall be determined without regard to any period of
grace or requirement of notice provided under this Indenture.
The Company shall deliver to the Trustee, as soon as possible and
in any event within 30 days after the Company becomes aware of the
occurrence of an Event of Default or an event which, with notice or the
lapse of time or both, would constitute an Event of Default, an Officers'
Certificate setting forth the details of such Event of Default or Default,
and the action which the Company proposes to take with respect thereto.
Section 9.6. Maintenance of Properties. The Company will cause
all properties used or useful in the conduct of its business or the
business of any Subsidiary to be maintained and kept in good condition,
repair and working order, normal wear and tear excepted, and supplied with
all necessary equipment and will cause to be made all necessary repairs,
renewals, replacements, betterments and improvements thereof, all as in the
judgment of the Company may be necessary so that the business carried on in
connection therewith may be properly and advantageously conducted at all
times; provided, however, that nothing in this Section 9.6 shall prevent
the Company from discontinuing the operation or maintenance of any of such
properties, or disposing of any of them, if such discontinuance or
disposition is, in the judgment of the Company, desirable in the conduct of
its business or the business of any Subsidiary.
Section 9.7. Payments of Taxes and Other Claims. The Company
will pay or discharge or cause to be paid or discharged, before the same
shall become delinquent, (1) all taxes, assessments and governmental
charges levied or imposed upon the Company or any Subsidiary or upon the
income, profits or property of the Company or any Subsidiary, and (2) all
lawful claims for labor, materials and supplies which, if unpaid, might by
law become a material lien upon the property of the Company or any
Subsidiary; provided, however, that the Company shall not be required to
pay or discharge or cause to be paid or discharged any such tax,
assessment, charge or claim whose amount, applicability or validity is
being contested in good faith by appropriate proceedings.
Section 9.8. Waiver of Certain Agreements. Except as otherwise
specified as contemplated by Section 3.1 for Securities of such series, the
Company or any Guarantor may, with respect to the Securities of any series,
omit in any particular instance to comply with any term, provision or
condition set forth in any agreement provided pursuant to Section
3.1(b)(15), 8.1(b) or 8.1(g) for the benefit of the Holders of such series
if before the time for such compliance the Holders of at least a majority
in principal amount of the Outstanding Securities of such series shall, by
act of such Holders in accordance with Section 1.4, either waive such
compliance in such instance or generally waive compliance with such term,
provision or condition, but no such waiver shall extend to or affect such
term, provision or condition except to the extent so expressly waived, and,
until such waiver shall become effective, the obligations of the Company
and each of the Guarantors and the duties of the Trustee in respect of any
such term, provision or condition shall remain in full force and effect.
ARTICLE 10
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 10.1. Company to Furnish Trustee Names and Addresses of
Holders. The Company will furnish or cause to be furnished to the Trustee:
(a) semi-annually, not more than 15 days after each Regular
Record Date for any series, a list, in such form as the Trustee may
reasonably require, of the names and addresses of the Holders of Registered
Securities of such series as of such Regular Record Date; and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a list
of similar form and content for any or all series as of a date not more
than 15 days prior to the time such list is furnished;
excluding from any such list names and addresses possessed by the Trustee
in its capacity as Registrar.
Section 10.2. Preservation of Information, Communications to
Holders. (a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders of Registered
Securities contained in the most recent list furnished to the Trustee as
provided in Section 10.1 and the names and addresses of Holders of
Registered Securities received by the Trustee in its capacity as Registrar.
The Trustee may destroy any list furnished to it as provided in Section
10.1 upon receipt of a new list so furnished.
(b) The rights of Holders of Securities to communicate with other
Holders with respect to their rights under this Indenture or under the
Securities, and the corresponding rights and privileges of the Trustee,
shall be as provided in the Trust Indenture Act.
(c) Every Holder of Securities and interest coupons appertaining
thereto, by receiving and holding the same, agrees with the Company and the
Trustee that neither the Company, the Guarantors nor the Trustee nor any
agent of any of them shall be held accountable by reason of the disclosure
of information as to the names and addresses of the Holders of Securities
made pursuant to the Trust Indenture Act.
Section 10.3. Reports by Trustee. (a) The Trustee shall transmit
to Holders of Securities such reports concerning the Trustee and its
actions under this Indenture as may be required pursuant to the Trust
Indenture Act, at the times and in the manner provided pursuant thereto.
(b) Reports so required to be transmitted at stated intervals of
not more than 12 months shall be transmitted no later than July 15 in each
calendar year, commencing with the first July 15 after the first issuance
of Securities under this Indenture.
(c) A copy of each such report shall, at the time of such
transmission to Holders of Securities, be filed by the Trustee with each
stock exchange upon which the Securities of any series may then be listed
and also with the Commission. The Company will notify the Trustee whenever
the Securities of any series are listed on any stock exchange.
Section 10.4. Reports by the Company and the Guarantors. The
Company and each of the Guarantors shall file with the Trustee and the
Commission, and transmit to the Holders, such information, documents and
other reports, and such summaries thereof, as may be required pursuant to
the Trust Indenture Act at the times and in the manner provided pursuant to
such Act; provided that any such information, documents or reports required
to be filed with the Commission pursuant to Section 13 or 15(d) of the
Exchange Act shall be filed with the Trustee within 15 days after the same
is so required to be filed with the Commission. Notwithstanding anything
contrary herein, the Trustee shall have no duty to review such documents
for purposes of determining compliance with any provisions of this
Indenture.
ARTICLE 11
REDEMPTION
Section 11.1. Applicability of Article. Securities (including
interest coupons, if any) of any series which are redeemable before their
Stated Maturity shall be redeemable in accordance with their terms and
(except as otherwise specified as contemplated by Section 3.1 for
Securities of any series) in accordance with this Article.
Section 11.2. Election to Redeem; Notice to Trustee. The
election of the Company to redeem any Securities, including interest
coupons, if any, that, at the time of such election, may be redeemed at the
option of the Company, shall be evidenced by a Board Resolution. In the
case of any such redemption at the election of the Company of less than all
the Securities or interest coupons, if any, of any series, the Company
shall, at least 45 days prior to the Redemption Date fixed by the Company
(unless a shorter notice shall be satisfactory to the Trustee), notify the
Trustee of such Redemption Date, of the principal amount of Securities of
such series to be redeemed and, if applicable, of the tenor of the
Securities to be redeemed. In the case of any redemption of Securities (i)
prior to the expiration of any restriction on such redemption provided in
the terms of such Securities or elsewhere in this Indenture or (ii)
pursuant to an election of the Company which is subject to a condition
specified in the terms of such Securities, the Company shall furnish the
Trustee with an Officers' Certificate evidencing compliance with such
restriction or condition.
Section 11.3. Selection of Securities to Be Redeemed. Unless
otherwise specified as contemplated by Section 3.1, if less than all the
Securities (including interest coupons, if any) of a series with the same
terms are to be redeemed, the Trustee, not more than 60 days prior to the
Redemption Date, shall select the Securities of the series to be redeemed
in such manner as the Trustee shall deem fair and appropriate. The Trustee
shall make the selection from Securities of the series that are Outstanding
and that have not previously been called for redemption and may provide for
the selection for redemption of portions (equal to the minimum authorized
denomination for Securities, including interest coupons, if any, of that
series or any integral multiple thereof) of the principal amount of
Securities, including interest coupons, if any, of such series of a
denomination larger than the minimum authorized denomination for Securities
of that series, provided, that the unredeemed portion of the principal
amount of any Security shall be in an authorized denomination (which shall
not be less than the minimum authorized denomination) for such Security.
The Trustee shall promptly notify the Company in writing of the Securities
selected by the Trustee for redemption and, in the case of any Securities
selected for partial redemption, the principal amount thereof to be
redeemed. If the Company shall so direct, Securities registered in the name
of the Company, any Guarantor, any Affiliate or any Subsidiary of the
Company or any Guarantor shall not be included in the Securities selected
for redemption.
For purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities
(including interest coupons, if any) shall relate, in the case of any
Securities (including interest coupons, if any) redeemed or to be redeemed
only in part, to the portion of the principal amount of such Securities
(including interest coupons, if any) which has been or is to be redeemed.
If any Security that is convertible or exchangeable is selected
for partial redemption and is converted or exchanged in part before
termination of the conversion or exchange right with respect to the portion
of the Security so selected, the converted or exchanged portion of such
Security shall be deemed (so far as applicable) to be the portion selected
for redemption. Securities which have been converted or exchanged during a
selection of Securities to be redeemed shall be treated by the Trustee as
Outstanding for the purposes of such selection.
Section 11.4. Notice of Redemption. Unless otherwise specified
as contemplated by Section 3.1, notice of redemption shall be given in the
manner provided in Section 1.6 not less than 30 days nor more than 60 days
prior to the Redemption Date to the Holders of the Securities to be
redeemed.
All notices of redemption shall state:
(a) the Redemption Date;
(b) the Redemption Price;
(c) if less than all the Outstanding Securities of a series are
to be redeemed, the identification (and, in the case of partial
redemption, the principal amounts) of the particular Security or
Securities to be redeemed;
(d) the Place or Places of Payment where such Securities,
together in the case of Bearer Securities with all interest coupons
appertaining thereto, if any, maturing on or after the Redemption
Date, are to be surrendered for payment of the Redemption Price;
(e) that Securities of the series called for redemption and all
unmatured interest coupons, if any, appertaining thereto must be
surrendered to the Paying Agent to collect the Redemption Price;
(f) that, on the Redemption Date, the Redemption Price will
become due and payable upon each such Security, or the portion
thereof, to be redeemed and, if applicable, that interest thereon will
cease to accrue on and after said date;
(g) that the redemption is from a sinking fund, if such is the
case;
(h) that, unless otherwise specified in such notice, Bearer
Securities of any series, if any, surrendered for redemption must be
accompanied by all interest coupons maturing subsequent to the
Redemption Date or the amount of any such missing interest coupon or
interest coupons will be deducted from the Redemption Price, unless
security or indemnity satisfactory to the Company, the Trustee and any
Paying Agent is furnished;
(i) the CUSIP number, if any, of the Securities;
(j) if applicable, the conversion or exchange price, the date on
which the right to convert or exchange the Securities (or portions
thereof to be redeemed) will terminate and the place or places where
such Securities may be surrendered for conversion or exchange; and
(k) the procedures that a Holder must follow to surrender the
Securities so to be redeemed.
Notice of redemption of Securities to be redeemed shall be given by the
Company or, at the Company's request, by the Trustee in the name and at the
expense of the Company.
Section 11.5. Deposit of Redemption Price. On or prior to any
Redemption Date, the Company shall deposit with the Trustee or with a
Paying Agent (or, if the Company is acting as its own Paying Agent,
segregate and hold in trust as provided in Section 9.3) an amount of money
in the currency or currencies (including currency unit or units) in which
the Securities of such series are payable (except as otherwise specified
pursuant to Section 3.1 for the Securities of such series) sufficient to
pay on the Redemption Date the Redemption Price of, and (unless the
Redemption Date shall be an Interest Payment Date) interest accrued to the
Redemption Date on, all Securities or portions thereof which are to be
redeemed on that date.
Unless any Security by its terms prohibits any redemption
obligation from being satisfied by delivering and crediting Securities
(including Securities redeemed otherwise than through a sinking fund), the
Company may deliver such Securities to the Trustee for crediting of an
amount equal to the then applicable Redemption Price for such Securities
against such payment obligation in accordance with the terms of such
Securities and this Indenture.
Section 11.6. Securities Payable on Redemption Date. Notice of
redemption having been given as aforesaid, the Securities so to be redeemed
shall, on the Redemption Date, become due and payable at the Redemption
Price therein specified, and from and after such date (unless the Company
shall default in the payment of the Redemption Price and accrued interest)
such Securities shall cease to bear interest and the interest coupons for
any such interest appertaining to any Bearer Security so to be redeemed,
except to the extent provided below, shall be void. Except as provided in
the next succeeding paragraph, upon surrender of any such Security,
including interest coupons, if any, for redemption in accordance with said
notice, such Security shall be paid by the Company at the Redemption Price,
together with accrued interest to the Redemption Date; provided, however,
that installments of interest on Bearer Securities whose Stated Maturity is
on or prior to the Redemption Date shall be payable only at an office or
agency located outside the United States and its possessions (except as
otherwise provided in Section 9.2) and, unless otherwise specified as
contemplated by Section 3.1, only upon presentation and surrender of
interest coupons for such interest; and provided further, that, unless
otherwise specified as contemplated by Section 3.1, installments of
interest on Registered Securities that are due and payable on Interest
Payment Dates that are on or prior to the Redemption Date shall be payable
to the Holders of such Securities, or one or more Predecessor Securities,
registered as such at the close of business on the relevant Regular Record
Dates according to their terms and the provisions of Section 3.7.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant interest coupons maturing after the
Redemption Date, such Bearer Security may be paid after deducting from the
Redemption Price an amount equal to the face amount of all such missing
interest coupons, or the surrender of such missing interest coupon or
interest coupons may be waived by the Company and the Trustee if there be
furnished to them such security or indemnity as they may require to save
each of them and any Paying Agent harmless. If thereafter the Holder of
such Bearer Security shall surrender to the Trustee or any Paying Agent any
such missing interest coupon in respect of which a deduction shall have
been made from the Redemption Price, such Holder shall be entitled to
receive the amount so deducted; provided, however, that interest
represented by interest coupons shall be payable only at an office or
agency located outside of the United States (except as otherwise provided
pursuant to Section 9.2) and, unless otherwise specified as contemplated by
Section 3.1, only upon presentation and surrender of those interest
coupons.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal and premium, if any, shall,
until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Security.
Section 11.7. Securities Redeemed in Part. Upon surrender of a
Security that is redeemed in part at any Place of Payment therefor (with,
if the Company or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company and the Trustee
duly executed by, the Holder thereof or his or her attorney duly authorized
in writing), the Company shall execute and the Trustee shall authenticate
and deliver to the Holder of that Security, without service charge, a new
Security or Securities (each with a Senior Guarantee of each Guarantor
executed by each such Guarantor and endorsed thereon) of the same series,
having the same form, terms and Stated Maturity, in any authorized
denomination equal in aggregate principal amount to the unredeemed portion
of the principal amount of the Security surrendered.
ARTICLE 12
SINKING FUNDS
Section 12.1. Applicability of Article. The provisions of this
Article shall be applicable to any sinking fund for the retirement of
Securities of a series except as otherwise specified as contemplated by
Section 3.1 for Securities of such series.
The minimum amount of any sinking fund payment provided for by
the terms of Securities of any series is herein referred to as a "mandatory
sinking fund payment," and any payment in excess of such minimum amount
provided for by the terms of Securities of any series is herein referred to
as an "optional sinking fund payment." If provided for by the terms of
Securities of any series, the cash amount of any sinking fund payment may
be subject to reduction as provided in Section 12.2. Each sinking fund
payment shall be applied to the redemption of Securities of any series as
provided for by the terms of Securities of such series.
Section 12.2. Satisfaction of Sinking Fund Payments with
Securities. The Company (i) may deliver Outstanding Securities of a series
(other than any previously called for redemption) together, in the case of
Bearer Securities of such series, with all unmatured interest coupons
appertaining thereto and (ii) may apply as a credit Securities of a series
which have been (x) redeemed either at the election of the Company pursuant
to the terms of such Securities or through the application of permitted
optional sinking fund payments pursuant to the terms of such Securities,
(y) converted or exchanged pursuant to Article 14 or (z) previously
delivered to the Trustee and cancelled without reissuance pursuant to
Section 3.9, in each case in satisfaction of all or any part of any sinking
fund payment with respect to the Securities of such series required to be
made pursuant to the terms of such Securities as provided for by the terms
of such series; provided that such Securities have not been previously so
credited. Such Securities shall be received and credited for such purpose
by the Trustee at the Redemption Price specified in such Securities for
redemption through operation of the sinking fund and the amount of such
sinking fund payment shall be reduced accordingly.
Section 12.3. Redemption of Securities for Sinking Fund. Not
less than 45 days prior to each sinking fund payment date for any series of
Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing sinking fund payment
for that series pursuant to the terms of that series, the portion thereof,
if any, which is to be satisfied by payment of cash and the portion
thereof, if any, which is to be satisfied by delivering and crediting
Securities of that series pursuant to Section 12.2 and stating the basis
for such credit and that such Securities have not been previously so
credited, and will also deliver to the Trustee any Securities to be so
delivered. Not less than 30 days before each such sinking fund payment date
the Trustee shall select the Securities to be redeemed upon such sinking
fund payment date in the manner specified in Section 11.3 and cause notice
of the redemption thereof to be given in the name of and at the expense of
the Company in the manner provided in Section 11.4. Such notice having been
duly given, the redemption of such Securities shall be made upon the terms
and in the manner stated in Sections 11.6 and 11.7.
ARTICLE 13
MEETINGS OF HOLDERS OF SECURITIES
Section 13.1. Purposes for Which Meetings May Be Called. A
meeting of Holders of Securities of any series may be called at any time
and from time to time pursuant to this Article to make, give or take any
request, demand, authorization, direction, notice, consent, election,
waiver or other action provided by this Indenture to be made, given or
taken by Holders of Securities of such series.
Section 13.2. Call, Notice and Place of Meetings. (a) The
Trustee may at any time call a meeting of Holders of Securities of any
series for any purpose specified in Section 13.1, to be held at such time
and at such place in The City of New York or in such other place as may be
acceptable to the Company. Notice of every meeting of Holders of
Securities, setting forth the time and the place of such meeting and in
general terms the action proposed to be taken at such meeting, shall be
given, in the manner provided in Section 1.6, not less than 20 nor more
than 180 days prior to the date fixed for the meeting.
(b) In case at any time the Company, pursuant to a Board
Resolution, shall have requested the Trustee to call a meeting of the
Holders of Securities of any series for any purpose specified in Section
13.1, by written request setting forth in reasonable detail the action
proposed to be taken at the meeting, and the Trustee shall not have made
the first publication of the notice of such meeting within 20 days after
receipt of such request or shall not thereafter proceed to cause the
meeting to be held as provided herein, then the Company may determine the
time and the place in The City of New York or such other place as may be
acceptable to the Company for such meeting and may call such meeting for
such purposes by giving notice thereof as provided in paragraph (a) of this
Section 13.2.
Section 13.3. Persons Entitled to Vote at Meetings. To be
entitled to vote at any meeting of Holders of Securities of any series, a
Person shall be (a) a Holder of one or more Outstanding Securities of such
series, or (b) a Person appointed by an instrument in writing as proxy for
a Holder or Holders of one or more Outstanding Securities of such series by
such Holder or Holders. The only Persons who shall be entitled to be
present or to speak at any meeting of Holders shall be the Persons entitled
to vote at such meeting and their counsel, any representatives of the
Trustee and its counsel and any representatives of the Company and its
counsel.
Section 13.4. Quorum; Action. The Persons entitled to vote a
majority in principal amount of the Outstanding Securities of a series
shall constitute a quorum for a meeting of Holders of Securities of such
series; provided, however, that if any action is to be taken at such
meeting with respect to a consent or waiver which this Indenture expressly
provides may be given by the Holders of not less than a specified
percentage in principal amount of the Outstanding Securities of a series,
the Persons entitled to vote such specified percentage in principal amount
of the Outstanding Securities of such series shall constitute a quorum. In
the absence of a quorum within 30 minutes after the time appointed for any
such meeting, the meeting may be adjourned for a period of not less than 10
days as determined by the chairman of the meeting prior to the adjournment
of such meeting. In the absence of a quorum at the reconvening of any such
adjourned meeting, such adjourned meeting may be further adjourned for a
period of not less than 10 days; at the reconvening of any meeting
adjourned or further adjourned for lack of a quorum, the persons entitled
to vote 25% in aggregate principal amount of the then Outstanding
Securities of the relevant series shall constitute a quorum for the taking
of any action set forth in the notice of the original meeting. Notice of
the reconvening of any adjourned meeting shall be given as provided in
Section 13.2(b), except that such notice need be given only once not less
than five days prior to the date on which the meeting is scheduled to be
reconvened.
Except as limited by the proviso to Section 8.2, any resolution
presented to a meeting or adjourned meeting duly reconvened at which a
quorum is present as aforesaid may be adopted by the affirmative vote of
the Holders of a majority in principal amount of the Outstanding Securities
of that series, provided, however, that, except as limited by the proviso
to Section 8.2, any resolution with respect to any request, demand,
authorization, direction, notice, consent, waiver or other action which
this Indenture expressly provides may be made, given or taken by the
Holders of a specified percentage, which is less than a majority, in
principal amount of the Outstanding Securities of a series may be adopted
at a meeting or an adjourned meeting duly reconvened and at which a quorum
is present as aforesaid by the affirmative vote of the Holders of such
specified percentage in principal amount of the Outstanding Securities of
that series.
Any resolution passed or decision taken at any meeting of Holders
of Securities of any series duly held in accordance with this Section 13.4
shall be binding on all the Holders of Securities of such series and the
related coupons, whether or not present or represented at the meeting.
Notwithstanding the foregoing provisions of this Sections 13.4,
if any action is to be taken at a meeting of Holders of Securities of any
series with respect to any request, demand, authorization, direction,
notice, consent, waiver or other action that this Indenture expressly
provides may be made, given or taken by the Holders of a specified
percentage in principal amount of all Outstanding Securities affected
thereby, or of the Holders of such series and one or more additional
series:
(1) there shall be no minimum quorum requirement for such meeting
and
(2) the principal amount of the Outstanding Securities of such
series that vote in favor of such request, demand, authorization,
direction, notice, consent, waiver or other action shall be taken into
account in determining whether such request, demand, authorization,
direction, notice, consent, waiver or other action has been made, given or
taken under this Indenture.
Section 13.5. Determination of Voting Rights; Conduct and
Adjournment of Meetings. (a) Notwithstanding any other provisions of this
Indenture, the Trustee may make such reasonable regulations as it may deem
advisable for any meeting of Holders of Securities of any series in regard
to proof of the holding of Securities of such series and of the appointment
of proxies and in regard to the appointment and duties of inspectors of
votes, the submission and examination of proxies, certificates and other
evidence of the right to vote, and such other matters concerning the
conduct of the meeting as it shall deem appropriate. Except as otherwise
permitted or required by any such regulations, the holding of Securities
shall be proved in the manner specified in Section 1.4 and the appointment
of any proxy shall be provided in the manner specified in Section 1.4 or by
having the signature of the Person executing the proxy witnessed or
guaranteed by any trust company, bank or banker authorized by Section 1.4
to certify to the holding of Bearer Securities. Such regulations may
provide that written instruments appointing proxies, regular on their face,
may be presumed valid and genuine without the proof specified in Section
1.4 or other proof.
(b) The Trustee shall, by an instrument in writing, appoint a
temporary chairman (which may be a Responsible Officer of the Trustee) of
the meeting, unless the meeting shall have been called by the Company as
provided in Section 13.2(b), in which case the Company shall in like manner
appoint a temporary chairman. A permanent chairman and a permanent
secretary of the meeting shall be elected by vote of the Persons entitled
to vote a majority in principal amount of the Outstanding Securities of
such series represented at the meeting.
(c) At any meeting each Holder of a Security of such series or
proxy shall be entitled to one vote for each U.S. $1,000 principal amount
of Securities held or represented by him or her; provided, however, that no
vote shall be cast or counted at any meeting in respect of any Security
challenged as not Outstanding and ruled by the chairman of the meeting to
be not Outstanding. The chairman of the meeting shall have no right to
vote, except as a Holder of a Security or proxy.
(d) Any meeting of Holders of Securities of a series duly called
pursuant to Section 13.2 at which a quorum is present may be adjourned from
time to time by Persons entitled to vote a majority in principal amount of
the Outstanding Securities of such series represented at the meeting, and
the meeting may be held as so adjourned without further notice.
Section 13.6. Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of Holders of
Securities of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers
of the Outstanding Securities held or represented by them. The permanent
chairman of the meeting shall appoint an inspector of votes who shall count
all votes cast at the meeting for or against any resolution and who shall
make and file with the secretary of the meeting its verified written
reports in duplicate of all votes cast at the meeting. A record of the
proceedings of each meeting of Holders of Securities shall be prepared by
the applicable secretary of the meeting and there shall be attached to said
record the original report of the inspector of votes on any vote by ballot
taken thereat and affidavits by one or more Persons having knowledge of the
facts, setting forth a copy of the notice of the meeting and showing that
said notice was given as provided in Section 13.2 and, if applicable,
Section 13.4. At least two copies of such record shall be signed and
verified by the affidavits of the permanent chairman and secretary of the
meeting and one copy thereof shall be delivered to the Company and the
other to the Trustee to be preserved by the Trustee, the latter to have
attached thereto the ballots voted at the meeting. Any record so signed and
verified shall be conclusive evidence of the matters therein stated.
ARTICLE 14
CONVERSION OR EXCHANGE OF SECURITIES
Section 14.1. Applicability of Article. (a) The provisions of
this Article 14 shall be applicable to the Securities of any series which
are convertible or exchangeable into Equity Securities of Allied, and to
the issuance of such Equity Securities upon the conversion or exchange of
such Securities, except as otherwise specified as contemplated by Section
3.1 for the Securities of such series.
(b) The term "Equity Securities" shall mean all or any of the
following, authorized from time to time: (i) Allied's Common Stock, $.01
par value (the "Common Stock"), (ii) Allied's Preferred Stock, $.10 par
value (the "Preferred Stock"), and (iii) any other equity securities of
Allied.
Section 14.2. Exercise of Conversion or Exchange Privilege. (a)
In order to exercise a conversion or exchange privilege, the Holder of a
Security of a series with such privilege shall surrender such Security,
together, in the case of any Bearer Security, with all unmatured interest
coupons and any matured interest coupons in default appertaining thereto,
to the Company at the office or agency maintained for that purpose pursuant
to Section 9.2, accompanied by written notice to Allied and the Company
that the Holder elects to convert or exchange such Security or a specified
portion thereof. Such notice shall also state, if different from the name
and address of such Holder, the name or names (with address) in which the
certificate or certificates for Equity Securities which shall be issuable
on such conversion or exchange shall be issued. Registered Securities
surrendered for conversion or exchange shall (if so required by Allied, the
Company or the Trustee) be duly endorsed by or accompanied by instruments
of transfer in forms satisfactory to Allied, the Company and the Trustee
duly executed by the registered Holder or its attorney duly authorized in
writing.
(b) As promptly as practicable after the receipt of such notice
and of any payment required pursuant to a Board Resolution establishing the
terms of any series of Securities and, subject to Section 3.3, set forth,
or determined in the manner provided, in an Officers' Certificate, or
established in one or more indentures supplemental hereto setting forth the
terms of such series of Security, and the surrender of such Security in
accordance with such reasonable regulations as Allied and the Company may
prescribe, Allied shall issue and shall deliver, at the office or agency at
which such Security is surrendered, to such Holder or on its written order,
a certificate or certificates for the number of Equity Securities issuable
upon the conversion or exchange of such Security (or specified portion
thereof), in accordance with the provisions of such Board Resolution,
Officers' Certificate or supplemental indenture, and cash as provided
therein in respect of any fractional share of such Equity Security
otherwise issuable upon such conversion or exchange.
(c) Such conversion or exchange shall be deemed to have been
effected immediately prior to the close of business on the date on which
such notice and such payment, if required, shall have been received in
proper order for conversion or exchange by Allied and the Company and such
Security shall have been surrendered as aforesaid and at such time the
rights of the Holder of such Security as such Security Holder shall cease
and the person or persons in whose name or names any certificate or
certificates for Equity Securities of Allied shall be issuable upon such
conversion or exchange shall be deemed to have become the Holder or Holders
of record of the Equity Securities represented thereby. Except as set forth
above and subject to paragraph (d) of Section 3.7, no payment or adjustment
shall be made upon any conversion or exchange on account of any interest
accrued on the Securities surrendered for conversion or exchange, or on
account of any dividends on the Equity Securities of Allied issued upon
such conversion or exchange if the record date for the payment of such
dividends occurs prior to or on the date on which such conversion or
exchange shall be deemed to have been effected.
In the case of any Security which is converted or exchanged in
part only, upon such conversion or exchange the Company shall execute and
the Trustee shall authenticate and deliver to or on the order of the Holder
thereof, at the expense of the Company, a new Security or Securities of the
same series, of authorized denominations, in aggregate principal amount
equal to the unconverted or unexchanged portion of such Security.
Any requirements for notice, surrender or delivery of Securities
pursuant to this Article Fourteen shall, with respect to any Global
Security, be subject to any Applicable Procedures.
Section 14.3. No Fractional Equity Securities. No fractional
Equity Security of Allied shall be issued upon conversions or exchanges of
Securities of any series. If more than one Security shall be surrendered
for conversion or exchange at one time by the same Holder, the number of
full shares of the Equity Security which shall be issuable upon conversion
or exchange shall be computed on the basis of the aggregate principal
amount of the Securities (or specified portions thereof to the extent
permitted hereby) so surrendered. If, except for the provisions of this
Section 14.3, any Holder of a Security or Securities would be entitled to a
fractional share of any Equity Security of Allied upon the conversion or
exchange of such Security or Securities, or specified portions thereof,
Allied or the Company shall pay to such Holder an amount in cash equal to
the current market value of such fractional share computed, (i) if such
Equity Security is listed or admitted to unlisted trading privileges on a
national securities exchange, on the basis of the last reported sale price
regular way on the principal exchange where such Equity Security is listed
or admitted, on the last trading day prior to the date of conversion or
exchange upon which such a sale shall have been effected, (ii) if such
Equity Security is not at the time so listed or admitted on a national
securities exchange but is quoted on the National Market System of the
National Association of Securities Dealers, Inc. ("NASDAQ"), on the basis
of the average of the last bid and asked prices of such Equity Security on
NASDAQ on the last trading day prior to the date of conversion or exchange,
(iii) if such Equity Security is not at the time so listed or admitted to
unlisted trading privileges on a national securities exchange or quoted on
NASDAQ, on the basis of the average of the last bid and asked prices of
such Equity Security in the over-the-counter market, on the last trading
day prior to the date of conversion or exchange, as reported by the
National Quotation Bureau Incorporated or similar organization if the
National Quotation Bureau Incorporated is no longer reporting such
information, or (iv) in accordance with the terms of the supplemental
indenture or Board Resolutions setting the terms of the Securities of such
series. For purposes of this Section, "trading day" shall mean each Monday,
Tuesday, Wednesday, Thursday and Friday other than any day on which the
applicable Equity Security is not traded or quoted on a national securities
exchange, or if the applicable Equity Security is not traded or quoted on a
national securities exchange, on NASDAQ or the principal exchange or market
on which the applicable Equity Security is traded or quoted.
Section 14.4. Adjustment of Conversion or Exchange Price;
Consolidation or Merger. The conversion or exchange price of Securities of
any series that is convertible or exchangeable into an Equity Security of
Allied shall be adjusted for any stock dividends, stock splits,
reclassifications, combinations or similar transactions, and the
securities, assets or other property into or for which such Securities may
be converted or exchanged as a result of any consolidation, merger,
combination or similar transaction shall be determined, in accordance with
the terms of the supplemental indenture or Board Resolutions setting the
terms of the Securities of such series.
Whenever the conversion or exchange price is adjusted, Allied and
the Company shall compute the adjusted conversion or exchange price in
accordance with the terms of the applicable Board Resolution or
supplemental indenture and shall prepare an Officers' Certificate setting
forth the adjusted conversion or exchange price and showing in reasonable
detail the facts upon which such adjustment is based. Whenever the
securities, assets or other property into or for which Securities of any
series may be converted or exchanged are changed as a result of any
consolidation, merger or similar transaction, Allied and the Company shall
determine the nature and amount of such securities, assets or other
property in accordance with the terms of the applicable Board Resolution or
supplemental indenture and shall prepare an Officer's Certificate
describing such securities, assets or other property and stating the amount
of such securities, assets or other property into or for which such
Securities have become convertible or exchangeable. Such certificates shall
forthwith be filed at each office or agency maintained for the purpose of
conversion or exchange of Securities pursuant to Section 9.2 and, if
different, with the Trustee Allied and the Company shall forthwith cause a
notice setting forth the adjusted conversion or exchange price or
describing such securities, assets or other property, as applicable, to be
mailed, first class postage prepaid, to each Holder of Registered
Securities of such series at its address appearing on the Register and to
any conversion or exchange agent other than the Trustee and shall give
notice to 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 (i) payable otherwise than
exclusively in cash out of its retained earnings, or (ii) exclusively in
cash out of its retained earnings in an amount that, under the terms of
such Securities, would require an adjustment in the exchange or conversion
price of such Securities; or
(b) Allied shall authorize the granting to the holders of any
class of such Equity Securities of rights, options or warrants to subscribe
for or purchase any shares of capital stock of any class or of any other
rights; or
(c) of any reclassification of any class of such Equity
Securities (other than a subdivision or combination of its outstanding
shares of such Equity Securities), or of any consolidation or merger to
which the Company is a party and for which approval of any shareholders of
the Company is required, or of the sale of all or substantially all of the
assets of Allied; or
(d) of the voluntary or involuntary dissolution, liquidation or
winding up of Allied; or
(e) the Company or any Subsidiary of the Company shall commence a
tender or exchange offer for all or a portion of the Company's outstanding
shares of such Equity Securities (or shall amend any such tender or
exchange offer);
then Allied and the Company shall cause to be filed with the Trustee, and
shall cause to be mailed to all Holders at their addresses as they shall
appear in the Register and shall give notice to the Holder of Bearer
Securities as provided in Section 1.6., at least 20 days (or 10 days in any
case specified in clause (a) or (b) above) prior to the applicable record
date hereinafter specified, a notice stating (i) the date on which a record
is to be taken for the purpose of such dividend, distribution, rights,
options or warrants, or, if a record is not to be taken, the date as of
which the Holders of such Equity Securities of record to be entitled to
such dividend, distribution, rights, options or warrants are to be
determined, or (ii) the date on which such reclassification, consolidation,
merger, share exchange, sale, dissolution, liquidation or winding up is
expected to become effective, and the date as of which it is expected that
holders of such Equity Securities of record shall be entitled to exchange
such Equity Securities for securities, cash or other property deliverable
upon such reclassification, consolidation, merger, share exchange, sale,
dissolution, liquidation or winding up or (iii) the date on which such
tender or exchange offer commenced, the date on which such tender or
exchange offer is scheduled to expire unless extended, the consideration
offered and the other material terms thereof (or the material terms of any
amendment thereto). If at any time the Trustee shall not be the conversion
or exchange agent, a copy of such notice shall also forthwith be filed by
Allied and the Company with the Trustee.
Section 14.6. Reservation of Equity Securities. Allied shall at
all times reserve and keep available, free from preemptive rights, out of
its authorized but unissued Equity Securities, solely for the purpose of
effecting the conversion or exchange of Securities, the full number of
Equity Securities of Allied then issuable upon the conversion or exchange
of all Outstanding Securities of any series that has conversion or exchange
rights.
Section 14.7. Payment of Certain Taxes Upon Conversion or
Exchange. Allied and the Company will pay any and all taxes that may be
payable in respect of the issue or delivery of Allied's Equity Securities
on conversion or exchange of Securities pursuant hereto. Allied and the
Company shall not, however, be required to pay any tax which may be payable
in respect of any transfer involved in the issue and delivery of its Equity
Securities in a name other than that of the Holder of the Security or
Securities to be converted or exchanged, and no such issue or delivery
shall be made unless and until the Person requesting such issue has paid to
Allied and the Company the amount of any such tax, or has established, to
the satisfaction of Allied and the Company, that such tax has been paid.
Section 14.8. Duties of Trustee Regarding Conversion or Exchange.
Neither the Trustee nor any conversion or exchange agent shall at any
time be under any duty or responsibility to any Holder of Securities of any
series that is convertible or exchangeable into Equity Securities of Allied
to determine whether any facts exist which may require any adjustment of
the conversion or exchange price, or with respect to the nature or extent
of any such adjustment when made, or with respect to the method employed,
whether herein or in any supplemental indenture, any resolutions of the
Board of Directors or written instrument executed by one or more officers
of Allied and the Company provided to be employed in making the same.
Neither the Trustee nor any conversion or exchange agent shall be
accountable with respect to the validity or value (or the kind or amount)
of any Equity Securities of Allied, or of any securities or property, which
may at any time be issued or delivered upon the conversion or exchange of
any Securities and neither the Trustee nor any conversion or exchange agent
makes any representation with respect thereto. Subject to the provisions of
Section 6.1, neither the Trustee nor any conversion or exchange agent shall
be responsible for any failure of Allied or the Company to issue, transfer
or deliver any of Allied's Equity Securities or stock certificates or other
securities or property upon the surrender of any Security for the purpose
of conversion or exchange or to comply with any of the covenants of Allied
and the Company contained in this Article 14 or in the applicable
supplemental indenture, resolutions of the Board of Directors or written
instrument executed by one or more duly authorized officers of Allied and
the Company.
Section 14.9. Repayment of Certain Funds Upon Conversion or
Exchange. Any funds which at any time have been deposited by the Company
or on its behalf with the Trustee or any Paying Agent for the purpose of
paying the principal of, premium, if any, and interest, if any, on any of
the Securities (including funds deposited for redemption pursuant to
Article 11 or for any sinking fund referred to in Article 12 hereof) and
which shall not be required for such purposes because of the conversion or
exchange of such Securities as provided in this Article 14 shall after such
conversion or exchange be repaid to the Company by the Trustee upon the
Company's written request by Company Request.
ARTICLE 15
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, premium, if any, and interest
on such Security when and as the same shall become due and payable, whether
at the Stated Maturity or by acceleration, call for redemption, purchase or
otherwise, in accordance with the terms of such Security and of this
Indenture. In case of the failure of the Company punctually to make any
such payment, each of Allied and the Subsidiary Guarantors hereby jointly
and severally agrees to cause such payment to be made punctually when and
as the same shall become due and payable, whether at the Stated Maturity or
by acceleration, call for redemption, purchase or otherwise, and as if such
payment were made by the Company. Further, in the case of the failure of
any Subsidiary Guarantor punctually to make any payment required of it
hereunder, Allied agrees to cause such payment to be made when and as the
same shall become due and payable, as if such payment were made by such
Subsidiary Guarantor.
