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EXHIBIT 4.2
SUPPLEMENTAL INDENTURE
SUPPLEMENTAL INDENTURE, dated as of July 30, 1999 (this "Supplemental
Indenture"), 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 00000 Xxxxx Xxxxxxxx-Xxxxxx Xxxx, Xxxxx 000,
Xxxxxxxxxx, Xxxxxxx 00000, each of the GUARANTORS signatory hereto and U.S. BANK
TRUST NATIONAL ASSOCIATION, a national banking association, as Trustee (the
"Trustee").
WITNESSETH:
WHEREAS, the Company, the Guarantors and the Trustee executed and
delivered an Indenture, dated as of July 30, 1999 (the "Indenture"), to provide
for the issuance by the Company from time to time of debt securities evidencing
its unsecured indebtedness;
WHEREAS, pursuant to Board Resolution (the "Resolutions"), the Company has
authorized the issuance of $2,000,000,000 of its 10% Series A Senior
Subordinated Notes Due 2009 (the "Series A Notes") and $2,000,000,000 of its 10%
Series B Senior Subordinated Notes Due 2009 (the "Series B Notes" and together
with the Series A Notes, the "Notes"); and
WHEREAS, the Company, the Guarantors and certain other parties named on
the signature page thereof entered into a Registration Rights Agreement dated as
of the date hereof (as such agreement may be amended, modified or supplemented
from time to time, the "Registration Rights Agreement") which contemplates (i)
the registration with the Securities and Exchange Commission (the "SEC") of the
issuance of the Series B Notes and (ii) the consummation of an Exchange Offer
(defined below) whereby the Series A Notes may be exchanged for Series B Notes;
and
WHEREAS, the Company desires to establish the terms of the Notes in
accordance with Section 3.1 of the Indenture and to establish the form of the
Notes in accordance with Section 2.1 of the Indenture.
ARTICLE I.
TERMS
SECTION 1.01. TERMS OF NOTES. The following terms relating to the Notes
are hereby established:
(1) The Series A Notes shall constitute a series of Securities having the
title "10% Series A Senior Subordinated Notes Due 2009." The Series B Notes
shall constitute a series of Securities having the title "10% Series B Senior
Subordinated Notes Due 2009."
(2) The aggregate principal amount of the Series A Notes that may be
authenticated and delivered under the Indenture (except for Series A Notes
authenticated and delivered upon registration of transfer of, or in exchange
for, or in lieu of, other Series A Notes pursuant to Sections 3.4, 3.5, 3.6, 8.6
or 11.7 of the Indenture or any Securities that, pursuant to Section 3.3, are
deemed never to have been authenticated or delivered thereunder) shall be up to
$2,000,000,000. The aggregate principal amount of the Series B Notes that may be
authenticated and delivered under the Indenture (except for Series B Notes
authenticated and delivered upon registration of transfer of or in exchange for
or in lieu of, other Series B Notes pursuant to Sections 3.4, 3.5, 3.6, 8.6 or
11.7 of the Indenture or any Securities that, pursuant to Section 3.3, are
deemed never to have been authenticated or delivered thereunder) shall be up to
$2,000,000,000.
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(3) The entire outstanding principal of the Notes shall be payable on
August 1, 2009 (the "Stated Maturity Date").
(4) The rate at which the Notes shall bear interest shall be 10%; (a) with
respect to the Series A Notes, interest shall accrue from the date hereof; (b)
with respect to the Series B Notes, the date from which interest shall accrue
shall be the date on which interest was most recently paid on the Series A
Notes, or if there has been no Interest Payment Date relating to the Series A
Notes prior to the issuance of the Series B Notes, interest shall accrue from
the date hereof; (c) the Interest Payment Dates for the Notes on which interest
will be payable shall be May 1 and November 1 of each year, beginning November
1, 1999; the Regular Record Dates for the interest payable on the Notes on any
Interest Payment Date shall be April 15 with respect to the May 1 Interest
Payment Date and October 15 with respect to the November 1 Interest Payment
Date; (d) interest on overdue principal and premium, if any, from time to time,
shall be at a rate of 2% per annum in excess of the rate then in effect;
interest on overdue installments of interest and Special Interest, if any, from
time to time, shall be at the same rate, to the extent lawful; and the basis
upon which interest shall be calculated shall be that of a 360-day year
consisting of twelve 30-day months.
(5) The place where the principal of (and premium, if any) and interest,
including Special Interest, if any, with respect to and interest on the Notes
shall be payable and Notes may be surrendered for the registration of transfer
or exchange shall be the Corporate Trust Office of the Trustee which, as of this
writing, is located at 000 Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Corporate Trust Administration. The place where notices or demands to
or upon the Company in respect of the Notes and the Indenture may be served
shall be the Corporate Trust Office of the Trustee. In addition, payment of
interest (including any Special Interest) on any Note may, at the option of the
Company, be made by check mailed to the address of the Person in whose name the
Note is registered at the close of business on the Regular Payment Date;
provided, however, that all payments of principal, and premium (including
Special Interest, if any), if any, and interest on the Notes to Holders of which
have given wire instructions to the Company or the Paying Agent at least 10
Business Days prior to the applicable payment date shall be made by wire
transfer to an account maintained by such Holder entitled thereto as specified
by such Holder in the instructions.
(6) Prior to August 1, 2004, the Notes will be subject to redemption, at
the option of the Company, in whole or in part, at any time, upon not less than
30 not more than 60 days' notice mailed to each Holder of Notes to be redeemed
at such Holder's address appearing in the register of Holders in amounts of
$1,000 or an integral multiple of $1,000, at a redemption price equal to the
greater of (1) 100% of their principal amount or (2) the sum of the present
values of the remaining scheduled payments of principal and interest thereon
discounted to maturity on a semi-annual basis (assuming a 360-day year
consisting of twelve 30-day months) at the Treasury Yield plus 50 basis points,
plus in each case accrued but unpaid interest (including Special Interest) to
but excluding the Redemption Date (subject to the right of Holders of record on
the relevant Regular Record Date to receive interest due on an Interest Payment
Date that is on or prior to the Redemption Date).
Prior to August 1, 2002, the Company may redeem up to 33 1/3% in aggregate
principal amount of the Notes originally issued under the Indenture at a
redemption price equal to 110% of the principal amount of the Notes redeemed,
together with accrued but unpaid interest (including Special Interest) to the
Redemption Date (subject to the right of Holders of record on the relevant
Regular Record Date to receive interest due on an Interest Payment Date that is
on or prior to the Redemption Date) with the net proceeds of one or more Public
Offerings of Capital Stock (other than Redeemable Interests); provided that the
notice of redemption with respect to any such redemption is mailed within 30
days following the closing of the corresponding Public Offering.
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On or after August 1, 2004, the Notes shall be subject to redemption, in
whole or in part, at the option of the Company at any time prior to maturity,
upon not less than 30 nor more than 60 days' notice mailed to each Holder of
Notes to be redeemed at such Holder's address appearing in the register of
Holders, in amounts of $1,000 or an integral multiple of $1,000, at the
following Redemption Prices, expressed as percentages of principal amount, plus
accrued but unpaid interest (including Special Interest) to but excluding the
Redemption Date (subject to the right of Holders of record on the relevant
Regular Record Date to receive interest due on an Interest Payment Date that is
on or prior to the Redemption Date), if redeemed during the twelve-month period
beginning on August 1, of each of the years indicated below:
Year Percentage
---- ----------
2004...................................................105.000
2005...................................................103.3333
2006...................................................101.6667
2007 and thereafter....................................100.000%
(7) Except as set forth in this Supplemental Indenture, the Notes shall
not be redeemable at the option of any Holder thereof, upon the occurrence of
any particular circumstances or otherwise. The Notes will not have the benefit
of any mandatory redemption or sinking fund.
(8) The Notes shall be issuable in denominations of $1,000.
(9) Payments of the principal of, Special Interest, if any, with respect
to and interest on the Notes shall be made in U.S. Dollars, and the Notes shall
be denominated in U.S. Dollars.
(10) The Trustee shall also be the Security Registrar and Paying Agent.
(11) The entire outstanding principal amount of and any accrued interest,
if any, on Notes shall be payable upon declaration of acceleration of the
maturity thereof pursuant to Article 5 of the Indenture.
(12) The Notes will be payable on the Stated Maturity Date in an amount
equal to the principal amount thereof, Special Interest, if any, plus any
accrued and unpaid interest accrued to the Stated Maturity Date.
(13) There shall be the following additions to the covenants set forth in
the Indenture with respect to the Notes, which shall be effective only for so
long as any of the Notes are Outstanding:
(a) Asset Dispositions.
The Company shall not make, and shall not permit any Restricted
Subsidiary to make, any Asset Disposition unless: (i) the Company (or such
Restricted Subsidiary, as the case may be) receives consideration at the
time of such disposition at least equal to the fair market value of the
shares or the assets disposed of, as determined in good faith by its Board
of Directors for any transaction or series of transactions involving in
excess of $25 million and not involving the sale of equipment or other
assets specifically contemplated by the Company's capital expenditure
budget previously approved by the Board of Directors; (ii) at least 75% of
the consideration received by the Company or such Restricted Subsidiary
consists of (u) cash or readily marketable cash equivalents, (v) the
assumption of Debt or other liabilities reflected on the consolidated
balance sheet of the Company and its Restricted
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Subsidiaries in accordance with generally accepted accounting principles
(excluding Debt or any other liabilities subordinate in right of payment
to the Notes) and release from all liability on such Debt or other
liabilities assumed, (w) assets used in, or stock or other ownership
interests in a Person that upon the consummation of such Asset Disposition
becomes a Restricted Subsidiary and will be principally engaged in, the
business of the Company or any of its Restricted Subsidiaries as such
business is conducted immediately prior to such Asset Disposition, (x) any
securities, notes or other obligations received by the Company or any such
Restricted Subsidiary from such transferee that are contemporaneously
(subject to ordinary settlement periods) converted by the Company or such
Restricted Subsidiary into cash or Cash Equivalents (to the extent of cash
and Cash Equivalents received), (y) any Designated Noncash Consideration
received pursuant to this clause (y) that is at the time outstanding, not
to exceed 15% of Consolidated Total Assets at the time of the receipt of
such Designated Noncash Consideration (with the fair market value of each
item of Designated Noncash Consideration being measured at the time
received and without giving effect to subsequent changes in value), or (z)
any combination thereof; and (iii) 100% of the Net Available Proceeds from
such Asset Disposition (including from the sale of any marketable cash
equivalents received in such Asset Disposition) are applied by the Company
or a Restricted Subsidiary as follows (A) first, within one year from the
later of the date of such Asset Disposition or the receipt of such Net
Available Proceeds, to Senior Debt of the Company or its Restricted
Subsidiaries then outstanding that would require such application or which
would prohibit payments pursuant to Clause (B) below or Tranche D Term
Loans; (B) second, to the extent Net Available Proceeds are not required
to be applied as specified in Clause (A) above, to purchases of
outstanding Notes pursuant to an Offer to Purchase (to the extent such an
offer is not prohibited by the terms of the Bank Agreement then in effect)
at a purchase price equal to 100% of their principal amount plus accrued
interest to the date of purchase (subject to the rights of Holders of
record on the relevant Regular Record Date to receive interest due on an
Interest Payment Date that is on or prior to the purchase date); and (C)
third, to the extent of any remaining Net Available Proceeds following
completion of such Offer to Purchase, to any other use as determined by
the Company that is not otherwise prohibited by the Indenture; provided
further that the 75% limitation referred to in clause (ii) above will not
apply to any Asset Disposition if the consideration received from the
Asset Disposition, as determined in good faith by the Company's Board of
Directors, is equal to or greater than what the after-tax proceeds would
have been had the Asset Disposition complied with the aforementioned 75%
limitation.
Notwithstanding the foregoing, the Company shall not be required to
comply with the provisions described in Clause (iii) of the preceding
paragraph (i) if the Net Available Proceeds are invested or committed to
be invested within one year from the later of the date of the related
Asset Disposition or the receipt of such Net Available Proceeds in assets
that will be used in the business of the Company or any of its Restricted
Subsidiaries as such business is conducted prior to such Asset Disposition
(determined by the Board of Directors in good faith) or (ii) to the extent
the Company elects to redeem the Notes with the Net Available Proceeds
pursuant to any of the provisions of Subsection (6) of this Supplemental
Indenture of the Notes.
Notwithstanding the foregoing, the Company shall not be required to
comply with the requirements described in Clause (ii) of the second
preceding paragraph if the Asset Disposition is an Excepted Disposition.
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The Company shall mail the Offer Document for an Offer to Purchase
required pursuant to this subsection 13(a) within 30 days after the date
which is one year after the later of the date of consummation of the Asset
Disposition referred to in this subsection 13(a) or the receipt of the Net
Available Proceeds from such Asset Disposition. The aggregate principal
amount of the Notes to be offered to be purchased pursuant to the Offer to
Purchase shall equal the Net Available Proceeds required to be made
available therefor pursuant to Clause (iii)(B) of this subsection 13(a)
(rounded down to the next lowest integral multiple of $1,000). Each Holder
shall be entitled to tender all or any portion of the Notes owned by such
Holder pursuant to the Offer to Purchase, subject to the requirement that
any portion of a Note tendered must be tendered in an integral multiple of
$1,000 principal amount.
(b) Change of Control.
Within 30 days following the date the Company becomes aware of the
consummation of a transaction that results in a Change of Control (as
defined below), the Company shall commence an Offer to Purchase all
Outstanding Notes, at a purchase price equal to 101% of their aggregate
principal amount plus accrued interest, if any, to the date of purchase
(subject to the rights of Holders of record on the relevant Regular Record
Date to receive interest due on an Interest Payment Date that is on or
prior to the date of purchase).
A "Change of Control" shall be deemed to have occurred in the event
that, after the date of this Supplemental Indenture, (i) so long as the
Company is a Subsidiary of AWI, (a) any Person, or any Persons (other than
a Permitted AWI Successor, as defined below), acting together that would
constitute a "group" (an "Group") for purposes of Section 13(d) of the
Exchange Act (an "AWI Group"), together with any Affiliates or Related
Persons thereof (other than any employee stock ownership plan),
beneficially own 50% or more of the total voting power of all classes of
Voting Stock of AWI, (b) any Person or AWI Group, together with any
Affiliates or Related Persons thereof, succeeds in having sufficient of
its nominees that not been approved by the Continuing Directors elected to
the Board of Directors of AWI such that such nominees, when added to any
existing director remaining on the Board of Directors of AWI after such
election that is an Affiliate or Related Person of such Person or AWI
Group, shall constitute a majority of the Board of Directors of AWI or (c)
there occurs any transaction or series of related transactions (other than
a merger, consolidation or other transaction with a Related Business in
which the shareholders of AWI immediately prior to such transaction (or
series) receive (I) solely Voting Stock of AWI (or its successor or
parent, as the case may be), (II) cash, securities and other property in
an amount which could be paid by the Company as a Restricted Payment under
this Supplemental Indenture after giving pro forma effect to such
transaction, or (III) a combination of (I) and (II), and the beneficial
owners of the Voting Stock of AWI immediately prior to such transaction
(or series) do not, immediately after such transaction (or series),
beneficially own Voting Stock representing more than 50% of the total
voting power of all classes of Voting Stock of AWI (or in the case of a
transaction (or series) in which another entity becomes a successor to, or
parent of, AWI, of the successor or parent entity), (ii) if the Company is
not a Subsidiary of AWI, (a) any Person, or any Persons (other than a
Permitted Company Successor, as defined below), acting together that would
constitute a "group" for purposes of Section 13(d) of the Exchange Act (an
"Allied Group"), together with any Affiliates or Related Persons thereof
(other than any employee stock ownership plan) beneficially own 50% or
more of the total voting power of all classes of
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Voting Stock of the Company, (b) any Person or Allied Group, together with
any Affiliates or Related Persons thereof, succeeds in having sufficient
of its nominees who have not been approved by the Continuing Directors
elected to the Board of Directors of the Company such that such nominees,
when added to any existing director remaining on the Board of Directors of
the Company after such election who is an Affiliate or Related Person of
such Person or Allied Group, shall constitute a majority of the Board of
Directors of the Company or, (c) there occurs any transaction or series of
related transactions other than a merger, consolidation or other
transaction with a Related Business in which the shareholders of the
Company immediately prior to such transaction (or series) receive (I)
solely Voting Stock of the Company (or its successor or parent, as the
case may be), (II) cash, securities and other property in an amount which
could be paid by the Company as a Restricted Payment under this
Supplemental Indenture after giving pro forma effect to such transaction
or (III) a combination of (I) and (II), and the beneficial owners of the
Voting Stock of the Company immediately prior to such transaction (or
series) do not, immediately after such transaction (or series),
beneficially own Voting Stock representing more than 50% of the total
voting power of all classes of Voting Stock of the Company (or in the case
of a transaction (or series) in which another entity becomes a successor
to the Company, of the successor entity.
A "Permitted AWI Successor" means (i) an issuer, other than AWI, of
Voting Securities issued to the shareholders of AWI in a merger,
consolidation or other transaction permitted by clause (i)(c) of the
definition of Change of Control, (ii) Apollo and (iii) Blackstone.
A "Permitted Company Successor" means an issuer, other than the
Company, of Voting Securities issued to the shareholders of the Company in
a merger, consolidation or other transaction permitted by clause (ii)(c)
of the definition of Change of Control.
The Company shall comply with the requirements of Rule 14e-1 under
the Exchange Act and any other securities laws and regulations thereunder
to the extent such laws and regulations are applicable in connection with
the repurchase of the Notes resulting from a Change of Control.
Prior to complying with any of the provisions of this subsection
13(b), but in any event within 90 days following a Change of Control, the
Company shall either repay all outstanding Senior Debt or obtain the
requisite consents, if any, under all agreements governing outstanding
Senior Debt to permit the repurchase of Notes required by this covenant.
The Company shall publicly announce the results of the Change of Control
Offer on or as soon as practicable after the Purchase Date.
The Company and the Trustee shall perform their respective
obligations specified in the Offer Document for the Offer to Purchase.
Prior to the Purchase Date, the Company shall (i) accept for payment Notes
or portions thereof tendered pursuant to the Offer to Purchase, (ii)
deposit with the Paying Agent (or, if the Company is acting as its own
Paying Agent, segregate and hold in trust as provided in Section 9.3 of
the Indenture) money sufficient to pay the Purchase Price of all Notes or
portions thereof so accepted and (iii) deliver or cause to be delivered to
the Trustee all Notes so accepted together with an Officers' Certificate
stating the Notes or portions thereof accepted for payment by the Company.
The Paying Agent (or the Company if so acting) shall promptly mail or
deliver to
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Holders of Notes so accepted payment in an amount equal to the Purchase
Price for each $1,000 of Notes so accepted, and the Company shall promptly
execute a new Note or Notes equal in principal amount to any unpurchased
portion of the Note surrendered as requested by the Holder, and the
Guarantors shall promptly execute their Guarantees to be endorsed thereon,
and thereafter the Trustee shall promptly authenticate and mail or deliver
to such Holders such new Note or Notes. Any Note not accepted for payment
shall be promptly mailed or delivered by the Company to the Holder
thereof. The Company shall publicly announce the results of the Offer to
Purchase on or as soon as practicable after the Purchase Date.
(c) Limitation on Consolidated Debt.
The Company shall not incur any Debt and shall not permit its
Restricted Subsidiaries to Incur any Debt or issue Preferred Stock unless,
immediately after giving effect to the Incurrence of such Debt or issuance
of such Preferred Stock and the receipt and application of the proceeds
thereof, the Consolidated EBITDA Coverage Ratio of the Company for the
four full fiscal quarters next preceding the Incurrence of such Debt or
issuance of such Preferred Stock, calculated on a pro forma basis as if
such Debt had been Incurred or such Preferred Stock had been issued and
the proceeds thereof had been received and so applied at the beginning of
the four full fiscal quarters, would be greater than 2.0 to 1.0.
