EXHIBIT 4.1
SIXTH SUPPLEMENTAL INDENTURE
This Sixth SUPPLEMENTal Indenture, dated as of January 30, 2001 (this
"Sixth 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 (the "Guarantors") 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 December 23, 1998 (the "Indenture"), to
provide for the issuance by the Company from time to time of debt securities
evidencing its indebtedness;
WHEREAS, pursuant to Board Resolution (the "Resolutions"), the Company
has authorized the issuance of $600,000,000 of its 87/8% Series A Senior Secured
Notes Due 2008 (the "Series A Notes") and $600,000,000 of its 87/8% Series B
Senior Secured Notes Due 2008 (the "Series B Notes," and together with the
Series A Notes, the "Notes"); and
WHEREAS, the Company, the Guarantors and the Initial Purchasers 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;
WHEREAS, the Notes shall be secured by a first priority lien on: (1)
all the Capital Stock of BFI's domestic Restricted Subsidiaries (the "Domestic
Pledged Stock"); (2) 65% of the Capital Stock of BFI's foreign Restricted
Subsidiaries (the "Foreign Pledged Stock"); and (3) all tangible and intangible
assets (other than real property) currently owned by BFI and substantially all
of its domestic Restricted Subsidiaries (collectively, the "Assets"). The
Domestic Pledged Stock, the Foreign Pledged Stock and the Assets are referred
collectively as the "Collateral;"
WHEREAS, BFI and its Subsidiaries that own the Collateral shall enter
into an amendment to the Shared Collateral Pledge Agreement, dated July 30,
1999, among the Company, BFI and certain of its Subsidiaries and Chase Manhattan
Bank, as the collateral trustee thereunder (the "collateral trustee") (the
"Pledge Agreement"), an amendment to the Shared Collateral Security Agreement,
dated July 30, 1999, among the Company, BFI and certain of its Subsidiaries and
the collateral trustee (the "Security Agreement"), and an amendment to the
Collateral Trust Agreement, dated July 30, 1999, among the Company, BFI and
certain of its Subsidiaries and the collateral trustee (together with the Pledge
Agreement and the Security Agreement, the "Security Agreements"), providing for
the grant by BFI and its Subsidiaries to the collateral agent for the ratable
benefit of the Holders of the Notes of a pledge of, or security interest in, as
the case may be, the Collateral; 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 the 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
"87/8% Series A Senior Secured Notes Due 2008." The Series B Notes shall
constitute a series of Securities having the title "87/8% Series B Senior
Secured Notes Due 2008."
(2) The aggregate principal amount of the Notes that may be authenticated and
delivered under this Sixth Supplemental Indenture shall be unlimited; provided,
however, that the Company complies with the provisions of this Sixth
Supplemental Indenture, including subsection 12(d) of this Section 1.01.
(3) Maturity. The entire outstanding principal of the Notes shall be payable on
April 1, 2008 (the "Stated Maturity Date").
(4) Interest and Payments. The rate at which the Notes shall bear interest shall
be 87/8%. With respect to the Series A Notes, interest shall accrue from the
date hereof. 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. The Interest Payment Dates for the Notes on which
interest will be payable shall be April 1 and October 1 of each year, beginning
October 1, 2001; the Regular Record Dates for the interest payable on the Notes
on any Interest Payment Date shall be March 15 with respect to the April 1
Interest Payment Date and September 15 with respect to the October 1 Interest
Payment Date. 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.
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 the 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 this Sixth
Supplemental 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.
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(5) Optional Redemption. The Notes shall not be subject to any redemption at the
option of the Company except as set forth in this paragraph (5).
(a) The Notes shall be subject to redemption at the option of the Company,
in whole or in part, at any time, upon not less than 30 nor more than
60 days' notice mailed to each Holder of Notes to be redeemed at such
Holder's address appearing in the applicable 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).
(b) At any time, or from time to time, prior to April 1, 2004, up to 33
1/3% in aggregate principal amount of the Notes originally issued
under this Sixth Supplemental Indenture shall be redeemable, at the
option of the Company, from the net proceeds of one or more Public
Offerings of Capital Stock (other than Redeemable Interests) of
Allied, at a Redemption Price equal to 108.875% of the principal
amount thereof, 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); 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.
(6) Except as set forth under subsections 12(a) and (b) of this Section 1.01 of
this Sixth Supplemental Indenture, the Notes shall not have the benefit of any
mandatory redemption or sinking fund of the Company.
(7) The Notes shall be issuable in denominations of $1,000.
(8) Payments of the principal of (and premium, if any) and interest (including
Special Interest, if any), with respect to the Notes shall be made in U.S.
Dollars, and the Notes shall be denominated in U.S. Dollars.
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(9) The Trustee shall also be the Security Registrar and Paying Agent.
(10) The entire outstanding principal amount of and any accrued interest, if
any, on the Notes shall be payable upon declaration of acceleration of the
maturity thereof pursuant to Article 5 of the Indenture.
(11) The Notes shall 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.
(12) 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.
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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
the Board of Directors for any transaction (or series of transactions)
involving in excess of $10 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 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
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the sale of any marketable cash equivalents received therein) 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 repayment
of Debt of the Company or its Restricted Subsidiaries then outstanding
under the Credit Facility which would require such application or which
would prohibit payments pursuant to clause (B); (B) second, to the
extent Net Available Proceeds are not required to be applied as
specified in clause (A), to purchases of outstanding Notes and other
Debt of the Company that ranks pari passu in right of payment to the
Notes (on a pro rata basis based upon the outstanding aggregate
principal amount thereof) pursuant to an Offer to Purchase (to the
extent such an offer is not prohibited by the terms of the Credit
Facility then in effect) at a purchase price equal to 100% of the
principal amount thereof 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 which is not
otherwise prohibited by this Sixth Supplemental Indenture and provided
further that the 75% limitation referred to in clause (ii) above shall
not apply to any Asset Disposition if the consideration received
therefrom, 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 ("Reinvested
Amounts") 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 (5) of this Section 1.01.
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.
Any Offer to Purchase pursuant to this subsection 12(a) shall be
effected by the sending of the written terms and conditions thereof
(the "Offer Document") by the Company, by first class mail, to Holders
of the Notes 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 12(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 12(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.
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(b) Change of Control.