Each of the Guarantors hereby jointly and severally agrees that
its obligations hereunder shall be unconditional, irrespective of the
validity, regularity or enforceability of any Security or this Indenture,
the absence of any action to enforce the same, any creation, exchange,
release or nonperfection of any Lien on any collateral for, or any release
or amendment or waiver of any term of any other Guarantee of, or any
consent to departure from any requirement of any other Guarantee, of all or
any of the Securities, the election by the Trustee or any of the Holders in
any proceeding under Chapter 11 of Title 11 of the United States Code (the
"Bankruptcy Code") of the application of Section 1111(b)(2) of the
Bankruptcy Code, any borrowing or grant of a security interest by the
Company, as debtor in possession, under Section 364 of the Bankruptcy Code,
the disallowance, under Section 502 of the Bankruptcy Code, of all or any
portion of the claims of the Trustee or any of the Holders for payment of
any of the Securities, any waiver or consent by the Holder of any Security
or by the Trustee with respect to any provisions thereof or of this
Indenture, the obtaining of any judgment against the Company (or with
respect to the Allied Subsidiary Guarantee, any Subsidiary Guarantor) or
any action to enforce the same or any other circumstances which might
otherwise constitute a legal or equitable discharge or defense of a
guarantor. Each of the Guarantors hereby waives the benefits of diligence,
presentment, demand of payment, any requirement that the Trustee or any of
the Holders protect, secure, perfect or insure any security interest in or
other Lien on any property subject thereto or exhaust any right or take any
action against the Company (or, with respect to the Allied Subsidiary
Guarantee, any Subsidiary Guarantor) or any other Person or any collateral,
filing of claims with a court in the event of insolvency or bankruptcy of
the Company (or, with respect to the Allied Subsidiary Guarantee, any
Subsidiary Guarantor), any right to require a proceeding first against the
Company (or, with respect to the Allied Subsidiary Guarantee, any
Subsidiary Guarantor), protest or notice with respect to any Security (or,
with respect to the Allied Subsidiary Guarantee, the Subsidiary Guarantees)
or the indebtedness evidenced thereby and all demands whatsoever, and
agrees that this 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 agrees that, in the event of a default in payment of
principal of, premium, if any, or interest on any Security (or, with
respect to the Allied Subsidiary Guarantee, the Subsidiary Guarantee),
whether at its Stated Maturity or by acceleration, call for redemption,
purchase or otherwise, legal proceedings may be instituted by the Trustee
on behalf of, or by, the Holder of such Security subject to the terms and
conditions set forth in this Indenture, directly against each or any of the
Guarantors (or, with respect to the Allied Subsidiary Guarantee, against
Allied) to enforce its Senior Guarantee without first proceeding against
the Company (or, with respect to the Allied Subsidiary Guarantee, against
any Subsidiary Guarantor). Each Guarantor agrees that if, after the
occurrence and during the continuance of an Event of Default, the Trustee
or any of the Holders are prevented by applicable law from exercising their
respective rights to accelerate the maturity of the Securities, to collect
interest on the Securities or to enforce or exercise any other right or
remedy with respect to the Securities (or, with respect to the Allied
Subsidiary Guarantee, to enforce or exercise the Subsidiary Guarantees), or
the Trustee or the Holders are prevented from taking any action to realize
on any collateral, such Guarantor agrees to pay to the Trustee for the
account of the Holders, upon demand therefor, the amount that would
otherwise have been due and payable had such rights and remedies been
permitted to be exercised by the Trustee or any of the Holders.
No provision of any Senior Guarantee or Security or of the
Indenture shall alter or impair (i) the Senior Guarantee of any Guarantor,
which is absolute and unconditional, of the due and punctual payment of the
principal of, premium, if any, and interest on the Security upon which such
Senior Guarantee is endorsed, or (ii) the Allied Subsidiary Guarantee,
which is absolute and unconditional, of the due and punctual performance by
the Subsidiary Guarantors of their obligations under the Subsidiary
Guarantees.
Each Guarantor shall be subrogated to all rights of the Holders
of the Securities upon which its 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; provided, however,
that no Guarantor shall be entitled to enforce or to receive any payments
arising out of, or based upon, such right of subrogation until the
principal of, premium, if any, and interest on all Securities issued
hereunder shall have been paid in full.
Each 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
creditors or should a receiver or trustee be appointed for all or any
significant part of the assets of the Company (or, with respect to the
Allied Subsidiary Guarantee, the assets of any Subsidiary Guarantor) and
shall, to the fullest extent permitted by law, continue to be effective or
be reinstated, as the case may be, if at any time payment and performance
of the Securities (or, with respect to the Allied Subsidiary Guarantee, any
Subsidiary Guarantee) is, pursuant to applicable law, rescinded or reduced
in amount, or must otherwise be restored or returned by any obligee on the
Securities, whether as a "voidable preference," "fraudulent transfer" or
otherwise, all as though such payment or performance had not been made. In
the event that any payment, or any part thereof, is rescinded, reduced,
restored or returned, the Securities shall, to the fullest extent permitted
by law, be reinstated and deemed reduced only by such amount paid and not
so rescinded, reduced, restored or returned.
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.
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, 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 agreement 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.
(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.
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 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 or this Indenture in any
New York State or Federal court. Each of the Company and the Guarantors
hereby irrevocably waives, to the fullest extent permitted by law, the
defense of an inconvenient forum to the maintenance of such action or
proceeding in any such court.
(c) Each of the Company and the Guarantors irrevocably consents
to service of process in the manner provided for notices in Section 1.5
Nothing in this Agreement will affect the right of any Holder or the
Trustee to serve process in any other manner permitted by law.
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This instrument may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture
to be duly executed, and their respective corporate seals to be hereunto
affixed and attested, all as of the day and year first above written.
ALLIED WASTE NORTH AMERICA, INC.
By:
------------------------------
Name:
Title:
Attest:
- --------------------------
Name:
Title:
ALLIED WASTE INDUSTRIES, INC.
for purposes of Article 14 and as
Guarantor of the Securities and as
Guarantor of the obligations of the
Subsidiary Guarantors under the
Subsidiary Guarantees
By:
------------------------------
Name:
Title:
Attest:
- --------------------------
Name:
Title:
Each of the Subsidiary Guarantors Listed
on Schedule I hereto, as Guarantor 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.
EXHIBIT 4.6
======================================================
ALLIED WASTE NORTH AMERICA, INC., as Issuer
and
THE GUARANTORS NAMED HEREIN, as Guarantors
to
FIRST TRUST NATIONAL ASSOCIATION, as Trustee
SUBORDINATED INDENTURE
Dated as of _________________, 1998
Providing for Issuance of
Subordinated Debt Securities in Series
======================================================
Reconciliation and tie between Subordinated Indenture, dated as
of _____________, 1998 (the "Indenture") and the Trust Indenture Act of
1939, as amended.
Trust Indenture Act Indenture
of 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
(a)(1)(B)................................................................5.7
(b)................................................................5.9; 5.10
(c)......................................................................TIA
317(a)(1)................................................................5.3
(a)(2)...................................................................5.4
(b)......................................................................9.3
318(a)..................................................................1.12
(b)......................................................................TIA
(c)................................................................1.12; TIA
- ----------------
This reconciliation and tie section does not constitute part of the Indenture.
TABLE OF CONTENTS
Page
Recitals ................................................................1
ARTICLE 1 Definitions and Other Provisions of General
Application...................................................2
Section 1.1. Definitions...........................................2
Section 1.2. Compliance Certificates and Opinions..................15
Section 1.3. Form of Documents Delivered to Trustee................15
Section 1.4. Acts of Holders.......................................16
Section 1.5. Notices, Etc., to Trustee, Company and
Guarantors............................................18
Section 1.6. Notice to Holders; Waiver.............................19
Section 1.7. Headings and Table of Contents........................20
Section 1.8. Successor and Assigns.................................20
Section 1.9. Separability..........................................20
Section 1.10. Benefits of Indenture.................................20
Section 1.11. Incorporators, Officers and Directors of the
Company Exempt from Individual Liability..............20
Section 1.12. Governing Law; Conflict with Trust Indenture
Act...................................................21
Section 1.13. Legal Holidays........................................21
Section 1.14. Moneys of Different Currencies to Be
Segregated............................................22
Section 1.15. Independence of Agreements............................22
Section 1.16. Counterparts..........................................22
ARTICLE 2 Security and Subordinated Guarantee Forms.....................22
Section 2.1. Forms Generally.......................................22
Section 2.2. Form of Trustee's Certificate of
Authentication........................................23
Section 2.3. Form of Subordinated Guarantee........................23
Section 2.4. Global Securities.....................................27
Section 2.5. Form of Legend for Global
Securities............................................28
ARTICLE 3 The Securities................................................29
Section 3.1. Amount Unlimited; Issuable in Series..................29
Section 3.2. Denominations.........................................33
Section 3.3. Execution, Authentication, Delivery and
Dating................................................33
Section 3.4. Temporary Securities..................................37
Section 3.5. Registration, Transfer and Exchange...................38
Section 3.6. Replacement Securities................................43
Section 3.7. Payment of Interest; Interest Rights
Preserved.............................................44
Section 3.8. Persons Deemed Owners.................................47
Section 3.9. Cancellation..........................................48
Section 3.10. Computation of Interest...............................48
Section 3.11. CUSIP Numbers.........................................48
Section 3.12. Currency and Manner of Payment in Respect of
Securities............................................49
ARTICLE 4 Satisfaction, Discharge and Defeasance........................49
Section 4.1. Termination of Company's Obligations Under the
Indenture.............................................49
Section 4.2. Application of Trust Funds............................50
Section 4.3. Applicability of Defeasance Provisions;
Company's Option to Effect Defeasance
or Agreement Defeasance...............................51
Section 4.4. Defeasance and Discharge..............................51
Section 4.5. Agreement Defeasance..................................52
Section 4.6. Conditions to Defeasance or Agreement
Defeasance............................................52
Section 4.7. Deposited Money and Government Obligations
to Be Held in Trust...................................55
Section 4.8. Repayment to Company..................................55
Section 4.9. Indemnity for Government Obligations..................55
Section 4.10. Reinstatement.........................................56
ARTICLE 5 Defaults and Remedies.........................................56
Section 5.1. Events of Default.....................................56
Section 5.2. Acceleration; Rescission and Annulment................58
Section 5.3. Collection of Indebtedness and Suits for
Enforcement by Trustee................................60
Section 5.4. Trustee May File Proofs of Claim......................61
Section 5.5. Trustee May Enforce Claims Without Possession
of Securities.........................................61
Section 5.6. Delay or Omission Not Waiver..........................61
Section 5.7. Waiver of Past Defaults...............................62
Section 5.8. Control by Majority...................................62
Section 5.9. Limitation on Suits by Holders........................62
Section 5.10. Rights of Holders to Receive Payment..................63
Section 5.11. Application of Money Collected........................63
Section 5.12. Restoration of Rights and Remedies....................64
Section 5.13. Rights and Remedies Cumulative........................64
Section 5.14. Undertaking for Costs.................................65
Section 5.15. Waiver of Stay, Extension or Usury
Laws..................................................65
ARTICLE 6 The Trustee...................................................66
Section 6.1. Certain Duties and Responsibilities...................66
Section 6.2. Notice of Defaults....................................66
Section 6.3. Certain Rights of Trustee.............................66
Section 6.4. Not Responsible for Recitals or Issuance
of Securities.........................................67
Section 6.5. May Hold Securities...................................67
Section 6.6. Money Held in Trust...................................68
Section 6.7. Compensation and Reimbursement........................68
Section 6.8. Conflicting Interests.................................68
Section 6.9. Corporate Trustee Required;
Eligibility...........................................69
Section 6.10. Resignation and Removal; Appointment of
Successor.............................................69
Section 6.11. Acceptance of Appointment by
Successor.............................................71
Section 6.12. Merger, Conversion, Consolidation or
Succession to Business................................72
Section 6.13. Preferential Collection of Claims Against
Company...............................................72
Section 6.14. Appointment of Authenticating Agent...................72
ARTICLE 7 Consolidation, Merger or Sale of Assets by
the Company...................................................74
Section 7.1. Consolidation, Merger or Sale of Assets
Permitted.............................................74
Section 7.2. Successor Substituted.................................75
ARTICLE 8 Supplemental Indentures.......................................76
Section 8.1. Supplemental Indentures Without Consent of
Holders...............................................76
Section 8.2. Supplemental Indentures With Consent of
Holders...............................................77
Section 8.3. Compliance with Trust Indenture Act...................79
Section 8.4. Execution of Supplemental Indentures..................79
Section 8.5. Effect of Supplemental Indentures.....................79
Section 8.6. Reference in Securities to Supplemental
Indentures............................................79
Section 8.7. Notice of Supplemental Indentures.....................80
ARTICLE 9 Agreements....................................................80
Section 9.1. Payment of Principal, Premium, if any,
and Interest..........................................80
Section 9.2. Maintenance of Office or Agency.......................80
Section 9.3. Money for Securities Payments to Be Held
in Trust; Unclaimed Money.............................82
Section 9.4. Corporate Existence...................................83
Section 9.5. Annual Review Certificate.............................83
Section 9.6. Maintenance of Properties.............................84
Section 9.7. Payments of Taxes and Other Claims....................84
Section 9.8. Waiver of Certain Agreements..........................84
ARTICLE 10 Holders' Lists and Reports by Trustee and
Company......................................................85
Section 10.1. Company to Furnish Trustee Names and
Addresses of Holders..................................85
Section 10.2. Preservation of Information, Communications
to Holders............................................85
Section 10.3. Reports by Trustee....................................86
Section 10.4. Reports by the Company and the Guarantors.............86
ARTICLE 11 Redemption...................................................86
Section 11.1. Applicability of Article..............................86
Section 11.2. Election to Redeem; Notice to Trustee.................87
Section 11.3. Selection of Securities to Be Redeemed................87
Section 11.4. Notice of Redemption..................................88
Section 11.5. Deposit of Redemption Price...........................89
Section 11.6. Securities Payable on Redemption Date.................89
Section 11.7. Securities Redeemed in Part...........................90
ARTICLE 12 Sinking Funds................................................91
Section 12.1. Applicability of Article..............................91
Section 12.2. Satisfaction of Sinking Fund Payments with
Securities............................................91
Section 12.3. Redemption of Securities for Sinking Fund.............92
ARTICLE 13 Meetings of Holders of Securities............................92
Section 13.1. Purposes for Which Meetings May Be
Called................................................92
Section 13.2. Call, Notice and Place of Meetings....................92
Section 13.3. Persons Entitled to Vote at Meetings..................93
Section 13.4. Quorum; Action........................................93
Section 13.5. Determination of Voting Rights; Conduct
and Adjournment of Meetings...........................94
Section 13.6. Counting Votes and Recording Action of
Meetings..............................................95
ARTICLE 14 Conversion or Exchange of Securities.........................96
Section 14.1. Applicability of Article..............................96
Section 14.2. Exercise of Conversion or Exchange
Privilege.............................................96
Section 14.3. No Fractional Equity Securities.......................97
Section 14.4. Adjustment of Conversion or Exchange
Price; Consolidation or Merger........................98
Section 14.5. Notice of Certain Corporate Actions...................99
Section 14.6. Reservation of Equity Securities......................100
Section 14.7. Payment of Certain Taxes Upon Conversion
or Exchange...........................................100
Section 14.8. Duties of Trustee Regarding Conversion
or Exchange...........................................101
Section 14.9. Repayment of Certain Funds Upon Conversion
or Exchange...........................................101
ARTICLE 15 Subordination of Securities and Subordinated
Guarantees...................................................102
Section 15.1. Securities Subordinate to Senior Debt.................102
Section 15.2. Payment Over of Proceeds Upon Dissolution,
Etc...................................................102
Section 15.3. No Payment When Senior Debt in Default................104
Section 15.4. Certain Payments Permitted............................106
Section 15.5. Subrogation to Rights of Holders of Senior
Debt..................................................106
Section 15.6. Provisions Solely to Define Relative Rights...........107
Section 15.7. Trustee to Effectuate Subordination...................107
Section 15.8. No Waiver of Subordination Provisions.................107
Section 15.9. Notice to Trustee.....................................108
Section 15.10. Reliance on Judicial Order or Certificate
of Liquidating Agent..................................109
Section 15.11. Trustee Not Fiduciary for Holders of Senior
Debt..................................................109
Section 15.12. Rights of Trustee as Holder of Senior Debt;
Preservation of Trustee's Rights......................109
Section 15.13. Article Applicable to Paying Agents...................109
Section 15.14. Defeasance of this Article 15.........................110
ARTICLE 16 Subordinated Guarantee.......................................110
Section 16.1. Subordinated Guarantee................................110
Section 16.2. Execution and Delivery of Subordinated
Guarantees............................................113
Section 16.3. Subsidiary Guarantors May Consolidate, Etc.,
on Certain Terms......................................114
Section 16.4. Release of Guarantors.................................114
Section 16.5. Additional Guarantors.................................115
ARTICLE 17 Jurisdiction and Consent to Service of Process...............115
Section 17.1. Jurisdiction and Consent to Service of
Process...............................................115
SUBORDINATED INDENTURE (the "Indenture"), dated as of
___________, 1998, among ALLIED WASTE NORTH AMERICA, INC., a corporation
duly organized and existing under the laws of the State of Delaware (the
"Company"), having its principal office at 15880 North 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 subordinated debentures, notes or other evidences of
indebtedness ("Securities") to be issued in one or more series as herein
provided.
Allied (as defined herein) owns beneficially and of record 100%
of the Capital Stock of the Company; the Company, directly or indirectly,
owns beneficially and of record 100% of the Capital Stock or other
ownership interests, as the case may be, of each Subsidiary Guarantor;
Allied, the Company and the Subsidiary Guarantors are members of the same
consolidated group of companies and are engaged in related businesses and
the Guarantors will derive direct and indirect economic benefit from the
issuance of the Securities. Accordingly, each of the Guarantors has duly
authorized the execution and delivery of this Indenture to provide for its
Subordinated Guarantees with respect to the Securities as set forth in this
Indenture.
All things necessary (i) to make the Securities, when executed by
the Company and authenticated and delivered hereunder and duly issued by
the Company, the valid obligations of the Company, (ii) to make the
Subordinated Guarantees of each of the Guarantors, when executed by the
respective Guarantors and endorsed on the Securities executed,
authenticated and delivered hereunder, the valid obligations of the
respective Guarantors, and (iii) to make this Indenture a valid agreement
of the Company and of each of the Guarantors, all in accordance with their
respective terms, have been done.
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually agreed as follows for the
equal and ratable benefit of the Holders of the Securities or of any series
thereof:
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.1. Definitions. (a) For all purposes of this Indenture,
except as otherwise expressly provided or unless the context otherwise
requires:
(1) the terms defined in this Article have the meanings assigned
to them in this Article and include the plural as well as the
singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles as in effect in the United States of America
from time to time; provided that when two or more principles are so
generally accepted, it shall mean that set of principles consistent
with those in use by the Company; and
(4) the words "herein", "hereof" and "hereunder" and other words
of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
"Affiliate" of any specified Person means any Person directly or
indirectly controlling or controlled by, or under direct or indirect common
control with, such specified Person. For purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Agent" means any Paying Agent or Registrar.
"Allied" means Allied Waste Industries, Inc., a Delaware
corporation.
"Allied Guarantee" means the unconditional guarantee, on a
subordinated basis, by Allied of the due and punctual payment of principal
of, premium, if any, and interest on the Securities, as provided pursuant
to Article 16.
"Allied Subsidiary Guarantee" means the unconditional guarantee,
on a subordinated basis, by Allied of each of the Subsidiary Guarantors'
obligations under the Subsidiary Guarantees.
"Applicable Procedures" means, with respect to any transfer or
transaction involving a Global Security or beneficial interest therein, the
rules and procedures of the Depositary for such Security, in each case to
the extent applicable to such transaction and as in effect from time to
time.
"Authenticating Agent" means any authenticating agent appointed
by the Trustee pursuant to Section 6.14.
"Authorized Newspaper" means a newspaper of general circulation,
in the official language of the country of publication or in the English
language, customarily published on each Business Day whether or not
published on Saturdays, Sundays or holidays. Whenever successive
publications in an Authorized Newspaper are required hereunder they may be
made (unless otherwise expressly provided herein) on the same or different
days of the week and in the same or different Authorized Newspapers.
"Bearer Security" means any Security issued hereunder which is
payable to bearer.
"Board of Directors" means, with respect to the Company or any
Guarantor, either the board of directors of the Company or of such
Guarantor, as the case may be, or any duly authorized committee of that
board. Except as otherwise provided or unless the context otherwise
requires, each reference herein to the "Board of Directors" shall mean the
Board of Directors of the Company.
"Board Resolution" of the Company or any Guarantor means a copy
of a resolution certified by the Secretary or an Assistant Secretary of the
Company or such Guarantor, as the case may be, to have been duly adopted by
its Board of Directors and to be in full force and effect on the date of
such certification, and delivered to the Trustee. Except as otherwise
expressly provided or unless the context otherwise requires, each reference
herein to a "Board Resolution" shall mean a Board Resolution of the
Company.
"Business Day", when used with respect to any Place of Payment or
any other particular location referred to in this Indenture or in the
Securities, means, unless otherwise specified with respect to any
Securities pursuant to Section 3.1, each Monday, Tuesday, Wednesday,
Thursday and Friday which is not a day on which banking institutions in
that Place of Payment or particular location are authorized or obligated by
law, regulation or executive order to close.
"Capital Lease Obligation" of any Person means the obligation to
pay rent or other payment amounts under a lease of (or other arrangements
conveying the right to use) real or personal property by such Person which
is required to be classified and accounted for as a capital lease or a
liability on a balance sheet of such Person in accordance with generally
accepted accounting principles. The stated maturity of such obligation
shall be the date of the last payment of rent or any other amount due under
such lease prior to the first date upon which such lease may be terminated
by the lessee without payment of a penalty. The principal amount of such
obligation shall be the capitalized amount thereof that would appear on a
balance sheet of such Person in accordance with generally accepted
accounting principles.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Exchange Act or, if at any
time after the execution of this Indenture such Commission is not existing
and performing the duties now assigned to it under the Trust Indenture Act,
then the body performing such duties at such time.
"Company" means the Person named as the Company in the first
paragraph of this Indenture until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
means such successor.
"Company Order" and "Company Request" mean, respectively, a
written order or request signed in the name of the Company by two Officers,
one of whom must be the Chairman of the Board, the President, the Chief
Executive Officer, the Chief Operating Officer, the Chief Financial
Officer, a Vice President, the Treasurer or the Secretary of the Company.
"consent", "waive" and "rescind", when used with respect to the
consent, waiver or rescission of or by the Holders of a specified
percentage in aggregate principal amount of Securities of any series, shall
mean any of (i) a favorable vote with respect to such consent, waiver or
rescission, at any meeting of Holders of Securities of such series duly
called and held in accordance with the provisions of Article 13, by the
Holders of the applicable percentage in aggregate principal amount of such
Securities specified in the second paragraph of Section 13.4; (ii) written
consents, waivers or rescissions of or by the Holders of such specified
percentage in aggregate principal amount of such Securities; and (iii) a
combination of the favorable vote with respect to such consent, waiver or
rescission, at any meeting of Holders of Securities of such series duly
called and held in accordance with the provisions of Article 13, by the
Holders of less than the applicable percentage in aggregate principal
amount of such Securities specified in the second paragraph of Section 13.4
and written consents, waivers or rescissions of other Holders of such
Securities, where the sum of the percentage of such Holders so voting in
favor and the percentage of such Holders signing such written consents,
waivers or rescissions is equal to at least such specified percentage.
"Corporate Trust Office" means an office of the Trustee in New
York, New York at which at any particular time its corporate trust business
shall be administered, which office at the date hereof is located at 100
Wall Street, 20th Floor, New York, New York 10005, Attention: Corporate
Trust Administration.
"corporation" shall mean a corporation, association, joint-stock
company or business trust.
"Credit Agreement" means the Amended and Restated Credit
Agreement dated June 5, 1997 among the Company, Allied and the subsidiary
guarantors named therein, as guarantors, 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 any Global Securities
means the Person designated as Depositary by the Company pursuant to
Section 3.1(b) until a successor Depositary shall have become such pursuant
to the applicable provisions of this Indenture, and thereafter shall mean
or include each Person which is then a Depositary hereunder, and if at any
time there is more than one such Person, shall be a collective reference to
such Persons.
"Dollar" means the currency of the United States that at the time
of payment is legal tender for the payment of public and private debts.
"ECU" means the European Currency Unit as defined and revised
from time to time by the Council of the European Communities.
"European Monetary System" means the European Monetary System
established by the Resolution of December 5, 1978 of the Council of the
European Communities.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"Exchange Rate Certificate" means a certificate, signed by a
Responsible Officer of the Trustee, setting forth (i) the applicable Market
Exchange Rate or the applicable bid quotation and (ii) the Dollar amount of
principal of, premium, if any, and interest, if any (on an aggregate basis
and on the basis of a Security having the lowest denomination principal
amount in the relevant currency or currency unit), that would be payable
with respect to a Security of the applicable series on the basis of such
Market Exchange Rate or the applicable bid quotation.
"Foreign Currency" means any currency issued by the government of
one or more countries other than the United States or by any recognized
confederation or association of such governments.
"Global Security" shall have the meaning set forth in Section
2.3.
"Government Obligations" means securities that are (x) direct
obligations of the United States of America for the payment of which its
full faith and credit is pledged or (y) obligations of a Person controlled
or supervised by and acting as an agency or instrumentality of the United
States of America the payment of which is unconditionally guaranteed as a
full faith and credit obligation by the United States of America, which, in
either case (x) or (y), are not callable or redeemable at the option of the
issuer thereof, and shall also include a depository receipt issued by a
bank (as defined in Section 3(a)(2) of the Securities Act of 1933, as
amended) as custodian with respect to any such Government Obligation or a
specific payment of principal of or interest on any such Government
Obligation held by such custodian for the account of the holder of such
depository receipt, provided that (except as required by law) such
custodian is not authorized to make any deduction from the amount payable
to the holder of such depository receipt from any amount received by the
custodian in respect of the Government Obligation or the specific payment
of principal of or interest on the Government Obligation evidenced by such
depository receipt.
"Guarantors" means Allied and the Subsidiary Guarantors.
"Guaranty" or "Guarantee" by any Person means any obligation,
contingent or otherwise, of such Person guaranteeing any Debt, or dividends
or distributions on any equity security, of any other Person (the "primary
obligor") in any manner, whether directly or indirectly, and including,
without limitation, any obligation of such Person (i) to purchase or pay
(or advance or supply funds for the purchase or payment of) such Debt or to
purchase (or to advance or supply funds for the purchase of) any security
for the payment of such Debt, (ii) to purchase property, securities or
services for the purpose of assuring the holder of such Debt of the payment
of such Debt or (iii) to maintain working capital, equity capital or other
financial statement condition or liquidity of the primary obligor so as to
enable the primary obligor to pay such Debt (and "Guaranteed" and
"Guaranteeing" shall have meanings correlative to the foregoing); provided,
however, that the Guaranty by any Person shall not include endorsements by
such Person for collection or deposit, in either case, in the ordinary
course of business.
"Holder" means, with respect to a Bearer Security, a bearer
thereof or of an interest coupon appertaining thereto and, with respect to
a Registered Security, a Person in whose name a Security is registered on
the Register.
"Incur" means, with respect to any Debt of any Person, to create,
issue, incur (by conversion, exchange or otherwise), assume, Guarantee or
otherwise become liable in respect of such Debt, or the taking of any other
action which would cause such Debt, in accordance with generally accepted
accounting principles to be recorded on the balance sheet of such Person
(and "Incurrence", "Incurred", "Incurrable" and "Incurring" shall have
meanings correlative to the foregoing), provided that, the Debt of any
other Person becoming a Restricted Subsidiary of such Person will be deemed
for this purpose to have been Incurred by such Person at the time such
other Person becomes a Restricted Subsidiary of such Person; provided,
further, that a change in generally accepted accounting principles that
results in an obligation of such Person that exists at such time becoming
Debt shall not be deemed an Incurrence of such Debt.
"Indenture" means this instrument as originally executed and as
it may from time to time be supplemented or amended by one or more
indentures supplemental hereto entered into pursuant to the applicable
provisions hereof, including, for all purposes of this instrument and any
such supplemental indenture, the provisions of the Trust Indenture Act that
are deemed to be a part of and govern this instrument and any such
supplemental indenture, respectively. The term "Indenture" shall also
include the terms of particular series of Securities established as
contemplated by Section 3.1.
"Indexed Security" means a Security the terms of which provide
that the principal amount thereof payable at Stated Maturity is based, at
least in part, upon the performance or value of a specified market index,
reference security or other variable and may be more or less than the
principal face amount thereof at original issuance.
"interest", when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means
interest payable after Maturity and, when used with respect to any other
Security, means the interest payable thereon in accordance with its terms.
"Interest Payment Date", when used with respect to any Security,
means the Stated Maturity of an installment of interest on such Security.
"Lien" means, with respect to any property or assets, any
mortgage or deed of trust, pledge, hypothecation, assignment, deposit
arrangement, security interest, lien, charge, easement or title exception,
encumbrance, preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever on or with
respect to such property or assets (including any conditional sale or other
title retention agreement having substantially the same economic effect as
any of the foregoing).
"Market Exchange Rate" means, unless otherwise specified with
respect to any Securities pursuant to Section 3.1, (i) for a conversion of
any currency unit into Dollars, the exchange rate between the relevant
currency unit and Dollars calculated by the method specified pursuant to
Section 3.1 for the Securities of the relevant series, and (ii) for a
conversion of any Foreign Currency into Dollars, the applicable exchange
rate between such Foreign Currency and Dollars set forth under the heading,
"Currency Trading -- Exchange Rates" in the "Money & Investing" section of
The Wall Street Journal (or in such other section of The Wall Street
Journal in which foreign currency exchange rates may be regularly published
from time to time) as of the most recent available date, in each case as
determined by the Trustee. Unless otherwise specified with respect to any
Securities pursuant to Section 3.1, in the event of the unavailability of
any of the exchange rates provided for in the foregoing clauses (i) and
(ii), the Trustee shall use the average of the quotations from at least
three major banks acceptable to the Company in The City of New York (which
may include any such bank acting as Trustee under this Indenture), or such
other quotations as the Trustee and the Company shall deem appropriate.
"Maturity", when used with respect to any Security, means the
date on which the principal of such Security or an installment of principal
becomes due and payable as therein or herein provided, whether at the
Stated Maturity or by declaration of acceleration, call for redemption or
otherwise.
"Officer" means the Chairman of the Board, the President, the
Chief Executive Officer, the Chief Operating Officer, the Chief Financial
Officer, any Vice President, the Treasurer, any Assistant Treasurer, the
Secretary or any Assistant Secretary of the Company.
"Officers' Certificate" of the Company or of any Guarantor means
a certificate signed by the Chairman of the Board, a Vice Chairman of the
Board, the President or a Vice President, and by the Treasurer, an
Assistant Treasurer, the Secretary or an Assistant Secretary, of the
Company or such Guarantor, as the case may be, and delivered to the
Trustee. Unless the context otherwise requires, each reference herein to an
"Officers' Certificate" shall mean an Officers' Certificate of the Company.
References herein, or in any Security or Subordinated Guarantee, to any
officer of a Guarantor or other Person that is a partnership shall mean
such officer of the partnership or, if none, of a general partner of the
partnership authorized thereby to act on its behalf.
"Opinion of Counsel" means a written opinion from the general
counsel of the Company or other legal counsel who is reasonably acceptable
to the Trustee. Such counsel may be an employee of or counsel to the
Company.
"Original Issue Discount Security" means any Security which
provides for an amount less than the stated principal amount thereof to be
due and payable upon declaration of acceleration of the Maturity thereof
pursuant to Section 5.2.
"Outstanding", when used with respect to Securities, means, as of
the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or delivered
to the Trustee for cancellation;
(ii) Securities, or portions thereof, for whose payment or
redemption money in the necessary amount has been theretofore
deposited with the Trustee or any Paying Agent (other than the Company
or any Guarantor) in trust or set aside and segregated in trust by the
Company or a Guarantor (if the Company or a Guarantor, as the case may
be, shall act as a Paying Agent) for the Holders of such Securities
and any interest coupons appertaining thereto, provided that, if such
Securities are to be redeemed, notice of such redemption has been duly
given pursuant to this Indenture or provisions therefor satisfactory
to the Trustee have been made;
(iii) Securities, except to the extent provided in Sections 4.4
and 4.5, with respect to which the Company has effected defeasance
and/or agreement defeasance as provided in Article 4; and
(iv) Securities which have been replaced or paid pursuant to
Section 3.6 or in exchange for or in lieu of which other Securities
have been authenticated and delivered pursuant to this Indenture,
other than any such Securities in respect of which there shall have
been presented to the Trustee proof satisfactory to it that such
Securities are held by a bona fide purchaser in whose hands such
Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request,
demand, authorization, direction, notice, consent or waiver hereunder, or
whether sufficient funds are available for redemption or for any other
purpose, and for the purpose of making the calculations required by Section
313 of the Trust Indenture Act, (w) the principal amount of any Original
Issue Discount Securities that may be counted in making such determination
or calculation and that shall be deemed to be Outstanding for such purpose
shall be equal to the amount of principal thereof that would be (or shall
have been declared to be) due and payable, at the time of such
determination, upon a declaration of acceleration of the Maturity thereof
pursuant to Section 5.2, (x) the principal amount of any Security
denominated in a Foreign Currency that may be counted in making such
determination or calculation and that shall be deemed Outstanding for such
purpose shall be equal to the Dollar equivalent, determined as of the date
such Security is originally issued by the Company as set forth in an
Exchange Rate Certificate, of the principal amount (or, in the case of an
Original Issue Discount Security, the Dollar equivalent as of such date of
original issuance of the amount determined as provided in clause (w) above)
of such Security, (y) the principal amount of any Indexed Security that may
be counted in making such determination or calculation and that shall be
deemed Outstanding for such purpose shall be equal to the principal face
amount of such Indexed Security at original issuance, unless otherwise
provided with respect to such Security pursuant to Section 3.1, and (z)
Securities owned by the Company, any Guarantor or any other obligor upon
the Securities or any Affiliate of the Company, of any Guarantor or of such
other obligor shall be disregarded and deemed not to be Outstanding, except
that, in determining whether the Trustee shall be protected in making such
calculation or in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Securities which the Trustee
knows to be so owned shall be so disregarded. Securities so owned which
have been pledged in good faith may be regarded as Outstanding if the
pledgee establishes to the satisfaction of the Trustee the pledgee's right
so to act with respect to such Securities and that the pledgee is not the
Company, any Guarantor or any other obligor upon the Securities or any
Affiliate of the Company, of any Guarantor or of such other obligor.
"Paying Agent" means any Person authorized by the Company to pay
the principal of, premium, if any, interest, if any, and any other payments
due on any Securities on behalf of the Company.
"Periodic Offering" means an offering of Securities of a series
from time to time the specific terms of which Securities, including,
without limitation, the rate or rates of interest or formula or formulae
for determining the rate or rates of interest thereon, if any, the Maturity
thereof, the redemption provisions, if any, and any other terms specified
as contemplated by Section 3.1, with respect thereto, are to be determined
by the Company upon the issuance of such Securities.
"Person" means any individual, corporation, partnership, joint
venture, limited liability company, association, joint-stock company,
trust, other entity, unincorporated organization or government or any
agency or political subdivision thereof.
"Place of Payment", when used with respect to the Securities of
or within any series, means the place or places where the principal of,
premium, if any, interest and any other payments due on such Securities are
payable as specified as contemplated by Sections 3.1 and 9.2.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that
evidenced by such particular Security; and, for the purposes of this
definition, any Security authenticated and delivered under Section 3.6 in
exchange for or in lieu of a mutilated, destroyed, lost or stolen Security
shall be deemed to evidence the same debt as the mutilated, destroyed, lost
or stolen Security.
"Redeemable Interest" of any Person means any equity security of
or other ownership interest in such Person that by its terms (or by the
terms of any security into which it is convertible or for which it is
exchangeable) or otherwise (including upon the occurrence of an event)
matures or is required to be redeemed (pursuant to any sinking fund
obligation or otherwise) or is convertible into or exchangeable for Debt or
is redeemable at the option of the holder thereof, in whole or in part, at
any time prior to the final Stated Maturity of the Securities.
"Redemption Date", when used with respect to any Security to be
redeemed, means the date fixed for such redemption pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, in whole or in part, means the price at which it is to be
redeemed pursuant to this Indenture.
"Registered Security" means any Security issued hereunder and
registered as to principal and interest in the Register.
"Regular Record Date" for the interest payable on any Interest
Payment Date on the Securities of or within any series means the date
specified for that purpose as contemplated by Section 3.1.
"Responsible Officer", when used with respect to the Trustee,
shall mean any vice president, the secretary, any assistant secretary, the
treasurer, any assistant treasurer, any trust officer or assistant trust
officer, or any officer of the Trustee customarily performing functions
similar to those performed by any of the above designated officers and also
shall mean, with respect to a particular corporate trust matter, any
officer to whom such matter is referred because of his knowledge of and
familiarity with the particular subject.
"Restricted Subsidiary" means (i) at any date, a Subsidiary of
the Company that is not an Unrestricted Subsidiary as of such date and (ii)
for any period, a Subsidiary of the Company that for any portion of such
period is not an Unrestricted Subsidiary, provided that such term shall
mean such Subsidiary only for such portion of such period.
"Security" or "Securities" has the meaning stated in the first
recital of this Indenture and more particularly means a Security or
Securities of the Company issued, authenticated and delivered under this
Indenture.
"Senior Debt" means (i) with respect to the Company, Debt created
pursuant to the Credit Agreement, (ii) with respect to the Company, any
Guarantor or any Restricted Subsidiary of the Company, as the case may be,
(a) every obligation of such Person for money borrowed, (b) every
obligation of such Person evidenced by bonds, debentures, notes or other
similar instruments, including obligations Incurred in connection with the
acquisition of property, assets or businesses, (c) every reimbursement
obligation of such Person with respect to letters of credit, bankers'
acceptances or similar facilities issued for the account of such Person,
(v) every Capital Lease Obligation of such Person and (d) every net payment
obligation of such Person under interest rate swap or similar agreements or
foreign currency hedge, exchange or similar agreements at the time of
determination, whether Incurred on or prior to the date hereof or
thereafter Incurred, (iii) with respect to the Company, any Guarantor or
any Restricted Subsidiary of the Company, Guarantees by such person of
Senior Debt and (iv) amendments, modifications, renewals, extensions,
refinancings and refundings of any such Debt; provided, however, the
following shall not constitute Senior Debt: (A) any Debt owed to a Person
when such Person is a Subsidiary of the Company, (B) any Debt which by the
terms of the instrument creating or evidencing the same is pari passu or
subordinate in right of payment to the Securities, (C) any Debt Incurred in
violation of this Indenture or (D) any Debt which is subordinate in right
of payment in any respect to any other Debt of the Company. For purposes of
this definition, "Debt" includes any obligation to pay principal, premium,
if any, interest, penalties, reimbursement or indemnity amounts, fees and
expenses (including interest accruing on or after the filing of any
petition in bankruptcy or for reorganization relating to the Company,
whether or not a claim for post-petition interest is allowed in such
proceeding).
"Special Record Date" for the payment of any Defaulted Interest
means a date fixed by the Trustee pursuant to Section 3.7.
"Stated Maturity", when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date
specified in such Security or in an interest coupon representing such
installment of interest as the fixed date on which the principal of such
Security or such installment of principal or interest is due and payable.