Without regard to the preceding limitations, the Company or any
Restricted Subsidiary of the Company may Incur the following Debt:
(i) Debt under the Bank Agreement in an aggregate principal
amount at any one time outstanding not to exceed the amount permitted
to be borrowed thereunder;
(ii) Debt evidenced by the Notes and the Guarantees;
(iii) Debt owed by the Company to any Restricted Subsidiary or
Debt owed by a Restricted Subsidiary to the Company or to a
Restricted Subsidiary; provided, however, that in the event that
either (x) the Company or the Restricted Subsidiary to which such
Debt is owed transfers or otherwise disposes of such Debt to a Person
other than the Company or another Restricted Subsidiary or (y) such
Restricted Subsidiary ceases to be a Restricted Subsidiary, the
provisions of this Clause (iii) shall no longer be applicable to such
Debt and such Debt shall be deemed to have been incurred at the time
of such transfer or other disposition or at the time such Restricted
Subsidiary ceases to be a Restricted Subsidiary;
(iv) Debt outstanding on the date of this Supplemental
Indenture;
(v) Debt incurred in connection with an acquisition, merger or
consolidation transaction permitted under the provisions of the
Indenture described under Section 7.1 of the Indenture (as superseded
by subsection 15 of this Section 1.01 of this Supplemental
Indenture), which Debt (A) was issued by a Person prior to the time
such Person becomes a Restricted Subsidiary in such transaction,
including by way of merger of consolidation with the Company or
another Restricted Subsidiary, and was not issued in contemplation of
such transaction or (B) is issued
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by the Company or a Restricted Subsidiary to a seller in connection
with such transaction, in an aggregate amount for all such Debt
issued pursuant to the provisions of this Supplemental Indenture
described under this Clause (v) and then outstanding does not exceed
7.5% of the Consolidated Total Assets of the Company at the time of
such Incurrence;
(vi) Debt consisting of Permitted Interest Rate or
Currency Protection Agreements;
(vii) Debt Incurred to renew, extend, refinance or refund any
outstanding Debt permitted in the preceding paragraph or in Clauses
(i) through (v) above or Incurred pursuant to this clause (vii);
provided, however, that such Debt does not exceed the principal
amount of Debt so renewed, extended, refinanced or refunded (plus the
amount of any premium and accrued interest, plus customary fees,
consent payments, expenses and costs relating to the Debt so renewed,
extended, refinanced or refunded); and
(viii) Debt not otherwise permitted to be Incurred pursuant to
clauses (i) through (vii) above, which, in aggregate amount, together
with the aggregate amount of all other Debt previously Incurred
pursuant to the provisions of this Clause (viii) and then
outstanding, does not exceed 7.5% of the Consolidated Total Assets of
the Company at the time of such Incurrence.
(d) Limitation on Restricted Payments.
The Company shall not, and shall not permit any Restricted Subsidiary
to, directly or indirectly, (i) declare or pay any dividend, or make any
distribution, of any kind or character (whether in cash, property or
securities) in respect of the Capital Stock of the Company or any
Restricted Subsidiary or to the holders thereof in their capacity as such
(excluding (a) any dividends or distributions to the extent payable in
shares of the Capital Stock of the Company (other than Redeemable
Interests) or in options, warrants or other rights to acquire the Capital
Stock of the Company (other than Redeemable Interests), (b) dividends or
distributions by a Restricted Subsidiary to the Company or another Wholly
Owned Restricted Subsidiary and (c) the payment of pro rata dividends by a
Restricted Subsidiary to holders of both minority and majority interests
in such Restricted Subsidiary), (ii) purchase, redeem or otherwise acquire
or retire for value (a) any Capital Stock of the Company or any Capital
Stock of or other ownership interests in any Subsidiary or any Affiliate
or Related Person of the Company or (b) any options, warrants or rights to
purchase or acquire shares of Capital Stock of the Company or any Capital
Stock of or other ownership interests in any Subsidiary or any Affiliate
or Related Person of the Company, excluding, in each case of (a) and (b)
of this clause (ii), the purchase, redemption, acquisition or retirement
by any Restricted Subsidiary of any of its Capital Stock, other ownership
interests or options, warrants or rights to purchase such Capital Stock or
other ownership interests, in each case, owned by the Company or a Wholly
Owned Restricted Subsidiary, (iii) make any Investment that is not a
Permitted Investment or (iv) redeem, defease, repurchase, retire or
otherwise acquire or retire for value prior to any scheduled maturity,
repayment or sinking fund payment, Debt of the Company that is subordinate
in right of payment to the Notes (each of the transactions described in
Clauses (i) through (iv) being a "Restricted Payment"), if:
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(1) a Default or an Event of Default shall have
occurred and be continuing; or
(2) the Company would, at the time of such Restricted Payment
and after giving pro forma effect to such Restricted Payment as if it
had been made at the beginning of the most recently ended four full
fiscal quarter period for which internal financial statements are
available immediately preceding the date of such Restricted Payment,
not have been permitted to Incur at least $1.00 of additional Debt
pursuant to the Consolidated EBITDA Coverage Ratio test set forth in
the first paragraph under subsection 13(c) of this Section 1.01 of
this Supplemental Indenture; or
(3) upon giving effect to such Restricted Payment, the
aggregate of all Restricted Payments (excluding Restricted Payments
permitted by Clauses (ii), (iii), (iv), (v) and (vii) of the next
succeeding paragraph) from the date of this Supplemental Indenture
(the amount so expended, if other than in cash, determined in good
faith by the Board of Directors) exceeds the sum, without
duplication, of: (a) 50% of the aggregate Consolidated Net Income
(or, in case Consolidated Net Income shall be negative, less 100% of
such deficit) for the period (taken as one accounting period) from
the beginning of the first fiscal quarter commencing after the date
of this Supplemental Indenture to the end of the Company's most
recently ended fiscal quarter for which internal financial statements
are available at the time of such Restricted Payment; (b) 100% of the
aggregate net cash proceeds from the issuance and sale to AWI of
Capital Stock (other than Redeemable Interests) of the Company and
options, warrants or other rights to acquire Capital Stock (other
than Redeemable Interests and Debt convertible into Capital Stock) of
the Company and the principal amount of Debt and Redeemable Interests
of the Company that has been converted into Capital Stock (other than
Redeemable Interests) of the Company after the date of this
Supplemental Indenture, provided that any such net proceeds received
by the Company from an employee stock ownership plan financed by
loans from the Company or a Subsidiary of the Company shall be
included only to the extent such loans have been repaid with cash on
or prior to the date of determination; (c) 50% of any dividends
received by the Company or a Wholly Owned Restricted Subsidiary after
the date of this Supplemental Indenture from an Unrestricted
Subsidiary of the Company; and (d) $300 million.
The preceding provisions shall not prohibit:
(i) the payment of any dividend within 60 days after
declaration of such dividend if at the declaration date such payment
would have complied with this covenant;
(ii) any refinancing or refunding of Debt permitted if such
refinancing or refunding is permitted pursuant to clause (vii) of the
second paragraph under subsection 13(c) of this Section 1.01 of this
Supplemental Indenture;
(iii) the purchase, redemption or other acquisition or
retirement for value of any Debt or Capital Stock of the Company or
any options, warrants or rights to purchase or acquire shares of
Capital Stock of the Company in exchange for, or out of the net cash
proceeds of, the substantially concurrent issuance or sale (other
than to a
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Restricted Subsidiary of the Company) of Capital Stock (other than
Redeemable Interests) of the Company; provided that the amount of any
such net cash proceeds that are utilized for any such purchase,
redemption or other acquisition or retirement for value shall be
excluded from Clause (3)(b) in the preceding paragraph of this
subsection 13(d);
(iv) the repurchase, redemption, defeasance, retirement,
refinancing or acquisition for value or payment of principal of any
subordinated Debt or Capital Stock through the issuance of new
subordinated Debt or Capital Stock of the Company;
(v) the purchase or redemption of any Debt from Net Available
Proceeds to the extent permitted under subsection 13(a) of this
Section 1.01 of this Supplemental Indenture;
(vi) payments pursuant to the Intercompany Agreements;
and
(vii) so long as no default or Event of Default has occurred or
is continuing, the payment of cash dividends on the Senior
Convertible Preferred Stock outstanding on the date of this
Supplemental Indenture or issued as dividends thereon to the extent
not prohibited by the Bank Agreement in effect from time to time.
Upon the designation of any Restricted Subsidiary as an Unrestricted
Subsidiary, an amount equal to the greater of the book value and the fair
market value of all assets of such Restricted Subsidiary at the end of the
Company's most recently ended fiscal quarter for which internal financial
statements are available prior to such designation shall be deemed to be a
Restricted Payment at the time of such designation for purposes of
calculating the aggregate amount of Restricted Payments (including the
Restricted Payment resulting from such designation) permitted under the
second preceding paragraph of this subsection 13(d) of this Supplemental
Indenture.
(e) Dividend and Other Payment Restrictions Affecting Subsidiaries.
The Company shall not, and shall not permit any Restricted Subsidiary
to, suffer to exist any consensual encumbrance or restriction on the
ability of any Restricted Subsidiary: (i) to pay, directly or indirectly,
dividends or make any other distributions in respect to its Capital Stock
or other ownership interests or pay any Debt or other obligation owed to
the Company or any other Restricted Subsidiary; (ii) to make loans or
advances to the Company or any other Restricted Subsidiary; or (iii) to
sell, lease or transfer any of its property or assets to the Company or
any Wholly Owned Restricted Subsidiary.
The preceding restrictions shall not apply to any encumbrance or
restriction existing pursuant to: (a) the Notes, the Indenture (including
this Supplemental Indenture), the Guarantees or any other agreement in
effect on the date of this Supplemental Indenture, (b) the Bank Agreement,
including any Guarantees of or Liens securing the Debt Incurred
thereunder, (c) an agreement relating to any Debt Incurred by such
Subsidiary prior to the date on which such Subsidiary was acquired by the
Company and outstanding on such date and not incurred in anticipation of
becoming a Subsidiary, (d) an agreement which has been entered into for
the pending sale or disposition of all or substantially all of the Capital
Stock,
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other ownership interests or assets of such Subsidiary, provided that such
restriction terminates upon consummation or abandonment of such
disposition and upon termination of such agreement, (e) customary
non-assignment provisions in leases and other agreements entered into in
the ordinary course of business, (f) any security agreement (including a
capital lease) securing Debt permitted to be Incurred under this
Supplemental Indenture that impose restrictions of the nature described in
Clause (iii) above on the property subject to the Lien of such security
agreement, (g) an agreement effecting a renewal, extension, refinancing or
refunding of Debt incurred pursuant to an agreement referred to in Clause
(a), (b) or (f) of this paragraph; provided, however, that the provisions
relating to such encumbrance or restriction contained in such renewal,
extension, refinancing or refunding agreement are no more restrictive in
any material respect than the provisions contained in the agreement it
replaces, as determined in good faith by the Board of Directors; or (h)
applicable corporate law or regulation relating to the payment of
dividends or distributions.
(f) Limitation on Liens.
Each of AWI and the Company shall not, and the Company shall not
permit any of its Restricted Subsidiaries to, create, Incur, assume or
otherwise cause or suffer to exist or become effective any Lien securing
Debt that is pari passu or subordinated in right of payment to the Notes
(other than Permitted Liens) upon any of their property or assets, now
owned or hereafter acquired to secure Debt of AWI, the Company or any of
its Restricted Subsidiaries.
(g) Transactions with Affiliates and Related Persons.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, make any payment to, or sell, lease, transfer or
otherwise dispose of any of its properties or assets to, or purchase any
property or assets from, or enter into or make or amend any transaction,
contract, agreement, understanding, loan, advance or guarantee with, or
for the benefit of, any Affiliate of the Company (each of the preceding,
an "Affiliate Transaction"), unless (a) such Affiliate Transaction is on
terms that are no less favorable to the Company or such Restricted
Subsidiary than those that would have been obtained in a comparable
transaction by the Company or such Restricted Subsidiary with an unrelated
Person and (b) the Company delivers to the Trustee, with respect to any
Affiliate Transaction or series of related Affiliate Transactions
involving aggregate consideration in excess of $50,000,000, either (i) a
resolution of the Board of Directors set forth in an Officers' Certificate
certifying that such Affiliate Transaction complies with clause (a) above
and that such Affiliate Transaction has been approved by a majority of the
disinterested members of the Board of Directors or (ii) an opinion as to
the fairness to the Company or such Restricted Subsidiary, as the case may
be, of such Affiliate Transaction from a financial point of view issued by
an accounting, appraisal or investment banking firm of national standing.
The following items shall not be deemed to be Affiliate Transactions
and, therefore shall not be subject to the provisions of the previous
paragraph: (a) customary directors' fees, indemnification or similar
arrangements or any employment agreement or other compensation plan or
arrangement entered into by the Company or any of its Restricted
Subsidiaries in the ordinary course of business, including ordinary course
loans to employees not to exceed: (i) $50,000,000 outstanding in the
aggregate at any time and (ii) $5,000,000 to any one employee, and
consistent with the past practice of the Company or
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such Restricted Subsidiary; (b) loans by the Company and its Restricted
Subsidiaries to employees of AWI or any of its Subsidiaries in connection
with management incentive plans not to exceed $50,000,000 at any time
outstanding; provided that such limitation shall not apply to loans the
proceeds of which are used to purchase common stock of (i) the Company
from the Company or (ii) AWI from AWI if and to the extent that AWI
utilizes the proceeds of such loan to acquire Capital Stock (other than
Redeemable Interests) of the Company; (c) transactions between or among
the Company and/or its Restricted Subsidiaries; (d) payments of customary
fees by the Company or any of its Restricted Subsidiaries to investment
banking firms and financial advisors made for any financial advisory,
financing, underwriting or placement services or in respect of other
investment banking activities, including, without limitation, in
connection with acquisitions or divestitures which are approved by a
majority of the Board of Directors in good faith; (e) any agreement as in
effect on the date of this Supplemental Indenture or any amendment thereto
(so long as such amendment is not disadvantageous to the Holders of the
Notes in any material respect) or any transaction contemplated thereby;
and (f) Restricted Payments that are permitted by the provisions of
subsection 13(d) of this Section 1.01 of this Supplemental Indenture.
(h) No Senior Subordinated Debt
The Company shall not incur, create, issue, assume, guarantee or
otherwise become liable for any Debt that is subordinate or junior in
right of payment to any Debt of the Company and senior in any respect in
right of payment to the Notes. No Guarantor shall incur, create, issue,
assume, guarantee or otherwise become liable for any Debt that is
subordinate or junior in right of payment to the Debt of such Guarantor
and senior in any respect in right of payment to such Guarantor's
Guarantee.
(i) Provision of Financial Information.
Whether or not AWI is required to be subject to Section 13(a) or
15(d) of the Exchange Act, or any successor provision thereto, the Company
(or AWI for so long as the Company is a Wholly-Owned Subsidiary of AWI)
shall file with the Commission the annual reports, quarterly reports and
other documents that the Company (or AWI for so long as the Company is a
Wholly-Owned Subsidiary of AWI) would have been required to file with the
Commission pursuant to such Section 13(a) or 15(d) or any successor
provision thereto if the Company (or AWI for so long as the Company is a
Wholly-Owned Subsidiary of AWI) were so required. Such documents shall be
filed with the Commission on or prior to the respective dates (the
"Required Filing Dates") by which the Company would have been required so
to file such documents if the Company were so required. The Company shall
also in any event (a) within 15 days of each Required Filing Date file
with the Trustee copies of the annual reports, quarterly reports and other
documents which the Company (or AWI for so long as the Company is a
Wholly-Owned Subsidiary of AWI) filed with the Commission pursuant to such
Section 13(a) or 15(d) or any successor provisions thereto or would have
been required to file with the Commission pursuant to such Section 13(a)
or 15(d) or any successor provisions thereto if the Company (or AWI for so
long as the Company is a Wholly-Owned Subsidiary of AWI) were required to
comply with such Sections and (b) if filing such documents by the Company
(or AWI for so long as the Company is a Wholly-Owned Subsidiary of AWI)
with the Commission is not permitted under the Exchange Act, promptly upon
written request supply copies of such documents to any prospective Holder.
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(j) Designation of Restricted and Unrestricted Subsidiaries.
The Company at any time may designate any Person that is a Subsidiary
of the Company, or that becomes a Subsidiary of the Company after the date
of this Supplemental Indenture as an "Unrestricted Subsidiary." Upon such
designation, and until such Person ceases to be an Unrestricted
Subsidiary, such Person and each other Person that is then or thereafter
becomes a Subsidiary of such Person shall be deemed to be an Unrestricted
Subsidiary. In addition, the Company may at any time terminate the status
of any Unrestricted Subsidiary as an Unrestricted Subsidiary. Upon such
termination, such Subsidiary and each other Subsidiary of the Company, if
any, of which such Subsidiary is a Subsidiary shall be a Restricted
Subsidiary.
Notwithstanding the foregoing, no change in the status of a
Subsidiary of the Company from a Restricted Subsidiary to an Unrestricted
Subsidiary or from an Unrestricted Subsidiary to a Restricted Subsidiary
shall be effective, and no Person may otherwise become a Restricted
Subsidiary, if:
(i) in the case of any change in status of a Restricted
Subsidiary to an Unrestricted Subsidiary, the Restricted Payment
resulting from such change, would violate the provisions of the first
paragraph of subsection 13(d) of this Section 1.01 of this
Supplemental Indenture; or
(ii) such change or other event would otherwise result in a
Default or an Event of Default.
In addition and notwithstanding the foregoing, no Restricted
Subsidiary of the Company may become an Unrestricted Subsidiary, and the
status of any Unrestricted Subsidiary as an Unrestricted Subsidiary shall
be deemed to have been immediately terminated when:
(i) such Subsidiary (A) has outstanding Debt that is
Unpermitted Debt (as defined below) or (B) owns or holds any Capital
Stock of or other ownership interests in, or a Lien on any property
or other assets of, the Company or any of its Restricted
Subsidiaries; or
(ii) the Company or any other Restricted Subsidiary (A)
provides credit support for, or a Guarantee of, any debt of such
Subsidiary, including any undertaking, agreement or instrument
evidencing such Debt, or (B) is directly or indirectly liable on any
Debt of such Subsidiary.
Any termination of the status of an Unrestricted Subsidiary as an
Unrestricted Subsidiary pursuant to the preceding sentence shall be
deemed to result in a breach of this subsection 13(j) in any
circumstance in which the Company would not be permitted to change
the status of such Unrestricted Subsidiary to the status of a
Restricted Subsidiary pursuant to the provision described in the
preceding paragraph.
"Unpermitted Debt" means any Debt of a Subsidiary of the Company if:
(x) a default under such Debt (or under any instrument or agreement
pursuant to or by which such Debt is issued, secured or evidenced) or
any right that the holders of such Debt may
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have to take enforcement action against such Subsidiary or its
property or other assets, would permit (whether or not after the
giving of notice or the lapse of time or both) the holders of any
Debt of the Company or any other Restricted Subsidiary to declare the
same due and payable prior to the date on which it otherwise would
have become due and payable or otherwise to take any enforcement
action against the Company or any such other Restricted Subsidiary or
(y) such Debt is secured by a Lien on any property or other assets of
the Company and any of its other Restricted Subsidiaries.
Each Person that is or becomes a Subsidiary of the Company shall be
deemed to be a Restricted Subsidiary at all times when it is a
Subsidiary of the Company that is not an Unrestricted Subsidiary.
Each Person that is or becomes a Wholly Owned Subsidiary of the
Company shall be deemed to be a Wholly Owned Restricted Subsidiary at
all times when it is a Wholly Owned Subsidiary of the Company that is
not an Unrestricted Subsidiary.
(14) (a) In addition to the Events of Default set forth in Section 5.1 of
the Indenture, the Notes shall include the following additional Event of Default
designated as clause (j) of such Section, which shall be deemed an Event of
Default under Section 5.1 of the Indenture:
(j) failure to perform or comply with the provisions of Section 7.1
of the Indenture (as superseded by subsection 15 of Section 1.01 hereof)
or the provisions of subsection 13(a) and 13(b) of this Section 1.01 of
this Supplemental Indenture.
