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Exhibit 4.6
THIRD SUPPLEMENTAL INDENTURE
THIRD SUPPLEMENTAL INDENTURE, dated as of December 23, 1998 (this
"Third Supplemental Indenture"), among ALLIED WASTE NORTH AMERICA, INC., a
corporation duly organized and existing under the laws of the State of Delaware
(the "Company"), having its principal office at 00000 Xxxxx Xxxxxxxx-Xxxxxx
Xxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000, each of the GUARANTORS signatory
hereto and U.S. BANK TRUST NATIONAL ASSOCIATION, a national banking association,
as Trustee (the "Trustee").
WITNESSETH:
WHEREAS, the Company, the Guarantors and the Trustee executed and
delivered an Indenture, dated as of December 23, 1998 (the "Indenture"), to
provide for the issuance by the Company from time to time of debt securities
evidencing its unsecured indebtedness;
WHEREAS, pursuant to Board Resolution (the "Resolutions"), the Company
has authorized the issuance of $1,000,000,000 of its 7 7/8% Series A Senior
Notes Due 2009 (the "Series A Ten-Year Notes") and $1,000,000,000 of its 7 7/8%
Series B Senior Notes Due 2009 (the "Series B Ten-Year Notes," and together with
the Series A Ten-Year Notes, the "Ten-Year Notes"); and
WHEREAS, the Company, the Guarantors and certain other parties named on
the signature page thereof entered into a Registration Rights Agreement dated as
of the date hereof (as such agreement may be amended, modified or supplemented
from time to time, the "Registration Rights Agreement") which contemplates (i)
the registration with the Securities and Exchange Commission (the "SEC") of the
issuance of the Series B Ten-Year Notes and (ii) the consummation of an Exchange
Offer (defined below) whereby the Series A Ten-Year Notes may be exchanged for
Series B Ten-Year Notes; and
WHEREAS, the Company desires to establish the terms of the Ten-Year
Notes in accordance with Section 3.1 of the Indenture and to establish the form
of the Ten-Year Notes in accordance with Section 2.1 of the Indenture.
ARTICLE I.
TERMS
SECTION 1.01. TERMS OF TEN-YEAR NOTES. The following terms relating to
the Ten-Year Notes are hereby established:
(1) The Series A Ten-Year Notes shall constitute a series of Securities
having the title "7 7/8% Series A Senior Notes Due 2009." The Series B Ten-Year
Notes shall constitute a series of Securities having the title "7 7/8% Series B
Senior Notes Due 2009."
(2) The aggregate principal amount of the Series A Ten-Year Notes that
may be authenticated and delivered under the Indenture (except for Series A
Ten-Year Notes authenticated and delivered upon registration of transfer of, or
in exchange for, or in lieu of, other Series A Ten-Year Notes pursuant to
Sections 3.4, 3.5, 3.6, 8.6 or 11.7 of the Indenture or any Securities that,
pursuant to Section 3.3, are deemed never to have been authenticated or
delivered thereunder) shall be up to $1,000,000,000. The aggregate principal
amount of the Series B Ten-Year Notes that may be authenticated and delivered
under the Indenture (except for Series B Ten-Year Notes authenticated and
delivered upon registration of transfer of or in exchange for or in lieu of,
other Series B Ten-Year Notes pursuant to Sections 3.4, 3.5,
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3.6, 8.6 or 11.7 of the Indenture or any Securities that, pursuant to Section
3.3, are deemed never to have been authenticated or delivered thereunder) shall
be up to $1,000,000,000.
(3) The entire outstanding principal of the Ten-Year Notes shall be
payable on January 1, 2009 (the "Stated Maturity Date").
(4) The rate at which the Ten-Year Notes shall bear interest shall be
7 7/8%; (a) with respect to the Series A Ten-Year Notes, interest shall accrue
from the date hereof; (b) with respect to the Series B Ten-Year Notes, the date
from which interest shall accrue shall be the date on which interest was most
recently paid on the Series A Ten-Year Notes, or if there has been no Interest
Payment Date relating to the Series A Ten-Year Notes prior to the issuance of
the Series B Ten-Year Notes, interest shall accrue from the date hereof; (c) the
Interest Payment Dates for the Ten-Year Notes on which interest will be payable
shall be January 1 and July 1 of each year, beginning July 1, 1999; the Regular
Record Dates for the interest payable on the Ten-Year Notes on any Interest
Payment Date shall be December 15 with respect to the January 1 Interest Payment
Date and June 15 with respect to the July 1 Interest Payment Date; (d) interest
on overdue principal and premium, if any, from time to time, shall be at a rate
of 2% per annum in excess of the rate then in effect; interest on overdue
installments of interest and Special Interest, if any, from time to time, shall
be at the same rate, to the extent lawful; and the basis upon which interest
shall be calculated shall be that of a 360-day year consisting of twelve 30-day
months.
(5) The place where the principal of (and premium, if any) and
interest, including, Special Interest, if any, with respect to and interest on
the Ten-Year Notes shall be payable and Ten-Year 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 Ten-Year Notes
and the Indenture may be served shall be the Corporate Trust Office of the
Trustee. In addition, payment of interest (including any Special Interest) on
any Ten-Year Note may, at the option of the Company, be made by check mailed to
the address of the Person in whose name the Ten-Year 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 Ten-Year Notes to Holders of which have given wire
instructions to the Company or the Paying Agent at least 10 Business Days prior
to the applicable payment date shall be made by wire transfer to an account
maintained by such Holder entitled thereto as specified by such Holder in the
instructions.
(6)
(A) The Ten-Year Notes will not be subject to any redemption at
the option of the Company prior to January 1, 2004 except as set forth
in the following paragraphs. On or after January 1, 2004, the Ten-Year
Notes will be subject to redemption, in whole or in part, at the option
of the Company at any time prior to maturity, upon not less than 30 nor
more than 60 days' notice mailed to each Holder of Ten-Year 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
the following Redemption Prices (expressed as percentages of principal
amount) plus accrued but unpaid interest (including Special Interest)
to but excluding the Redemption Date (subject to the right of Holders
of record on the relevant Regular Record Date to receive interest due
on an Interest Payment Date that is on or prior to the Redemption
Date), if redeemed during the twelve-month period beginning on January
1 of each of the years indicated below:
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REDEMPTION
YEAR PRICE
2004 ..................... 103.9375%
2005 ..................... 102.6250%
2006 ..................... 101.3125%
2007 and thereafter ...... 100.0000%
(B) Prior to January 1, 2004, the Ten-Year Notes will be subject
to redemption, at the option of the Company, in whole or in part, at
any time, upon not less than 30 nor more than 60 days' notice mailed to
each Holder of Ten-Year 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 January 1, 2002,
up to 33 1/3% in aggregate principal amount of the Ten-Year Notes
originally issued under the Indenture will 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 107.9% 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.
(7) Except as set forth in this Third Supplemental Indenture, the
Ten-Year Notes shall not be redeemable at the option of any Holder thereof, upon
the occurrence of any particular circumstances or otherwise. The Ten-Year Notes
will not have the benefit of any sinking fund.
(8) The Ten-Year Notes shall be issuable in denominations of $1,000.
(9) Payments of the principal of, Special Interest, if any, with
respect to and interest on the Ten-Year Notes shall be made in U.S. Dollars, and
the Ten-Year Notes shall be denominated in U.S. Dollars.
(10) The Trustee shall also be the Security Registrar and Paying Agent.
(11) The entire outstanding principal amount of and any accrued
interest, if any, on the Ten-Year Notes shall be payable upon declaration of
acceleration of the maturity thereof pursuant to Article 5 of the Indenture.
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(12) The Ten-Year Notes will be payable on the Stated Maturity Date in
an amount equal to the principal amount thereof, Special Interest, if any, plus
any accrued and unpaid interest accrued to the Stated Maturity Date.
(13) There shall be the following additions to the covenants set forth
in the Indenture with respect to the Ten-Year Notes, which shall be effective
only for so long as any of the Ten-Year Notes are Outstanding:
(a) Asset Dispositions.
The Company shall not make, and shall not permit any Restricted
Subsidiary to make, any Asset Disposition unless: (i) the Company (or
such Restricted Subsidiary, as the case may be) receives consideration
at the time of such disposition at least equal to the fair market value
of the shares or the assets disposed of, as determined in good faith by
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 Ten-Year Notes) and release from
all liability on such Debt or other liabilities assumed, (w) assets
used in, or stock or other ownership interests in a Person that upon
the consummation of such Asset Disposition becomes a Restricted
Subsidiary and will be principally engaged in, the business of the
Company or any of its Restricted Subsidiaries as such business is
conducted immediately prior to such Asset Disposition, (x) any
securities, notes or other obligations received by the Company or any
such Restricted Subsidiary from such transferee that are
contemporaneously (subject to ordinary settlement periods) converted by
the Company or such Restricted Subsidiary into cash or Cash Equivalents
(to the extent of cash and Cash Equivalents received), (y) any
Designated Noncash Consideration received pursuant to this clause (y)
that is at the time outstanding, not to exceed 15% of Consolidated
Total Assets at the time of the receipt of such Designated Noncash
Consideration (with the fair market value of each item of Designated
Noncash Consideration being measured at the time received and without
giving effect to subsequent changes in value), or (z) any combination
thereof; and (iii) 100% of the Net Available Proceeds from such Asset
Disposition (including from the sale of any marketable cash equivalents
received therein) are applied by the Company or a Restricted Subsidiary
(A) first, within one year from the later of the date of such Asset
Disposition or the receipt of such Net Available Proceeds, to Debt of
the Company or its Restricted Subsidiaries then outstanding under the
Bank Agreement which would require such application or which would
prohibit payments pursuant to Clause (B) following; (B) second, to the
extent Net Available Proceeds are not required to be applied as
specified in Clause (A), to purchases on a pro rata basis of
Outstanding Senior Notes of each issue pursuant to an Offer to Purchase
(to the extent such an offer is not prohibited by the terms of the Bank
Agreement then in effect) at a purchase price equal to 100% of their
principal amount plus accrued interest to the date of purchase (subject
to the rights of Holders of record on the relevant Regular Record Date
to receive interest due on an Interest Payment Date that is on or prior
to the purchase date); and (C) third, to the extent of any remaining
Net Available Proceeds
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following completion of such Offer to Purchase, to any other use as
determined by the Company which is not otherwise prohibited by the
Indenture and provided further that the 75% limitation referred to in
clause (ii) above will 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 less any amounts
("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 Senior Notes of any series with the Net
Available Proceeds pursuant to any of the provisions of paragraph 5(b)
of the Senior Notes.
Notwithstanding the foregoing, the Company shall not be required
to comply with the requirements described in Clause (ii) of the second
preceding paragraph if the Asset Disposition is an Excepted
Disposition.
The Company shall mail the Offer Document for an Offer to Purchase
required pursuant to this subsection 13(a) within 30 days after the
date which is one year after the later of the date of consummation of
the Asset Disposition referred to in this subsection 13(a) or the
receipt of the Net Available Proceeds from such Asset Disposition. The
aggregate principal amount of the Ten-Year Notes to be offered to be
purchased pursuant to the Offer to Purchase shall equal the Net
Available Proceeds required to be made available therefor pursuant to
Clause (iii)(B) of this subsection 13(a) (rounded down to the next
lowest integral multiple of $1,000). Each Holder shall be entitled to
tender all or any portion of the Ten-Year Notes owned by such Holder
pursuant to the Offer to Purchase, subject to the requirement that any
portion of a Ten-Year Note tendered must be tendered in an integral
multiple of $1,000 principal amount.
(b) Change of Control.
Within 30 days following the date the Company becomes aware of the
consummation of a transaction that results in a Change of Control (as
defined below), the Company shall commence an Offer to Purchase all
Outstanding Notes, at a purchase price equal to 101% of their aggregate
principal amount plus accrued interest, if any, to the date of purchase
(subject to the rights of Holders of record on the relevant Regular
Record Date to receive interest due on an Interest Payment Date that is
on or prior to the date of purchase).