"Subordinated Guarantees" means the Allied Guarantee, the
Subsidiary Guarantees and the Allied Subsidiary Guarantee.
"Subsidiary" of any Person means any Person of which at least a
majority of the outstanding voting securities having ordinary voting power
for the election of directors or other governing body, or other ownership
interests ordinarily constituting a majority voting interest, is owned or
controlled, directly or indirectly, by such Person or by one or more
Subsidiaries of such Person, or by such Person and one or more Subsidiaries
of such Person.
"Subsidiary Guarantees" means the unconditional guarantees on a
subordinated basis by the respective Subsidiary Guarantors of the due and
punctual payment of principal of, premium, if any, and interest on the
Securities, as provided pursuant to Article 16.
"Subsidiary Guarantors", as of any time, means, in respect of a
series of Securities, each and all of the Restricted Subsidiaries at such
time, other than Reliant Insurance Company, which Subsidiary Guarantors as
of the date of this Indenture are set forth in Schedule I hereto.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as
amended and as in effect on the date of this Indenture, except as provided
in Section 8.3; provided, however, that if the Trust Indenture Act of 1939
is amended after such date, "Trust Indenture Act" means, to the extent
required by any such amendment, the Trust Indenture Act of 1939 as so
amended.
"Trustee" means the party named as such in the first paragraph of
this Indenture until a successor Trustee replaces it pursuant to the
applicable provisions of this Indenture, and thereafter means such
successor Trustee and if, at any time, there is more than one Trustee,
"Trustee" as used with respect to the Securities of any series shall mean
the Trustee with respect to the Securities of that series.
"United States" means, unless otherwise specified with respect to
the Securities of any series as contemplated by Section 3.1, the United
States of America (including the States thereof and the District of
Columbia), its territories, its possessions and other areas subject to its
jurisdiction.
"Unrestricted Subsidiary", with respect to any series of
Securities, shall have the meaning established in accordance with Section
3.1(b) with respect to such series of Securities.
"U.S. Person" means, unless otherwise specified with respect to
the Securities of any series as contemplated by Section 3.1, a citizen or
resident of the United States, a corporation, partnership or other entity
created or organized in or under the laws of the United States or any
political subdivision thereof, or an estate or trust, the income of which
is subject to United States federal income taxation regardless of its
source.
"Vice President", when used with respect to the Company or any
Guarantor, means any Vice President of such Person whether or not
designated by a number or a word or words added before or after the title
"Vice President."
"Wholly Owned Restricted Subsidiary" means a Restricted
Subsidiary all of the outstanding Capital Stock or other ownership
interests of which (other than directors' qualifying shares) shall at the
time be owned by the Company or by one or more Wholly Owned Restricted
Subsidiaries or by the Company and one or more Wholly Owned Subsidiaries.
(b) The following terms shall have the meanings specified in the
Sections referred to opposite such term below:
Term Section
---- -------
"Act" 1.4(a)
"agreement defeasance" 4.5
"Common Stock" 14.1(b)(i)
"Company Payment
Blockage Period" 15.3
"Company Securities Payment" 15.2
"Defaulted Interest" 3.7(b)
"defeasance" 4.4
"Equity Securities" 14.1(b)
"Event of Default" 5.1
"Guarantor Payment
Blockage Period" 15.3
"NASDAQ" 14.3
"Preferred Stock" 14.1(b)(ii)
"Register" 3.5
"Registrar" 3.5
"Senior Nonmonetary Default" 15.3
"Senior Payment Default" 15.3
Section 1.2. Compliance Certificates and Opinions. Upon any
application or request by the Company to the Trustee to take any action
under any provision of this Indenture, the Company shall furnish to the
Trustee such certificates and opinions as may be required under the Trust
Indenture Act (including Section 314(c) of the Trust Indenture Act). Each
such certificate or opinion shall be given in the form of an Officers'
Certificate, if to be given by an officer or officers of the Company, or an
Opinion of Counsel, if to be given by counsel, and shall comply with the
requirements of the Trust Indenture Act and any other requirements set
forth in this Indenture.
Every certificate or opinion with respect to compliance with a
condition or agreement provided for in this Indenture (other than pursuant
to Section 2.4, the last paragraph of Section 3.3 and Section 9.5) shall
include:
(a) a statement that each individual signing such certificate or
opinion has read such condition or agreement and the definitions
herein relating thereto;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(c) a statement that, in the opinion of each such individual, he
or she has made such examination or investigation as is necessary to
enable him or her to express an informed opinion as to whether or not
such condition or agreement has been complied with; and
(d) a statement as to whether, in the opinion of each such
individual, such condition or agreement has been complied with.
Section 1.3. Form of Documents Delivered to Trustee. In any case
where several matters are required to be certified by, or covered by an
opinion of, any specified Person, it is not necessary that all such matters
be certified by, or covered by the opinion of, only one such Person, or
that they be so certified or covered by only one document, but one such
Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may
certify or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or
opinion of, or representations by, counsel, unless such officer knows, or
in the exercise of reasonable care should know, that the certificate or
opinion or representations with respect to the matters upon which his or
her certificate or opinion is based are erroneous. Any such certificate or
opinion or any Opinion of Counsel may be based, insofar as it relates to
factual matters, upon a certificate or opinion of, or representations by,
an officer or officers of the Company stating that the information with
respect to such factual matters is in the possession of the Company, unless
such officer or counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations as to such matters
are erroneous.
Any certificate, statement or opinion of an officer of the
Company or of counsel may be based, insofar as it relates to accounting
matters, upon a certificate or opinion of or representations by an
accountant or firm of accountants in the employ of the Company, unless such
officer or counsel, as the case may be, knows, or in the exercise of
reasonable care should know, that the certificate or opinion or
representations with respect to the accounting matters upon which his
certificate, statement or opinion is based are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be
consolidated and form one instrument.
Section 1.4. Acts of Holders. (a) Any request, demand,
authorization, direction, notice, consent, waiver or other action provided
by this Indenture to be given or taken by Holders may be embodied in and
evidenced by one or more instruments of substantially similar tenor signed
(either physically or by means of a facsimile or an electronic
transmission, provided, in the case of an electronic transmission, that it
is transmitted through the facilities of a Depositary) by such Holders in
person or by agent or proxy duly appointed in writing. If Securities of a
series are issuable as Bearer Securities, any request, demand,
authorization, direction, notice, consent, waiver or other action provided
by this Indenture to be given or taken by Holders of Securities of such
series may, alternatively, be embodied in and evidenced by the record of
Holders of Securities of such series voting in favor thereof pursuant to
the second paragraph of Section 13.4, either in person or by proxies duly
appointed in writing, at any meeting of Holders of Securities of such
series duly called and held in accordance with the provisions of Article
13, or a combination of such instruments and any such record. Except as
herein otherwise expressly provided, such action shall become effective
when such instrument or instruments or record or both are received (either
physically or, if the Securities are held through the facilities of a
Depositary, by means of a facsimile or an electronic transmission,
provided, in the case of an electronic transmission, that it is transmitted
through the facilities of a Depositary) by the Trustee and, where it is
hereby expressly required, to the Company. Such instrument or instruments
and record (and the action embodied therein and evidenced thereby) are
herein sometimes referred to as the "Act" of the Holders signing such
instrument or instruments or so voting at such meeting. The Company and the
Trustee may assume that any Act of a Holder has not been modified or
revoked unless written notice to the contrary is received prior to the time
that the action to which such Act relates has become effective. Proof of
execution of any such instrument or of a writing appointing any such agent
shall be sufficient for any purpose of this Indenture and (subject to
Section 315 of the Trust Indenture Act) conclusive in favor of the Trustee
and the Company, if made in the manner provided in this Section. The record
of any meeting of Holders of Securities shall be proved in the manner
provided in Section 13.6.
(b) The fact and date of the execution by any Person of any such
instrument or writing and the authority of the Person executing the same
may be proved in any manner which the Trustee deems sufficient.
(c) The ownership of Bearer Securities may be proved by the
production of such Bearer Securities or by a certificate executed by any
trust company, bank, banker or other depository, wherever situated, if such
certificate shall be deemed by the Trustee to be satisfactory, showing that
at the date therein mentioned such Person had on deposit with such trust
company, bank, banker or other depository, or exhibited to it, the Bearer
Securities therein described; or such facts may be proved by the
certificate or affidavit of the Person holding such Bearer Securities, if
such certificate or affidavit is deemed by the Trustee to be satisfactory.
The Trustee and the Company may assume that such ownership of any Bearer
Security continues until (i) another such certificate or affidavit bearing
a later date issued in respect of the same Bearer Security is produced,
(ii) such Bearer Security is produced to the Trustee by some other Person,
(iii) such Bearer Security is surrendered in exchange for a Registered
Security or (iv) such Bearer Security is no longer Outstanding. The
ownership of Bearer Securities may also be proved in any other manner which
the Trustee deems sufficient.
(d) The ownership of Registered Securities shall be proved by the
Register.
(e) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall bind every
future Holder of the same Security and any interest coupons appertaining
thereto and the Holder of every Security or interest coupon issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof
in respect of anything done, omitted or suffered to be done by the Trustee
or the Company in reliance thereon, whether or not notation of such Act is
made upon such Security or interest coupon.
(f) If the Company shall solicit from the Holders any request,
demand, authorization, direction, notice, consent, waiver or other Act, the
Company may, at its option, by or pursuant to a Board Resolution, fix in
advance a record date for the determination of Holders of Registered
Securities entitled to give such request, demand, authorization, direction,
notice, consent, waiver or other Act, but the Company shall have no
obligation to do so. Notwithstanding Section 316(c) of the Trust Indenture
Act, any such record date shall be the record date specified in or pursuant
to such Board Resolution, which shall be a date not more than 30 days prior
to the first solicitation of Holders generally in connection therewith and
no later than the date such first solicitation is completed. If such a
record date is fixed, such request, demand, authorization, direction,
notice, consent, waiver or other Act may be given before or after such
record date, but only the Holders of Registered Securities of record at the
close of business on such record date shall be deemed to be Holders for the
purposes of determining whether Holders of the requisite proportion of
Outstanding Securities have authorized or agreed or consented to such
request, demand, authorization, direction, notice, consent, waiver or other
Act, and for that purpose the Outstanding Securities shall be computed as
of such record date; provided that no such authorization, agreement or
consent by the Holders on such record date shall be deemed effective unless
it shall become effective pursuant to the provisions of this Indenture not
later than six months after the record date.
Without limiting the foregoing, a Holder entitled to give or take
any action hereunder with regard to any particular Security may do so with
regard to all or any part of the principal amount of such Security or by
one or more duly appointed agents, each of which may do so pursuant to such
appointment with regard to all or any part of the principal amount of such
Security to which such appointment relates.
Section 1.5. Notices, Etc., to Trustee, Company and Guarantors.
Any request, demand, authorization, direction, notice, consent, waiver or
Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with,
(a) the Trustee by any Holder or by the Company or any Guarantor
shall be sufficient for every purpose hereunder if made, given,
furnished or filed in writing to or with the Trustee at its Corporate
Trust Office, Attention: Corporate Trust Department, or at any other
address previously furnished in writing to the Holders or the Company
by the Trustee, or, with respect to notices by the Company,
transmitted by facsimile transmission (confirmed by guaranteed
overnight courier) to the following facsimile number: (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.
In any case where notice to Holders is given by mail or by
publication, neither the failure to mail or publish such notice, nor any
defect in any notice so mailed or published, to any particular Holder shall
affect the sufficiency of such notice with respect to other Holders of
Registered Securities or of Bearer Securities. Any notice mailed to a
Holder in the manner herein prescribed shall be conclusively deemed to have
been received by such Holder, whether or not such Holder actually receives
such notice.
If by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice as
provided above, then such notification as shall be made with the approval
of the Trustee shall constitute a sufficient notification for every purpose
hereunder. If it is impossible or, in the opinion of the Trustee,
impracticable to give any notice by publication in the manner herein
required, then such publication in lieu thereof as shall be made with the
approval of the Trustee shall constitute a sufficient publication of such
notice.
Any request, demand, authorization, direction, notice, consent or
waiver required or permitted under this Indenture shall be in the English
language, except that any published notice may be in an official language
of the country of publication.
Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such
notice, either before or after the event, and such waiver shall be
equivalent of such notice. Waivers of notice by Holders shall be filed with
the Trustee, but such filing shall not be a condition precedent to the
validity of any action taken in reliance upon such waiver.
Section 1.7. Headings and Table of Contents. The Article and
Section headings herein and the Table of Contents are for convenience only
and shall not affect the construction hereof.
Section 1.8. Successors and Assigns. All agreements in this
Indenture by the parties hereto shall bind their respective successors and
assigns and inure to the benefit of their respective successors and
assigns, whether so expressed or not.
Section 1.9. Separability. In case any provision of this
Indenture or the Securities or the Subordinated Guarantees shall be
invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
Section 1.10. Benefits of Indenture. Nothing in this Indenture or
in the Securities or the Subordinated Guarantees, expressed or implied,
shall give to any Person, other than the parties hereto, any Registrar, any
Paying Agent and their successors hereunder, and the Holders and the
holders of Senior Debt, any benefit or any legal or equitable right, remedy
or claim under this Indenture.
Section 1.11. Incorporators, Officers and Directors of the
Company Exempt from Individual Liability. No recourse under or upon any
obligation or agreement of or contained in this Indenture or of or
contained in any Security or interest coupon appertaining thereto, or for
any claim based thereon or otherwise in respect thereof, or because of any
indebtedness represented thereby, shall be had against any incorporator,
officer or director, as such, past, present or future, of the Company or
any successor Person, either directly or through the Company or any
successor Person, whether by virtue of any constitution, statute or rule of
law, by the enforcement of any assessment or penalty, by any legal or
equitable proceeding or otherwise; it being expressly understood that all
such liability is hereby expressly waived and released as a condition of
the acceptance of, and as a part of the consideration for the execution of
this Indenture and the issuance of, the Securities and any interest coupons
appertaining thereto.
Section 1.12. Governing Law; Conflict with Trust Indenture Act.
THIS INDENTURE, THE SECURITIES, THE SUBORDINATED GUARANTEES ENDORSED
THEREON AND ANY INTEREST COUPONS APPERTAINING THERETO SHALL BE DEEMED TO BE
CONTRACTS MADE AND TO BE PERFORMED ENTIRELY IN THE STATE OF NEW YORK, AND
FOR ALL PURPOSES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF SAID STATE WITHOUT REGARD TO THE CONFLICTS OF LAW RULES OF SAID
STATE. This Indenture is subject to the Trust Indenture Act and if and to
the extent that any provision hereof limits, qualifies or conflicts with
the Trust Indenture Act, the Trust Indenture Act shall control. Whether or
not this Indenture is required to be qualified under the Trust Indenture
Act, the provisions of the Trust Indenture Act required to be included in
an indenture in order for such indenture to be so qualified shall be deemed
to be included in this Indenture with the same effect as if such provisions
were set forth herein and any provisions hereof which may not be included
in an indenture which is so qualified shall be deemed to be deleted or
modified to the extent such provisions would be required to be deleted or
modified in an indenture so qualified.
Section 1.13. Legal Holidays. In any case where any Interest
Payment Date, Redemption Date, sinking fund payment date, Stated Maturity
or Maturity of any Security shall not be a Business Day at any Place of
Payment, then (notwithstanding any other provision of this Indenture or of
any Security or interest coupon or any Subordinated Guarantee other than a
provision in the Securities of any series which specifically states that
such provision shall apply in lieu of this Section), payment of principal,
premium, if any, or interest need not be made at such Place of Payment on
such date, but may be made on the next succeeding Business Day at such
Place of Payment with the same force and effect as if made on such date;
provided that no interest shall accrue on the amount so payable for the
period from and after such Interest Payment Date, Redemption Date, sinking
fund payment date, Stated Maturity or Maturity, as the case may be, if such
amount is so paid on the next succeeding Business Day.
Section 1.14. Moneys of Different Currencies to Be Segregated.
The Trustee shall segregate all moneys, funds and accounts held by the
Trustee hereunder in one currency from any moneys, funds and accounts held
by the Trustee hereunder in any other currencies, notwithstanding any
provision herein which would otherwise permit the Trustee to commingle such
amounts.
Section 1.15. Independence of Agreements. All agreements in this
Indenture shall be given independent effect so that if a particular action
or condition is not permitted by any such agreement, the fact that it would
be permitted by an exception to, or be otherwise within the limitations of,
another agreement shall not avoid the occurrence of a Default or an Event
of Default if such action is taken or condition exists.
Section 1.16. Counterparts. This Indenture may be executed in any
number of counterparts, each of which shall be an original, but such
counterparts shall together constitute but one and the same instrument.
ARTICLE 2
SECURITY AND SUBORDINATED GUARANTEE FORMS
Section 2.1. Forms Generally. The Securities of each series and
the interest coupons, if any, to be attached thereto and the Subordinated
Guarantees to be endorsed thereon shall be in substantially such form as
shall be established by or pursuant to a Board Resolution or in one or more
indentures supplemental hereto, in each case with such appropriate
insertions, omissions, substitutions and other variations as are required
or permitted by this Indenture, and may have such letters, numbers or other
marks of identification and such legends or endorsements placed thereon as
may be required to comply with the rules of any applicable securities
exchange, organizational document, governing instrument or law or as may,
consistently herewith, be determined by the officers executing such
Securities and interest coupons, if any, or Subordinated Guarantees to be
endorsed thereon, as the case may be, as evidenced by their execution of
the Securities and interest coupons, if any, or Subordinated Guarantees to
be endorsed thereon, as the case may be. If temporary Securities and
Subordinated Guarantees of any series are issued as permitted by Section
3.4, the form thereof also shall be established as provided in the
preceding sentence. If the forms of Securities and interest coupons, if
any, and Subordinated Guarantees of any series are established by, or by
action taken pursuant to, a Board Resolution, a copy of the Board
Resolution together with an appropriate record of any such action taken
pursuant thereto, including a copy of the approved form of Securities or
interest coupons, if any, and Subordinated Guarantees shall be delivered to
the Trustee at or prior to the delivery of the Company Order contemplated
by Section 3.3 for the authentication and delivery of such Securities.
Unless otherwise specified as contemplated by Section 3.1, Bearer
Securities shall have interest coupons attached.
The definitive Securities and interest coupons, if any, may be
printed, lithographed or engraved on steel engraved borders or may be
produced in any other manner (or, if such Securities are listed on any
securities exchange, any other manner permitted by the rules of such
securities exchange), all as determined by the officers executing such
Securities and interest coupons, if any, as evidenced by their execution of
such Securities and interest coupons, if any.
Section 2.2. Form of Trustee's Certificate of Authentication. The
Trustee's certificate of authentication shall be in substantially the
following form:
This is one of the Securities with the Subordinated Guarantees
endorsed thereon of the series designated therein referred to in the
within-mentioned Indenture.
FIRST TRUST NATIONAL ASSOCIATION,
as Trustee
By:
------------------------------
Authorized Signatory
Section 2.3. Form of Subordinated Guarantee
SUBORDINATED GUARANTEE
For value received, each of the Guarantors named (or deemed
herein to be named) below hereby jointly and severally unconditionally
guarantees, on a subordinated basis to the Holder of the Security upon
which this Subordinated Guarantee is endorsed, and to the Trustee on behalf
of such Holder, the due and punctual payment of the principal of, premium,
if any, and interest on such Security when and as the same shall become due
and payable, whether at the Stated Maturity, by acceleration, call for
redemption, purchase or otherwise, according to the terms thereof and of
the Indenture referred to therein. In case of the failure of the Company
punctually to make any such payment, each of the Guarantors hereby jointly
and severally agrees to cause such payment to be made punctually when and
as the same shall become due and payable, whether at the Stated Maturity or
by acceleration, call for redemption, purchase or otherwise, and as if such
payment were made by the Company. Further, in case of the failure of any
Subsidiary Guarantor punctually to make any payment required of it
hereunder, Allied agrees to cause such payment to be made when and as the
same shall become due and payable, as if such payment were made by such
Subsidiary Guarantor.
The Subordinated Guarantee of each Guarantor shall be
subordinated in right of payment to the Senior Debt of such Guarantor as
provided in the Indenture.
Each of the Guarantors hereby jointly and severally agrees that
its obligations hereunder shall be unconditional, irrespective of the
validity, regularity or enforceability of such Security or the Indenture,
the absence of any action to enforce the same, any creation, exchange,
release or non-perfection of any Lien on any collateral for, or any release
or amendment or waiver of any term of any other Guarantee of, or any
consent to departure from any requirement of any other Guarantee of, all or
of any of the Securities, the election by the Trustee or any of the Holders
in any proceeding under Chapter 11 of the Bankruptcy Code of the
application of Section 1111(b)(2) of the Bankruptcy Code, any borrowing or
grant of a security interest by the Company, as debtor-in-possession, under
Section 364 of the Bankruptcy Code, the disallowance, under Section 502 of
the Bankruptcy Code, of all or any portion of the claims of the Trustee or
any of the Holders for payment of any of the Securities, any waiver or
consent by the Holder of such Security or by the Trustee or either of them
with respect to any provisions thereof or of the Indenture, the obtaining
of any judgment against the Company (or, with respect to the Allied
Subsidiary Guarantee, any Subsidiary Guarantor) or any action to enforce
the same or any other circumstances which might otherwise constitute a
legal or equitable discharge or defense of a Guarantor. Each of the
Guarantors hereby waives the benefits of diligence, presentment, demand of
payment, any requirement that the Trustee or any of the Holders protect,
secure, perfect or insure any security interest in or other Lien on any
property subject thereto or exhaust any right or take any action against
the Company (or, with respect to the Allied Subsidiary Guarantee, any
Subsidiary Guarantor) or any other Person or any collateral, filing of
claims with a court in the event of insolvency or bankruptcy of the Company
(or, with respect to the Allied Subsidiary Guarantee, any Subsidiary
Guarantor), any right to require a proceeding first against the Company
(or, with respect to the Allied Subsidiary Guarantee, any Subsidiary
Guarantor), protest or notice with respect to such Security (or, with
respect to the Allied Subsidiary Guarantee, the Subsidiary Guarantees) or
the indebtedness evidenced thereby and all demands whatsoever, and agrees
that this Subordinated Guarantee will not be discharged except by complete
performance of the obligations contained in such Security (or, with respect
to the Allied Subsidiary Guarantee, the Subsidiary Guarantees) and in this
Subordinated Guarantee. Each of the Guarantors hereby agrees that, in the
event of a default in payment of principal of, premium, if any, or interest
on such Security (or, with respect to the Allied Subsidiary Guarantee, the
Subsidiary Guarantees), whether at its Stated Maturity, by acceleration,
call for redemption, purchase or otherwise, legal proceedings may be
instituted by the Trustee on behalf of, or by, the Holder of such Security,
subject to the terms and conditions set forth in the Indenture, directly
against each or any of the Guarantors (or, with respect to the Allied
Subsidiary Guarantee, against Allied) to enforce this Subordinated
Guarantee without first proceeding against the Company (or, with respect to
the Allied Subsidiary Guarantee, against any Subsidiary Guarantor). Each
Guarantor agrees that if, after the occurrence and during the continuance
of an Event of Default, the Trustee or any of the Holders are prevented by
applicable law from exercising their respective rights to accelerate the
maturity of the Securities, to collect interest on the Securities (or, with
respect to the Allied Subsidiary Guarantee, the Subsidiary Guarantees), or
to enforce or exercise any other right or remedy with respect to the
Securities (or, with respect to the Allied Subsidiary Guarantee, to enforce
or exercise the Subsidiary Guarantees), or the Trustee or the Holders are
prevented from taking any action to realize on any collateral, such
Guarantor agrees to pay to the Trustee for the account of the Holders, upon
demand therefor, the amount that would otherwise have been due and payable
had such rights and remedies been permitted to be exercised by the Trustee
or any of the Holders.
No reference herein to the Indenture and no provision of this
Subordinated Guarantee or of the Indenture shall alter or impair (i) the
Subordinated Guarantee of any Guarantor, which is absolute and
unconditional, of the due and punctual payment of the principal of,
premium, if any, and interest on the Security upon which this Subordinated
Guarantee is endorsed, or (ii) the Allied Subsidiary Guarantee, which is
absolute and unconditional, of the due and punctual performance by the
Subsidiary Guarantors of their obligations under the Subsidiary Guarantees.
Each Guarantor shall be subrogated to all rights of the Holder of
such Security against the Company (or, with respect to the Allied
Subsidiary Guarantee, any Subsidiary Guarantor) in respect of any amounts
paid by such Guarantor on account of such Security (or, with respect to the
Allied Subsidiary Guarantee, on account of the Subsidiary Guarantees)
pursuant to the provisions of its Subordinated Guarantee or the Indenture;
provided, however, that such Guarantor shall not be entitled to enforce or
to receive any payments arising out of, or based upon, such right of
subrogation until the principal of, premium, if any, and interest on this
Security and all other Securities issued under the Indenture shall have
been paid in full.
This Subordinated Guarantee shall remain in full force and effect
and continue to be effective should any petition be filed by or against the
Company (or, with respect to the Allied Subsidiary Guarantee, any
Subsidiary Guarantor) for liquidation or reorganization, should the Company
(or, with respect to the Allied Subsidiary Guarantee, any Subsidiary
Guarantor) become insolvent or make an assignment for the benefit of
creditors or should a receiver or trustee be appointed for all or any
significant part of the Company's assets (or, with respect to the Allied
Subsidiary Guarantee, the assets of any Subsidiary Guarantors), and shall,
to the fullest extent permitted by law, continue to be effective or be
reinstated, as the case may be, if at any time payment and performance of
the Securities (or, with respect to the Allied Subsidiary Guarantee, any
Subsidiary Guarantee) is, pursuant to applicable law, rescinded or reduced
in amount, or must otherwise be restored or returned by any obligee on the
Securities, whether as a "voidable preference," "fraudulent transfer" or
otherwise, all as though such payment or performance had not been made. In
the event that any payment, or any part thereof, is rescinded, reduced,
restored or returned, the Securities shall, to the fullest extent permitted
by law, be reinstated and deemed reduced only by such amount paid and not
so rescinded, reduced, restored or returned.
The Guarantors shall have the right to seek contribution from any
non-paying Guarantor so long as the exercise of such right does not impair
the rights of the Holders under this Subordinated Guarantee.
The Guarantors or any particular Guarantor shall be released from
this Subordinated Guarantee upon the terms and subject to certain
conditions provided in the Indenture.
By delivery of a supplemental indenture to the Trustee in
accordance with the terms of the Indenture, each Person that becomes a
Subsidiary Guarantor after the date of the Indenture will be deemed to have
executed and delivered this Subsidiary Guarantee for the benefit of the
Holder of the Security upon which this Subsidiary Guarantee is endorsed,
and Allied will be deemed to have guaranteed the Subsidiary Guarantee of
such Person with the same effect as if such Subsidiary Guarantor was named
below and had executed and delivered this Subsidiary Guarantee.
All terms used in this Subordinated Guarantee which are defined
in the Indenture referred to in the Security upon which this Subordinated
Guarantee is endorsed shall have the meanings assigned to them in such
Indenture.
This Subordinated Guarantee shall not be valid or obligatory for
any purpose until the certificate of authentication on the Security upon
which this Subordinated Guarantee is endorsed shall have been executed by
the Trustee under the Indenture by manual signature.
Reference is made to Article Sixteen of the Indenture for further
provisions with respect to this Subordinated Guarantee.
THIS SUBORDINATED GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, each of the Guarantors has caused this
Subordinated Guarantee to be duly executed.
Allied Waste Industries, Inc.,
As Guarantor of the Securities and
as Guarantor of the obligations of
the Subsidiary Guarantors under the
Subsidiary Guarantees
By:
--------------------------------
[Officer]
Attest:
- -------------------------
[Secretary]
[Assistant Secretary]
Each of the Subsidiary Guarantors
Listed on Schedule I to the Indenture,
As Guarantor of the Securities
By:*/
------------------------------
[Officer]
Attest:*
- -------------------------
[Secretary]
[Assistant Secretary]
- --------------------
*/ Signing as duly authorized officer for each such Subsidiary
Guarantor.
Section 2.4. Global Securities. If Securities of or within a
series are issuable in whole or in part in global form (each, a "Global
Security"), any such Global Security may provide that it shall represent
the aggregate or specified amount of Outstanding Securities from time to
time endorsed thereon and may also provide that the aggregate amount of
Outstanding Securities represented thereby may from time to time be reduced
or increased to reflect exchanges for certificated securities. Any
endorsement of a Global Security to reflect the amount, or any increase or
decrease in the amount, or changes in the rights of Holders, of Outstanding
Securities represented thereby, shall be made in such manner and by such
Person or Persons as shall be specified therein or in the Company Order to
be delivered to the Trustee pursuant to Section 3.3 or 3.4. Subject to the
provisions of Section 3.3, Section 3.4, if applicable, and Section 3.5, the
Trustee shall deliver and redeliver any Global Security in the manner and
upon instructions given by the Person or Persons specified therein or in
the applicable Company Order. Any instructions by the Company with respect
to endorsement or delivery or redelivery of a Global Security shall be in
writing but need not comply with Section 1.2 hereof and need not be
accompanied by an Officers' Certificate or an Opinion of Counsel.
The provisions of the last paragraph of Section 3.3 shall apply
to any Global Security if such Security was never issued and sold by the
Company and the Company delivers to the Trustee the Global Security
together with written instructions (which need not comply with Section 1.2
hereof and need not be accompanied by an Officers' Certificate or an
Opinion of Counsel) with regard to the reduction in the principal amount of
Securities represented thereby, together with the written statement
contemplated by the last paragraph of Section 3.3.
Notwithstanding the provisions of Section 2.1 and 3.7, unless
otherwise specified as contemplated by Section 3.1, payment of principal
of, premium, if any, and interest on any Registered Security in permanent
global form shall be made to the registered holder thereof.
Section 2.5. Form of Legend for Global Securities. Any Global
Security authenticated and delivered hereunder shall bear a legend in
substantially the following form or in such other form as may be specified
in accordance with Section 3.1:
"THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A
DEPOSITARY OR A NOMINEE OF A DEPOSITARY. UNLESS AND UNTIL IT IS
EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN CERTIFICATED FORM,
THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE
DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR
BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A
NOMINEE OF SUCH SUCCESSOR DEPOSITARY."
ARTICLE 3
THE SECURITIES
Section 3.1. Amount Unlimited; Issuable in Series. (a) The
aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited. The Securities may be issued
from time to time in one or more series.
(b) The following matters shall be established with respect to
each series of Securities issued hereunder (i) by a Board Resolution, (ii)
by action taken pursuant to a Board Resolution and (subject to Section 3.3)
set forth, or determined in the manner provided, in an Officers'
Certificate or (iii) in one or more indentures supplemental hereto:
(1) the title of the Securities of the series (which title shall
distinguish the Securities of the series from all other series of
Securities);
(2) any limit upon the aggregate principal amount of the
Securities of the series which may be authenticated and delivered
under this Indenture (which limit shall not pertain to Securities
authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, other Securities of the series pursuant
to Section 3.4, 3.5, 3.6, 8.6 or 11.7 or any Securities that, pursuant
to Section 3.3, are deemed never to have been authenticated and
delivered hereunder);
(3) the date or dates on which the principal of and premium, if
any, on the Securities of the series is payable or the method or
methods of determination thereof;
(4) the rate or rates at which the Securities of the series shall
bear interest, if any, or the method or methods of calculating such
rate or rates of interest, the date or dates from which such interest
shall accrue or the method or methods by which such date or dates
shall be determined, the Interest Payment Dates on which any such
interest shall be payable, the right, if any, of the Company to defer
or extend an Interest Payment Date and, with respect to Registered
Securities, the Regular Record Date, if any, for the interest payable
on any Registered Security on any Interest Payment Date, and the basis
upon which interest shall be calculated if other than that of a
360-day year of twelve 30-day months;
(5) the place or places where the principal of, premium, if any,
and interest, if any, on Securities of the series shall be payable,
any Registered Securities of the series may be surrendered for
registration of transfer, Securities of the series may be surrendered
for exchange and notices and demands to or upon the Company in respect
of the Securities of the series and this Indenture may be served and
(in the case of Bearer Securities) where notices to Holders pursuant
to Section 1.6 will be published;
(6) the period or periods within which, the price or prices at
which, the currency or currencies (including currency unit or units)
in which, and the other terms and conditions upon which, Securities of
the series may be redeemed, in whole or in part, at the option of the
Company and, if other than as provided in Section 11.3, the manner in
which the particular Securities of such series (if less than all
Securities of such series are to be redeemed) are to be selected for
redemption;
(7) the obligation, if any, of the Company to redeem or purchase
Securities of the series pursuant to any sinking fund or analogous
provisions or upon the happening of a specified event or at the option
of a Holder thereof and the period or periods within which, the price
or prices at which, the currency or currencies (including currency
unit or units) in which, and the other terms and conditions upon
which, Securities of the series shall be redeemed or purchased, in
whole or in part, pursuant to such obligation;
(8) if other than denominations of $1,000 and any integral
multiple thereof, if Registered Securities, and if other than
denominations of $5,000 and any integral multiple thereof, if Bearer
Securities, the denominations in which Securities of the series shall
be issuable;
(9) if other than Dollars, the currency or currencies (including
currency unit or units) in which the principal of, premium, if any,
and interest, if any, on the Securities of the series shall be
payable, or in which the Securities of the series shall be
denominated, and the particular provisions applicable thereto in
accordance with, in addition to, or in lieu of the provisions of
Section 3.12;
(10) if the payments of principal of, premium, if any, or
interest, if any, on the Securities of the series are to be made, at
the election of the Company or a Holder, in a currency or currencies
(including currency unit or units) other than that in which such
Securities are denominated or designated to be payable, the currency
or currencies (including currency unit or units) in which such
payments are to be made, the terms and conditions of such payments and
the manner in which the exchange rate with respect to such payments
shall be determined, and the particular provisions applicable thereto
in lieu of the provisions of Section 3.12;
(11) if the amount of payments of principal of, premium, if any,
and interest, if any, on the Securities of the series shall be
determined with reference to an index, formula or other method (which
index, formula or method may be based, without limitation, on a
currency or currencies (including currency unit or units) other than
that in which the Securities of the series are denominated or
designated to be payable), the index, formula or other method by which
such amounts shall be determined and any special voting or defeasance
provisions in connection therewith;
(12) if other than the entire principal amount thereof, the
portion of the principal amount of such Securities of the series which
shall be payable upon declaration of acceleration thereof pursuant to
Section 5.2 or the method by which such portion shall be determined;
(13) if other than as provided in Section 3.7, the Person to whom
any interest on any Registered Security of the series shall be payable
and the manner in which, or the Person to whom, any interest on any
Bearer Securities of the series shall be payable;
(14) provisions, if any, granting special rights to the Holders
of Securities of the series upon the occurrence of such events as may
be specified;
(15) any deletions from, modifications of or additions to the
Events of Default set forth in Section 5.1 or agreements of the
Company set forth in Article 9 pertaining to the Securities of the
series;
(16) under what circumstances, if any, and with what procedures
and documentation the Company will pay additional amounts on the
Securities and interest coupons, if any, of that series held by a
Person who is not a U.S. Person (including any modification of the
definition of such term) in respect of taxes, assessments or similar
charges withheld or deducted and, if so, whether the Company will have
the option to redeem such Securities rather than pay such additional
amounts (and the terms of any such option);
(17) whether Securities of the series shall be issuable as
Registered Securities or Bearer Securities (with or without interest
coupons), or both, and any restrictions applicable to the offering,
sale, transfer or delivery of Bearer Securities and, if other than as
provided in Section 3.5, the terms upon which Bearer Securities of a
series may be exchanged for Registered Securities of the same series
and vice versa;
(18) the date as of which any Bearer Securities of the series and
any temporary Global Security representing Outstanding Securities of
the series shall be dated if other than the date of original issuance
of the first Security of the series to be issued;
(19) the forms of the Securities and interest coupons, if any, of
the series;
(20) the applicability, if any, to the Securities and interest
coupons, if any, of or within the series of Sections 4.4 and 4.5, or
such other means of defeasance or agreement defeasance as may be
specified for the Securities and interest coupons, if any, of such
series;
(21) if other than the Trustee, the identity of the Registrar and
any Paying Agent;
(22) if the Securities of the series shall be issued in whole or
in part in global form, (i) the Depositary for such Global Securities
(ii) whether beneficial owners of interests in the Global Securities
may exchange such interests for certificated Securities of such
series, to be registered in the names of or to be held by such
beneficial owners or their nominees and to be of like tenor of any
authorized form and denomination, and (iii) if other than as provided
in Section 3.5, the circumstances under which any such exchange may
occur;
(23) any restrictions on the registration, transfer or exchange
of the Securities;
(24) if the Securities of the series may be issued or delivered
(whether upon original issuance or upon exchange of a temporary
Security of such series or otherwise), or any installment of principal
or interest is payable, only upon receipt of certain certificates or
other documents or satisfaction of other conditions in addition to
those specified in this Indenture, the form and terms of such
certificates, documents or conditions;
(25) the terms and conditions of any right to convert or exchange
Securities of the series into or for Equity Securities of the Company,
including provisions for the payment of interest on Securities being
converted or exchanged as contemplated by Section 3.7(d) and Section
14.2;
(26) whether the Securities are secured or unsecured, and if
secured, the security and related terms in connection therewith;
(27) the definition of "Unrestricted Subsidiary" to be used for
such series; and
(28) any other terms of the series including any terms which may
be required by or advisable under United States laws or regulations or
advisable (as determined by the Company) in connection with the
marketing of Securities of the series.
(c) Subject to Section 1.12 and any controlling provision of the
Trust Indenture Act, in the event of any inconsistency between the terms of
this Indenture and the terms applicable to a series of Securities
established in the manner permitted by Section 3.1(b), the (i) Board
Resolution, (ii) Officers' Certificate or (iii) supplemental indenture
setting forth such conflicting term shall prevail.
(d) All Securities of any one series and interest coupons, if
any, appertaining thereto shall be substantially identical except as to
denomination and except as may otherwise be provided (i) by a Board
Resolution, (ii) by action taken pursuant to a Board Resolution and
(subject to Section 3.3) set forth, or determined in the manner provided,
in the related Officers' Certificate or (iii) in an indenture supplemental
hereto. All Securities of any one series need not be issued at the same
time and, unless otherwise provided, a series may be reopened, without the
consent of the Holders, for issuances of additional Securities of such
series.
(e) If any of the terms of the Securities of any series are
established by action taken pursuant to a Board Resolution, a copy of such
Board Resolution shall be delivered to the Trustee at or prior to the
delivery of the Officers' Certificate setting forth, or providing the
manner for determining, the terms of the Securities of such series, and an
appropriate record of any action taken pursuant thereto in connection with
the issuance of any Securities of such series shall be delivered to the
Trustee prior to the authentication and delivery thereof.