(b) In addition, Section 5.1 of the Indenture is further supplemented
by adding the following paragraph thereto:
"If an Event of Default occurs at any time by reason of any willful
action (or inaction) taken (or not taken) by or on behalf of the Company
with the intention of avoiding payment of the premium that the Company
would have had to pay if the Company then had elected to redeem the Notes
pursuant to Section 11 of the Indenture and paragraph 5(b) of the Notes,
then, upon acceleration of the Notes, an equivalent premium shall also
become and be immediately due and payable, to the extent permitted by law,
anything in the Indenture or the Notes to the contrary notwithstanding."
(15) Section 7.1 of the Indenture is hereby superseded by the following in
respect of the Notes:
The Company (i) may not consolidate with or merge into any Person; (ii)
may not permit any Person other than a Restricted Subsidiary to consolidate with
or merge into the Company; and (iii) may not, directly or indirectly, in one or
a series of transactions, transfer, convey, sell, lease or otherwise dispose of
all or substantially all of the properties and assets of the Company and its
Subsidiaries on a consolidated basis; unless, in each case of (i), (ii) and
(iii) above:
(1) immediately before and after giving effect to such transaction
(or series) and treating any Debt Incurred by the Company or a Subsidiary
of the Company as a result of such transaction (or series) as having been
incurred by the Company of such Subsidiary at the time of the transaction
(or series), no Default or Event of Default shall have occurred and be
continuing;
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(2) in a transaction (or series) in which the Company does not
survive or in which the Company transfers, conveys, sells, leases or
otherwise disposes of all or substantially all of its properties and
assets, the successor entity is a corporation, partnership, limited
liability company or trust and is organized and validly existing under the
laws of the United States of America, any State thereof or the District of
Columbia and expressly assumes, by a supplemental indenture executed and
delivered to the Trustee in form satisfactory to the Trustee, all the
Company's obligations under the Indenture including this Supplemental
Indenture;
(3) if either (x) the Company or the successor entity would, at the
time of such transaction (or series) and after giving pro forma effect
thereto as if such transaction (or series) had occurred at the beginning
of the most recently ended four full fiscal quarter period for which
internal financial statements are available immediately preceding the date
of such transaction (or series), have been permitted to Incur at least
$1.00 of additional Debt pursuant to the Consolidated EBITDA Coverage
Ratio test set forth in the first paragraph under subsection 13(c) of
Section 1.01 hereof or (y) the Consolidated EBITDA Coverage Ratio of the
Company or the successor entity for the most recently ended four full
fiscal quarter period for which internal financial statements are
available immediately preceding the date of such transaction (or series),
calculated on a pro forma basis as if such transaction (or series) had
occurred at the beginning of such four full fiscal quarter period, would
be no less than such Consolidated EBITDA Coverage Ratio, calculated
without giving effect to such transaction or series or any other
transactions (or series) that is subject to the provisions of this
Supplemental Indenture described in this paragraph and that occurred after
the date that is twelve months before the date of such transaction (or
series);
(4) if, as a result of any such transaction, property or assets of
the Company or any Restricted Subsidiary of the Company would become
subject to a Lien prohibited by subsection 13(f) of this Section 1.01, the
Company or the successor entity will have secured the Notes as required by
such covenant; and
(5) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel as specified in the Indenture.
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 Supplemental Indenture and that all
conditions precedent to the consummation of such transaction under this Section
7.1 have been met."
(16) Section 16.4 of the Indenture is hereby supplemented to include the
following as clause (d) of such Section in respect of the Notes:
"(d) In the event that any Subsidiary Guarantor ceases to be a
guarantor under, or to pledge any of its assets to secure obligations
under, the Bank Agreement, such Guarantor shall be released from all of
its obligations under its Guarantee endorsed on the Securities and under
this Article 16."
(17) The Notes shall not be issuable as Bearer Securities.
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(18) Interest on any Note shall be payable only to the Person in whose
name that Note (or one or more predecessor Notes thereof) is registered at the
close of business on the Regular Record Date for such interest.
(19) Article 4 of the Indenture shall be applicable to the Notes.
(20) The Notes shall not be issuable in definitive form except under the
circumstances described in Section 2.1 of the Indenture.
(21) The Notes shall not be subordinated to any debt of the Company other
than Senior Debt, and shall constitute senior subordinated unsecured obligations
of the Company.
(22) For all purposes, the Series A Notes and the Series B Notes shall be
treated as one series of Securities under the Indenture.
(23) Section 8.2(e) of the Indenture is hereby modified and superseded in
its entirety as follows in respect of the Notes:
(e) Any amendment to, or waiver of, the provisions of Article 15 of
the Indenture relating to subordination that adversely affects the rights
of the Holders of the Notes shall require the consent of the Holders of at
least 75% in aggregate principal amount of Outstanding Notes.
(24) Article 2 of the Indenture is hereby modified and superseded as
follows in respect of the Notes:
SECTION 1.02. FORMS.
(1) Attached hereto as Exhibit A is a true and correct copy of the Form of
Note representing the Company's Notes.
(2) Attached hereto as Exhibit B is a true and correct copy of a specimen
certificate of transfer.
(3) Attached hereto as Exhibit C is a true and correct copy of a specimen
certificate of exchange.
(4) Attached hereto as Exhibit D is a true and correct copy of a specimen
certificate from acquiring institutional accredited investor.
(5) The form of Guarantee shall be as set forth in Section 2.3 of the
Indenture.
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ARTICLE II.
TRANSFER AND EXCHANGE
SECTION 2.01. GENERAL. Sections 2.4, 3.2 and 3.3 of the Indenture are
hereby supplemented as follows:
(a) General. The Notes and the Trustee's certificate of authentication
shall be substantially in the form of Exhibit A hereto. The Notes may have
notations, legends or endorsements required by law, stock exchange rule or
usage. Each Note shall be dated the date of its authentication. The Notes shall
be in denominations of $1,000 and integral multiples thereof.
The terms and provisions contained in the Notes shall constitute, and are
hereby expressly made, a part of this Supplemental Indenture and the Company,
the Guarantors and the Trustee, by their execution and delivery of this
Supplemental Indenture, expressly agree to such terms and provisions and to be
bound thereby. However, to the extent any provision of any Note conflicts with
the express provisions of this Supplemental Indenture, the provisions of this
Supplemental Indenture shall govern and be controlling.
(b) Global Notes. Notes issued in global form shall be substantially in
the form of Exhibit A attached hereto (including the Global Note Legend thereon
and the "Schedule of Exchanges of Interests in the Global Note" attached
thereto). Notes issued in definitive form shall be substantially in the form of
Exhibit A attached hereto (but without the Global Note Legend thereon and
without the "Schedule of Exchanges of Interests in the Global Note" attached
thereto). Each Global Note shall represent such of the outstanding Notes as
shall be specified therein and each shall provide that it shall represent the
aggregate principal amount of outstanding Notes from time to time endorsed
thereon and that the aggregate principal amount of outstanding Notes represented
thereby may from time to time be reduced or increased, as appropriate, to
reflect exchanges and redemptions. Any endorsement of a Global Note to reflect
the amount of any increase or decrease in the aggregate principal amount of
outstanding Notes represented thereby shall be made by the Trustee or the
Custodian, at the direction of the Trustee, in accordance with instructions
given by the Holder thereof as required by Section 2.02 of this Supplemental
Indenture.
(c) Euroclear and Cedel Procedures Applicable. The provisions of the
"Operating Procedures of the Euroclear System" and "Terms and Conditions
Governing Use of Euroclear" and the "General Terms and Conditions of Cedel Bank"
and "Customer Handbook" of Cedel Bank shall be applicable to transfers of
beneficial interests in Global Notes that are held by Participants through
Euroclear or Cedel Bank.
SECTION 2.02. REGISTRATION, TRANSFER AND EXCHANGE. Section 3.5 of the
Indenture is hereby modified and superseded in its entirety as follows in
respect of the Notes:
(a) Transfer and Exchange of Global Notes. A Global Note may not be
transferred as a whole except by the Depositary to a nominee of the Depositary,
by a nominee of the Depositary to the Depositary or to another nominee of the
Depositary, or by the Depositary or any such nominee to a successor Depositary
or a nominee of such successor Depositary. All Global Notes will be exchanged by
the Company for Definitive Notes if (i) the Company delivers to the Trustee
notice from the Depositary that it is unwilling or unable to continue to act as
Depositary or that it is no longer a clearing agency registered under the
Exchange Act and, in either case, a successor Depositary is not appointed by the
Company within 90 days after the date of such notice from the Depositary, (ii)
the Company in its sole discretion determines that the Global Notes (in whole
but not in part) should be exchanged for Definitive Notes and delivers a written
notice to such effect to the Trustee or (iii) there shall have occurred and be
continuing a Default or
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an Event of Default under the Indenture with respect to the Notes. Upon the
occurrence of either of the preceding events in (i), (ii) or (iii) above,
Definitive Notes shall be issued in such names as the Participants and Indirect
Participants and the Depositary shall instruct the Trustee. Global Notes also
may be exchanged or replaced, in whole or in part, as provided in Sections 3.6
and 3.4 of the Indenture. Every Note authenticated and delivered in exchange
for, or in lieu of, a Global Note or any portion thereof, pursuant to this
Section 2.02 or Section 3.6 or 3.4 of the Indenture, shall be authenticated and
delivered in the form of, and shall be, a Global Note. A Global Note may not be
exchanged for another Note other than as provided in this Section 2.02(a),
however, beneficial interests in a Global Note may be transferred and exchanged
as provided in Section 2.02(b), (c) or (f) of this Supplemental Indenture.
(b) Transfer and Exchange of Beneficial Interests in the Global Notes. The
transfer and exchange of beneficial interests in the Global Notes shall be
effected through the Depositary, in accordance with the provisions of this
Supplemental Indenture and the Applicable Procedures. Beneficial interests in
the Restricted Global Notes shall be subject to restrictions on transfer
comparable to those set forth in this Supplemental Indenture to the extent
required by the Securities Act. Transfers of beneficial interests in the Global
Notes also shall require compliance with either subparagraph (i) or (ii) below,
as applicable, as well as one or more of the other following subparagraphs, as
applicable:
(i) Transfer of Beneficial Interests in the Same Global Note.
Beneficial interests in any Restricted Global Note may be transferred to
Persons who take delivery thereof in the form of a beneficial interest in
the same Restricted Global Note in accordance with the transfer
restrictions set forth in the Private Placement Legend; provided, however,
that prior to the expiration of the Restricted Period, transfers of
beneficial interests in the Regulation S Global Note may not be made to a
U.S. Person or for the account or benefit of a U.S. Person (other than an
Initial Purchaser.) Beneficial interests in any Unrestricted Global Note
may be transferred to Persons who take delivery thereof in the form of a
beneficial interest in an Unrestricted Global Note. No written orders or
instructions shall be required to be delivered to the Registrar to effect
the transfers described in this Section 2.02(b)(i).
(ii) All Other Transfers and Exchanges of Beneficial Interests in
Global Notes. In connection with all transfers and exchanges of beneficial
interests that are not subject to Section 2.02(b)(i) above, the transferor
of such beneficial interest must deliver to the Registrar either (A) (1) a
written order from a Participant or an Indirect Participant given to the
Depositary in accordance with the Applicable Procedures directing the
Depositary to credit or cause to be credited a beneficial interest in
another Global Note in an amount equal to the beneficial interest to be
transferred or exchanged and (2) instructions given in accordance with the
Applicable Procedures containing information regarding the Participant
account to be credited with such increase or (B) (1) a written order from
a Participant or an Indirect Participant given to the Depositary in
accordance with the Applicable Procedures directing the Depositary to
cause to be issued a Definitive Note in an amount equal to the beneficial
interest to be transferred or exchanged and (2) instructions given by the
Depositary to the Registrar containing information regarding the Person in
whose name such Definitive Note shall be registered to effect the transfer
or exchange referred to in (1) above. Upon consummation of an Exchange
Offer by the Company in accordance with Section 2.02(f) of this
Supplemental Indenture, the requirements of this Section 2.02(b)(ii) shall
be deemed to have been satisfied upon receipt by the Registrar of the
instructions contained in the Letter of Transmittal delivered by the
Holder of such beneficial interests in the Restricted Global Notes. Upon
satisfaction of all of the requirements for transfer or exchange of
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beneficial interests in Global Notes contained in this Supplemental
Indenture and the Notes or otherwise applicable under the Securities Act,
the Trustee shall adjust the principal amount of the relevant Global
Note(s) pursuant to Section 2.02(h) of this Supplemental Indenture.
(iii) Transfer of Beneficial Interests to Another Restricted Global
Note. A beneficial interest in any Restricted Global Note may be
transferred to a Person who takes delivery thereof in the form of a
beneficial interest in another Restricted Global Note if the transfer
complies with the requirements of Section 2.02(b)(ii) above and the
Registrar receives the following:
(A) if the transferee will take delivery in the form of a
beneficial interest in the 144A Global Note, then the transferor must
deliver a certificate in the form of Exhibit B hereto, including the
certifications in item (1) thereof;
(B) if the transferee will take delivery in the form of a
beneficial interest in the Regulation S Global Note, then the
transferor must deliver a certificate in the form of Exhibit B
hereto, including the certifications in item (2) thereof; and
(C) if the transferee will take delivery in the form of a
beneficial interest in the IAI Global Note, then the transferor must
deliver a certificate in the form of Exhibit B hereto, including the
certifications and certificates and Opinion of Counsel required by
item (3) thereof, if applicable.
(iv) Transfer and Exchange of Beneficial Interests in a Restricted
Global Note for Beneficial Interests in the Unrestricted Global Note. A
beneficial interest in any Restricted Global Note may be exchanged by any
Holder thereof for a beneficial interest in an Unrestricted Global Note or
transferred to a Person who takes delivery thereof in the form of a
beneficial interest in an Unrestricted Global Note if the exchange or
transfer complies with the requirements of Section 2.02(b)(ii) above and:
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the applicable Registration Rights
Agreement and the Holder of the beneficial interest to be
transferred, in the case of an exchange, or the transferee, in the
case of a transfer, certifies in the applicable Letter of Transmittal
that it is not (1) a broker-dealer, (2) a Person participating in the
distribution of the Exchange Notes or (3) a Person who is an
affiliate (as defined in Rule 144) of the Company;
(B) such transfer is effected pursuant to a Shelf Registration
Statement in accordance with the applicable Registration Rights
Agreement;
(C) such transfer is effected by a Broker-Dealer pursuant to an
Exchange Offer Registration Statement in accordance with the
applicable Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the Holder of such beneficial interest in a
Restricted Global Note proposes to exchange such beneficial
interest for a beneficial interest in
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an Unrestricted Global Note, a certificate from such Holder in
the form of Exhibit C hereto, including the certifications in
item (1)(a) thereof; or
(2) if the Holder of such beneficial interest in a
Restricted Global Note proposes to transfer such beneficial
interest to a Person who shall take delivery thereof in the
form of a beneficial interest in an Unrestricted Global Note, a
certificate from such Holder in the form of Exhibit B hereto,
including the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if the
Registrar so requests or if the Applicable Procedures so require, an
Opinion of Counsel in form reasonably acceptable to the Registrar to
the effect that such exchange or transfer is in compliance with the
Securities Act and that the restrictions on transfer contained in
this Supplemental Indenture and in the Private Placement Legend are
no longer required in order to maintain compliance with the
Securities Act.
If any such transfer is effected pursuant to subparagraph (B) or (D) above
at a time when an Unrestricted Global Note has not yet been issued, the Company
shall issue and, upon receipt of an Authentication Order in accordance with
Section 3.3 of the Indenture, the Trustee shall authenticate one or more
Unrestricted Global Notes in an aggregate principal amount equal to the
aggregate principal amount of beneficial interests transferred pursuant to
subparagraph (B) or (D) above.
Beneficial interests in an Unrestricted Global Note cannot be exchanged
for, or transferred to Persons who take delivery thereof in the form of, a
beneficial interest in a Restricted Global Note.
(c) Transfer or Exchange of Beneficial Interests for Definitive Notes.
(i) Beneficial Interests in Restricted Global Notes to Restricted
Definitive Notes. If any Holder of a beneficial interest in a Restricted
Global Note proposes to exchange such beneficial interest for a Restricted
Definitive Note or to transfer such beneficial interest to a Person who
takes delivery thereof in the form of a Restricted Definitive Note, then,
upon receipt by the Registrar of the following documentation:
(A) if the Holder of such beneficial interest in a Restricted
Global Note proposes to exchange such beneficial interest for a
Restricted Definitive Note, a certificate from such Holder in the
form of Exhibit C hereto, including the certifications in item (2)(a)
thereof;
(B) if such beneficial interest is being transferred to a QIB
in accordance with Rule 144A under the Securities Act, a certificate
to the effect set forth in Exhibit B hereto, including the
certifications in item (1) thereof;
(C) if such beneficial interest is being transferred to a
Non-U.S. Person in an offshore transaction in accordance with Rule
903 or Rule 904 under the Securities Act, a certificate to the effect
set forth in Exhibit B hereto, including the certifications in item
(2) thereof;
(D) if such beneficial interest is being transferred pursuant
to an exemption from the registration requirements of the Securities
Act in accordance with
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Rule 144 under the Securities Act, a certificate to the effect set
forth in Exhibit B hereto, including the certifications in item (3)
(a) thereof;
(E) if such beneficial interest is being transferred to an
Institutional Accredited Investor in reliance on an exemption from
the registration requirements of the Securities Act other than those
listed in subparagraphs (B) through (D) above, a certificate to the
effect set forth in Exhibit B hereto, including the certifications,
certificates and Opinion of Counsel required by item (3) thereof, if
applicable;
(F) if such beneficial interest is being transferred to the
Company or any of its Subsidiaries, a certificate to the effect set
forth in Exhibit B hereto, including the certifications in item
(3)(b) thereof; or
(G) if such beneficial interest is being transferred pursuant
to an effective registration statement under the Securities Act, a
certificate to the effect set forth in Exhibit B hereto, including
the certifications in item (3)(c) thereof,
the Trustee shall cause the aggregate principal amount of the applicable
Global Note to be reduced accordingly pursuant to Section 2.02(h) of this
Supplemental Indenture, and the Company shall execute and the Trustee
shall authenticate and deliver to the Person designated in the
instructions a Restricted Definitive Note in the appropriate principal
amount. Any Restricted Definitive Note issued in exchange for a beneficial
interest in a Restricted Global Note pursuant to this Section 2.02(c)
shall be registered in such name or names and in such authorized
denomination or denominations as the Holder of such beneficial interest
shall instruct the Registrar through instructions from the Depositary and
the Participant or Indirect Participant. The Trustee shall deliver such
Restricted Definitive Notes to the Persons in whose names such Notes are
so registered. Any Restricted Definitive Note issued in exchange for a
beneficial interest in a Restricted Global Note pursuant to this Section
2.02(c)(i) shall bear the Private Placement Legend and shall be subject to
all restrictions on transfer contained therein.
(ii) Beneficial Interests in Restricted Global Notes to Unrestricted
Definitive Notes. A Holder of a beneficial interest in a Restricted Global
Note may exchange such beneficial interest for an Unrestricted Definitive
Note or may transfer such beneficial interest to a Person who takes
delivery thereof in the form of an Unrestricted Definitive Note only if:
(A) such exchange or transfer is effected pursuant to an
Exchange Offer in accordance with the applicable Registration Rights
Agreement and the Holder of such beneficial interest, in the case of
an exchange, or the transferee, in the case of a transfer, certifies
in the applicable Letter of Transmittal that it is not (1) a
broker-dealer, (2) a Person participating in the distribution of the
Exchange Notes or (3) a Person who is an affiliate (as defined in
Rule 144) of the Company;
(B) such transfer is effected pursuant to a Shelf Registration
Statement in accordance with the applicable Registration Rights
Agreement;
(C) such transfer is effected by a Broker-Dealer pursuant to
the Exchange Offer Registration Statement in accordance with the
Registration Rights Agreement; or
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(D) the Registrar receives the following:
(1) if the Holder of such beneficial interest in a
Restricted Global Note proposes to exchange such beneficial
interest for a Definitive Note that does not bear the Private
Placement Legend, a certificate from such Holder in the form of
Exhibit C hereto, including the certifications in item (1)(b)
thereof; or
(2) if the Holder of such beneficial interest in a
Restricted Global Note proposes to transfer such beneficial
interest to a Person who shall take delivery thereof in the
form of a Definitive Note that does not bear the Private
Placement Legend, a certificate from such Holder in the form of
Exhibit B hereto, including the certifications in item (4)
thereof;
and, in each such case set forth in this subparagraph (D), if the
Registrar so requests or if the Applicable Procedures so require, an
Opinion of Counsel in form reasonably acceptable to the Registrar to
the effect that such exchange or transfer is in compliance with the
Securities Act and that the restrictions on transfer contained in
this Supplemental Indenture and in the Private Placement Legend are
no longer required in order to maintain compliance with the
Securities Act.