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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 Sixth Supplemental Indenture,
(i) so long as the Company is a Subsidiary of Allied: (a) any
Person, or any Persons (other than a Permitted Allied Successor),
acting together that would constitute a "Group" (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 Voting Stock of Allied, (b) any
Person or Allied Group, together with any Affiliates or Related Persons
thereof, succeeds in having a sufficient number of its nominees who
have not been approved by the Continuing Directors elected to the Board
of Directors of Allied such that such nominees, when added to any
existing director remaining on the Board of Directors of Allied 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
Allied, 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 Allied immediately
prior to such transaction (or series) receive (I) solely Voting Stock
of Allied (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 Sixth Supplemental Indenture
after giving pro forma effect to such transaction, or (III) a
combination thereof, and the beneficial owners of the Voting Stock of
Allied immediately prior to such transaction (or series) do not,
immediately after such transaction (or series), beneficially own Voting
Stock representing more than 50% of the total voting power of all
classes of Voting Stock of Allied (or in the case of a transaction (or
series) in which another entity becomes a successor to, or parent of,
Allied, of the successor or parent entity), and
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(ii) if the Company is not a Subsidiary of Allied: (a) any
Person, or any Persons (other than a Permitted Company Successor),
acting together that would constitute a Group for purposes of Section
13(d) of the Exchange Act (an "AWNA 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 the Company, (b) any Person or AWNA
Group, together with any Affiliates or Related Persons thereof,
succeeds in having a sufficient number 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 AWNA 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
Sixth Supplemental Indenture after giving pro forma effect to such
transaction, or (III) a combination thereof, 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).
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.
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 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 Senior 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.
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(c) Changes in Covenants when Senior Notes rated Investment
Grade.
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Following the first date upon which the Notes are rated the
following: (i) Baa3 or better by Xxxxx'x Investors Service, Inc.
("Moody's") and BB+ or better by Standard & Poor's Ratings Group
("S&P"); or (ii) BBB- or better by S&P and Ba1 or better by Moody's (a
"Rating Event") (or, in any case, if such person ceases to rate the
Notes for reasons outside of the control of the Company, the equivalent
investment grade credit rating from any other "nationally recognized
statistical rating organization" (within the meaning of Rule
15c3-1(c)(2)(vi)(F) under the Exchange Act) selected by the Company as
a replacement agency) (the "Rating Event Date") (and provided no Event
of Default or event that with notice or the passage of time would
constitute an Event of Default shall exist on the Rating Event Date),
the covenants specifically listed under subsections 12(a), 12(d),
12(e), 12(f), 12(h) and 12(j) of this Section 1.01 of this Sixth
Supplemental Indenture shall no longer be applicable to the Notes. At
no time after a Rating Event Date will the provisions and covenants
contained in this Sixth Supplemental Indenture at the tine of the
issuance of the Notes that cease to be applicable after the Rating
Event Date be reinstated.
(d) Limitation on Consolidated Debt.
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The Company shall not incur any Debt and shall not permit
Restricted Subsidiaries to Incur any Debt or issue Preferred Stock
unless, immediately after giving effect to the Incurrence of such Debt
or issuance of such Preferred Stock and the receipt and application of
the proceeds thereof, the Consolidated EBITDA Coverage Ratio of the
Company for the four full fiscal quarters next preceding the Incurrence
of such Debt or issuance of such Preferred Stock, calculated on a pro
forma basis 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 foregoing limitations, the Company or any
Restricted Subsidiary of the Company may Incur the following Debt:
(i) Debt under the Credit Facility 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;
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(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 Sixth Supplemental
Indenture;
(v) Debt incurred in connection with an acquisition, merger or
consolidation transaction permitted under the provisions
described under Section 7.1 of the Indenture (as superseded
by subsection 13 of this Section 1.01 of this Sixth
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
or consolidation with the Company or another Restricted
Subsidiary) and was not issued in contemplation of such
transaction, or (B) is issued by the Company or a Restricted
Subsidiary to a seller in connection with such transaction,
in an aggregate amount for all such Debt issued pursuant to
the provisions of this Sixth 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.
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(e) Limitation on Restricted Payments.
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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: (x) 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), (y) dividends or distributions by a Restricted Subsidiary
to the Company or another Wholly-Owned Restricted Subsidiary, and (z)
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), 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:
(1) an Event of Default, or an event that with the
lapse of time or the giving of notice, or both, would constitute
an Event of Default, shall have occurred and be continuing; or
(2) the Company would, at the time of such Restricted
Payment and after giving pro forma effect thereto as if such
Restricted Payment had been made at 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 12(d) of this Section 1.01 of
this Sixth 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)
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of the next succeeding paragraph) from the date of this Sixth
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 Sixth
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
Allied 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 Sixth 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 Sixth Supplemental Indenture from an Unrestricted
Subsidiary of the Company; and (d) $300 million.
The foregoing covenant shall not be violated by reason of
(i) the payment of any dividend within 60 days after
declaration thereof if at the declaration date such payment
would have complied with the foregoing 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 12(d) of this
Section 1.01 of this Sixth 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 Restricted Subsidiary of the Company) of
Capital Stock (other than Redeemable Interests) of the Company;
provided that the amount of any such net cash proceeds that are
utilized for any such purchase, redemption or other acquisition
or retirement for value shall be excluded from clause (3)(b) in
the foregoing paragraph of this subsection 12(e);
11
(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 repurchase of any subordinated Debt at a
purchase price not greater than 101% of the principal amount of
such subordinated Debt in the event of a Change of Control
pursuant to a provision similar to the provision contained in
subsection 12(b) of this Section 1.01 of this Sixth Supplemental
Indenture; provided that prior to such repurchase the Company
has made the Change of Control Offer (the "Change of Control
Offer") as provided in such covenant with respect to the Notes
and repurchased all Notes validly tendered for repayment in
connection with such Change of Control Offer;
(vi) the purchase or redemption of any Debt from Net
Available Proceeds to the extent permitted under subsection
12(a) of this Section 1.01 of this Sixth Supplemental Indenture;
and
(vii) payments pursuant to the Intercompany Agreements.
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 this subsection 12(e) of Section 1.01
of this Sixth Supplemental Indenture.
(f) Limitations Concerning Distributions by Subsidiaries,
Etc.