Section 3.2. Denominations. Unless otherwise provided as
contemplated by Section 3.1(b), any Registered Securities of a series
denominated in Dollars shall be issuable in denominations of U.S. $1,000
and any integral multiple thereof and any Bearer Securities of a series
denominated in Dollars shall be issuable in the denomination of U.S. $5,000
and any integral multiple thereof. Securities denominated in a Foreign
Currency shall be issuable in such denominations as are established with
respect to such Securities in or pursuant to this Indenture.
Section 3.3. Execution, Authentication, Delivery and Dating.
Securities shall be executed on behalf of the Company by the Chairman of
the Board, the President, the Chief Executive Officer, the Chief Operating
Officer, the Chief Financial Officer or any Vice President of the Company,
and need not be attested. The signatures of any of these officers on the
Securities may be manual or facsimile. The interest coupons, if any, of
Bearer Securities shall bear the facsimile signature of the Chairman of the
Board, the President, the Chief Executive Officer, the Chief Operating
Officer, the Chief Financial Officer or any Vice President of the Company,
and need not be attested.
Securities and interest coupons bearing the manual or facsimile
signatures of individuals who were at any time Officers of the Company
shall bind the Company, notwithstanding that such individuals or any of
them have ceased to be Officers prior to the authentication and delivery of
such Securities or were not Officers at the date of such Securities.
At any time and from time to time, the Company may deliver
Securities, together with any interest coupons appertaining thereto, of any
series executed by the Company and having endorsed (by attachment or
imprint) thereon the Subordinated Guarantees executed as provided in
Section 16.2 by the Guarantors to the Trustee for authentication, together
with a Company Order for the authentication and delivery of such Securities
with such Subordinated Guarantees endorsed thereon, and the Trustee in
accordance with such Company Order shall authenticate and deliver such
Securities with such Subordinated Guarantees endorsed thereon to or upon
the order of the Company (as set forth in such Company Order); provided,
however, that, in the case of Securities of a series offered in a Periodic
Offering, the Trustee shall authenticate and deliver such Securities from
time to time in accordance with such other procedures (including, without
limitation, the receipt by the Trustee of oral or electronic instructions
from the Company or its duly authorized agents, promptly confirmed in
writing) acceptable to the Trustee as may be specified by or pursuant to a
Company Order delivered to the Trustee prior to the time of the first
authentication of Securities of such series.
If the form or terms of the Securities with the Subordinated
Guarantees endorsed thereon of a series have been established by or
pursuant to one or more Board Resolutions or one or more indentures
supplemental hereto as permitted by Sections 2.1 and 3.1, in authenticating
such Securities with Subordinated Guarantees endorsed thereon and accepting
the additional responsibilities under this Indenture in relation to such
Securities with Subordinated Guarantees endorsed thereon, the Trustee shall
be entitled to receive, and (subject to section 315(a) through (d) of the
Trust Indenture Act) shall be fully protected in relying upon,
(i) an Opinion of Counsel stating:
(1) if the form or forms of such Securities and any interest
coupons with Subordinated Guarantees endorsed thereon have been
established by or pursuant to a Board Resolution as permitted by
Section 2.1, that such forms have been established in conformity with
the provisions of this Indenture;
(2) if the terms of such Securities and any interest coupons have
been, or, in the case of Securities of a series with Subordinated
Guarantees endorsed thereon offered in a Periodic Offering, will be,
established by or pursuant to a Board Resolution as permitted by
Section 3.1, that such terms have been, or, in the case of Securities
of a series with Subordinated Guarantees endorsed thereon offered in a
Periodic Offering, will be, established in conformity with the
provisions of this Indenture, subject, in the case of Securities with
Subordinated Guarantees endorsed thereon offered in a Periodic
Offering, to any conditions specified in such Opinion of Counsel;
(3) if the form or terms of such Securities have been established
in an indenture supplemental hereto, that such supplemental indenture
has been duly authorized, executed and delivered by the Company and
the Guarantors and, when duly authorized, executed and delivered by
the Trustee, will constitute a legal, valid and binding obligation
enforceable against the Company and the Guarantors in accordance with
its terms, subject to (i) bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and other similar laws of general
applicability relating to or affecting the enforcement of creditors'
rights and to general principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or at law), and (ii)
such other reasonable exceptions as may be specified in such Opinion
of Counsel; and
(4) that such Securities, together with any interest coupons
appertaining thereto, and the Subordinated Guarantees when issued by
the Company and the Guarantors and (in the case of the Securities)
authenticated and delivered by the Trustee in the manner and subject
to any conditions specified in such Opinion of Counsel, will
constitute valid and legally binding obligations of the Company and
the Guarantors, respectively, enforceable against the Company and the
Guarantors in accordance with their terms, subject to (i) bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and other
similar laws of general applicability relating to or affecting the
enforcement of creditors' rights and to general equity principles
(regardless of whether enforcement is sought in a proceeding in equity
or at law) and except further as enforcement thereof may be limited by
(A) requirements that a claim with respect to any Securities or
Subordinated Guarantees denominated other than in Dollars (or a
Foreign Currency or currency unit judgment in respect of such claim)
be converted into Dollars at a rate of exchange prevailing on a date
determined pursuant to applicable law or (B) governmental authority to
limit, delay or prohibit the making of payments in Foreign Currencies
or currency units or payments outside the United States, and (ii) such
other reasonable exceptions as may be specified in such Opinion of
Counsel; and
(ii) an Officers' Certificate stating that all conditions
precedent provided for in this Indenture relating to the issuance of
such Securities have been complied with and that, to the knowledge of
the signers of such certificate, no Event of Default with respect to
such Securities shall have occurred and be continuing.
Notwithstanding that such form or terms have been so established,
the Trustee shall have the right to decline to authenticate such Securities
if, in the opinion of the Trustee (after consultation with counsel), the
issue of such Securities pursuant to this Indenture will materially
adversely affect the Trustee's own rights, duties or immunities under this
Indenture or otherwise or if the Trustee determines that such
authentication may not lawfully be made.
Notwithstanding the provisions of Section 3.1 and of the two
preceding paragraphs, if all of the Securities of any series are not to be
issued at one time, it shall not be necessary to deliver the Officers'
Certificate otherwise required pursuant to Section 3.1 or the Company Order
and Opinion of Counsel otherwise required pursuant to the two preceding
paragraphs in connection with the authentication of each Security of such
series if such documents, with appropriate modifications to cover such
future issuances, are delivered at or prior to the authentication upon
original issuance of the first Security of such series to be issued.
With respect to Securities with Subordinated Guarantees endorsed
thereon of a series offered in a Periodic Offering, the Trustee may rely,
as to the authorization by the Company of any of such Securities and by the
Guarantors of any such Subordinated Guarantees endorsed thereon, the form
and terms thereof and the legality, validity, binding effect and
enforceability thereof, upon the Opinion of Counsel and the other documents
delivered pursuant to Sections 2.1 and 3.1 and this Section, as applicable,
in connection with the first authentication of Securities of such series.
If the Company shall establish pursuant to Section 3.1 that the
Securities of a series are to be issued in whole or in part as Global
Securities then the Company and the Guarantors shall execute and the
Trustee shall, in accordance with this Section and the Company Order with
respect to such series, authenticate and deliver one or more Global
Securities with Subordinated Guarantees endorsed thereon that (i) shall
represent and shall be denominated in an amount equal to the aggregate
principal amount of the Outstanding Securities of such series to be
represented by such Global Security or Securities, (ii) shall be
registered, if a Registered Security, in the name of the Depositary for
such Global Security or Securities or the nominee of such Depositary, (iii)
shall be delivered by the Trustee to such Depositary or pursuant to such
Depositary's instruction and (iv) shall bear the legend set forth in
Section 2.5.
Each Depositary designated pursuant to Section 3.1 for a
Registered Security in global form must, at the time of its designation and
at all times while it serves as Depositary, be a clearing agency registered
under the Exchange Act and any other applicable statute or regulation. If
requested by the Company, the Trustee shall enter into an agreement with a
Depositary governing the respective duties and rights of such Depositary
and the Trustee with regard to Global Securities with Subordinated
Guarantees endorsed thereon.
Each Registered Security shall be dated the date of its
authentication and each Bearer Security shall be dated as of the date
specified pursuant to Section 3.1.
No Security or interest coupon appertaining thereto or
Subordinated Guarantee endorsed thereon shall be entitled to any benefits
under this Indenture or be valid or obligatory for any purpose until such
Security has been authenticated by the manual signature of one of the
authorized signatories of the Trustee or an Authenticating Agent. Such
signature upon any Security with Subordinated Guarantees endorsed thereon
shall be conclusive evidence, and the only evidence, that such Security has
been duly authenticated and delivered under this Indenture and is entitled
to the benefits of this Indenture and that each Subordinated Guarantee
endorsed thereon has been duly endorsed thereon and delivered under this
Indenture. Except as permitted by Section 3.6 or 3.7, the Trustee shall not
authenticate and deliver any Bearer Security unless all appurtenant
interest coupons for interest then matured have been detached and
cancelled.
Notwithstanding the foregoing, if any Security shall have been
authenticated and delivered hereunder but never issued and sold by the
Company, and the Company shall deliver such Security to the Trustee for
cancellation as provided in Section 3.9 together with a written statement
(which need not comply with Section 1.2 hereof and need not be accompanied
by an Officers' Certificate or an Opinion of Counsel) stating that such
Security has never been issued and sold by the Company, for all purposes of
this Indenture such Security shall be deemed never to have been
authenticated and delivered hereunder and shall not be entitled to the
benefits of this Indenture.
Section 3.4. Temporary Securities. Pending the preparation of
definitive Securities of any series, the Company and the Guarantors may
execute and, upon Company Order, the Trustee shall authenticate and deliver
temporary Securities with Subordinated Guarantees endorsed thereon of such
series which are printed, lithographed, typewritten, mimeographed or
otherwise produced, in any authorized denomination, substantially of the
tenor and form, with or without interest coupons, of the definitive
Securities with Subordinated Guarantees endorsed thereon in lieu of which
they are issued and with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such
Securities and such Subordinated Guarantees may determine, as conclusively
evidenced by their execution of such Securities and interest coupons, if
any and such Subordinated Guarantees. In the case of Securities of any
series, such temporary Securities may be in Global Securities, representing
all or a portion of the Outstanding Securities of such series.
Except in the case of temporary Global Securities, each of which
shall be exchanged in accordance with the provisions thereof, if temporary
Securities of any series are issued, the Company and the Guarantors will
cause definitive Securities with Subordinated Guarantees endorsed thereon
of such series to be prepared without unreasonable delay. After preparation
of definitive Securities of such series, the temporary Securities of such
series shall be exchangeable for definitive Securities of such series upon
surrender of the temporary Securities of such series at the office or
agency of the Company pursuant to Section 9.2 in a Place of Payment for
such series, without charge to the Holder. Upon surrender for cancellation
of any one or more temporary Securities of any series (accompanied by any
unmatured interest coupons appertaining thereto), the Company and the
Guarantors shall execute and the Trustee shall authenticate and deliver in
exchange therefor a like principal amount of definitive Securities with
Subordinated Guarantees endorsed thereon of the same series of authorized
denominations and of like tenor; provided, however, that no definitive
Bearer Security shall be delivered in exchange for a temporary Registered
Security; and provided, further, that no definitive Bearer Security shall
be delivered in exchange for a temporary Bearer Security unless such
delivery shall occur outside the United States. Until so exchanged, the
temporary Securities of any series shall in all respects be entitled to the
same benefits under this Indenture as definitive Securities of such series
except as otherwise specified as contemplated by Section 3.1.
Section 3.5. Registration, Transfer and Exchange. The Company
shall cause to be kept at the Corporate Trust Office of the Trustee or in
any office or agency to be maintained by the Company in accordance with
Section 9.2 in a Place of Payment a register (the "Register") in which,
subject to such reasonable regulations as it may prescribe, the Company
shall provide for the registration of Registered Securities and the
registration of transfers of Registered Securities. The Register shall be
in written form or any other form capable of being converted into written
form within a reasonable time. The Trustee is hereby initially appointed
"Registrar" for the purpose of registering Registered Securities and
transfers of Registered Securities as herein provided.
Each Global Security authenticated under this Indenture shall be
registered in the name of the Depositary or a nominee thereof and delivered
to such Depositary or nominee thereof or to a successor of such Depositary
or nominee thereof, and each such Global Security shall constitute a single
Security for all purposes of this Indenture.
Upon surrender for registration of transfer of any Registered
Security of any series at the office or agency maintained pursuant to
Section 9.2 in a Place of Payment for that series, the Company and the
Guarantors shall execute, and the Trustee shall authenticate and deliver,
in the name of the designated transferee or transferees, one or more new
Registered Securities with Subordinated Guarantees endorsed thereon of the
same series, of any authorized denominations and of a like aggregate
principal amount and tenor and containing identical terms and provisions.
Bearer Securities (except for any temporary global Bearer
Securities) or any interest coupons appertaining thereto (except for
interest coupons attached to any temporary global Bearer Security) shall be
transferable by delivery.
At the option of the Holder, Registered Securities of any series
(except a Registered Security in global form) may be exchanged for other
Registered Securities of the same series, of any authorized denominations,
of a like aggregate principal amount and tenor and containing identical
terms and provisions, upon surrender of the Registered Securities to be
exchanged at such office or agency. Whenever any Registered Securities are
so surrendered for exchange, the Company and the Guarantors shall execute,
and the Trustee shall authenticate and deliver, the Registered Securities
with Subordinated Guarantees endorsed thereon which the Holder making the
exchange is entitled to receive. Unless otherwise specified as contemplated
by Section 3.1, Bearer Securities may not be issued in exchange for
Registered Securities.
Unless otherwise specified as contemplated by Section 3.1, at the
option of the Holder, Bearer Securities of such series may be exchanged for
Registered Securities (if the Securities of such series are issuable in
registered form) or Bearer Securities (if Bearer Securities of such series
are issuable in more than one denomination and such exchanges are permitted
by such series) of the same series, of any authorized denominations, of
like aggregate principal amount and tenor and containing identical terms
and conditions, upon surrender of the Bearer Securities to be exchanged at
any such office or agency, with all unmatured interest coupons and all
matured interest coupons in default thereto appertaining. If the Holder of
a Bearer Security is unable to produce any such unmatured interest coupon
or coupons or matured interest coupon or coupons in default, such exchange
may be effected if the Bearer Securities are accompanied by payment in
funds acceptable to the Company and the Trustee in an amount equal to the
face amount of such missing interest coupon or coupons, or the surrender of
such missing interest coupon or interest coupons may be waived by the
Company, the Guarantors and the Trustee if there be furnished to them such
security or indemnity as they may require to save each of them and any
Paying Agent harmless. If thereafter the Holder of such Security shall
surrender to any Paying Agent any such missing interest coupon in respect
of which such a payment shall have been made, such Holder shall be entitled
to receive the amount of such payment; provided, however, that, except as
otherwise provided in Section 9.2, interest represented by interest coupons
shall be payable only upon presentation and surrender of those interest
coupons at an office or agency located outside the United States.
Notwithstanding the foregoing, in case any Bearer Security of any series is
surrendered at any such office or agency in exchange for a Registered
Security of the same series after the close of business at such office or
agency on (i) any Regular Record Date and before the opening of business at
such office or agency on the relevant Interest Payment Date, or (ii) any
Special Record Date and before the opening of business at such office or
agency on the related date for payment of Defaulted Interest, such Bearer
Security shall be surrendered without the interest coupon relating to such
Interest Payment Date or proposed date of payment, as the case may be (or,
if such interest coupon is so surrendered with such Bearer Security, such
interest coupon shall be returned to the Person so surrendering the Bearer
Security), and interest or Defaulted Interest, as the case may be, will not
be payable on such Interest Payment Date or proposed date for payment, as
the case may be, in respect of the Registered Security issued in exchange
for such Bearer Security, but will be payable only to the Holder of such
interest coupon, when due in accordance with the provisions of this
Indenture.
Notwithstanding anything herein to the contrary, the exchange of
Bearer Securities for Registered Securities shall be subject to applicable
laws and regulations in effect at the time of exchange. Neither the
Company, the Guarantors, the Trustee nor the Registrar shall exchange any
Bearer Securities for Registered Securities if it has received an Opinion
of Counsel that as a result of such exchange the Company would suffer
adverse consequences under the United States Federal income tax laws and
regulations then in effect and the Company has delivered to the Trustee a
Company Order directing the Trustee not to make such exchanges thereafter,
unless and until the Trustee receives a subsequent Company Order to the
contrary. The Company shall deliver copies of such Company Order to the
Registrar.
Notwithstanding any other provision of this Section, unless and
until it is exchanged in whole or in part for Securities in certificated
form, a Global Security representing all or a portion of the Securities of
a series may not be transferred except as a whole by the Depositary for
such series to a nominee of such Depositary or by a nominee of such
Depositary to such Depositary or another nominee of such Depositary or by
such Depositary or any such nominee to a successor Depositary for such
series or a nominee of such successor Depositary.
If at any time the Depositary for the Securities of a series
notifies the Company that it is unwilling or unable to continue as
Depositary for the Securities of such series or if at any time the
Depositary for the Securities of such series shall no longer be eligible
under Section 3.3, the Company shall appoint a successor Depositary with
respect to the Securities of such series. If a successor Depositary for the
Securities of such series is not appointed by the Company prior to the
resignation of the Depositary and, in any event, within 90 days after the
Company receives such notice or becomes aware of such ineligibility, the
Company's designation of the Depositary pursuant to Section 3.1(b)(22)
shall no longer be effective with respect to the Securities of such series
and the Company and the Guarantors shall execute, and the Trustee, upon
receipt of a Company Order for the authentication and delivery of
certificated Securities with Subordinated Guarantees endorsed thereon of
such series of like tenor, shall authenticate and deliver, Securities with
Subordinated Guarantees endorsed thereon of such series of like tenor in
certificated form, in authorized denominations and in an aggregate
principal amount equal to the principal amount of the Global Security or
Securities of such series of like tenor in exchange for such Global
Security or Securities.
The Company may at any time in its sole discretion determine that
Global Securities shall no longer be represented by such a Global Security
or Securities. In such event the Company and the Guarantors shall execute,
and the Trustee, upon receipt of a Company Order for the authentication and
delivery of certificated Securities with Subordinated Guarantees endorsed
thereon of such series of like tenor, shall authenticate and deliver,
Securities with Subordinated Guarantees endorsed thereon of such series of
like tenor in certificated form, in authorized denominations and in an
aggregate principal amount equal to the principal amount of the Global
Security or Securities of such series of like tenor in exchange for such
Global Security or Securities.
If specified by the Company pursuant to Section 3.1 with respect
to a series of Securities, the Depositary for such series may surrender a
Global Security of such series in exchange in whole or in part for
Securities of such series in certificated form on such terms as are
acceptable to the Company, the Guarantors and such Depositary. Thereupon,
the Company and the Guarantors shall execute, and the Trustee shall
authenticate and deliver, without service charge,
(i) to each Person specified by such Depositary a new
certificated Security or Securities with Subordinated Guarantees
endorsed thereon of the same series of like tenor, of any authorized
denomination as requested by such Person in aggregate principal amount
equal to and in exchange for such Person's beneficial interest in the
Global Security; and
(ii) to such Depositary a new Global Security with Subordinated
Guarantees endorsed thereon of like tenor in a denomination equal to
the difference, if any, between the principal amount of the
surrendered Global Security and the aggregate principal amount of
certificated Securities delivered to Holders thereof.
Upon the exchange of a Global Security with Subordinated
Guarantees endorsed thereon for Securities with Subordinated Guarantees
endorsed thereon in certificated form, such Global Security with
Subordinated Guarantees endorsed thereon shall be cancelled by the Trustee.
Unless expressly provided with respect to the Securities of any series that
such Security may be exchanged for Bearer Securities, Securities with
Subordinated Guarantees endorsed thereon in certificated form issued in
exchange for a Global Security with Subordinated Guarantees endorsed
thereon pursuant to this Section shall be registered in such names and in
such authorized denominations as the Depositary for such Global Security
with Subordinated Guarantees endorsed thereon pursuant to instructions from
its direct or indirect participants or otherwise, shall instruct the
Trustee in writing. The Trustee shall deliver such Securities with
Subordinated Guarantees endorsed thereon to the Persons in whose names such
Securities with Subordinated Guarantees endorsed thereon are so registered.
Whenever any Securities are surrendered for exchange, the Company
and the Guarantors shall execute, and the Trustee shall authenticate and
deliver, the Securities with Subordinated Guarantees endorsed thereon which
the Holder making the exchange is entitled to receive.
All Securities with Subordinated Guarantees endorsed thereon
issued upon any registration of transfer or upon any exchange of Securities
with Subordinated Guarantees endorsed thereon shall be the valid
obligations of the Company and the Guarantors, evidencing the same debt,
and entitled to the same benefits under this Indenture, as the Securities
with Subordinated Guarantees endorsed thereon surrendered upon such
registration of transfer or exchange.
Every Registered Security presented or surrendered for
registration of transfer or for exchange shall (if so required by the
Company, the Guarantors, the Registrar or the Trustee) be duly endorsed, or
be accompanied by a written instrument of transfer in form satisfactory to
the Company, the Guarantors, the Registrar and the Trustee duly executed by
the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer
or for any exchange of Securities, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any registration or transfer or exchange of
Securities, other than exchanges pursuant to Section 3.4, 8.6 or 11.7 not
involving any transfer.
The Company and the Guarantors shall not be required (i) to
issue, register the transfer of, or exchange any Securities with
Subordinated Guarantees endorsed thereon for a period beginning at the
opening of business 15 days before any selection for redemption of
Securities of like tenor and of the series of which such Security is a part
and ending at the close of business on the earliest date on which the
relevant notice of redemption is deemed to have been given to all Holders
of Securities of like tenor and of such series to be redeemed; (ii) to
register the transfer of or exchange any Registered Security with
Subordinated Guarantees endorsed thereon so selected for redemption, in
whole or in part, except the unredeemed portion of any Security being
redeemed in part; or (iii) to exchange any Bearer Security with
Subordinated Guarantees endorsed thereon so selected for redemption, except
that such a Bearer Security may be exchanged for a Registered Security of
that series and like tenor; provided that such Registered Security shall be
simultaneously surrendered for redemption.
The foregoing provisions relating to registration, transfer and
exchange may be modified, supplemented or superseded with respect to any
series of Securities by a Board Resolution or in one or more indentures
supplemental hereto.
Section 3.6. Replacement Securities. If a mutilated Security or a
Security with a mutilated interest coupon appertaining to it is surrendered
to the Trustee, together with, in proper cases, such security or indemnity
as may be required by the Company, the Guarantors or the Trustee to save
each of them harmless, the Company and the Guarantors shall execute and the
Trustee shall authenticate and deliver a replacement Registered Security
with Subordinated Guarantees endorsed thereon, if such surrendered Security
was a Registered Security, or a replacement Bearer Security with
Subordinated Guarantees endorsed thereon with interest coupons
corresponding to the interest coupons appertaining to the surrendered
Security, if such surrendered Security was a Bearer Security, of the same
series and date of maturity.
If there shall be delivered to the Company, the Guarantors and
the Trustee (i) evidence to their satisfaction of the destruction, loss or
theft of any Security or interest coupon and (ii) such security or
indemnity as may be required by them to save each of them and any agent of
any of them harmless, then, in the absence of notice to the Company or the
Trustee that such Security or interest coupon has been acquired by a bona
fide purchaser, the Company and the Guarantors shall execute and the
Trustee shall authenticate and deliver in lieu of any such destroyed, lost
or stolen Security or in exchange for the Security to which a destroyed,
lost or stolen interest coupon appertains (with all appurtenant interest
coupons not destroyed, lost or stolen), a replacement Registered Security
with Subordinated Guarantees endorsed thereon, if such Holder's claim
appertains to a Registered Security with Subordinated Guarantees endorsed
thereon, or a replacement Bearer Security with Subordinated Guarantees
endorsed thereon with interest coupons corresponding to the interest
coupons appertaining to the destroyed, lost or stolen Bearer Security or
the Bearer Security to which such lost, destroyed or stolen interest coupon
appertains, if such Holder's claim appertains to a Bearer Security, of the
same series and principal amount, containing identical terms and provisions
and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security or
interest coupon has become or is about to become due and payable, the
Company and the Guarantors in their discretion may, instead of issuing a
new Security or interest coupon with Subordinated Guarantees endorsed
thereon, pay such Security or interest coupon; provided, however, that
payment of principal of and any premium or interest on Bearer Securities
shall, except as otherwise provided in Section 9.2, be payable only at an
office or agency located outside the United States and, unless otherwise
specified as contemplated by Section 3.1, any interest on Bearer Securities
shall be payable only upon presentation and surrender of the interest
coupons appertaining thereto.
Upon the issuance of any new Security under this Section, the
Company and the Guarantors may require the payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of the
Trustee, its agents and counsel) connected therewith.
Every new Security with Subordinated Guarantees endorsed thereon
of any series with its interest coupons, if any, issued pursuant to this
Section in lieu of any destroyed, lost or stolen Security, or in exchange
for a Security to which a destroyed, lost or stolen interest coupon
appertains, shall constitute an original additional contractual obligation
of the Company and the relevant Guarantor, whether or not the destroyed,
lost or stolen Security and its interest coupon, if any, or the destroyed,
lost or stolen interest coupon, shall be at any time enforceable by anyone,
and shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities of that series and their
interest coupons, if any, duly issued hereunder.
The provisions of this Section are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities
or interest coupons.
Section 3.7. Payment of Interest; Interest Rights Preserved. (a)
Unless otherwise provided as contemplated by Section 3.1, interest, if any,
on any Registered Security which is payable, and is punctually paid or duly
provided for, on any Interest Payment Date shall be paid to the Person in
whose name that Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest at the office or agency maintained for such purpose pursuant to
Section 9.2; provided, however, that at the option of the Company, interest
on any series of Registered Securities that bears interest may be paid (i)
by check mailed to the address of the Person entitled thereto as it shall
appear on the Register of Holders of Securities of such series or (ii) at
the expense of the Company, by wire transfer to an account maintained by
the Person entitled thereto as specified in the Register of Holders of
Securities of such series.
Unless otherwise provided as contemplated by Section 3.1, (i)
interest, if any, on Bearer Securities shall be paid only against
presentation and surrender of the interest coupons for such interest
installments as are evidenced thereby as they mature and (ii) original
issue discount, if any, on Bearer Securities shall be paid only against
presentation and surrender of such Securities; in either case at the office
of a Paying Agent located outside the United States, unless the Company
shall have otherwise instructed the Trustee in writing, provided that any
such instruction for payment in the United States does not cause any Bearer
Security to be treated as a "registration-required obligation" under United
States laws and regulations. The interest, if any, on any temporary Bearer
Security shall be paid, as to any installment of interest evidenced by an
interest coupon attached thereto only upon presentation and surrender of
such interest coupon and, as to other installments of interest, only upon
presentation of such Security for notation thereon of the payment of such
interest. If at the time a payment of principal of or interest, if any, on
a Bearer Security or interest coupon shall become due, the payment of the
full amount so payable at the office or offices of all the Paying Agents
outside the United States is illegal or effectively precluded because of
the imposition of exchange controls or other similar restrictions on the
payment of such amount in Dollars, then the Company may instruct the
Trustee in writing to make such payments at a Paying Agent located in the
United States, provided that provision for such payment in the United
States would not cause such Bearer Security to be treated as a
"registration-required obligation" under United States laws and
regulations.
(b) Unless otherwise provided as contemplated by Section 3.1, any
interest on Securities of any series which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date in the
case of Registered Securities and upon presentation and surrender of the
applicable interest coupon in accordance with the second paragraph of
Section 3.7(a) in the case of Bearer Securities (herein called "Defaulted
Interest"), shall forthwith cease to be payable to the Holders of
Registered Securities on the relevant Regular Record Date by virtue of
their having been such Holders, or to the Holders of Bearer Securities by
virtue of their having presented the applicable interest coupon on such
Interest Payment Date, and such Defaulted Interest may be paid by the
Company, at its election in each case, as provided in clause (1) or (2)
below:
(1) In the case of Registered Securities, the Company may elect
to make payment of such Defaulted Interest to the Persons in whose
names such Registered Securities (or their respective Predecessor
Securities) are registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest, which shall be
fixed in the following manner. The Company shall notify the Trustee in
writing of the amount of Defaulted Interest proposed to be paid on
each such Registered Security and the date of the proposed payment,
and shall deposit with the Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements satisfactory to the Trustee for
such deposit prior to the date of the proposed payment, such money
when deposited to be held in trust for the benefit of the Persons
entitled to such Defaulted Interest as in this clause (1) provided.
Thereupon the Trustee shall fix a Special Record Date for the payment
of such Defaulted Interest which shall be not more than 15 days and
not less than 10 days prior to the date of the proposed payment and
not less than 10 days after the receipt by the Trustee of the notice
of the proposed payment. The Trustee shall promptly notify the Company
of such Special Record Date and, in the name and at the expense of the
Company, shall cause notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor to be mailed,
first-class postage prepaid, to each Holder of such Registered
Securities at his or her address as it appears in the Register, not
less than 10 days prior to such Special Record Date. Notice of the
proposed payment of such Defaulted Interest and the Special Record
Date therefor having been so mailed, such Defaulted Interest shall be
paid to the Persons in whose names such Registered Securities (or
their respective Predecessor Securities) are registered at the close
of business on such Special Record Date and shall no longer be payable
pursuant to the following clause (2).
(2)(x) In the case of Registered Securities, the Company may make
payment of such Defaulted Interest to the Persons in whose names such
Registered Securities (or their respective Predecessor Securities) are
registered at the close of business on a specified date in any other
lawful manner not inconsistent with the requirements of any securities
exchange on which such Registered Securities may be listed, and upon
such notice as may be required by such exchange, if, after notice
given by the Company to the Trustee of the proposed payment pursuant
to this clause (2)(x), such manner of payment shall be deemed
practicable by the Trustee; or (y) unless otherwise provided as
contemplated by Section 3.1, in the case of Bearer Securities, the
Company may make payment of Defaulted Interest on such Bearer
Securities in any lawful manner not inconsistent with the requirements
of any securities exchange on which such Bearer Securities may be
listed, and upon such notice as may be required by such exchange, if,
after notice given by the Company to the Trustee of the proposed
payment pursuant to this clause (2)(y), such manner of payment shall
be deemed practicable by the Trustee.
(c) Subject to the foregoing provisions of this Section and
Section 3.5, each Security delivered under this Indenture upon registration
of transfer of or in exchange for or in lieu of any other Security shall
carry the rights to interest accrued and unpaid, and to accrue, which were
carried by such other Security.
(d) In the case of any Registered Security which is converted or
exchanged after any Regular Record Date and on or prior to the next
succeeding Interest Payment Date (other than any Security the principal of
(or premium, if any on) which shall become due and payable, whether at
Stated Maturity or by declaration of acceleration, call for redemption, or
otherwise, prior to such Interest Payment Date), interest whose Stated
Maturity is on such Interest Payment Date shall be payable on such Interest
Payment Date notwithstanding such conversion or exchange and such interest
(whether or not punctually paid or duly provided for) shall be paid to the
Person in whose name that Registered Security (or any one or more
Predecessor Securities) is registered at the close of business on such
Regular Record Date, unless otherwise provided with respect to Securities
of that series pursuant to Section 3.1(b).
Section 3.8. Persons Deemed Owners. Unless otherwise provided as
contemplated by Section 3.1, prior to due presentment of any Registered
Security for registration of transfer, the Company, the Guarantors, the
Trustee and any agent of the Company, any Guarantor or the Trustee may
treat the Person in whose name such Registered Security is registered as
the owner of such Registered Security for the purpose of receiving payment
of principal of, premium, if any, and (subject to Section 3.7) interest on
such Registered Security and for all other purposes whatsoever, whether or
not such Registered Security be overdue, and neither the Company, any
Guarantor, the Trustee nor any agent of the Company, any Guarantor or the
Trustee shall be affected by notice to the contrary.
Unless otherwise provided as contemplated by Section 3.1, the
Company, the Guarantors, the Trustee and any agent of the Company, any
Guarantor or the Trustee may treat the bearer of any Bearer Security and
the bearer of any interest coupon as the absolute owner of such Bearer
Security or interest coupon for the purpose of receiving payment thereof or
on account thereof and for all other purposes whatsoever, whether or not
such Bearer Security or interest coupon be overdue, and neither the
Company, the Guarantors, the Trustee nor any agent of the Company, any
Guarantor or the Trustee shall be affected by notice to the contrary.
None of the Company, the Guarantors, the Trustee or any agent of
the Company, any Guarantor or the Trustee shall have any responsibility or
liability for any aspect of the records relating to or payments made on
account of beneficial ownership interests of a Global Security, or for
maintaining, supervising or reviewing any records relating to such
beneficial ownership interests. No holder of any beneficial interest in any
Global Security, held on its behalf by or through a Depositary, shall have
any rights under this Indenture with respect to such Global Security, and
such Depositary may be treated by the Company, the Guarantors, the Trustee
and any agent of the Company, any Guarantor or the Trustee as the owner of
such Global Security for all purposes whatsoever. With respect to any
Global Security, nothing herein shall prevent the Company, the Guarantors
or the Trustee, or any agent of the Company, any Guarantor or the Trustee,
from giving effect to any written certification, proxy or other
authorization furnished by any Depositary (or its nominee), as a Holder,
with respect to such Global Security or impair, as between such Depositary
and owners of beneficial interests in such Global Security, the operation
of customary practices governing the exercise of the rights of such
Depositary (or its nominee) as Holder of such Global Security.
Section 3.9. Cancellation. All Securities and interest coupons
appertaining thereto, if any, surrendered for payment, redemption,
conversion, registration of transfer or exchange or for credit against any
sinking fund payment shall, if surrendered to any Person other than the
Trustee, be delivered to the Trustee and, together with the Subordinated
Guarantees endorsed thereon, shall be promptly cancelled by it. The Company
may at any time deliver to the Trustee for cancellation any Securities,
together with interest coupons appertaining thereto, if any, previously
authenticated and delivered hereunder which the Company may have acquired
in any manner whatsoever, and may deliver to the Trustee (or to any other
Person for delivery to the Trustee) for cancellation any Securities,
together with interest coupons appertaining thereto, if any, previously
authenticated hereunder which the Company has not issued and sold, and all
Securities and interest coupons so delivered shall, together with the
Subordinated Guarantees endorsed thereon, be promptly cancelled by the
Trustee. No Securities shall be authenticated in lieu of or in exchange for
any Securities cancelled as provided in this Section 3.9, except as
expressly permitted by this Indenture. All cancelled Securities and
interest coupons held by the Trustee shall, together with the Subordinated
Guarantees endorsed thereon, be disposed of in accordance with its
customary procedures, and the Trustee shall thereafter deliver to the
Company a certificate with respect to such disposition.
Section 3.10. Computation of Interest. Except as otherwise
specified as contemplated by Section 3.1, interest on the Securities of
each series shall be computed on the basis of a 360-day year of twelve
30-day months.
Section 3.11. CUSIP Numbers. The Company in issuing the
Securities may use "CUSIP" numbers (if then generally in use and in
addition to the other identification numbers printed on the Securities),
and, in such case, the Trustee shall use "CUSIP" numbers in notices of
redemption as a convenience to Holders; provided that any such notice may
state that no representation is made as to the correctness of such numbers
either as printed on the Securities or as contained in any notice of a
redemption and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not be
affected by any defect in or omission of such numbers.
Section 3.12. Currency and Manner of Payment in Respect of
Securities. Unless otherwise specified with respect to any Securities
pursuant to Section 3.1, payment of the principal of, premium, if any, and
interest, if any, on any Security of such series will be made in the
currency or currencies or currency unit or units in which such Security is
payable. The provisions of this Section 3.12 may be modified or superseded
pursuant to Section 3.1 with respect to any Securities.
ARTICLE 4
SATISFACTION, DISCHARGE AND DEFEASANCE
Section 4.1. Termination of Company's Obligations Under the
Indenture. This Indenture shall upon a Company Request cease to be of
further effect with respect to Securities of or within any series and any
interest coupons appertaining thereto (except as to (i) rights of
registration, transfer or exchange of such Securities, (ii) rights of
replacement of such Securities which may have been lost, stolen or
mutilated as herein expressly provided for, (iii) rights of holders of
Securities to receive payments of principal thereof and interest thereon,
upon the Stated Maturity thereof (but not upon acceleration), and rights of
the Holders to receive mandatory sinking fund payments, if any, (iv) rights
of holders of Securities to convert or exchange Securities, (v) rights,
obligations, duties and immunities of the Trustee hereunder, (vi) any
rights of the Holders of Securities of such series as beneficiaries hereof
with respect to the property so deposited with the Trustee payable to all
or any of them, and (vii) the obligations of the Company under Section 9.2)
and the Trustee, upon payment of all amounts due it under Section 6.7, at
the expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture with respect to such
Securities and any interest coupons appertaining thereto when
(1) either (A) all such Securities previously authenticated and
delivered and all interest coupons appertaining thereto (other than
(i) such interest coupons appertaining to Bearer Securities
surrendered in exchange for Registered Securities and maturing after
such exchange, surrender of which is not required or has been waived
as provided in Section 3.5, (ii) such Securities and interest coupons
which have been destroyed, lost or stolen and which have been replaced
or paid as provided in Section 3.6, (iii) such interest coupons
appertaining to Bearer Securities called for redemption and maturing
after the relevant Redemption Date, surrender of which has been waived
as provided in Section 11.6 and (iv) such Securities and interest
coupons for whose payment money in the currency or currencies or
currency unit or units in which such Securities are payable has
theretofore been deposited in trust or segregated and held in trust by
the Company and thereafter repaid to the Company or discharged from
such trust, as provided in Section 9.3) have been delivered to the
Trustee for cancellation; or (B) all Securities of such series and, in
the case of (i) or (ii) below, any interest coupons appertaining
thereto not theretofore delivered to the Trustee for cancellation:
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity
within one year, or
(iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice
of redemption by the Trustee in the name, and at the expense, of
the Company,
and the Company, in the case of (i), (ii) or (iii) above, has irrevocably
deposited or caused to be deposited with the Trustee as trust funds in
trust for the purpose an amount in the currency or currencies or currency
unit or units in which the Securities of such series are payable,
sufficient to pay and discharge the entire indebtedness on such Securities
and such interest coupons not theretofore delivered to the Trustee for
cancellation, for principal, premium, if any, and interest, with respect
thereto, to the date of such deposit (in the case of Securities which have
become due and payable) or to the Stated Maturity or Redemption Date, as
the case may be;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company and the Guarantors; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the satisfaction
and discharge of this Indenture as to such series have been complied
with.
Notwithstanding the satisfaction and discharge of this Indenture,
the obligation of the Company to the Trustee and any predecessor Trustee
under Section 6.7, the obligations of the Company to any Authenticating
Agent under Section 6.14 and, if money shall have been deposited with the
Trustee pursuant to subclause (B) of clause (1) of this Section, the
obligations of the Trustee under Section 4.2, Section 9.2 and the last
paragraph of Section 9.3 shall survive.