If any such transfer is effected pursuant to subparagraph (B) or (D) above
at a time when an Unrestricted Global Note has not yet been issued, the Company
shall issue and, upon receipt of an Authentication Order in accordance with
Section 3.3 of the Indenture, the Trustee shall authenticate one or more
Unrestricted Global Notes in an aggregate principal amount equal to the
aggregate principal amount of beneficial interests transferred pursuant to
subparagraph (B) or (D) above.
(iii) Beneficial Interests in Unrestricted Global Notes to
Unrestricted Definitive Notes. If any Holder of a beneficial interest in
an Unrestricted Global Note proposes to exchange such beneficial interest
for a Definitive Note or to transfer such beneficial interest to a Person
who takes delivery thereof in the form of a Definitive Note, then, upon
satisfaction of the conditions set forth in Section 2.02(b)(ii) of this
Supplemental Indenture, the Trustee shall cause the aggregate principal
amount of the applicable Global Note to be reduced accordingly pursuant to
Section 2.02(h) of this Supplemental Indenture, and the Company shall
execute and the Trustee shall authenticate and deliver to the Person
designated in the instructions a Definitive Note in the appropriate
principal amount. Any Definitive Note issued in exchange for a beneficial
interest pursuant to this Section 2.02(c)(iii) shall be registered in such
name or names and in such authorized denomination or denominations as the
Holder of such beneficial interest shall instruct the Registrar through
instructions from the Depositary and the Participant or Indirect
Participant. The Trustee shall deliver such Definitive Notes to the
Persons in whose names such Notes are so registered. Any Definitive Note
issued in exchange for a beneficial interest pursuant to this Section
2.02(c)(iii) shall not bear the Private Placement Legend.
(d) Transfer and Exchange of Definitive Notes for Beneficial Interests.
(i) Restricted Definitive Notes to Beneficial Interests in Restricted
Global Notes. If any Holder of a Restricted Definitive Note proposes to
exchange such Note for a beneficial interest in a Restricted Global Note
or to transfer such Restricted Definitive Notes
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to a Person who takes delivery thereof in the form of a beneficial
interest in a Restricted Global Note, then, upon receipt by the Registrar
of the following documentation:
(A) if the Holder of such Restricted Definitive Note proposes
to exchange such Note for a beneficial interest in a Restricted
Global Note, a certificate from such Holder in the form of Exhibit C
hereto, including the certifications in item (2)(b) thereof;
(B) if such Restricted Definitive Note is being transferred to
a QIB in accordance with Rule 144A under the Securities Act, a
certificate to the effect set forth in Exhibit B hereto, including
the certifications in item (1) thereof;
(C) if such Restricted Definitive Note is being transferred to
a Non-U.S. Person in an offshore transaction in accordance with Rule
903 or Rule 904 under the Securities Act, a certificate to the effect
set forth in Exhibit B hereto, including the certifications in item
(2) thereof;
(D) if such Restricted Definitive Note is being transferred
pursuant to an exemption from the registration requirements of the
Securities Act in accordance with Rule 144 under the Securities Act,
a certificate to the effect set forth in Exhibit B hereto, including
the certifications in item (3)(a) thereof;
(E) if such Restricted Definitive Note is being transferred to
an Institutional Accredited Investor in reliance on an exemption from
the registration requirements of the Securities Act other than those
listed in subparagraphs (B) through (D) above, a certificate to the
effect set forth in Exhibit B hereto, including the certifications,
certificates and Opinion of Counsel required by item (3) thereof, if
applicable;
(F) if such Restricted Definitive Note is being transferred to
the Company or any of its Subsidiaries, a certificate to the effect
set forth in Exhibit B hereto, including the certifications in item
(3)(b) thereof; or
(G) if such Restricted Definitive Note is being transferred
pursuant to an effective registration statement under the Securities
Act, a certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (3)(c) thereof,
the Trustee shall cancel the Restricted Definitive Note, increase or cause
to be increased the aggregate principal amount of, in the case of clause
(A) above, the appropriate Restricted Global Note, in the case of clause
(B) above, the 144A Global Note, in the case of clause (C) above, the
Regulation S Global Note, and in all other cases, the IAI Global Note.
(ii) Restricted Definitive Notes to Beneficial Interests in
Unrestricted Global Notes. A Holder of a Restricted Definitive Note may
exchange such Note for a beneficial interest in an Unrestricted Global
Note or transfer such Restricted Definitive Note to a Person who takes
delivery thereof in the form of a beneficial interest in an Unrestricted
Global Note only if:
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the applicable Registration Rights
Agreement and the Holder, in
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the case of an exchange, or the transferee, in the case of a
transfer, certifies in the applicable Letter of Transmittal that it
is not (1) a broker-dealer, (2) a Person participating in the
distribution of the Exchange Notes or (3) a Person who is an
affiliate (as defined in Rule 144) of the Company;
(B) such transfer is effected pursuant to a Shelf Registration
Statement in accordance with the applicable Registration Rights
Agreement;
(C) such transfer is effected by a Broker-Dealer pursuant to an
Exchange Offer Registration Statement in accordance with the
applicable Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the Holder of such Definitive Notes proposes to
exchange such Notes for a beneficial interest in the
Unrestricted Global Note, a certificate from such Holder in the
form of Exhibit C hereto, including the certifications in item
(1)(c) thereof; or
(2) if the Holder of such Definitive Notes proposes to
transfer such Notes to a Person who shall take delivery thereof
in the form of a beneficial interest in the Unrestricted Global
Note, a certificate from such Holder in the form of Exhibit B
hereto, including the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if the
Registrar so requests or if the Applicable Procedures so require, an
Opinion of Counsel in form reasonably acceptable to the Registrar to
the effect that such exchange or transfer is in compliance with the
Securities Act and that the restrictions on transfer contained in
this Supplemental Indenture and in the Private Placement Legend are
no longer required in order to maintain compliance with the
Securities Act.
Upon satisfaction of the conditions of any of the subparagraphs in
this Section 2.02(d)(ii), the Trustee shall cancel the Definitive Notes
and increase or cause to be increased the aggregate principal amount of
the Unrestricted Global Note.
(iii) Unrestricted Definitive Notes to Beneficial Interests in
Unrestricted Global Notes. A Holder of an Unrestricted Definitive Note may
exchange such Note for a beneficial interest in an Unrestricted Global
Note or transfer such Unrestricted Definitive Notes to a Person who takes
delivery thereof in the form of a beneficial interest in an Unrestricted
Global Note at any time. Upon receipt of a request for such an exchange or
transfer, the Trustee shall cancel the applicable Unrestricted Definitive
Note and increase or cause to be increased the aggregate principal amount
of one of the Unrestricted Global Notes.
If any such exchange or transfer from an Unrestricted Definitive Note
or a Restricted Definitive Note, as the case may be, to a beneficial
interest is effected pursuant to subparagraphs (ii)(B), (ii)(D) or (iii)
above at a time when an Unrestricted Global Note has not yet been issued,
the Company shall issue and, upon receipt of an Authentication Order in
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accordance with Section 3.3 of the Indenture, the Trustee shall
authenticate one or more Unrestricted Global Notes in an aggregate
principal amount equal to the principal amount of Unrestricted Definitive
Notes or Restricted Definitive Notes, as the case may be, so transferred.
(e) Transfer and Exchange of Definitive Notes for Definitive Notes. Upon
request by a Holder of Definitive Notes and such Holder's compliance with the
provisions of this Section 2.02(e), the Registrar shall register the transfer or
exchange of Definitive Notes. Prior to such registration of transfer or
exchange, the requesting Holder shall present or surrender to the Registrar the
Definitive Notes duly endorsed or accompanied by a written instruction of
transfer in form satisfactory to the Registrar duly executed by such Holder or
by its attorney, duly authorized in writing. In addition, the requesting Holder
shall provide any additional certifications, documents and information, as
applicable, required pursuant to the following provisions of this Section
2.02(e).
(i) Restricted Definitive Notes to Restricted Definitive Notes. Any
Restricted Definitive Note may be transferred to and registered in the
name of Persons who take delivery thereof in the form of a Restricted
Definitive Note if the Registrar receives the following:
(A) if the transfer will be made pursuant to Rule 144A under
the Securities Act, then the transferor must deliver a certificate in
the form of Exhibit B hereto, including the certifications in item
(1) thereof;
(B) if the transfer will be made pursuant to Rule 903 or Rule
904, then the transferor must deliver a certificate in the form of
Exhibit B hereto, including the certifications in item (2) thereof;
and
(C) if the transfer will be made pursuant to any other
exemption from the registration requirements of the Securities Act,
then the transferor must deliver a certificate in the form of Exhibit
B hereto, including the certifications, certificates and Opinion of
Counsel required by item (3) thereof, if applicable.
(ii) Restricted Definitive Notes to Unrestricted Definitive Notes.
Any Restricted Definitive Note may be exchanged by the Holder thereof for
an Unrestricted Definitive Note or transferred to a Person or Persons who
take delivery thereof in the form of an Unrestricted Definitive Note if:
(A) such exchange or transfer is effected pursuant to an
Exchange Offer in accordance with the applicable Registration Rights
Agreement and the Holder, in the case of an exchange, or the
transferee, in the case of a transfer, certifies in the applicable
Letter of Transmittal that it is not (1) a broker-dealer, (2) a
Person participating in the distribution of the Exchange Notes or (3)
a Person who is an affiliate (as defined in Rule 144) of the Company;
(B) any such transfer is effected pursuant to a Shelf
Registration Statement in accordance with the applicable Registration
Rights Agreement;
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(C) any such transfer is effected by a Broker-Dealer pursuant
to an Exchange Offer Registration Statement in accordance with the
applicable Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the Holder of such Restricted Definitive Notes
proposes to exchange such Notes for an Unrestricted Definitive
Note, a certificate from such Holder in the form of Exhibit C
hereto, including the certifications in item (1)(d) thereof; or
(2) if the Holder of such Restricted Definitive Notes
proposes to transfer such Notes to a Person who shall take
delivery thereof in the form of an Unrestricted Definitive
Note, a certificate from such Holder in the form of Exhibit B
hereto, including the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if the
Registrar so requests, an Opinion of Counsel in form reasonably
acceptable to the Company to the effect that such exchange or
transfer is in compliance with the Securities Act and that the
restrictions on transfer contained in this Supplemental Indenture and
in the Private Placement Legend are no longer required in order to
maintain compliance with the Securities Act.
(iii) Unrestricted Definitive Notes to Unrestricted Definitive Notes.
A Holder of Unrestricted Definitive Notes may transfer such Notes to a
Person who takes delivery thereof in the form of an Unrestricted
Definitive Note. Upon receipt of a request to register such a transfer,
the Registrar shall register the Unrestricted Definitive Notes pursuant to
the instructions from the Holder thereof.
(f) Exchange Offer. Upon the occurrence of an Exchange Offer in accordance
with the applicable Registration Rights Agreement, the Company shall issue and,
upon receipt of an Authentication Order in accordance with Section 3.3, the
Trustee shall authenticate (i) one or more Unrestricted Global Notes in an
aggregate principal amount equal to the principal amount of the beneficial
interests in the Restricted Global Notes tendered for acceptance by Persons that
certify in the applicable Letters of Transmittal that (x) they are not
broker-dealers, (y) they are not participating in a distribution of the Exchange
Notes and (z) they are not affiliates (as defined in Rule 144) of the Company,
and accepted for exchange in an Exchange Offer and (ii) Definitive Notes in an
aggregate principal amount equal to the principal amount of the Restricted
Definitive Notes accepted for exchange in an Exchange Offer. Concurrently with
the issuance of such Notes, the Trustee shall cause the aggregate principal
amount of the applicable Restricted Global Notes to be reduced accordingly, and
the Company shall execute and the Trustee shall authenticate and deliver to the
Persons designated by the Holders of Restricted Definitive Notes so accepted
Unrestricted Definitive Notes in the appropriate principal amount.
(g) Legends. The following legends shall appear on the face of all Global
Notes and Definitive Notes issued under this Supplemental Indenture unless
specifically stated otherwise in the applicable provisions of this Supplemental
Indenture.
(i) Private Placement Legend.
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(A) Except as permitted by subparagraph (B) below, each Global
Note and each Definitive Note (and all Notes issued in exchange
therefor or substitution thereof) shall bear the legend in
substantially the following form:
"THIS NOTE (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED UNDER
THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
AND, ACCORDINGLY, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE
TRANSFERRED WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR
BENEFIT OF, U.S. PERSONS, EXCEPT AS SET FORTH IN THE NEXT SENTENCE.
BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE
HOLDER:
(1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL
BUYER" (as defined in Rule 144A under the Securities Act) (A
"QIB"), (B) IT HAS ACQUIRED THIS NOTE IN AN OFFSHORE
TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE
SECURITIES ACT OR (C) IT IS AN INSTITUTIONAL "ACCREDITED
INVESTOR" (as defined in Rule 501(a)(1), (2), (3) or (7) of
Regulation D under the Securities Act) (AN "IAI"),
(2) AGREES THAT IT WILL NOT RESELL OR OTHERWISE TRANSFER
THIS NOTE EXCEPT (A) TO ALLIED NA OR ANY OF ITS SUBSIDIARIES,
(B) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QIB
PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QIB IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (C) IN AN
OFFSHORE TRANSACTION MEETING THE REQUIREMENTS OF RULE 903 OR
904 OF THE SECURITIES ACT, (D) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144 UNDER THE SECURITIES ACT, (E) TO AN
IAI THAT, PRIOR TO SUCH TRANSFER, FURNISHES THE TRUSTEE A
SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS
RELATING TO THE TRANSFER OF THIS NOTE (the form of which can be
obtained from the Trustee) AND, IF SUCH TRANSFER IS IN RESPECT
OF AN AGGREGATE PRINCIPAL AMOUNT OF NOTES LESS THAN $250,000,
AN OPINION OF COUNSEL ACCEPTABLE TO ALLIED NA THAT SUCH
TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT, (F) IN
ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT (AND BASED UPON AN OPINION
OF COUNSEL ACCEPTABLE TO ALLIED NA) OR (G) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT AND, IN EACH CASE, IN
ACCORDANCE WITH THE APPLICABLE SECURITIES LAWS OF ANY STATE OF
THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION AND
(3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM
THIS NOTE OR AN INTEREST HEREIN IS
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TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS
LEGEND.
AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION" AND "UNITED
STATES" HAVE THE MEANINGS GIVEN TO THEM BY RULE 902 OF REGULATION S
UNDER THE SECURITIES ACT. THE INDENTURE CONTAINS A PROVISION
REQUIRING THE TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF THIS NOTE
IN VIOLATION OF THE FOREGOING.
(B) Notwithstanding the foregoing, any Global Note or
Definitive Note issued pursuant to subparagraphs (b)(iv), (c)(ii),
(c)(iii), (d)(ii), (d)(iii), (e)(ii), (e)(iii) or (f) to this Section
2.02 (and all Notes issued in exchange therefor or substitution
thereof) shall not bear the Private Placement Legend.
(ii) Global Note Legend. Each Global Note shall bear a legend in
substantially the following form:
"THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE
INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE
BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO
ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY
MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 3.6
OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT
NOT IN PART PURSUANT TO SECTION 3.5 OF THE INDENTURE, (III) THIS
GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT
TO SECTION 3.9 OF THE INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE
TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT
OF ALLIED NA."
(h) Cancellation and/or Adjustment of Global Notes. At such time as all
beneficial interests in a particular Global Note have been exchanged for
Definitive Notes or a particular Global Note has been redeemed, repurchased or
canceled in whole and not in part, each such Global Note shall be returned to or
retained and canceled by the Trustee in accordance with Section 3.9 of the
Indenture. At any time prior to such cancellation, if any beneficial interest in
a Global Note is exchanged for or transferred to a Person who will take delivery
thereof in the form of a beneficial interest in another Global Note or for
Definitive Notes, the principal amount of Notes represented by such Global Note
shall be reduced accordingly and an endorsement shall be made on such Global
Note by the Trustee or by the Depositary at the direction of the Trustee to
reflect such reduction; and if the beneficial interest is being exchanged for or
transferred to a Person who will take delivery thereof in the form of a
beneficial interest in another Global Note, such other Global Note shall be
increased accordingly and an endorsement shall be made on such Global Note by
the Trustee or by the Depositary at the direction of the Trustee to reflect such
increase.
(i) General Provisions Relating to Transfers and Exchanges.
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(i) To permit registrations of transfers and exchanges, the Company
shall execute and the Trustee shall authenticate Global Notes and
Definitive Notes upon the Company's order or at the Registrar's request.
(ii) No service charge shall be made to a Holder of a beneficial
interest in a Global Note or to a Holder of a Definitive Note for any
registration of transfer or exchange, but the Company may require payment
of a sum sufficient to cover any transfer tax or similar governmental
charge payable in connection therewith (other than any such transfer taxes
or similar governmental charge payable upon exchange or transfer pursuant
to Sections 3.4, 8.6 and 11.7 of the Indenture and subsections 13(a) and
13(b) of Section 1.01 of this Supplemental Indenture).
(iii) The Registrar shall not be required to register the transfer of
or exchange any Note selected for redemption in whole or in part, except
the unredeemed portion of any Note being redeemed in part.
(iv) All Global Notes and Definitive Notes issued upon any
registration of transfer or exchange of Global Notes or Definitive Notes
shall be the valid obligations of the Company, evidencing the same debt,
and entitled to the same benefits of the Indenture, as the Global Notes or
Definitive Notes surrendered upon such registration of transfer or
exchange.
(v) The Company shall not be required (A) to issue, to register the
transfer of or to exchange any Notes during a period beginning at the
opening of business 15 days before the day of any selection of Notes for
redemption under Section 11.3 of the Indenture and ending at the close of
business on the day of selection, (B) to register the transfer of or to
exchange any Note so selected for redemption in whole or in part, except
the unredeemed portion of any Note being redeemed in part or (C) to
register the transfer of or to exchange a Note between a record date and
the next succeeding Interest Payment Date.
(vi) Prior to due presentment for the registration of a transfer of
any Note, the Trustee, any Agent and the Company may deem and treat the
Person in whose name any Note is registered as the absolute owner of such
Note for the purpose of receiving payment of principal of and interest on
such Notes and for all other purposes, and none of the Trustee, any Agent
or the Company shall be affected by notice to the contrary.
(vii) The Trustee shall authenticate Global Notes and Definitive
Notes in accordance with the provisions of Section 3.3 of the Indenture.
(viii) All certifications, certificates and Opinions of Counsel
required to be submitted to the Registrar pursuant to this Section 2.02 to
effect a registration of transfer or exchange may be submitted by
facsimile.
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ARTICLE III.
DEFINITIONS
SECTION 3.03. ADDITIONAL DEFINITIONS. In addition to the definitions set
forth in Article I of the Indenture, the Notes shall include the following
additional definitions, which, in the event of a conflict with the definition of
terms in the Indenture the definitions in this Supplemental Indenture, shall
control:
"144A Global Note" means a global note substantially in the form of
Exhibit A hereto bearing the Global Note Legend and the Private Placement
Legend and deposited with or on behalf of, and registered in the name of,
the Depositary or its nominee that will be issued in a denomination equal
to the outstanding principal amount of the Notes sold in reliance on Rule
144A.