A "Change of Control" shall be deemed to have occurred in the
event that, after the date of this Third 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, as defined below),
acting together that would constitute a "Group" (a "Group") for
purposes of Section 13(d) of the Exchange Act, together with any
Affiliates or Related Persons thereof (other than any employee stock
ownership plan), beneficially own 50% or more of the total
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voting power of all classes of Voting Stock of Allied, (b) any Person
or Group, together with any Affiliates or Related Persons thereof,
succeeds in having sufficient of its nominees who have not been
approved by the Continuing Directors elected to the Board of Directors
of 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 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 Third 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 (ii) if the Company is not a Subsidiary of
Allied, (a) any Person, or any Persons (other than a Permitted Company
Successor, as defined below), acting together that would constitute a
"Group" (a "Group") for purposes of Section 13(d) of the Exchange Act,
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 Group, together with any Affiliates or Related Persons
thereof, succeeds in having sufficient of its nominees who have not
been approved by the Continuing Directors elected to the Board of
Directors of the Company such that such nominees, when added to any
existing director remaining on the Board of Directors of the Company
after such election who is an Affiliate or Related Person of such
Person or 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 the
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).
A "Permitted Allied Successor" means 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. A "Permitted Company Successor" means
an issuer, other than the Company, of Voting Securities issued to the
shareholders of the Company in a merger, consolidation or other
transaction permitted by clause (ii)(c) of the definition of Change of
Control.
The Company shall comply with the requirements of Rule 14e-1 under
the Exchange Act and any other securities laws and regulations
thereunder to the extent such
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laws and regulations are applicable in connection with the repurchase
of the Ten-Year 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
Ten-Year 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 Ten-Year Notes or portions thereof so accepted and (iii)
deliver or cause to be delivered to the Trustee all Ten-Year Notes so
accepted together with an Officers' Certificate stating the Ten-Year
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 Ten-Year Notes so accepted payment in an amount
equal to the Purchase Price for each $1,000 of Ten-Year Notes so
accepted, and the Company shall promptly execute a new Ten-Year Note or
Ten-Year Notes equal in principal amount to any unpurchased portion of
the Ten-Year 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 Ten-Year Note
or Ten-Year Notes. Any Ten-Year Note not accepted for payment shall be
promptly mailed or delivered by the Company to the Holder thereof. The
Company shall publicly announce the results of the Offer to Purchase on
or as soon as practicable after the Purchase Date.
(c) Changes in Covenants when Senior Notes rated Investment Grade.
Following the first date upon which any issue of the Senior 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 Senior 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 13(a),
13(d), 13(e), 13(f), 13(h) and 13(j) of this Section 1.01 of this Third
Supplemental Indenture shall no longer be applicable to the Ten-Year
Notes.
(d) Limitation on Consolidated Debt.
The Company shall not incur any Debt and shall not permit
Restricted Subsidiaries to Incur any Debt or issue Preferred Stock
unless, immediately after giving effect to the Incurrence of such Debt
or issuance of such Preferred Stock and the receipt and application of
the proceeds thereof, the Consolidated EBITDA Coverage Ratio of the
Company for the four full fiscal quarters next preceding the Incurrence
of such Debt or issuance of such Preferred Stock, calculated on a pro
forma basis as if such Debt had been Incurred or such Preferred Stock
had been issued and the proceeds thereof had been received and so
applied at the beginning of the four full fiscal quarters, would be
greater than 2.0 to 1.0.
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Without regard to the foregoing limitations, the Company or any
Restricted Subsidiary of the Company may Incur the following Debt:
(i) Debt under the Bank Agreement in an aggregate principal
amount at any one time outstanding not to exceed the amount
permitted to be borrowed thereunder;
(ii) Debt evidenced by the Senior Notes and the Guarantees;
(iii) Debt owed by the Company to any Restricted Subsidiary
or Debt owed by a Restricted Subsidiary to the Company or to a
Restricted Subsidiary; provided, however, that in the event that
either (x) the Company or the Restricted Subsidiary to which such
Debt is owed transfers or otherwise disposes of such Debt to a
Person other than the Company or another Restricted Subsidiary or
(y) such Restricted Subsidiary ceases to be a Restricted
Subsidiary, the provisions of this Clause (iii) shall no longer be
applicable to such Debt and such Debt shall be deemed to have been
incurred at the time of such transfer or other disposition or at
the time such Restricted Subsidiary ceases to be a Restricted
Subsidiary;
(iv) Debt outstanding on the date of this Third Supplemental
Indenture;
(v) Debt incurred in connection with an acquisition, merger
or consolidation transaction permitted under the provisions of the
Indenture described under Section 7.1 of the Indenture (as
superseded by subsection 15 of Section 1.01 of this Third
Supplemental Indenture), which Debt (A) was issued by a Person
prior to the time such Person becomes a Restricted Subsidiary in
such transaction (including by way of merger of consolidation with
the Company or another Restricted Subsidiary) and was not issued
in contemplation of such transaction or (B) is issued 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 Third Supplemental Indenture
described under this Clause (v) and then outstanding does not
exceed 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
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Clause (viii) and then outstanding, does not exceed 7.5% of the
Consolidated Total Assets of the Company at the time of such
Incurrence.
(e) Limitation on Restricted Payments.
The Company shall not, and shall not permit any Restricted
Subsidiary to, directly or indirectly, (i) declare or pay any dividend,
or make any distribution, of any kind or character (whether in cash,
property or securities) in respect of the Capital Stock of the Company
or any Restricted Subsidiary or to the holders thereof in their
capacity as such (excluding any dividends or distributions (u) to the
extent payable in shares of the Capital Stock of the Company (other
than Redeemable Interests) or in options, warrants or other rights to
acquire the Capital Stock of the Company (other than Redeemable
Interests), (v) dividends or distributions by a Restricted Subsidiary
to the Company or another Wholly Owned Restricted Subsidiary and (w)
the payment of pro rata dividends by a Restricted Subsidiary to holders
of both minority and majority interests in such Restricted Subsidiary),
(ii) purchase, redeem or otherwise acquire or retire for value (a) any
Capital Stock of the Company or any Capital Stock of or other ownership
interests in any Subsidiary or any Affiliate or Related Person of the
Company or (b) any options, warrants or 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 Ten-Year 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 13(d) of this Section 1.01 of this Third Supplemental
Indenture; or
(3) upon giving effect to such Restricted Payment, the
aggregate of all Restricted Payments (excluding Restricted
Payments permitted by Clauses (ii), (iii), (iv), (v) and (vii) of
the next succeeding paragraph) from the date of the 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
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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 the Third 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 the Third 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 Third
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 13(d) of this Section 1.01
of this Third 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) of the
foregoing paragraph of this subsection 13(e);
(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 Refinancing Transactions;
(vi) 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 13(b)
of Section 1.01 of this Third Supplemental Indenture; provided
that
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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 Ten-Year Notes and repurchased all
Ten-Year Notes validly tendered for repayment in connection with
such Change of Control Offer;
(vii) the purchase or redemption of any Debt from Net
Available Proceeds to the extent permitted under subsection 13(a)
of Section 1.01 of this Third Supplemental Indenture; and
(viii) 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 resignation for purposes of calculating the aggregate amount of
Restricted Payments (including the Restricted Payment resulting from
such designation) permitted under this subsection 13(e) of Section 1.01
of this Third 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:
(a) pursuant to the Senior 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 Third Supplemental
Indenture, (b) pursuant to the Bank Agreement, including any Guarantees
of or Liens securing the Debt Incurred thereunder, (c) pursuant to an
agreement relating to any Debt Incurred by such Subsidiary prior to the
date on which such Subsidiary was acquired by the Company and
outstanding on such date and not incurred in anticipation of becoming a
Subsidiary, (d) pursuant to an agreement which has been entered into
for the pending sale or disposition of all or substantially all of the
Capital Stock, other ownership interests or assets of such Subsidiary,
provided that such restriction terminates upon consummation or
abandonment of such disposition and upon termination of such agreement,
(e) pursuant to customary non-assignment provisions in leases 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 the Indenture that
impose restrictions of the nature described in Clause (iii) above on
the property subject to the Lien of such security agreement, (g)
pursuant to 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
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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.
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
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Board of Directors in good faith; (e) any agreement as in effect on the
date of this Third Supplemental Indenture or any amendment thereto (so
long as such amendment is not disadvantageous to the Holders of the
Ten-Year Notes in any material respect) or any transaction contemplated
thereby; (f) payments and transactions in connection with the Tender
Offers, and the payment of the fees and expenses with respect thereto;
and (g) Restricted Payments that are permitted by the provisions of
subsection 13(e) of Section 1.01 of this Third 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
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 Third 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:
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(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
subsection 13(e) of Section 1.01 of this Third 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:
(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 Guaranty 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.
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(14) (a) In addition to the Events of Default set forth in Section 5.1
of the Indenture, the Ten-Year Notes shall include the following additional
Event of Default designated as clause (j) of such Section, which shall be deemed
an Event of Default under Section 5.1 of the Indenture:
"(j) failure to perform or comply with the provisions of Section
7.1 of the Indenture (as superseded by subsection 15 of Section 1.01
hereof) or the provisions of subsection 13(a) and subsection 13(b) of
Section 1.01 of this Third Supplemental Indenture"
(b) In addition, Section 5.1 of the Indenture is further
supplemented by adding the following paragraph thereto:
"If an Event of Default occurs at any time by reason of any
willful action (or inaction) taken (or not taken) by or on behalf of
the Company with the intention of avoiding payment of the premium that
the Company would have had to pay if the Company then had elected to
redeem the Ten-Year Notes pursuant to Article 11 of the Indenture and
paragraph 5(b) of the Ten-Year Notes, then, upon acceleration of the
Ten-Year 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 Ten-Year Notes to the contrary
notwithstanding."
(15) Section 7.1 of the Indenture is hereby superseded by the following
in respect of the Ten-Year Notes:
The Company (i) may not consolidate with or merge into any Person; (ii)
may not permit any Person other than a Restricted Subsidiary to consolidate with
or merge into the Company; and (iii) may not, directly or indirectly, in one or
a series of transactions, transfer, convey, sell, lease or otherwise dispose of
all or substantially all of the properties and assets of the Company and its
Subsidiaries on a consolidated basis; unless, in each case of (i), (ii) and
(iii) above:
(1) immediately before and after giving effect to such transaction
(or series) and treating any Debt Incurred by the Company or a
Subsidiary of the Company as a result of such transaction (or series)
as having been incurred by the Company of such Subsidiary at the time
of the transaction (or series), no 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 the 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
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period for which internal financial statements are available
immediately preceding the date of such transaction (or series), have
been permitted to Incur at least $1.00 of additional Debt pursuant to
the Consolidated EBITDA Coverage Ratio test set forth in the first
paragraph under subsection 13(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 13(g) of this Section 1.01,
the Company or the successor entity will have secured the Ten-Year
Notes as required by such covenant; and
(5) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel as specified in the Indenture.
The Company shall deliver to the Trustee prior to the proposed
consolidation, merger, sale, transfer, lease or other disposition an
Officers' Certificate to the foregoing effect and an Opinion of Counsel
stating that the proposed consolidation, merger, sale, transfer, lease
or other disposition and such supplemental indenture comply with this
Third Supplemental Indenture and that all conditions precedent to the
consummation of such transaction under this Section 7.1 have been met."
(16) Section 8.1 of the Indenture is hereby supplemented by adding the
following as subsection (m) thereof in respect of the Ten-Year Notes:
(m) to provide for the issuance of Additional Notes in accordance
with the limitations set forth in this Third 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 Ten-Year Notes:
"(d) In the event that any Subsidiary Guarantor ceases to be a
guarantor under, or to pledge any of its assets to secure obligations
under, the Bank Agreement, such Guarantor shall be released from all of
its obligations under its Senior Guarantee endorsed on the Securities
and under this Article 15."
(18) The Ten-Year Notes shall not be issuable as Bearer Securities.
(19) Interest on any Ten-Year Note shall be payable only to the Person
in whose name that Ten-Year Note (or one or more predecessor Ten-Year 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 Ten-Year
Notes.
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(21) The Ten-Year Notes shall not be issuable in definitive form except
under the circumstances described in Section 2.1 of the Indenture.