Section 4.2. Application of Trust Funds. Subject to the
provisions of the last paragraph of Section 9.3, all money deposited with
the Trustee pursuant to Section 4.1 shall be held in trust and applied by
it, in accordance with the provisions of the Securities, the interest
coupons appertaining thereto, if any, and this Indenture, to the payment,
either directly or through any Paying Agent (including the Company acting
as its own Paying Agent) as the Trustee may determine, to the Persons
entitled thereto, of the principal, premium, if any and any interest for
whose payment such money has been deposited with or received by the
Trustee, but such money need not be segregated from other funds except as
otherwise provided herein and except to the extent required by law.
Section 4.3. Applicability of Defeasance Provisions; Company's
Option to Effect Defeasance or Agreement Defeasance. Except as otherwise
specified as contemplated by Section 3.1 for the Securities of any series,
the provisions of Sections 4.4 through 4.9 inclusive, with such
modifications thereto as may be specified pursuant to Section 3.1 with
respect to any series of Securities, shall be applicable to the Securities
and any interest coupons appertaining thereto.
Section 4.4. Defeasance and Discharge. On and after the date on
which the conditions set forth in Section 4.6 are satisfied with respect to
the Securities of or within any series, the Company shall be deemed to have
paid and been discharged from its obligations with respect to such
Securities and any interest coupons appertaining thereto (hereinafter
"defeasance"). For this purpose, such defeasance means that (i) the Company
shall be deemed to have paid and discharged the entire indebtedness
represented by such Securities and any interest coupons appertaining
thereto which shall thereafter be deemed to be "Outstanding" only for the
purposes of Sections 4.7 and 4.9 and the other Sections of this Indenture
referred to in clause (ii) (B) of this Section, and to have satisfied all
its other obligations under such Securities and any interest coupons
appertaining thereto and this Indenture insofar as such Securities and any
interest coupons appertaining thereto are concerned (and the Trustee, upon
payment of all amounts due it under Section 6.7, at the expense of the
Company, shall on a Company Order execute proper instruments acknowledging
the same) and (ii) the Guarantors shall be released from all of their
obligations under their Subordinated Guarantees and under Article 16 of
this Indenture, except the following which shall survive until otherwise
terminated or discharged hereunder: (A) the rights of Holders of such
Securities and any interest coupons appertaining thereto to receive, solely
from the trust funds described in Section 4.6(a) and as more fully set
forth in such Section, payments in respect of the principal of, premium, if
any, and interest, if any, on such Securities or any interest coupons
appertaining thereto when such payments are due; (B) the Company's
obligations with respect to such Securities under Sections 3.4, 3.5, 3.6,
9.2 and 9.3 and with respect to the payment of additional amounts, if any,
payable with respect to such Securities as specified pursuant to Section
3.1(b)(16); (C) the Company's obligations with respect to a conversion or
exchange of such Securities; (D) the rights, powers, trusts, duties and
immunities of the Trustee hereunder and (E) this Article 4. Subject to
compliance with this Article 4, the Company may defease the Securities of
any series and any interest coupons appertaining thereto under this Section
4.4 notwithstanding a prior agreement defeasance (as defined herein) under
Section 4.5 with respect to such Securities and any interest coupons
appertaining thereto. Following a defeasance, payment of such Securities
may not be accelerated because of an Event of Default.
Section 4.5. Agreement Defeasance. On and after the date on which
the conditions set forth in Section 4.6 are satisfied with respect to the
Securities of or within any series, (i) the Company shall be released from
its obligations under Section 7.1 and, if specified pursuant to Section
3.1, its obligations under any other agreement, with respect to such
Securities and any interest coupons appertaining thereto, (ii) the
occurrence of any event specified in Section 5.1(d) or 5.1(i) (in each
case, with respect to any of the obligations described in clause (i) above)
or 5.1(e) shall be deemed not to be or result in a Default or Event of
Default (hereinafter, "agreement defeasance"), and such Securities and any
interest coupons appertaining thereto shall thereafter be deemed to be not
"Outstanding" for the purposes of any request, demand, authorization,
direction, notice, waiver, consent or declaration or Act of Holders (and
the consequences of any thereof) in connection with Section 7.1, such other
agreement specified pursuant to Section 3.1, or Section 5.1(d) or 5.1(i)
(in each case, with respect to any of the obligations described in clause
(i) above) or 5.1(e), but shall continue to be deemed "Outstanding" for all
other purposes hereunder and (iii) the provisions of Article Fifteen shall
cease to be effective as to such Securities to the extent provided therein.
For this purpose, such agreement defeasance means that, with respect to
such Securities and any interest coupons appertaining thereto, the Company
may omit to comply with and shall have no liability in respect of any term,
condition or limitation set forth in any such Section or such other
agreement, whether directly or indirectly, by reason of any reference
elsewhere herein to any such Section or such other agreement or by reason
of reference in any such Section or such other agreement to any other
provision herein or in any other document and such omission to comply shall
not constitute a Default or an Event of Default under Section 5.1(d),
5.1(e) or 5.1(i) or otherwise, as the case may be, but, except as specified
above, the remainder of this Indenture and such Securities and any interest
coupons appertaining thereto shall be unaffected thereby.
Section 4.6. Conditions to Defeasance or Agreement Defeasance.
The following shall be the conditions to application of either Section 4.4
or Section 4.5 to the then Outstanding Securities of or within a series:
(a) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the
requirements of Section 6.9 who shall agree to comply with the
provisions of Sections 4.3 through 4.9 inclusive and the last
paragraph of Section 9.3 applicable to the Trustee, for purposes of
such sections also a "Trustee") as trust funds in trust for the
purpose of making the following payments, specifically pledged as
security for, and dedicated solely to, the benefit of the Holders of
such Securities and any interest coupons appertaining thereto, (A)
money in an amount, or (B) Government Obligations which through the
scheduled payment of principal and interest in respect thereof in
accordance with their terms will provide, not later than one day
before the due date of any payment, money in an amount, or (C) a
combination thereof, in an amount sufficient in the opinion of a
nationally recognized firm of independent certified public accountants
expressed in a written opinion with respect thereto delivered to the
Trustee, to pay and discharge, and which shall be applied by the
Trustee (or other qualifying trustee) to pay and discharge, (x) the
principal of, premium, if any, and each installment of interest, if
any, on the outstanding Securities and any interest coupons
appertaining thereto on the Stated Maturity of such principal or
installment of interest and (y) any mandatory sinking fund payments
applicable to such Securities on the day on which such payments are
due and payable in accordance with the terms of this Indenture and of
such Securities and any interest coupons appertaining thereto.
(b) In the case of an election under Section 4.4, the Company
shall have delivered to the Trustee an Opinion of Counsel stating that
(x) the Company has received from, or there has been published by, the
Internal Revenue Service a ruling, or (y) since the date of this
Indenture there has been a change in the applicable Federal income tax
law, in either case to the effect that, and based thereon such opinion
shall confirm that, the Holders of the Outstanding Securities and any
interest coupons appertaining thereto will not recognize gain or loss
for Federal income tax purposes as a result of such deposit,
defeasance and discharge and will be subject to Federal income tax on
the same amount, in the same manner and at the same times as would
have been the case if such deposit, defeasance and discharge had not
occurred.
(c) In the case of an election under Section 4.5, the Company
shall have delivered to the Trustee an Opinion of Counsel to the
effect that the Holders of the Outstanding Securities and any interest
coupons appertaining thereto will not recognize gain or loss for
Federal income tax purposes as a result of such deposit and agreement
defeasance and will be subject to Federal income tax on the same
amount, in the same manner and at the same times as would have been
the case if such deposit and agreement defeasance had not occurred.
(d) The Company shall have delivered to the Trustee an Officer's
Certificate to the effect that the Securities, if then listed on any
securities exchange or approved for trading in any automated quotation
system, will not be delisted or disapproved for such trading as a
result of such deposit.
(e) At the time of such deposit: (A) no default in the payment of
all or a portion of principal of, premium, if any, or interest on any
Senior Debt of the Company shall have occurred and be continuing, and
no event of default with respect to any Senior Debt of the Company
shall have occurred and be continuing and shall have resulted in such
Senior Debt becoming or being declared due and payable prior to the
date on which it would otherwise have become due and payable and (B)
no other event of default with respect to any Senior Debt of the
Company shall have occurred and be continuing permitting (after notice
or the lapse of time, or both) the holders of such Senior Debt (or a
trustee on behalf of the holders thereof) to declare such Senior Debt
due and payable prior to the date on which it would otherwise have
become due and payable, or, in the case of either Clause (A) or Clause
(B) above, each such default or event of default shall have been cured
or waived or shall have ceased to exist.
(f) No Event of Default or event which with notice or lapse of
time or both would become an Event of Default shall have occurred and
be continuing on the date of such deposit or, insofar as subsections
5.1(g) and (h) are concerned, at any time during the period ending on
the 91st day after the date of such deposit (it being understood that
this condition shall not be deemed satisfied until the expiration of
such period).
(g) Such defeasance or agreement defeasance shall not cause the
Trustee to have a conflicting interest within the meaning of the Trust
Indenture Act (assuming all Securities are in default within the
meaning of such Act).
(h) Such defeasance or agreement defeasance shall not result in a
breach or violation of, or constitute a default under, any other
agreement or instrument to which the Company is a party or by which it
is bound.
(i) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for relating to either the defeasance
under Section 4.4 or the agreement defeasance under Section 4.5 (as
the case may be) have been complied with.
(j) Such defeasance or agreement defeasance shall not result in
the trust arising from such deposit constituting an investment company
as defined in the Investment Company Act of 1940, as amended from time
to time, or such trust shall be registered under such act or exempt
from registration thereunder.
(k) Such defeasance or agreement defeasance shall be effected in
compliance with any additional or substitute terms, conditions or
limitations which may be imposed on the Company in connection
therewith as contemplated by Section 3.1.
Section 4.7. Deposited Money and Government Obligations to Be
Held in Trust. Subject to the provisions of the last paragraph of Section
9.3, all money and Government Obligations (or other property as may be
provided pursuant to Section 3.1) (including the proceeds thereof)
deposited with the Trustee pursuant to Section 4.6 in respect of any
Securities of any series and any interest coupons appertaining thereto
shall be held in trust and applied by the Trustee, in accordance with the
provisions of such Securities and any interest coupons appertaining thereto
and this Indenture, to the payment, either directly or through any Paying
Agent (including the Company acting as its own Paying Agent) as the Trustee
may determine, to the Holders of such Securities and any interest coupons
appertaining thereto of all sums due and to become due thereon in respect
of principal, premium, if any, and interest, if any, but such money need
not be segregated from other funds except as provided herein and except to
the extent required by law.
Section 4.8. Repayment to Company. Subject to the delivery by the
Company of any written certification required by the last paragraph of this
Section 4.8, the Trustee (and any Paying Agent) shall promptly pay to the
Company upon Company Request any excess money or securities held by them at
any time.
The provisions of the last paragraph of Section 9.3 shall apply
to any money or securities held by the Trustee or any Paying Agent under
this Article 4 that remain unclaimed for two years after the Maturity of
any series of Securities for which money or securities have been deposited
pursuant to Section 4.6(a).
Anything in this Article to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or Government Obligations held by it as provided in
Section 4.6 with respect to any Securities which, in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, are in excess of
the amount thereof which would then be required to be deposited to effect
the defeasance or agreement defeasance, as the case may be, with respect to
such Securities.
Section 4.9. Indemnity for Government Obligations. The Company
shall pay, and shall indemnify the Trustee against, any tax, fee or other
charge imposed on or assessed against Government Obligations deposited
pursuant to this Article or the principal and interest received in respect
thereof other than any such tax, fee or other charge which by law is for
the account of the Holders of the Outstanding Securities.
Section 4.10. Reinstatement. If the Trustee (or Paying Agent) is
unable to apply any money or Government Obligations in accordance with
Section 4.6 by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application,
then the Company's obligations under this Indenture and the Securities
shall be revived and reinstated, with present and prospective effect, as
though no deposit had occurred pursuant to Section 4.6, until such time as
the Trustee (or Paying Agent) is permitted to apply all such money or
Government Obligations in accordance with Section 4.6; provided, however,
that if the Company makes any payment to the Trustee (or Paying Agent) of
principal of, premium, if any, or interest on any Security following the
reinstatement of its obligations, the Trustee (or Paying Agent) shall
promptly pay any such amount to the Holders of the Securities and the
Company shall be subrogated to the rights of the Holders of such Securities
to receive such payment from the money and Government Obligations held by
the Trustee (or Paying Agent).
ARTICLE 5
DEFAULTS AND REMEDIES
Section 5.1. Events of Default. An "Event of Default," with
respect to the Securities of any series, means any one of the following
events (whatever the reason for such Event of Default and whether it shall
be occasioned by the provisions of Article 15 or be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(a) default in the payment of interest on any Security of that
series or any interest coupon appertaining thereto or any additional
amount payable with respect to any Security of that series as
specified pursuant to Section 3.1(b)(16) when the same becomes due and
payable and such default continues for a period of 30 days; or
(b) default in the payment of the principal of (or any
installment of the principal of) or any premium on any Security of
that series when the same becomes due and payable at its Maturity; or
(c) default in the deposit of any sinking fund payment, when and
as due by the terms of a Security of that series; or
(d) default in the performance, or breach, of any agreement or
warranty of the Company or any Guarantor in this Indenture (other than
an agreement or warranty a default in whose performance or whose
breach is elsewhere in this Section specifically dealt with) or the
Securities, and continuance of such default or breach for a period of
60 days after there has been given, in the manner provided in Section
1.6, to the Company by the Trustee or to the Company and the Trustee
by the Holders of at least 10% in principal amount of the Outstanding
Securities of the series, a written notice specifying such default or
breach and requiring it to be remedied and stating that such notice is
a "Notice of Default" hereunder; or
(e) a default or defaults under the terms of any bond(s),
debenture(s), note(s) or other evidence(s) of, or obligations
constituting, Debt by the Company, any Guarantor or any Restricted
Subsidiary, or under any mortgage(s), indenture(s), agreement(s) or
instrument(s) under which there may be issued or by which there may be
secured or evidenced, any Debt of the Company, any Guarantor or any
Restricted Subsidiary with a principal amount then outstanding,
individually or in the aggregate, in excess of $25 million, whether
such Debt now exists or is hereafter Incurred, which default or
defaults constitute a failure to pay any portion of the principal or
similar amount of such Debt when due and payable after the expiration
of any applicable grace period with respect thereto or results in such
Debt becoming or being declared due and payable prior to the date on
which it would otherwise have become due and payable; or
(f) a final judgment or final judgments (not subject to appeal)
for the payment of money are entered against the Company, Allied or
any Restricted Subsidiary in an aggregate amount in excess of $25
million by a court or courts of competent jurisdiction, which
judgments remain unstayed, undischarged or unbonded for a period of 60
days after the entry of such judgment or judgments; or
(g) the entry by a court having jurisdiction in the premises of
(A) a decree or order for relief in respect of the Company, Allied or
any Restricted Subsidiary in an involuntary case or proceeding under
any applicable Federal or state bankruptcy, insolvency, reorganization
or other similar law or (B) a decree or order adjudging the Company,
Allied or any Restricted Subsidiary a bankrupt or insolvent, or
approving as properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of the
Company, Allied or any Restricted Subsidiary under any applicable
Federal or state law, or appointing a custodian, receiver, liquidator,
assignee, trustee, sequestrator or other similar official of the
Company, Allied or any Restricted Subsidiary or of any substantial
part of the property of the Company, Allied or any Restricted
Subsidiary, or ordering the winding up or liquidation of the affairs
of the Company, Allied or any Restricted Subsidiary, and the
continuance of any such decree or order for relief or any such other
decree or order unstayed and in effect for a period of 60 consecutive
days; or
(h) the commencement by the Company, Allied or any Restricted
Subsidiary of a voluntary case or proceeding under any applicable
Federal or state bankruptcy, insolvency, reorganization or other
similar law or of any other case or proceeding to be adjudicated a
bankrupt or insolvent, or the consent by the Company, Allied or any
Restricted Subsidiary to the entry of a decree or order for relief in
respect of the Company, Allied or any Restricted Subsidiary in an
involuntary case or proceeding under any applicable Federal or state
bankruptcy, insolvency, reorganization or other similar law or to the
commencement of any bankruptcy or insolvency case or proceeding
against the Company, Allied or any Restricted Subsidiary or the filing
by the Company, Allied or any Restricted Subsidiary of a petition or
answer or consent seeking reorganization or relief under any
applicable Federal or state law, or the consent by the Company, Allied
or any Restricted Subsidiary to the filing of such a petition or to
the appointment of or taking possession by a custodian, receiver,
liquidator, assignee, trustee, sequestrator or similar official of the
Company, Allied or any Restricted Subsidiary or of any substantial
part of the property of the Company, Allied or any Restricted
Subsidiary, or the making by the Company, Allied or any Restricted
Subsidiary of an assignment for the benefit of creditors, or the
admission by the Company, Allied or any Restricted Subsidiary in
writing of its inability to pay its debts generally as they become
due, or the taking of corporate action by the Company, Allied or any
Restricted Subsidiary in furtherance of any such action; or
(i) any other Event of Default provided as contemplated by
Section 3.1 with respect to Securities of that series.
Section 5.2. Acceleration; Rescission and Annulment. If an Event
of Default with respect to the Securities of any series at the time
Outstanding (other than an Event of Default specified in clause (g) or (h)
of Section 5.1) occurs and is continuing, the Trustee or the Holders of at
least 25% in aggregate principal amount of all of the Outstanding
Securities of that series, by written notice received by the Company (and,
if given by the Holders, received by the Trustee), may declare the
principal (or, if the Securities of that series are Original Issue Discount
Securities or Indexed Securities, such portion of the principal amount as
may be specified in the terms of that series) of, premium, if any, and
accrued interest, if any, on all the Securities of that series to be due
and payable and upon any such declaration such principal (or, in the case
of Original Issue Discount Securities or Indexed Securities, such specified
amount), premium, if any, and interest, if any, shall be immediately due
and payable, provided that the payment of principal and interest on such
Securities shall remain subordinated to the extent provided in Article 15.
If an Event of Default specified in clause (g) or (h) of Section 5.1 with
respect to the Securities of any series at the time Outstanding occurs and
is continuing, then the principal (or, if the Securities of that series are
Original Issue Discount Securities or Indexed Securities, such portion of
the principal amount as may be specified in the terms of that series) of,
premium, if any, and accrued interest, if any, on all the Securities of
that series shall be immediately due and payable without any declaration or
act on the part of the Trustee or any Holder of such Securities, provided
that the payment of principal and interest on such Securities shall remain
subordinated to the extent provided in Article 15.
At any time after such a declaration of acceleration has been
made and before a judgment or decree for payment of the money due has been
obtained by the Trustee as hereinafter in this Article provided, the
Holders of not less than a majority in aggregate principal amount of the
Outstanding Securities of that series, by written notice to the Company and
the Trustee, may rescind and annul such declaration and its consequences if
(1) the Company or any of the Guarantors has paid or deposited
with the Trustee a sum sufficient to pay
(A) all overdue interest on all Securities of that series,
(B) the principal of and premium, if any, on any Securities
of that series which have become due otherwise than by such
declaration of acceleration and any interest thereon at the rate
borne by the Securities of that series,
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate provided therefor in
the Securities of that series, and
(D) all sums paid or advanced by the Trustee hereunder and
the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel;
and
(2) all Events of Default, other than the nonpayment of the
principal of Securities of that series which have become due solely by
such declaration of acceleration, have been cured or waived as
provided in Section 5.7.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Section 5.3. Collection of Indebtedness and Suits for Enforcement
by Trustee. The Company agrees that if
(a) default is made in the payment of any interest on any
Security or interest coupon, if any, when such interest becomes due
and payable and such default continues for a period of 30 days, or
(b) default is made in the payment of the principal of or
premium, if any, on any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of
the Holders of such Securities or interest coupons, if any, the whole
amount then due and payable on such Securities for principal, premium, if
any, and interest and, to the extent that payment of such interest shall be
legally enforceable, interest on any overdue principal, premium, if any,
and on any overdue interest, at the rate or rates prescribed therefor in
such Securities or interest coupons, if any, and, in addition thereto, such
further amount as shall be sufficient to cover the costs and expenses of
collection, including all amounts due the Trustee, its agents and counsel
under Section 6.7.
If the Company or any Guarantor fails to pay such amounts
forthwith upon such demand, the Trustee, in its own name and as trustee of
an express trust, may institute a judicial proceeding for the collection of
the sums so due and unpaid and may prosecute such proceeding to judgment or
final decree, and may enforce the same against the Company, any Guarantor
or any other obligor upon the Securities and collect the moneys adjudged or
decreed to be payable in the manner provided by law out of the property of
the Company, any Guarantor or any other obligor upon the Securities,
wherever situated.
If an Event of Default with respect to Securities of any series
occurs and is continuing, the Trustee may in its discretion proceed to
protect and enforce its rights and the rights of the Holders of Securities
of such series by such appropriate judicial proceedings as the Trustee
shall deem most effectual to protect and enforce any such rights, whether
for the specific enforcement of any agreement in this Indenture or in aid
of the exercise of any power granted herein, or to secure any other proper
remedy, subject, however, to Section 5.8.
Section 5.4. Trustee May File Proofs of Claim. In case of any
judicial proceeding relative to the Company (or any Guarantor or any other
obligor upon the Securities), its property or its creditors (or of any
Guarantor or its creditors), the Trustee shall be entitled and empowered,
by intervention in such proceeding or otherwise, to take any and all
actions authorized under the Trust Indenture Act in order to have claims of
the Holders and the Trustee allowed in any such proceeding. In particular,
the Trustee shall be authorized to collect and receive any moneys or other
property payable or deliverable on any such claims and to distribute the
same; and any custodian, receiver, assignee, trustee, liquidator,
sequestrator or other similar official in any such judicial proceeding is
hereby authorized by each Holder to make such payments to the Trustee and,
in the event that the Trustee shall consent to the making of such payments
directly to the Holders, to pay to the Trustee any amount due it for the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee
under Section 6.7.
No provision of this Indenture shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any
Holder of a Security or interest coupon any plan of reorganization,
arrangement, adjustment or composition affecting the Securities or the
rights of any Holder of a Security or interest coupon thereof or to
authorize the Trustee to vote in respect of the claim of any Holder of a
Security or interest coupon in any such proceeding; provided, however, that
the Trustee may, on behalf of the Holders, vote for the election of a
trustee in bankruptcy or similar official and be a member of a creditors'
or other similar committee.
Section 5.5. Trustee May Enforce Claims Without Possession of
Securities. All rights of action and claims under this Indenture or the
Securities or any Subordinated Guarantee may be prosecuted and enforced by
the Trustee without the possession of any of the Securities or the
production thereof in any proceeding relating thereto, and any such
proceeding instituted by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for
the ratable benefit of the Holders of the Securities in respect of which
such judgment has been recovered.
Section 5.6. Delay or Omission Not Waiver. No delay or omission
by the Trustee or any Holder of any Securities to exercise any right or
remedy accruing upon an Event of Default shall impair any such right or
remedy or constitute a waiver of or acquiescence in any such Event of
Default.
Section 5.7. Waiver of Past Defaults. The Holders of not less
than a majority in aggregate principal amount of Outstanding Securities of
any series by written notice to the Trustee may waive on behalf of the
Holders of all Securities of such series and any interest coupons
appertaining thereto a past Default or Event of Default with respect to
that series and its consequences except a Default or Event of Default (i)
in the payment of the principal of, premium, if any, or interest on any
Security of such series or any interest coupon appertaining thereto or (ii)
in respect of an agreement or provision hereof which pursuant to Article 8
cannot be amended or modified without the consent of the Holder of each
Outstanding Security of such series affected. Upon any such waiver, such
Default shall cease to exist, and any Event of Default arising therefrom
shall be deemed to have been cured, for every purpose of this Indenture but
no such waiver shall extend to any subsequent or other default or impair
any right consequent thereon.
Section 5.8. Control by Majority. The Holders of not less than a
majority in aggregate principal amount of the Outstanding Securities of
each series affected (with each such series voting as a class) shall have
the right to direct the time, method and place of conducting any proceeding
for any remedy available to the Trustee or exercising any trust or power
conferred on it with respect to Securities of that series; provided,
however, that (i) the Trustee may refuse to follow any direction that
conflicts with any governmental rule or law or this Indenture, (ii) the
Trustee may refuse to follow any direction that is unduly prejudicial to
the rights of the Holders of Securities of such series not consenting, or
that would in the good faith judgment of the Trustee have a substantial
likelihood of involving the Trustee in personal liability without adequate
indemnity having been offered therefor and (iii) subject to Section 6.1,
the Trustee may take any other action deemed proper by the Trustee which is
not inconsistent with such direction.
Section 5.9. Limitation on Suits by Holders. No Holder of any
Security of any series or any interest coupons appertaining thereto shall
have any right to institute any proceeding, judicial or otherwise, with
respect to this Indenture, or for the appointment of a receiver or trustee,
or for any other remedy hereunder, unless:
(a) the Holder has previously given written notice to the Trustee
of a continuing Event of Default with respect to the Securities of
that series;
(b) the Holders of at least 25% in aggregate principal amount of
the Outstanding Securities of that series have made a written request
to the Trustee to institute proceedings in respect of such Event of
Default in its own name as Trustee hereunder;
(c) such Holder or Holders have offered to the Trustee indemnity
satisfactory to the Trustee against any loss, liability or expense to
be, or which may be, incurred by the Trustee in pursuing the remedy;
(d) the Trustee for 60 days after its receipt of such notice,
request and the offer of indemnity has failed to institute any such
proceedings; and
(e) during such 60-day period, the Holders of a majority in
aggregate principal amount of the Outstanding Securities of that
series have not given to the Trustee a direction inconsistent with
such written request.
No one or more Holders of Securities of a series shall have any
right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other
of such Holders, or to obtain or to seek to obtain priority or preference
over any other of such Holders or to enforce any right under this
Indenture, except in the manner herein provided and for the equal and
ratable benefit of all of such Holders.
Section 5.10. Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, but subject to
Section 9.2, each of the right of any Holder of a Security or interest
coupon to receive payment of principal of, premium, if any, and, subject to
Sections 3.5 and 3.7, interest on the Security, on or after the respective
due dates expressed in the Security (or, in case of redemption or a
required repurchase by the Company under the terms of the relevant
Securities, on the Redemption Dates or specified repurchase dates), the
right of any Holder of an interest coupon to receive payment of interest
due as provided in such interest coupon, or to bring suit for the
enforcement of any such payment on or after such respective dates, and the
right, if any, to convert or exchange such Security in accordance with
Article 14, is unconditional and shall not be impaired or affected without
the consent of such Holder.
Section 5.11. Application of Money Collected. If the Trustee
collects any money pursuant to this Article, it shall pay out the money in
the following order, at the date or dates fixed by the Trustee and, in case
of the distribution of such money on account of principal, premium, if any,
or interest, upon presentation of the Securities and interest coupons, if
any, and the notation thereon of the payment if only partially paid and
upon surrender thereof if fully paid:
First: to the Trustee for amounts due under Section 6.7;
Second: to Holders of Securities and interest coupons in respect
of which or for the benefit of which such money has been collected for
amounts due and unpaid on such Securities for principal of, premium,
if any, and interest, ratably, without preference or priority of any
kind, according to the amounts due and payable on such Securities for
principal, premium, if any, and interest, respectively; and
Third: the balance, if any, to the Company.
The Holders of each series of Securities denominated in ECU, any
other currency unit or a Foreign Currency and any matured interest coupons
relating thereto shall be entitled to receive a ratable portion of the
amount determined by the Trustee by converting the principal amount
Outstanding of such series of Securities and matured but unpaid interest on
such series of Securities in the currency in which such series of
Securities is denominated into Dollars at the Market Exchange Rate as of
the date of declaration of acceleration of Maturity of the Securities (or,
if the default consists of a failure to pay the principal of such
Securities on the Stated Maturity thereof, as of the Stated Maturity date).
The Trustee may fix a record date and payment date for any
payment to Holders pursuant to this Section 5.11. At least 15 days before
such record date, the Trustee shall mail to each Holder and the Company a
notice that states the record date, the payment date and the amount to be
paid.
Section 5.12. Restoration of Rights and Remedies. If the Trustee
or any Holder has instituted any proceeding to enforce any right or remedy
under this Indenture and such proceeding has been discontinued or abandoned
for any reason, or has been determined adversely to the Trustee or to such
Holder, then and in every such case, subject to any determination in such
proceeding, the Company, the Trustee and the Holders shall be restored
severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and the Holders shall
continue as though no such proceeding had been instituted.
Section 5.13. Rights and Remedies Cumulative. Except as otherwise
provided with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities in the last paragraph of Section 3.6,
no right or remedy herein conferred upon or reserved to the Trustee or the
Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and
in addition to every other right and remedy given hereunder or now or
hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not
prevent the concurrent assertion or employment of any other appropriate
right or remedy.
Section 5.14. Undertaking for Costs. In any suit for the
enforcement of any right or remedy under this Indenture, or in any suit
against the Trustee for any action taken, suffered or omitted by it as
Trustee, a court may require any party litigant in such suit to file an
undertaking to pay the costs of such suit, and may assess costs against any
such party litigant, in the manner and to the extent provided in the Trust
Indenture Act; provided, however, that neither this Section nor the Trust
Indenture Act shall be deemed to authorize any court to require such an
undertaking or to make such an assessment in any suit instituted by the
Company or any Guarantor, any Guarantor, the Trustee or any Holder, or
group of Holders, holding in the aggregate at least 10% in principal amount
of the Outstanding Securities of the relevant series or in any suit
instituted by any Holder for the enforcement of principal of, premium, if
any, or interest on any Security on or after the respective Stated
Maturities expressed in such Security (or, in the case of redemption or any
required repurchase by the Company, on or after the Redemption Date or
specified repurchase date).
Section 5.15. Waiver of Stay, Extension or Usury Laws. Each of
the Company and the Guarantors agrees (to the extent that it may lawfully
do so) that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay or extension
law or any usury or other law wherever enacted, now or at any time
hereafter in force, which would prohibit or forgive the Company from paying
all or any portion of the principal of, and premium, if any, or interest on
the Securities contemplated herein or in the Securities or which may affect
the agreements or the performance of this Indenture or prohibit or forgive
any Guarantor from performance under its Subordinated Guarantee; and each
of the Company and the Guarantors (to the extent that it may lawfully do
so) hereby expressly waives all benefit or advantage of any such law, and
agrees that it will not hinder, delay or impede the execution of any power
herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE 6
THE TRUSTEE
Section 6.1. Certain Duties and Responsibilities. The duties and
responsibilities of the Trustee shall be as provided by the Trust Indenture
Act. Notwithstanding the foregoing, no provision of this Indenture shall
require the Trustee to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties hereunder, or
in the exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity
against such risk or liability is not reasonably assured to it. Whether or
not therein expressly so provided, every provision of this Indenture
relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of this
Section.
Section 6.2. Notice of Defaults. If a Default occurs hereunder
with respect to Securities of any series, the Trustee shall give the
Holders of Securities of such series notice of such Default as and to the
extent provided by the Trust Indenture Act; provided, however, that in the
case of any Default of the character specified in Section 5.1(d) with
respect to Securities of such series, no such notice to Holders shall be
given until at least 30 days after the occurrence thereof.
Section 6.3. Certain Rights of Trustee. Subject to the provisions
of Section 6.1:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or presented
by the proper party or parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order, and
any resolution of the Board of Directors shall be sufficiently evidenced by
a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may, in the absence of
bad faith on its part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the written advice
of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless such
Holders shall have offered to the Trustee reasonable security or indemnity
against the costs, expenses and liabilities which might be incurred by it
in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further inquiry
or investigation into such facts or matters as it may see fit, and, if the
Trustee shall determine to make such further inquiry or investigation, it
shall be entitled to examine the books, records and premises of the
Company, personally or by agent or attorney;
(g) the Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder; and
(h) except with respect to Section 9.1, the Trustee shall have no
duty to inquire as to the performance by the Company or any Guarantor of
the agreements set forth in Article 9 beyond its good faith review of any
certificates or other notices received by it from the Company or any
Guarantor.
Section 6.4. Not Responsible for Recitals or Issuance of
Securities. The recitals contained herein and in the Securities and in the
Subordinated Guarantees endorsed thereon, except the Trustee's certificates
of authentication, shall be taken as the statements of the Company or the
Guarantors, as the case may be, and neither the Trustee nor any
Authenticating Agent assumes any responsibility for their correctness. The
Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Securities or the Subordinated Guarantees endorsed
thereon. Neither the Trustee nor any Authenticating Agent shall be
accountable for the use or application by the Company of Securities or the
proceeds thereof.
Section 6.5. May Hold Securities. The Trustee, any Authenticating
Agent, any Paying Agent, any Security Registrar or any other agent of the
Company, any Guarantor or the Trustee, in its individual or any other
capacity, may become the owner or pledgee of Securities and, subject to the
definition of "Outstanding" set forth in Section 1.1, and subject to
Sections 6.8 and 6.13, may otherwise deal with the Company, any Guarantor
and any other obligor upon the Securities and the Subordinated Guarantees
with the same rights it would have if it were not Trustee, Authenticating
Agent, Paying Agent, Security Registrar or such other agent.
Section 6.6. Money Held in Trust. Money held by the Trustee in
trust hereunder need not be segregated from other funds except to the
extent required by law or by the provisions of this Indenture. The Trustee
shall be under no liability for interest on any money received by it
hereunder except as otherwise agreed with the Company or any Guarantor, as
the case may be.
Section 6.7. Compensation and Reimbursement. The Company agrees
(a) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which compensation
shall not be limited by any provision of law in regard to the compensation
of a trustee of an express trust);
(b) except as otherwise expressly provided herein, to reimburse
the Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision
of this Indenture (including the reasonable compensation and the expenses
and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad
faith; and
(c) to indemnify the Trustee for, and to hold it harmless
against, any loss, liability or expense incurred without negligence or bad
faith on its part, arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder, including the costs and
expenses of defending itself against any claim or liability in connection
with the exercise or performance of any of its powers or duties hereunder.
Section 6.8. Conflicting Interests. If the Trustee has or shall
acquire a conflicting interest within the meaning of the Trust Indenture
Act, the Trustee shall either eliminate such interest or resign, to the
extent and in the manner provided by, and subject to the provisions of, the
Trust Indenture Act and this Indenture. To the extent permitted by such
Act, the Trustee shall not be deemed to have a conflicting interest by
virtue of being a trustee under this Indenture with respect to Securities
of more than one series or a trustee under (i) the Indenture dated as of
May 15, 1997 between Allied and the Trustee relating to the Allied's 11.30%
Senior Discount Notes Due 2007, (ii) the Indenture dated as of December 1,
1996 by and among the Company, Allied, as guarantor, the Subsidiary
Guarantors named therein and the Trustee relating to the Company's 10 1/4%
Senior Subordinated Notes due 2006, or (iii) any other indenture specified
in (A) a Board Resolution, (B) an action taken pursuant to a Board
Resolution and (subject to Section 3.3) set forth in an Officers'
Certificate or (C) one or more indentures supplemental hereto.
Section 6.9. Corporate Trustee Required; Eligibility. There shall
at all times be a Trustee hereunder which shall be a Person that is
eligible pursuant to the Trust Indenture Act to act as such, has a combined
capital and surplus of at least $25,000,000 and has its Corporate Trust
Office located in the Borough of Manhattan, The City of New York. If such
Person publishes reports of condition at least annually, pursuant to law or
to the requirements of its supervising or examining authority, then for the
purposes of this Section, the combined capital and surplus of such Person
shall be deemed to be its combined capital and surplus as set forth in its
most recent report of condition so published. If at any time the Trustee
shall cease to be eligible in accordance with the provisions of this
Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
Section 6.10. Resignation and Removal; Appointment of Successor.
No resignation or removal of the Trustee and no appointment of a successor
Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 6.11.
The Trustee may resign at any time with respect to the Securities
of one or more series by giving written notice thereof to the Company. If
the instrument of acceptance by a successor Trustee required by Section
6.11 shall not have been delivered to the Trustee within 30 days after the
giving of such notice of resignation, the resigning Trustee may petition
any court of competent jurisdiction for the appointment of a successor
Trustee with respect to the Securities of such series.
The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal
amount of the Outstanding Securities of such series, delivered to the
Trustee and to the Company.
If at any time:
(a) the Trustee shall fail to comply with Section 6.8 after
written request therefor by the Company or by any Holder who has been
a bona fide Holder of a Security for at least six months, or
(b) the Trustee shall cease to be eligible under Section 6.9 and
shall fail to resign after written request therefor by the Company or
by any such Holder, or
(c) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of
its property shall be appointed or any public officer shall take
charge or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation,
then, in any such case, (1) the Company by a Board Resolution may remove
the Trustee with respect to all Securities, or (2) subject to Section 5.14,
any Holder who has been a bona fide Holder of a Security for at least six
months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the removal of the Trustee
with respect to all Securities and the appointment of a successor Trustee
or Trustees.
If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause,
with respect to the Securities of one or more series, the Company, by a
Board Resolution, shall promptly appoint a successor Trustee or Trustees
with respect to the Securities of that or those series (it being understood
that any such successor Trustee may be appointed with respect to the
Securities of one or more or all of such series and that at any time there
shall be only one Trustee with respect to the Securities of any particular
series) and shall comply with the applicable requirements of Section 6.11.
If, within one year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee with respect to the
Securities of any series shall be appointed by Act of the Holders of a
majority in principal amount of the Outstanding Securities of such series
delivered to the Company and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of such appointment in
accordance with the applicable requirements of Section 6.11, become the
successor Trustee with respect to the Securities of such series and to that
extent supersede the successor Trustee appointed by the Company. If no
successor Trustee with respect to the Securities of any series shall have
been so appointed by the Company or the Holders and accepted appointment in
the manner required by Section 6.11, any Holder who has been a bona fide
Holder of a Security of such series for at least six months may, on behalf
of himself and all others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor Trustee with
respect to the Securities of such series. The Company shall give notice of
each resignation and each removal of the Trustee with respect to the
Securities of any series and each appointment of a successor Trustee with
respect to the Securities of any series to all Holders of Securities of
such series in the manner provided in Section 1.6. Each notice shall
include the name of the successor Trustee with respect to the Securities of
such series and the address of its Corporate Trust Office.
Section 6.11. Acceptance of Appointment by Successor. In case of
the appointment hereunder of a successor Trustee with respect to all
Securities, every such successor Trustee so appointed shall execute,
acknowledge and deliver to the Company, the Guarantors and to the retiring
Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective and
such successor Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of the
retiring Trustee; but, on the request of the Company or the successor
Trustee, such retiring Trustee shall, upon payment of its charges, execute
and deliver an instrument transferring to such successor Trustee all the
rights, powers and trusts of the retiring Trustee and shall duly assign,
transfer and deliver to such successor Trustee all property and money held
by such retiring Trustee hereunder.