-------------------------------------------------------
The Company shall not, and shall not permit any Restricted
Subsidiary to, suffer to exist any consensual encumbrance or
restriction on the ability of such Restricted Subsidiary: (i) to pay,
directly or indirectly, dividends or make any other distributions in
respect 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, except, in any such case, any encumbrance or restriction
existing pursuant to: (a) the Notes, the Indenture (including each of
the First, Second, and Third Supplemental Indentures), the Senior
Guarantees or any other agreement in effect on the date of this Sixth
Supplemental Indenture; (b) the Credit Facility, 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
12
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, 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) restrictions contained in any
security agreement (including a capital lease) securing Debt permitted
to be Incurred under this Sixth 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) above; provided, however, that the provisions relating to such
encumbrance or restriction contained in such renewal, extension,
refinancing or refunding agreement are no more restrictive in any
material respect than the provisions contained in the agreement it
replaces, as determined in good faith by the Board of Directors; or (h)
such encumbrance or restriction is the result of applicable corporate
law or regulation relating to the payment of dividends or
distributions.
(g) Limitation on Liens.
-------------------
Allied shall not, and the Company shall not, and shall not
permit any of its Restricted Subsidiaries to, create, Incur, assume or
otherwise cause or suffer to exist or become effective any Lien (other
than Permitted Liens) upon any of their property or assets, now owned
or hereafter acquired to secure Debt of Allied, the Company or any of
its Restricted Subsidiaries.
(h) Limitation on 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 foregoing, 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 $10,000,000, 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.
13
Notwithstanding the foregoing, the following items shall not be
deemed to be Affiliate Transactions: (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)
$5,000,000 outstanding in the aggregate at any time, and (ii)
$2,000,000 to any one employee and consistent with the past practice of
the Company or such Restricted Subsidiary; (b) loans by the Company and
its Restricted Subsidiaries to employees of Allied or any of its
Subsidiaries in connection with management incentive plans not to
exceed $25,000,000 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)
Allied from Allied if and to the extent that Allied utilizes the
proceeds thereof 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 Sixth 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 12(e) of this Section 1.01 of this Sixth
Supplemental Indenture.
(i) Provision of Financial Information.
----------------------------------
Whether or not Allied is required to be subject to Section 13(a)
or 15(d) of the Exchange Act, or any successor provision thereto, the
Company (or Allied for so long as the Company is a Wholly-Owned
Subsidiary of Allied) shall file with the Commission the annual
reports, quarterly reports and other documents which the Company (or
Allied for so long as the Company is a Wholly-Owned Subsidiary of
Allied) 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 Allied for so long as the Company is a Wholly-Owned
Subsidiary of Allied) were so required, such documents to be filed with
the Commission on or prior to the respective dates (the "Required
Filing Dates") by which the Company would have been required so to file
such documents if the Company were so required. The Company shall also
in any event: (a) within 15 days of each Required Filing Date file with
14
the Trustee copies of the annual reports, quarterly reports and other
documents which the Company (or Allied for so long as the Company is a
Wholly-Owned Subsidiary of Allied) 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 Allied for so long as the Company is a Wholly-Owned
Subsidiary of Allied) were required to comply with such Sections, and
(b) if filing such documents by the Company (or Allied for so long as
the Company is a Wholly-Owned Subsidiary of Allied) with the Commission
is not permitted under the Exchange Act, promptly upon written request
supply copies of such documents to any prospective Holder.
(j) Unrestricted Subsidiaries.
-------------------------
The Company at any time may designate any Person that is a
Subsidiary, or after the date of this Sixth Supplemental Indenture
becomes a Subsidiary, of the Company as an "Unrestricted Subsidiary,"
whereupon (and until such Person ceases to be an Unrestricted
Subsidiary) such Person and each other Person that is then or
thereafter becomes a Subsidiary of such Person shall be deemed to be an
Unrestricted Subsidiary. In addition, the Company may at any time
terminate the status of any Unrestricted Subsidiary as an Unrestricted
Subsidiary, whereupon such Subsidiary and each other Subsidiary of the
Company (if any) of which such Subsidiary is a Subsidiary shall be a
Restricted Subsidiary.
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 will 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
clause (3) of the first paragraph of subsection 12(e) of this
Section 1.01 of this Sixth Supplemental Indenture; or
(ii) such change or other event would otherwise result
(after the giving of notice or the lapse of time, or both) in an
Event of Default.
In addition and notwithstanding the foregoing, no Restricted
Subsidiary of the Company may become an Unrestricted Subsidiary, and
the status of any Unrestricted Subsidiary as an Unrestricted Subsidiary
will be deemed to have been immediately terminated (whereupon such
Subsidiary and each other Subsidiary of the Company (if any) of which
such Subsidiary is a Subsidiary will be a Restricted Subsidiary) at any
time when:
15
(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 will be deemed to result in a
breach of this covenant 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 preceding paragraph.
"Unpermitted Debt" means any Debt of a Subsidiary of the Company
if: (x) a default thereunder (or under any instrument or
agreement pursuant to or by which such Debt is issued, secured
or evidenced) or any right that the Holders thereof may have to
take enforcement action against such Subsidiary or its property
or other assets, would permit (whether or not after the giving
of notice or the lapse of time or both) the Holders of any Debt
of the Company or any other Restricted Subsidiary 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.
(13) Mergers, Consolidations and Certain Sales of Assets. Section 7.1 of
---------------------------------------------------
the Indenture is hereby superseded by the following in respect of the Notes:
"The Company (i) shall not consolidate with or merge into any Person;
(ii) shall 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
16
the time of the transaction (or series), no Event of Default, or event
that with the passing of time or the giving of notice, or both, will
constitute an Event of Default, shall have occurred and be continuing;
(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 this Sixth Supplemental
Indenture;
(3) if such transaction (or series) occurs prior to the
occurrence of a Rating Event Date, 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 12(d) of this Section 1.01, 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 the 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 12(g) of this Section 1.01,
the Company or the successor entity shall 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 the
Indenture and that all conditions precedent to the consummation of such
transaction under this Section 7.1 have been met."
17
(14) Security.
--------
The Security Agreements shall secure the due and punctual payment of
the principal of and interest and Special Interest, if any, on the Notes when
and as the same shall be due and payable, whether on an interest payment date,
at maturity, by acceleration, repurchase, redemption or otherwise, and interest
on the overdue principal of and interest and Special Interest (to the extent
permitted by law), if any, on the Notes and performance of all other obligations
of the Company to the Holders of Notes or the Trustee under this Sixth
Supplemental Indenture and the Notes, according to the terms hereunder or
thereunder. Each Holder of Notes, by its acceptance thereof, consents and agrees
to the terms of the Security Agreements (including, without limitation, the
provisions providing for foreclosure and release of the Collateral) as the same
may be in effect or may be amended from time to time in accordance with their
terms. The Company shall deliver to the Trustee copies of all documents
delivered to the collateral trustee pursuant to the Security Agreements, and
shall do or cause to be done all such acts and things as may be necessary or
proper, or as may be required by the provisions of the Security Agreements, to
assure and confirm to the Trustee and the collateral trustee the security
interest in the Collateral contemplated hereby, by the Security Agreements or
any part thereof, as from time to time constituted, so as to render the same
available for the security and benefit of this Sixth Supplemental Indenture and
of the Notes secured hereby, according to the intent and purposes herein
expressed. The Company shall take, or shall cause its Subsidiaries to take, upon
request of the Trustee, any and all actions reasonably required to cause the
Security Agreements to create and maintain, as security for the obligations of
the Company under this Sixth Supplemental Indenture and the Notes, a valid and
enforceable perfected first priority Lien in and on all the Collateral in favor
of the collateral trustee for the benefit of the Holders of Notes.
