EXHIBIT 10.01
EXECUTION COPY
TENTH SUPPLEMENTAL INDENTURE
This TENTH SUPPLEMENTAL INDENTURE, dated as of April 9, 2003 (this "TENTH
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, ALLIED WASTE INDUSTRIES INC., a
corporation duly organized and existing under the laws of the State of Delaware
("ALLIED" or the "PARENT GUARANTOR"), each of the other GUARANTORS signatory
hereto (collectively with the Parent Guarantor, the "GUARANTORS") and U.S. BANK
NATIONAL ASSOCIATION, a national banking association, as Trustee (the
"TRUSTEE").
WITNESSETH:
WHEREAS, the Company, the Guarantors and the Trustee executed and
delivered an Indenture, dated as of December 23, 1998 (the "INDENTURE"), to
provide for the issuance by the Company from time to time of debt securities
evidencing its indebtedness;
WHEREAS, pursuant to Board Resolution (the "RESOLUTIONS"), the Company has
authorized the issuance of $450.0 million of its 7-7/8% Senior Notes due 2013
(the "NOTES");
WHEREAS, the Notes will be guaranteed (the "SENIOR GUARANTEES") by Allied
and each of the other Guarantors;
WHEREAS, the Company and the Guarantors have filed, in accordance with the
provisions of the Securities Act of 1933, as amended, and the rules and
regulations thereunder (collectively, the "SECURITIES ACT"), with the Securities
and Exchange Commission a registration statement on Form S-3, as amended (File
No. 333-101607) (the "REGISTRATION STATEMENT");
WHEREAS, the Notes and the Senior Guarantees have been registered under
the Securities Act pursuant to the Registration Statement;
WHEREAS, the Notes shall be secured by a first priority lien on: (1) all
the Capital Stock of BFI's domestic Restricted Subsidiaries and certain of our
other wholly-owned subsidiaries (the "DOMESTIC PLEDGED STOCK"); (2) 65% of the
Capital Stock of BFI's foreign Restricted Subsidiaries (the "FOREIGN PLEDGED
STOCK"); and (3) all tangible and intangible assets (other than real property)
currently owned by BFI, substantially all of its domestic Restricted
Subsidiaries and certain of our other wholly-owned subsidiaries (collectively,
the "ASSETS"). The Domestic Pledged Stock, the Foreign Pledged Stock and the
Assets are referred collectively as the "COLLATERAL;"
WHEREAS, BFI and its Subsidiaries that own the Collateral entered into an
amendment on January 25, 2001 to the Shared Collateral Pledge Agreement, dated
July 30, 1999, among the Company, BFI and certain of its Subsidiaries and The
Chase Manhattan Bank, as the collateral trustee thereunder (the "COLLATERAL
TRUSTEE") (as amended, the "PLEDGE AGREEMENT"), an amendment on January 25, 2001
to the Shared Collateral Security Agreement, dated July 30, 1999, among the
Company, BFI and certain of its Subsidiaries and the collateral trustee (as
amended, the "SECURITY AGREEMENT"), and an amendment on January 25, 2001 to the
Collateral Trust Agreement, dated July 30, 1999, among the Company, BFI and
certain of its Subsidiaries and the collateral trustee (together with the Pledge
Agreement and the Security Agreement, the "SECURITY AGREEMENTS"). The Company
and Allied entered into an amendment on December 17, 2002 (the "AMENDMENT"), to
the Credit Facility. Upon issuance of the Notes, the Security Agreements, along
with the Amendment, will provide for the grant by BFI, its Subsidiaries and
certain of
our other wholly-owned subsidiaries to the collateral agent for the ratable
benefit of the Holders of the Notes of a pledge of, or security interest in, as
the case may be, the Collateral; and
WHEREAS, the Company desires to establish the terms of the Notes in
accordance with Section 3.1 of the Indenture and to establish the form of the
Notes in accordance with Section 2.1 of the Indenture.
ARTICLE I.
TERMS
Section 1.01 TERMS OF THE NOTES.
The following terms relating to the Notes are hereby established:
(1) The Notes shall constitute a series of Securities having the title
"7-7/8% Senior Notes due 2013." The Notes shall form their own series for voting
purposes and shall not be part of the same class or series as any other senior
notes issued by the Company.
(2) The aggregate principal amount of the Notes that may be authenticated
and delivered under this Tenth Supplemental Indenture shall be unlimited;
provided, however, that the Company complies with the provisions of this Tenth
Supplemental Indenture, including subsection 12(d) of this Section 1.01.
(3) Maturity. The entire outstanding principal of the Notes shall be
payable on April 15, 2013 (the "STATED MATURITY DATE").
(4) Interest and Payments. The rate at which the Notes shall bear interest
shall be 7-7/8%. Interest on the Notes shall accrue from the date hereof. The
Interest Payment Dates for the Notes on which interest will be payable shall be
April 15 and October 15 of each year, beginning October 15, 2003; the Regular
Record Dates for the interest payable on the Notes on any Interest Payment Date
shall be April 1 with respect to the April 15 Interest Payment Date and October
1 with respect to the October 15 Interest Payment Date. Interest on overdue
principal and premium, if any, shall be at a rate of 2% per annum in excess of
the rate then in effect; interest on overdue installments of interest shall be
at the same rate, to the extent lawful; and the basis upon which interest shall
be calculated shall be that of a 360-day year consisting of twelve 30-day
months.
The place where the principal of (and premium, if any) and interest with
respect to and interest on the Notes shall be payable and the Notes may be
surrendered for the registration of transfer or exchange shall be the Corporate
Trust Office of the Trustee which, as of this writing, is located at 000 Xxxx
Xxxxxx, 00xx Xxxxx Xxx Xxxx, Xxx Xxxx 00000, Attention: Corporate Trust
Administration. The place where notices or demands to or upon the Company in
respect of the Notes and this Tenth Supplemental Indenture may be served shall
be the Corporate Trust Office of the Trustee. In addition, payment of interest
on any Note may, at the option of the Company, be made by check mailed to the
address of the Person in whose name the Note is registered at the close of
business on the Regular Payment Date; provided, however, that all payments of
principal, premium, if any, and interest on the Notes to Holders of which have
given wire instructions to the Company or the Paying Agent at least 10 Business
Days prior to the applicable payment date shall be made by wire transfer to an
account maintained by such Holder entitled thereto as specified by such Holder
in the instructions.
(5) Optional Redemption. The Notes shall not be subject to any redemption
at the option of the Company except as set forth in this paragraph (5).
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(a) At any time, or from time to time, prior to April 15, 2006, up
to 33-1/3% in aggregate principal amount of the Notes originally issued
under this Tenth Supplemental Indenture shall be redeemable, at the option
of the Company, from the net proceeds of one or more Public Offerings of
Capital Stock (other than Redeemable Interests) of Allied, at a Redemption
Price equal to 107.875% of the principal amount thereof, together with
accrued but unpaid 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.
(b) On or after April 15, 2008, the Company may redeem all or a part
of the Notes upon not less than 30 nor more than 60 days' notice, at the
redemption prices (expressed as percentages of principal amount) set forth
below plus accrued and unpaid interest, if any, thereon, to the applicable
redemption date, if redeemed during the twelve-month period beginning on
April 15 of the years indicated below:
Year Percentage
---- ----------
2008................................ 103.938%
2009................................ 102.625%
2010................................ 101.313%
2011 and thereafter................. 100.000%
(6) Except as set forth under subsections 12(a) and (b) of this Section
1.01 of this Tenth Supplemental Indenture, the Notes shall not have the benefit
of any mandatory redemption or sinking fund of the Company.
(7) The Notes shall be issuable in denominations of $1,000.
(8) Payments of the principal of (and premium, if any) and interest with
respect to the Notes shall be made in U.S. Dollars, and the Notes shall be
denominated in U.S. Dollars.
(9) The Trustee shall also be the Security Registrar and Paying Agent.
(10) The entire outstanding principal amount of and any accrued interest,
if any, on the Notes shall be payable upon declaration of acceleration of the
maturity thereof pursuant to Article 5 of the Indenture.
(11) The Notes shall be payable on the Stated Maturity Date in an amount
equal to the principal amount thereof plus any accrued and unpaid interest
accrued to the Stated Maturity Date.
(12) There shall be the following additions to the covenants set forth in
the Indenture with respect to the Notes, which shall be effective only for so
long as any of the Notes are Outstanding:
(a) Asset Dispositions.
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
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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% (or any
lesser amount as provided below) of the consideration received by the
Company (or such Restricted Subsidiary) consists of (A) cash or readily
marketable cash equivalents, (B) the assumption of Debt or other
liabilities reflected on the consolidated balance sheet of the Company and
its Restricted Subsidiaries in accordance with generally accepted
accounting principles (excluding Debt or any other liabilities subordinate
in right of payment to the Notes) and release from all liability on such
Debt or other liabilities assumed, (C) 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, (D) 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), (E) any Designated
Noncash Consideration received pursuant to this clause (E) 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 (F) 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 as follows: (A) first, within one
year from the later of the date of such Asset Disposition or the receipt
of such Net Available Proceeds, to repayment of Debt of the Company or its
Restricted Subsidiaries then outstanding under the Credit Facility which
would require such application or which would prohibit payments pursuant
to clause (B); (B) second, to the extent Net Available Proceeds are not
required to be applied as specified in clause (A), to purchases of
outstanding Notes and other Debt of the Company that ranks pari passu in
right of payment to the Notes (on a pro rata basis based upon the
outstanding aggregate principal amount thereof) pursuant to an Offer to
Purchase (to the extent such an offer is not prohibited by the terms of
the Credit Facility then in effect) at a purchase price equal to 100% of
the principal amount thereof plus accrued interest to the date of purchase
(subject to the rights of Holders of record on the relevant Regular Record
Date to receive interest due on an Interest Payment Date that is on or
prior to the purchase date); and (C) third, to the extent of any remaining
Net Available Proceeds following completion of such Offer to Purchase, to
any other use as determined by the Company which is not otherwise
prohibited by this Tenth Supplemental Indenture and provided further that
the 75% limitation referred to in clause (ii) above shall not apply to any
Asset Disposition if the consideration received therefrom, as determined
in good faith by the Company's Board of Directors, is equal to or greater
than what the after-tax proceeds would have been had the Asset Disposition
complied with the aforementioned 75% limitation.