(22) The Ten-Year Notes shall not be subordinated to any other debt of
the Company, and shall constitute senior unsecured obligations of the Company.
(23) For all purposes, the Series A Ten-Year Notes and the Series B
Ten-Year Notes shall be treated as one series of Securities under the Indenture.
SECTION 1.02. FORMS.
(1) Attached hereto as Exhibit A is a true and correct copy of the Form
of Ten-Year Note representing the Company's Ten-Year Notes.
(2) Attached hereto as Exhibit B is a true and correct copy of a
specimen certificate of transfer.
(3) Attached hereto as Exhibit C is a true and correct copy of a
specimen certificate of exchange.
(4) Attached hereto as Exhibit D is a true and correct copy of a
specimen certificate from acquiring institutional accredited investor.
(5) The form of 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 in respect of the Ten-Year Notes:
(a) General. The Ten-Year Notes and the Trustee's certificate of
authentication shall be substantially in the form of Exhibit A hereto. The
Ten-Year Notes may have notations, legends or endorsements required by law,
stock exchange rule or usage. Each Ten-Year Note shall be dated the date of its
authentication. The Ten-Year Notes shall be in denominations of $1,000 and
integral multiples thereof.
The terms and provisions contained in the Ten-Year Notes shall
constitute, and are hereby expressly made, a part of this Third Supplemental
Indenture and the Company, the Guarantors and the Trustee, by their execution
and delivery of this Third Supplemental Indenture, expressly agree to such terms
and provisions and to be bound thereby. However, to the extent any provision of
any Ten-Year Note conflicts with the express provisions of this Third
Supplemental Indenture, the provisions of this Third Supplemental Indenture
shall govern and be controlling.
(b) Global Notes. Ten-Year 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). Ten-Year 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 Ten-Year Notes as shall be specified therein and each shall
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provide that it shall represent the aggregate principal amount of outstanding
Ten-Year Notes from time to time endorsed thereon and that the aggregate
principal amount of outstanding Ten-Year 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 Ten-Year
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 Third Supplemental Indenture.
(c) Euroclear and Cedel Procedures Applicable. The provisions of the
"Operating Procedures of the Euroclear System" and "Terms and Conditions
Governing Use of Euroclear" and the "General Terms and Conditions of Cedel Bank"
and "Customer Handbook" of Cedel Bank shall be applicable to transfers of
beneficial interests in Global Notes that are held by Participants through
Euroclear or Cedel Bank.
Section 2.02. Registration, Transfer and Exchange. Section 3.5 of the
Indenture is hereby modified and superseded in its entirety as follows in
respect of the Ten-Year Notes:
(a) Transfer and Exchange of Global Notes. A Global Note may not be
transferred as a whole except by the Depositary to a nominee of the Depositary,
by a nominee of the Depositary to the Depositary or to another nominee of the
Depositary, or by the Depositary or any such nominee to a successor Depositary
or a nominee of such successor Depositary. All Global Notes will be exchanged by
the Company for Definitive Notes if (i) the Company delivers to the Trustee
notice from the Depositary that it is unwilling or unable to continue to act as
Depositary or that it is no longer a clearing agency registered under the
Exchange Act and, in either case, a successor Depositary is not appointed by the
Company within 90 days after the date of such notice from the Depositary, (ii)
the Company in its sole discretion determines that the Global Notes (in whole
but not in part) should be exchanged for Definitive Notes and delivers a written
notice to such effect to the Trustee or (iii) there shall have occurred and be
continuing a Default or an Event of Default under the Indenture with respect to
the Senior 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 Ten-Year 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 Ten-Year 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 Third 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 Third
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 Third 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
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thereof in the form of a beneficial interest in the same Restricted
Global Note in accordance with the transfer restrictions set forth in
the Private Placement Legend; provided, however, that prior to the
expiration of the Restricted Period, transfers of beneficial interests
in the Regulation S Global Note may not be made to a U.S. Person or for
the account or benefit of a U.S. Person (other than an Initial
Purchaser). Beneficial interests in any Unrestricted Global Note may be
transferred to Persons who take delivery thereof in the form of a
beneficial interest in an Unrestricted Global Note. No written orders
or instructions shall be required to be delivered to the Registrar to
effect the transfers described in this Section 2.02(b)(i).
(ii) All Other Transfers and Exchanges of Beneficial Interests in
Global Notes. In connection with all transfers and exchanges of
beneficial interests that are not subject to Section 2.02(b)(i) above,
the transferor of such beneficial interest must deliver to the
Registrar either (A) (1) a written order from a Participant or an
Indirect Participant given to the Depositary in accordance with the
Applicable Procedures directing the Depositary to credit or cause to be
credited a beneficial interest in another Global Note in an amount
equal to the beneficial interest to be transferred or exchanged and (2)
instructions given in accordance with the Applicable Procedures
containing information regarding the Participant account to be credited
with such increase or (B)(1) a written order from a Participant or an
Indirect Participant given to the Depositary in accordance with the
Applicable Procedures directing the Depositary to cause to be issued a
Definitive Note in an amount equal to the beneficial interest to be
transferred or exchanged and (2) instructions given by the Depositary
to the Registrar containing information regarding the Person in whose
name such Definitive Note shall be registered to effect the transfer or
exchange referred to in (1) above. Upon consummation of an Exchange
Offer by the Company in accordance with Section 2.02(f) of this Third
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 Third
Supplemental Indenture and the Ten-Year 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
Third Supplemental Indenture.
(iii) Transfer of Beneficial Interests to Another Restricted
Global Note. A beneficial interest in any Restricted Global Note may be
transferred to a Person who takes delivery thereof in the form of a
beneficial interest in another Restricted Global Note if the transfer
complies with the requirements of Section 2.02(b)(ii) above and the
Registrar receives the following:
(A) if the transferee will take delivery in the form of a
beneficial interest in the 144A Global Note, then the transferor
must deliver a certificate in the form of Exhibit B hereto,
including the certifications in item (1) thereof;
(B) if the transferee will take delivery in the form of a
beneficial interest in the Regulation S Global Note, then the
transferor must deliver a certificate in the form of Exhibit B
hereto, including the certifications in item (2) thereof; and
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(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;
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 Third 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
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Authentication Order in accordance with Section 3.3 of the Indenture, the
Trustee shall authenticate one or more Unrestricted Global Notes in an aggregate
principal amount equal to the aggregate principal amount of beneficial interests
transferred pursuant to subparagraph (B) or (D) above.
Beneficial interests in an Unrestricted Global Note cannot be exchanged
for, or transferred to Persons who take delivery thereof in the form of, a
beneficial interest in a Restricted Global Note.
(c) Transfer or Exchange of Beneficial Interests for Definitive Notes.
(i) Beneficial Interests in Restricted Global Notes to Restricted
Definitive Notes. If any Holder of a beneficial interest in a
Restricted Global Note proposes to exchange such beneficial interest
for a Restricted Definitive Note or to transfer such beneficial
interest to a Person who takes delivery thereof in the form of a
Restricted Definitive Note, then, upon receipt by the Registrar of the
following documentation:
(A) if the Holder of such beneficial interest in a Restricted
Global Note proposes to exchange such beneficial interest for a
Restricted Definitive Note, a certificate from such Holder in the
form of Exhibit C hereto, including the certifications in item
(2)(a) thereof;
(B) if such beneficial interest is being transferred to a QIB
in accordance with Rule 144A under the Securities Act, a
certificate to the effect set forth in Exhibit B hereto, including
the certifications in item (1) thereof;
(C) if such beneficial interest is being transferred to a
Non-U.S. Person in an offshore transaction in accordance with Rule
903 or Rule 904 under the Securities Act, a certificate to the
effect set forth in Exhibit B hereto, including the certifications
in item (2) thereof;
(D) if such beneficial interest is being transferred pursuant
to an exemption from the registration requirements of the
Securities Act in accordance with 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 Third Supplemental Indenture, and
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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 Ten-Year
Notes are so registered. Any Restricted Definitive Note issued in
exchange for a beneficial interest in a Restricted Global Note pursuant
to this Section 2.02(c)(i) shall bear the Private Placement Legend and
shall be subject to all restrictions on transfer contained therein.
(ii) Beneficial Interests in Restricted Global Notes to
Unrestricted Definitive Notes. A Holder of a beneficial interest in a
Restricted Global Note may exchange such beneficial interest for an
Unrestricted Definitive Note or may transfer such beneficial interest
to a Person who takes delivery thereof in the form of an Unrestricted
Definitive Note only if:
(A) such exchange or transfer is effected pursuant to an
Exchange Offer in accordance with the applicable Registration
Rights Agreement and the Holder of such beneficial interest, in
the case of an exchange, or the transferee, in the case of a
transfer, certifies in the applicable Letter of Transmittal that
it is not (1) a broker-dealer, (2) a Person participating in the
distribution of the Exchange Notes or (3) a Person who is an
affiliate (as defined in Rule 144) of the Company;
(B) such transfer is effected pursuant to a Shelf
Registration Statement in accordance with the applicable
Registration Rights Agreement;
(C) such transfer is effected by a Broker-Dealer pursuant to
the Exchange Offer Registration Statement in accordance with the
Registration Rights Agreement; or
(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
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in compliance with the Securities Act and that the restrictions on
transfer contained in this Third 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
Note, then, upon satisfaction of the conditions set forth in Section
2.02(b)(ii) of this Third 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 Third
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 Ten-Year 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 Ten-Year 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 Ten-Year 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
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Securities Act, a certificate to the effect set forth in Exhibit B
hereto, including the certifications in item (2) thereof;
(D) if such Restricted Definitive Note is being transferred
pursuant to an exemption from the registration requirements of the
Securities Act in accordance with Rule 144 under the Securities
Act, a certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (3)(a) thereof;
(E) if such Restricted Definitive Note is being transferred
to an Institutional Accredited Investor in reliance on an
exemption from the registration requirements of the Securities Act
other than those listed in subparagraphs (B) through (D) above, a
certificate to the effect set forth in Exhibit B hereto, including
the certifications, certificates and Opinion of Counsel required
by item (3) thereof, if applicable;
(F) if such Restricted Definitive Note is being transferred
to the Company or any of its Subsidiaries, a certificate to the
effect set forth in Exhibit B hereto, including the certifications
in item (3)(b) thereof; or
(G) if such Restricted Definitive Note is being transferred
pursuant to an effective registration statement under the
Securities Act, a certificate to the effect set forth in Exhibit B
hereto, including the certifications in item (3)(c) thereof,
the Trustee shall cancel the Restricted Definitive Note, increase or
cause to be increased the aggregate principal amount of, in the case of
clause (A) above, the appropriate Restricted Global Note, in the case
of clause (B) above, the 144A Global Note, in the case of clause (C)
above, the Regulation S Global Note, and in all other cases, the IAI
Global Note.
(ii) Restricted Definitive Notes to Beneficial Interests in
Unrestricted Global Notes. A Holder of a Restricted Definitive Note may
exchange such Ten-Year 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:
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(1) if the Holder of such Definitive Notes proposes to
exchange such Ten-Year Notes for a beneficial interest in the
Unrestricted Global Note, a certificate from such Holder in
the form of Exhibit C hereto, including the certifications in
item (1)(c) thereof; or
(2) if the Holder of such Definitive Notes proposes to
transfer such Ten-Year 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 Third 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 Ten-Year 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).
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(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 Ten-Year Notes for an Unrestricted
Definitive Note, a certificate from such Holder in the form
of Exhibit C hereto, including the certifications in item
(1)(d) thereof; or
(2) if the Holder of such Restricted Definitive Notes
proposes to transfer such Ten-Year 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;
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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 Third 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
Ten-Year 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 Ten-Year 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 Third Supplemental Indenture
unless specifically stated otherwise in the applicable provisions of this Third
Supplemental Indenture.
(i) Private Placement Legend.