(a) Opinions and Certificates.
(i) The Company shall furnish to the Trustee all opinions and certificates
delivered by the Company in connection with the Security Agreements and
such opinions and certificates shall be for the benefit of the Trustee
and the Holders of the Notes.
(ii) The Company shall otherwise comply with the provisions of TIAss.314(b).
(b) Release of Collateral.
(i) Subject to this subsection 14(b) of this Section 1.01 of this Sixth
Supplemental Indenture, the Collateral may be released from the Lien
and security interest created by the Security Agreements at any time or
from time to time in accordance with the provisions of the Security
Agreements. The collateral trustee shall execute, deliver or
acknowledge any necessary or proper instruments of termination,
satisfaction or release to evidence the release of any Collateral
permitted to be released pursuant to this Sixth Supplemental Indenture
or the Security Agreements.
18
(ii) The release of any Collateral from the terms of this Sixth Supplemental
Indenture and the Security Agreements shall not be deemed to impair the
security under this Sixth Supplemental Indenture in contravention of
the provisions hereof if and to the extent the Collateral is released
pursuant to the terms of the Security Agreements. To the extent
applicable, the Company shall cause TIAss.313(b), relating to reports,
and TIAss.314(d), relating to the release of property or securities
from the Lien and security interest of the Security Agreements and
relating to the substitution therefor of any property or securities to
be subjected to the Lien and security interest of the Security
Agreements, to be complied with. The Company shall furnish to the
Trustee and the collateral trustee, prior to each proposed release of
Collateral pursuant to the Security Agreements, (i) all documents
required by TIA ss.314(d) and (ii) an Opinion of Counsel, which may be
rendered by internal counsel to the Company, to the effect that such
accompanying documents constitute all documents required by
TIAss.314(d).
(iii) Any certificate or opinion required by TIA ss.314(d) may be made by an
Officer of the Company except in cases where TIA ss.314(d) requires
that such certificate or opinion be made by an independent Person,
which Person shall be an independent engineer, appraiser or other
expert selected or approved by the Trustee and the collateral trustee
in the exercise of reasonable care.
(iv) In the event that the Company wishes to obtain a release of any
Collateral in accordance with the Security Agreements and has
delivered the certificates and documents required by the Security
Agreements and this subsection 14(b) of this Section 1.01 of this
Sixth Supplemental Indenture, the Trustee shall determine whether it
has received all documentation required by TIAss.314(d) in connection
with such release and, based on such determination and the Opinion of
Counsel delivered pursuant to Section 10.03(b), shall deliver a
certificate to the collateral trustee setting forth such determination.
The Trustee may, to the extent permitted by the Indenture, accept as
conclusive evidence of compliance with the foregoing provisions the
appropriate statements contained in such documents and such Opinion of
Counsel.
(v) Notwithstanding anything to the contrary in this subsection 14 of this
Sixth Supplemental Indenture, the Company shall not be required to
comply with all or any portion of TIA ss.314(d) if it determines, in
good faith based on the advice of counsel, that under the terms of
ss.314(d) and/or any interpretation or guidance as to the meaning
thereof of the Securities and Exchange Commission or its staff
(including "no action" letters), all or such portion of TIA ss.314(d)
is inapplicable to one or a series of releases of Collateral.
(c) [Intentionally omitted]
(d) [Intentionally omitted]
19
(e) Authorization of Actions to Be Taken by the Trustee Under the Security
Agreements. Subject to the provisions of the Indenture, the Trustee may, in its
sole discretion and without the consent of the Holders of Notes, instruct, on
behalf of the Holders of Notes, the collateral trustee to take all actions it
deems necessary or appropriate in order to (a) enforce the rights of the Trustee
and the Holders of Notes under any of the terms of the Security Agreements and
(b) collect and receive any and all amounts payable in respect of the
obligations of the Company under this Sixth Supplemental Indenture and the
Notes, provided, that in no event shall the collateral trustee be required to
take any actions that violate the terms of the Security Agreements or the Credit
Facility. The Trustee shall have power to institute and maintain such suits and
proceedings as it may deem expedient to preserve or protect its interests and
the interests of the Trustee and the Holders of Notes in the Collateral.
(f) Authorization of Receipt of Funds by the Trustee Under the Security
Agreements. The Trustee is authorized to receive any funds for the benefit of
the Holders of Notes distributed under the Security Agreements, and to make
further distributions of such funds to the Holders of Notes according to the
provisions of this Sixth Supplemental Indenture.
(g) Termination of Security Interest. Upon (1) the full and final payment and
performance of all obligations of the Company under this Sixth Supplemental
Indenture and the Notes; (2) the release of the Lien on the Collateral securing
the BFI Notes, the Allied NA Senior Notes and all other indebtedness of Allied
and its Restricted Subsidiaries (other than under the Credit Facility); or (3)
the sale of any such Collateral in accordance with the applicable provisions of
this Sixth Supplemental Indenture, the Trustee shall, at the request of the
Company, deliver a certificate to the collateral trustee instructing the
collateral trustee to release the Liens (or in the case of clause (3), the Liens
on such Collateral) pursuant to this Sixth Supplemental Indenture and the
Security Agreements.
(h) No Amendments to the Security Agreements. The Company shall not amend, waive
or modify any provisions of the Security Agreements if such amendment, waiver or
modification could reasonably be expected to adversely impact the Holder of
Notes without the consent of a majority of Holder of Notes.
(i) Maintenance. The Company shall maintain as security for the obligations of
the Company under this Sixth Supplement Indenture and the Notes, an equal and
ratable sharing of the perfected security interest held by the collateral
trustee under the uniform commercial code as in effect in the State of New York
pursuant to the Security Agreements in the Collateral.