Notwithstanding the foregoing, the Company shall not be required to
comply with the provisions described in clause (iii) of the preceding
paragraph: (i) if the Net Available Proceeds ("REINVESTED AMOUNTS") are
invested or committed to be invested within one year from the later of the
date of the related Asset Disposition or the receipt of such Net Available
Proceeds in assets that will be used in the business of the Company or any
of its Restricted Subsidiaries as such business is conducted prior to such
Asset Disposition (determined by the Board of Directors in good faith) or
(ii) to the extent the Company
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elects to redeem the Notes with the Net Available Proceeds pursuant to any
of the provisions of subsection (5) of this Section 1.01.
Notwithstanding the foregoing, the Company shall not be required to
comply with the requirements described in clause (ii) of the second
preceding paragraph if the Asset Disposition is an Excepted Disposition.
Any Offer to Purchase pursuant to this subsection 12(a) shall be
effected by the sending of the written terms and conditions thereof (the
"OFFER DOCUMENT") by the Company, by first class mail, to Holders of the
Notes within 30 days after the date which is one year after the later of
the date of consummation of the Asset Disposition referred to in this
subsection 12(a) or the receipt of the Net Available Proceeds from such
Asset Disposition. The aggregate principal amount of the Notes to be
offered to be purchased pursuant to the Offer to Purchase shall equal the
Net Available Proceeds required to be made available therefor pursuant to
clause (iii)(B) of this subsection 12(a) (rounded down to the next lowest
integral multiple of $1,000). Each Holder shall be entitled to tender all
or any portion of the Notes owned by such Holder pursuant to the Offer to
Purchase, subject to the requirement that any portion of a Note tendered
must be tendered in an integral multiple of $1,000 principal amount.
(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 Tenth Supplemental Indenture,
(i) so long as the Company is a Subsidiary of Allied: (a) any
Person, or any Persons (other than a Permitted Allied Successor), acting
together that would constitute a "Group" (a "GROUP") for purposes of
Section 13(d) of the Exchange Act (an "ALLIED GROUP"), together with any
Affiliates or Related Persons thereof (other than any employee stock
ownership plan), beneficially own 50% or more of the total voting power of
all classes of Voting Stock of Allied, (b) any Person or Allied Group,
together with any Affiliates or Related Persons thereof, succeeds in
having a sufficient number of its nominees who have not been approved by
the Continuing Directors elected to the Board of Directors of Allied such
that such nominees, when added to any existing director remaining on the
Board of Directors of Allied after such election who is an Affiliate or
Related Person of such Person or Allied Group, shall constitute a majority
of the Board of Directors of Allied, or (c) there occurs any transaction
or series of related transactions other than a merger, consolidation or
other transaction with a Related Business in which the shareholders of
Allied immediately prior to such transaction (or series) receive (I)
solely Voting Stock of Allied (or its successor or parent, as the case may
be), (II) cash, securities and other property in an amount which could be
paid by the Company as a Restricted Payment under this Tenth 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
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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 Allied Successor), acting together
that would constitute a Group for purposes of Section 13(d) of the
Exchange Act (an "AWNA GROUP"), together with any Affiliates or Related
Persons thereof (other than any employee stock ownership plan)
beneficially own 50% or more of the total voting power of all classes of
Voting Stock of the Company, (b) any Person or AWNA Group, together with
any Affiliates or Related Persons thereof, succeeds in having a sufficient
number of its nominees who have not been approved by the Continuing
Directors elected to the Board of Directors of the Company such that such
nominees, when added to any existing director remaining on the Board of
Directors of the Company after such election who is an Affiliate or
Related Person of such Person or AWNA Group, shall constitute a majority
of the Board of Directors of the Company, or (c) there occurs any
transaction or series of related transactions other than a merger,
consolidation or other transaction with a Related Business in which the
shareholders of the Company immediately prior to such transaction (or
series) receive (I) solely Voting Stock of the Company (or its successor
or parent, as the case may be), (II) cash, securities and other property
in an amount which could be paid by the Company as a Restricted Payment
under this Tenth Supplemental Indenture after giving pro forma effect to
such transaction, or (III) a combination thereof, and the beneficial
owners of the Voting Stock of the Company immediately prior to such
transaction (or series) do not, immediately after such transaction (or
series), beneficially own Voting Stock representing more than 50% of the
total voting power of all classes of Voting Stock of the Company (or in
the case of a transaction (or series) in which another entity becomes a
successor to the Company, of the successor entity).
The Company shall comply with the requirements of Rule 14e-1 under
the Exchange Act and any other securities laws and regulations thereunder
to the extent such laws and regulations are applicable in connection with
the repurchase of the Notes resulting from a Change of Control.
The Company and the Trustee shall perform their respective
obligations specified in the Offer Document for the Offer to Purchase.
Prior to the Purchase Date, the Company shall (i) accept for payment Notes
or portions thereof tendered pursuant to the Offer to Purchase, (ii)
deposit with the Paying Agent (or, if the Company is acting as its own
Paying Agent, segregate and hold in trust as provided in Section 9.3 of
the Indenture) money sufficient to pay the Purchase Price of all Notes or
portions thereof so accepted and (iii) deliver or cause to be delivered to
the Trustee all Notes so accepted together with an Officers' Certificate
stating the Notes or portions thereof accepted for payment by the Company.
The Paying Agent (or the Company if so acting) shall promptly mail or
deliver to Holders of Notes so accepted payment in an amount equal to the
Purchase Price for each $1,000 of Notes so accepted, and the Company shall
promptly execute a new Note or Notes equal in principal amount to any
unpurchased portion of the Note surrendered as requested by the Holder,
and the Guarantors shall promptly execute their Senior Guarantees to be
endorsed thereon, and thereafter the Trustee shall promptly authenticate
and mail or deliver to such Holders such new Note or Notes. Any Note not
accepted for payment shall be promptly mailed or delivered by the Company
to the Holder thereof. The
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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 the Notes are rated the
following: (i) Baa3 or better by Xxxxx'x Investors Service, Inc.
("MOODY'S") and BB+ or better by Standard & Poor's Ratings Group ("S&P");
or (ii) BBB- or better by S&P and Ba1 or better by Moody's (a "RATING
EVENT") (or, in any case, if such person ceases to rate the Notes for
reasons outside of the control of the Company, the equivalent investment
grade credit rating from any other "nationally recognized statistical
rating organization" (within the meaning of Rule 15c3-1(c)(2)(vi)(F) under
the Exchange Act) selected by the Company as a replacement agency) (the
"RATING EVENT DATE") (and provided no Event of Default or event that with
notice or the passage of time would constitute an Event of Default shall
exist on the Rating Event Date), the covenants specifically listed under
subsections 12(a), 12(d), 12(e), 12(f), 12(h) and 12(j) of this Section
1.01 of this Tenth Supplemental Indenture shall no longer be applicable to
the Notes. At no time after a Rating Event Date will the provisions and
covenants contained in this Tenth Supplemental Indenture at the time of
the issuance of the Notes that cease to be applicable after the Rating
Event Date be reinstated.
(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 if such
Debt had been Incurred or such Preferred Stock had been issued and the
proceeds thereof had been received and so applied at the beginning of the
four full fiscal quarters, would be greater than 2.0 to 1.0.
Without regard to the foregoing limitations, the Company or any
Restricted Subsidiary of the Company may Incur the following Debt:
(i) Debt under the Credit Facility in an aggregate principal
amount at any one time outstanding not to exceed the amount
permitted to be borrowed thereunder;
(ii) Debt evidenced by the Notes and the Senior 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;
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(iv) Debt outstanding on the date of this Tenth Supplemental
Indenture;
(v) Debt Incurred in connection with an acquisition, merger or
consolidation transaction permitted under the provisions described
under Section 7.1 of the Indenture (as superseded by subsection 13
of this Section 1.01 of this Tenth Supplemental Indenture), which
Debt: (x) was issued by a Person prior to the time such Person
becomes a Restricted Subsidiary in such transaction (including by
way of merger or consolidation with the Company or another
Restricted Subsidiary) and was not issued in contemplation of such
transaction, or (y) 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 Tenth Supplemental Indenture described under this clause (v)
and then outstanding does not exceed 7.5% of the Consolidated Total
Assets of the Company at the time of such Incurrence;
(vi) Debt consisting of Permitted Interest Rate or Currency
Protection Agreements;
(vii) Debt Incurred to renew, extend, refinance or refund any
outstanding Debt permitted in the preceding paragraph or in clauses
(i) through (v) above or Incurred pursuant to this clause (vii);
provided, however, that such Debt does not exceed the principal
amount of Debt so renewed, extended, refinanced or refunded (plus
the amount of any premium and accrued interest, plus customary fees,
consent payments, expenses and costs relating to the Debt so
renewed, extended, refinanced or refunded) ("Permitted Refinancing
Debt"); and
(viii) Debt not otherwise permitted to be Incurred pursuant to
clauses (i) through (vii) above, which, in aggregate amount,
together with the aggregate amount of all other Debt previously
Incurred pursuant to the provisions of this clause (viii) and then
outstanding, does not exceed 7.5% of the Consolidated Total Assets
of the Company at the time of such Incurrence.