In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company,
the Guarantors the retiring Trustee and each successor Trustee with respect
to the Securities of one or more series shall execute and deliver an
indenture supplemental hereto wherein each successor Trustee shall accept
such appointment and which (1) shall contain such provisions as shall be
necessary or desirable to transfer and confirm to, and to vest in, each
successor Trustee all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates, (2) if the retiring Trustee
is not retiring with respect to all Securities, shall contain such
provisions as shall be deemed necessary or desirable to confirm that all
the rights, powers, trusts and duties of the retiring Trustee with respect
to the Securities of that or those series as to which the retiring Trustee
is not retiring shall continue to be vested in the retiring Trustee, and
(3) shall add to or change any of the provisions of this Indenture as shall
be necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein
or in such supplemental indenture shall constitute such Trustees
co-trustees of the same trust and that each such Trustee shall be trustee
of a trust or trusts hereunder separate and apart from any trust or trusts
hereunder administered by any other such Trustee; and upon the execution
and delivery of such supplemental indenture the resignation or removal of
the retiring Trustee shall become effective to the extent provided therein
and each such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee with respect to the Securities of that or
those series to which the appointment of such successor Trustee relates;
but, on request of the Company, any Guarantor or any successor Trustee,
such retiring Trustee shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such retiring Trustee
hereunder with respect to the Securities of that or those series to which
the appointment of such successor Trustee relates.
Upon request of any such successor Trustee, the Company and the
Guarantors shall execute any and all instruments for more fully and
certainly vesting in and confirming to such successor Trustee all such
rights, powers and trusts referred to in the first or second preceding
paragraph, as the case may be.
No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
Section 6.12. Merger, Conversion, Consolidation or Succession to
Business. Any corporation into which the Trustee may be merged or converted
or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party,
or any corporation succeeding to all or substantially all the corporate
trust business of the Trustee, shall be the successor of the Trustee
hereunder, provided such corporation shall be otherwise qualified and
eligible under this Article, without the execution or filing of any paper
or any further act on the part of any of the parties hereto. In case any
Securities shall have been authenticated, but not delivered, by the Trustee
then in office, any successor by merger, conversion or consolidation to
such authenticating Trustee may adopt such authentication and deliver the
Securities so authenticated with the same effect as if such successor
Trustee had itself authenticated such Securities.
Section 6.13. Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the Company or any
Guarantor (or any other obligor upon the Securities or the Subordinated
Guarantees endorsed thereon), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims
against the Company (or any Guarantor or any such other obligor).
Section 6.14. Appointment of Authenticating Agent. The Trustee
may appoint an Authenticating Agent or Agents with respect to one or more
series of Securities which shall be authorized to act on behalf of the
Trustee to authenticate Securities of such series issued upon original
issue and upon exchange, registration of transfer or partial redemption
thereof or pursuant to Section 3.6, and Securities so authenticated and the
Subordinated Guarantees endorsed thereon shall be entitled to the benefits
of this Indenture and shall be valid and obligatory for all purposes as if
authenticated by the Trustee hereunder. Wherever reference is made in this
Indenture to the authentication and delivery of Securities by the Trustee
or the Trustee's certificate of authentication, such reference shall be
deemed to include authentication and delivery on behalf of the Trustee by
an Authenticating Agent and a certificate of authentication executed on
behalf of the Trustee by an Authenticating Agent. Each Authenticating Agent
shall be acceptable to the Company and shall at all times be a corporation
organized and doing business under the laws of the United States of
America, any State thereof or the District of Columbia, authorized under
such laws to act as Authenticating Agent, having a combined capital and
surplus of not less than $25,000,000 and subject to supervision or
examination by Federal or State authority. If such Authenticating Agent
publishes reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for the
purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus
as set forth in its most recent report of condition so published. If at any
time an Authenticating Agent shall cease to be eligible in accordance with
the provisions of this Section, such Authenticating Agent shall resign
immediately in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged
or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any corporation succeeding to the
corporate agency or corporate trust business of an Authenticating Agent,
shall continue to be an Authenticating Agent, provided such corporation
shall be otherwise eligible under this Section, without the execution or
filing of any paper or any further act on the part of the Trustee or the
Authenticating Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Company. The Trustee may at any
time terminate the agency of an Authenticating Agent by giving written
notice thereof to such Authenticating Agent and to the Company. Upon
receiving such a notice of resignation or upon such a termination, or in
case at any time such Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, the Trustee may appoint a
successor Authenticating Agent which shall be acceptable to the Company and
shall give notice of such appointment in the manner provided in Section 1.6
to all Holders of Securities of the series with respect to which such
Authenticating Agent will serve. Any successor Authenticating Agent upon
acceptance of its appointment hereunder shall become vested with all the
rights, powers and duties of its predecessor hereunder, with like effect as
if originally named as an Authenticating Agent. No successor Authenticating
Agent shall be appointed unless eligible under the provisions of this
Section.
The Trustee agrees to pay to each Authenticating Agent from time
to time reasonable compensation for its services under this Section, and
the Trustee shall be entitled to be reimbursed for such payments, subject
to the provisions of Section 6.7.
If an appointment with respect to one or more series is made
pursuant to this Section, the Securities of such series may have endorsed
thereon, in addition to the Trustee's certificate of authentication, an
alternative certificate of authentication in the following form:
This is one of the Securities with the Subordinated Guarantees
endorsed thereon of the series designated therein referred to in the
within-mentioned Indenture.
-------------------------------,
As Trustee
By:
----------------------------,
As Authenticating Agent
By:
----------------------------
Authorized Signatory
ARTICLE 7
CONSOLIDATION, MERGER OR SALE OF ASSETS BY THE COMPANY
Section 7.1. Consolidation, Merger or Sale of Assets Permitted.
The Company (a) shall not, and shall not permit any Restricted Subsidiary
to, consolidate with or merge into any Person, in the case of a Restricted
Subsidiary, in a transaction in which such Restricted Subsidiary remains a
Restricted Subsidiary, unless such Restricted Subsidiary consolidates with
or merges into a Wholly Owned Restricted Subsidiary; (b) shall not permit
any Person other than a Wholly Owned Restricted Subsidiary to consolidate
with or merge into (i) the Company or (ii) any Restricted Subsidiary in a
transaction in which such Restricted Subsidiary remains a Restricted
Subsidiary; (c) shall not, directly or indirectly, in one or a series of
transactions, transfer, convey, sell, lease or otherwise dispose of all or
substantially all of the properties and assets of the Company and its
Subsidiaries on a consolidated basis; and (d) shall not, and shall not
permit any Restricted Subsidiary to, in one or a series of transactions,
acquire Capital Stock of or other ownership interests in any other Person
such that such other Person becomes a Restricted Subsidiary; unless in any
such transaction (or series) contemplated by Clause (a), (b), (c) or (d)
above:
(a) in case the Company shall consolidate with or merge into
another Person or shall directly or indirectly, in one or a series of
transactions, transfer, convey, sell, lease or otherwise dispose of
all or substantially all of its properties and assets as an entirety,
the Person formed by such consolidation or into which the Company is
merged or the Person which acquires by transfer, conveyance, sale,
lease or other disposition all or substantially all of the properties
and assets of the Company and its Subsidiaries on a consolidated basis
(for purposes of this Article 7, a "Successor Company") shall be a
corporation, partnership, limited liability company or trust, shall be
organized and validly existing under the laws of the United States of
America, any State thereof or the District of Columbia and shall
expressly assume by an indenture supplemental hereto executed and
delivered to the Trustee, in form satisfactory to the Trustee, the due
and punctual payment of the principal of, premium, if any, and
interest on all the Securities and the performance of every agreement
of this Indenture on the part of the Company to be performed or
observed;
(b) immediately after giving effect to such consolidation,
merger, sale, transfer, lease or other disposition, no Default or
Event of Default shall have occurred and be continuing; and
(c) with respect to any series of Securities, the Company
satisfies such other conditions, if any, established with respect to
such series of Securities pursuant to and in accordance with Section
3.1.
The Company shall deliver to the Trustee prior to the proposed
consolidation, merger, sale, transfer, lease or other disposition an
Officers' Certificate to the foregoing effect and an Opinion of Counsel
stating that the proposed consolidation, merger, sale, transfer, lease or
other disposition and such supplemental indenture comply with this
Indenture and that all conditions precedent to the consummation of such
transaction under this Section 7.1 have been met.
Section 7.2. Successor Substituted. Upon any consolidation of the
Company with, or merger of the Company into, any other Person or any
transfer, conveyance, sale, lease or other disposition of all or
substantially all of the properties and assets of the Company and its
Subsidiaries on a consolidated basis, in each case in accordance with
Section 7.1, the Successor Company shall succeed to, and be substituted
for, and may exercise every right and power of, the Company under this
Indenture and under the Securities and any interest coupons appertaining
thereto with the same effect as if such Successor Company had been named as
the Company herein, and thereafter, except in the case of a lease, the
predecessor Person (if still in existence) shall be relieved of all
obligations and agreements under this Indenture and the Securities and any
interest coupons appertaining thereto.
ARTICLE 8
SUPPLEMENTAL INDENTURES
Section 8.1. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, the Guarantors and the
Trustee, at any time and from time to time, may enter into indentures
supplemental hereto, in form reasonably satisfactory to the Trustee, for
any of the following purposes:
(a) to evidence the succession of another Person to the Company
or any Guarantor and the assumption by any such successor of the agreements
and obligations of the Company or any Guarantor herein and in the
Securities and any interest coupons appertaining thereto; or
(b) to add to the agreements of the Company for the benefit of
the Holders of all or any series of Securities (and if such agreements are
to be for the benefit of less than all series of Securities, stating that
such agreements are expressly being included solely for the benefit of such
series) or to surrender any right or power herein conferred upon the
Company; or
(c) to add any additional Events of Default with respect to all
or any series of Securities; or
(d) to add to or change any of the provisions of this Indenture
to such extent as shall be necessary to facilitate the issuance or
administration of Bearer Securities (including, without limitation, to
provide that Bearer Securities may be registrable as to principal only) or
to facilitate the issuance or administration of Global Securities; or
(e) to change or eliminate any of the provisions of this
Indenture in respect of one or more series of Securities, provided that any
such change or elimination shall become effective only when there is no
Security Outstanding of any series created prior to the execution of such
supplemental indenture which is entitled to the benefit of such provision;
or
(f) to secure any series of Securities; or
(g) to establish the form or terms of Securities of any series as
permitted by Sections 2.1 and 3.1; or
(h) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of this Indenture
as shall be necessary to provide for or facilitate the administration of
the trusts hereunder by more than one Trustee, pursuant to the requirements
of Section 6.11; or
(i) if allowed without penalty under applicable laws and
regulations, to permit payment in the United States (including any of the
States thereof and the District of Columbia), its territories, its
possessions and other areas subject to its jurisdiction of principal of,
premium, if any, or interest, if any, on Bearer Securities or interest
coupons, if any; or
(j) to cure any ambiguity, to correct or supplement any provision
herein which may be inconsistent with any other provision herein or to make
any other provisions with respect to matters or questions arising under
this Indenture which shall not be inconsistent with the provisions of this
Indenture, provided such action shall not adversely affect in any material
respect the interests of the Holders of Securities of any series; or
(k) to make provision not adverse to the Holders of Outstanding
Securities of any series with respect to any conversion or exchange rights
of Holders pursuant to the requirements of Article 14, including providing
for the conversion or exchange of the Securities into any Equity Securities
of Allied; or
(l) to modify, eliminate or add to the provisions of this
Indenture to such extent as shall be necessary to effect the qualification
of this Indenture under the Trust Indenture Act or under any similar
federal statute subsequently enacted, and to add to this Indenture such
other provisions as may be expressly required under the Trust Indenture
Act; or
(m) to add new Subsidiary Guarantors pursuant to Section 16.5.
Section 8.2. Supplemental Indentures With Consent of Holders.
With the consent of the Holders of not less than a majority of the
aggregate principal amount of the Outstanding Securities of each series
affected by such supplemental indenture, by Act of said Holders delivered
to the Company, the Company, the Guarantors and the Trustee may enter into
an indenture or indentures supplemental hereto to add any provisions to or
to change in any manner or eliminate any provisions of this Indenture or of
any other indenture supplemental hereto or to modify in any manner the
rights of the Holders of Securities of such series; provided, however, that
without the consent of the Holder of each Outstanding Security affected
thereby, an amendment under this Section may not:
(a) change the Stated Maturity of the principal of, or premium,
if any, on, or any installment of principal of or premium, if any, or
interest on, any Security, or reduce the principal amount thereof or the
rate of interest thereon or any premium payable upon the redemption thereof
or upon any required repurchase by the Company, or change the manner in
which the amount of any principal thereof or premium, if any, or interest
thereon is determined or reduce the amount of the principal of any Original
Issue Discount Security or Indexed Security that would be due and payable
upon a declaration of acceleration of the Maturity thereof pursuant to
Section 5.2, or change the currency or currency unit in which any
Securities or any premium or the interest thereon is payable, or impair the
right to institute suit for the enforcement of any such payment on or after
the Stated Maturity thereof (or, in the case of redemption or any required
repurchase of Securities by the Company, on or after the Redemption Date or
specified repurchase date);
(b) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any
such supplemental indenture, or the consent of whose Holders is required
for any waiver (of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences) provided for in this
Indenture, or reduce the requirements of Section 13.4 for quorum or voting;
(c) change any obligation of the Company to maintain an office or
agency in the places and for the purposes specified in Section 9.2;
(d) make any change that adversely affects any right to convert
or exchange any Security to which the provisions of Article 14 are
applicable or, except as provided in this Indenture, decrease the
conversion or exchange rate or increase the conversion or exchange price of
any such Security;
(e) modify the provisions in Article 15 of this Indenture with
respect to the subordination of Outstanding Securities of any series in a
manner adverse to the Holders thereof; or
(f) make any change in this Section 8.2, Section 5.7 or Section
9.6 except to increase any percentage or to provide that certain other
provisions of this Indenture cannot be modified or waived with the consent
of the Holders of each Outstanding Security affected thereby; provided,
however, that this clause shall not be deemed to require the consent of any
Holder of a Security or coupon with respect to changes in the references to
"the Trustee" and concomitant changes in this Section and Section 9.6 or
the deletion of this proviso, in accordance with the requirements of
Sections 6.11 and 8.1(h).
A supplemental indenture which changes or eliminates any
agreement or other provision of this Indenture which has expressly been
included solely for the benefit of one or more particular series of
Securities, or which modifies the rights of the Holders of Securities of
such series with respect to such agreement or other provision, shall be
deemed not to affect the rights under this Indenture of the Holders of
Securities of any other series.
It is not necessary under this Section 8.2 for the Holders to
consent to the particular form of any proposed supplemental indenture, but
it is sufficient if they consent to the substance thereof.
Section 8.3. Compliance with Trust Indenture Act. Every amendment
to this Indenture or the Securities of one or more series shall be set
forth in a supplemental indenture that complies with the Trust Indenture
Act as then in effect.
Section 8.4. Execution of Supplemental Indentures. In executing,
or accepting the additional trusts created by, any supplemental indenture
permitted by this Article or the modification thereby of the trusts created
by this Indenture, the Trustee shall be entitled to receive, and (subject
to Section 6.1) shall be fully protected in relying upon, an Officers'
Certificate and an Opinion of Counsel stating that the execution of such
supplemental indenture is authorized or permitted by this Indenture. The
Trustee may, but shall not be obligated to, enter into any such
supplemental indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
Section 8.5. Effect of Supplemental Indentures. Upon the
execution of any supplemental indenture under this Article, this Indenture
shall be modified in accordance therewith, and such supplemental indenture
shall form a part of this Indenture for all purposes; and every Holder of
Securities theretofore or thereafter authenticated and delivered hereunder
and of any interest coupon appertaining thereto shall be bound thereby.
Section 8.6. Reference in Securities to Supplemental Indentures.
Securities, including any interest coupons, of any series authenticated and
delivered after the execution of any supplemental indenture pursuant to
this Article may, and shall if required by the Trustee, bear a notation in
form approved by the Trustee as to any matter provided for in such
supplemental indenture. If the Company shall so determine, new Securities
including any interest coupons of any series so modified as to conform, in
the opinion of the Company, to any such supplemental indenture may be
prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities including any interest
coupons of such series.
Section 8.7. Notice of Supplemental Indentures. Promptly after
the execution by the Company and the Trustee of any supplemental indenture
pursuant to the provisions of Section 8.2, the Company shall give notice
thereof to the Holders of each Outstanding Security affected, in the manner
provided for in Section 1.6, setting forth in general terms the substance
of such supplemental indenture. Any failure of the Company to give such
notice, or any defect therein, shall not, however, in any way impair or
affect the validity of any such supplemental indenture.
ARTICLE 9
AGREEMENTS
Section 9.1. Payment of Principal, Premium, if any, and Interest.
The Company agrees for the benefit of the Holders of each series of
Securities that it will duly and punctually pay the principal of, premium,
if any, and interest, together with additional amounts, if any, on the
Securities of that series in accordance with the terms of the Securities of
such series, any interest coupons appertaining thereto and this Indenture;
provided, however, that amounts properly withheld under the Internal
Revenue Code of 1986, as amended, by any Person from a payment to any
Holder of Securities, after having requested such Holder to provide
applicable information that would allow such Person to make such payment
without withholding, shall be considered as having been paid by the Company
to such Holder for purposes of this Indenture. An installment of principal,
premium, if any, or interest shall be considered paid on the date it is due
if there shall have been sent to the Trustee or Paying Agent by wire
transfer, received by no later than the close of business on such due date,
or if the Trustee or Paying Agent otherwise holds, on that date money
designated for and sufficient to pay the installment.
Section 9.2. Maintenance of Office or Agency. Unless otherwise
specified as contemplated by Section 3.1, if Securities of a series are
issued as Registered Securities, the Company will maintain in each Place of
Payment for that series of Securities an office or agency where Securities
of that series may be presented or surrendered for payment, where
Securities of that series may be surrendered for registration of transfer
or exchange or conversion and where notices and demands to or upon the
Company or any Guarantor in respect of the Securities or the Subordinated
Guarantees of that series and this Indenture may be served. Unless
otherwise specified as contemplated by Section 3.1, if Securities of a
series are issuable as Bearer Securities, the Company will maintain (i)
subject to any laws or regulations applicable thereto, an office or agency
in a Place of Payment for that series which is located outside the United
States where Securities of that series and related interest coupons may be
presented and surrendered for payment; provided, however, that if the
Securities of that series are listed on The International Stock Exchange of
the United Kingdom and the Republic of Ireland Limited, the Luxembourg
Stock Exchange or any other stock exchange located outside the United
States and such stock exchange shall so require, the Company will maintain
a Paying Agent for the Securities of that series in London, Luxembourg or
any other required city located outside the United States, as the case may
be, so long as the Securities of that series are listed on such exchange,
and (ii) subject to any laws or regulations applicable thereto, an office
or agency in a Place of Payment for that series which is located outside
the United States, where Securities of that series may be surrendered for
exchange and where notices and demands to or upon the Company in respect of
the Securities of that series and this Indenture may be served. The Company
will give prompt written notice to the Trustee of the location, and any
change in the location, of any such office or agency. If at any time the
Company shall fail to maintain any such required office or agency or shall
fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate
Trust Office of the Trustee, and the Company and each Guarantor hereby
appoints the Trustee as its agent to receive all such presentations,
surrenders, notices and demands.
Unless otherwise specified as contemplated by Section 3.1, no
payment of principal, premium or interest on Bearer Securities shall be
made at any office or agency of the Company in the United States, by check
mailed to any address in the United States, by transfer to an account
located in the United States or upon presentation or surrender in the
United States of a Bearer Security or interest coupon for payment, even if
the payment would be credited to an account located outside the United
States; provided, however, that, if the Securities of a series are
denominated and payable in Dollars, payment of principal of and any premium
or interest on any such Bearer Security shall be made at the office of the
Company's Paying Agent in the Borough of Manhattan, The City of New York,
if (but only if) payment in Dollars of the full amount of such principal,
premium or interest, as the case may be, at all offices or agencies outside
the United States maintained for the purpose by the Company in accordance
with this Indenture is illegal or effectively precluded by exchange
controls or other similar restrictions.
Unless otherwise specified as contemplated by Section 3.1, the
Company may also from time to time designate one or more other offices or
agencies where the Securities (including any interest coupons, if any) of
one or more series may be presented or surrendered for any or all such
purposes and may from time to time rescind such designations; provided,
however, that no such designation or rescission shall in any manner relieve
the Company of its obligation to maintain an office or agency in each Place
of Payment for Securities (including any interest coupons, if any) of any
series for such purposes. The Company will give prompt written notice to
the Trustee of any such designation or rescission and of any change in the
location of any such other office or agency.
Unless otherwise specified as contemplated by Section 3.1, the
Trustee shall initially serve as Paying Agent.
Section 9.3. Money for Securities Payments to Be Held in Trust;
Unclaimed Money. If the Company shall at any time act as its own Paying
Agent with respect to any series of Securities and any interest coupons
appertaining thereto, it will, on or before each due date of the principal
of, premium, if any, or interest on any of the Securities of that series,
segregate and hold in trust for the benefit of the Persons entitled thereto
a sum sufficient to pay the principal, premium, if any, or interest so
becoming due until such sums shall be paid to such Persons or otherwise
disposed of as herein provided and will promptly notify the Trustee in
writing of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities and any interest coupons appertaining thereto, it
will, prior to each due date of the principal of or any premium or interest
on any Securities of that series, deposit with a Paying Agent a sum
sufficient to pay such amount, such sum to be held as provided by the Trust
Indenture Act, and (unless such Paying Agent is the Trustee) the Company
will promptly notify the Trustee of its action or failure so to act.
The Company will cause each Paying Agent for any series of
Securities other than the Trustee to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee, subject
to the provisions of this Section, that such Paying Agent will:
(a) comply with the provisions of the Trust Indenture Act
applicable to it as a Paying Agent;
(b) hold all sums held by it for the payment of the principal of,
premium, if any, or interest on Securities of that series in trust for the
benefit of the Persons entitled thereto until such sums shall be paid to
such Persons or otherwise disposed of as herein provided;
(c) give the Trustee notice of any default by the Company (or any
other obligor upon the Securities of that series) in the making of any
payment of principal, premium, if any, or interest on the Securities of
that series; and
(d) at any time during the continuance of any such default, upon
the written request of the Trustee, forthwith pay to the Trustee all sums
so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay,
or by Company Order direct any Paying Agent to pay, to the Trustee all sums
held in trust by the Company or such Paying Agent, such sums to be held by
the Trustee upon the terms set forth in this Indenture; and, upon such
payment by any Paying Agent to the Trustee, such Paying Agent shall be
released from all further liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then
held by the Company, in trust for the payment of any principal of or
premium or interest on any Security of any series and remaining unclaimed
for two years after such principal, premium, if any, or interest has become
due and payable shall be paid to the Company on Company Request, or (if
then held by the Company) shall be discharged from such trust; and the
Holder of such Security and interest coupon, if any, shall thereafter, as
an unsecured general creditor, look only to the Company for payment
thereof, and all liability of the Trustee or such Paying Agent with respect
to such trust money, and all liability of the Company as trustee thereof,
shall thereupon cease; provided, however, that the Trustee or such Paying
Agent, before being required to make any such repayment, may in the name
and at the expense of the Company cause to be published once, in an
Authorized Newspaper in each Place of Payment with respect to such series,
or cause to be mailed to such Holder, notice that such money remains
unclaimed and that, after a date specified therein, which shall not be less
than 30 days from the date of such publication, any unclaimed balance of
such money then remaining will be repaid to the Company.
Section 9.4. Corporate Existence. Subject to Article 7, the
Company will at all times do or cause to be done all things necessary to
preserve and keep in full force and effect its corporate existence and its
rights and franchises; provided that nothing in this Section 9.4 shall
prevent the abandonment or termination of any right or franchise of the
Company if it shall be determined that such abandonment or termination is
desirable in the conduct of the business of the Company.
Section 9.5. Annual Review Certificate. The Company agrees to
deliver to the Trustee, within 90 days after the end of each fiscal year of
the Company, a certificate from the principal executive officer, principal
financial officer or principal accounting officer of the Company stating
that a review of the activities of the Company during such year and of
performance under this Indenture has been made under his or her supervision
and to the best of his or her knowledge, based on such review, each of the
Company and the Guarantors has fulfilled all of its obligations under this
Indenture throughout such year, or, if there has been a default in the
fulfillment of any such obligation, specifying each such default known to
him or her and the nature and status thereof. For purposes of this Section
9.5, such compliance shall be determined without regard to any period of
grace or requirement of notice provided under this Indenture.
The Company shall deliver to the Trustee, as soon as possible and
in any event within 30 days after the Company becomes aware of the
occurrence of an Event of Default or an event which, with notice or the
lapse of time or both, would constitute an Event of Default, an Officers'
Certificate setting forth the details of such Event of Default or Default,
and the action which the Company proposes to take with respect thereto.
Section 9.6. Maintenance of Properties. The Company will cause
all properties used or useful in the conduct of its business or the
business of any Subsidiary to be maintained and kept in good condition,
repair and working order, normal wear and tear excepted, and supplied with
all necessary equipment and will cause to be made all necessary repairs,
renewals, replacements, betterments and improvements thereof, all as in the
judgment of the Company may be necessary so that the business carried on in
connection therewith may be properly and advantageously conducted at all
times; provided, however, that nothing in this Section 9.6 shall prevent
the Company from discontinuing the operation or maintenance of any of such
properties, or disposing of any of them, if such discontinuance or
disposition is, in the judgment of the Company, desirable in the conduct of
its business or the business of any Subsidiary.
Section 9.7. Payments of Taxes and Other Claims. The Company will
pay or discharge or cause to be paid or discharged, before the same shall
become delinquent, (1) all taxes, assessments and governmental charges
levied or imposed upon the Company or any Subsidiary or upon the income,
profits or property of the Company or any Subsidiary, and (2) all lawful
claims for labor, materials and supplies which, if unpaid, might by law
become a material lien upon the property of the Company or any Subsidiary;
provided, however, that the Company shall not be required to pay or
discharge or cause to be paid or discharged any such tax, assessment,
charge or claim whose amount, applicability or validity is being contested
in good faith by appropriate proceedings.
Section 9.8. Waiver of Certain Agreements. Except as otherwise
specified as contemplated by Section 3.1 for Securities of such series, the
Company or any Guarantor may, with respect to the Securities of any series,
omit in any particular instance to comply with any term, provision or
condition set forth in any agreement provided pursuant to Section
3.1(b)(15), 8.1(b) or 8.1(g) for the benefit of the Holders of such series
if before the time for such compliance the Holders of at least a majority
in principal amount of the Outstanding Securities of such series shall, by
act of such Holders in accordance with Section 1.4, either waive such
compliance in such instance or generally waive compliance with such term,
provision or condition, but no such waiver shall extend to or affect such
term, provision or condition except to the extent so expressly waived, and,
until such waiver shall become effective, the obligations of the Company
and each of the Guarantors and the duties of the Trustee in respect of any
such term, provision or condition shall remain in full force and effect.
ARTICLE 10
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 10.1. Company to Furnish Trustee Names and Addresses of
Holders. The Company will furnish or cause to be furnished to the Trustee:
(a) semi-annually, not more than 15 days after each Regular
Record Date for any series, a list, in such form as the Trustee may
reasonably require, of the names and addresses of the Holders of
Registered Securities of such series as of such Regular Record Date;
and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a
list of similar form and content for any or all series as of a date
not more than 15 days prior to the time such list is furnished;
excluding from any such list names and addresses possessed by the Trustee
in its capacity as Registrar.
Section 10.2. Preservation of Information, Communications to
Holders. (a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders of Registered
Securities contained in the most recent list furnished to the Trustee as
provided in Section 10.1 and the names and addresses of Holders of
Registered Securities received by the Trustee in its capacity as Registrar.
The Trustee may destroy any list furnished to it as provided in Section
10.1 upon receipt of a new list so furnished.
(b) The rights of Holders of Securities to communicate with other
Holders with respect to their rights under this Indenture or under the
Securities, and the corresponding rights and privileges of the Trustee,
shall be as provided in the Trust Indenture Act.
(c) Every Holder of Securities and interest coupons appertaining
thereto, by receiving and holding the same, agrees with the Company and the
Trustee that neither the Company, the Guarantors nor the Trustee nor any
agent of any of them shall be held accountable by reason of the disclosure
of information as to the names and addresses of the Holders of Securities
made pursuant to the Trust Indenture Act.
Section 10.3. Reports by Trustee. (a) The Trustee shall transmit
to Holders of Securities such reports concerning the Trustee and its
actions under this Indenture as may be required pursuant to the Trust
Indenture Act, at the times and in the manner provided pursuant thereto.
(b) Reports so required to be transmitted at stated intervals of
not more than 12 months shall be transmitted no later than July 15 in each
calendar year, commencing with the first July 15 after the first issuance
of Securities under this Indenture.
(c) A copy of each such report shall, at the time of such
transmission to Holders of Securities, be filed by the Trustee with each
stock exchange upon which the Securities of any series may then be listed
and also with the Commission. The Company will notify the Trustee whenever
the Securities of any series are listed on any stock exchange.
Section 10.4. Reports by the Company and the Guarantors. The
Company and each of the Guarantors shall file with the Trustee and the
Commission, and transmit to the Holders, such information, documents and
other reports, and such summaries thereof, as may be required pursuant to
the Trust Indenture Act at the times and in the manner provided pursuant to
such Act; provided that any such information, documents or reports required
to be filed with the Commission pursuant to Section 13 or 15(d) of the
Exchange Act shall be filed with the Trustee within 15 days after the same
is so required to be filed with the Commission. Notwithstanding anything
contrary herein, the Trustee shall have no duty to review such documents
for purposes of determining compliance with any provisions of this
Indenture.
ARTICLE 11
REDEMPTION
Section 11.1. Applicability of Article. Securities (including
interest coupons, if any) of any series which are redeemable before their
Stated Maturity shall be redeemable in accordance with their terms and
(except as otherwise specified as contemplated by Section 3.1 for
Securities of any series) in accordance with this Article.
Section 11.2. Election to Redeem; Notice to Trustee. The election
of the Company to redeem any Securities, including interest coupons, if
any, that, at the time of such election, may be redeemed at the option of
the Company, shall be evidenced by a Board Resolution. In the case of any
such redemption at the election of the Company of less than all the
Securities or interest coupons, if any, of any series, the Company shall,
at least 45 days prior to the Redemption Date fixed by the Company (unless
a shorter notice shall be satisfactory to the Trustee), notify the Trustee
of such Redemption Date, of the principal amount of Securities of such
series to be redeemed and, if applicable, of the tenor of the Securities to
be redeemed. In the case of any redemption of Securities (i) prior to the
expiration of any restriction on such redemption provided in the terms of
such Securities or elsewhere in this Indenture or (ii) pursuant to an
election of the Company which is subject to a condition specified in the
terms of such Securities, the Company shall furnish the Trustee with an
Officers' Certificate evidencing compliance with such restriction or
condition.
Section 11.3. Selection of Securities to Be Redeemed. Unless
otherwise specified as contemplated by Section 3.1, if less than all the
Securities (including interest coupons, if any) of a series with the same
terms are to be redeemed, the Trustee, not more than 60 days prior to the
Redemption Date, shall select the Securities of the series to be redeemed
in such manner as the Trustee shall deem fair and appropriate. The Trustee
shall make the selection from Securities of the series that are Outstanding
and that have not previously been called for redemption and may provide for
the selection for redemption of portions (equal to the minimum authorized
denomination for Securities, including interest coupons, if any, of that
series or any integral multiple thereof) of the principal amount of
Securities, including interest coupons, if any, of such series of a
denomination larger than the minimum authorized denomination for Securities
of that series, provided that the unredeemed portion of the principal
amount of any Security shall be in an authorized denomination (which shall
not be less than the minimum authorized denomination) for such Security.
The Trustee shall promptly notify the Company in writing of the Securities
selected by the Trustee for redemption and, in the case of any Securities
selected for partial redemption, the principal amount thereof to be
redeemed. If the Company shall so direct, Securities registered in the name
of the Company, any Guarantor, any Affiliate or any Subsidiary of the
Company or any Guarantor shall not be included in the Securities selected
for redemption.
For purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities
(including interest coupons, if any) shall relate, in the case of any
Securities (including interest coupons, if any) redeemed or to be redeemed
only in part, to the portion of the principal amount of such Securities
(including interest coupons, if any) which has been or is to be redeemed.
If any Security that is convertible or exchangeable is selected
for partial redemption and is converted or exchanged in part before
termination of the conversion or exchange right with respect to the portion
of the Security so selected, the converted or exchanged portion of such
Security shall be deemed (so far as applicable) to be the portion selected
for redemption. Securities which have been converted or exchanged during a
selection of Securities to be redeemed shall be treated by the Trustee as
Outstanding for the purposes of such selection.
Section 11.4. Notice of Redemption. Unless otherwise specified as
contemplated by Section 3.1, notice of redemption shall be given in the
manner provided in Section 1.6 not less than 30 days nor more than 60 days
prior to the Redemption Date to the Holders of the Securities to be
redeemed.
All notices of redemption shall state:
(a) the Redemption Date;
(b) the Redemption Price;
(c) if less than all the Outstanding Securities of a series are
to be redeemed, the identification (and, in the case of partial redemption,
the principal amounts) of the particular Security or Securities to be
redeemed;
(d) the Place or Places of Payment where such Securities,
together in the case of Bearer Securities with all interest coupons
appertaining thereto, if any, maturing on or after the Redemption Date, are
to be surrendered for payment of the Redemption Price;
(e) that Securities of the series called for redemption and all
unmatured interest coupons, if any, appertaining thereto must be
surrendered to the Paying Agent to collect the Redemption Price;
(f) that, on the Redemption Date, the Redemption Price will
become due and payable upon each such Security, or the portion thereof, to
be redeemed and, if applicable, that interest thereon will cease to accrue
on and after said date;
(g) that the redemption is from a sinking fund, if such is the
case;
(h) that, unless otherwise specified in such notice, Bearer
Securities of any series, if any, surrendered for redemption must be
accompanied by all interest coupons maturing subsequent to the Redemption
Date or the amount of any such missing interest coupon or interest coupons
will be deducted from the Redemption Price, unless security or indemnity
satisfactory to the Company, the Trustee and any Paying Agent is furnished;
(i) the CUSIP number, if any, of the Securities;
(j) if applicable, the conversion or exchange price, the date on
which the right to convert or exchange the Securities (or portions thereof
to be redeemed) will terminate and the place or places where such
Securities may be surrendered for conversion or exchange; and
(k) the procedures that a Holder must follow to surrender the
Securities so to be redeemed.
Notice of redemption of Securities to be redeemed shall be given
by the Company or, at the Company's request, by the Trustee in the name and
at the expense of the Company.
Section 11.5. Deposit of Redemption Price. On or prior to any
Redemption Date, the Company shall deposit with the Trustee or with a
Paying Agent (or, if the Company is acting as its own Paying Agent,
segregate and hold in trust as provided in Section 9.3) an amount of money
in the currency or currencies (including currency unit or units) in which
the Securities of such series are payable (except as otherwise specified
pursuant to Section 3.1 for the Securities of such series) sufficient to
pay on the Redemption Date the Redemption Price of, and (unless the
Redemption Date shall be an Interest Payment Date) interest accrued to the
Redemption Date on, all Securities or portions thereof which are to be
redeemed on that date.
Unless any Security by its terms prohibits any redemption
obligation from being satisfied by delivering and crediting Securities
(including Securities redeemed otherwise than through a sinking fund), the
Company may deliver such Securities to the Trustee for crediting of an
amount equal to the then applicable Redemption Price for such Securities
against such payment obligation in accordance with the terms of such
Securities and this Indenture.
Section 11.6. Securities Payable on Redemption Date. Notice of
redemption having been given as aforesaid, the Securities so to be redeemed
shall, on the Redemption Date, become due and payable at the Redemption
Price therein specified, and from and after such date (unless the Company
shall default in the payment of the Redemption Price and accrued interest)
such Securities shall cease to bear interest and the interest coupons for
any such interest appertaining to any Bearer Security so to be redeemed,
except to the extent provided below, shall be void. Except as provided in
the next succeeding paragraph, upon surrender of any such Security,
including interest coupons, if any, for redemption in accordance with said
notice, such Security shall be paid by the Company at the Redemption Price,
together with accrued interest to the Redemption Date; provided, however,
that installments of interest on Bearer Securities whose Stated Maturity is
on or prior to the Redemption Date shall be payable only at an office or
agency located outside the United States and its possessions (except as
otherwise provided in Section 9.2) and, unless otherwise specified as
contemplated by Section 3.1, only upon presentation and surrender of
interest coupons for such interest; and provided, further, that, unless
otherwise specified as contemplated by Section 3.1, installments of
interest on Registered Securities that are due and payable on Interest
Payment Dates that are on or prior to the Redemption Date shall be payable
to the Holders of such Securities, or one or more Predecessor Securities,
registered as such at the close of business on the relevant Regular Record
Dates according to their terms and the provisions of Section 3.7.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant interest coupons maturing after the
Redemption Date, such Bearer Security may be paid after deducting from the
Redemption Price an amount equal to the face amount of all such missing
interest coupons, or the surrender of such missing interest coupon or
interest coupons may be waived by the Company and the Trustee if there be
furnished to them such security or indemnity as they may require to save
each of them and any Paying Agent harmless. If thereafter the Holder of
such Bearer Security shall surrender to the Trustee or any Paying Agent any
such missing interest coupon in respect of which a deduction shall have
been made from the Redemption Price, such Holder shall be entitled to
receive the amount so deducted; provided, however, that interest
represented by interest coupons shall be payable only at an office or
agency located outside of the United States (except as otherwise provided
pursuant to Section 9.2) and, unless otherwise specified as contemplated by
Section 3.1, only upon presentation and surrender of those interest
coupons.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal and premium, if any, shall,
until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Security.
Section 11.7. Securities Redeemed in Part. Upon surrender of a
Security that is redeemed in part at any Place of Payment therefor (with,
if the Company or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company and the Trustee
duly executed by, the Holder thereof or his or her attorney duly authorized
in writing), the Company shall execute and the Trustee shall authenticate
and deliver to the Holder of that Security, without service charge, a new
Security or Securities (each with a Subordinated Guarantee of each
Guarantor executed by each such Guarantor and endorsed thereon) of the same
series, having the same form, terms and Stated Maturity, in any authorized
denomination equal in aggregate principal amount to the unredeemed portion
of the principal amount of the Security surrendered.
ARTICLE 12
SINKING FUNDS
Section 12.1. Applicability of Article. The provisions of this
Article shall be applicable to any sinking fund for the retirement of
Securities of a series except as otherwise specified as contemplated by
Section 3.1 for Securities of such series.