(A) Except as permitted by subparagraph (B) below, each
Global Note and each Definitive Note (and all Ten-Year Notes
issued in exchange therefor or substitution thereof) shall bear
the legend in substantially the following form:
"THIS NOTE (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED UNDER
THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED, SOLD, PLEDGED OR
OTHERWISE TRANSFERRED WITHIN THE UNITED STATES OR TO, OR FOR THE
ACCOUNT OR BENEFIT OF, U.S. PERSONS, EXCEPT AS SET FORTH IN THE
NEXT SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL
INTEREST HEREIN, THE HOLDER:
(1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL
BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) (A
"QIB"), (B) IT HAS ACQUIRED THIS NOTE IN
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AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER
THE SECURITIES ACT OR (C) IT IS AN INSTITUTIONAL "ACCREDITED
INVESTOR" (AS DEFINED IN RULE 501(A)(1), (2), (3) OR (7) OR
REGULATION D UNDER THE SECURITIES ACT) (AN "IAI"),
(2) AGREES THAT IT WILL NOT RESELL OR OTHERWISE TRANSFER
THIS NOTE EXCEPT (A) TO THE COMPANY OR ANY OF ITS
SUBSIDIARIES, (B) TO A PERSON WHOM THE SELLER REASONABLY
BELIEVES IS A QIB PURCHASING FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QIB IN A TRANSACTION MEETING THE REQUIREMENTS OF
RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR 904 OF THE SECURITIES ACT, (D) IN
A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144 UNDER THE
SECURITIES ACT, (E) TO AN IAI THAT, PRIOR TO SUCH TRANSFER,
FURNISHES THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN
REPRESENTATIONS AND AGREEMENTS RELATING TO THE TRANSFER OF
THIS NOTE (THE FORM OF WHICH CAN BE OBTAINED FROM THE
TRUSTEE) AND, IF SUCH TRANSFER IS IN RESPECT OF AN AGGREGATE
PRINCIPAL AMOUNT OF NOTES LESS THAN $250,000, AN OPINION OF
COUNSEL ACCEPTABLE TO THE COMPANY THAT SUCH TRANSFER IS IN
COMPLIANCE WITH THE SECURITIES ACT, (F) IN ACCORDANCE WITH
ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL
ACCEPTABLE TO THE COMPANY) OR (G) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT AND, IN EACH CASE, IN ACCORDANCE WITH
THE APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED
STATES OR ANY OTHER APPLICABLE JURISDICTION AND
(3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM
THIS NOTE OR AN INTEREST HEREIN IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.
AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION" AND "UNITED
STATES" HAVE THE MEANINGS GIVEN TO THEM BY RULE 902 OF REGULATION
S UNDER THE SECURITIES ACT. THE INDENTURE CONTAINS A PROVISION
REQUIRING THE TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF THIS
NOTE IN VIOLATION OF THE FOREGOING.
(B) Notwithstanding the foregoing, any Global Note or
Definitive Note issued pursuant to subparagraphs (b)(iv), (c)(ii),
(c)(iii), (d)(ii), (d)(iii), (e)(ii), (e)(iii) or (f) to this
Section 2.02 (and all Ten-Year Notes issued in exchange therefor
or substitution thereof) shall not bear the Private Placement
Legend.
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(ii) Global Note Legend. Each Global Note shall bear a legend in
substantially the following form:
"THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN
THE INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR
THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT
TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (I)
THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED
PURSUANT TO SECTION 3.6 OF THE INDENTURE, (II) THIS GLOBAL NOTE
MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 3.5
OF THE INDENTURE, (III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE
TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 3.9 OF THE INDENTURE
AND (IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR
DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF 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 shall be returned to or
retained and canceled by the Trustee in accordance with Section 3.9 of the
Indenture. At any time prior to such cancellation, if any beneficial interest in
a Global Note is exchanged for or transferred to a Person who will take delivery
thereof in the form of a beneficial interest in another Global Note or for
Definitive Notes, the principal amount of Ten-Year Notes represented by such
Global Note shall be reduced accordingly and an endorsement shall be made on
such Global Note by the Trustee or by the Depositary at the direction of the
Trustee to reflect such reduction; and if the beneficial interest is being
exchanged for or transferred to a Person who will take delivery thereof in the
form of a beneficial interest in another Global Note, such other Global Note
shall be increased accordingly and an endorsement shall be made on such Global
Note by the Trustee or by the Depositary at the direction of the Trustee to
reflect such increase.
(i) General Provisions Relating to Transfers and Exchanges.
(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 subsections 3.4, 8.6 and 11.7 of
Section 1.01 of the Indenture and subsections 13(a) and 13(b) of
Section 1.01 of this Third Supplemental Indenture).
(iii) The Registrar shall not be required to register the transfer
of or exchange any Ten-Year Note selected for redemption in whole or in
part, except the unredeemed portion of any Ten-Year Note being redeemed
in part.
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(iv) All Global Notes and Definitive Notes issued upon any
registration of transfer or exchange of Global Notes or Definitive
Notes shall be the valid obligations of the Company, evidencing the
same debt, and entitled to the same benefits of the Indenture, as the
Global Notes or Definitive Notes surrendered upon such registration of
transfer or exchange.
(v) The Company shall not be required (A) to issue, to register
the transfer of or to exchange any Ten-Year Notes during a period
beginning at the opening of business 15 days before the day of any
selection of Ten-Year 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 Ten-Year Note so
selected for redemption in whole or in part, except the unredeemed
portion of any Ten-Year Note being redeemed in part or (C) to register
the transfer of or to exchange a Ten-Year 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 Ten-Year Note, the Trustee, any Agent and the Company may deem
and treat the Person in whose name any Ten-Year Note is registered as
the absolute owner of such Ten-Year Note for the purpose of receiving
payment of principal of and interest on such Ten-Year 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 3.03. ADDITIONAL DEFINITIONS. In addition to the definitions
set forth in Article I of the Indenture, the Ten-Year 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 will be issued in a
denomination equal to the outstanding principal amount of the Ten-Year
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.
"Additional Notes" means up to $125 million aggregate principal
amount of Ten-Year Notes (other than the Initial Notes) issued under
the Indenture, as supplemented by
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this Third Supplemental Indenture, in accordance with Section 3.3 of
the Indenture and subsection 13(d) of Section 1.01 of this Third
Supplemental Indenture, as part of the same series as the Initial
Notes.
"Allied Insurance" means Reliant Insurance Company and Indemnity
Corporation, a Vermont corporation and a Subsidiary of the Company.
"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 Cedel 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 15
of Section 1.01 hereof of the Company and (z) any disposition that
constitutes a Restricted Payment or Permitted Investment that is
permitted pursuant to the provisions of subsection 13(e) of Section
1.01 of this Third Supplemental Indenture.
"Bank Agreement" means the Credit Agreement of the Company dated
June 18, 1998, as amended, among the Company, Allied, certain lenders
party thereto, Citibank, N.A., as Issuing Bank, and Citicorp USA, Inc.,
as Administrative Agent, Credit Suisse First Boston and Xxxxxxx Xxxxx
Credit Partners, L.P., as Co-Syndication Agents, or any bank credit
agreement that replaces, amends, supplements, restates or renews such
Credit Agreement.
"Bankruptcy Law" means Title 11, U.S. Code or any similar federal
or state law for the relief of debtors.
"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
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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
satisfying the provisions of Clauses (i) through (iii) above, (vii)
repurchase obligations with a term of not more than 90 days for
underlying securities of the types described in Clauses (ii) and (iii)
above entered into with any bank meeting the qualifications specified
in Clause (iii) above and (viii) commercial paper (other than
commercial paper issued by an Affiliate or Related Person) rated A-1 or
the equivalent thereof by Standard & Poor's Ratings Group or P-1 or the
equivalent thereof by Xxxxx'x Investors Services, Inc., and in each
case maturing within 360 days.
"Cedel" means Cedel Bank, SA.
"Common Stock" of any Person means Capital Stock of such Person
that does not rank prior to the payment of dividends or as of the
distribution of assets upon any voluntary liquidation, dissolution or
winding up of such Person, to shares of Capital Stock or any other
class of such Person.
"Comparable Treasury Issue" means, on any date the United States
Treasury security selected by an Independent Investment Banker as
having a maturity comparable to the remaining term of the Ten-Year
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 Ten-Year Notes on such date. "Independent Investment
Banker" means Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation or if
such firm is unwilling or unable to select the Comparable Treasury
Issue, an independent investment banking institution of national
standing appointed by the Trustee.
"Comparable Treasury Price" means, with respect to any Redemption
Date (i) the average of the bid and asked prices for the Comparable
Treasury Issue (expressed in each case as a percentage of its principal
amount) on the third business day preceding such Redemption Date, as
set forth in the daily statistical release (or any successor
release) published by the Federal Reserve Bank of New York and
designated "Composite 3:30 p.m. Quotations for U.S. Government
Securities" or (ii) if such release (or any successor
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release) is not published or does not contain such prices on such
business day. (A) the average of the Reference Treasury Dealer
Quotations for such Redemption Date after excluding the highest and
lowest such Reference Treasury Dealer Quotations, or (B) if the Trustee
obtains fewer than four such Reference Treasury Dealer Quotations, the
average of all such Quotations. "Reference Treasury Dealer Quotations"
means, with respect to each Reference Treasury Dealer and any
Redemption Date, the average, as determined by the Trustee, of the bid
and asked prices for the Comparable Treasury Issue (expressed in each
case as a percentage of its principal amount) quoted in writing to the
Trustee by such Reference Treasury Dealer at 5:00 p.m. on the third
Business Day preceding such Redemption Date.
"Consolidated EBITDA" of any Person means for any period the
Consolidated Net Income for such period increased by the sum of
(without duplication) (i) Consolidated Interest Expense of such Person
for such period; plus (ii) Consolidated Income Tax Expense of such
Person for such period; plus (iii) the consolidated depreciation and
amortization expense deducted in determining the Consolidated Net
Income of such Person for such period; plus (iv) the aggregate amount
of letter of credit fees accrued during such period; plus (v) all
non-cash or non-recurring charges during such period, including charges
for costs related to acquisitions (it being understood that (x)
non-cash non-recurring charges shall not include accruals for closure
and post-closure liabilities and (y) charges shall be 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 Bank Agreement; plus (vii) all non-recurring cash
charges related to acquisitions and financings (including amendments
thereto); and minus all non-cash non-recurring gains during such period
(to the extent included in determining net operating income 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 (x)
only to the extent and in the same proportion that the Consolidated Net
Income of such Consolidated Subsidiary was included in calculating the
Consolidated Net Income of such Person and (y) only to the extent that
the amount specified in Clause (x) is not subject to restrictions that
prevent the payment of dividends or the making of distributions of such
Person.
"Consolidated EBITDA Coverage Ratio" of any Person means for any
period the ratio of (i) Consolidated EBITDA of such Person for such
period to (ii) the sum of (A) Consolidated Interest Expense of such
Person for such period; plus (B) the annual interest expense (including
the amortization of debt discount) with respect to any Debt incurred or
proposed to be Incurred by such Person or its Consolidated Subsidiaries
since the beginning of such period to the extent not included in clause
(ii)(A), minus (C) Consolidated Interest Expense of such Person with
respect to any Debt that is no longer outstanding or that will no
longer be outstanding as a result of the transaction with respect to
which the Consolidated EBITDA Coverage Ratio is being calculated, to
the extent included within Clause (ii)(A); provided, however, that in
making such computation, the Consolidated
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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 Consolidated EBITDA Coverage Ratio
(and for the purpose of such computation, the calculation of
Consolidated Net Income, Consolidated Interest Expense, Consolidated
Income Tax Expense and Consolidated EBITDA) shall be made on a pro
forma basis as if the acquisitions or dispositions had taken place on
the first day of such period. In determining the pro forma adjustments
to Consolidated EBITDA to be made with respect to any Acquired Business
for periods prior to the acquisition date thereof, actions taken by the
Company and its Restricted Subsidiaries prior to the first anniversary
of the related acquisition date that result in cost savings with
respect to such Acquired Business will be deemed to have been taken on
the first day of the period for which Consolidated EBITDA is being
determined (with the intent that such cost savings be effectively
annualized by extrapolation from the demonstrated cost savings since
the related acquisition date).