(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: (x) any dividends
or distributions to the extent payable in shares of the Capital Stock of the
Company (other than Redeemable Interests) or in options, warrants or other
rights to acquire the Capital Stock of the Company (other than Redeemable
Interests), (y) dividends or distributions by a Restricted Subsidiary to the
Company or another Wholly-Owned Restricted Subsidiary, and (z) the payment of
pro rata dividends by a Restricted Subsidiary to Holders of both minority and
majority interests in such Restricted Subsidiary); (ii) purchase, redeem or
otherwise acquire or retire for value: (a) any Capital Stock of the Company or
any Capital Stock of or other ownership interests in any Subsidiary or any
Affiliate or Related Person of the Company, or (b) any options, warrants or
rights to purchase or acquire shares of Capital Stock of the Company or any
Capital Stock of or other ownership interests in any Subsidiary or any Affiliate
or Related Person of the Company (excluding, in each case of (a) and (b), the
purchase, redemption, acquisition or retirement by any Restricted Subsidiary of
any of its Capital Stock, other
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ownership interests or options, warrants or rights to purchase such Capital
Stock or other ownership interests, in each case, owned by the Company or a
Wholly-Owned Restricted Subsidiary); (iii) make any Investment that is not a
Permitted Investment; or (iv) redeem, defease, repurchase, retire or otherwise
acquire or retire for value prior to any scheduled maturity, repayment or
sinking fund payment, Debt of the Company that is subordinate in right of
payment to the Notes (each of the transactions described in clauses (i) through
(iv) being a "RESTRICTED PAYMENT"), if:
(1) an Event of Default, or an event that with the lapse of time or
the giving of notice, or both, would constitute an Event of Default, shall
have occurred and be continuing; or
(2) the Company would, at the time of such Restricted Payment and
after giving pro forma effect thereto as if such Restricted Payment had
been made at the beginning of the most recently ended four full fiscal
quarter period for which internal financial statements are available
immediately preceding the date of such Restricted Payment, not have been
permitted to Incur at least $1.00 of additional Debt pursuant to the
Consolidated EBITDA Coverage Ratio test set forth in the first paragraph
under subsection 12(d) of this Section 1.01 of this Tenth Supplemental
Indenture; or
(3) upon giving effect to such Restricted Payment, the aggregate of
all Restricted Payments (excluding Restricted Payments permitted by
clauses (ii), (iii), (iv), (v) and (vii) of the next succeeding paragraph)
from the date of this Tenth Supplemental Indenture (the amount so
expended, if other than in cash, determined in good faith by the Board of
Directors) exceeds the sum, without duplication, of: (a) 50% of the
aggregate Consolidated Net Income (or, in case Consolidated Net Income
shall be negative, less 100% of such deficit) for the period (taken as one
accounting period) from the beginning of the second fiscal quarter of
fiscal year 2001 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
January 30, 2001, 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 January 30, 2001 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;
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(ii) any refinancing or refunding of Debt permitted if such
refinancing or refunding is permitted pursuant to clause (vii) of the
second paragraph under subsection 12(d) of this Section 1.01 of this Tenth
Supplemental Indenture;
(iii) the purchase, redemption or other acquisition or retirement
for value of any Debt or Capital Stock of the Company or any options,
warrants or rights to purchase or acquire shares of Capital Stock of the
Company in exchange for, or out of the net cash proceeds of, the
substantially concurrent issuance or sale (other than to a Restricted
Subsidiary of the Company) of Capital Stock (other than Redeemable
Interests) of the Company; provided that the amount of any such net cash
proceeds that are utilized for any such purchase, redemption or other
acquisition or retirement for value shall be excluded from clause (3)(b)
in the foregoing paragraph of this subsection 12(e);
(iv) the repurchase, redemption, defeasance, retirement, refinancing
or acquisition for value or payment of principal of any subordinated Debt
or Capital Stock through the issuance of new subordinated Debt or Capital
Stock of the Company.
(v) the repurchase of any subordinated Debt at a purchase price not
greater than 101% of the principal amount of such subordinated Debt in the
event of a Change of Control pursuant to a provision similar to the
provision contained in subsection 12(b) of this Section 1.01 of this Tenth
Supplemental Indenture; provided that prior to such repurchase the Company
has made the Change of Control Offer (the "CHANGE OF CONTROL OFFER") as
provided in such covenant with respect to the Notes and repurchased all
Notes validly tendered for repayment in connection with such Change of
Control Offer;
(vi) the purchase or redemption of any Debt from Net Available
Proceeds to the extent permitted under subsection 12(a) of this Section
1.01 of this Tenth Supplemental Indenture;
(vii) the repurchase, redemption, defeasance, retirement,
refinancing or acquisition for value the principal of the Subordinated
Notes; 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 designation for purposes of calculating the aggregate amount
of Restricted Payments (including the Restricted Payment resulting from such
designation) permitted under this subsection 12(e) of Section 1.01 of this Tenth
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
10
respect of its Capital Stock or other ownership interests or pay any Debt or
other obligation owed to the Company or any other Restricted Subsidiary, (ii) to
make loans or advances to the Company or any other Restricted Subsidiary, or
(iii) to sell, lease or transfer any of its property or assets to the Company or
any Wholly-Owned Restricted Subsidiary, except, in any such case, any
encumbrance or restriction existing pursuant to: (a) the Notes, the Indenture,
the Senior Guarantees or any other agreement in effect on the date of this Tenth
Supplemental Indenture; (b) the Credit Facility, including any Guarantees of or
Liens securing the Debt Incurred thereunder; (c) an agreement relating to any
Debt Incurred by such Subsidiary prior to the date on which such Subsidiary was
acquired by the Company and outstanding on such date and not incurred in
anticipation of becoming a Subsidiary; (d) an agreement which has been entered
into for the pending sale or disposition of all or substantially all of the
Capital Stock, other ownership interests or assets of such Subsidiary, provided
that such restriction terminates upon consummation or abandonment of such
disposition and upon termination of such agreement; (e) customary non-assignment
provisions in leases and other agreements entered into in the ordinary course of
business; (f) restrictions contained in any security agreement (including a
capital lease) securing Debt permitted to be Incurred under this Tenth
Supplemental Indenture that impose restrictions of the nature described in
clause (iii) above on the property subject to the Lien of such security
agreement; (g) an agreement effecting a renewal, extension, refinancing or
refunding of Debt incurred pursuant to an agreement referred to in clause (a),
(b) or (f) above; provided, however, that the provisions relating to such
encumbrance or restriction contained in such renewal, extension, refinancing or
refunding agreement are no more restrictive in any material respect than the
provisions contained in the agreement it replaces, as determined in good faith
by the Board of Directors; or (h) such encumbrance or restriction is the result
of applicable corporate law or regulation relating to the payment of dividends
or distributions.
(g) Limitation on Liens.
Allied shall not, and the Company shall not, and shall not permit any of
its Restricted Subsidiaries to, create, Incur, assume or otherwise cause or
suffer to exist or become effective any Lien (other than Permitted Liens) upon
any of their property or assets, now owned or hereafter acquired to secure Debt
of Allied, the Company or any of its Restricted Subsidiaries.
(h) Limitation on Transactions with Affiliates and Related Persons.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, make any payment to, or sell, lease, transfer or otherwise
dispose of any of its properties or assets to, or purchase any property or
assets from, or enter into or make or amend any transaction, contract,
agreement, understanding, loan, advance or guarantee with, or for the benefit
of, any Affiliate of the Company (each of the foregoing, an "AFFILIATE
TRANSACTION"), unless: (a) such Affiliate Transaction is on terms that are no
less favorable to the Company or such Restricted Subsidiary than those that
would have been obtained in a comparable transaction by the Company or such
Restricted Subsidiary with an unrelated Person; and (b) the Company delivers to
the Trustee, with respect to any Affiliate Transaction or series of related
Affiliate Transactions involving aggregate consideration in excess of $10
million, 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
11
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 million outstanding in the aggregate at any time, and (ii) $2
million 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 million at any time
outstanding; provided that such limitation shall not apply to loans the proceeds
of which are used to purchase common stock of: (i) the Company from the Company,
or (ii) Allied from Allied if and to the extent that Allied utilizes the
proceeds thereof to acquire Capital Stock (other than Redeemable Interests) of
the Company; (c) transactions between or among the Company and/or its Restricted
Subsidiaries; (d) payments of customary fees by the Company or any of its
Restricted Subsidiaries to investment banking firms and financial advisors made
for any financial advisory, financing, underwriting or placement services or in
respect of other investment banking activities, including, without limitation,
in connection with acquisitions or divestitures which are approved by a majority
of the Board of Directors in good faith; (e) any agreement as in effect on the
date of this Tenth Supplemental Indenture or any amendment thereto (so long as
such amendment is not disadvantageous to the Holders of the Notes in any
material respect) or any transaction contemplated thereby; and (f) Restricted
Payments that are permitted by the provisions of subsection 12(e) of this
Section 1.01 of this Tenth 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.
12
(j) Unrestricted Subsidiaries.
The Company at any time may designate any Person that is a Subsidiary, or
after the date of this Tenth Supplemental Indenture becomes a Subsidiary, of the
Company as an "UNRESTRICTED SUBSIDIARY," whereupon (and until such Person ceases
to be an Unrestricted Subsidiary) such Person and each other Person that is then
or thereafter becomes a Subsidiary of such Person shall be deemed to be an
Unrestricted Subsidiary. In addition, the Company may at any time terminate the
status of any Unrestricted Subsidiary as an Unrestricted Subsidiary, whereupon
such Subsidiary and each other Subsidiary of the Company (if any) of which such
Subsidiary is a Subsidiary shall be a Restricted Subsidiary.
Notwithstanding the foregoing, no change in the status of a Subsidiary of
the Company from a Restricted Subsidiary to an Unrestricted Subsidiary or from
an Unrestricted Subsidiary to a Restricted Subsidiary will be effective, and no
Person may otherwise become a Restricted Subsidiary, if:
(i) in the case of any change in status of a Restricted Subsidiary
to an Unrestricted Subsidiary, the Restricted Payment resulting from such
change, would violate the provisions of clause (3) of the first paragraph
of subsection 12(e) of this Section 1.01 of this Tenth 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 Guarantee of, any Debt of such Subsidiary
(including any undertaking, agreement or instrument evidencing such Debt),
or (B) is directly or indirectly liable on any Debt of such Subsidiary.
Any termination of the status of an Unrestricted Subsidiary as an
Unrestricted Subsidiary pursuant to the preceding sentence will be deemed
to result in a breach of this covenant in any circumstance in which the
Company would not be permitted to change the status of such Unrestricted
Subsidiary to the status of a Restricted Subsidiary pursuant to the
preceding paragraph.
"UNPERMITTED DEBT" means any Debt of a Subsidiary of the Company if: (x) a
default thereunder (or under any instrument or agreement pursuant to or by
which such Debt is issued, secured or evidenced) or any right that the
Holders thereof may have to take enforcement action against such
Subsidiary or its property or other assets, would permit (whether or not
after the giving of notice or the lapse of time or
13
both) the Holders of any Debt of the Company or any other Restricted
Subsidiary to declare the same due and payable prior to the date on which
it otherwise would have become due and payable or otherwise to take any
enforcement action against the Company or any such other Restricted
Subsidiary, or (y) such Debt is secured by a Lien on any property or other
assets of the Company and any of its other Restricted Subsidiaries.
Each Person that is or becomes a Subsidiary of the Company shall be deemed
to be a Restricted Subsidiary at all times when it is a Subsidiary of the
Company that is not an Unrestricted Subsidiary. Each Person that is or
becomes a Wholly-Owned Subsidiary of the Company shall be deemed to be a
Wholly-Owned Restricted Subsidiary at all times when it is a Wholly-Owned
Subsidiary of the Company that is not an Unrestricted Subsidiary.