"Acquired Business" means (a) any Person at least a majority of the
capital stock or other ownership interests of which is acquired after the
date hereof by the Company or a Subsidiary of the Company and (b) any
assets constituting a discrete business or operating unit acquired on or
after the date hereof by the Company or a Subsidiary of the Company.
"Allied Waste Group" means, collectively, AWI, the Company, and
their respective subsidiaries, and a "member" of the AWI Waste Group means
AWI, the Company and each of their respective subsidiaries.
"Applicable Procedures" means, with respect to any transfer or
exchange of or for beneficial interests in any Global Note, the rules and
procedures of the Depository, Euroclear and Cedel that apply to such
transfer or exchange.
"Apollo" means Apollo Management IV, L.P. or its Permitted
Transferees (exclusive of the Allied Waste Group).
"Asset Disposition" by any Person that is the Company or any
Restricted Subsidiary means any transfer, conveyance, sale, lease or other
disposition by the Company or any of its Restricted Subsidiaries,
including a consolidation or merger or other sale of any Restricted
Subsidiary with, into or to another Person in a transaction in which the
Restricted Subsidiary ceases to be a Restricted Subsidiary of such Person,
of (i) shares of Capital Stock, other than directors' qualifying shares,
or other ownership interests of a Restricted Subsidiary, (ii) the property
or assets of such Person or any Restricted Subsidiary representing a
division or line or business, or (iii) other assets or rights of such
Person or any Restricted Subsidiary outside of the ordinary course of
business. Notwithstanding the preceding, the following items shall not be
deemed to be an Asset Disposition (x) a disposition by a Subsidiary of
such Person to such Person or a Restricted Subsidiary or by such Person to
a Restricted Subsidiary, (y) the disposition of all or substantially all
of the assets of the Company in a manner permitted pursuant to the
provisions of Article 7 of the Indenture (as superseded by subsection 15
of Section 1.01 hereof) of the Company and (z) any disposition that
constitutes a Restricted Payment or Permitted Investment that is permitted
pursuant to the provisions of subsection 13(d) of Section 1.01 of this
Supplemental Indenture.
"AWI" means Allied Waste Industries, Inc.
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"Bank Agreement" means the credit agreement of the Company dated July
21, 1999, as amended, among the Company, AWI, certain lenders party
thereto, The Chase Manhattan Bank, DLJ Capital Funding, Inc., and Citicorp
USA, Inc., as agents, or any bank credit agreement that replaces, amends,
supplements, restates or renews such credit agreement.
"Blackstone" means the collective reference to (i) Blackstone Capital
Partners III Merchant Banking Fund L.P., a Delaware limited partnership,
Blackstone Capital Partners II Merchant Banking Fund L.P., a Delaware
limited partnership, Blackstone Offshore Capital Partners III L.P., a
Cayman Islands limited partnership, Blackstone Offshore Capital Partners
II L.P., a Cayman Islands limited partnership, Blackstone Family
Investment Partnership III L.P., a Delaware limited partnership, and
Blackstone Family Investment Partnership II L.P., a Cayman Islands limited
partnership (each of the foregoing, a "Blackstone Fund") and (ii) each
Affiliate of any Blackstone Fund that is not an operating company or
Controlled by an operating company and each general partner of any
Blackstone Fund or any Blackstone Affiliate who is a partner or employee
of The Blackstone Group L.P.
"Bankruptcy Law" means Title 11, U.S. Code or any similar
federal or state law for the relief of debtors.
"BFI" means Xxxxxxxx-Xxxxxx Industries, Inc., a Delaware
corporation.
"Broker-Dealer" has the meaning set forth in the Registration
Rights Agreement.
"Capital Lease Obligation" of any Person means the obligation to pay
rent or other payment amounts under a lease of, or other arrangements
conveying the right to use, real or personal property of such Person which
is required to be classified and accounted for as a capital lease or a
liability on a balance sheet of such Person in accordance with generally
accepted accounting principles. The stated maturity of such obligation
shall be the date of the last payment of rent or any other amount due
under such lease prior to the first date upon which such lease may be
terminated by the lessee without payment of a penalty. The principal
amount of such obligation shall be the capitalized amount of such
obligation that would appear on a balance sheet of such Person in
accordance with generally accepted accounting principles.
"Capital Stock" of any Person means any and all shares, interests,
participations or other equivalents, however designated, of corporate
stock or other equity participations, including partnership interests,
whether general or limited, of such Person.
"Cash Equivalents" means (i) United States dollars, (ii) securities
either issued directly or fully guaranteed or insured by the government of
the United States of America or any agency or instrumentality thereof
having maturities of not more than one year, (iii) time deposits and
certificates of deposit, demand deposits and banker's acceptances having
maturities of not more than one year from the date of deposit, of any
domestic commercial bank having capital and surplus in excess of $500
million, (iv) demand deposits made in the ordinary course of business and
consistent with the Company's customary cash management policy in any
domestic office of any commercial bank organized under the laws of the
United States of America or any State thereof, (v) insured deposits issued
by commercial banks of the type described in Clause (iv) above, (vi)
mutual funds whose investment guidelines
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restrict such funds' investments primarily to those satisfying the
provisions of Clauses (i) through (iii) above, (vii) repurchase
obligations with a term of not more than 90 days for underlying securities
of the types described in Clauses (ii) and (iii) above entered into with
any bank meeting the qualifications specified in Clause (iii) above and
(viii) commercial paper (other than commercial paper issued by an
Affiliate or Related Person) rated A-1 or the equivalent thereof by
Standard & Poor's Ratings Group or P-1 or the equivalent thereof by
Xxxxx'x Investors Services, Inc., and in each case maturing within 360
days.
"Cedel" means Cedel Bank, SA.
"Common Stock" of any Person means Capital Stock of such Person that
does not rank prior to the payment of dividends or as of the distribution
of assets upon any voluntary liquidation, dissolution or winding up of
such Person, to shares of Capital Stock or any other class of such Person.
"Comparable Treasury Issue" means, on any date the United States
Treasury security selected by an Independent Investment Banker as having a
maturity comparable to the remaining term of the Notes on such date that
would be utilized, at the time of selection and in accordance with
customary financial practice, in pricing new issues of corporate debt
securities of a maturity comparable to the remaining term of such Notes on
such date. "Independent Investment Banker" means Xxxxxxxxx, Xxxxxx &
Xxxxxxxx Securities Corporation or if such firm is unwilling or unable to
select the Comparable Treasury Issue, an independent investment banking
institution of national standing appointed by the Trustee.
"Comparable Treasury Price" means, with respect to any Redemption
Date (i) the average of the bid and asked prices for the Comparable
Treasury Issue (expressed in each case as a percentage of its principal
amount) on the third business day preceding such Redemption Date, as set
forth in the daily statistical release (or any successor release)
published by the Federal Reserve Bank of New York and designated
"Composite 3:30 p.m. Quotations for U.S. Government Securities" or (ii) if
such release (or any successor release) is not published or does not
contain such prices on such business day: (A) the average of the Reference
Treasury Dealer Quotations for such Redemption Date after excluding the
highest and lowest such Reference Treasury Dealer Quotations, or (B) if
the Trustee obtains fewer than four such Reference Treasury Dealer
Quotations, the average of all such Quotations. "Reference Treasury Dealer
Quotations" means, with respect to each Reference Treasury Dealer and any
Redemption Date, the average, as determined by the Trustee, of the bid and
asked prices for the Comparable Treasury Issue (expressed in each case as
a percentage of its principal amount) quoted in writing to the Trustee by
such Reference Treasury Dealer at 5:00 p.m. on the third Business Day
preceding such Redemption Date.
"Consolidated EBITDA" of any Person means for any period the
Consolidated Net Income for such period increased by the sum of, without
duplication: (i) Consolidated Interest Expense of such Person for such
period; plus (ii) Consolidated Income Tax Expense of such Person for such
period; plus (iii) the consolidated depreciation and amortization expense
deducted in determining the Consolidated Net Income of such Person for
such period; plus (iv) the aggregate amount of letter of credit fees
accrued during such period; plus (v) all non-cash or non-recurring charges
during such period, including charges for costs related to acquisitions,
it being understood that (x) non-cash non-recurring charges shall not
include accruals for closure and post-closure liabilities and (y) charges
shall be
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deemed non-cash charges until the period during which cash disbursements
attributable to such charges are made, at which point such charges shall
be deemed cash charges; provided that, for purposes of this clause (y),
the Company shall be required to monitor the actual cash disbursements
only for those non-cash charges that exceed $1,000,000 individually or
that exceed $10,000,000 in the aggregate in any fiscal year); plus (vi)
all cash charges attributable to the execution, delivery and performance
of the Indenture (including the Supplemental Indenture) or the Bank
Agreement; plus (vii) all non-recurring cash charges related to
acquisitions and financings, including amendments thereto; and minus all
non-cash non-recurring gains during such period to the extent included in
determining net operating income for such period. Notwithstanding the
preceding, the Consolidated Interest Expense, Consolidated Income Tax
Expense and consolidated depreciation and amortization expense of a
Consolidated Subsidiary of such Person shall be added to the Consolidated
Net Income pursuant to the foregoing: (x) only to the extent and in the
same proportion that the Consolidated Net Income of such Consolidated
Subsidiary was included in calculating the Consolidated Net Income of such
Person and (y) only to the extent that the amount specified in Clause (x)
is not subject to restrictions that prevent the payment of dividends or
the making of distributions of such Person.
"Consolidated EBITDA Coverage Ratio" of any Person means for any
period the ratio of: (i) Consolidated EBITDA of such Person for such
period to (ii) the sum of: (A) Consolidated Interest Expense of such
Person for such period; plus (B) the annual interest expense, including
the amortization of debt discount, with respect to any Debt incurred or
proposed to be Incurred by such Person or its Consolidated Subsidiaries
since the beginning of such period to the extent not included in clause
(ii)(A), minus (C) Consolidated Interest Expense of such Person with
respect to any Debt that is no longer outstanding or that will no longer
be outstanding as a result of the transaction with respect to which the
Consolidated EBITDA Coverage Ratio is being calculated, to the extent
included within Clause (ii)(A); provided, however, that in making such
computation, the Consolidated Interest Expense of such Person attributable
to interest on any Debt bearing a floating interest rate shall be computed
on a pro forma basis as if the rate in effect on the date of computation
had been the applicable rate for the entire period. Notwithstanding the
foregoing, in the event such Person or any of its Consolidated
Subsidiaries has made acquisitions or dispositions of assets not in the
ordinary course of business (including any other acquisitions of any other
Persons by merger, consolidation or purchase of Capital Stock) during or
after such period, the computation of the Consolidated EBITDA Coverage
Ratio (and for the purpose of such computation, the calculation of
Consolidated Net Income, Consolidated Interest Expense, Consolidated
Income Tax Expense and Consolidated EBITDA) shall be made on a pro forma
basis as if the acquisitions or dispositions had taken place on the first
day of such period. In determining the pro forma adjustments to
Consolidated EBITDA to be made with respect to any Acquired Business for
periods prior to the acquisition date thereof, actions taken by the
Company and its Restricted Subsidiaries prior to the first anniversary of
the related acquisition date that result in cost savings with respect to
such Acquired Business will be deemed to have been taken on the first day
of the period for which Consolidated EBITDA is being determined (with the
intent that such cost savings be effectively annualized by extrapolation
from the demonstrated cost savings since the related acquisition date).
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"Consolidated Income Tax Expense" of any Person means for any period
the consolidated provision for income taxes of such Person and its
Consolidated Subsidiaries for such period determined in accordance with
generally accepted accounting principles.
"Consolidated Interest Expense" of any Person means for any period
the consolidated interest expense included in a consolidated income
statement, net of interest income, of such Person and its Consolidated
Subsidiaries for such period determined in accordance with generally
accepted accounting principles, including without limitation or
duplication (or, to the extent not so included, with the addition of): (i)
the portion of any rental obligation in respect of any Capital Lease
Obligation allocable to interest expense in accordance with generally
accepted accounting principles; (ii) the amortization of Debt discounts;
(iii) any payments or fees with respect to letters of credit, bankers'
acceptances or similar facilities; (iv) the net amount due and payable, or
minus the net amount receivable, with respect to any interest rate swap or
similar agreement or foreign currency hedge, exchange or similar
agreement; (v) any Preferred Stock dividends declared and paid or payable
in cash; and (v) any interest capitalized in accordance with generally
accepted accounting principles.
"Consolidated Net Income" of any Person means for any period the
consolidated net income (or loss) of such Person and its Consolidated
Subsidiaries for such period determined in accordance with generally
accepted accounting principles; provided that the following shall be
excluded: (a) for purposes solely of calculating Consolidated Net Income
for purposes of clause (3)(a) of the second half of the first paragraph of
subsection 13(d) of Section 1.01 of this Supplemental Indenture the net
income (or loss) of any Person acquired by such Person or a Subsidiary of
such Person in a pooling-of-interests transaction for any period prior to
the date of such transaction, to the extent such net income was
distributed to shareholders of such Person or used to purchase equity
securities of such Person prior to the date of such transaction, (b) the
net income (but not net loss) of any Consolidated Subsidiary of such
Person that is subject to restrictions that prevent the payment of
dividends or the making of distributions to such Person to the extent of
such restrictions, (c) the net income (or loss) of any Person that is not
a Consolidated Subsidiary of such Person except to the extent of the
amount of dividends or other distributions actually paid to such Person by
such other Person during such period, (d) gains or losses on asset
dispositions by such Person or its Consolidated Subsidiaries, (e) any net
income (loss) of a Consolidated Subsidiary that is attributable to a
minority interest in such Consolidated Subsidiary, (f) all extraordinary
gains and extraordinary losses that involve a present or future cash
payment, (g) all non-cash non-recurring charges during such period,
including charges for acquisition related costs, it being understood that:
(A) non-cash recurring charges shall not include accruals for closure and
post closure liabilities and (B) charges, other than charges for the
accruals referred to in (A) above, shall be deemed non-cash charges until
the period that cash disbursements attributable to such charges are made,
at which point such charges shall be deemed cash charges and (h) the tax
effect of any of the items described in Clauses (a) through (g) above.
"Consolidated Subsidiaries" of any Person means all other Persons
that would be accounted for as consolidated Persons in such Person's
financial statements in accordance with generally accepted accounting
principles; provided, however, that, for any particular period during
which any Subsidiary of such Person was an Unrestricted Subsidiary,
"Consolidated Subsidiaries" will exclude such Subsidiary for such period
or portion of such period during which it was an Unrestricted Subsidiary.
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"Consolidated Total Assets" of any Person at any date means the
consolidated total assets of such Person and its Restricted Subsidiaries
at such date as determined on a consolidated basis in accordance with
generally accepted accounting principles.
"Continuing Directors" means, as of any date of determination with
respect to any Person, any member of the Board of Directors of such Person
that:
(1) was a member of such Board of Directors on the date
hereof; or
(2) was nominated for election or elected to such Board of
Directors with the approval of a majority of the Continuing Directors
who were members of such Board at the time of such nomination or
election.
"Custodian" means the Trustee, as custodian with respect to the Notes
in global form, or any successor entity thereto.
"Default" means an event that is, or with the passage of time or the
giving of notice or both would be an Event of Default.
"Definitive Note" means a certificated Note registered in the name of
the Holder thereof and issued in accordance with Section 2.02 of this
Supplemental Indenture, substantially in the form of Exhibit A hereto
except that such Note shall not bear the Global Note Legend and shall not
have the "Schedule of Exchanges of Interests in the Global Note" attached
thereto.
"Depositary" means, with respect to the Notes issuable or issued in
whole or in part in global form, the Person specified in Section 3.1(b) of
the Indenture as the Depositary with respect to the Notes, and any and all
successors thereto appointed as depositary hereunder and having become
such pursuant to the applicable provision of this Supplemental Indenture.
"Designated Noncash Consideration" means: (1) the fair market value
of non-cash consideration received by the Company or one of its Restricted
Subsidiaries in connection with an Asset Disposition that is so designated
as Designated Noncash Consideration pursuant to an Officers' Certificate,
setting forth the basis of such valuation, executed by the principal
executive officer and the principal financial officer of the Company,
minus (2) the amount of cash or Cash Equivalents received in connection
with a sale of such Designated Noncash Consideration.
"Designated Senior Debt" means:
(1) any Indebtedness outstanding under the Bank
Agreement; and
(2) after payment in full of all Obligations under the Bank
Agreement, any other Senior Debt permitted under this Supplemental
Indenture the principal amount of which is $100.0 million or more and
that has been designated by the Company as "Designated Senior Debt."
"Euroclear" means Xxxxxx Guaranty Trust Company of New York,
Brussels office, as operator of the Euroclear system.
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"Excepted Disposition" means a transfer, conveyance, sale, lease or
other disposition by the Company or any Restricted Subsidiary of any asset
of the Company or any Restricted Subsidiary the fair market value of which
itself does not exceed 2.5% of Consolidated Total Assets of the Company
and which, when aggregated with all other assets disposed of in Excepted
Dispositions in any fiscal year, does not exceed 5% of Consolidated Total
Assets of the Company.
"Exchange Notes" means the Notes issued in the Exchange Offer
pursuant to Section 2.02(f) of this Supplemental Indenture.
"Exchange Offer" has the meaning set forth in the Registration
Rights Agreement.
"Exchange Offer Registration Statement" has the meaning set
forth in the Registration Rights Agreement.
"GAAP" means generally accepted accounting principles set forth in
the opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such
other statements by such other entity as have been approved by a
significant segment of the accounting profession, which are in effect on
the date hereof.
"Global Note Legend" means the legend set forth in Section
2.02(g)(ii), which is required to be placed on all Global Notes issued
under this Supplemental Indenture.
"Global Notes" means, individually and collectively, each of the
Restricted Global Notes and the Unrestricted Global Notes, substantially
in the form of Exhibit A hereto issued in accordance with Section 2.01,
2.02(b)(iv), 2.02(d)(ii) or 2.02(f) of this Supplemental Indenture.
"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. "Guaranteed,"
"Guaranteeing" and "Guarantor" shall have meanings correlative to the
foregoing; provided, however, that the Guarantee by any Person shall not
include endorsements for such Person for collection or deposit, in either
case, in the ordinary course of business.
"Holder" means a Person in whose name a Note is registered.
"IAI Global Note" means a Global Note bearing the Private
Placement Legend and held by an Institutional Accredited Investor.
"Indirect Participant" means a Person who holds a beneficial interest
in a Global Note through a Participant.
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"Initial Purchasers" means, with respect to the Notes, Xxxxxxxxx,
Lufkin & Xxxxxxxx Securities Corporation, Chase Securities Inc., Xxxxxxx
Xxxxx Xxxxxx Inc., CIBC World Markets, Credit Suisse First Boston
Corporation, Deutsche Banc Alex. Xxxxx, Xxxxxx Xxxxxxx & Co. Incorporated,
ABN AMRO Incorporated, First Union Capital Markets Corp., Scotia Capital
Markets (USA) Inc., Credit Lyonnais Securities (USA) Inc., Banc One
Capital Markets, Inc. and BancBoston Xxxxxxxxx Xxxxxxxx Inc.
"Institutional Accredited Investor" means an institution that is an
"accredited investor" as defined in Rule 501(a)(1), (2), (3) or (7) under
the Securities Act, who are not also QIBs.
"Insurance Subsidiaries" means Reliant Insurance Company and
Indemnity Corporation, a Vermont corporation and a Subsidiary of the
Company, Global Indemnity Assurance, a Vermont corporation and a
Subsidiary of BFI and Commercial Reassurance Limited, a corporation
organized under the laws of the Republic of Ireland and a Subsidiary of
BFI.
"Intercompany Agreements" means the Management Agreements between AWI
and the Company dated November 15, 1996.
"Interest Rate or Currency Protection Agreement" of any Person means
any interest rate protection agreement (including, without limitation,
interest rate swaps, caps, floors, collars, derivative instruments and
similar agreements), and/or other types of interest hedging agreements and
any currency protection agreement (including foreign exchange contracts,
currency swap agreements or other currency hedging arrangements).