"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 13(e) of Section 1.01 of this Third Supplemental Indenture
the net income (or loss) of any Person acquired by such Person or a
Subsidiary of such Person in a pooling-of-interests transaction for any
period prior to the date of such transaction, to the extent such net
income was distributed to shareholders of such Person or used to
purchase equity securities of such Person prior to the date of such
transaction, (b) the net income (but not net loss) of any Consolidated
Subsidiary of such Person that is subject to restrictions that prevent
the payment of dividends or the making of distributions to such Person
to the extent of such restrictions,
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(c) the net income (or loss) of any Person that is not a Consolidated
Subsidiary of such Person except to the extent of the amount of
dividends or other distributions actually paid to such Person by such
other Person during such period, (d) gains or losses on asset
dispositions by such Person or its Consolidated Subsidiaries, (e) any
net income (loss) of a Consolidated Subsidiary that is attributable to
a minority interest in such Consolidated Subsidiary, (f) all
extraordinary gains and extraordinary losses that involve a present or
future cash payment, (g) all non-cash non-recurring charges during such
period, including charges for acquisition related costs (it being
understood that (A) non-cash recurring charges shall not include
accruals for closure and post closure liabilities and (B) charges,
other than charges for the accruals referred to in (A) above, shall be
deemed non-cash charges until the period that cash disbursements
attributable to such charges are made, at which point such charges
shall be deemed cash charges) and (h) the tax effect of any of the
items described in Clauses (a) through (g) above.
"Consolidated Subsidiaries" of any Person means all other Persons
that would be accounted for as consolidated Persons in such Person's
financial statements in accordance with generally accepted accounting
principles; provided, however, that, for any particular period during
which any Subsidiary of such Person was an Unrestricted Subsidiary,
"Consolidated Subsidiaries" will exclude such Subsidiary for such
period (or portion 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.
"Custodian" means the Trustee, as custodian with respect to the
Ten-Year Notes in global form, or any successor entity thereto.
"Definitive Note" means a certificated Ten-Year Note registered in
the name of the Holder thereof and issued in accordance with Section
2.02 of this Third Supplemental Indenture, substantially in the form of
Exhibit A hereto except that such Ten-Year 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 Ten-Year 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
Ten-Year Notes, and any and all successors thereto appointed as
depositary hereunder and having become such pursuant to the applicable
provision of this Third Supplemental Indenture.
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"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 Ten-Year Notes issued in the Exchange
Offer pursuant to Section 2.02(f) of this Third 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 Supplemental Indenture" means a supplemental indenture,
dated December 23, 1998, among the Company, the Guarantors and the
Trustee, relating to $300,000,000 of the Company's 7 3/8 Senior Notes
due 2004.
"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 Third 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 Third
Supplemental Indenture.
"Guaranty" by any Person means any obligation, contingent or
otherwise, of such Person guaranteeing any Debt, or dividends or
distributions on any equity security, of any other Person (the "primary
obligor") in any manner, whether directly or indirectly, and including,
without limitation, any obligation of such Person (i) to purchase or
pay (or advance or supply funds for the purchase or payment of) such
Debt or to purchase (or to
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advance or supply funds for the purchase of) any security for the
payment of such Debt, (ii) to purchase property, securities or services
for the purpose of assuring the holder of such Debt of the payment of
such Debt or (iii) to maintain working capital, equity capital or other
financial statement condition or liquidity of the primary obligor so as
to enable the primary obligor to pay such Debt (and "Guaranteed",
"Guaranteeing" and "Guarantor" shall have meanings correlative to the
foregoing); provided, however, that the Guaranty by any Person shall
not include endorsements for such Person for collection or deposit, in
either case, in the ordinary course of business.
"Holder" means a Person in whose name a Ten-Year Note is
registered.
"IAI Global Note" means a Global Note bearing 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 $875,000,000 aggregate principal
amount of Ten-Year Notes issued under this Third Supplemental Indenture
on the date hereof.
"Initial Purchasers" means, with respect to the Ten-Year Notes,
Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation, Xxxxxxx, Sachs &
Co., Credit Suisse First Boston Corporation, Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx Incorporated, Xxxxxx Xxxxxxx & Co. Incorporated, Bear,
Xxxxxxx & Co. Inc., BT Alex. Xxxxx Incorporated, CIBC Xxxxxxxxxxx Corp.
and Xxxxxxx Xxxxx Xxxxxx 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.
"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 Guaranty of any obligation of or for the account of
such other Person or any direct or indirect issuance by
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such Person of such a Guaranty or (iv) any other investment of cash or
other property by such Person in or for the account of such other
Person.
"Letter of Transmittal" means the letter of transmittal to be
prepared by the Company and sent to all Holders of the Ten-Year Notes
for use by such Holders in connection with the Exchange Offer.
"Lien" means, with respect to any property or assets, any mortgage
or deed of trust, pledge, hypothecation, assignment, deposit
arrangement, security interest, lien, charge, easement or title
exception, encumbrance, preference, priority or other security
agreement or preferential arrangement of any kind or nature whatsoever
on or with respect to such property or assets (including any
conditional sale or other title retention agreement having
substantially the same economic effect as any of the foregoing).
"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.
"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 Ten-Year Note Register on
the date of the Offer Document, to purchase up to the principal amount
of Ten-Year Notes specified in such Offer Document at the purchase
price (the "Purchase Price") specified in such Offer Document (as
determined pursuant to this Third 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,
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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 Ten-Year Notes within five
Business Days after the Offer Expiration Date. The Offer Document shall
be mailed by the Company or, at the Company's request, by the Trustee
in the name and at the expense of the Company. The Offer Document shall
contain information concerning the business of the Company and its
Subsidiaries which the Company in good faith believes will enable such
Holders to make an informed decision with respect to the Offer to
Purchase (which at a minimum will include (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 13(i) of Section 1.01
of this Third Supplemental Indenture (which requirements may be
satisfied by delivery of such documents together with the Offer
Document), and (ii) any other information required by applicable law to
be included 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 Third 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 Ten-Year
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 Third Supplemental Indenture)
(the "Purchase Amount");
(4) the purchase price to be paid by the Company for each $1,000
aggregate principal amount of Ten-Year Notes accepted for payment (as
specified pursuant to this Third Supplemental Indenture);
(5) that the Holder may tender all or any portion of the Ten-Year
Notes registered in the name of such Holder and that any portion of a
Ten-Year Note tendered must be tendered in an integral multiple of
$1,000 principal amount;
(6) the place or places where Ten-Year Notes are to be surrendered
for tender pursuant to the Offer to Purchase;
(7) that interest on any Ten-Year Note not tendered or tendered
but not purchased by the Company pursuant to the Offer to Purchase will
continue to accrue;
(8) that on the Purchase Date the purchase price will become due
and payable upon each 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 Ten-Year Note pursuant
to the Offer to Purchase will be required to surrender such Ten-Year
Note at the place or places specified in the Offer Document prior to
the close of business on the Offer Expiration Date (such Ten-Year Note
being, if the Company or the Trustee so requires, duly endorsed by, or
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accompanied by a written instrument of transfer in form satisfactory to
the Company and the Trustee duly executed by, the Holder thereof or his
attorney duly authorize in writing and bearing appropriate signature
guarantees);
(10) that Holders will be entitled to withdraw all or any portion
of Ten-Year 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 Ten-Year Note the
Holder tendered and a statement that such Holder is withdrawing all or
a portion of his tender;
(11) that (a) if Ten-Year 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 Ten-Year Notes and (b) if Ten-Year 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
Ten-Year 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 Ten-Year Note is
purchased only in part, the Company shall execute, and the Trustee
shall authenticate and deliver to the Holder of such Ten-Year Note
without service charge, a new Ten-Year Note or Ten-Year Notes, of any
authorized denomination as requested by such Holder, in an aggregate
amount equal to and in exchange for the unpurchased portion of the
Security so tendered.
Any Offer to Purchase shall be governed by and effected in accordance
with the Offer Document for such Offer to Purchase.
"pari passu" when used with respect to the ranking of any debt of
any Person in relation to other Debt of such Person means that each
such Debt (a) either (i) is not subordinated in right of payment to any
other Debt of such Person or (ii) is subordinate in right of payment to
the same Debt of such Person as is the other Debt and is so subordinate
to the same extent and (b) is not subordinate in right of payment to
the other Debt or to any Debt of such Person as to which the other Debt
is not so subordinate.
"Participant" means, with respect to the Depositary, Euroclear or
Cedel, a Person who has an account with the Depositary, Euroclear or
Cedel, respectively (and, with respect to DTC, shall include Euroclear
and Cedel).
"Permitted Interest Rate or Currency Protection Agreement" of any
Person means any Interest Rate or Currency Protection Agreement entered
into with one or more financial institutions in the ordinary course of
business that is designed to protect such Person against fluctuations
in interest rates or currency exchange rates with respect to Debt
incurred and which shall have a notional amount no greater than the
payments due with respect to the Debt being hedged thereby.
"Permitted Investment" means (i) Investments in the Company or any
Person that is, or as a consequence of such investment becomes, a
Restricted Subsidiary, (ii) securities either issued directly or fully
guaranteed or insured by the government of the United States
40
41
of America or any agency or instrumentality thereof having maturities
of not more than one year, (iii) time deposits and certificates of
deposit, demand deposits and banker's acceptances having maturities of
not more than one year from the date of deposit, of any domestic
commercial bank having capital and surplus in excess of $500 million,
(iv) demand deposits made in the ordinary course of business and
consistent with the Company's customary cash management policy in any
domestic office of any commercial bank organized under the laws of the
United States of America or any State thereof, (v) insured deposits
issued by commercial banks of the type described in Clause (iv) above,
(vi) mutual funds whose investment guidelines restrict such funds'
investments primarily to those satisfying the provisions of Clauses (i)
through (iii) above, (vii) repurchase obligations with a term of not
more than 90 days for underlying securities of the types described in
Clauses (ii) and (iii) above entered into with any bank meeting the
qualifications specified in Clause (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 13(a) of Section 1.01 of this Third
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
Bank Agreement that was permitted by the terms of the Indenture to be
incurred or other Debt allowed to be incurred under clause (i) of
subsection 13(d) of Section 1.01 of this Third 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 Ten-Year
Notes, if the Ten-Year Notes are secured equally and ratably with such
Debt; (iii) Liens in favor of the Company or any
41
42
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 the Third 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 the
Third Supplemental Indenture; provided that (a) any such Lien is
created solely for the purpose of securing Debt incurred, in accordance
with subsection 13(d) of Section 1.01 of this Third 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
42
43
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 13(d) of Section 1.01 of this Third
Supplemental Indenture.
"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 Ten-Year Notes issued under this Third
Supplemental Indenture except where otherwise permitted by the
provisions of this Third 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 Ten-Year
Notes within five Business Days after the Offer Expiration Date.
"QIB" means a "qualified institutional buyer" as defined in Rule
144A.
"Reference Treasury Dealer", means Xxxxxxxxx, Xxxxxx & Xxxxxxxx
Securities Corporation and its successors; provided, however, that if
any of the foregoing shall cease to be a primary U.S. Government
securities dealer in New York City (a "Primary Treasury Dealer"), the
Company shall substitute therefor another Primary Treasury Dealer.
"Refinancing Transactions" means the application of the proceeds
from the issuance and sale of the Ten-Year Notes as described in the
Offering Memorandum of the Company dated December 14, 1998 relating to
the Senior Notes.
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44
"Registration Rights Agreement" means the Registration Rights
Agreement for the Ten-Year Notes, dated as of December 23, 1998, 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 Ten-Year 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 Ten-Year 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 Third Supplemental Indenture.
"Related Person" of any Person means, without limitation, any
other Person owning (a) 5% or more of the outstanding Common Stock of
such Person or (b) 5% or more of the Voting Stock of such Person.
"Restricted Definitive Note" means a Definitive Note bearing the
Private Placement Legend.
"Restricted Global Note" means a Global Note bearing the Private
Placement Legend.
"Restricted Period" means the 40-day restricted period as defined
in Regulation S.
"Rule 144" means Rule 144 promulgated under the Securities Act.
"Rule 144A" means Rule 144A promulgated under the Securities Act.
"Rule 903" means Rule 903 promulgated under the Securities Act.
"Rule 904" means Rule 904 promulgated the Securities Act.