(13) Mergers, Consolidations and Certain Sales of Assets. Section 7.1 of
the Indenture is hereby superseded by the following in respect of the Notes:
"The Company (i) shall not consolidate with or merge into any Person; (ii)
shall not permit any Person other than a Restricted Subsidiary to consolidate
with or merge into the Company; and (iii) may not, directly or indirectly, in
one or a series of transactions, transfer, convey, sell, lease or otherwise
dispose of all or substantially all of the properties and assets of the Company
and its Subsidiaries on a consolidated basis; unless, in each case of (i), (ii)
and (iii) above:
(1) immediately before and after giving effect to such transaction
(or series) and treating any Debt Incurred by the Company or a Subsidiary
of the Company as a result of such transaction (or series) as having been
incurred by the Company of such Subsidiary at the time of the transaction
(or series), no Event of Default, or event that with the passing of time
or the giving of notice, or both, will constitute an Event of Default,
shall have occurred and be continuing;
(2) in a transaction (or series) in which the Company does not
survive or in which the Company transfers, conveys, sells, leases or
otherwise disposes of all or substantially all of its properties and
assets, the successor entity is a corporation, partnership, limited
liability company or trust and is organized and validly existing under the
laws of the United States of America, any State thereof or the District of
Columbia and expressly assumes, by a supplemental indenture executed and
delivered to the Trustee in form satisfactory to the Trustee, all the
Company's obligations under this Tenth Supplemental Indenture;
(3) if such transaction (or series) occurs prior to the occurrence
of a Rating Event Date, either (x) the Company or the successor entity
would, at the time of such transaction (or series) and after giving pro
forma effect thereto as if such transaction (or series) had occurred at
the beginning of the most recently ended four full fiscal quarter period
for which internal financial statements are available immediately
preceding the date of such transaction (or series), have been permitted to
Incur at least $1.00 of additional Debt pursuant to the Consolidated
EBITDA Coverage Ratio test set forth in the first paragraph under
subsection 12(d) of this Section 1.01, or (y) the Consolidated EBITDA
Coverage Ratio of the Company or the successor entity for the most
recently ended four full fiscal quarter period for which internal
financial statements are available immediately preceding the date of such
transaction (or series), calculated on a pro forma basis as if such
transaction (or series) had occurred at the beginning of such four full
fiscal quarter period,
14
would be no less than such Consolidated EBITDA Coverage Ratio, calculated
without giving effect to such transaction or series or any other
transactions (or series) that is subject to the provisions of the
Indenture described in this paragraph and that occurred after the date
that is twelve months before the date of such transaction (or series);
(4) if, as a result of any such transaction, property or assets of
the Company or any Restricted Subsidiary of the Company would become
subject to a Lien prohibited by subsection 12(g) of this Section 1.01, the
Company or the successor entity shall have secured the Notes as required
by such covenant; and
(5) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel as specified in the Indenture.
The Company shall deliver to the Trustee prior to the proposed
consolidation, merger, sale, transfer, lease or other disposition an
Officers' Certificate to the foregoing effect and an Opinion of Counsel
stating that the proposed consolidation, merger, sale, transfer, lease or
other disposition and such supplemental indenture comply with the
Indenture and that all conditions precedent to the consummation of such
transaction under this Section 7.1 have been met."
(14) Security.
The Security Agreements shall secure the due and punctual payment of the
principal of and interest on the Notes when and as the same shall be due and
payable, whether on an interest payment date, at maturity, by acceleration,
repurchase, redemption or otherwise, and interest on the overdue principal of
and interest (to the extent permitted by law) on the Notes and performance of
all other obligations of the Company to the Holders of Notes or the Trustee
under this Tenth Supplemental Indenture and the Notes, according to the terms
hereunder or thereunder. Each Holder of Notes, by its acceptance thereof,
consents and agrees to the terms of the Security Agreements (including, without
limitation, the provisions providing for foreclosure and release of the
Collateral) as the same may be in effect or may be amended from time to time in
accordance with their terms. The Company shall deliver to the Trustee copies of
all documents delivered to the collateral trustee pursuant to the Security
Agreements, and shall do or cause to be done all such acts and things as may be
necessary or proper, or as may be required by the provisions of the Security
Agreements, to assure and confirm to the Trustee and the collateral trustee the
security interest in the Collateral contemplated hereby, by the Security
Agreements or any part thereof, as from time to time constituted, so as to
render the same available for the security and benefit of this Tenth
Supplemental Indenture and of the Notes secured hereby, according to the intent
and purposes herein expressed. The Company shall take, or shall cause its
Subsidiaries to take, upon request of the Trustee, any and all actions
reasonably required to cause the Security Agreements to create and maintain, as
security for the obligations of the Company under this Tenth Supplemental
Indenture and the Notes, a valid and enforceable perfected first priority Lien
in and on all the Collateral in favor of the collateral trustee for the benefit
of the Holders of Notes.
(a) Opinions and Certificates.
(i) The Company shall furnish to the Trustee all opinions and
certificates delivered by the Company in connection with the Security
Agreements and such opinions and certificates shall be for the benefit of
the Trustee and the Holders of the Notes.
(ii) The Company shall otherwise comply with the provisions of
TIA Section 314(b).
15
(b) Release of Collateral.
(i) Subject to this subsection 14(b) of this Section 1.01 of
this Tenth Supplemental Indenture, the Collateral may be released from the
Lien and security interest created by the Security Agreements at any time
or from time to time in accordance with the provisions of the Security
Agreements. The collateral trustee shall execute, deliver or acknowledge
any necessary or proper instruments of termination, satisfaction or
release to evidence the release of any Collateral permitted to be released
pursuant to this Tenth Supplemental Indenture or the Security Agreements.
(ii) The release of any Collateral from the terms of this
Tenth Supplemental Indenture and the Security Agreements shall not be
deemed to impair the security under this Tenth Supplemental Indenture in
contravention of the provisions hereof if and to the extent the Collateral
is released pursuant to the terms of the Security Agreements. To the
extent applicable, the Company shall cause TIA Section 313(b), relating to
reports, and TIA Section 314(d), relating to the release of property or
securities from the Lien and security interest of the Security Agreements
and relating to the substitution therefor of any property or securities to
be subjected to the Lien and security interest of the Security Agreements,
to be complied with. The Company shall furnish to the Trustee and the
collateral trustee, prior to each proposed release of Collateral pursuant
to the Security Agreements, (i) all documents required by TIA Section
314(d) and (ii) an Opinion of Counsel, which may be rendered by internal
counsel to the Company, to the effect that such accompanying documents
constitute all documents required by TIA Section 314(d).
(iii) Any certificate or opinion required by TIA Section
314(d) may be made by an Officer of the Company except in cases where TIA
Section 314(d) requires that such certificate or opinion be made by an
independent Person, which Person shall be an independent engineer,
appraiser or other expert selected or approved by the Trustee and the
collateral trustee in the exercise of reasonable care.
(iv) In the event that the Company wishes to obtain a release
of any Collateral in accordance with the Security Agreements and has
delivered the certificates and documents required by the Security
Agreements and this subsection 14(b) of this Section 1.01 of this Tenth
Supplemental Indenture, the Trustee shall determine whether it has
received all documentation required by TIA Section 314(d) in connection
with such release and, based on such determination and the Opinion of
Counsel delivered pursuant to Section 10.03(b), shall deliver a
certificate to the collateral trustee setting forth such determination.
The Trustee may, to the extent permitted by the Indenture, accept as
conclusive evidence of compliance with the foregoing provisions the
appropriate statements contained in such documents and such Opinion of
Counsel.
(c) Authorization of Actions to Be Taken by the Trustee Under the
Security Agreements. Subject to the provisions of the Indenture, the Trustee
may, in its sole discretion and without the consent of the Holders of Notes,
instruct, on behalf of the Holders of Notes, the collateral trustee to take all
actions it deems necessary or appropriate in order to (a) enforce the rights of
the Trustee and the Holders of Notes under any of the terms of the Security
Agreements and (b) collect and receive any and all amounts payable in respect of
the obligations of the Company under this Tenth Supplemental Indenture and the
Notes, provided, that in no event shall the collateral trustee be required to
take any actions that violate the terms of the Security Agreements or the Credit
Facility. The Trustee shall have power to institute and maintain such suits and
proceedings as it may deem expedient to preserve or protect its interests and
the interests of the Trustee and the Holders of Notes in the Collateral.
16
(d) Authorization of Receipt of Funds by the Trustee Under the
Security Agreements. The Trustee is authorized to receive any funds for the
benefit of the Holders of Notes distributed under the Security Agreements, and
to make further distributions of such funds to the Holders of Notes according to
the provisions of this Tenth Supplemental Indenture.
(e) Termination of Security Interest. Upon (1) the full and final
payment and performance of all obligations of the Company under this Tenth
Supplemental Indenture and the Notes; (2) the release of the Lien on the
Collateral securing the BFI Notes, the Allied NA Senior Notes and all other
indebtedness of Allied and its Restricted Subsidiaries (other than under the
Credit Facility); or (3) the sale of any such Collateral in accordance with the
applicable provisions of this Tenth Supplemental Indenture, the Trustee shall,
at the request of the Company, deliver a certificate to the collateral trustee
instructing the collateral trustee to release the Liens (or in the case of
clause (3), the Liens on such Collateral) pursuant to this Tenth Supplemental
Indenture and the Security Agreements.
(f) No Amendments to the Security Agreements. The Company shall not
amend, waive or modify any provisions of the Security Agreements if such
amendment, waiver or modification could reasonably be expected to adversely
impact the Holder of Notes without the consent of a majority of Holder of Notes.
(g) Maintenance. The Company shall maintain as security for the
obligations of the Company under this Tenth Supplement Indenture and the Notes,
an equal and ratable sharing of the perfected security interest held by the
collateral trustee under the uniform commercial code as in effect in the State
of New York pursuant to the Security Agreements in the Collateral.
(15) Events of Default. In addition to the Events of Default set forth in
Section 5.1 of the Indenture, the Notes shall include the following additional
Event of Default designated as clause (j) of such Section, which shall be deemed
an Event of Default under Section 5.1 of the Indenture:
"(j) failure to perform or comply with the provisions of Section 7.1
of the Indenture (as superseded by subsection 13 of Section 1.01 hereof)
or the provisions of subsection 12(a) or subsection 12(b) of Section 1.01
of this Tenth Supplemental Indenture."
(b) In addition, Section 5.1 of the Indenture is further
supplemented by adding the following paragraph thereto:
"If an Event of Default occurs at any time by reason of any willful action
(or inaction) taken (or not taken) by or on behalf of the Company with the
intention of avoiding payment of the premium that the Company would have had to
pay if the Company then had elected to redeem the Notes pursuant to Article 11
of the Indenture and subsection 5 of this Section 1.01 of this Tenth
Supplemental Indenture, then, upon acceleration of the Notes, an equivalent
premium shall also become and be immediately due and payable, to the extent
permitted by law, anything in the Indenture or in the Notes to the contrary
notwithstanding."