"Investment" by any Person in any other Person means: (i) any direct
or indirect loan, advance or other extension of credit or capital
contribution to or for the account of such other Person, by means of any
transfer of cash or other property to any Person or any payment for
property or services for the account or use of any Person, or otherwise,
(ii) any direct or indirect purchase or other acquisition of any Capital
Stock, bond, note, debenture or other debt or equity security or evidence
of Debt, or any other ownership interest, issued by such other Person,
whether or not such acquisition is from such or any other Person, (iii)
any direct or indirect payment by such Person on a Guarantee of any
obligation of or for the account of such other Person or any direct or
indirect issuance by such Person of such a Guarantee or (iv) any other
investment of cash or other property by such Person in or for the account
of such other Person.
"Letter of Transmittal" means the letter of transmittal to be
prepared by the Company and sent to all Holders of the Notes for use by
such Holders in connection with the Exchange Offer.
"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.
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"Net Available Proceeds" from any Asset Disposition by any Person
that is the Company or any Restricted Subsidiary means cash or readily
marketable cash equivalent received, including by way of sale or
discounting of a note, installment receivable, or other receivable, but
excluding any other consideration received in the form of assumption by
the acquiree of Debt or other obligations relating to such properties or
assets or received in any other noncash form, from such Asset Disposition
by such Person, net of (i) all legal, title and recording tax expenses,
commissions and other fees and expenses Incurred and all federal, state,
provincial, foreign and local taxes required to be accrued as a liability
as a consequence of such Asset Disposition, (ii) all payments made by such
Person or its Restricted Subsidiaries on any Debt that is secured by such
assets in accordance with the terms of any Lien upon or with respect to
such assets or that must, by the terms of such Debt or such Lien, or in
order to obtain a necessary consent to such Asset Disposition, or by
applicable law, be repaid out of the proceeds from such Asset Disposition,
(iii) amounts provided as a reserve by such Person or its Restricted
Subsidiaries, in accordance with generally accepted accounting principles,
against liabilities under any indemnification obligations to the buyer in
such Asset Disposition (except that, to the extent and at the time any
such amounts are released from any such reserve, such amounts shall
constitute Net Available Proceeds) and (iv) all distributions and other
payments made to minority interest holders in Restricted Subsidiaries of
such Person or joint ventures as a result of such Asset Disposition.
"Non-U.S. Person" means a Person who is not a U.S. Person.
"Offer Document" has the meaning specified in the definition of
"Offer to Purchase."
"Offer Expiration Date" has the meaning specified in the
definition of "Offer to Purchase."
"Notes" has the meaning assigned to it in the preamble to this
Supplemental Indenture.
"Offer to Purchase" means an offer, set forth in the Offer Document
sent by the Company by first class mail, postage prepaid, to each Holder
at his or her address appearing in the Note Register on the date of the
Offer Document, to purchase up to the principal amount of Notes specified
in such Offer Document at the purchase price (the "Purchase Price")
specified in such Offer Document (as determined pursuant to this
Supplemental Indenture). Unless otherwise required by applicable law, the
Offer Document shall specify the Offer Expiration Date of the Offer to
Purchase which shall be, subject to any contrary requirements of
applicable law, not less than 30 days or more than 60 days after the date
of such Offer Document and the Purchase Date for the purchase of Notes
within five Business Days after the Offer Expiration Date. The Offer
Document shall be mailed by the Company or, at the Company's request, by
the Trustee in the name and at the expense of the Company. The Offer
Document shall contain information concerning the business of the Company
and its Subsidiaries which the Company in good faith believes will enable
such Holders to make an informed decision with respect to the Offer to
Purchase, which at a minimum will include or incorporated by reference:
(i) the most recent annual and quarterly financial statements and
"Management's Discussion and Analysis of Financial Condition and Results
of Operations" contained in the documents required to be filed with the
Trustee pursuant to subsection 13(i) of Section 1.01 of this Supplemental
Indenture, which
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requirements may be satisfied by delivery of such documents together with
the Offer Document, and (ii) any other information required by applicable
law to be included in the Offer Document. The Offer Document shall contain
all instructions and materials necessary to enable Holders to tender Notes
pursuant to the Offer to Purchase. The Offer Document shall also state:
(1) the Section of this Supplemental Indenture pursuant to which the
Offer to Purchase is being made;
(2) the Offer Expiration Date and the Purchase Date;
(3) the aggregate principal amount of the Outstanding Notes offered
to be purchased by the Company pursuant to the Offer to Purchase
(including, if less than 100%, the manner by which such amount has been
determined as required by this Supplemental Indenture) (the "Purchase
Amount");
(4) the purchase price to be paid by the Company for each $1,000
aggregate principal amount of Notes accepted for payment (as specified
pursuant to this Supplemental Indenture);
(5) that the Holder may tender all or any portion of the Notes
registered in the name of such Holder and that any portion of a Note
tendered must be tendered in an integral multiple of $1,000 principal
amount;
(6) the place or places where Notes are to be surrendered for tender
pursuant to the Offer to Purchase;
(7) that interest on any Note not tendered or tendered but not
purchased by the Company pursuant to the Offer to Purchase will continue
to accrue;
(8) that on the Purchase Date the purchase price will become due and
payable upon each Note accepted for payment pursuant to the Offer to
Purchase and that interest thereon shall cease to accrue on and after the
Purchase Date;
(9) that each Holder electing to tender a Note pursuant to the Offer
to Purchase will be required to surrender such Note at the place or places
specified in the Offer Document prior to the close of business on the
Offer Expiration Date (such Note being, if the Company or the Trustee so
requires, duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Company and the Trustee duly executed
by, the Holder thereof or his attorney duly authorize in writing and
bearing appropriate signature guarantees);
(10) that Holders will be entitled to withdraw all or any portion of
Notes tendered if the Company (or its Paying Agent) receives, not later
than the close of business on the Offer Expiration Date, a telegram,
telex, facsimile transmission or letter setting forth the name of the
Holder, the principal amount of the Note the Holder tendered and a
statement that such Holder is withdrawing all or a portion of his tender;
(11) that (a) if Notes in an aggregate principal amount less than or
equal to the Purchase Amount are duly tendered and not withdrawn pursuant
to the Offer to Purchase,
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the Company shall purchase all such Notes and (b) if Notes in an aggregate
principal amount in excess of the Purchase Amount are tendered and not
withdrawn pursuant to the Offer to Purchase, the Company shall purchase
Notes having an aggregate principal amount equal to the Purchase Amount on
a pro rata basis (with such adjustments as may be deem appropriate so that
only Securities in denominations of $1,000 or integral multiples thereof
shall be purchased); and
(12) that in the case of any Holder whose Note is purchased only in
part, the Company shall execute, and the Trustee shall authenticate and
deliver to the Holder of such Note without service charge, a new Note or
Notes, of any authorized denomination as requested by such Holder, in an
aggregate amount equal to and in exchange for the unpurchased portion of
the Security so tendered.
Any Offer to Purchase shall be governed by and effected in accordance with
the Offer Document for such Offer to Purchase.
"pari passu" when used with respect to the ranking of any Debt of any
Person in relation to other Debt of such Person means that each such Debt:
(a) either (i) is not subordinated in right of payment to any other Debt
of such Person or (ii) is subordinate in right of payment to the same Debt
of such Person as is the other Debt and is so subordinate to the same
extent and (b) is not subordinate in right of payment to the other Debt or
to any Debt of such Person as to which the other Debt is not so
subordinate.
"Participant" means, with respect to the Depositary, Euroclear or
Cedel, a Person who has an account with the Depositary, Euroclear or
Cedel, respectively (and, with respect to DTC, shall include Euroclear and
Cedel).
"Permitted Interest Rate or Currency Protection Agreement" of any
Person means any Interest Rate or Currency Protection Agreement entered
into with one or more financial institutions in the ordinary course of
business that is designed to protect such Person against fluctuations in
interest rates or currency exchange rates with respect to Debt incurred
and which shall have a notional amount no greater than the payments due
with respect to the Debt being hedged thereby.
"Permitted Investment" means (i) Investments in the Company or any
Person that is, or as a consequence of such investment becomes, a
Restricted Subsidiary, (ii) securities either issued directly or fully
guaranteed or insured by the government of the United States of America or
any agency or instrumentality thereof having maturities of not more than
one year, (iii) time deposits and certificates of deposit, demand deposits
and banker's acceptances having maturities of not more than one year from
the date of deposit, of any domestic commercial bank having capital and
surplus in excess of $500 million, (iv) demand deposits made in the
ordinary course of business and consistent with the Company's customary
cash management policy in any domestic office of any commercial bank
organized under the laws of the United States of America or any State
thereof, (v) insured deposits issued by commercial banks of the type
described in Clause (iv) above, (vi) mutual funds whose investment
guidelines restrict such funds' investments primarily to those satisfying
the provisions of Clauses (i) through (iii) above, (vii) repurchase
obligations with a term of not more than 90 days for underlying securities
of the types described in Clauses (ii) and (iii) above entered into with
any bank meeting the qualifications specified in Clause
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(iii) above, (viii) commercial paper (other than commercial paper issued
by an Affiliate or Related Person) rated A-1 or the equivalent of such
rating by Standard & Poor's Ratings Group or P-1 or the equivalent of such
rating by Xxxxx'x Investors Services, Inc., and in each case maturing
within 360 days, (ix) receivables owing to the Company or a Restricted
Subsidiary of the Company if created or acquired in the ordinary course of
business and payable or dischargeable in accordance with customary trade
terms and extensions of trade credit in the ordinary course of business,
(x) any Investment consisting of loans and advances to employees of the
Company or any Restricted Subsidiary for travel, entertainment, relocation
or other expenses in the ordinary course of business, (xi) any Investment
consisting of loans and advances by the Company or any Restricted
Subsidiary to employees, officers and directors of the Company or AWI, in
connection with management incentive plans not to exceed $50,000,000 at
any time outstanding; provided, however, that to the extent the proceeds
thereof are used to purchase Capital Stock (other than Redeemable
Interests) of: (i) the Company from the Company or (ii) AWI from AWI if
AWI uses the proceeds thereof to acquire Capital Stock (other than
Redeemable Interests) of the Company, such limitation on the amount of
such Investments at any time outstanding shall not apply with respect to
such Investments, (xii) any Investment consisting of a Permitted Interest
Rate or Currency Protection Agreement, (xiii) any Investment acquired by
the Company or any of its Restricted Subsidiaries (A) in exchange for any
other Investment or accounts receivable held by the Company or any such
Restricted Subsidiary in connection with or as a result of a bankruptcy,
workout, reorganization or recapitalization of the issuer of such other
Investment or accounts receivable or (B) as a result of a foreclosure by
the Company or any of its Restricted Subsidiaries with respect to any
secured Investment or other transfer of title with respect to any secured
Investment in default, (xiv) any Investment that constitutes part of the
consideration from any Asset Disposition made pursuant to, and in
compliance with, subsection 13(a) of Section 1.01 of this Supplemental
Indenture, (xv) Investments the payment for which consists exclusively of
Capital Stock (exclusive of Redeemable Interests) of the Company, and
(xvi) other Investments in an aggregate amount not to exceed 15% of the
Consolidated Total Assets of the Company outstanding at any time.
"Permitted Liens" means (i) Liens incurred after the date of this
Supplemental Indenture securing Debt of the Company that ranks pari passu
in right of payment to the Notes, if the Notes are secured equally and
ratably with such Debt; (ii) Liens in favor of the Company or any
Restricted Subsidiary; (iii) Liens on property of, or shares of Stock or
evidences of Debt of, a Person existing at the time such Person is merged
into or consolidated with the Company or any Restricted Subsidiary of the
Company, provided that such Liens were not incurred in contemplation of
such merger or consolidation and do not extend to any assets other than
those of the Person merged into or consolidated with the Company or any
Restricted Subsidiary; (iv) Liens on property existing at the time of
acquisition of such property by the Company or any Restricted Subsidiary
of the Company, provided that such Liens were not incurred in
contemplation of such acquisition; (v) Liens existing on the date of this
Supplemental Indenture; (vi) Liens for taxes, assessments or governmental
charges or claims that are not yet delinquent or that are being contested
in good faith by appropriate proceedings promptly instituted and
diligently concluded, provided that any reserve or other appropriate
provision as shall be required in conformity with GAAP shall have been
made therefor; (vii) Liens securing Permitted Refinancing Debt where the
Liens securing the Permitted Refinancing Debt were permitted under this
Supplemental Indenture; (viii) landlords', carriers', warehousemen's,
mechanics',
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materialmen's, repairmen's or the like Liens arising by contract or
statute in the ordinary course of business and with respect to amounts
which are not yet delinquent or are being contested in good faith by
appropriate proceedings; (ix) pledges or deposits made in the ordinary
course of business (A) in connection with leases, performance bonds and
similar obligations, or (B) in connection with workers' compensation,
unemployment insurance and other social security legislation; (x)
easements, rights-of-way, restrictions, minor defects or irregularities in
title and other similar encumbrances which, in the aggregate, do not
materially detract from the value of the property subject thereto or
materially interfere with the ordinary conduct of the business of the
Company or such Restricted Subsidiary; (xi) any attachment or judgment
Lien that does not constitute an Event of Default; (xii) Liens in favor of
the Trustee for its own benefit and for the benefit of the Holders; (xiii)
any interest or title of a lessor pursuant to a lease constituting a
Capital Lease Obligation; (xiv) pledges or deposits made in connection
with acquisition agreements or letters of intent entered into in respect
of a proposed acquisition; (xv) Liens in favor of prior holders of leases
on property acquired by the Company or of sublessors under leases on
Company property; (xvi) Liens incurred or deposits made to secure the
performance of tenders, bids, leases, statutory or regulatory obligations,
banker's acceptances, surety and appeal bonds, government contracts,
performance and return-of-money bonds and other obligations of a similar
nature incurred in the ordinary course of business (exclusive of
obligations for the payment of borrowed money); (xvii) Liens, including
extensions and renewals thereof upon real or personal property acquired
after the date of the Supplemental Indenture; provided that: (a) any such
Lien is created solely for the purpose of securing Debt incurred, in
accordance with subsection 13(c) of Section 1.01 of this Supplemental
Indenture (1) to finance the cost (including the cost of improvement or
construction) of the item, property or assets subject to such Lien, and
such Lien is created prior to, at the time of or within three months after
the later of the acquisition, the completion of construction or the
commencement of full operation of such property or (2) to refinance any
Debt previously so secured, (b) the principal amount of the Debt secured
by such Lien does not exceed 100% of such cost and (c) any such Lien shall
not extend to or cover any property or asset other than such item of
property or assets and any improvements on such item; (xviii) leases or
subleases granted to others that do not materially interfere with the
ordinary course of business of the Company and its Restricted
Subsidiaries, taken as a whole; (xix) Liens arising from filing Uniform
Commercial Code financing statements regarding leases; (xx) Liens on
property of, or on shares of stock or Debt of, any Person existing at the
time such Person becomes, or becomes a part of, any Restricted Subsidiary,
provided that such Liens do not extend to or cover any property or assets
of the Company or any Restricted Subsidiary other than the property or
assets acquired; (xxi) Liens encumbering deposits securing Debt under
Permitted Interest Rate Currency or Commodity Price Agreements; (xxii)
Liens arising out of conditional sale, title retention, consignment or
similar arrangements for the sale of goods entered into by the Company or
any of its Restricted Subsidiaries in the ordinary course of business in
accordance with the past practices of the Company and its Restricted
Subsidiaries; (xxiii) any renewal of or substitution of any Liens
permitted by any of the preceding clauses, provided that (a) the Debt
secured is not increased other than by the amount of any premium and
accrued interest, plus customary fees, consent payments, expenses and
costs related to such renewal or substitution of Liens or the incurrence
of any related refinancing of Debt and (b) the Liens are not extended to
any additional assets (other than proceeds and accessions; (xxiv) Liens
incurred in the ordinary course of business of the Company or any
Restricted Subsidiary of the Company with respect to obligations that do
not exceed $50 million at any one time outstanding and that (a) are not
incurred in connection with the
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borrowing of money or the obtaining of advances or credit (other than
trade credit in the ordinary course of business) and (b) do not in the
aggregate materially detract from the value of the property or materially
impair the use thereof in the operation of business by the Company or such
Restricted Subsidiary; and (xxv) Liens on assets of Unrestricted
Subsidiaries that secure non-recourse Debt of Unrestricted Subsidiaries.
This definition does not authorize the incurrence of any Debt not
otherwise permitted by subsection 13(c) of Section 1.01 of this
Supplemental Indenture.
"Permitted Transferee" means, with respect to any Person: (i) any
Affiliate of such Person; (ii) any investment manager, investment advisor,
or constituent general partner of such Person; or (iii) any investment
fund, investment account, or investment entity that is organized by such
Person or its Affiliates and whose investment manager, investment advisor,
or constituent general partner is such Person or a Permitted Transferee of
such Person.
"Preferred Stock", as applied to the Capital Stock of any Person,
means Capital Stock of such Person of any class or classes (however
designated) that ranks prior, as to the payment of dividends or as to the
distribution of assets upon any voluntary or involuntary liquidation,
dissolution or winding up of such Person, to shares of Capital Stock of
any other class of such Person.
"Private Placement Legend" means the legend set forth in Section
2.02(g)(i) to be placed on all Notes issued under this Supplemental
Indenture except where otherwise permitted by the provisions of this
Supplemental Indenture.
"Public Offering" means any underwritten public offering of Common
Stock pursuant to a registration statement filed under the Securities Act.
"Purchase Date" means a settlement for the purchase of Notes within
five Business Days after the Offer Expiration Date.
"QIB" means a "qualified institutional buyer" as defined in
Rule 144A.
"Reference Treasury Dealer", means Xxxxxxxxx, Lufkin & Xxxxxxxx
Securities Corporation and its successors, provided, however, that if any
of the foregoing shall cease to be a primary U.S. Government securities
dealer in New York City (a "Primary Treasury Dealer"), the Company shall
substitute therefor another Primary Treasury Dealer.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any redemption date, the average, as
determined by the Trustee, of the bid and asked prices for the Comparable
Treasury Issue, expressed in each case as a percentage of its principal
amount, quoted in writing to the Trustee by such Reference Treasury Dealer
at 5:00 p.m. on the third business day preceding such Redemption Date.
"Registration Rights Agreement" means the Registration Rights
Agreement for the Notes, dated as of July 30, 1999, by and among the
Company and the other parties named on the signature pages thereof, as
such agreement may be amended, modified or supplemented from time to time.
"Regulation S" means Regulation S promulgated under the
Securities Act.
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"Regulation S Global Note" means a global Note bearing the Private
Placement Legend and deposited with or on behalf of the Depositary and
registered in the name of the Depositary or its nominee, issued in a
denomination equal to the outstanding principal amount of the Notes
initially sold in reliance on Rule 903 of Regulation S.
"Related Business" means a business substantially similar to the
business engaged in by the Company and its Subsidiaries on the date of
this Supplemental Indenture.
"Related Person" of any Person means, without limitation, any other
Person owning (a) 5% or more of the outstanding Common Stock of such
Person or (b) 5% or more of the Voting Stock of such Person.
"Restricted Definitive Note" means a Definitive Note bearing
the Private Placement Legend.
"Restricted Global Note" means a Global Note bearing the
Private Placement Legend.
"Restricted Period" means the 40-day restricted period as
defined in Regulation S.
"Rule 144" means Rule 144 promulgated under the Securities Act.
"Rule 144A" means Rule 144A promulgated under the Securities
Act.
"Rule 903" means Rule 903 promulgated under the Securities Act.
"Rule 904" means Rule 904 promulgated the Securities Act.
"Senior Convertible Preferred Stock" means the senior convertible
preferred stock with an initial liquidation preference of $1.0 billion
issued pursuant to a Certificate of Designations of AWI as such
Certificate of Designations is in effect on the date of this Supplemental
Indenture as modified from time to time; provided that such modifications
do not increase the amount of dividends paid or payable in respect
thereof.