"Second Supplemental Indenture" means a supplemental indenture,
dated December 23, 1998, among the Company, the Guarantors and the
Trustee, relating to $700,000,000 of the Company's 7 5/8 Senior Notes
due 2006.
"Senior Notes" means the Company's Ten-Year Notes, its 7 3/8%
Senior Notes due 2004 issued pursuant to the First Supplemental
Indenture and its 7 5/8% Senior Notes due 2006 issued pursuant to the
Company's Second Supplemental Indenture.
"Shelf Registration Statement" means the Shelf Registration
Statement as defined in the Registration Rights Agreement.
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45
"Special Interest" means all liquidated damages then owing
pursuant to Section 5 of the Registration Rights Agreement.
"Tender Offers" means the tender offers commenced by the Company
on November 24, 1998 to purchase for cash all of its outstanding 10.25%
Senior Subordinated Notes due 2006 and all of the outstanding 11.30%
Senior Discount Notes due 2007 of Allied.
"Ten-Year Notes" has the meaning assigned to it in the preamble to
this Indenture Supplement. The Initial Notes and the Additional Notes
shall be treated as a single class for all purposes under the
Indenture, as amended, modified, supplemented and superseded by this
Third Supplemental Indenture.
"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 Ten-Year 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 Ten-Year Notes that do not bear the Private Placement Legend.
"Unrestricted Subsidiary" means (i) Allied Insurance unless Allied
Insurance shall have been designated a Restricted Subsidiary in
accordance with the provisions of subsection 13(j) of Section 1.01
hereof, (ii) at any date, a Subsidiary of the Company that is an
Unrestricted Subsidiary in accordance with the provisions of subsection
13(j) of Section 1.01 hereof and (iii) for any period, a Subsidiary of
the Company that for any portion of such period is an Unrestricted
Subsidiary in accordance with the provisions of subsection 13(j) of
Section 1.01 hereof provided that such term shall mean such Subsidiary
only for such portion of such period.
"Voting Stock" of any Person means Capital Stock of such Person
that ordinarily has voting power for the election of directors (or
persons performing similar functions) of such Person, whether at all
times or only so long as no senior class of securities has such voting
power by reason of any contingency.
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46
ARTICLE IV.
MISCELLANEOUS
SECTION 4.01. DEFINITIONS. Capitalized terms used but not defined in
this Third 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 Third Supplemental Indenture, is in all
respects ratified and confirmed, and the Indenture and this Third 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 Third Supplemental Indenture.)
SECTION 4.03. CONCERNING THE TRUSTEE. The Trustee assumes no duties,
responsibilities or liabilities by reason of this Third 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 Third Supplemental Indenture, the
Indenture and the Ten-Year Notes shall be governed by and construed in
accordance with the law of the State of New York without giving effect to any
provisions thereof relating to conflicts of law.
SECTION 4.05. SEPARABILITY. In case any provision in this Third
Supplemental Indenture shall for any reason be held to be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
SECTION 4.06. COUNTERPARTS. This Third Supplemental Indenture may be
executed in any number of counterparts each of which shall be an original, but
such counterparts shall together constitute but one and the same instrument.
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47
IN WITNESS WHEREOF, the parties hereto have caused this Third
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:
/s/ illegible
-----------------------------
Name:
Title:
48
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: /s/ Xxxxxxx X. Xxxxxxxx
-------------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Assistant Vice President
---------------
* Signing as duly authorized officer for each such Subsidiary Guarantor.
49
EXHIBIT A
[Face of Note]
________________________________________________________________________________
CUSIP/CINS ____________
___7 7/8% SERIES A SENIOR NOTES DUE 2009
No. ______ $____________
ALLIED WASTE NORTH AMERICA, INC.
promises to pay to Cede & Co.,
or registered assigns,
the principal sum of____________________________________________________________
Dollars on January 1, 2009.
Interest Payment Dates: January 1 and July 1, commencing July 1, 1999
Record Dates: December 15 and June 15
Dated: December 23, 0000
XXXXXX XXXXX XXXXX XXXXXXX, INC.
By:______________________________________
Name:
Title:
This is one of the Notes referred to
in the within-mentioned Indenture:
U.S. BANK TRUST NATIONAL
ASSOCIATION,
as Trustee
By:_______________________________
Authorized Signatory
A-1
50
EXHIBIT A
[Back of Note]
7 7/8% SERIES A SENIOR NOTES DUE 2009
[Insert the Global Note Legend, if applicable pursuant to the
provisions of the Indenture]
[Insert the Regulation S Note Legend, if applicable, pursuant to the
provision of the Indenture]
[Insert the Private Placement Legend, if applicable pursuant to the
provisions of the Indenture]
Capitalized terms used herein shall have the meanings assigned to them
in the Indenture referred to below unless otherwise indicated.
1. INTEREST. Allied Waste North America, Inc., a Delaware corporation
(the "Company"), promises to pay interest on the principal amount of this Note
at 7 7/8% 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 will pay interest and Special
Interest semi-annually in arrears on January 1 and July 1 of each year beginning
July 1, 1999, or if any such day is not a Business Day, on the next succeeding
Business Day (each an "Interest Payment Date"). Interest on the Notes will
accrue from the most recent date to which interest has been paid or, if no
interest has been paid, from the date of issuance; provided that if there is no
existing Default in the payment of interest, and if this Note is authenticated
between a record date referred to on the face hereof and the next succeeding
Interest Payment Date, interest shall accrue from such next succeeding Interest
Payment Date; provided, further, that the first Interest Payment Date shall be
July 1, 1999. The Company shall pay interest (including post-petition interest
in any proceeding under any Bankruptcy Law) on overdue principal and premium, if
any, from time to time on demand at a rate that is 2% per annum in excess of the
rate then in effect; it shall pay interest (including post-petition interest in
any proceeding under any Bankruptcy Law) on overdue installments of interest and
Special Interest, if any, from time to time on demand at the same rate to the
extent lawful. Interest will be computed on the basis of a 360 day year of
twelve 30 day months.
2. METHOD OF PAYMENT. The Company will pay interest on the Notes
(except defaulted interest) and Special Interest, if any, to the Persons who are
registered Holders of Notes at the close of business on the December 15 or June
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 of the Indenture with respect to defaulted interest. The
Notes will be payable as to principal, premium and Special Interest, if any, and
interest at the office or agency of the Company maintained for such purpose
within or without the City and State of New York, or, at the option of the
Company, payment of interest and Special Interest, if any, may be made by check
mailed to the Holders at their addresses set forth in the register of Holders,
and provided that payment by wire transfer of immediately available funds will
be required with respect to principal of and interest, premium and Special
Interest on, all Global Notes and all other Notes the Holders of which shall
have provided wire transfer instructions to the Company or the Paying Agent at
least 10 Business Days prior to the applicable payment date. Such payment shall
be in such coin or currency of the United States of America as at the time of
payment is legal tender for payment of public and private debts.
3. PAYING AGENT AND REGISTRAR. Initially, U.S. Bank Trust National
Association, the Trustee under the Indenture, will act as Paying Agent and
Registrar. The Company may change any Paying
A-2
51
EXHIBIT A
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 Third Supplemental Indenture dated as of
December 23, 1998 (together, the "Indenture"), each among the Company, the
Guarantors and the Trustee. The terms of the Notes include those stated in the
Indenture and those made part of the Indenture by reference to the Trust
Indenture Act of 1939, as amended (15 U.S. Code Sections 77aaa 77bbbb).
The Notes are subject to all such terms, and Holders are referred to the
Indenture and such Act for a statement of such terms. To the extent any
provision of this Note conflicts with the express provisions of the Indenture,
the provisions of the indenture shall govern and be controlling. The Notes are
obligations of the Company limited to $300.0 million in aggregate principal
amount.
5. OPTIONAL REDEMPTION.
(a) Except as set forth in subparagraph (b) of this Paragraph 5,
the Company shall not have the option to redeem the Notes prior to the
final maturity of such Notes.
(b) (1) The Ten-Year Notes will not be subject to any redemption
at the option of the Company prior to January 1, 2004 except as set
forth in the following paragraphs. On or after January 1, 2004, the
Ten-Year Notes will be subject to redemption, in whole or in part, at
the option of the Company at any time prior to maturity, upon not less
than 30 nor more than 60 days' notice mailed to each Holder of Ten-Year
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 the following Redemption Prices (expressed as percentages
of principal amount) plus accrued but unpaid interest (including
Special Interest) to but excluding the Redemption Date (subject to the
right of Holders of record on the relevant Regular Record Date to
receive interest due on an Interest Payment Date that is on or prior to
the Redemption Date), if redeemed during the twelve-month period
beginning on January 1 of each of the years indicated below:
REDEMPTION
YEAR PRICE
2004 .............. 103.9375%
2005 .............. 102.6250%
2006 .............. 101.3125%
2007 and thereafter 100.0000%
(2) Prior to January 1, 2004, the Ten-Year Notes will be subject
to redemption, at the option of the Company, in whole or in part, at
any time, upon not less than 30 nor more than 60 days' notice mailed to
each Holder of Ten-Year 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
A-3
52
EXHIBIT A
Regular Record Date to receive interest due on an Interest Payment Date
that is on or prior to the Redemption Date).
(3) At any time, or from time to time, prior to January 1, 2002,
up to 33 1/3% in aggregate principal amount of the Ten-Year Notes
originally issued under the Indenture will 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 107.9% 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. 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 will be mailed not more
than 60 days before the redemption date to each Holder whose Notes are to be
redeemed at its registered address. Notes in denominations larger than $1,000
may be redeemed in part but only in whole multiples of $1,000, unless all of the
Notes held by a Holder are to be redeemed. On and after the redemption date
interest ceases to accrue on Notes or portions thereof called for redemption.
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.
A-4
53
EXHIBIT A
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 Sections 13(a), 13(d) or 13(e) of the Third Supplemental Indenture or
Article 7 of the Indenture (as superseded by subsection 15 of Section 1.01 of
the Third 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 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 will 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 (=
A-5
54
EXHIBIT A
joint tenants with right of survivorship and not as tenants in common), CUST
(=Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).
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 December 23, 1998, 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 will furnish to any Holder upon written request and without
charge a copy of the Indenture and/or the Registration Rights Agreement.
Requests may be made to:
ALLIED WASTE NORTH AMERICA, INC.
00000 Xxxxx Xxxxxxxx - Xxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Attention: Treasurer
A-6
55
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
56
EXHIBIT A
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company
pursuant to subsection 13(a) or 13(b) of Section 1.01 of the Third Supplemental
Indenture, check the appropriate box below:
/ / Subsection 13(a) / / Subsection 13(b)
If you want to elect to have only part of the Note purchased by the
Company pursuant to subsection 13(a) or subsection 13(b) of Section 1.01 of the
Third 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
57
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
Amount of decrease in Amount of increase in this Global Note Signature of authorized
Principal Amount of Principal Amount of following such officer of Trustee or
Date of Exchange this Global Note this Global Note decrease (or increase) Note Custodian
---------------- --------------------- --------------------- ---------------------- -----------------------
A-9
58
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: 7 7/8% Senior Notes due 2009
Reference is hereby made to the Indenture, dated as of December 23,
1998, as amended by that Third Supplemental Indenture, dated as of December 23,
1998 (collectively, the "Indenture"), between Allied Waste North America, Inc.,
as issuer (the "Company"), and U.S. Bank Trust National Association, as trustee.
Capitalized terms used but not defined herein shall have the meanings given to
them in the Indenture.