(16) Section 8.1 of the Indenture is hereby supplemented by adding the
following as subsection (m) thereof in respect of the Notes:
(m) to provide for the issuance of Additional Notes in accordance
with the limitations set forth in this Tenth Supplemental Indenture as of
the date hereof;
(17) Section 15.4 of the Indenture is hereby supplemented to include the
following as clause (d) of such Section in respect of the Notes:
17
"(d) In the event that any Subsidiary Guarantor ceases to be a guarantor
under, or to pledge any of its assets to secure obligations under, the Credit
Facility, such Guarantor shall be released from all of its obligations under its
Senior Guarantee endorsed on the Securities and under this Article 15."
(18) The Notes shall not be issuable as Bearer Securities.
(19) Interest on any Note shall be payable only to the Person in whose
name that Note (or one or more predecessor Notes thereof) is registered at the
close of business on the Regular Record Date for such interest.
(20) Article 4 of the Indenture shall be applicable to the Notes.
(21) The Notes shall not be issuable in definitive form except under the
circumstances described in Section 2.1 of the Indenture.
Section 1.02 FORMS.
(1) Attached hereto as Exhibit A is a true and correct copy of the Form of
Note representing the Company's Notes.
(2) The form of Senior Guarantee shall be as set forth in Section 2.3 of
the Indenture.
ARTICLE II.
TRANSFER AND EXCHANGE
Section 2.01 GENERAL.
Sections 2.4, 3.2 and 3.3 of the Indenture are hereby modified and
superseded as follows:
(a) General. The Notes and the Trustee's certificate of authentication
shall be substantially in the form of Exhibit A hereto. The Notes may have
notations, legends or endorsements required by law, stock exchange rule or
usage. Each Note shall be dated the date of its authentication. The Notes shall
be in denominations of $1,000 and integral multiples thereof.
The terms and provisions contained in the Notes shall constitute, and are
hereby expressly made, a part of this Tenth Supplemental Indenture and the
Company, the Guarantors and the Trustee, by their execution and delivery of this
Tenth Supplemental Indenture, expressly agree to such terms and provisions and
to be bound thereby. However, to the extent any provision of any Note conflicts
with the express provisions of this Tenth Supplemental Indenture, the provisions
of this Tenth Supplemental Indenture shall govern and be controlling.
(b) Global Notes. Notes issued in global form shall be substantially in
the form of Exhibit A attached hereto (including the Global Note Legend thereon
and the "Schedule of Exchanges of Interests in the Global Note" attached
thereto). Notes issued in definitive form shall be substantially in the form of
Exhibit A attached hereto (but without the Global Note Legend thereon and
without the "Schedule of Exchanges of Interests in the Global Note" attached
thereto). Each Global Note shall represent such of the outstanding Notes as
shall be specified therein and each shall provide that it shall represent the
aggregate principal amount of outstanding Notes from time to time endorsed
thereon and that the aggregate principal amount of outstanding Notes represented
thereby may from time to time be reduced or increased, as appropriate, to
reflect exchanges and redemptions. Any endorsement of a Global Note to reflect
the amount of any increase or decrease in the aggregate principal amount of
outstanding Notes
18
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 Tenth Supplemental Indenture.
Section 2.02 REGISTRATION, TRANSFER AND EXCHANGE.
Section 3.5 of the Indenture is hereby modified and superseded in its
entirety as follows in respect of the Notes:
(a) Transfers of Interests in Global Notes for Definitive Notes. A Global
Note may not be transferred as a whole except by the Depositary to a nominee of
the Depositary, by a nominee of the Depositary to the Depositary or to another
nominee of the Depositary, or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary. All Global Notes
shall be exchanged by the Company for Definitive Notes if (i) the Company
delivers to the Trustee notice from the Depositary that it is unwilling or
unable to continue to act as Depositary or that it is no longer a clearing
agency registered under the Exchange Act and, in either case, a successor
Depositary is not appointed by the Company within 90 days after the date of such
notice from the Depositary, (ii) the Company in its sole discretion determines
that the Global Notes (in whole but not in part) should be exchanged for
Definitive Notes and delivers a written notice to such effect to the Trustee, or
(iii) there shall have occurred and be continuing a Default or an Event of
Default under the Indenture with respect to the Notes. Upon the occurrence of
either of the preceding events in (i), (ii) or (iii) above, Definitive Notes
shall be issued in such names as the Participants and Indirect Participants and
the Depositary shall instruct the Trustee. Global Notes also may be exchanged or
replaced, in whole or in part, as provided in Sections 3.6 and 3.4 of the
Indenture. Every Note authenticated and delivered in exchange for, or in lieu
of, a Global Note or any portion thereof, pursuant to this Section 2.02 or
Section 3.6 or 3.4 of the Indenture, shall be authenticated and delivered in the
form of, and shall be, a Global Note. A Global Note may not be exchanged for
another Note other than as provided in this Section 2.02(a), however, beneficial
interests in a Global Note may be transferred and exchanged as provided in
Section 2.02(b) or (c) of this Tenth 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 Tenth
Supplemental Indenture and the Applicable Procedures. 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 Global Note may be transferred to Persons who
take delivery thereof in the form of a beneficial interest in a 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
19
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 satisfaction of all of the requirements for transfer or exchange of
beneficial interests in Global Notes contained in this Tenth Supplemental
Indenture and the Notes or otherwise applicable under the Securities Act,
the Trustee shall adjust the principal amount of the relevant Global
Note(s) pursuant to Section 2.02(g) of this Tenth Supplemental Indenture.
(c) Transfer of Beneficial Interests in Global Notes to Definitive Notes.
If any Holder of a beneficial interest in a 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 Tenth Supplemental Indenture, the Trustee shall cause the aggregate
principal amount of the applicable Global Note to be reduced accordingly
pursuant to Section 2.02(g) of this Tenth 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) shall be registered in such name or
names and in such authorized denomination or denominations as the Holder of such
beneficial interest shall instruct the Registrar through instructions from the
Depositary and the Participant or Indirect Participant. The Trustee shall
deliver such Definitive Notes to the Persons in whose names such Notes are so
registered. Any Definitive Note issued in exchange for a beneficial interest
pursuant to this Section 2.02(c) shall not bear the Global Legend.
(d) Transfer and Exchange of Definitive Notes for Beneficial Interests. A
Holder of a Definitive Note may exchange such Note for a beneficial interest in
a Global Note or transfer such Definitive Notes to a Person who takes delivery
thereof in the form of a beneficial interest in a Global Note at any time. Upon
receipt of a request for such an exchange or transfer, the Trustee shall cancel
the applicable Definitive Note and increase or cause to be increased the
aggregate principal amount of one of the Global Notes.
(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).
A Holder of Definitive Notes may transfer such Notes to a Person who takes
delivery thereof in the form of a Definitive Note. Upon receipt of a request to
register such a transfer, the Registrar shall register the Definitive Notes
pursuant to the instructions from the Holder thereof.
(f) Legends. Each Global Note issued under this Tenth Supplemental
Indenture shall bear a legend in substantially the following form, unless
specifically stated otherwise in the applicable provisions of this Tenth
Supplemental Indenture:
20
"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."
(g) Cancellation and/or Adjustment of Global Notes. At such time as all
beneficial interests in a particular Global Note have been exchanged for
Definitive Notes or a particular Global Note has been redeemed, repurchased or
canceled in whole and not in part, each such Global Note will be returned to or
retained and canceled by the Trustee in accordance with Section 3.9 of the
Indenture. At any time prior to such cancellation, if any beneficial interest in
a Global Note is exchanged for or transferred to a Person who will take delivery
thereof in the form of a beneficial interest in another Global Note or for
Definitive Notes, the principal amount of Notes represented by such Global Note
shall be reduced accordingly and an endorsement shall be made on such Global
Note by the Trustee or by the Depositary at the direction of the Trustee to
reflect such reduction; and if the beneficial interest is being exchanged for or
transferred to a Person who shall take delivery thereof in the form of a
beneficial interest in another Global Note, such other Global Note shall be
increased accordingly and an endorsement shall be made on such Global Note by
the Trustee or by the Depositary at the direction of the Trustee to reflect such
increase.
(h) General Provisions Relating to Transfers and Exchanges.
(i) To permit registrations of transfers and exchanges, the Company
shall execute and the Trustee shall authenticate Global Notes and
Definitive Notes upon the Company's order or at the Registrar's request.
(ii) No service charge shall be made to a Holder of a beneficial
interest in a Global Note or to a Holder of a Definitive Note for any
registration of transfer or exchange, but the Company may require payment
of a sum sufficient to cover any transfer tax or similar governmental
charge payable in connection therewith (other than any such transfer taxes
or similar governmental charge payable upon exchange or transfer pursuant
to Sections 3.4, 8.6 and 11.7 of the Indenture and subsections 12(a) and
12(b) of Section 1.01 of this Tenth Supplemental Indenture).
(iii) The Registrar shall not be required to register the transfer
of or exchange any Note selected for redemption in whole or in part,
except the unredeemed portion of any Note being redeemed in part.
(iv) All Global Notes and Definitive Notes issued upon any
registration of transfer or exchange of Global Notes or Definitive Notes
shall be the valid obligations of the Company, evidencing the same debt,
and entitled to the same benefits of the Indenture, as the Global Notes or
Definitive Notes surrendered upon such registration of transfer or
exchange.
21
(v) The Company shall not be required (A) to issue, to register the
transfer of or to exchange any Notes during a period beginning at the
opening of business 15 days before the day of any selection of Notes for
redemption under Section 11.3 of the Indenture and ending at the close of
business on the day of selection, (B) to register the transfer of or to
exchange any Note so selected for redemption in whole or in part, except
the unredeemed portion of any Note being redeemed in part or (C) to
register the transfer of or to exchange a Note between a record date and
the next succeeding Interest Payment Date.
(vi) Prior to due presentment for the registration of a transfer of
any Note, the Trustee, any Agent and the Company may deem and treat the
Person in whose name any Note is registered as the absolute owner of such
Note for the purpose of receiving payment of principal of and interest on
such Notes and for all other purposes, and none of the Trustee, any Agent
or the Company shall be affected by notice to the contrary.
(vii) The Trustee shall authenticate Global Notes and Definitive
Notes in accordance with the provisions of Section 3.3 of the Indenture.
(viii) All certifications, certificates and Opinions of Counsel
required to be submitted to the Registrar pursuant to this Section 2.02 to
effect a registration of transfer or exchange may be submitted by
facsimile.