"Senior Debt" means (1) all Indebtedness of the Company or any
Guarantor outstanding under the Bank Agreement and all Permitted Interest
Rate or Currency Protection Agreements with respect thereto, unless the
instrument under which such Indebtedness is incurred expressly provides
that it is on parity with or subordinated in right of payment to the Notes
or any Guarantee or subordinated to any other Debt of the Company or any
Guarantor; (2) any other Indebtedness of the Company or any Guarantor
permitted to be incurred under the terms of this Supplemental Indenture,
unless the instrument under which such Indebtedness is incurred expressly
provides that it is on parity with or subordinated in right of payment to
the Notes of any Guarantee or subordinated to any other Debt of the
Company or any Guarantor; and (3) all Obligations with respect to the
items listed in the preceding clauses (1) and (2). Notwithstanding
anything to the contrary in the preceding, Senior Debt shall not include:
(1) any liability for federal, state, local, or other taxes owed or owing
by the Company; (2) any Indebtedness of the Company to any of its
Subsidiaries or other Affiliates; (3) any trade payables; or (4) the
portion of any Indebtedness that is incurred in violation of this
Supplemental Indenture.
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"Shelf Registration Statement" means the Shelf Registration
Statement as defined in the Registration Rights Agreement.
"Special Interest" means all liquidated damages then owing pursuant
to Section 5 of the Registration Rights Agreement.
"Subsidiary" of any Person means: (1) a corporation of which more
than 50% of the combined voting power of the outstanding Voting Stock is
owned, directly or indirectly, by such Person or by one or more other
Subsidiaries of such Person or by such Person and one of more Subsidiaries
thereof, (2) a partnership of which such Person, or one or more other
Subsidiaries of such Person or such Person and one or more other
Subsidiaries thereof, directly or indirectly, is the general partner and
has the power to direct the policies, management and affairs, or (3) any
other Person, other than a corporation, in which such Person or one or
more other Subsidiaries of such Person or such Person and one or more
other Subsidiaries thereof, directly or indirectly, has at least a
majority ownership interest and power to direct the policies, management
and affairs thereof.
"Tranche D Term Loans" means the Tranche D Term Loans issued under
the Bank Agreement as in effect on the date of this Supplemental Indenture
in an aggregate principal amount not in excess of $500 million.
"Treasury Yield" means with respect to any Redemption Date, the rate
per annum equal to the semi-annual equivalent yield to maturity of the
Comparable Treasury Issue, assuming a price for the Comparable Treasury
Issue (expressed as a percentage of its principal amount) equal to the
Comparable Treasury Price for such Redemption Date.
"U.S. Person" means a U.S. person as defined in Rule 902(o)
under the Securities Act.
"Unrestricted Definitive Note" means one or more Definitive Notes
that do not bear and are not required to bear the Private Placement
Legend.
"Unrestricted Global Note" means a permanent global Note
substantially in the form of Exhibit A attached hereto that bears the
Global Note Legend and that has the "Schedule of Exchanges of Interests in
the Global Note" attached thereto, and that is deposited with or on behalf
of and registered in the name of the Depositary, representing a series of
Notes that do not bear the Private Placement Legend.
"Unrestricted Subsidiary" means (i) at any date, a Subsidiary of the
Company that is an Unrestricted Subsidiary in accordance with the
provisions of subsection 13(j) of Section 1.01 hereof and (ii) for any
period, a Subsidiary of the Company that for any portion of such period is
an Unrestricted Subsidiary in accordance with the provisions of subsection
13(j) of Section 1.01 hereof provided that such term shall mean such
Subsidiary only for such portion of such period.
"Voting Stock" of any Person means Capital Stock of such Person that
ordinarily has voting power for the election of directors (or persons
performing similar functions) of such Person, whether at all times or only
so long as no senior class of securities has such voting power by reason
of any contingency.
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ARTICLE IV.
MISCELLANEOUS
SECTION 4.01. DEFINITIONS. Capitalized terms used but not defined in
this Supplemental Indenture shall have the meanings ascribed thereto in the
Indenture.
SECTION 4.02. CONFIRMATION OF INDENTURE. The Indenture, as modified,
supplemented and superseded by this Supplemental Indenture, is in all respects
ratified and confirmed, and the Indenture and this Supplemental Indenture shall
be read, taken and construed as one and the same instrument. (References herein
to the Indenture shall be deemed to be to the Indenture, as modified,
supplemented and superseded by this Supplemental Indenture).
SECTION 4.03. CONCERNING THE TRUSTEE. The Trustee assumes no duties,
responsibilities or liabilities by reason of this Supplemental Indenture other
than as set forth in the Indenture and, in carrying out its responsibilities
hereunder, shall have all of the rights, protections and immunities which it
possesses under the Indenture.
SECTION 4.04. GOVERNING LAW. This Supplemental Indenture, the Indenture
and the Notes shall be governed by and construed in accordance with the law of
the State of New York without giving effect to any provisions thereof relating
to conflicts of law.
SECTION 4.05. SEPARABILITY. In case any provision in this Supplemental
Indenture shall for any reason be held to 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 4.06. COUNTERPARTS. This Supplemental 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.
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.
ALLIED WASTE NORTH AMERICA, INC.
By: /s/ G. Xxxxxx Xxxxxxxx, Xx.
-----------------------------------
Name: G. Xxxxxx Xxxxxxxx, Xx.
Title: Treasurer
ALLIED WASTE INDUSTRIES, INC.
for purposes of Article 16 of the
Indenture and as Guarantor of the
Securities and as Guarantor of the
obligations of the Subsidiary Guarantors
under the Subsidiary Guarantees
By: /s/ G. Xxxxxx Xxxxxxxx, Xx.
-----------------------------------
Name: G. Xxxxxx Xxxxxxxx, Xx.
Title: Treasurer
Each of the Subsidiary Guarantors Listed
on Schedule I hereto, as Guarantor of
the Securities
By*: /s/ G. Xxxxxx Xxxxxxxx, Xx.
-----------------------------------
Name: G. Xxxxxx Xxxxxxxx, Xx.
Title: Treasurer
U.S. BANK TRUST NATIONAL ASSOCIATION
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Assistant Vice President
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48
EXHIBIT A
[Face of Note]
CUSIP/CINS ____________
10% SERIES A SENIOR SUBORDINATED NOTES DUE 2009
No. ______ $____________
ALLIED WASTE NORTH AMERICA, INC.
promises to pay to Cede & Co.,
or registered assigns,
the principal sum of ________________________________________________
Dollars on May 1, 2009.
Interest Payment Dates: May 1 and November 1, commencing November 1, 1999
Record Dates: April 15 and October 15
Dated: July 30, 0000
XXXXXX XXXXX XXXXX XXXXXXX, INC.
By:_______________________________
Name:
Title:
This is one of the Notes referred to in the within-mentioned Indenture:
U.S. BANK TRUST NATIONAL ASSOCIATION,
as Trustee
By:
________________________________________
Authorized Signatory
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EXHIBIT A
[Back of Note]
10% SERIES A SENIOR SUBORDINATED NOTES DUE 2009
[Insert the Global Note Legend, if applicable pursuant to the
provisions of the Indenture]
[Insert the Regulation S Note Legend, if applicable, pursuant to the
provision of the Indenture]
[Insert the Private Placement Legend, if applicable pursuant to the
provisions of the Indenture]
Capitalized terms used herein shall have the meanings assigned to them
in the Indenture referred to below unless otherwise indicated.
1. INTEREST. Allied Waste North America, Inc., a Delaware corporation
(the "Company"), promises to pay interest on the principal amount of this Note
at 10% per annum from the date hereof until maturity and shall pay the Special
Interest, if any, payable pursuant to Section 5 of the Registration Rights
Agreement referred to below. The Company will pay interest and Special Interest
semi-annually in arrears on May 1 and November 1 of each year beginning November
1, 1999, or if any such day is not a Business Day, on the next succeeding
Business Day (each an "Interest Payment Date"). Interest on the Notes will
accrue from the most recent date to which interest has been paid or, if no
interest has been paid, from the date of issuance; provided that if there is no
existing Default in the payment of interest, and if this Note is authenticated
between a record date referred to on the face hereof and the next succeeding
Interest Payment Date, interest shall accrue from such next succeeding Interest
Payment Date; provided, further, that the first Interest Payment Date shall be
November 1, 1999. The Company shall pay interest (including post-petition
interest in any proceeding under any Bankruptcy Law) on overdue principal and
premium, if any, from time to time on demand at a rate that is 2% per annum in
excess of the rate then in effect; it shall pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on overdue
installments of interest and Special Interest, if any, from time to time on
demand at the same rate to the extent lawful. Interest will be computed on the
basis of a 360 day year of twelve 30 day months.
2. METHOD OF PAYMENT. The Company will pay interest on the Notes
(except defaulted interest) and Special Interest, if any, to the Persons who are
registered Holders of Notes at the close of business on the April 15 or October
15 next preceding the Interest Payment Date, even if such Notes are canceled
after such record date and on or before such Interest Payment Date, except as
provided in Section 3.7(b) of the Indenture with respect to defaulted interest.
The Notes will be payable as to principal, premium and Special Interest, if any,
and interest at the office or agency of the Company maintained for such purpose
within or without the City and State of New York, or, at the option of the
Company, payment of interest and Special Interest, if any, may be made by check
mailed to the Holders at their addresses set forth in the register of Holders,
and provided that payment by wire transfer of immediately available funds will
be required with respect to principal of and interest, premium and Special
Interest on, all Global Notes and all other Notes the Holders of which shall
have provided wire transfer instructions to the Company or the Paying Agent at
least 10 Business Days prior to the applicable payment date. Such payment shall
be in such coin or currency of the United States of America as at the time of
payment is legal tender for payment of public and private debts.
3. PAYING AGENT AND REGISTRAR. Initially, U.S. Bank Trust National
Association, the Trustee under the Indenture, will act as Paying Agent and
Registrar. The Company may change any Paying Agent
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EXHIBIT A
or Registrar without notice to any Holder. The Company or any of its
Subsidiaries may act in any such capacity.
4. INDENTURE. The Company issued the Notes under an Indenture dated as
of July 30, 1999, as amended by the Supplemental Indenture dated as of July 30,
1999 (together, the "Indenture"), each among the Company, the Guarantors and the
Trustee. The terms of the Notes include those stated in the Indenture and those
made part of the Indenture by reference to the Trust Indenture Act of 1939, as
amended (15 U.S. Code Sections 77aaa 77bbbb). The Notes are subject to all
such terms, and Holders are referred to the Indenture and such Act for a
statement of such terms. To the extent any provision of this Note conflicts with
the express provisions of the Indenture, the provisions of the indenture shall
govern and be controlling. The Notes are obligations of the Company limited to
$2.0 billion in aggregate principal amount.
5. SUBORDINATION. The Notes are subordinated to Senior Debt, as defined
in the Supplemental Indenture. To the extent provided in the Supplemental
Indenture, Senior Debt must be paid in full before any payment may be made in
respect of the Notes or any other Obligation in respect of Senior Debt. Each
Holder by accepting a Note agrees to the subordination provisions contained in
the Indenture and authorizes the Trustee to give it effect and appoints the
Trustee as attorney-in-fact for such purpose. The Indenture also provides that,
under certain circumstances, the Company will be prohibited from making any
payments in respect of the Notes or any other Obligation in respect of Senior
Debt if the Company is in default on any Senior Debt.
6. OPTIONAL REDEMPTION.
(a) Except as set forth in subparagraphs (b), (c) and (d) of this
Paragraph 5, the Company shall not have the option to redeem the Notes prior to
the final maturity of such Notes.
(b) Notwithstanding the provisions of subparagraph (a) of this
Paragraph 5, prior to August 1, 2004 the Company may redeem Notes, at its
option, upon not less than 30 nor more than 60 days' notice mailed to each
Holder of Notes to be redeemed at such Holder's address appearing in the Note
Register, in amounts of $1,000 or an integral multiple of $1,000, at a
Redemption Price equal to the greater of (i) 100% of their principal amount or
(ii) the sum of the present values of the remaining scheduled payments of
principal and interest thereon discounted to maturity on a semi-annual basis
(assuming a 360-day year consisting of twelve 30-day months) at the Treasury
Yield plus 50 basis points, plus in each case accrued but unpaid interest
(including Special Interest) to but excluding the Redemption Date (subject to
the right of Holders of record on the relevant Regular Record Date to receive
interest due on an Interest Payment Date that is on or prior to the Redemption
Date).
(c) Prior to August 1, 2002, the Company may redeem up to 33 1/3%
in aggregate principal amount of the Notes originally issued under the indenture
at a redemption price equal to 110.0% of the principal amount of the Notes
redeemed, together with accrued but unpaid interest (including Special Interest)
to the redemption date (subject to the right of Holders of record on the
relevant regular record date to receive interest due on an interest payment date
that is on or prior to the redemption date) with the net proceeds of one or more
Public Offerings of Capital Stock (other than Redeemable Interests); provided
that the notice of redemption with respect to any such redemption is mailed
within 30 days following the closing of the corresponding public offering.
(d) On or after August 1, 2004 the Notes will be subject to
redemption, in whole or in part, at the option of the Company at any time prior
to maturity, upon not less than 30 nor more than 60 days'
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EXHIBIT A
notice mailed to each Holder of Notes to be redeemed at such Holder's address
appearing in the register of Holders, in amounts of $1,000 or an integral
multiple of $1,000 at the following Redemption Prices, expressed as percentages
of principal amount, plus accrued but unpaid interest (including Special
Interest) to but excluding the Redemption Date (subject to the right of Holders
of record on the relevant Regular Record Date to receive interest due on an
Interest Payment Date that is on or prior to the Redemption Date), if redeemed
during the twelve-month period beginning on August, of each of the years
indicated below:
Year Percentage
2004.............................................................. 105.0000%
2005.............................................................. 103.3333%
2006.............................................................. 101.6667%
2007 and thereafter............................................... 100.0000%
7. MANDATORY REDEMPTION. Except as set forth in paragraph 7 below, the
Company shall not be required to make mandatory redemption payments with respect
to the Notes.
8. REPURCHASE AT OPTION OF HOLDER. The Indenture provides that, subject
to certain conditions, if (i) certain Net Available Proceeds are available to
the Company as a result of Asset Dispositions or (ii) a Change of Control
occurs, the Company shall be required to make an Offer to Purchase for all or a
specified portion of the Securities.
9. NOTICE OF REDEMPTION. Notice of redemption will be mailed at least
30 but not more than 60 days before the redemption date to each Holder whose
Notes are to be redeemed at its registered address. Notes in denominations
larger than $1,000 may be redeemed in part but only in whole multiples of
$1,000, unless all of the Notes held by a Holder are to be redeemed. On and
after the redemption date interest ceases to accrue on Notes or portions thereof
called for redemption.
10. DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in registered form
without coupons in denominations of $1,000 and integral multiples of $1,000. The
transfer of Notes may be registered and Notes may be exchanged as provided in
the Indenture. The Registrar and the Trustee may require a Holder, among other
things, to furnish appropriate endorsements and transfer documents and the
Company may require a Holder to pay any taxes and fees required by law or
permitted by the Indenture. The Company need not exchange or register the
transfer of any Note or portion of a Note selected for redemption, except for
the unredeemed portion of any Note being redeemed in part. Also, the Company
need not exchange or register the transfer of any Notes for a period of 15 days
before a selection of Notes to be redeemed or during the period between a record
date and the corresponding Interest Payment Date.
11. PERSONS DEEMED OWNERS. The registered Holder of a Note may be
treated as its owner for all purposes.
12. AMENDMENT, SUPPLEMENT AND WAIVER. The Indenture permits, with
certain exceptions as therein provided, the amendment thereof and the
modification of the rights and obligations of the Company and the Guarantors and
the rights of the Holders of the Securities under the Indenture at any time by
the Company, the Guarantors and the Trustee with the consent of the Holders of a
majority in aggregate principal amount of the Notes at the time.
-4-
52
EXHIBIT A
13. DEFAULTS AND REMEDIES. Events of Default include: (i) failure to
pay any interest on any note issued under the indenture when due, continued for
30 days, whether or not prohibited by the subordination provisions of the
indenture; (ii) failure to pay principal of or premium, if any, on any note
issued under the indenture when due, whether or not prohibited by the
subordination provisions of the indenture, (iii) failure to perform or to comply
with subsections 13(a), or 13(b) of Section 1.01 of the Supplemental Indenture
or Article 7 of the Indenture (as superseded by Subsection 15 of Section 1.01 of
the Supplemental Indenture); (iv) failure to perform any other covenant or
warranty of the Company or any Guarantor in the indenture or the Notes issued
under the indenture, continued for 60 days after written notice from Holders of
at least 10% in principal amount of the Outstanding Notes issued under the
indenture as provided in the indenture; (v) a default or defaults under any
bonds, debentures, notes or other evidences of, or obligations constituting,
Debt by the Company, any Guarantors or any Restricted Subsidiary 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 the
Company, the Guarantor or any Restricted Subsidiary with a principal or similar
amount then outstanding, individually or in the aggregate, in excess of $50
million (whether such Debt now exists or is hereafter 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 to such Debt, or will have resulted in such Debt
becoming or being declared due and payable prior to the date on which it would
otherwise have become due and payable; (vi) the rendering of a final judgment or
judgments, not subject to appeal, against the Company, the Parent Guarantor or
any of its Restricted Subsidiaries in an aggregate amount in excess of $50
million that remains unstayed, undischarged or unbonded for a period of 60 days
after such rendering; and (vii) certain events of bankruptcy, insolvency or
reorganization affecting the Company, AWI or any Restricted Subsidiary of the
Company. If any Event of Default (other than an Event of Default of the type
described in clause (vii) above) occurs and is continuing, the Trustee or the
Holders of at least 25% in principal amount of the then outstanding Notes may
accelerate the maturity of all such Notes. If an Event of Default of the type
described in clause (vii) above occurs, the principal of any accrued interest on
the Outstanding Notes will become immediately due an payable provided, however,
that after such acceleration, but before a judgment or decree based on
acceleration, the Holders of a majority in aggregate principal amount of
Outstanding Notes may, under certain circumstances, rescind and annul such
acceleration if all Events of Default, other than the non-payment of accelerated
principal, have been cured or waived as provided in the Indenture. Holders may
not enforce the Indenture or the Notes except as provided in the Indenture.
Subject to certain limitations, Holders of a majority in principal amount of the
then outstanding Notes may direct the Trustee in its exercise of any trust or
power. The Trustee may withhold from Holders of the Notes notice of any
continuing Default or Event of Default (except a Default or Event of Default
relating to the payment of principal or interest) if it determines that
withholding notice is in their interest. The Holders of a majority in aggregate
principal amount of the Outstanding Notes by notice to the Trustee may on behalf
of the Holders of all of the Notes waive any existing Default or Event of
Default and its consequences under the Indenture except a continuing Default or
Event of Default in the payment of interest on, or the principal of, the Notes.
The Company is required to deliver to the Trustee annually a statement regarding
compliance with the Indenture, and the Company is required upon becoming aware
of any Default or Event of Default, to deliver to the Trustee a statement
specifying such Default or Event of Default.
14. TRUSTEE DEALINGS WITH COMPANY. The Trustee, in its individual or
any other capacity, may make loans to, accept deposits from, and perform
services for the Company or its Affiliates, and may otherwise deal with the
Company or its Affiliates, as if it were not the Trustee.
-5-
53
EXHIBIT A
15. NO RECOURSE AGAINST OTHERS. A director, officer, employee,
incorporator or stockholder, of the Company, as such, shall not have any
liability for any obligations of the Company under the Notes or the Indenture or
for any claim based on, in respect of, or by reason of, such obligations or
their creation. Each Holder by accepting a Note waives and releases all such
liability. The waiver and release are part of the consideration for the issuance
of the Notes.
16. AUTHENTICATION. This Note shall not be valid until authenticated by
the manual signature of the Trustee or an authenticating agent.
17. ABBREVIATIONS. Customary abbreviations may be used in the name of a
Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts
to Minors Act).