(15) Events of Default. 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 13 of Section 1.01
hereof) or the provisions of subsection 12(a) and subsection 12(b) of
Section 1.01 of this Sixth Supplemental Indenture."
20
(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 Article
11 of the Indenture and subsection 5 of this Section 1.01 of this Sixth
Supplemental Indenture, 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 in the Notes to the contrary
notwithstanding."
(16) Section 8.1 of the Indenture is hereby supplemented by adding the following
as subsection (m) thereof in respect of the Notes:
(m) to provide for the issuance of Additional Notes in
accordance with the limitations set forth in this Sixth Supplemental
Indenture as of the date hereof;
(17) Section 15.4 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
Credit Facility, such Guarantor shall be released from all of its obligations
under its Senior Guarantee endorsed on the Securities and under this Article
15."
(18) The Notes shall not be issuable as Bearer Securities.
(19) 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.
(20) Article 4 of the Indenture shall be applicable to the Notes.
(21) The Notes shall not be issuable in definitive form except under the
circumstances described in Section 2.1 of the Indenture.
(22) For all purposes, the Series A Notes and the Series B Notes shall be
treated as one series of Securities under this Sixth Supplemental Indenture.
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.
21
(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 Senior Guarantee shall be as set forth in Section 2.3 of
the Indenture.
ARTICLE II.
TRANSFER AND EXCHANGE
Section 2.01 General.
Sections 2.4, 3.2 and 3.3 of the Indenture are hereby modified and
superseded 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 Sixth Supplemental Indenture and the
Company, the Guarantors and the Trustee, by their execution and delivery of this
Sixth 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 Sixth Supplemental Indenture, the provisions
of this Sixth 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 Sixth
Supplemental Indenture.
(c) Euroclear and Clearstream 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
Clearstream" and "Customer Handbook" of Clearstream shall be applicable to
transfers of beneficial interests in Global Notes that are held by Participants
through Euroclear or Clearstream.
22
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) Transfers of Interests in Global Notes for Definitive 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 shall 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 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 Sixth 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 Sixth
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 Sixth 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
23
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 Sixth
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 beneficial interests in Global Notes contained in this Sixth
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 Sixth
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;
24
(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 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;
25
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 Sixth 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;
26
(D) if such beneficial interest 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 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 Sixth 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
27
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
(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 Sixth Supplemental Indenture herein
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
28
Note, then, upon satisfaction of the conditions set forth in Section
2.02(b)(ii) of this Sixth 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 Sixth
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
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
29
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 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
30
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 Sixth 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 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).
31
(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;
(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
32
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 Sixth
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 Sixth Supplemental Indenture
unless specifically stated otherwise in the applicable provisions of this Sixth
Supplemental Indenture.
(i) Private Placement Legend.
------------------------
(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:
33
"THIS NOTE (OR ITS PREDECESSORS) WAS ORIGINALLY ISSUED
IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER THE UNITED
STATES SECURITIES ACT OF 1933 (THE "SECURITIES ACT"), AND THIS
NOTE MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE
ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION
THEREFROM. EACH PURCHASER OF THIS NOTE IS HEREBY NOTIFIED THAT
THE SELLER OF THIS NOTE MAY BE RELYING ON THE EXEMPTION FROM THE
PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE
144A THEREUNDER.
THE HOLDER OF THIS NOTE AGREES FOR THE BENEFIT OF THE
COMPANY THAT (A) THIS NOTE MAY BE OFFERED, RESOLD, PLEDGED OR
OTHERWISE TRANSFERRED, ONLY (I) IN THE UNITED STATES TO A PERSON
WHOM THE SELLER REASONABLE BELIEVES IS A QUALIFIED INSTITUTIONAL
BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (II) OUTSIDE
THE UNITED STATES IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH
RULE 904 UNDER THE SECURITIES ACT, (III) PURSUANT TO AN
EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY
RULE 144 THEREUNDER (IF AVAILABLE) OR (IV) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN
EACH OF CASES (I) THROUGH (IV) IN ACCORDANCE WITH ANY APPLICABLE
SECURITIES LAWS OF ANY STATE OF THE UNITED STATES, AND (B) THE
HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY
ANY PURCHASER OF THIS NOTE FROM IT OF THE RESALE RESTRICTIONS
REFERRED TO IN (A) ABOVE."
(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
34
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 THE COMPANY."
(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 will 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 shall 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.
------------------------------------------------------
(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 12(a) and 12(b) of Section 1.01 of this Sixth
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.
35
(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.
ARTICLE III.
DEFINITIONS
Section 3.01 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, 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 shall 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.
36
"Additional Notes" means the aggregate principal amount of Notes
(other than the Initial Notes) issued under the Indenture, as
supplemented by this Sixth Supplemental Indenture, in accordance with
Section 3.3 of the Indenture and subsection 12(d) of Section 1.01 of
this Sixth Supplemental Indenture, as part of the same series as the
Initial Notes.
"Allied NA Senior Notes " means the 7 3/8%, 7 5/8% and 7 7/8%
Senior Notes issued December 23, 1998 by the Company.
"Allied NA Waste Group" means, collectively, the Company, Allied
and their respective Subsidiaries, and a member of the Allied NA Waste Group
means the Company, Allied and each of their respective Subsidiaries.
"Apollo" means Apollo Management IV, L.P. or its Permitted
Transferees (exclusive of the Allied NA Waste Group).
"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 Depositary, Euroclear and Clearstream that apply
to such transfer or exchange.
"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
such Subsidiary ceases to be a Restricted Subsidiary of such Person),
of (i) shares of Capital Stock (other than directors' qualifying
shares) or other ownership interests of a Restricted Subsidiary or (ii)
the property or assets of such Person or any Restricted Subsidiary
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, but excluding in each case in clauses (i),
(ii) and (iii), (x) a disposition by a Subsidiary of such Person to
such Person or a 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
13 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 12(e) of Section
1.01 of this Sixth Supplemental Indenture.
"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.
"BFI Notes" means the 6.1% and 6.375% Senior Notes issued
January 1996, the 7.875% Senior Notes issued March 1995, the 7.4%
Debentures issued September 1995, and the 9.25% Debentures issued May
1991 by BFI.
37
"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.
"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 thereof that would appear on a balance sheet of such
Person in accordance with generally accepted accounting principles.
"Capital Stock" of any Person means any and all shares,
interests, participations or other equivalents (however designated) of
corporate stock or other equity participations, including partnership
interests, whether general or limited, of such Person.
"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 restrict such funds' investments primarily to those
38
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.