ARTICLE III.
DEFINITIONS
Section 3.01 ADDITIONAL DEFINITIONS.
In addition to the definitions set forth in Article I of the Indenture,
the Notes shall include the following additional definitions, which, in the
event of a conflict with the definition of terms in the Indenture, shall
control:
"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 the aggregate principal amount of Notes
(other than the Initial Notes) issued under the Indenture, as supplemented
by this Tenth Supplemental Indenture, in accordance with Section 3.3 of
the Indenture and subsection 12(d) of Section 1.01 of this Tenth
Supplemental Indenture, as part of the same series as the Initial Notes.
"ALLIED NA SENIOR NOTES " means the 7-3/8%, 7-5/8% and 7-7/8% Senior
Notes issued December 23, 1998, the 8-7/8% Senior Notes issued January 30,
2001, the 8-1/2% Senior Notes issued in November 2001 and the 9-1/4 Senior
Notes issued in November 2002 by the Company.
"ALLIED NA WASTE GROUP" means, collectively, the Company, Allied and
their respective Subsidiaries, and a member of the Allied NA Waste Group
means the Company, Allied and each of their respective Subsidiaries.
"APOLLO" means Apollo Management IV, L.P. or its Permitted
Transferees (exclusive of the Allied NA Waste Group).
22
"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 that apply to such transfer or exchange.
"ASSET DISPOSITION" by any Person that is the Company or any
Restricted Subsidiary means any transfer, conveyance, sale, lease or other
disposition by the Company or any of its Restricted Subsidiaries
(including a consolidation or merger or other sale of any Restricted
Subsidiary with, into or to another Person in a transaction in which such
Subsidiary ceases to be a Restricted Subsidiary of such Person), of (i)
shares of Capital Stock (other than directors' qualifying shares) or other
ownership interests of a Restricted Subsidiary or (ii) the property or
assets of such Person or any Restricted Subsidiary representing a division
or line or business or (iii) other assets or rights of such Person or any
Restricted Subsidiary outside of the ordinary course of business, but
excluding in each case in clauses (i), (ii) and (iii), (x) a disposition
by a Subsidiary of such Person to such Person or a Restricted Subsidiary
or by such Person to a Restricted Subsidiary, (y) the disposition of all
or substantially all of the assets of the Company in a manner permitted
pursuant to the provisions of Article 7 of the Indenture (as superseded by
subsection 13 of Section 1.01 hereof) of the Company and (z) any
disposition that constitutes a Restricted Payment or Permitted Investment
that is permitted pursuant to the provisions of subsection 12(e) of
Section 1.01 of this Tenth Supplemental Indenture.
"BANKRUPTCY LAW" means Title 11, U.S. Code or any similar federal or
state law for the relief of debtors.
"BFI " means Xxxxxxxx-Xxxxxx Industries, Inc.
"BFI NOTES" means the 6.1% and 6.375% Senior Notes issued January
1996, the 7.875% Senior Notes issued March 1995, the 7.4% Debentures
issued September 1995, and the 9.25% Debentures issued May 1991 by BFI.
"BLACKSTONE" means the collective reference to (i) Blackstone
Capital Partners III Merchant Banking Fund L.P., a Delaware limited
partnership, Blackstone Capital Partners II Merchant Banking Fund L.P., a
Delaware limited partnership, Blackstone Offshore Capital Partners III
L.P., a Cayman Islands limited partnership, Blackstone Offshore Capital
Partners II L.P., a Cayman Islands limited partnership, Blackstone Family
Investment Partnership III L.P., a Delaware limited partnership, and
Blackstone Family Investment Partnership II L.P., a Cayman Islands limited
partnership (each of the foregoing, a "Blackstone Fund") and (ii) each
Affiliate of any Blackstone Fund that is not an operating company or
Controlled by an operating company and each general partner of any
Blackstone Fund or any Blackstone Affiliate who is a partner or employee
of the Blackstone Group L.P.
"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
23
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.
"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 of any other class of such Person.
"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 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 million
individually or that exceed $10 million in the aggregate in any fiscal
year); plus (vi) all cash charges attributable to the execution, delivery
and performance of the Indenture or the Credit Facility, plus (vii) all
non-recurring cash charges related to acquisitions and financings
(including amendments thereto); and minus all non-cash non-recurring gains
during such period (to the extent included in determining net operating
income from such period); provided, however, that the Consolidated
Interest Expense, Consolidated Income Tax Expense and consolidated
depreciation and amortization expense
24
of a Consolidated Subsidiary of such Person shall be added to the
Consolidated Net Income pursuant to the foregoing only (x) to the extent
and in the same proportion that the Consolidated Net Income of such
Consolidated Subsidiary was included in calculating the Consolidated Net
Income of such Person and (y) only to the extent that the amount specified
in clause (x) is not subject to restrictions that prevent the payment of
dividends or the making of distributions of such Person.
"CONSOLIDATED EBITDA COVERAGE RATIO" of any Person means for any
period the ratio of (i) Consolidated EBITDA of such Person for such period
to (ii) the sum of (A) Consolidated Interest Expense of such Person for
such period, plus (B) the annual interest expense (including the
amortization of debt discount) with respect to any Debt incurred or
proposed to be Incurred by such Person or its Consolidated Subsidiaries
since the beginning of such period to the extent not included in clause
(ii)(A), minus (C) Consolidated Interest Expense of such Person with
respect to any Debt that is no longer outstanding or that will no longer
be outstanding as a result of the transaction with respect to which the
Consolidated EBITDA Coverage Ratio is being calculated, to the extent
included within clause (ii)(A); provided, however, that in making such
computation, the Consolidated Interest Expense of such Person attributable
to interest on any Debt bearing a floating interest rate shall be computed
on a pro forma basis as if the rate in effect on the date of computation
had been the applicable rate for the entire period, and provided further,
that, in the event such Person or any of its Consolidated Subsidiaries has
made acquisitions or dispositions of assets not in the ordinary course of
business (including any other acquisitions of any other Persons by merger,
consolidation or purchase of Capital Stock) during or after such period,
the computation of the Consolidated EBITDA Coverage Ratio (and for the
purpose of such computation, the calculation of Consolidated Net Income,
Consolidated Interest Expense, Consolidated Income Tax Expense and
Consolidated EBITDA) shall be made on a pro forma basis as if the
acquisitions or dispositions had taken place on the first day of such
period. In determining the pro forma adjustments to Consolidated EBITDA to
be made with respect to any Acquired Business for periods prior to the
acquisition date thereof, actions taken by the Company and its Restricted
Subsidiaries prior to the first anniversary of the related acquisition
date that result in cost savings with respect to such Acquired Business
shall be deemed to have been taken on the first day of the period for
which Consolidated EBITDA is being determined (with the intent that such
cost savings be effectively annualized by extrapolation from the
demonstrated cost savings since the related acquisition date).
"CONSOLIDATED INCOME TAX EXPENSE" of any Person means for any period
the consolidated provision for income taxes of such Person and its
Consolidated Subsidiaries for such period determined in accordance with
generally accepted accounting principles.
"CONSOLIDATED INTEREST EXPENSE" of any Person means for any period
the consolidated interest expense included in a consolidated income
statement (net of interest income) of such Person and its Consolidated
Subsidiaries for such period determined in accordance with generally
accepted accounting principles, including without limitation or
duplication (or, to the extent not so included, with the addition of), (i)
the portion of any rental obligation in respect of any Capital Lease
Obligation allocable to interest expense in accordance with generally
accepted accounting principles; (ii) the amortization of Debt discounts;
(iii) any payments or fees with respect to letters of credit, bankers'
acceptances or similar facilities; (iv) the net amount due and payable (or
minus the net amount receivable), with respect to any interest rate swap
or similar agreement or foreign currency hedge, exchange or similar
agreement; (v) any Preferred Stock dividends declared and paid
25
or payable in cash; and (v) any interest capitalized in accordance with
generally accepted accounting principles.
"CONSOLIDATED NET INCOME" of any Person means for any period the
consolidated net income (or loss) of such Person and its Consolidated
Subsidiaries for such period determined in accordance with generally
accepted accounting principles; provided that there shall be excluded
therefrom (a) for purposes solely of calculating Consolidated Net Income
for purposes of clause (3)(a) of the first paragraph of subsection 12(e)
of Section 1.01 of this Tenth Supplemental Indenture the net income (or
loss) of any Person acquired by such Person or a Subsidiary of such Person
in a pooling-of-interests transaction for any period prior to the date of
such transaction, to the extent such net income was distributed to
shareholders of such Person or used to purchase equity securities of such
Person prior to the date of such transaction, (b) the net income (but not
net loss) of any Consolidated Subsidiary of such Person that is subject to
restrictions that prevent the payment of dividends or the making of
distributions to such Person to the extent of such restrictions, (c) the
net income (or loss) of any Person that is not a Consolidated Subsidiary
of such Person except to the extent of the amount of dividends or other
distributions actually paid to such Person by such other Person during
such period, (d) gains or losses on asset dispositions by such Person or
its Consolidated Subsidiaries, (e) any net income (or loss) of a
Consolidated Subsidiary that is attributable to a minority interest in
such Consolidated Subsidiary, (f) all extraordinary gains and
extraordinary losses that involve a present or future cash payment, (g)
all non-cash non-recurring charges during such period, including charges
for acquisition related costs (it being understood that (A) non-cash
non-recurring charges shall not include accruals for closure and post
closure liabilities and (B) charges, other than charges for the accruals
referred to in (A) above, shall be deemed non-cash charges until the
period that cash disbursements attributable to such charges are made, at
which point such charges shall be deemed cash charges) and (h) the tax
effect of any of the items described in clauses (a) through (g) above.
"CONSOLIDATED SUBSIDIARIES" of any Person means all other Persons
that would be accounted for as consolidated Persons in such Person's
financial statements in accordance with generally accepted accounting
principles; provided, however, that, for any particular period during
which any Subsidiary of such Person was an Unrestricted Subsidiary,
"Consolidated Subsidiaries" shall exclude such Subsidiary for such period
(or portion thereof) during which it was an Unrestricted Subsidiary.
"CONSOLIDATED TOTAL ASSETS" of any Person at any date means the
consolidated total assets of such Person and its Restricted Subsidiaries
at such date as determined on a consolidated basis in accordance with
generally accepted accounting principles.
"CONTINUING DIRECTORS" means, as of any date of determination with
respect to any Person, any member of the Board of Directors of such Person
who:
(1) was a member of such Board of Directors on the Issue Date;
or
(2) was nominated for election or elected to such Board of
Directors with the approval of a majority of the Continuing
Directors who were members of such Board at the time of such
nomination or election.