___________________ (the "Transferor") owns and proposes to transfer
the Note[s] or interest in such Note[s] specified in Annex A hereto, in the
principal amount of $___________ in such Note[s] or interests (the "Transfer"),
to ___________________________ (the "Transferee"), as further specified in Annex
A hereto. In connection with the Transfer, the Transferor hereby certifies that:
[CHECK ALL THAT APPLY]
1. / / CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST
IN THE 144A GLOBAL NOTE OR A DEFINITIVE NOTE PURSUANT TO RULE 144A. The Transfer
is being effected pursuant to and in accordance with Rule 144A under the United
States Securities Act of 1933, as amended (the "Securities Act"), and,
accordingly, the Transferor hereby further certifies that the beneficial
interest or Definitive Note is being transferred to a Person that the Transferor
reasonably believed and believes is purchasing the beneficial interest or
Definitive Note for its own account, or for one or more accounts with respect to
which such Person exercises sole investment discretion, and such Person and each
such account is a "qualified institutional buyer" within the meaning of Rule
144A in a transaction meeting the requirements of Rule 144A and such Transfer is
in compliance with any applicable blue sky securities laws of any state of the
United States. Upon consummation of the proposed Transfer in accordance with the
terms of the Indenture, the transferred beneficial interest or Definitive Note
will be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the 144A Global Note and/or the Definitive Note and
in the Indenture and the Securities Act.
2. / / CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST
IN THE REGULATION S GLOBAL NOTE OR A DEFINITIVE NOTE PURSUANT TO REGULATION S.
The Transfer is being effected pursuant to and in accordance with Rule 903 or
Rule 904 under the Securities Act and, accordingly, the Transferor hereby
further certifies that (i) the Transfer is not being made to a person in the
United States and (x) at the time the buy order was originated, the Transferee
was outside the United States or such Transferor and any Person acting on its
behalf reasonably believed and believes that the Transferee was outside the
United States or (y) the transaction was executed in, on or through the
facilities of a designated offshore securities market and neither such
Transferor nor any Person acting on its behalf knows that the transaction was
prearranged with a buyer in the United States, (ii) no directed selling efforts
have been made in contravention of the requirements of Rule 903(b) or Rule
904(b) of Regulation S under the
B-1
59
EXHIBIT B
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 will be subject to the restrictions on
Transfer enumerated in the Private Placement Legend printed on the Regulation S
Global Note and/or the Definitive Note and in the Indenture and the Securities
Act.
3. / / CHECK AND COMPLETE IF TRANSFEREE WILL TAKE DELIVERY OF A
BENEFICIAL INTEREST IN THE IAI GLOBAL NOTE OR A DEFINITIVE NOTE PURSUANT TO ANY
PROVISION OF THE SECURITIES ACT OTHER THAN RULE 144A OR REGULATION S. The
Transfer is being effected in compliance with the transfer restrictions
applicable to beneficial interests in Restricted Global Notes and Restricted
Definitive Notes and pursuant to and in accordance with the Securities Act and
any applicable blue sky securities laws of any state of the United States, and
accordingly the Transferor hereby further certifies that (check one):
(a) / / such Transfer is being effected pursuant to and in
accordance with Rule 144 under the Securities Act;
or
(b) / / such Transfer is being effected to the Company or a
subsidiary thereof;
or
(c) / / such Transfer is being effected pursuant to an effective
registration statement under the Securities Act and in compliance with the
prospectus delivery requirements of the Securities Act;
or
(d) / / such Transfer is being effected to an Institutional
Accredited Investor and pursuant to an exemption from the registration
requirements of the Securities Act other than Rule 144A, Rule 144 or Rule 904,
and the Transferor hereby further certifies that it has not engaged in any
general solicitation within the meaning of Regulation D under the Securities Act
and the Transfer complies with the transfer restrictions applicable to
beneficial interests in a Restricted Global Note or Restricted Definitive Notes
and the requirements of the exemption claimed, which certification is supported
by (1) a certificate executed by the Transferee in the form of Exhibit D to the
Indenture and (2) an Opinion of Counsel provided by the Transferor or the
Transferee (a copy of which the Transferor has attached to this certification),
to the effect that such Transfer is in compliance with the Securities Act. Upon
consummation of the proposed transfer in accordance with the terms of the
Indenture, the transferred beneficial interest or Definitive Note will be
subject to the restrictions on transfer enumerated in the Private Placement
Legend printed on the IAI Global Note and/or the Definitive Notes and in the
Indenture and the Securities Act.
4. / / CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST
IN AN UNRESTRICTED GLOBAL NOTE OR OF AN UNRESTRICTED DEFINITIVE NOTE.
B-2
60
EXHIBIT B
(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 will no longer be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the Restricted Global
Notes, on Restricted Definitive Notes and in the Indenture.
(b) / / CHECK IF TRANSFER IS PURSUANT TO 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 will no longer be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on
the Restricted Global Notes, on Restricted Definitive Notes and in the
Indenture.
(c) / / CHECK IF TRANSFER IS PURSUANT TO OTHER EXEMPTION. (i) The
Transfer is being effected pursuant to and in compliance with an exemption from
the registration requirements of the Securities Act other than Rule 144, Rule
903 or Rule 904 and in compliance with the transfer restrictions contained in
the Indenture and any applicable blue sky securities laws of any State of the
United States and (ii) the restrictions on transfer contained in the Indenture
and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act. Upon consummation of the proposed Transfer
in accordance with the terms of the Indenture, the transferred beneficial
interest or Definitive Note will not be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the Restricted Global
Notes or Restricted Definitive Notes and in the Indenture.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company.
_________________________________________
[Insert Name of Transferor]
By:______________________________________
Name:
Title:
Dated:_______________________
B-3
61
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-4
62
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: 7 7/8% Senior Notes due 2009
(CUSIP _________)
Reference is hereby made to the Indenture, dated as of December 23,
1998, as amended by that Third Supplemental Indenture, dated as of December 23,
1998 (collectively, the "Indenture"), between Allied Waste North America, Inc.,
as issuer (the "Company"), and U.S. Bank Trust National Association, as trustee.
Capitalized terms used but not defined herein shall have the meanings given to
them in the Indenture.
___________________ (the "Owner") owns and proposes to exchange the
Note[s] or interest in such Note[s] specified herein, in the principal amount of
$___________ in such Note[s] or interests (the "Exchange"). In connection with
the Exchange, the Owner hereby certifies that:
1. EXCHANGE OF RESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS IN A
RESTRICTED GLOBAL NOTE FOR UNRESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS
IN AN UNRESTRICTED GLOBAL NOTE.
(a) / / CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A
RESTRICTED GLOBAL NOTE TO BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL NOTE. In
connection with the Exchange of the Owner's beneficial interest in a Restricted
Global Note for a beneficial interest in an Unrestricted Global Note in an equal
principal amount, the Owner hereby certifies (i) the beneficial interest is
being acquired for the Owner's own account without transfer, (ii) such Exchange
has been effected in compliance with the transfer restrictions applicable to the
Global Notes and pursuant to and in accordance with the United States Securities
Act of 1933, as amended (the "Securities Act"), (iii) the restrictions on
transfer contained in the Indenture and the Private Placement Legend are not
required in order to maintain compliance with the Securities Act and (iv) the
beneficial interest in an Unrestricted Global Note is being acquired in
compliance with any applicable blue sky securities laws of any state of the
United States.
(b) / / CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A
RESTRICTED GLOBAL NOTE TO UNRESTRICTED DEFINITIVE NOTE. In connection with the
Exchange of the Owner's beneficial interest in a Restricted Global Note for an
Unrestricted Definitive Note, the Owner hereby certifies (i) the Definitive Note
is being acquired for the Owner's own account without transfer, (ii) such
Exchange has been effected in compliance with the transfer restrictions
applicable to the Restricted Global Notes and pursuant to and in accordance with
the Securities Act, (iii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act and (iv) the Definitive Note is being
acquired in compliance with any applicable blue sky securities laws of any state
of the United States.
C-1
63
EXHIBIT C
(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 will continue to be subject to the restrictions on transfer enumerated in
the Private Placement Legend printed on the Restricted Definitive Note and in
the Indenture and the Securities Act.
(b) CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE TO
BENEFICIAL INTEREST IN A RESTRICTED GLOBAL NOTE. In connection with the Exchange
of the Owner's Restricted Definitive Note for a beneficial interest in the
[CHECK ONE] / / 144A Global Note, / / Regulation S Global Note, / / IAI Global
Note with an equal principal amount, the Owner hereby certifies (i) the
beneficial interest is being acquired for the Owner's own account without
transfer and (ii) such Exchange has been effected in compliance with the
transfer restrictions applicable to the Restricted Global Notes and pursuant to
and in accordance with the Securities Act, and in compliance with any applicable
blue sky securities laws of any state of the United States. Upon consummation of
the proposed Exchange in accordance with the terms of the Indenture, the
beneficial interest issued will be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the relevant Restricted
Global Note and in the Indenture and the Securities Act.
C-2
64
EXHIBIT C
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company.
_________________________________________
[Insert Name of Transferor]
By:______________________________________
Name:
Title:
Dated:_______________________
C-3
65
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: 7 7/8% Senior Notes due 2009
Reference is hereby made to the Indenture, dated as of December 23,
1998, as amended by that Third Supplemental Indenture, dated as of December 23,
1998 (collectively, the "Indenture"), between Allied Waste North America, Inc.,
as issuer (the "Company"), and U.S. Bank Trust National Association, as trustee.
Capitalized terms used but not defined herein shall have the meanings given to
them in the Indenture.
In connection with our proposed purchase of $____________ aggregate
principal amount of:
(a) / / a beneficial interest in a Global Note, or
(b) / / a Definitive Note,
we confirm that:
1. We understand that any subsequent transfer of the Notes or any
interest therein is subject to certain restrictions and conditions set forth in
the Indenture and the undersigned agrees to be bound by, and not to resell,
pledge or otherwise transfer the Notes or any interest therein except in
compliance with, such restrictions and conditions and the United States
Securities Act of 1933, as amended (the "Securities Act").
2. We understand that the offer and sale of the Notes have not been
registered under the Securities Act, and that the Notes and any interest therein
may not be offered or sold except as permitted in the following sentence. We
agree, on our own behalf and on behalf of any accounts for which we are acting
as hereinafter stated, that if we should sell the Notes or any interest therein,
we will do so only (A) to the Company or any subsidiary thereof, (B) in
accordance with Rule 144A under the Securities Act to a "qualified institutional
buyer" (as defined therein), (C) to an institutional "accredited investor" (as
defined below) that, prior to such transfer, furnishes (or has furnished on its
behalf by a U.S. broker-dealer) to you and to the Company a signed letter
substantially in the form of this letter and an Opinion of Counsel in form
reasonably acceptable to the Company to the effect that such transfer is in
compliance with the Securities Act, (D) outside the United States in accordance
with Rule 904 of Regulation S under the Securities Act, (E) pursuant to the
provisions of Rule 144(k) under the Securities Act or (F) pursuant to an
effective registration statement under the Securities Act, and we further agree
to provide to any person purchasing the Definitive Note or beneficial interest
in a Global Note from us in a transaction meeting the requirements of clauses
(A) through (E) of this paragraph a notice advising such purchaser that resales
thereof are restricted as stated herein.
D-1
66
EXHIBIT D
3. We understand that, on any proposed resale of the Notes or
beneficial interest therein, we will be required to furnish to you and the
Company such certifications, legal opinions and other information as you and the
Company may reasonably require to confirm that the proposed sale complies with
the foregoing restrictions. We further understand that the Notes purchased by us
will bear a legend to the foregoing effect.
4. We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) and have
such knowledge and experience in financial and business matters as to be capable
of evaluating the merits and risks of our investment in the Notes, and we and
any accounts for which we are acting are each able to bear the economic risk of
our or its investment.
5. We are acquiring the Notes or beneficial interest therein purchased
by us for our own account or for one or more accounts (each of which is an
institutional "accredited investor") as to each of which we exercise sole
investment discretion.
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby.