"Clearstream" means Clearstream Banking S.A.
"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 Credit Suisse
First Boston 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 for the Notes, (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
39
(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 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 First, Second and Third Supplemental
Indentures) or the Credit Facility, 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 from such
period); provided, however, that the Consolidated Interest Expense,
Consolidated Income Tax Expense and consolidated depreciation and
amortization expense of a Consolidated Subsidiary of such Person shall
be added to the Consolidated Net Income pursuant to the foregoing only
(x) to the extent and in the same proportion that the Consolidated Net
Income of such Consolidated Subsidiary was included in calculating the
Consolidated Net Income of such Person and (y) only to the extent that
the amount specified in clause (x) is not subject to restrictions that
prevent the payment of dividends or the making of distributions 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, and provided further, that, in the event such Person or any of
its Consolidated Subsidiaries has made acquisitions or dispositions of
assets not in the ordinary course of business (including any other
acquisitions of any other Persons by merger, consolidation or purchase
of Capital Stock) during or after such period, the computation of the
40
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 shall 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).
"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 there shall be excluded
therefrom (a) for purposes solely of calculating Consolidated Net
Income for purposes of clause (3)(a) of the first paragraph of
subsection 12(e) of Section 1.01 of this Sixth 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
41
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 (or 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" shall exclude such Subsidiary
for such period (or portion thereof) during which it was an
Unrestricted Subsidiary.
"Consolidated Total Assets" of any Person at any date means the
consolidated total assets of such Person and its Restricted
Subsidiaries at such date as determined on a consolidated basis in
accordance with generally accepted accounting principles.
"Continuing Directors" means, as of any date of determination
with respect to any Person, any member of the Board of Directors of
such Person who:
(1) was a member of such Board of Directors on the
Issue Date; 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.
"Credit Facility" means the Credit Agreement, dated July 21,
1999, among the Company, Allied, certain lenders party thereto, and The
Chase Manhattan Bank, Citicorp USA, Inc., DLJ Capital Funding, Inc.,
Credit Suisse First Boston, as agents, Chase Securities Inc., and
Xxxxxxx Xxxxx Xxxxxx Inc., as arrangers, and Chase Securities Inc., as
book manager, or any bank credit agreement that replaces, amends,
supplements, restates or renews such Credit Facility.
42
"Custodian" means the Trustee, as custodian with respect to the
Notes in global form, or any successor entity thereto.
"Definitive Note" means a certificated Note registered in the
name of the Holder thereof and issued in accordance with Section 2.02
of this Sixth 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
Sixth Supplemental Indenture.
"Designated Noncash Consideration" means 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, less the amount of cash or Cash Equivalents
received in connection with a sale of such Designated Noncash
Consideration.
"Euroclear" means Xxxxxx Guaranty Trust Company of New York,
Brussels office, as operator of the Euroclear system.
"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 in the aggregate 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 Sixth 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.
"First, Second and Third Supplemental Indenture" means the
first, second and third supplemental indentures to the Indenture, all
dated December 23, 1998, among the Company, the Guarantors and the
43
Trustee, relating to the Company's 7 3/8% senior notes due 2004, 7 5/8%
senior notes due 2006 and 7 7/8% senior notes due 2009, respectively.
"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 Sixth 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 Sixth
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 (and "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.
"Initial Notes" means the first $600,000,000 aggregate principal
amount of Notes issued under this Sixth Supplemental Indenture on the
date hereof.
44
"Initial Purchasers" means, with respect to the Notes, Credit
Suisse First Boston Corporation (acting through its affiliate
Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation), XX Xxxxxx (a
division of Chase Securities Inc.), Xxxxxxx Xxxxx Xxxxxx Inc., Deutsche
Banc Alex. Xxxxx Inc., Xxxxxx Brothers Inc., UBS Warburg LLC, ABN AMRO
Incorporated, Banc One Capital Markets Inc., CIBC World Markets Corp.,
Credit Lyonnais Securities (USA) Inc., First Union Securities, Inc.,
Fleet Securities, Inc. and Scotia Capital (USA) 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 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 Allied 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
45
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).
"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)
therefrom by such Person, net of (i) all legal, title and recording tax
expenses, commissions and other fees and expenses Incurred and all
federal, state, provincial, foreign and local taxes required to be
accrued as a liability as a consequence of such Asset Disposition, (ii)
all payments made by such Person or its Restricted Subsidiaries on any
Debt that is secured by such assets in accordance with the terms of any
Lien upon or with respect to such assets or that must, by the terms of
such 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 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.
"Notes" has the meaning assigned to it in the preamble to this
Sixth Supplemental Indenture Supplement. The Initial Notes and the
Additional Notes shall be treated as a single class for all purposes
under the Indenture, as modified, supplemented and superseded by this
Sixth Supplemental Indenture.
"Offer Document" has the meaning specified in the definition of
"Offer to Purchase."
"Offer Expiration Date" has the meaning specified in the
definition of "Offer to Purchase."
"Offer to Purchase" means an offer, set forth in the Offer
Document sent by the Company by first class mail, postage prepaid, to
each Holder at his 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
46
this Sixth 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
shall include or include or incorporate by reference (i) the most
recent annual and quarterly financial statements and "Management's
Discussion and Analysis of Financial Condition and Results of
Operations" required to be filed with the Trustee pursuant to
subsection 12(i) of Section 1.01 of this Sixth Supplemental Indenture
(which requirements may be satisfied by delivery of such documents
together with the Offer to Purchase), and (ii) any other information
required by applicable law to be included therein. The Offer Document
shall contain all instructions and materials necessary to enable such
Holder to tender Securities pursuant to the Offer to Purchase. The
Offer Document shall also state:
(1) the Section of this Sixth 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 Sixth 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 Sixth 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 shall
continue to accrue;
47
(8) that on the Purchase Date the purchase price shall become
due and payable upon each Security accepted for payment pursuant to the
Offer to Purchase and that interest thereon shall cease to accrue on
and after the Purchase Date;
(9) that each Holder electing to tender a Note pursuant to the
Offer to Purchase shall 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 shall 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, 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.
"Officers' Certificate" means a certificate that meets the
requirements listed under the definition of Opinion of Counsel signed
on behalf of the Company by two officers of the Company, one of whom
must be the principal executive officer, the principal financial
officer, the treasurer or the principal accounting officer of the
Company.