"CREDIT FACILITY" means the Credit Agreement, dated July 21, 1999,
among the Company, Allied, certain lenders party thereto, and The Chase
Manhattan Bank, Citicorp
26
USA, Inc., DLJ Capital Funding, Inc., Credit Suisse First Boston
Corporation, as agents, Chase Securities Inc., and Xxxxxxx Xxxxx Xxxxxx
Inc., as arrangers, and Chase Securities Inc., as book manager, as
amended, or any bank credit agreement that replaces, amends, supplements,
restates or renews such Credit Facility.
"CUSTODIAN" means the Trustee, as custodian with respect to the
Notes in global form, or any successor entity thereto.
"DEFINITIVE NOTE" means a certificated Note registered in the name
of the Holder thereof and issued in accordance with Section 2.02 of this
Tenth Supplemental Indenture, substantially in the form of Exhibit A
hereto except that such Note shall not bear the Global Note Legend and
shall not have the "Schedule of Exchanges of Interests in the Global Note"
attached thereto.
"DEPOSITARY" means, with respect to the Notes issuable or issued in
whole or in part in global form, the Person specified in Section 3.1(b) of
the Indenture as the Depositary with respect to the Notes, and any and all
successors thereto appointed as depositary hereunder and having become
such pursuant to the applicable provision of this Tenth Supplemental
Indenture.
"DESIGNATED NONCASH CONSIDERATION" means the fair market value of
non-cash consideration received by the Company or one of its Restricted
Subsidiaries in connection with an Asset Disposition that is so designated
as Designated Noncash Consideration pursuant to an Officers' Certificate,
setting forth the basis of such valuation, executed by the principal
executive officer and the principal financial officer of the Company, less
the amount of cash or Cash Equivalents received in connection with a sale
of such Designated Noncash Consideration.
"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.
"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 Tenth Supplemental Indenture.
"GLOBAL NOTE" means a permanent global Note substantially in the
form of Exhibit A attached hereto that bears the Global Note Legend and
that has the "Schedule of Exchanges of Interests in the Global Note"
attached thereto, and that is deposited with or on behalf of and
registered in the name of the Depositary, representing a series of Notes.
27
"GUARANTEE" by any Person means any obligation, contingent or
otherwise, of such Person guaranteeing any Debt, or dividends or
distributions on any equity security, of any other Person (the "primary
obligor") in any manner, whether directly or indirectly, and including,
without limitation, any obligation of such Person (i) to purchase or pay
(or advance or supply funds for the purchase or payment of) such Debt or
to purchase (or to advance or supply funds for the purchase of) any
security for the payment of such Debt, (ii) to purchase property,
securities or services for the purpose of assuring the holder of such Debt
of the payment of such Debt or (iii) to maintain working capital, equity
capital or other financial statement condition or liquidity of the primary
obligor so as to enable the primary obligor to pay such Debt (and
"GUARANTEED," "GUARANTEEING" and "GUARANTOR" shall have meanings
correlative to the foregoing); provided, however, that the Guarantee by
any Person shall not include endorsements for such Person for collection
or deposit, in either case, in the ordinary course of business.
"HOLDER" means a Person in whose name a Note is registered.
"INDIRECT PARTICIPANT" means a Person who holds a beneficial
interest in a Global Note through a Participant.
"INITIAL NOTES" means the first $450.0 million aggregate principal
amount of Notes issued under this Tenth Supplemental Indenture on the date
hereof.
"INTERCOMPANY AGREEMENTS" means the Management Agreements between
Allied and the Company dated November 15, 1996.
"INTEREST RATE OR CURRENCY PROTECTION AGREEMENT" of any Person means
any interest rate protection agreement (including, without limitation,
interest rate swaps, caps, floors, collars, derivative instruments and
similar agreements), and/or other types of interest hedging agreements and
any currency protection agreement (including foreign exchange contracts,
currency swap agreements or other currency hedging arrangements).
"INVESTMENT" by any Person in any other Person means (i) any direct
or indirect loan, advance or other extension of credit or capital
contribution to or for the account of such other Person (by means of any
transfer of cash or other property to any Person or any payment for
property or services for the account or use of any Person, or otherwise),
(ii) any direct or indirect purchase or other acquisition of any Capital
Stock, bond, note, debenture or other Debt or equity security or evidence
of Debt, or any other ownership interest, issued by such other Person,
whether or not such acquisition is from such or any other Person, (iii)
any direct or indirect payment by such Person on a Guarantee of any
obligation of or for the account of such other Person or any direct or
indirect issuance by such Person of such a Guarantee or (iv) any other
investment of cash or other property by such Person in or for the account
of such other Person.
"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).
28
"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.
"NOTES" has the meaning assigned to it in the preamble to this Tenth
Supplemental Indenture Supplement. The Initial Notes and the Additional
Notes shall be treated as a single class for all purposes under the
Indenture, as modified, supplemented and superseded by this Tenth
Supplemental Indenture.
"OFFER DOCUMENT" has the meaning specified in the definition of
"Offer to Purchase."
"OFFER EXPIRATION DATE" has the meaning specified in the definition
of "Offer to Purchase."
"OFFER TO PURCHASE" means an offer, set forth in the Offer Document
sent by the Company by first class mail, postage prepaid, to each Holder
at his address appearing in the Note Register on the date of the Offer
Document, to purchase up to the principal amount of Notes specified in
such Offer Document at the purchase price (the "PURCHASE PRICE") specified
in such Offer Document (as determined pursuant to this Tenth Supplemental
Indenture). Unless otherwise required by applicable law, the Offer
Document shall specify the Offer Expiration Date of the Offer to Purchase
which shall be, subject to any contrary requirements of applicable law,
not less than 30 days or more than 60 days after the date of such Offer
Document and the Purchase Date for the purchase of Notes within five
Business Days after the Offer Expiration Date. The Offer Document shall be
mailed by the Company or, at the Company's request, by the Trustee in the
name and at the expense of the Company. The Offer Document shall contain
information concerning the business of the Company and its Subsidiaries
which the Company in good faith believes will enable such Holders to make
an informed decision with respect to the Offer to Purchase (which at a
minimum shall include or include or incorporate by reference (i) the most
recent annual and quarterly financial statements and "Management's
Discussion and Analysis of Financial Condition and Results of Operations"
required to be filed with the Trustee pursuant to subsection 12(i) of
Section 1.01 of this Tenth Supplemental Indenture (which requirements may
be satisfied by delivery of such documents together with the Offer to
Purchase), and (ii) any other information required by
29
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 Tenth Supplemental Indenture pursuant to
which the Offer to Purchase is being made;
(2) the Offer Expiration Date and the Purchase Date;
(3) the aggregate principal amount of the Outstanding Notes offered
to be purchased by the Company pursuant to the Offer to Purchase
(including, if less than 100%, the manner by which such amount has been
determined as required by this Tenth Supplemental Indenture) (the
"PURCHASE AMOUNT");
(4) the purchase price to be paid by the Company for each $1,000
aggregate principal amount of Notes accepted for payment (as specified
pursuant to this Tenth Supplemental Indenture);
(5) that the Holder may tender all or any portion of the Notes
registered in the name of such Holder and that any portion of a Note
tendered must be tendered in an integral multiple of $1,000 principal
amount;
(6) the place or places where Notes are to be surrendered for tender
pursuant to the Offer to Purchase;
(7) that interest on any Note not tendered or tendered but not
purchased by the Company pursuant to the Offer to Purchase shall continue
to accrue;
(8) that on the Purchase Date the purchase price shall become due
and payable upon each Security accepted for payment pursuant to the Offer
to Purchase and that interest thereon shall cease to accrue on and after
the Purchase Date;
(9) that each Holder electing to tender a Note pursuant to the Offer
to Purchase shall be required to surrender such Note at the place or
places specified in the Offer Document prior to the close of business on
the Offer Expiration Date (such Note being, if the Company or the Trustee
so requires, duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Company and the Trustee duly executed
by, the Holder thereof or his attorney duly authorize in writing and
bearing appropriate signature guarantees);
(10) that Holders shall be entitled to withdraw all or any portion
of Notes tendered if the Company (or its Paying Agent) receives, not later
than the close of business on the Offer Expiration Date, a telegram,
telex, facsimile transmission or letter setting forth the name of the
Holder, the principal amount of the Note the Holder tendered and a
statement that such Holder is withdrawing all or a portion of his tender;
(11) that (a) if Notes in an aggregate principal amount less than or
equal to the Purchase Amount are duly tendered and not withdrawn pursuant
to the Offer to Purchase, the Company shall purchase all such Notes and
(b) if Notes in an aggregate principal amount in excess of the Purchase
Amount are tendered and not withdrawn pursuant to the Offer to Purchase,
the Company shall purchase Notes having an aggregate principal
30
amount equal to the Purchase Amount on a pro rata basis (with such
adjustments as may be deem appropriate so that only Securities in
denominations of $1,000 or integral multiples thereof shall be purchased);
and
(12) that in the case of any Holder whose Note is purchased only in
part, the Company shall execute, and the Trustee shall authenticate and
deliver to the Holder of such Note without service charge, a new Note or
Notes, of any authorized denomination as requested by such Holder, in an
aggregate amount equal to and in exchange for the unpurchased portion of
the Security so tendered.
Any Offer to Purchase shall be governed by and effected in accordance with
the Offer Document for such Offer to Purchase.
"OFFICERS' CERTIFICATE" means a certificate that meets the
requirements listed under the definition of Opinion of Counsel signed on
behalf of the Company by two officers of the Company, one of whom must be
the principal executive officer, the principal financial officer, the
treasurer or the principal accounting officer of the Company.
"OPINION OF COUNSEL" means a certificate or opinion with respect to
compliance with a condition or covenant provided in this Tenth
Supplemental Indenture from legal counsel, who may be an employee of or
counsel to the Company, any Subsidiary of the Company or the Trustee, that
complies with the provisions of TIA Section 314(e) and includes: (i) a
statement that the Person making such certificate or opinion has read such
covenant or condition; (ii) a brief statement as to the nature and scope
of the examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based; (iii) a statement
that, in the opinion of such Person, he or she has made such examination
or investigation as is necessary to enable him to express an informed
opinion as to whether or not such covenant or condition has been
satisfied; and (iv) a statement as to whether or not, in the opinion of
such Person, such condition or covenant has been satisfied.