The minimum amount of any sinking fund payment provided for by
the terms of Securities of any series is herein referred to as a "mandatory
sinking fund payment," and any payment in excess of such minimum amount
provided for by the terms of Securities of any series is herein referred to
as an "optional sinking fund payment." If provided for by the terms of
Securities of any series, the cash amount of any sinking fund payment may
be subject to reduction as provided in Section 12.2. Each sinking fund
payment shall be applied to the redemption of Securities of any series as
provided for by the terms of Securities of such series.
Section 12.2. Satisfaction of Sinking Fund Payments with
Securities. The Company (i) may deliver Outstanding Securities of a series
(other than any previously called for redemption) together, in the case of
Bearer Securities of such series, with all unmatured interest coupons
appertaining thereto and (ii) may apply as a credit Securities of a series
which have been (x) redeemed either at the election of the Company pursuant
to the terms of such Securities or through the application of permitted
optional sinking fund payments pursuant to the terms of such Securities,
(y) converted or exchanged pursuant to Article 14 or (z) previously
delivered to the Trustee and cancelled without reissuance pursuant to
Section 3.9, in each case in satisfaction of all or any part of any sinking
fund payment with respect to the Securities of such series required to be
made pursuant to the terms of such Securities as provided for by the terms
of such series; provided that such Securities have not been previously so
credited. Such Securities shall be received and credited for such purpose
by the Trustee at the Redemption Price specified in such Securities for
redemption through operation of the sinking fund and the amount of such
sinking fund payment shall be reduced accordingly.
Section 12.3. Redemption of Securities for Sinking Fund. Not less
than 45 days prior to each sinking fund payment date for any series of
Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing sinking fund payment
for that series pursuant to the terms of that series, the portion thereof,
if any, which is to be satisfied by payment of cash and the portion
thereof, if any, which is to be satisfied by delivering and crediting
Securities of that series pursuant to Section 12.2 and stating the basis
for such credit and that such Securities have not been previously so
credited, and will also deliver to the Trustee any Securities to be so
delivered. Not less than 30 days before each such sinking fund payment date
the Trustee shall select the Securities to be redeemed upon such sinking
fund payment date in the manner specified in Section 11.3 and cause notice
of the redemption thereof to be given in the name of and at the expense of
the Company in the manner provided in Section 11.4. Such notice having been
duly given, the redemption of such Securities shall be made upon the terms
and in the manner stated in Sections 11.6 and 11.7.
ARTICLE 13
MEETINGS OF HOLDERS OF SECURITIES
Section 13.1. Purposes for Which Meetings May Be Called. A
meeting of Holders of Securities of any series may be called at any time
and from time to time pursuant to this Article to make, give or take any
request, demand, authorization, direction, notice, consent, election,
waiver or other action provided by this Indenture to be made, given or
taken by Holders of Securities of such series.
Section 13.2. Call, Notice and Place of Meetings. (a) The Trustee
may at any time call a meeting of Holders of Securities of any series for
any purpose specified in Section 13.1, to be held at such time and at such
place in The City of New York or in such other place as may be acceptable
to the Company. Notice of every meeting of Holders of Securities, setting
forth the time and the place of such meeting and in general terms the
action proposed to be taken at such meeting, shall be given, in the manner
provided in Section 1.6, not less than 20 nor more than 180 days prior to
the date fixed for the meeting.
(b) In case at any time the Company, pursuant to a Board
Resolution, shall have requested the Trustee to call a meeting of the
Holders of Securities of any series for any purpose specified in Section
13.1, by written request setting forth in reasonable detail the action
proposed to be taken at the meeting, and the Trustee shall not have made
the first publication of the notice of such meeting within 20 days after
receipt of such request or shall not thereafter proceed to cause the
meeting to be held as provided herein, then the Company may determine the
time and the place in The City of New York or such other place as may be
acceptable to the Company for such meeting and may call such meeting for
such purposes by giving notice thereof as provided in paragraph (a) of this
Section 13.2.
Section 13.3. Persons Entitled to Vote at Meetings. To be
entitled to vote at any meeting of Holders of Securities of any series, a
Person shall be (a) a Holder of one or more Outstanding Securities of such
series, or (b) a Person appointed by an instrument in writing as proxy for
a Holder or Holders of one or more Outstanding Securities of such series by
such Holder or Holders. The only Persons who shall be entitled to be
present or to speak at any meeting of Holders shall be the Persons entitled
to vote at such meeting and their counsel, any representatives of the
Trustee and its counsel and any representatives of the Company and its
counsel.
Section 13.4. Quorum; Action. The Persons entitled to vote a
majority in principal amount of the Outstanding Securities of a series
shall constitute a quorum for a meeting of Holders of Securities of such
series; provided, however, that if any action is to be taken at such
meeting with respect to a consent or waiver which this Indenture expressly
provides may be given by the Holders of not less than a specified
percentage in principal amount of the Outstanding Securities of a series,
the Persons entitled to vote such specified percentage in principal amount
of the Outstanding Securities of such series shall constitute a quorum. In
the absence of a quorum within 30 minutes after the time appointed for any
such meeting, the meeting may be adjourned for a period of not less than 10
days as determined by the chairman of the meeting prior to the adjournment
of such meeting. In the absence of a quorum at the reconvening of any such
adjourned meeting, such adjourned meeting may be further adjourned for a
period of not less than 10 days; at the reconvening of any meeting
adjourned or further adjourned for lack of a quorum, the persons entitled
to vote 25% in aggregate principal amount of the then Outstanding
Securities of the relevant series shall constitute a quorum for the taking
of any action set forth in the notice of the original meeting. Notice of
the reconvening of any adjourned meeting shall be given as provided in
Section 13.2(b), except that such notice need be given only once not less
than five days prior to the date on which the meeting is scheduled to be
reconvened.
Except as limited by the proviso to Section 8.2, any resolution
presented to a meeting or adjourned meeting duly reconvened at which a
quorum is present as aforesaid may be adopted by the affirmative vote of
the Holders of a majority in principal amount of the Outstanding Securities
of that series; provided, however, that, except as limited by the proviso
to Section 8.2, any resolution with respect to any request, demand,
authorization, direction, notice, consent, waiver or other action which
this Indenture expressly provides may be made, given or taken by the
Holders of a specified percentage, which is less than a majority, in
principal amount of the Outstanding Securities of a series may be adopted
at a meeting or an adjourned meeting duly reconvened and at which a quorum
is present as aforesaid by the affirmative vote of the Holders of such
specified percentage in principal amount of the Outstanding Securities of
that series.
Any resolution passed or decision taken at any meeting of Holders
of Securities of any series duly held in accordance with this Section 13.4
shall be binding on all the Holders of Securities of such series and the
related coupons, whether or not present or represented at the meeting.
Notwithstanding the foregoing provisions of this Sections 13.4,
if any action is to be taken at a meeting of Holders of Securities of any
series with respect to any request, demand, authorization, direction,
notice, consent, waiver or other action that this Indenture expressly
provides may be made, given or taken by the Holders of a specified
percentage in principal amount of all Outstanding Securities affected
thereby, or of the Holders of such series and one or more additional
series:
(1) there shall be no minimum quorum requirement for such meeting
and
(2) the principal amount of the Outstanding Securities of such
series that vote in favor of such request, demand, authorization,
direction, notice, consent, waiver or other action shall be taken into
account in determining whether such request, demand, authorization,
direction, notice, consent, waiver or other action has been made,
given or taken under this Indenture.
Section 13.5. Determination of Voting Rights; Conduct and
Adjournment of Meetings. (a) Notwithstanding any other provisions of this
Indenture, the Trustee may make such reasonable regulations as it may deem
advisable for any meeting of Holders of Securities of any series in regard
to proof of the holding of Securities of such series and of the appointment
of proxies and in regard to the appointment and duties of inspectors of
votes, the submission and examination of proxies, certificates and other
evidence of the right to vote, and such other matters concerning the
conduct of the meeting as it shall deem appropriate. Except as otherwise
permitted or required by any such regulations, the holding of Securities
shall be proved in the manner specified in Section 1.4 and the appointment
of any proxy shall be provided in the manner specified in Section 1.4 or by
having the signature of the Person executing the proxy witnessed or
guaranteed by any trust company, bank or banker authorized by Section 1.4
to certify to the holding of Bearer Securities. Such regulations may
provide that written instruments appointing proxies, regular on their face,
may be presumed valid and genuine without the proof specified in Section
1.4 or other proof.
(b) The Trustee shall, by an instrument in writing, appoint a
temporary chairman (which may be a Responsible Officer of the Trustee) of
the meeting, unless the meeting shall have been called by the Company as
provided in Section 13.2(b), in which case the Company shall in like manner
appoint a temporary chairman. A permanent chairman and a permanent
secretary of the meeting shall be elected by vote of the Persons entitled
to vote a majority in principal amount of the Outstanding Securities of
such series represented at the meeting.
(c) At any meeting each Holder of a Security of such series or
proxy shall be entitled to one vote for each U.S. $1,000 principal amount
of Securities held or represented by him or her; provided, however, that no
vote shall be cast or counted at any meeting in respect of any Security
challenged as not Outstanding and ruled by the chairman of the meeting to
be not Outstanding. The chairman of the meeting shall have no right to
vote, except as a Holder of a Security or proxy.
(d) Any meeting of Holders of Securities of a series duly called
pursuant to Section 13.2 at which a quorum is present may be adjourned from
time to time by Persons entitled to vote a majority in principal amount of
the Outstanding Securities of such series represented at the meeting, and
the meeting may be held as so adjourned without further notice.
Section 13.6. Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of Holders of
Securities of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers
of the Outstanding Securities held or represented by them. The permanent
chairman of the meeting shall appoint an inspector of votes who shall count
all votes cast at the meeting for or against any resolution and who shall
make and file with the secretary of the meeting its verified written
reports in duplicate of all votes cast at the meeting. A record of the
proceedings of each meeting of Holders of Securities shall be prepared by
the applicable secretary of the meeting and there shall be attached to said
record the original report of the inspector of votes on any vote by ballot
taken thereat and affidavits by one or more Persons having knowledge of the
facts, setting forth a copy of the notice of the meeting and showing that
said notice was given as provided in Section 13.2 and, if applicable,
Section 13.4. At least two copies of such record shall be signed and
verified by the affidavits of the permanent chairman and secretary of the
meeting and one copy thereof shall be delivered to the Company and the
other to the Trustee to be preserved by the Trustee, the latter to have
attached thereto the ballots voted at the meeting. Any record so signed and
verified shall be conclusive evidence of the matters therein stated.
ARTICLE 14
CONVERSION OR EXCHANGE OF SECURITIES
Section 14.1. Applicability of Article. (a) The provisions of
this Article 14 shall be applicable to the Securities of any series which
are convertible or exchangeable into Equity Securities of Allied, and to
the issuance of such Equity Securities upon the conversion or exchange of
such Securities, except as otherwise specified as contemplated by Section
3.1 for the Securities of such series.
(b) The term "Equity Securities" shall mean all or any of the
following, authorized from time to time: (i) Allied's Common Stock, $.01
par value (the "Common Stock"), (ii) Allied's Preferred Stock, $.10 par
value (the "Preferred Stock"), and (iii) any other equity securities of
Allied.
Section 14.2. Exercise of Conversion or Exchange Privilege. (a)
In order to exercise a conversion or exchange privilege, the Holder of a
Security of a series with such privilege shall surrender such Security,
together, in the case of any Bearer Security, with all unmatured interest
coupons and any matured interest coupons in default appertaining thereto,
to the Company at the office or agency maintained for that purpose pursuant
to Section 9.2, accompanied by written notice to Allied and the Company
that the Holder elects to convert or exchange such Security or a specified
portion thereof. Such notice shall also state, if different from the name
and address of such Holder, the name or names (with address) in which the
certificate or certificates for Equity Securities which shall be issuable
on such conversion or exchange shall be issued. Registered Securities
surrendered for conversion or exchange shall (if so required by Allied, the
Company or the Trustee) be duly endorsed by or accompanied by instruments
of transfer in forms satisfactory to Allied, the Company and the Trustee
duly executed by the registered Holder or its attorney duly authorized in
writing.
(b) As promptly as practicable after the receipt of such notice
and of any payment required pursuant to a Board Resolution establishing the
terms of any series of Securities and, subject to Section 3.3, set forth,
or determined in the manner provided, in an Officers' Certificate, or
established in one or more indentures supplemental hereto setting forth the
terms of such series of Security, and the surrender of such Security in
accordance with such reasonable regulations as Allied and the Company may
prescribe, Allied shall issue and shall deliver, at the office or agency at
which such Security is surrendered, to such Holder or on its written order,
a certificate or certificates for the number of Equity Securities issuable
upon the conversion or exchange of such Security (or specified portion
thereof), in accordance with the provisions of such Board Resolution,
Officers' Certificate or supplemental indenture, and cash as provided
therein in respect of any fractional share of such Equity Security
otherwise issuable upon such conversion or exchange.
(c) Such conversion or exchange shall be deemed to have been
effected immediately prior to the close of business on the date on which
such notice and such payment, if required, shall have been received in
proper order for conversion or exchange by Allied and the Company and such
Security shall have been surrendered as aforesaid and at such time the
rights of the Holder of such Security as such Security Holder shall cease
and the person or persons in whose name or names any certificate or
certificates for Equity Securities of Allied shall be issuable upon such
conversion or exchange shall be deemed to have become the Holder or Holders
of record of the Equity Securities represented thereby. Except as set forth
above and subject to paragraph (d) of Section 3.7, no payment or adjustment
shall be made upon any conversion or exchange on account of any interest
accrued on the Securities surrendered for conversion or exchange, or on
account of any dividends on the Equity Securities of Allied issued upon
such conversion or exchange if the record date for the payment of such
dividends occurs prior to or on the date on which such conversion or
exchange shall be deemed to have been effected.
In the case of any Security which is converted or exchanged in
part only, upon such conversion or exchange the Company shall execute and
the Trustee shall authenticate and deliver to or on the order of the Holder
thereof, at the expense of the Company, a new Security or Securities of the
same series, of authorized denominations, in aggregate principal amount
equal to the unconverted or unexchanged portion of such Security.
Any requirements for notice, surrender or delivery of Securities
pursuant to this Article Fourteen shall, with respect to any Global
Security, be subject to any Applicable Procedures.
Section 14.3. No Fractional Equity Securities. No fractional
Equity Security of Allied shall be issued upon conversions or exchanges of
Securities of any series. If more than one Security shall be surrendered
for conversion or exchange at one time by the same Holder, the number of
full shares of the Equity Security which shall be issuable upon conversion
or exchange shall be computed on the basis of the aggregate principal
amount of the Securities (or specified portions thereof to the extent
permitted hereby) so surrendered. If, except for the provisions of this
Section 14.3, any Holder of a Security or Securities would be entitled to a
fractional share of any Equity Security of Allied upon the conversion or
exchange of such Security or Securities, or specified portions thereof,
Allied or the Company shall pay to such Holder an amount in cash equal to
the current market value of such fractional share computed, (i) if such
Equity Security is listed or admitted to unlisted trading privileges on a
national securities exchange, on the basis of the last reported sale price
regular way on the principal exchange where such Equity Security is listed
or admitted, on the last trading day prior to the date of conversion or
exchange upon which such a sale shall have been effected, (ii) if such
Equity Security is not at the time so listed or admitted on a national
securities exchange but is quoted on the National Market System of the
National Association of Securities Dealers, Inc. ("NASDAQ"), on the basis
of the average of the last bid and asked prices of such Equity Security on
NASDAQ on the last trading day prior to the date of conversion or exchange,
(iii) if such Equity Security is not at the time so listed or admitted to
unlisted trading privileges on a national securities exchange or quoted on
NASDAQ, on the basis of the average of the last bid and asked prices of
such Equity Security in the over-the- counter market, on the last trading
day prior to the date of conversion or exchange, as reported by the
National Quotation Bureau Incorporated or similar organization if the
National Quotation Bureau Incorporated is no longer reporting such
information, or (iv) in accordance with the terms of the supplemental
indenture or Board Resolutions setting the terms of the Securities of such
series. For purposes of this Section, "trading day" shall mean each Monday,
Tuesday, Wednesday, Thursday and Friday other than any day on which the
applicable Equity Security is not traded or quoted on a national securities
exchange, or if the applicable Equity Security is not traded or quoted on a
national securities exchange, on NASDAQ or the principal exchange or market
on which the applicable Equity Security is traded or quoted.
Section 14.4. Adjustment of Conversion or Exchange Price;
Consolidation or Merger. The conversion or exchange price of Securities of
any series that is convertible or exchangeable into an Equity Security of
Allied shall be adjusted for any stock dividends, stock splits,
reclassifications, combinations or similar transactions, and the
securities, assets or other property into or for which such Securities may
be converted or exchanged as a result of any consolidation, merger,
combination or similar transaction shall be determined, in accordance with
the terms of the supplemental indenture or Board Resolutions setting the
terms of the Securities of such series.
Whenever the conversion or exchange price is adjusted, Allied and
the Company shall compute the adjusted conversion or exchange price in
accordance with the terms of the applicable Board Resolution or
supplemental indenture and shall prepare an Officers' Certificate setting
forth the adjusted conversion or exchange price and showing in reasonable
detail the facts upon which such adjustment is based. Whenever the
securities, assets or other property into or for which Securities of any
series may be converted or exchanged are changed as a result of any
consolidation, merger or similar transaction, Allied and the Company shall
determine the nature and amount of such securities, assets or other
property in accordance with the terms of the applicable Board Resolution or
supplemental indenture and shall prepare an Officer's Certificate
describing such securities, assets or other property and stating the amount
of such securities, assets or other property into or for which such
Securities have become convertible or exchangeable. Such certificates shall
forthwith be filed at each office or agency maintained for the purpose of
conversion or exchange of Securities pursuant to Section 9.2 and, if
different, with the Trustee. Allied and the Company shall forthwith cause a
notice setting forth the adjusted conversion or exchange price or
describing such securities, assets or other property, as applicable, to be
mailed, first class postage prepaid, to each Holder of Registered
Securities of such series at its address appearing on the Register and to
any conversion or exchange agent other than the Trustee and shall give
notice to Holders of Bearer Securities as provided in Section 1.6.
Section 14.5. Notice of Certain Corporate Actions. If any series
of Securities which are directly or indirectly convertible or exchangeable
for any Equity Securities are Outstanding, in case:
(a) Allied shall declare a dividend (or any other distribution)
on any class of such Equity Securities payable (i) otherwise than
exclusively in cash out of its retained earnings, or (ii) exclusively
in cash out of its retained earnings in an amount that, under the
terms of such Securities, would require an adjustment in the exchange
or conversion price of such Securities; or
(b) Allied shall authorize the granting to the holders of any
class of such Equity Securities of rights, options or warrants to
subscribe for or purchase any shares of capital stock of any class or
of any other rights; or
(c) of any reclassification of any class of such Equity
Securities (other than a subdivision or combination of its outstanding
shares of such Equity Securities), or of any consolidation or merger
to which the Company is a party and for which approval of any
shareholders of the Company is required, or of the sale of all or
substantially all of the assets of Allied; or
(d) of the voluntary or involuntary dissolution, liquidation or
winding up of Allied; or
(e) the Company or any Subsidiary of the Company shall commence a
tender or exchange offer for all or a portion of the Company's
outstanding shares of such Equity Securities (or shall amend any such
tender or exchange offer);
then Allied and the Company shall cause to be filed with the Trustee, and
shall cause to be mailed to all Holders at their addresses as they shall
appear in the Register and shall give notice to Holders of Bearer
Securities as provided in Section 1.6, at least 20 days (or 10 days in any
case specified in clause (a) or (b) above) prior to the applicable record
date hereinafter specified, a notice stating (i) the date on which a record
is to be taken for the purpose of such dividend, distribution, rights,
options or warrants, or, if a record is not to be taken, the date as of
which the Holders of such Equity Securities of record to be entitled to
such dividend, distribution, rights, options or warrants are to be
determined, or (ii) the date on which such reclassification, consolidation,
merger, share exchange, sale, dissolution, liquidation or winding up is
expected to become effective, and the date as of which it is expected that
holders of such Equity Securities of record shall be entitled to exchange
such Equity Securities for securities, cash or other property deliverable
upon such reclassification, consolidation, merger, share exchange, sale,
dissolution, liquidation or winding up or (iii) the date on which such
tender or exchange offer commenced, the date on which such tender or
exchange offer is scheduled to expire unless extended, the consideration
offered and the other material terms thereof (or the material terms of any
amendment thereto). If at any time the Trustee shall not be the conversion
or exchange agent, a copy of such notice shall also forthwith be filed by
Allied and the Company with the Trustee.
Section 14.6. Reservation of Equity Securities. Allied shall at
all times reserve and keep available, free from preemptive rights, out of
its authorized but unissued Equity Securities, solely for the purpose of
effecting the conversion or exchange of Securities, the full number of
Equity Securities of Allied then issuable upon the conversion or exchange
of all Outstanding Securities of any series that has conversion or exchange
rights.
Section 14.7. Payment of Certain Taxes Upon Conversion or
Exchange. Allied and the Company will pay any and all taxes that may be
payable in respect of the issue or delivery of Allied's Equity Securities
on conversion or exchange of Securities pursuant hereto. Allied and the
Company shall not, however, be required to pay any tax which may be payable
in respect of any transfer involved in the issue and delivery of its Equity
Securities in a name other than that of the Holder of the Security or
Securities to be converted or exchanged, and no such issue or delivery
shall be made unless and until the Person requesting such issue has paid to
Allied and the Company the amount of any such tax, or has established, to
the satisfaction of Allied and the Company, that such tax has been paid.
Section 14.8. Duties of Trustee Regarding Conversion or Exchange.
Neither the Trustee nor any conversion or exchange agent shall at any time
be under any duty or responsibility to any Holder of Securities of any
series that is convertible or exchangeable into Equity Securities of Allied
to determine whether any facts exist which may require any adjustment of
the conversion or exchange price, or with respect to the nature or extent
of any such adjustment when made, or with respect to the method employed,
whether herein or in any supplemental indenture, any resolutions of the
Board of Directors or written instrument executed by one or more officers
of Allied and the Company provided to be employed in making the same.
Neither the Trustee nor any conversion or exchange agent shall be
accountable with respect to the validity or value (or the kind or amount)
of any Equity Securities of Allied, or of any securities or property, which
may at any time be issued or delivered upon the conversion or exchange of
any Securities and neither the Trustee nor any conversion or exchange agent
makes any representation with respect thereto. Subject to the provisions of
Section 6.1, neither the Trustee nor any conversion or exchange agent shall
be responsible for any failure of Allied or the Company to issue, transfer
or deliver any of Allied's Equity Securities or stock certificates or other
securities or property upon the surrender of any Security for the purpose
of conversion or exchange or to comply with any of the agreements of Allied
and the Company contained in this Article 14 or in the applicable
supplemental indenture, resolutions of the Board of Directors or written
instrument executed by one or more duly authorized officers of Allied and
the Company.
Section 14.9. Repayment of Certain Funds Upon Conversion or
Exchange. Any funds which at any time have been deposited by the Company or
on its behalf with the Trustee or any Paying Agent for the purpose of
paying the principal of, premium, if any, and interest, if any, on any of
the Securities (including funds deposited for redemption pursuant to
Article 11 or for any sinking fund referred to in Article 12 hereof) and
which shall not be required for such purposes because of the conversion or
exchange of such Securities as provided in this Article 14 shall after such
conversion or exchange be repaid to the Company by the Trustee upon the
Company's written request by Company Request.
ARTICLE 15
SUBORDINATION OF SECURITIES AND SUBORDINATED GUARANTEES
Section 15.1. Securities Subordinate to Senior Debt. The Company
agrees, and each Holder of a Security, by his acceptance thereof, likewise
agrees, that, to the extent and in the manner hereinafter set forth in this
Article (subject to the provisions of Article 4), (i) the payment of the
principal of, premium, if any, and interest on the Securities and any other
obligations in respect of the Securities (including any obligation to
repurchase Securities) are hereby expressly made subordinate and subject in
right of payment to the prior payment in full of all Senior Debt of the
Company, and (ii) the payment of each Guarantor's obligations in respect of
its Subordinated Guarantee is hereby expressly made subordinate and subject
in right of payment to the prior payment in full of all the obligations of
such Guarantor under all Senior Debt of such Guarantor.
Section 15.2. Payment Over of Proceeds Upon Dissolution, Etc. In
the event of (a) any insolvency or bankruptcy case or proceeding, or any
receivership, liquidation, reorganization or other similar case or
proceeding in connection therewith, relative to the Company or to its
creditors, as such, or to its assets, or (b) any liquidation, dissolution
or other winding up of the Company, whether voluntary or involuntary and
whether or not involving insolvency or bankruptcy, or (c) any assignment
for the benefit of creditors or any other marshaling of assets and
liabilities of the Company, then and in any such event specified in (a),
(b) or (c) above (each such event, if any, herein sometimes referred to as
a "Company Proceeding") the holders of all Senior Debt of the Company shall
first be entitled to receive payment in full of all amounts due or to
become due on or in respect of all such Senior Debt, or provision shall be
made for such payment in cash or cash equivalents or otherwise in a manner
satisfactory to the holders of such Senior Debt, before the Holders of the
Securities are entitled to receive any payment or distribution of any kind
or character from the Company, whether in cash, property or securities
(including any payment or distribution which may be payable or deliverable
by reason of the payment of any other Debt of the Company subordinated to
the payment of the Securities on account of principal of, premium, if any,
or interest on or other obligations in respect of the Securities or on
account of any purchase or redemption or other acquisition of Securities by
the Company or Allied or any Subsidiary of the Company (all such payments,
distributions, purchases and acquisitions herein referred to, individually
and collectively, as a "Company Securities Payment"), and to that end the
holders of Senior Debt of the Company shall be entitled to receive, for
application to the payment thereof, any Company Securities Payment which
may be payable or deliverable in respect of the Securities in any such
Company Proceeding.
In the event of (a) any insolvency or bankruptcy case or
proceeding, or any receivership, liquidation, reorganization or other
similar case or proceeding in connection therewith, relative to any
Guarantor or to its creditors, as such, or to its assets, or (b) any
liquidation, dissolution or other winding up of any Guarantor, whether
voluntary or involuntary and whether or not involving insolvency or
bankruptcy, or (c) any assignment for the benefit of creditors or any other
marshaling of assets and liabilities of any Guarantor, then and in any such
event specified in (a), (b) or (c) above (each such event, if any, herein
sometimes referred to as a "Guarantor Proceeding"; the Company Proceeding
and the Guarantor Proceeding each may be referred to as a "Proceeding") the
holders of all Senior Debt of such Guarantor shall first be entitled to
receive payment in full of all amounts due or to become due on or in
respect of all such Senior Debt, or provision shall be made for such
payment in cash or cash equivalents or otherwise in a manner satisfactory
to the holders of such Senior Debt, before the Holders of the Securities
are entitled to receive any payment or distribution of any kind or
character from such Guarantor, whether in cash, property or securities
(including any payment or distribution which may be payable or deliverable
by reason of the payment of any other Debt of such Guarantor subordinated
to the payment of its Subordinated Guarantee by such Guarantor) on account
of its Subordinated Guarantee (all such payments and distributions herein
referred to, individually and collectively, as a "Guarantor Securities
Payment"; any of the Company Securities Payment and the Guarantor
Securities Payment each may be referred to as a "Securities Payment"), and
to that end the holders of Senior Debt of such Guarantor shall be entitled
to receive, for application to the payment thereof, any Guarantor
Securities Payment which may be payable or deliverable in respect of the
Subordinated Guarantee by such Guarantor in any such Guarantor Proceeding.
In the event that, notwithstanding the foregoing provisions of
this Section, the Trustee or the Holder of any Security shall have received
any Securities Payment before all Senior Debt of the Company or the
Guarantor, as applicable, is paid in full or payment thereof provided for
in cash or cash equivalents or otherwise in a manner satisfactory to the
holders of such Senior Debt, then and in such event such Securities Payment
shall be paid over or delivered forthwith to the holders of Senior Debt for
application to the payment of such Senior Debt remaining unpaid, to the
extent necessary to pay such Senior Debt in full, after giving effect to
any concurrent payment or distribution to or for the holders of such Senior
Debt.
The consolidation of the Company or any Guarantor with, or the
merger of the Company or any Guarantor with, another Person or the
liquidation or dissolution of the Company or any Guarantor following the
conveyance or transfer of all or substantially all of its properties and
assets as an entirety to another Person upon the terms and conditions set
forth in Article 7 shall not be deemed a Proceeding for the purposes of
this Section if the Person formed by such consolidation or with which the
Company or any Guarantor merges or the Person which acquires by conveyance
or transfer such properties and assets as an entirety, as the case may be,
shall, as a part of such consolidation, merger, conveyance or transfer,
comply with the conditions set forth in Article 7.
Section 15.3. No Payment When Senior Debt in Default. In the
event that any Company Senior Payment Default (as defined below) shall have
occurred and be continuing, then no Company Securities Payment shall be
made unless and until such Company Senior Payment Default shall have been
cured or waived or shall have ceased to exist or all amounts then due and
payable in respect of Senior Debt of the Company shall have been paid in
full, or provision shall have been made for such payment in cash or
otherwise in a manner satisfactory to the holders of such Senior Debt.
"Company Senior Payment Default" means (i) any default in the payment of
principal of, premium, if any, or interest on any Senior Debt of the
Company and (ii) any event of default with respect to Senior Debt of the
Company which has resulted in such Senior Debt becoming or being declared
due and payable prior to the date on which it would otherwise have become
due and payable.
In the event that any Guarantor Senior Payment Default (as
defined below) with respect to any Guarantor shall have occurred and be
continuing, then no Guarantor Securities Payment shall be made by such
Guarantor unless and until such Guarantor Senior Payment Default shall have
been cured or waived or shall have ceased to exist or all amounts then due
and payable in respect of the Senior Debt of such Guarantor shall have been
paid in full, or provision shall have been made for such payment in cash or
otherwise in a manner satisfactory to the holders of Senior Debt of such
Guarantor. "Guarantor Senior Payment Default" means, with respect to any
Guarantor, (i) any default in the payment of principal of, premium, if any,
or interest on any Senior Debt of such Guarantor and (ii) any event of
default with respect to Senior Debt of such Guarantor which has resulted in
such Senior Debt becoming or being declared due and payable prior to the
date on which it would otherwise have become due and payable. Any Company
Senior Payment Default or Guarantor Senior Payment Default may be referred
to herein as a "Senior Payment Default".
In the event that any Company Senior Nonmonetary Default (as
defined below) shall have occurred and be continuing, then, upon the
receipt by the Company and the Trustee of written notice of such Company
Senior Nonmonetary Default from the Agent Banks under the Credit Agreement
(or if such Credit Agreement has been terminated, from any holder of Senior
Debt of the Company with a principal amount in excess of $50,000,000), no
Company Securities Payment shall be made during the period (the "Company
Payment Blockage Period") commencing on the date of such receipt of such
written notice and ending on the earlier of (i) the date on which such
Company Senior Nonmonetary Default shall have been cured or waived or shall
have ceased to exist and any acceleration of Senior Debt of the Company
shall have been rescinded or annulled or the Senior Debt of the Company to
which such Company Senior Nonmonetary Default relates shall have been
discharged or (ii) the 179th day after the date of such receipt of such
written notice. No more than one Company Payment Blockage Period may be
commenced with respect to the Securities during any consecutive 360-day
period. For all purposes of this paragraph, no Senior Nonmonetary Default
that existed or was continuing on the date of commencement of any Company
Payment Blockage Period shall be, or can be, made the basis for the
commencement of a subsequent Company Payment Blockage Period whether or not
within a period of 360 consecutive days by holders of Senior Debt of the
Company or their representatives unless such Company Senior Nonmonetary
Default shall have been cured for a period of not less than 90 consecutive
days. "Company Senior Nonmonetary Default" means the occurrence or
existence and continuance of any event of default, or of any event which,
after notice or lapse of time (or both), would become an event of default,
under the terms of any instrument pursuant to which any Senior Debt of the
Company is outstanding, permitting (after notice or lapse of time or both)
one or more holders of such Senior Debt (or a trustee or agent on behalf of
the holders thereof) to declare such Senior Debt due and payable prior to
the date on which it would otherwise become due and payable, other than a
Company Senior Payment Default.
In the event that a Guarantor Senior Nonmonetary Default (as
defined below) with respect to any Guarantor shall have occurred and be
continuing, then, upon the receipt by such Guarantor and the Trustee of
written notice of such Guarantor Senior Nonmonetary Default from a holder
of Senior Debt of such Guarantor with a principal amount in excess of $50
million, no Guarantor Securities Payment shall be made by such Guarantor
during the period (a "Guarantor Payment Blockage Period") commencing on the
date of such receipt of such written notice and ending on the earlier of
(i) the date on which such Guarantor Senior Nonmonetary Default shall have
been cured or waived or shall have ceased to exist and any acceleration of
Senior Debt of such Guarantor shall have been rescinded or annulled or the
Senior Debt of such Guarantor to which such Guarantor Senior Nonmonetary
Default relates shall have been discharged or (ii) the 179th day after the
date of such receipt of such written notice. No more than one Guarantor
Payment Blockage Period may be commenced with respect to the Securities
during any 360-day period. For all purposes of this paragraph, no Guarantor
Senior Nonmonetary Default with respect to a Guarantor that existed or was
continuing on the date of commencement of any Guarantor Payment Blockage
Period with respect to such Guarantor shall be, or be made, the basis for
the commencement of a subsequent Guarantor Payment Blockage Period with
respect to such Guarantor whether or not within a period of 360 consecutive
days by holders of Senior Debt of such Guarantor or their representatives
unless such Guarantor Senior Nonmonetary Default shall have been cured for
a period of not less than 90 consecutive days. A "Guarantor Senior
Nonmonetary Default" means, with respect to any Guarantor, the occurrence
or existence and continuance of any event of default, or of any event
which, after notice or lapse of time (or both), would become an event of
default, under the terms of any instrument pursuant to which any Senior
Debt of such Guarantor is outstanding, permitting (after notice or lapse of
time or both) one or more holders of such Senior Debt (or a trustee or
agent on behalf of the holders thereof) to declare such Senior Debt due and
payable prior to the date on which it would otherwise become due and
payable, other than a Guarantor Senior Payment Default. Any Company Senior
Nonmonetary Default or Guarantor Senior Nonmonetary Default may be referred
to herein as a "Senior Nonmonetary Default".
In the event that, notwithstanding the foregoing, the Company or
any Guarantor shall make any Company Securities Payment or Guarantor
Securities Payment, as the case may be, to the Trustee or any Holder
prohibited by the foregoing provisions of this Section, then and in such
event such Securities Payment shall be paid over and delivered forthwith to
the holders of the Senior Debt of the Company or the Guarantor, as the case
may be.
The provisions of this Section shall not apply to any Securities
Payment with respect to which Section 15.2 would be applicable.
Section 15.4. Certain Payments Permitted. Nothing contained in
this Article or elsewhere in this Indenture or in any of the Securities or
the Subordinated Guarantees endorsed thereon shall prevent the Company or
any Guarantor, at any time except during the pendency of any Proceeding
referred to in Section 15.2 or under the conditions described in Section
15.3, from making Securities Payments.
Section 15.5. Subrogation to Rights of Holders of Senior Debt.
Subject to the payment in full in cash of all amounts due or to become due
on or in respect of Senior Debt of the Company or a Guarantor, as the case
may be, or the provision for such payment in cash or cash equivalents or
otherwise in a manner satisfactory to the holders of such Senior Debt, the
Holders of the Securities shall be subrogated to the rights of the holders
of such Senior Debt to receive payments and distributions of cash, property
and securities applicable to such Senior Debt until the principal of,
premium, if any, and interest on the Securities or the obligation under
such Guarantor's Subordinated Guarantee, as the case may be, shall be paid
in full. For purposes of such subrogation, no payments or distributions to
the holders of the Senior Debt of the Company or a Guarantor of any cash,
property or securities to which the Holders of the Securities or the
Trustee would be entitled except for the provisions of this Article, and no
payments over pursuant to the provisions of this Article to the holders of
Senior Debt of the Company or such Guarantor, as the case may be, by
Holders of the Securities or the Trustee, shall, as among the Company or
such Guarantor, as the case may be, its creditors other than holders of
Senior Debt and the Holders of the Securities, be deemed to be a payment or
distribution by the Company or such Guarantor, as applicable, to or on
account of the Senior Debt of the Company or such Guarantor, as the case
may be.
Section 15.6. Provisions Solely to Define Relative Rights. The
provisions of this Article are and are intended solely for the purpose of
defining the relative rights of the Holders on the one hand and the holders
of Senior Debt on the other hand. Nothing contained in this Article or
elsewhere in this Indenture or in the Securities is intended to or shall
(a) impair, as among the Company or any Guarantor, as applicable, its
creditors other than holders of Senior Debt and the Holders of the
Securities with the Guarantees endorsed thereon, the obligation of the
Company or any Guarantor, as applicable, which is absolute and
unconditional (and which, subject to the rights under this Article of the
holders of Senior Debt, is intended to rank equally with all other general
obligations of the Company), to pay to the Holders of the Securities the
principal of, premium, if any, and interest on the Securities as and when
the same shall become due and payable in accordance with their terms; or
(b) affect the relative rights against the Company or any Guarantor, as
applicable, of the Holders of the Securities and creditors of the Company
or any Guarantor, as applicable, other than the holders of Senior Debt; or
(c) prevent the Trustee or the Holder of any Security from exercising all
remedies otherwise permitted by applicable law upon default under this
Indenture, subject to the rights, if any, under this Article of the holders
of Senior Debt to receive cash, property and securities otherwise payable
or deliverable to the Trustee or such Holder.
Section 15.7. Trustee to Effectuate Subordination. Each Holder of
a Security by his acceptance thereof authorizes and directs the Trustee on
his behalf to take such action as may be necessary or appropriate to
effectuate the subordination provided in this Article and appoints the
Trustee his attorney-in-fact for any and all such purposes.
Section 15.8. No Waiver of Subordination Provisions. No right of
any present or future holder of any Senior Debt to enforce subordination as
herein provided shall at any time in any way be prejudiced or impaired by
any act or failure to act on the part of the Company or any Guarantor or by
any act or failure to act, in good faith, by any such holder, or by any
noncompliance by the Company or any Guarantor with the terms, provisions
and agreements of this Indenture, regardless of any knowledge thereof any
such holder may have or be otherwise charged with.