_________________________________________
[Insert Name of Accredited Investor]
By:______________________________________
Name:
Title:
Dated:_______________________
D-2
67
SCHEDULE I
Subsidiary Guarantors
NAME OF SUBSIDIARY GUARANTOR STATE OF ORGANIZATION
--------------------------------------------------------------------------------
A-1 Service, Inc. Iowa
Aaro Waste Paper Company Michigan
AAWI, Inc. Texas
Able Sanitation, Inc. Michigan
Xxxxxx Landfill, Inc. Michigan
ADS, Inc. Oklahoma
ADS of Illinois, Inc. Illinois
Affordable Dumpsters, Inc Illinois
Alabama Recycling Services, Inc. Alabama
Alaska Street Associates, Inc. Washington
Allied Acquisition Pennsylvania, Inc. Pennsylvania
Allied Acquisition Two, Inc. Massachusetts
Allied Cartage, Inc. Massachusetts
Allied Gas Recovery Systems, L.L.C. Delaware
Allied Nova Scotia, Inc. Delaware
Allied Services, LLC Delaware
Allied Waste Company, Inc. Delaware
Allied Waste Industries (Arizona), Inc. Arizona
Allied Waste Industries of New York, Inc. New York
Allied Waste Landfill Holdings, Inc. Delaware
Allied Waste of California, Inc. California
Allied Waste of Long Island, Inc. New York
Allied Waste of New Jersey, LLC Delaware
Allied Waste Rural Sanitation, Inc. Delaware
Allied Waste Services, Inc. Massachusetts
Allied Waste Systems, Inc. Delaware
Allied Waste Systems, Inc. Ohio
Allied Waste Systems Holdings, Inc. Delaware
Allied Waste Transportation, Inc. Delaware
Americal Co. Michigan
American Disposal Services, Inc. Delaware
American Disposal Services of Illinois, Inc. Delaware
American Disposal Services of Kansas, Inc. Kansas
American Disposal Services of Missouri, Inc. Oklahoma
American Disposal Services of New Jersey, Inc. Delaware
American Disposal Services of West Virginia, Inc. Delaware
American Disposal Transfer Services of Illinois, Inc. Delaware
American Transfer Company, Inc. New York
Xxxxxxxx Regional Landfill, LLC Delaware
Anson County Landfill NC, LLC Delaware
A-1
68
Apache Junction Landfill Corporation Arizona
Area Disposal, Inc. Illinois
Autoshred, Inc. Missouri
AWIN I Acquisition Corporation Delaware
AWIN Leasing Company, Inc. Delaware
AWIN Management, Inc. Delaware
B & L Waste Handling, Inc. Rhode Island
Bellville Landfill, Inc. Missouri
Better Disposal Services, Inc. Nebraska
Xxxxxxx Landfill, Inc. California
Xxxxxx Phase II, Inc. Ohio
Brickyard Disposal & Recycling, Inc. Illinois
Bridgeton Landfill, LLC Delaware
Brunswick Waste Management Facility, LLC Delaware
Xxxxxx County Landfill, LLC Delaware
Camelot Landfill TX, LP Delaware
CC Landfill, Inc. Delaware
CCAI, Inc. Washington
CDF Consolidated Corporation Illinois
Celina Landfill, Inc. Ohio
Central Sanitary Landfill, Inc. Michigan
Xxxxxxxx Development of North Carolina, Inc. North Carolina
Champion Recycling, Inc. New York
Charter Evaporation Resource Recovery Systems California
Cherokee Run Landfill, Inc. Ohio
Chicago Disposal, Inc. Illinois
Citizens Disposal, Inc. Michigan
City-Star Services, Inc. Michigan
Clarkston Disposal, Inc. Michigan
Clinton Disposal Co. Iowa
Community Refuse Disposal, Inc. Nebraska
Consolidated Processing, Inc. Illinois
Container Service, Inc. Missouri
County Disposal, Inc. Delaware
County Disposal (Ohio), Inc. Delaware
County Landfill, Inc. Delaware
County Line Landfill Partnership Indiana
Cousins Carting Corp. New York
Crow Landfill TX, LLC Delaware
Crow Landfill TX, L.P. Delaware
CRX, Inc. Nevada
D & D Garage Services, Inc. Illinois
D & L Disposal, L.L.C. Delaware
Delta Container Corporation California
Delta Paper Stock Co. California
A-2
69
Denver Regional Landfill, Inc. Colorado
Xxxxxxxx, Inc. Michigan
Xxxxxxxx Recycling, Inc. Michigan
Xxxxxxxx Sanitary Service, Inc. Nebraska
Draw Acquisition Company Eighteen Delaware
Draw Acquisition Company Twenty Two Delaware
Draw Acquisition Company Twenty Three Delaware
Draw Enterprises II, Inc. Illinois
Draw Enterprises Real Estate, Inc. Illinois
Draw Enterprises Real Estate, L.P. Illinois
Xxxxxx Disposal Service, Inc. Michigan
Eagle Industries Leasing, Inc. Michigan
East Coast Waste Systems, Inc. Massachusetts
ECDC Environmental of Humbolt County, Inc. Delaware
ECDC Environmental, L.C. Utah
ECDC Holdings, Inc. Delaware
Xxxxx County Landfill TX, LLC Delaware
Xxxxx County Landfill TX, L.P. Delaware
Xxxxx Xxxxx Landfill MO, LLC Delaware
Elmhurst Disposal Company Illinois
Enviro Carting Inc. New York
Environmental Development Corporation Delaware
Environmental Reclamation Company Illinois
Enviro Recycling, Inc. New York
Envotech-Illinois, L.L.C. Delaware
Environtech, Inc. Delaware
Evergreen Scavenger Service, Inc. Delaware
Evergreen Scavenger Service, L.L.C. Delaware
Xxxx X. Xxxxxxx Trucking Co., Inc. Illinois
Fort Worth Landfill TX, LP Delaware
Forward, Inc. California
X. Xxx Xxxxx Disposal Inc. Michigan
Xxxxxxxx Brothers, Inc. New Jersey
Xxxxxxxx Recycling and Transfer Station Co., Inc. New Jersey
Xxxx Recycling Services, Inc. Indiana
General Refuse Rolloff Corp. Delaware
Georgia Recycling Services, Inc. Delaware
Golden Eagle Disposals, Inc. New York
Golden Waste Disposal, Inc. Georgia
Great Lakes Disposal Services, Inc. Delaware
Great Midwestern Recovery Systems, Inc. Illinois
Great Plains Landfill OK, LLC Delaware
Harland's Sanitary Landfill, Inc. Michigan
Hawkeye Disposal Services, Inc. Iowa
Illiana Disposal Partnership Indiana
A-3
70
Illinois Bulk Handlers, Inc. Illinois
Illinois Landfill, Inc. Illinois
Illinois Recycling Services, Inc. Illinois
Independent Trucking Company California
Indiana Recycling Service, Incorporated Indiana
Industrial Services of Illinois, Inc. Illinois
Xxxxxx Waste Disposal, Inc. Illinois
Jefferson City Landfill, LLC Delaware
Xxx Xx Xxxx & Sons, Inc. New Jersey
Key Waste Indiana Partnership Indiana
Xxxxxxx Waste Systems (Dallas) Inc. Delaware
Xxxxxxx Waste Systems (Kansas City) Inc. Missouri
Xxxxxxx Waste Systems (Texas) Inc. Texas
Lake Shore Distributions, Inc. Illinois
Lathrop Sunrise Sanitation Corporation California
Xxx County Landfill SC, LLC Delaware
Xxx County Landfill, Inc. Illinois
Lemons Landfill, LLC Delaware
Liberty Waste Holdings, Inc. Delaware
Liberty Waste Services Limited, L.L.C. Delaware
Liberty Waste Services of Illinois, L.L.C. Illinois
Liberty Waste Services of McCook, L.L.C. Delaware
Loop Express, Inc. Illinois
Loop Recycling, Inc. Illinois
Loop Transfer, Incorporated Illinois
Xxxxx Xxxxx & Son, Inc., Sanitation Contractors New Jersey
Manumit of Florida, Inc. Florida
Mars Road TX, LP Delaware
MCM Sanitation, Inc. New York
Medical Disposal Services, Inc. Illinois
Mesquite Landfill TX, LP Delaware
Metropolitan Disposal, Inc. Massachusetts
Mississippi Waste Paper Company Mississippi
MJS Associates, Inc. Washington
Monarch Disposal, Inc. Illinois
NationsWaste, Inc. Delaware
Xxxxxx County Landfill Partnership Indiana
Nimishillen Industrial Park, Inc. Ohio
Northeast Landfill, LLC Delaware
Northeast Sanitary Landfill, Inc. South Carolina
Northwest Recycling, Inc. Illinois
Oakland Heights Development, Inc. Michigan
Oklahoma City Landfill, LLC Oklahoma
Oklahoma Refuse, Inc. Oklahoma
Organized Sanitary Collectors and Recyclers, Inc. Nebraska
A-4
71
Oscar's Collection System of Fremont, Inc. Nebraska
Otay Landfill, Inc. California
Ottawa County Landfill, Inc. Delaware
Packerton Land Company, L.L.C. Delaware
Packman, Inc. Kansas
Palomar Transfer Station, Inc. California
Paper Fibers, Inc. Washington
Paper Fibres Company Washington
Pinal County Landfill Corporation Arizona
Pinecrest Landfill OK, LLC Delaware
Pine Hill Farms Landfill TX, LP Delaware
Pittsburg County Landfill, Inc. Oklahoma
Pleasant Oaks Landfill TX, LP Delaware
Price & Sons Recycling Company Xxxxxxx
X. 18, Inc. Illinois
Rabanco Intermodal/B.C., Inc. Washington
Rabanco, Ltd. Washington
Rabanco Recycling, Inc. Washington
Rabanco Regional Landfill Company Xxxxxxxxxx
Xxxxxx Landfill, Inc. California
RCS, Inc. Illinois
X.X. Xxxxxx Enterprises, Inc. Ohio
X.X. Xxxxxx Refuse Service, Inc. Ohio
Recycling Associates, Inc. New York
Reliable Rubbish Disposal, Inc. Massachusetts
Resource Recovery, Inc. Kansas
Ridgeline Trucking, Inc. Illinois
Xxxx Bros. Waste & Recycling Co. Ohio
Royal Holdings, Inc. Michigan
Xxxxxx Landfill, Inc. Illinois
Rural Sanitation Service, Inc. of North Carolina South Carolina
S & L, Inc. Washington
S & S Environmental, Inc. Michigan
S & S Recycling, Inc. Georgia
San Marcos NCRRF, Inc. California
Sanitary Disposal Services, Inc. Michigan
Sanitran, Inc. New York
Saugus Disposal, Inc. Massachusetts
Sauk Trail Development, Inc. Michigan
Selas Enterprises LTD New York
Show-Me Landfill, LLC Delaware
Shred-All Recycling, Inc. Illinois
South Chicago Disposal, Inc. of Indiana Indiana
Southeast Landfill, LLC Delaware
Southwest Waste, Inc. Missouri
A-5
72
SSWI, Inc. Washington
Standard Disposal Services, Inc. Michigan
Standard Disposal Services of Florida, Inc. Florida
Standard Environmental Services, Inc. Michigan
Standard Waste, Inc. Delaware
Xxxxx Recycling Center, Inc. Ohio
Xxxxxxx Trash & Recycling Services, Inc. Missouri
Streator Area Landfill, Inc. Illinois
Suburban Transfer, Inc. Illinois
Suburban Warehouse, Inc. Illinois
Sunrise Sanitation Service, Inc. California
Sunset Disposal, Inc. Kansas
Sunset Disposal Services, Inc. California
Sycamore Landfill, Inc. California
Tates Transfer Systems, Inc. Missouri
T & G Container, Inc. Indiana
Xxx Xxxxxxx'x Disposal Service, Inc. New Jersey
Top Disposal Service, Inc. Illinois
Tricil (N.Y.) Inc. New York
Tri-State Recycling Services, Inc. Illinois
Tri-State Refuse Equipment Sales & Service, Inc. Ohio
Turkey Creek Landfill TX, LP Delaware
Turnpike Leasing, Inc. Massachusetts
United Waste Control Corp. Washington
United Waste Systems of Central Michigan, Inc. Michigan
Upper Rock Island County Landfill, Inc. Illinois
USA Waste of Illinois, Inc. Illinois
Xxxxxx Disposal Service, Inc. Massachusetts
Xxxxxx Xxxxx'x Waste Systems, Inc. New York
Waste Associates, Inc. Washington
Wastehaul, Inc. Indiana
Waste Reclaiming Services, Inc. Illinois
Xxxxx County Landfill IL, Inc. Delaware
WJR Environmental, Inc. Washington
Xxxxxxxx County Landfill, Inc. Ohio
World Sanitation Corporation New York
A-6