"Opinion of Counsel" means a certificate or opinion with respect
to compliance with a condition or covenant provided in this Sixth
Supplemental Indenture from legal counsel, who may be an employee of or
counsel to the Company, any Subsidiary of the Company or the Trustee,
that complies with the provisions of TIA ss.314(e) and includes: (i) a
48
statement that the Person making such certificate or opinion has read
such covenant or condition; (ii) a brief statement as to the nature and
scope of the examination or investigation upon which the statements or
opinions contained in such certificate or opinion are based; (iii) a
statement that, in the opinion of such Person, he or she has made such
examination or investigation as is necessary to enable him to express
an informed opinion as to whether or not such covenant or condition has
been satisfied; and (iv) a statement as to whether or not, in the
opinion of such Person, such condition or covenant has been satisfied.
"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 Clearstream, a Person who has an account with the Depositary,
Euroclear or Clearstream, respectively (and, with respect to DTC, shall
include Euroclear and Clearstream).
"Permitted Allied Successor" means (i) an issuer, other than
Allied, of Voting Securities issued to the shareholders of Allied in a
merger, consolidation or other transaction permitted by clause (i)(c)
of the definition of Change of Control, (ii) Apollo and (iii)
Blackstone.
"Permitted Company Successor" means an (i) 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, (ii) Apollo and
(iii) Blackstone.
"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
49
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 (iii) above, (viii) commercial paper (other than commercial
paper issued by an Affiliate or Related Person) rated A-1 or the
equivalent thereof by Standard & Poor's Ratings Group or P-1 or the
equivalent thereof by Xxxxx'x Investors 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 Allied, in connection with
management incentive plans not to exceed $25,000,000 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) Allied from Allied if Allied
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 12(a)
of Section 1.01 of this Sixth 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 securing indebtedness under
the Credit Facility that was permitted by the terms of the Indenture to
50
be incurred or other Debt allowed to be incurred under clause (i) of
subsection 12(d) of Section 1.01 of this Sixth Supplemental Indenture;
(ii) Liens incurred after the date of the indentures securing Debt of
the Company that ranks pari passu in right of payment to the Notes, so
long as the Notes are secured equally and ratably with such Debt for so
long as such Debt is secured; (iii) Liens in favor of the Company or
any Restricted Subsidiary; (iv) 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; (v) Liens
on property existing at the time of acquisition thereof by the Company
or any Restricted Subsidiary of the Company, provided that such Liens
were not incurred in contemplation of such acquisition; (vi) Liens
existing on the date of this Sixth Supplemental Indenture; (vii) 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; (viii) Liens
securing Permitted Refinancing Debt where the Liens securing the
Permitted Refinancing Debt were permitted under the Indenture; (ix)
landlords', carriers', warehousemen's, mechanics', 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; (x) 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; (xi)
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; (xii) any attachment or judgment
Lien that does not constitute an Event of Default; (xiii) Liens in
favor of the Trustee for its own benefit and for the benefit of the
Holders; (xiv) any interest or title of a lessor pursuant to a lease
constituting a Capital Lease Obligation; (xv) pledges or deposits made
in connection with acquisition agreements or letters of intent entered
into in respect of a proposed acquisition; (xvi) Liens in favor of
prior holders of leases on property acquired by the Company or of
sublessors under leases on the Company property; (xvii) 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); (xviii) Liens (including extensions and renewals
thereof) upon real or personal property acquired after the date of this
Sixth Supplemental Indenture; provided that (a) any such Lien is
51
created solely for the purpose of securing Debt incurred, in accordance
with subsection 12(d) of Section 1.01 of this Sixth Supplemental
Indenture (1) to finance the cost (including the cost of improvement or
construction) of the item, property or assets subject thereto 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; (xix)
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; (xx) Liens arising from filing Uniform
Commercial Code financing statements regarding leases; (xxi) 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; (xxii) Liens encumbering deposits
securing Debt under Permitted Interest Rate Currency or Commodity Price
Agreements; (xxiii) 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; (xxiv) any renewal of
or substitution of any Liens permitted by any of the preceding clauses,
provided that 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 the Liens are not extended to any additional assets (other
than proceeds and accessions); (xxv) 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 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 (xxvi) Liens on assets
of Unrestricted Subsidiaries that secure Non-Recourse Debt of
Unrestricted Subsidiaries. This covenant does not authorize the
incurrence of any Debt not otherwise permitted by subsection 12(d) of
Section 1.01 of this Sixth Supplemental Indenture.
"Permitted Transferee" means, with respect to any Person: (a)
any Affiliate of such Person; (b) any investment manager, investment
advisor, or constituent general partner of such Person; or (c) 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.
52
"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 Sixth
Supplemental Indenture except where otherwise permitted by the
provisions of this Sixth 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 Credit Suisse First Boston
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.
"Registration Rights Agreement" means the Registration Rights
Agreement for the Notes, dated the date hereof, 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 and, with respect to any Additional Notes, one or more
registration rights agreements between the Company and the other
parties thereto, as such agreement(s) may be amended, modified or
supplemented from time to time, relating to rights given by the Company
to the purchasers of Additional Notes to register such Additional Notes
under the Securities Act.
"Regulation S" means Regulation S promulgated under the
Securities Act.
"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 Sixth Supplemental Indenture.
53
"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.
"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.
"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.
54
"Unrestricted Subsidiary" means (i) at any date, a Subsidiary of
the Company that is an Unrestricted Subsidiary in accordance with the
provisions of subsection 12(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 12(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.
ARTICLE IV.
MISCELLANEOUS
Section 4.01 Definitions.
Capitalized terms used but not defined in this Sixth 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 Sixth
Supplemental Indenture, is in all respects ratified and confirmed, and the
Indenture and this Sixth 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 Sixth Supplemental Indenture).
Section 4.03 Concerning the Trustee.
The Trustee assumes no duties, responsibilities or liabilities by
reason of this Sixth 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 Sixth Supplemental Indenture, the Indenture and the Notes shall be
governed by and construed in accordance with the laws 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 Sixth 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.
55
Section 4.06 Counterparts.
This Sixth 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.
` 56
IN WITNESS WHEREOF, the parties hereto have caused this Sixth
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
Attest:
/s/ XXXXX XXXXX
------------------------
Name: Xxxxx Xxxxx
Title: Assistant Secretary
ALLIED WASTE INDUSTRIES, INC.
for purposes of Article 15 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
Attest:
----------------------
Name:
Title:
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
Attest*:
/s/ XXXXX XXXXX
-----------------------------
Name: Xxxxx Xxxxx
Title: Assistant Secretary
U.S. BANK TRUST NATIONAL ASSOCIATION
By:
-----------------------------------------
Name:
Title:
-----------------------
* Signing as duly authorized officer for each Subsidiary Guarantor.