Without in any way limiting the generality of the foregoing
paragraph, the holders of Senior Debt may, at any time and from time to
time, without the consent of or notice to the Trustee or the Holders of the
Securities, without incurring responsibility to the Holders of the
Securities and without impairing or releasing the subordination provided in
this Article or the obligations hereunder of the Holders of the Securities
to the holders of Senior Debt, do any one or more of the following: (i)
change the manner, place or terms of payment or extend the time of payment
of, or renew or alter or increase, Senior Debt, or otherwise amend or
supplement in any manner Senior Debt or any instrument evidencing the same
or any agreement under which Senior Debt is outstanding; (ii) sell,
exchange, release or otherwise deal with any property pledged, mortgaged or
otherwise securing Senior Debt; (iii) release any Person liable in any
manner for the collection of Senior Debt; and (iv) exercise or refrain from
exercising any rights against the Company, the Guarantors and any other
Person.
Section 15.9. Notice to Trustee. The Company shall give prompt
written notice to the Trustee of any fact known to the Company which would
prohibit the making of any payment to or by the Trustee in respect of the
Securities or any of the Subordinated Guarantees. Notwithstanding the
provisions of this Article or any other provision of this Indenture, the
Trustee shall not be charged with knowledge of the existence of any facts
which would prohibit the making of any payment to or by the Trustee in
respect of the Securities or any of the Subordinated Guarantees, unless and
until the Trustee shall have received written notice thereof from the
Company or a holder of Senior Debt or from any trustee therefor; and, prior
to the receipt of any such written notice, the Trustee, subject to the
provisions of Section 6.1, shall be entitled in all respects to assume that
no such facts exist, provided that nothing in this Section 15.9 shall
impair the subordination provisions of this Article Fifteen.
Subject to the provisions of Section 6.1, the Trustee shall be
entitled to rely on the delivery to it of a written notice by a Person
representing himself to be a holder of Senior Debt (or a trustee,
representative or agent therefor) to establish that such notice has been
given by a holder of Senior Debt (or a trustee, representative or agent
therefor). In the event that the Trustee determines in good faith that
further evidence is required with respect to the right of any Person as a
holder of Senior Debt to participate in any payment or distribution
pursuant to this Article, the Trustee may request such Person to furnish
evidence to the reasonable satisfaction of the Trustee as to the amount of
Senior Debt held by such Person, the extent to which such Person is
entitled to participate in such payment or distribution and any other facts
pertinent to the rights of such Person under this Article, and if such
evidence is not furnished, the Trustee may defer any payment to such Person
pending judicial determination as to the right of such Person to receive
such payment.
Section 15.10. Reliance on Judicial Order or Certificate of
Liquidating Agent. Upon any payment or distribution of assets or securities
of the Company or any Guarantor referred to in this Article, the Trustee,
subject to the provisions of Section 6.1, and the Holders of the Securities
shall be entitled to rely upon any order or decree entered by any court of
competent jurisdiction in which such proceeding is pending, or a
certificate of the trustee in bankruptcy, receiver, liquidating trustee,
custodian, assignee for the benefit of creditors, agent or other Person
making such payment or distribution, delivered to the Trustee or to the
Holders of Securities, for the purpose of ascertaining the Persons entitled
to participate in such payment or distribution, the holders of the Senior
Debt and other indebtedness of the Company or any Guarantor, as the case
may be, the amount thereof or payable thereon, the amount or amounts paid
or distributed thereon and all other facts pertinent thereto or to this
Article.
Section 15.11. Trustee Not Fiduciary for Holders of Senior Debt.
The Trustee shall not be deemed to owe any fiduciary duty to the holders of
Senior Debt and shall not be liable to any such holders if it shall in good
faith mistakenly pay over or distribute to Holders of Securities or to the
Company or any Guarantor or to any other Person cash, property or
securities to which any holders of Senior Debt shall be entitled by virtue
of this Article or otherwise.
Section 15.12. Rights of Trustee as Holder of Senior Debt;
Preservation of Trustee's Rights. The Trustee in its individual capacity
shall be entitled to all the rights set forth in this Article with respect
to any Senior Debt which may at any time be held by it, to the same extent
as any other holder of Senior Debt, and nothing in this Indenture shall
deprive the Trustee of any of its rights as such holder.
Nothing in this Article shall apply to claims of, or payments to,
the Trustee under or pursuant to Section 6.7.
Section 15.13. Article Applicable to Paying Agents. In case at
any time any Paying Agent other than the Trustee shall have been appointed
by the Company and be then acting hereunder, the term "Trustee" as used in
this Article shall in such case (unless the context otherwise requires) be
construed as extending to and including such Paying Agent within its
meaning as fully for all intents and purposes as if such Paying Agent were
named in this Article in addition to or in place of the Trustee; provided,
however, that Section 15.12 shall not apply to the Company, any Guarantor
or any Affiliate of the Company or of any Guarantor if it or such Affiliate
acts as Paying Agent.
Section 15.14. Defeasance of this Article 15. The subordination
of the Securities and the Subordinated Guarantees provided by this Article
15 is expressly made subject to the provisions for defeasance or agreement
defeasance in Article 4 and, anything herein to the contrary
notwithstanding, upon the effectiveness of any such defeasance or agreement
defeasance, the Securities then Outstanding and the Subordinated Guarantees
relating thereto shall thereupon cease to be subordinated pursuant to this
Article 15.
ARTICLE 16
SUBORDINATED GUARANTEE
Section 16.1. Subordinated Guarantee. Each of Allied and the
Subsidiary Guarantors hereby jointly and severally unconditionally
guarantees on a subordinated basis to each Holder of a Security
authenticated and delivered by the Trustee, and to the Trustee on behalf of
such Holder, the due and punctual payment of the principal of, premium, if
any, and interest on such Security when and as the same shall become due
and payable, whether at the Stated Maturity or by acceleration, call for
redemption, purchase or otherwise, in accordance with the terms of such
Security and of this Indenture. In case of the failure of the Company
punctually to make any such payment, each of Allied and the Subsidiary
Guarantors hereby jointly and severally agrees to cause such payment to be
made punctually when and as the same shall become due and payable, whether
at the Stated Maturity or by acceleration, call for redemption, purchase or
otherwise, and as if such payment were made by the Company. Further, in the
case of the failure of any Subsidiary Guarantor punctually to make any
payment required of it hereunder, Allied agrees to cause such payment to be
made when and as the same shall become due and payable, as if such payment
were made by such Subsidiary Guarantor.
Each of the Guarantors hereby jointly and severally agrees that
its obligations hereunder shall be unconditional, irrespective of the
validity, regularity or enforceability of any Security or this Indenture,
the absence of any action to enforce the same, any creation, exchange,
release or nonperfection of any Lien on any collateral for, or any release
or amendment or waiver of any term of any other Guarantee of, or any
consent to departure from any requirement of any other Guarantee, of all or
any of the Securities, the election by the Trustee or any of the Holders in
any proceeding under Chapter 11 of Title 11 of the United States Code (the
"Bankruptcy Code") of the application of Section 1111(b)(2) of the
Bankruptcy Code, any borrowing or grant of a security interest by the
Company, as debtor in possession, under Section 364 of the Bankruptcy Code,
the disallowance, under Section 502 of the Bankruptcy Code, of all or any
portion of the claims of the Trustee or any of the Holders for payment of
any of the Securities, any waiver or consent by the Holder of any Security
or by the Trustee with respect to any provisions thereof or of this
Indenture, the obtaining of any judgment against the Company (or, with
respect to the Allied Subsidiary Guarantee, any Subsidiary Guarantor) or
any action to enforce the same or any other circumstances which might
otherwise constitute a legal or equitable discharge or defense of a
guarantor. Each of the Guarantors hereby waives the benefits of diligence,
presentment, demand of payment, any requirement that the Trustee or any of
the Holders protect, secure, perfect or insure any security interest in or
other Lien on any property subject thereto or exhaust any right or take any
action against the Company (or, with respect to the Allied Subsidiary
Guarantee, any Subsidiary Guarantor) or any other Person or any collateral,
filing of claims with a court in the event of insolvency or bankruptcy of
the Company (or, with respect to the Allied Subsidiary Guarantee, any
Subsidiary Guarantor), any right to require a proceeding first against the
Company (or, with respect to the Allied Subsidiary Guarantee, any
Subsidiary Guarantor), protest or notice with respect to any Security (or,
with respect to the Allied Subsidiary Guarantee, the Subsidiary Guarantees)
or the indebtedness evidenced thereby and all demands whatsoever, and
agrees that this Subordinated Guarantee will not be discharged in respect
of any Security (or, with respect to the Allied Subsidiary Guarantee, the
Subsidiary Guarantees) except by complete performance of the obligations
contained in such Security (or, with respect to the Allied Subsidiary
Guarantee, the Subsidiary Guarantees) and in this Subordinated Guarantee.
Each of the Guarantors hereby agrees that, in the event of a default in
payment of principal of, premium, if any, or interest on any Security (or,
with respect to the Allied Subsidiary Guarantee, the Subsidiary
Guarantees), whether at its Stated Maturity or by acceleration, call for
redemption, purchase or otherwise, legal proceedings may be instituted by
the Trustee on behalf of, or by, the Holder of such Security subject to the
terms and conditions set forth in this Indenture, directly against each or
any of the Guarantors (or, with respect to the Allied Subsidiary Guarantee,
against Allied) to enforce its Subordinated Guarantee without first
proceeding against the Company (or, with respect to the Allied Subsidiary
Guarantee, against any Subsidiary Guarantor). Each Guarantor agrees that
if, after the occurrence and during the continuance of an Event of Default,
the Trustee or any of the Holders are prevented by applicable law from
exercising their respective rights to accelerate the maturity of the
Securities, to collect interest on the Securities or to enforce or exercise
any other right or remedy with respect to the Securities (or, with respect
to the Allied Subsidiary Guarantee, to enforce or exercise the Subsidiary
Guarantees), or the Trustee or the Holders are prevented from taking any
action to realize on any collateral, such Guarantor agrees to pay to the
Trustee for the account of the Holders, upon demand therefor, the amount
that would otherwise have been due and payable had such rights and remedies
been permitted to be exercised by the Trustee or any of the Holders.
No provision of any Subordinated Guarantee or Security or of the
Indenture shall alter or impair (i) the Subordinated Guarantee of any
Guarantor, which is absolute and unconditional, of the due and punctual
payment of the principal of, premium, if any, and interest on the Security
upon which such Subordinated Guarantee is endorsed, or (ii) the Allied
Subsidiary Guarantee, which is absolute and unconditional, of the due and
punctual performance by the Subsidiary Guarantors of their obligations
under the Subsidiary Guarantees.
Each Guarantor shall be subrogated to all rights of the Holders
of the Securities upon which its Subordinated Guarantee is endorsed against
the Company (or, with respect to the Allied Subsidiary Guarantee, any
Subsidiary Guarantor) in respect of any amounts paid by such Guarantor on
account of such Security (or, with respect to the Allied Subsidiary
Guarantee, the Subsidiary Guarantees) pursuant to the provisions of its
Subordinated Guarantee or this Indenture; provided, however, that no
Guarantor shall be entitled to enforce or to receive any payments arising
out of, or based upon, such right of subrogation until the principal of,
premium, if any, and interest on all Securities issued hereunder shall have
been paid in full.
Each Subordinated Guarantee shall remain in full force and effect
and continue to be effective should any petition be filed by or against the
Company (or, with respect to the Allied Subsidiary Guarantee, any
Subsidiary Guarantor) for liquidation or reorganization, should the Company
(or, with respect to the Allied Subsidiary Guarantee, any Subsidiary
Guarantor) become insolvent or make an assignment for the benefit of
creditors or should a receiver or trustee be appointed for all or any
significant part of the assets of the Company (or, with respect to the
Allied Subsidiary Guarantee, the assets of any Subsidiary Guarantor) and
shall, to the fullest extent permitted by law, continue to be effective or
be reinstated, as the case may be, if at any time payment and performance
of the Securities (or, with respect to the Allied Subsidiary Guarantee, any
Subsidiary Guarantor) is, pursuant to applicable law, rescinded or reduced
in amount, or must otherwise be restored or returned by any obligee on the
Securities, whether as a "voidable preference," "fraudulent transfer" or
otherwise, all as though such payment or performance had not been made. In
the event that any payment, or any part thereof, is rescinded, reduced,
restored or returned, the Securities shall, to the fullest extent permitted
by law, be reinstated and deemed reduced only by such amount paid and not
so rescinded, reduced, restored or returned.
No officer, director, employer or incorporator, past, present or
future, of any Guarantor, as such, shall have any personal liability under
any Subordinated Guarantee by reason of his, her or its status as such
officer, director, employer or incorporator.
To the extent that any Subsidiary Guarantor shall be required to
pay any amounts on account of the Securities pursuant to its Subordinated
Guarantee in excess of the greater of (i) the amount of the economic
benefit actually received by such Subsidiary Guarantor from the issuance of
the Securities and (ii) an amount calculated as the product of (A) the
aggregate amount payable by the Subsidiary Guarantors on account of the
Securities pursuant to their Subordinated Guarantees times (B) the
proportion (expressed as a fraction) that such Subsidiary Guarantor's net
worth at the date enforcement of its Subordinated Guarantee is sought bears
to the aggregate net worth of all Subsidiary Guarantors at such date, then
such Subsidiary Guarantor shall be reimbursed by the other Subsidiary
Guarantors for the amount of such excess, pro rata, based upon the
respective net worth of such other Subsidiary Guarantors at the date
enforcement of its Subordinated Guarantees is sought. This paragraph is
intended only to define the relative rights of the Subsidiary Guarantors as
among themselves, and nothing set forth in this paragraph is intended to or
shall impair the joint and several obligations of the Guarantors under
their respective Subordinated Guarantees.
The Guarantors shall have the right to seek contribution from any
nonpaying Guarantor so long as the exercise or such right does not impair
the rights of the Holders under any Subordinated Guarantee.
Section 16.2. Execution and Delivery of Subordinated Guarantees.
The Subordinated Guarantees to be endorsed on the Securities shall include
the terms of the Subordinated Guarantee set forth in Section 16.1 and any
other terms that may be set forth in the form established pursuant to
Section 2.3. Each of the Guarantors hereby agrees to execute its
Subordinated Guarantee, in a form established pursuant to Section 2.3, to
be endorsed on each Security authenticated and delivered by the Trustee.
The Subordinated Guarantee shall be executed on behalf of each
respective Guarantor by any one of such Guarantor's Chairman of the Board,
Vice Chairman of the Board, President or Vice Presidents, attested by its
Secretary or Assistant Secretary. The signature of any or all of these
officers on the Subordinated Guarantee may be manual or facsimile and may
be pursuant to a duly executed power of attorney.
A Subordinated Guarantee bearing the manual or facsimile
signatures of individuals who were at any time the proper officers of a
Guarantor shall bind such Guarantor, notwithstanding that such individuals
or any of them have ceased to hold such offices prior to the authentication
and delivery of the Security on which such Subordinated Guarantee is
endorsed or did not hold such offices at the date of such Subordinated
Guarantee.
The delivery of any Security by the Trustee, after the
authentication thereof hereunder, shall constitute due delivery of the
Subordinated Guarantee endorsed thereon on behalf of the Guarantors. Each
of the Guarantors hereby jointly and severally agrees that its Subordinated
Guarantee set forth in Section 16.1 shall remain in full force and effect
notwithstanding any failure to endorse a Subordinated Guarantee on any
Security.
Section 16.3. Subsidiary Guarantors May Consolidate, Etc., on
Certain Terms. Nothing contained in this Indenture or in any of the
Securities shall prevent any consolidation or merger of a Subsidiary
Guarantor with or into the Company or a Guarantor or shall prevent any sale
or conveyance of the property of a Subsidiary Guarantor as an entirety or
substantially as an entirety to the Company or a Guarantor.
Section 16.4. Release of Guarantors. (a) Concurrently with any
consolidation or merger of a Subsidiary Guarantor or any sale or conveyance
of the property of a Subsidiary Guarantor as an entirety or substantially
as an entirety, in each case as permitted by Section 16.3, and upon
delivery by the Company to the Trustee of an Officers' Certificate and an
Opinion of Counsel to the effect that such consolidation, merger, sale or
conveyance was made in accordance with Section 16.3, the Trustee shall
execute any documents reasonably required in order to evidence the release
of such Subsidiary Guarantor from its obligations under its Subsidiary
Guarantees endorsed on the Securities and under this Article 16. Any
Subsidiary Guarantor not released from its obligations under its Subsidiary
Guarantees endorsed on the Securities and under this Article 16 shall
remain liable for the full amount of principal of, premium, if any, and
interest on the Securities and for the other obligations of a Subsidiary
Guarantor under its Subsidiary Guarantees endorsed on the Securities and
under this Article 16.
(b) Concurrently with the defeasance of the Securities under
Section 4.4 or the agreement defeasance of the Securities under Section
4.5, the Guarantors shall be released from all of their obligations under
their Subordinated Guarantees endorsed on the Securities and under this
Article 16.
(c) Upon the consummation of any transaction (whether involving a
sale or other disposition of securities, a merger or otherwise) whereby any
Subsidiary Guarantor ceases to be a Restricted Subsidiary and which
transaction is otherwise in compliance with the provisions of this
Indenture, such Subsidiary Guarantor shall automatically be released from
all obligations under its Subsidiary Guarantees endorsed on the Securities
and under this Article 16.
Section 16.5. Additional Guarantors. The Company shall cause each
Person that becomes a Restricted Subsidiary after the date of this
Indenture, upon becoming a Restricted Subsidiary, to become a Subsidiary
Guarantor with respect to the Securities. Any such Person shall become a
Subsidiary Guarantor by executing and delivering to the Trustee (a) a
supplemental indenture, in form and substance satisfactory to the Trustee,
which subjects such Person to the provisions of this Indenture as a
Subsidiary Guarantor and (b) an Opinion of Counsel to the effect that such
supplemental indenture has been duly authorized and executed by such Person
and constitutes the legal, valid, binding and enforceable obligation of
such Person (subject to such customary exceptions concerning creditors'
rights and equitable principles as may be acceptable to the Trustee in its
discretion).
ARTICLE 17
JURISDICTION AND CONSENT TO SERVICE OF PROCESS
Section 17.1. Jurisdiction and Consent to Service of Process. (a)
Each of the Company and the Guarantors hereby irrevocably and
unconditionally submits, for itself and its property, to the nonexclusive
jurisdiction of any New York State court or Federal court of the United
States of America sitting in New York City, and any appellate court from
any thereof, in any action or proceeding arising out of or relating to the
Securities, the Subordinated Guarantees, this Indenture, or for recognition
or enforcement of any judgment, and each of such Persons hereby irrevocably
and unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such New York State or, to the
extent permitted by law, in such Federal court. Each of the Company and the
Guarantors agrees that a final judgment in any such action or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit on
the judgment or in any other manner provided by law. Nothing in this
Article 17 shall affect any right that any Holder or the Trustee may
otherwise have to bring any action or proceeding relating to the
Securities, the Subordinated Guarantees, this Indenture Agreement against
the Company, any Guarantor or their respective properties in the courts of
any jurisdiction.
(b) Each of the Company and the Guarantors hereby irrevocably and
unconditionally waives, to the fullest extent it may legally and
effectively do so, any objection which it may now or hereafter have to the
laying of venue of any suit, action or proceeding arising out of or
relating to the Securities, the Subordinated Guarantees or this Indenture
in any New York State or Federal court. Each of the Company and the
Guarantors hereby irrevocably waives, to the fullest extent permitted by
law, the defense of an inconvenient forum to the maintenance of such action
or proceeding in any such court.
(c) Each of the Company and the Guarantors irrevocably consents
to service of process in the manner provided for notices in Section 1.5.
Nothing in this Agreement will affect the right of any Holder or the
Trustee to serve process in any other manner permitted by law.
--------------------
This instrument may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture
to be duly executed, and their respective corporate seals to be hereunto
affixed and attested, all as of the day and year first above written.
ALLIED WASTE NORTH AMERICA, INC.
By:
-----------------------------
Name:
Title:
Attest:
- -------------------------------
Name:
Title:
ALLIED WASTE INDUSTRIES, INC., for
purposes of Article 14 and as Guarantor
of the Securities and as Guarantor of
the obligations of the Subsidiary
Guarantors under the Subsidiary
Guarantees
By:
-----------------------------
Name:
Title:
Attest:
- -------------------------------
Name:
Title:
Each of the Subsidiary Guarantors
listed on Schedule I hereto, as
Guarantor
By*:
-----------------------------
Name:
Title:
Attest*:
- -------------------------------
Name:
Title:
FIRST TRUST NATIONAL ASSOCIATION
By:
-----------------------------
Name:
Title:
Attest:
- -------------------------------
Name:
Title:
* Signing as duly authorized officer for each such Subsidiary Guarantor.
EXHIBIT 5.1
[LETTERHEAD OF FRIED, FRANK, HARRIS, SHRIVER & JACOBSON]
212-859-8000
June 23, 1998 (FAX: 212-859-4000)
Allied Waste Industries, Inc.
Allied Waste North America, Inc.
Subsidiary Guarantors Listed on Schedules A Through O 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 Schedules A through O 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) subordinated debt securities of the Company (the
"Subordinated Company Debt Securities" and, together with the Senior
Company Debt Securities, the "Company Debt Securities") to be issued
pursuant to an indenture (the "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 "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 (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) subordinated
debt securities of AWNA (the "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
subordinated basis, as to payment of principal, premium, if any, and
interest by the Company and the Subsidiary Guarantors (the "Subordinated
Guarantees"), to be issued pursuant to an Indenture (the "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
"Subordinated AWNA Trustee" and, together with the Senior AWNA Trustee, the
"AWNA Trustees"). The Subsidiary Guarantors' obligations under the Senior
Guarantees and the Subordinated Guarantees will be unconditionally
guaranteed on a senior and subordinated basis, respectively, by the Company
(the "Allied Senior Guarantee" and "Allied Subordinated Guarantee,"
respectively, and, together with the Senior Guarantees and the 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 (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 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 Subordinated Company Indenture is duly executed
and delivered by the Company and duly authorized, executed and delivered by
the Subordinated Company Trustee, when the terms of the Subordinated
Company Debt Securities and their issue and sale have been duly established
in conformity with the Subordinated Company Indenture so as not to violate
any applicable law or agreement or instrument then binding on the Company,
the Subordinated Company Debt Securities have been duly executed and
authenticated in accordance with the terms of the 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 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 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 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 Subordinated AWNA Indenture is duly executed
and delivered by AWNA, the Company and the Subsidiary Guarantors and duly
authorized, executed and delivered by the Subordinated AWNA Trustee, when
the terms of the Subordinated AWNA Debt Securities and their issue and sale
and the related Subordinated Guarantees and Allied Subordinated Guarantee
have been duly established in conformity with the 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 Subordinated Guarantees and the Allied Subordinated Guarantee have been
endorsed on the Subordinated AWNA Debt Securities and executed in
accordance with the terms of the Subordinated AWNA Indenture and the
Subordinated AWNA Debt Securities have been duly executed and authenticated
in accordance with the terms of the 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 Subordinated AWNA Debt Securities will constitute valid and
binding obligations of AWNA, the Company and the Subsidiary Guarantors, the
Subordinated Guarantees will constitute valid and binding obligations of
the Company and the Subsidiary Guarantors, and the Allied 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 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>
SCHEDULE A
SUBSIDIARY GUARANTORS
Able Sanitation, Inc. Metropolitan Disposal, Inc.
Adrian Landfill, Inc. Monarch Disposal, Inc.
Aegis of Brunswick County, Inc. Newton County Development Corp.
Allied Cartage, Inc. Northwest Recycling, Inc.
Allied Waste Industries (Southwest), Inc. Oakland Heights Development, Inc.
Allied Waste Industries of Illinois, Inc. Ooms Bros. Disposal Service, Inc.
Allied Waste Industries of Indiana, Inc. Otay Landfill, Inc.
Allied Waste Industries of Plymouth, Inc. Ottawa County Landfill, Inc.
Allied Waste of California, Inc. Palomar Transfer Station, Inc.
Allied Waste of New Jersey, Inc. R. 18, Inc.
Allied Waste Rural Sanitation, Inc. Rabanco Acquisition Company
Americal, Inc. Rabanco Acquisition Company Two
American Materials Recycling Corp. Rabanco Acquisition Company Three
American Transfer Company, Inc. Rabanco Acquisition Company Four
Apache Junction Landfill Corporation Rabanco Acquisition Company Five
Area Disposal, Inc. Rabanco Acquisition Company Six
Belleville Landfill, Inc. Rabanco Acquisition Company Seven
Borrego Landfill, Inc. Rabanco Acquisition Company Eight
Brickyard Disposal & Recycling, Inc. Rabanco Acquisition Company Nine
Celina Landfill, Inc. Rabanco Acquisition Company Ten
Central Sanitary Landfill, Inc. Rabanco Acquisition Company Eleven
Chambers Development of North Carolina, Inc. Rabanco Acquisition Company Twelve
Champion Recycling, Inc. Ramona Landfill, Inc.
Cherokee Run Landfill, Inc. RCS, Inc.
Citizens Disposal, Inc. Recycling Associates, Inc.
Clarkston Disposal, Inc. Reliable Rubbish Disposal, Inc.
Community Refuse Disposal, Inc. Roxana Landfill, Inc.
CRX, Inc. Rural Sanitation of North Carolina, Inc.
Denver Regional Landfill, Inc. S & S Environmental, Inc.
Dinverno, Inc. Sanitran, Inc.
Dinverno Recycling, Inc. San Marcos NCRRF, Inc.
Dopheide Sanitary Service, Inc. Sanitary Disposal Service, Inc.
Duncan Disposal Service, Inc. Saugus Disposal, Inc.
East Coast Waste Systems, Inc. Sauk Trail Development, Inc.
ECDC Environmental of Humbolt County, Inc. Selas Enterprises Ltd.
ECDC Holdings, Inc. Streator Area Landfill, Inc.
Enviro Carting, Inc. Sycamore Landfill, Inc.
Enviro Recycling, Corp. Total Solid Waste Recyclers, Inc.
Environmental Development Corp. Turnpike Leasing, Inc.
Environmental Reclamation Company
Golden Eagle Disposals, Inc. United Waste Systems of Central Michigan, Inc.
Harland's Sanitary Landfill, Inc. Upper Rock Island County Landfill, Inc.
Illiana Disposal Service, Inc. Vining Disposal Service, Inc.
Illinois Landfill, Inc. Vinnie Monte's Waste Systems, Inc.
Industrial Services of Illinois, Inc. Wayne County Landfill IL, Inc.
Laidlaw Waste Systems (Dallas) Inc. Williams County Landfill, Inc.
Laidlaw Waste Systems (Fort Worth) Inc. World Sanitation Corporation
Laidway Waste Systems (Houston) Inc.
Laidlaw Waste Systems (Kansas City) Inc.
Laidlaw Waste Systems (Texas) Inc.
Lee County Landfill, Inc.
Louis Pinto & Son, Inc., Sanitation Contractors
MCM Sanitation, Inc.
SCHEDULE B
SUBSIDIARY GUARANTORS
AAWI, Inc.
Allied Acquisition Pennsylvania, Inc.
Allied Acquisition Two, Inc.
Allied Enviro Engineering, Inc. (Tex. corp.)
Allied Enviroengineering, Inc. (Del. corp.)
Allied Waste Alabama, Inc.
Allied Waste Company, Inc.
Allied Waste Hauling of Georgia, Inc.
Allied Waste Industries (Arizona), Inc.
Allied Waste Industries (Colorado), Inc.
Allied Waste Industries (New Mexico), Inc.
Allied Waste Industries of Alamosa, Inc.
Allied Waste Industries of Georgia, Inc.
Allied Waste Industries of New York, Inc.
Allied Waste Industries of Northwest Indiana, Inc.
Allied Waste Industries of Tennessee, Inc.
Allied Waste Landfill Holdings, Inc.
Allied Waste of Long Island, Inc.
Allied Waste Services, Inc. (MA)
Allied Waste Services, Inc. (TX)
Allied Waste Systems, Inc. (Del. corp.)
Allied Waste Transportation, Inc.
Autoshred, Inc.
AWIN Management, Inc.
City Garbage, Inc.
Containerized, Inc. of Texas
Cousins Carting, Inc.
EOS Environmental, Inc.
L&M Disposal, Inc.
Nationswaste Catawba Regional Landfill, Inc.
Nationswaste, Inc.
Northeast Sanitary Landfill, Inc.
Organized Sanitary Collectors and Recyclers, Inc.
Oscar's Collection Systems of Fremont, Inc.
Pinal County Landfill Corp.
S & S Recycling, Inc.
Service Waste, Inc.
Super Services Waste Management, Inc.
Tricil (N.Y.), Inc.
W.J. Flyte Corporation
Wastehaul, Inc.
SCHEDULE C
SUBSIDIARY GUARANTORS
Allied Waste Systems Holdings, Inc.
SCHEDULE D
SUBSIDIARY GUARANTORS
Allied Waste North America, Inc.
SCHEDULE E
SUBSIDIARY GUARANTORS
Allied Nova Scotia, Inc.
SCHEDULE F
SUBSIDIARY GUARANTORS
AWIN Leasing Company, Inc.
SCHEDULE G
SUBSIDIARY GUARANTORS
Allied Services, LLC
Allied Waste of New Jersey, LLC
Anderson Regional Landfill, LLC
Anson County Landfill NC, LLC
Bridgeton Landfill, LLC
Brunswick Waste Management Facility, LLC
Butler County Landfill, LLC
Crow Landfill TX, LLC
ECDC Environmental, L.C.
Ellis County Landfill TX, LLC
Ellis Scott Landfill MO, LLC
Great Plains Landfill OK, LLC
Jefferson City Landfill, LLC
Lee County Landfill SC, LLC
Lemons Landfill, LLC
Northeast Landfill, LLC
Oklahoma City Landfill, LLC
Pinecrest Landfill OK, LLC
Show-Me Landfill, LLC
Southeast Landfill, LLC
SCHEDULE H
SUBSIDIARY GUARANTORS
Consolidated Processing, Inc.
SCHEDULE I
SUBSIDIARY GUARANTORS
Camelot Landfill TX, LP
Crow Landfill TX, L.P.
Ellis County Landfill TX, L.P.
Fort Worth Landfill TX, LP
Mesquite Landfill TX, LP
Pine Hill Farms Landfill TX, LP
Turkey Creek Landfill TX, LP
SCHEDULE J
SUBSIDIARY GUARANTORS
Allied Gas Recovery Systems, L.L.C.
SCHEDULE K
SUBSIDIARY GUARANTORS
Allied Waste Holdings (Canada) Ltd.
SCHEDULE L
SUBSIDIARY GUARANTORS
County Line Landfill Partnership
SCHEDULE M
SUBSIDIARY GUARANTORS
Illiana Disposal Partnership
SCHEDULE N
SUBSIDIARY GUARANTORS
Key Waste Indiana Partnership
SCHEDULE O
SUBSIDIARY GUARANTORS
Newton County Landfill Partnership
EXHIBIT 12.1
<TABLE>
<CAPTION>
Allied Waste Industries, Inc.
Ratio of Earnings to Fixed Charges
For the Five Years Ended December 31, 1997 and the Quarter Ended March 31, 1998
(in thousands, except for ratios)
Quarter
Ended
HISTORICAL 1993 1994 1995 1996 1997 3/31/98
---------- ---------- ---------- ---------- ---------- ---------
<S> <C> <C> <C> <C> <C> <C>
Fixed Charges:
Interest expensed 7,093 13,089 12,207 9,921 90,257 19,272
Interest capitalized 1,058 3,517 11,088 12,970 36,929 15,024
Interest component of rent expense 338 527 1,191 2,317 3,047 925
Amortization of debt discount 540 869 359 877 3,866 982
---------- ---------- ---------- ---------- ---------- ---------
Defined fixed charges 9,029 18,002 24,845 26,085 134,099 36,203
========== ========== ========== ========== ========== =========
Earnings:
Income from continuing operations before 4,336 (1,944) 22,670 (67,330) 91,082 28,387
income tax
Plus - defined fixed charges 9,029 18,002 24,845 26,085 134,099 36,203
- amortization of interest capitalized 0 0 0 0 0 0
Less - interest capitalized (1,058) (3,517) (11,088) (12,970) (36,929) (15,024)
---------- ---------- ---------- ---------- ---------- ---------
Defined earnings 12,307 12,541 36,427 (54,215) 188,252 49,566
========== ========== ========== ========== ========== =========
Earnings as a percent of fixed charges 1.4 * 1.5 ** 1.4 1.4
========== ========== ========== ========== ========== =========
<FN>
* Earnings were inadequate to cover fixed charges by $5,461.
** Earnings were inadequate to cover fixed charges by $80,300.
</FN>
</TABLE>
EXHIBIT 12.2
<TABLE>
<CAPTION>
Allied Waste Industries, Inc.
Ratio of Earnings to Fixed charges and Preferred Dividends For the Five
Years Ended December 31, 1997 and the Quarter Ended March 31, 1998
(in thousands, except for ratios)
Qtr Ended
------------------------------------------------------ March 31,
1993 1994 1995 1996 1997 1998
---------- ---------- ---------- ---------- ---------- ---------
<S> <C> <C> <C> <C> <C> <C>
Fixed Charges:
Interest expensed 7,093 13,089 12,207 9,921 90,257 19,272
Interest capitalized 1,058 3,517 11,088 12,970 36,929 15,024
---------- ---------- ---------- ---------- ---------- ---------
Total interest expense 8,151 16,606 23,295 22,891 127,186 34,296
Interest component of rent expense 338 527 1,191 2,317 3,047 925
Amortization/write-off of debt insurance costs 540 869 359 877 3,866 982
---------- ---------- ---------- ---------- ---------- ---------
Total fixed charges 9,029 18,002 24,845 26,085 134,099 36,203
Preferred dividends, grossed up for taxes 1,521 5,726 7,170 1,081 642 0
---------- ---------- ---------- ---------- ---------- ---------
Total fixed charges and preferred dividends 10,550 23,728 32,015 27,166 134,741 36,203
========== ========== ========== ========== ========== =========
Earnings:
Income (loss) from continuing operations 4,336 (1,994) 22,670 (67,330) 91,082 28,387
before income taxes
Plus fixed charges (no preferred dividends) 9,029 18,002 24,845 26,085 134,099 36,203
Less interest capitalized (1,058) (3,517) (11,088) (12,970) (36,929) (15,024)
---------- ---------- ---------- ---------- ---------- ---------
Total earnings 12,307 12,541 36,427 (54,215) 188,252 49,566
========== ========== ========== ========== ========== =========
Ratio of earnings to fixed chgs and pfd stock divs 1.2 * 1.1 ** 1.4 1.4
========== ========== ========== ========== ========== =========
<FN>
* Earnings were inadequate to cover fixed charges and preferred stock dividends by $11,187.
** Earnings were inadequate to cover fixed charges and preferred stock dividends by $81,381.
</FN>
</TABLE>
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 February
16, 1998 included in Allied Waste Industries, Inc.'s, Form 10-K for the
year ended December 31, 1997 and to all references to our firm included in
this registration statement.
ARTHUR ANDERSEN LLP
Pheonix, Arizona
June 22, 1998.
EXHIBIT 25.1
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
U.S. BANK 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.)
U.S. Bank 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, Arizona 85260
(Address of Principal Executive Offices) (Zip Code)
Senior Debt Securities in Series
(Title of the Indenture Securities)
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
333-53211.
* Incorporated by reference to Registration Number 22-27000.
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, U.S. Bank 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 22nd day of June, 1998.
U.S. BANK TRUST NATIONAL ASSOCIATION
/s/ Richard H. Prokosch
------------------------------------
Richard H. Prokosch
Assistant Vice President
/s/ Judith M. Zuzek
- ------------------------------------
Judith M. Zuzek
Assistant Secretary
EXHIBIT 6
CONSENT
In accordance with Section 321(b) of the Trust Indenture Act of 1939,
the undersigned, U.S. BANK 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: June 22, 1998
U.S. BANK TRUST NATIONAL ASSOCIATION
/s/ Richard H. Prokosch
------------------------------------
Richard H. Prokosch
Assistant Vice President
EXHIBIT 25.2
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
U.S. BANK 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.)
U.S. Bank 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, Arizona 85260
(Address of Principal Executive Offices) (Zip Code)
Subordinated Debt Securities in Series
(Title of the Indenture Securities)
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
333-53211.
* Incorporated by reference to Registration Number 22-27000.
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, U.S. Bank 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 22nd day of June, 1998.
U.S. BANK TRUST NATIONAL ASSOCIATION
/s/ Richard H. Prokosch
------------------------------------
Richard H. Prokosch
Assistant Vice President
/s/ Judith M. Zuzek
- ------------------------------------
Judith M. Zuzek
Assistant Secretary
EXHIBIT 6
CONSENT
In accordance with Section 321(b) of the Trust Indenture Act of 1939,
the undersigned, U.S. BANK 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: June 22, 1998
U.S. BANK TRUST NATIONAL ASSOCIATION
/s/ Richard H. Prokosch
------------------------------------
Richard H. Prokosch
Assistant Vice President
EXHIBIT 25.3
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
U.S. BANK 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.)
U.S. Bank 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 88-0843596
(State of Incorporation) (I.R.S. Employer
Identification No.)
15880 North Greenway-Hayden Loop, Suite 100
Scottsdale, Arizona 85260
(Address of Principal Executive Offices) (Zip Code)
Senior Debt Securities in Series
(Title of the Indenture Securities)
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
333-53211.
* Incorporated by reference to Registration Number 22-27000.
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, U.S. Bank 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 22nd day of June, 1998.
U.S. BANK TRUST NATIONAL ASSOCIATION
/s/ Richard H. Prokosch
------------------------------------
Richard H. Prokosch
Assistant Vice President
/s/ Judith M. Zuzek
- ------------------------------------
Judith M. Zuzek
Assistant Secretary
EXHIBIT 6
CONSENT
In accordance with Section 321(b) of the Trust Indenture Act of 1939,
the undersigned, U.S. BANK 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: June 22, 1998
U.S. BANK TRUST NATIONAL ASSOCIATION
/s/ Richard H. Prokosch
------------------------------------
Richard H. Prokosch
Assistant Vice President
EXHIBIT 25.4
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
U.S. BANK 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.)
U.S. Bank 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 88-0843596
(State of Incorporation) (I.R.S. Employer
Identification No.)
15880 North Greenway-Hayden Loop, Suite 100a
Scottsdale, Arizona 85260
(Address of Principal Executive Offices) (Zip Code)
Subordinated Debt Securities in Series
(Title of the Indenture Securities)
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
333-53211.
* Incorporated by reference to Registration Number 22-27000.
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, U.S. Bank 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 22nd day of June, 1998.
U.S. BANK TRUST NATIONAL ASSOCIATION
/s/ Richard H. Prokosch
------------------------------------
Richard H. Prokosch
Assistant Vice President
/s/ Judith M. Zuzek
- ------------------------------------
Judith M. Zuzek
Assistant Secretary
EXHIBIT 6
CONSENT
In accordance with Section 321(b) of the Trust Indenture Act of 1939,
the undersigned, U.S. BANK 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: June 22, 1998
U.S. BANK TRUST NATIONAL ASSOCIATION
/s/ Richard H. Prokosch
------------------------------------
Richard H. Prokosch
Assistant Vice President