18. ADDITIONAL RIGHTS OF HOLDERS OF RESTRICTED GLOBAL NOTES AND
RESTRICTED DEFINITIVE NOTES. In addition to the rights provided to Holders of
Notes under the Indenture, Holders of Restricted Global Notes and Restricted
Definitive Notes shall have all the rights set forth in the Registration Rights
Agreement relating to the Notes dated as of July 30, 1999, among the Company,
the Guarantors and the parties named on the signature pages thereof (the
"Registration Rights Agreement").
19. CUSIP NUMBERS. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Company has caused
CUSIP numbers to be printed on the Notes and the Trustee may use CUSIP numbers
in notices of redemption as a convenience to Holders. No representation is made
as to the accuracy of such numbers either as printed on the Notes or as
contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.
The Company will furnish to any Holder upon written request and without
charge a copy of the Indenture and/or the Registration Rights Agreement.
Requests may be made to:
ALLIED WASTE NORTH AMERICA, INC.
00000 Xxxxx Xxxxxxxx - Xxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Attention: Treasurer
-6-
54
EXHIBIT A
ASSIGNMENT FORM
To assign this Note, fill in the form below:
(I) or (we) assign and transfer this Note to: _________________________________
(Insert assignee's legal name)
_______________________________________________________________________________
(Insert assignee's soc. sec. or tax I.D. no.)
_______________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint _______________________________________________________
to transfer this Note on the books of the Company. The agent may substitute
another to act for him.
Date:___________________
Your Signature: _____________________________________________
(Sign exactly as your name appears on the face of this Note)
Signature Guarantee: __________________________________________________________
-7-
55
EXHIBIT A
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company
pursuant to subsection 13(a) or 13(b) of Section 1.01 of the Supplemental
Indenture, check the appropriate box below:
/ / Subsection 13(a) / / Subsection 13(b)
If you want to elect to have only part of the Note purchased by the
Company pursuant to subsection 13(a) or Section 13(b) of Section 1.01 of the
Supplemental Indenture, state the amount you elect to have purchased:
$________________
Date: ______________
Your Signature:______________________
(Sign exactly as your name appears on the face of this Note)
Tax Identification No.: _______________
Signature Guarantee:____________________
-8-
56
EXHIBIT A
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE
The following exchanges of a part of this Global Note for an interest
in another Global Note or for a Definitive Note, or exchanges of a part of
another Global Note or Definitive Note for an interest in this Global Note, have
been made:
Principal Amount of
this Global Note Signature of
Amount of decrease Amount of increase in following such authorized officer
in Principal Amount Principal Amount of decrease (or of Trustee or Note
Date of Exchange of this Global Note this Global Note increase) Custodian
-9-
57
EXHIBIT B
FORM OF CERTIFICATE OF TRANSFER
Allied Waste North America, Inc.
00000 Xxxxx Xxxxxxxx - Xxxxxx Xxxx, Xxxxx 000
Scottsdale, Arizona 85260
U.S. Bank Trust National Association
000 Xxxx 0xx Xxxxxx
Xx. Xxxx, XX 00000
Re: 10% Senior Subordinated Notes due 2009
Reference is hereby made to the Indenture, dated as of July 30, 1999,
as amended by that Supplemental Indenture, dated as of July 30, 1999
(collectively, the "Indenture"), between Allied Waste North America, Inc., as
issuer (the "Company"), and U.S. Bank Trust National Association, as trustee.
Capitalized terms used but not defined herein shall have the meanings given to
them in the Indenture.
___________________ (the "Transferor") owns and proposes to transfer
the Note[s] or interest in such Note[s] specified in Annex A hereto, in the
principal amount of $___________ in such Note[s] or interests (the "Transfer"),
to ___________________________ (the "Transferee"), as further specified in Annex
A hereto. In connection with the Transfer, the Transferor hereby certifies that:
[CHECK ALL THAT APPLY]
1. / / CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST
IN THE 144A GLOBAL NOTE OR A DEFINITIVE NOTE PURSUANT TO RULE 144A. The Transfer
is being effected pursuant to and in accordance with Rule 144A under the United
States Securities Act of 1933, as amended (the "Securities Act"), and,
accordingly, the Transferor hereby further certifies that the beneficial
interest or Definitive Note is being transferred to a Person that the Transferor
reasonably believed and believes is purchasing the beneficial interest or
Definitive Note for its own account, or for one or more accounts with respect to
which such Person exercises sole investment discretion, and such Person and each
such account is a "qualified institutional buyer" within the meaning of Rule
144A in a transaction meeting the requirements of Rule 144A and such Transfer is
in compliance with any applicable blue sky securities laws of any state of the
United States. Upon consummation of the proposed Transfer in accordance with the
terms of the Indenture, the transferred beneficial interest or Definitive Note
will be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the 144A Global Note and/or the Definitive Note and
in the Indenture and the Securities Act.
2. / / CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST
IN THE REGULATION S GLOBAL NOTE OR A DEFINITIVE NOTE PURSUANT TO REGULATION S.
The Transfer is being effected pursuant to and in accordance with Rule 903 or
Rule 904 under the Securities Act and, accordingly, the Transferor hereby
further certifies that (i) the Transfer is not being made to a person in the
United States and (x) at the time the buy order was originated, the Transferee
was outside the United States or such Transferor and any Person acting on its
behalf reasonably believed and believes that the Transferee was outside the
United States or (y) the transaction was executed in, on or through the
facilities of a designated offshore securities market and neither such
Transferor nor any Person acting on its behalf knows that the transaction was
prearranged with a buyer in the United States, (ii) no directed selling efforts
have been made in contravention of the requirements of Rule 903(b) or Rule
904(b) of Regulation S under the Securities Act, (iii) the transaction is not
part of a plan or scheme to evade the registration requirements of the
Securities
-1-
58
EXHIBIT B
Act and (iv) if the proposed transfer is being made prior to the expiration of
the Restricted Period, the transfer is not being made to a U.S. Person or for
the account or benefit of a U.S. Person (other than an Initial Purchaser). Upon
consummation of the proposed transfer in accordance with the terms of the
Indenture, the transferred beneficial interest or Definitive Note will be
subject to the restrictions on Transfer enumerated in the Private Placement
Legend printed on the Regulation S Global Note and/or the Definitive Note and in
the Indenture and the Securities Act.
3. / / CHECK AND COMPLETE IF TRANSFEREE WILL TAKE DELIVERY OF A
BENEFICIAL INTEREST IN THE IAI GLOBAL NOTE OR A DEFINITIVE NOTE PURSUANT TO ANY
PROVISION OF THE SECURITIES ACT OTHER THAN RULE 144A OR REGULATION S. The
Transfer is being effected in compliance with the transfer restrictions
applicable to beneficial interests in Restricted Global Notes and Restricted
Definitive Notes and pursuant to and in accordance with the Securities Act and
any applicable blue sky securities laws of any state of the United States, and
accordingly the Transferor hereby further certifies that (check one):
(a) / / such Transfer is being effected pursuant to and in
accordance with Rule 144 under the Securities Act;
or
(b) / / such Transfer is being effected to the Company or a
subsidiary thereof;
or
(c) / / such Transfer is being effected pursuant to an
effective registration statement under the Securities Act and in compliance with
the prospectus delivery requirements of the Securities Act;
or
(d) / / such Transfer is being effected to an Institutional
Accredited Investor and pursuant to an exemption from the registration
requirements of the Securities Act other than Rule 144A, Rule 144 or Rule 904,
and the Transferor hereby further certifies that it has not engaged in any
general solicitation within the meaning of Regulation D under the Securities Act
and the Transfer complies with the transfer restrictions applicable to
beneficial interests in a Restricted Global Note or Restricted Definitive Notes
and the requirements of the exemption claimed, which certification is supported
by (1) a certificate executed by the Transferee in the form of Exhibit D to the
Indenture and (2) an Opinion of Counsel provided by the Transferor or the
Transferee (a copy of which the Transferor has attached to this certification),
to the effect that such Transfer is in compliance with the Securities Act. Upon
consummation of the proposed transfer in accordance with the terms of the
Indenture, the transferred beneficial interest or Definitive Note will be
subject to the restrictions on transfer enumerated in the Private Placement
Legend printed on the IAI Global Note and/or the Definitive Notes and in the
Indenture and the Securities Act.
4. / / CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST
IN AN UNRESTRICTED GLOBAL NOTE OR OF AN UNRESTRICTED DEFINITIVE NOTE.
(a)/ / CHECK IF TRANSFER IS PURSUANT TO RULE 144. (i) The
Transfer is being effected pursuant to and in accordance with Rule 144 under the
Securities Act and in compliance with the transfer restrictions contained in the
Indenture and any applicable blue sky securities laws of any state of the United
-2-
59
EXHIBIT B
States and (ii) the restrictions on transfer contained in the Indenture and the
Private Placement Legend are not required in order to maintain compliance with
the Securities Act. Upon consummation of the proposed Transfer in accordance
with the terms of the Indenture, the transferred beneficial interest or
Definitive Note will no longer be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the Restricted Global
Notes, on Restricted Definitive Notes and in the Indenture.
(b) / / CHECK IF TRANSFER IS PURSUANT TO REGULATIONS. (i) The
Transfer is being effected pursuant to and in accordance with Rule 903 or Rule
904 under the Securities Act and in compliance with the transfer restrictions
contained in the Indenture and any applicable blue sky securities laws of any
state of the United States and (ii) the restrictions on transfer contained in
the Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act. Upon consummation of the proposed
Transfer in accordance with the terms of the Indenture, the transferred
beneficial interest or Definitive Note will no longer be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on
the Restricted Global Notes, on Restricted Definitive Notes and in the
Indenture.
(c) / / CHECK IF TRANSFER IS PURSUANT TO OTHER EXEMPTION. (i)
The Transfer is being effected pursuant to and in compliance with an exemption
from the registration requirements of the Securities Act other than Rule 144,
Rule 903 or Rule 904 and in compliance with the transfer restrictions contained
in the Indenture and any applicable blue sky securities laws of any State of the
United States and (ii) the restrictions on transfer contained in the Indenture
and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act. Upon consummation of the proposed Transfer
in accordance with the terms of the Indenture, the transferred beneficial
interest or Definitive Note will not be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the Restricted Global
Notes or Restricted Definitive Notes and in the Indenture.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company.
[Insert Name of Transferor]
By:
Name:
Title:
Dated:
-3-
60
EXHIBIT B
ANNEX A TO CERTIFICATE OF TRANSFER
1. The Transferor owns and proposes to transfer the following:
[CHECK ONE OF (a) OR (b)]
(a) / / a beneficial interest in the:
(i) / / 144A Global Note (CUSIP ), or
(ii) / / Regulation S Global Note (CUSIP ), or
(iii) / / IAI Global Note (CUSIP ); or
(b) / / a Restricted Definitive Note.
2. After the Transfer the Transferee will hold:
[CHECK ONE]
(a) / / a beneficial interest in the:
(i) / / 144A Global Note (CUSIP ), or
(ii) / / Regulation S Global Note (CUSIP ), or
(iii) / / IAI Global Note (CUSIP ); or
(iv) / / Unrestricted Global Note (CUSIP ); or
(b) / / a Restricted Definitive Note; or
(c) / / an Unrestricted Definitive Note,
in accordance with the terms of the Indenture.
-4-
61
EXHIBIT C
FORM OF CERTIFICATE OF EXCHANGE
Allied Waste North America, Inc.
00000 Xxxxx Xxxxxxxx - Xxxxxx Xxxx, Xxxxx 000
Scottsdale, Arizona 85260
U.S. Bank Trust National Association
000 Xxxx 0xx Xxxxxx
Xx. Xxxx, XX 00000
Re: 10% Senior Subordinated Notes due 2009
(CUSIP _________)
Reference is hereby made to the Indenture, dated as of July 30, 1999,
as amended by that Supplemental Indenture, dated as of July 30, 1999
(collectively, the "Indenture"), between Allied Waste North America, Inc., as
issuer (the "Company"), and U.S. Bank Trust National Association, as trustee.
Capitalized terms used but not defined herein shall have the meanings given to
them in the Indenture.
___________________ (the "Owner") owns and proposes to exchange the
Note[s] or interest in such Note[s] specified herein, in the principal amount of
$___________ in such Note[s] or interests (the "Exchange"). In connection with
the Exchange, the Owner hereby certifies that:
1. EXCHANGE OF RESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS IN A
RESTRICTED GLOBAL NOTE FOR UNRESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS
IN AN UNRESTRICTED GLOBAL NOTE.
(a) / / CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A
RESTRICTED GLOBAL NOTE TO BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL NOTE. In
connection with the Exchange of the Owner's beneficial interest in a Restricted
Global Note for a beneficial interest in an Unrestricted Global Note in an equal
principal amount, the Owner hereby certifies (i) the beneficial interest is
being acquired for the Owner's own account without transfer, (ii) such Exchange
has been effected in compliance with the transfer restrictions applicable to the
Global Notes and pursuant to and in accordance with the United States Securities
Act of 1933, as amended (the "Securities Act"), (iii) the restrictions on
transfer contained in the Indenture and the Private Placement Legend are not
required in order to maintain compliance with the Securities Act and (iv) the
beneficial interest in an Unrestricted Global Note is being acquired in
compliance with any applicable blue sky securities laws of any state of the
United States.
(b) / / CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A
RESTRICTED GLOBAL NOTE TO UNRESTRICTED DEFINITIVE NOTE. In connection with the
Exchange of the Owner's beneficial interest in a Restricted Global Note for an
Unrestricted Definitive Note, the Owner hereby certifies (i) the Definitive Note
is being acquired for the Owner's own account without transfer, (ii) such
Exchange has been effected in compliance with the transfer restrictions
applicable to the Restricted Global Notes and pursuant to and in accordance with
the Securities Act, (iii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act and (iv) the Definitive Note is being
acquired in compliance with any applicable blue sky securities laws of any state
of the United States.
(c) / / CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE
TO BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL NOTE. In connection with the
Owner's Exchange of a Restricted Definitive
-1-
62
EXHIBIT C
Note for a beneficial interest in an Unrestricted Global Note, the Owner hereby
certifies (i) the beneficial interest is being acquired for the Owner's own
account without transfer, (ii) such Exchange has been effected in compliance
with the transfer restrictions applicable to Restricted Definitive Notes and
pursuant to and in accordance with the Securities Act, (iii) the restrictions on
transfer contained in the Indenture and the Private Placement Legend are not
required in order to maintain compliance with the Securities Act and (iv) the
beneficial interest is being acquired in compliance with any applicable blue sky
securities laws of any state of the United States.
(d) / / CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE
TO UNRESTRICTED DEFINITIVE NOTE. In connection with the Owner's Exchange of a
Restricted Definitive Note for an Unrestricted Definitive Note, the Owner hereby
certifies (i) the Unrestricted Definitive Note is being acquired for the Owner's
own account without transfer, (ii) such Exchange has been effected in compliance
with the transfer restrictions applicable to Restricted Definitive Notes and
pursuant to and in accordance with the Securities Act, (iii) the restrictions on
transfer contained in the Indenture and the Private Placement Legend are not
required in order to maintain compliance with the Securities Act and (iv) the
Unrestricted Definitive Note is being acquired in compliance with any applicable
blue sky securities laws of any state of the United States.
2. EXCHANGE OF RESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS IN
RESTRICTED GLOBAL NOTES FOR RESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS
IN RESTRICTED GLOBAL NOTES.
(a) / / CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A
RESTRICTED GLOBAL NOTE TO RESTRICTED DEFINITIVE NOTE. In connection with the
Exchange of the Owner's beneficial interest in a Restricted Global Note for a
Restricted Definitive Note with an equal principal amount, the Owner hereby
certifies that the Restricted Definitive Note is being acquired for the Owner's
own account without transfer. Upon consummation of the proposed Exchange in
accordance with the terms of the Indenture, the Restricted Definitive Note
issued will continue to be subject to the restrictions on transfer enumerated in
the Private Placement Legend printed on the Restricted Definitive Note and in
the Indenture and the Securities Act.
(b) CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE TO
BENEFICIAL INTEREST IN A RESTRICTED GLOBAL NOTE. In connection with the Exchange
of the Owner's Restricted Definitive Note for a beneficial interest in the
[CHECK ONE] / / 144A Global Note, / / Regulation S Global Note, / / IAI Global
Note with an equal principal amount, the Owner hereby certifies (i) the
beneficial interest is being acquired for the Owner's own account without
transfer and (ii) such Exchange has been effected in compliance with the
transfer restrictions applicable to the Restricted Global Notes and pursuant to
and in accordance with the Securities Act, and in compliance with any applicable
blue sky securities laws of any state of the United States. Upon consummation of
the proposed Exchange in accordance with the terms of the Indenture, the
beneficial interest issued will be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the relevant Restricted
Global Note and in the Indenture and the Securities Act.
-2-
63
EXHIBIT C
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company.
[Insert Name of Transferor]
By:
Name:
Title:
Dated:
64
EXHIBIT D
FORM OF CERTIFICATE FROM
ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR
Allied Waste North America, Inc.
00000 Xxxxx Xxxxxxxx - Xxxxxx Xxxx, Xxxxx 000
Scottsdale, Arizona 85260
U.S. Bank Trust National Association
000 Xxxx 0xx Xxxxxx
Xx. Xxxx, XX 00000
Re: 10% Senior Subordinated Notes due 2009
Reference is hereby made to the Indenture, dated as of July 30, 1999,
as amended by that Supplemental Indenture, dated as of July 30, 1999
(collectively, the "Indenture"), between ALLIED Waste North America, Inc., as
issuer (the "Company"), and U.S. Bank Trust National Association, as trustee.
Capitalized terms used but not defined herein shall have the meanings given to
them in the Indenture.
In connection with our proposed purchase of $____________ aggregate
principal amount of:
(a) / / a beneficial interest in a Global Note, or
(b) / / a Definitive Note,
we confirm that:
1. We understand that any subsequent transfer of the Notes or any
interest therein is subject to certain restrictions and conditions set forth in
the Indenture and the undersigned agrees to be bound by, and not to resell,
pledge or otherwise transfer the Notes or any interest therein except in
compliance with, such restrictions and conditions and the United States
Securities Act of 1933, as amended (the "Securities Act").
2. We understand that the offer and sale of the Notes have not been
registered under the Securities Act, and that the Notes and any interest therein
may not be offered or sold except as permitted in the following sentence. We
agree, on our own behalf and on behalf of any accounts for which we are acting
as hereinafter stated, that if we should sell the Notes or any interest therein,
we will do so only (A) to the Company or any subsidiary thereof, (B) in
accordance with Rule 144A under the Securities Act to a "qualified institutional
buyer" (as defined therein), (C) to an institutional "accredited investor" (as
defined below) that, prior to such transfer, furnishes (or has furnished on its
behalf by a U.S. broker-dealer) to you and to the Company a signed letter
substantially in the form of this letter and an Opinion of Counsel in form
reasonably acceptable to the Company to the effect that such transfer is in
compliance with the Securities Act, (D) outside the United States in accordance
with Rule 904 of Regulation S under the Securities Act, (E) pursuant to the
provisions of Rule 144(k) under the Securities Act or (F) pursuant to an
effective registration statement under the Securities Act, and we further agree
to provide to any person purchasing the Definitive Note or beneficial interest
in a Global Note from us in a transaction meeting the requirements of clauses
(A) through (E) of this paragraph a notice advising such purchaser that resales
thereof are restricted as stated herein.
3. We understand that, on any proposed resale of the Notes or
beneficial interest therein, we will be required to furnish to you and the
Company such certifications, legal opinions and other information
-1-
65
EXHIBIT D
as you and the Company may reasonably require to confirm that the proposed sale
complies with the foregoing restrictions. We further understand that the Notes
purchased by us will bear a legend to the foregoing effect.
4. We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) and have
such knowledge and experience in financial and business matters as to be capable
of evaluating the merits and risks of our investment in the Notes, and we and
any accounts for which we are acting are each able to bear the economic risk of
our or its investment.
5. We are acquiring the Notes or beneficial interest therein purchased
by us for our own account or for one or more accounts (each of which is an
institutional "accredited investor") as to each of which we exercise sole
investment discretion.
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby.
[Insert Name of Accredited Investor]
By:
Name:
Title:
Dated:
-2-