EXHIBIT A
A-1
[Face of Note]
--------------------------------------------------------------------------------
CUSIP/CINS ____________
8 7/8% Series A Senior Secured Notes due 2008
No. ______ $____________
ALLIED WASTE NORTH AMERICA, INC.
promises to pay to Cede & Co.,
or registered assigns,
the principal sum of
-----------------------------------------------------------
Dollars on April 1, 2008.
Interest Payment Dates: April 1 and October 1, commencing October 1, 2001
Record Dates: March 15 and September 15
Dated: January 30, 2001
ALLIED WASTE NORTH AMERICA, 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
A-1
EXHIBIT A
[Back of Note]
8 7/8% Series A Senior Secured Notes due 2008
[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 provision
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
87/8% 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 shall pay interest and Special Interest
semi-annually in arrears on April 1 and October 1 of each year beginning October
1, 2001, 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 shall
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
October 1, 2001. 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 shall be computed on the
basis of a 360 day year of twelve 30 day months.
2. METHOD OF PAYMENT. The Company shall 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 March 15 or
September 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 shall be payable as to principal, premium and Special
A-2
EXHIBIT A
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 shall 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, shall act as Paying Agent and Registrar. The
Company may change any Paying Agent 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
December 23, 1998, as amended by the Sixth Supplemental Indenture dated as of
January 30, 2001 (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 xx.xx. 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.
5. OPTIONAL REDEMPTION.
(a) Except as set forth in subparagraph (b) and (c) of this Paragraph 5, the
Company shall not have the option to redeem the Notes prior to the final
maturity of such Notes.
(b) The Notes shall be subject to redemption at the option of the Company, in
whole or in part, at any time, upon not less than 30 nor more than 60 days'
notice mailed to each Holder of Notes to be redeemed at such Holder's address
appearing in the applicable 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) At any time, or from time to time, prior to April 1, 2004, up to 33 1/3% in
aggregate principal amount of the Notes originally issued under the Indenture
shall be redeemable, at the option of the Company, from the net proceeds of one
or more Public Offerings of Capital Stock (other than Redeemable Interests) of
Allied, at a Redemption Price equal to 108.875% of the principal amount thereof,
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); 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.
A-3
EXHIBIT A
6. 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.
7. 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.
8. NOTICE OF REDEMPTION. Notice of redemption shall be mailed no less than 30
days but no 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.
9. 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.
10. PERSONS DEEMED OWNERS. The registered Holder of a Note may be treated as its
owner for all purposes.
11. 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.
12. DEFAULTS AND REMEDIES. Events of Default include: (i) default for 30 days in
the payment when due of interest on the Notes; (ii) default in payment when due
of principal of or premium, if any, on the Notes when the same becomes due and
payable at maturity, upon redemption (including in connection with an Offer to
Purchase) or otherwise, (iii) failure by the Company to comply with subsections
12(a) or 12(b) of Section 1.01 of the Indenture or Article 7 of the Indenture
(as superseded by subsection 13 of Section 1.01 of the Sixth Supplemental
Indenture); (iv) failure by the Company for 60 days after notice to the Company
or the Holders of at least 10% in principal amount of the Notes (including
Additional Notes, if any) then outstanding voting as a single class to comply
with certain other agreements in the Indenture and the Notes; (v) default under
certain other agreements relating to Debt of the Company which default results
A-4
EXHIBIT A
in the acceleration of such Debt prior to its express maturity; (vi) certain
final judgments for the payment of money that remain undischarged for a period
of 60 days; and (vii) certain events of bankruptcy or insolvency with respect to
the Company or any of its Material Subsidiaries. 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 declare all the Notes to be due and payable.
Notwithstanding the foregoing, in the case of an Event of Default arising from
certain events of bankruptcy or insolvency, all outstanding Notes shall become
due and payable without further action or notice; 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 of such
issue 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 Notes
then outstanding 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.
13. 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.
14. 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.
15. AUTHENTICATION. This Note shall not be valid until authenticated by the
manual signature of the Trustee or an authenticating agent.
16. 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).
A-5
EXHIBIT A
17. 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 January 30, 2001, among the Company, the
Guarantors and the parties named on the signature pages thereof or, in the case
of Additional Notes, Holders of Restricted Global Notes and Restricted
Definitive Notes shall have the rights set forth in one or more registration
rights agreements, if any, between the Company and the other parties thereto,
relating to rights given by the Company to the purchasers of any Additional
Notes (collectively, the "Registration Rights Agreement").
18. 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 shall 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
A-5
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:
-------------------------------
A-7
EXHIBIT A
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company
pursuant to subsection 12(a) or 12(b) of Section 1.01 of the Sixth Supplemental
Indenture, check the appropriate box below:
Subsection 12(a) Subsection 12(b)
If you want to elect to have only part of the Note purchased by the
Company pursuant to subsection 12(a) or Section 12(b) of Section 1.01 of the
Sixth 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:
-------------------------------
A-8
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
Date of in Principal Amount Principal Amount of decrease (or of Trustee or Note
Exchange of this Global Note this Global Note increase) Custodian
------- --------------------- -------------------- --------------- ------------------
A-9
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: 8 7/8% Senior Secured Notes due 2008
Reference is hereby made to the Indenture, dated as of December 23,
1998, as amended by that Sixth Supplemental Indenture, dated as of January 30,
2001 (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
shall 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
B-1
EXHIBIT B
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 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 shall 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
B-2
EXHIBIT B
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 shall 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
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 shall 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 Regulation S. (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 shall 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 shall 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.
B-3
EXHIBIT B
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:
-------------------------
B-4
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.
B-5
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: 8 7/8% Senior Secured Notes due 2008
(CUSIP _________)
Reference is hereby made to the Indenture, dated as of December 23,
1998, as amended by that Sixth Supplemental Indenture, dated as of January 30,
2001 (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
C-1
EXHIBIT C
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 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 shall 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
C-2
EXHIBIT C
[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 shall 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.
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:
---------------------------------
C-3
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: 8 7/8% Senior Secured Notes due 2008
Reference is hereby made to the Indenture, dated as of December 23,
1998, as amended by that Indenture, dated as of January 30, 2001 (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 shall 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
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EXHIBIT D
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 shall be required to furnish to you and the
Company such certifications, legal opinions and other information 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
shall 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.
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[Insert Name of Accredited Investor]
By:
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Name:
Title:
Dated:
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