"PARI PASSU" when used with respect to the ranking of any Debt of
any Person in relation to other Debt of such Person means that each such
Debt (a) either (i) is not subordinated in right of payment to any other
Debt of such Person or (ii) is subordinate in right of payment to the same
Debt of such Person as is the other Debt and is so subordinate to the same
extent and (b) is not subordinate in right of payment to the other Debt or
to any Debt of such Person as to which the other Debt is not so
subordinate.
"PARTICIPANT" means, with respect to the Depositary, Euroclear or
Clearstream, a Person who has an account with the Depositary, Euroclear or
Clearstream, respectively (and, with respect to DTC, shall include
Euroclear and Clearstream).
"PERMITTED ALLIED SUCCESSOR" means (i) an issuer, other than Allied,
of Voting Securities issued to the shareholders of Allied in a merger,
consolidation or other transaction permitted by clause (i)(c) of the
definition of Change of Control, (ii) Apollo and (iii) Blackstone.
"PERMITTED 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
31
incurred and which shall have a notional amount no greater than the
payments due with respect to the Debt being hedged thereby.
"PERMITTED INVESTMENT" means (i) Investments in the Company or any
Person that is, or as a consequence of such investment becomes, a
Restricted Subsidiary, (ii) securities either issued directly or fully
guaranteed or insured by the government of the United States of America or
any agency or instrumentality thereof having maturities of not more than
one year, (iii) time deposits and certificates of deposit, demand deposits
and banker's acceptances having maturities of not more than one year from
the date of deposit, of any domestic commercial bank having capital and
surplus in excess of $500 million, (iv) demand deposits made in the
ordinary course of business and consistent with the Company's customary
cash management policy in any domestic office of any commercial bank
organized under the laws of the United States of America or any State
thereof, (v) insured deposits issued by commercial banks of the type
described in clause (iv) above, (vi) mutual funds whose investment
guidelines restrict such funds' investments primarily to those satisfying
the provisions of clauses (i) through (iii) above, (vii) repurchase
obligations with a term of not more than 90 days for underlying securities
of the types described in clauses (ii) and (iii) above entered into with
any bank meeting the qualifications specified in clause (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 million at
any time outstanding; provided, however, that to the extent the proceeds
thereof are used to purchase Capital Stock (other than Redeemable
Interests) of (A) the Company from the Company or (B) Allied from Allied
if Allied uses the proceeds thereof to acquire Capital Stock (other than
Redeemable Interests) of the Company, such limitation on the amount of
such Investments at any time outstanding shall not apply with respect to
such Investments, (xii) any Investment consisting of a Permitted Interest
Rate or Currency Protection Agreement, (xiii) any Investment acquired by
the Company or any of its Restricted Subsidiaries (A) in exchange for any
other Investment or accounts receivable held by the Company or any such
Restricted Subsidiary in connection with or as a result of a bankruptcy,
workout, reorganization or recapitalization of the issuer of such other
Investment or accounts receivable or (B) as a result of a foreclosure by
the Company or any of its Restricted Subsidiaries with respect to any
secured Investment or other transfer of title with respect to any secured
Investment in default, (xiv) any Investment that constitutes part of the
consideration from any Asset Disposition made pursuant to, and in
compliance with, subsection 12(a) of Section 1.01 of this Tenth
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.
32
"PERMITTED LIENS" means (i) Liens securing indebtedness under the
Credit Facility that was permitted by the terms of the Indenture to be
incurred; (ii) Liens incurred after the date of this Tenth Supplemental
Indenture securing Debt of the Company that ranks pari passu in right of
payment to the Notes, so long as the Notes are secured equally and ratably
with such Debt for so long as such Debt is secured; (iii) Liens in favor
of the Company or any Restricted Subsidiary; (iv) Liens on property of, or
shares of Stock or evidences of Debt of, a Person existing at the time
such Person is merged into or consolidated with the Company or any
Restricted Subsidiary of the Company, provided that such Liens were not
incurred in contemplation of such merger or consolidation and do not
extend to any assets other than those of the Person merged into or
consolidated with the Company or any Restricted Subsidiary; (v) Liens on
property existing at the time of acquisition thereof by the Company or any
Restricted Subsidiary of the Company, provided that such Liens were not
incurred in contemplation of such acquisition; (vi) Liens existing on the
date of this Tenth Supplemental Indenture; (vii) Liens for taxes,
assessments or governmental charges or claims that are not yet delinquent
or that are being contested in good faith by appropriate proceedings
promptly instituted and diligently concluded, provided that any reserve or
other appropriate provision as shall be required in conformity with GAAP
shall have been made therefor; (viii) Liens securing Permitted Refinancing
Debt where the Liens securing the Permitted Refinancing Debt were
permitted under the Indenture; (ix) landlords', carriers', warehousemen's,
mechanics', materialmen's, repairmen's or the like Liens arising by
contract or statute in the ordinary course of business and with respect to
amounts which are not yet delinquent or are being contested in good faith
by appropriate proceedings; (x) pledges or deposits made in the ordinary
course of business (A) in connection with leases, performance bonds and
similar obligations, or (B) in connection with workers' compensation,
unemployment insurance and other social security legislation; (xi)
easements, rights-of-way, restrictions, minor defects or irregularities in
title and other similar encumbrances which, in the aggregate, do not
materially detract from the value of the property subject thereto or
materially interfere with the ordinary conduct of the business of the
Company or such Restricted Subsidiary; (xii) any attachment or judgment
Lien that does not constitute an Event of Default; (xiii) Liens in favor
of the Trustee for its own benefit and for the benefit of the Holders;
(xiv) any interest or title of a lessor pursuant to a lease constituting a
Capital Lease Obligation; (xv) pledges or deposits made in connection with
acquisition agreements or letters of intent entered into in respect of a
proposed acquisition; (xvi) Liens in favor of prior holders of leases on
property acquired by the Company or of sublessors under leases on the
Company property; (xvii) Liens incurred or deposits made to secure the
performance of tenders, bids, leases, statutory or regulatory obligations,
banker's acceptances, surety and appeal bonds, government contracts,
performance and return-of-money bonds and other obligations of a similar
nature incurred in the ordinary course of business (exclusive of
obligations for the payment of borrowed money); (xviii) Liens (including
extensions and renewals thereof) upon real or personal property acquired
after the date of this Tenth Supplemental Indenture; provided that (a) any
such Lien is created solely for the purpose of securing Debt incurred, in
accordance with subsection 12(d) of Section 1.01 of this Tenth
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
33
business of the Company and its Restricted Subsidiaries, taken as a whole;
(xx) Liens arising from filing Uniform Commercial Code financing
statements regarding leases; (xxi) Liens on property of, or on shares of
stock or Debt of, any Person existing at the time such Person becomes, or
becomes a part of, any Restricted Subsidiary, provided that such Liens do
not extend to or cover any property or assets of the Company or any
Restricted Subsidiary other than the property or assets acquired; (xxii)
Liens encumbering deposits securing Debt under Permitted Interest Rate
Currency or Commodity Price Agreements; (xxiii) Liens arising out of
conditional sale, title retention, consignment or similar arrangements for
the sale of goods entered into by the Company or any of its Restricted
Subsidiaries in the ordinary course of business in accordance with the
past practices of the Company and its Restricted Subsidiaries; (xxiv) any
renewal of or substitution of any Liens permitted by any of the preceding
clauses, provided that the Debt secured is not increased (other than by
the amount of any premium and accrued interest, plus customary fees,
consent payments, expenses and costs related to such renewal or
substitution of Liens or the incurrence of any related refinancing of
Debt) and the Liens are not extended to any additional assets (other than
proceeds and accessions); (xxv) Liens incurred in the ordinary course of
business of the Company or any Restricted Subsidiary of the Company with
respect to obligations that do not exceed $50 million at any one time
outstanding and that (a) are not incurred in connection with the borrowing
of money or the obtaining of advances or credit (other than trade credit
in the ordinary course of business) and (b) do not in the aggregate
materially detract from the value of the property or materially impair the
use thereof in the operation of business by the Company or such Restricted
Subsidiary; and (xxvi) Liens on assets of Unrestricted Subsidiaries that
secure non-recourse Debt of Unrestricted Subsidiaries. This definition
does not authorize the incurrence of any Debt not otherwise permitted by
subsection 12(d) of Section 1.01 of this Tenth Supplemental Indenture.
"PERMITTED TRANSFEREE" means, with respect to any Person: (a) any
Affiliate of such Person; (b) any investment manager, investment advisor,
or constituent general partner of such Person; or (c) any investment fund,
investment account, or investment entity that is organized by such Person
or its Affiliates and whose investment manager, investment advisor, or
constituent general partner is such Person or a Permitted Transferee of
such Person.
"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.
"PUBLIC OFFERING" means any underwritten public offering of Capital
Stock pursuant to a registration statement filed under the Securities Act.
"PURCHASE DATE" means a settlement for the purchase of Notes within
five Business Days after the Offer Expiration Date.
"RELATED BUSINESS" means a business substantially similar to the
business engaged in by the Company and its Subsidiaries on the date of
this Tenth Supplemental Indenture.
34
"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.
"SPECIAL PURPOSE SUBSIDIARIES" means Saguaro National Insurance
Company, a Vermont corporation, Global Indemnity Assurance, a Vermont
corporation and a Subsidiary of BFI, Commercial Reassurance Limited, a
corporation organized under the laws of the Republic of Ireland and a
Subsidiary of BFI, and Allied Receivables Funding Incorporated, a Delaware
corporation.
"SUBORDINATED NOTES" means the 10% Senior Subordinated Notes due
2009, issued in July 1999 by the Company.
"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 SUBSIDIARY" means (i) at any date, a Subsidiary of the
Company that is an Unrestricted Subsidiary in accordance with the
provisions of subsection 12(j) of Section 1.01 hereof, and (ii) for any
period, a Subsidiary of the Company that for any portion of such period is
an Unrestricted Subsidiary in accordance with the provisions of subsection
12(j) of Section 1.01 hereof, provided that such term shall mean such
Subsidiary only for such portion of such period.
"VOTING STOCK" of any Person means Capital Stock of such Person that
ordinarily has voting power for the election of directors (or persons
performing similar functions) of such Person, whether at all times or only
so long as no senior class of securities has such voting power by reason
of any contingency.
ARTICLE IV.
MISCELLANEOUS
Section 4.01 DEFINITIONS.
Capitalized terms used but not defined in this Tenth 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 Tenth
Supplemental Indenture, is in all respects ratified and confirmed, and the
Indenture and this Tenth 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 Tenth Supplemental Indenture).
Section 4.03 CONCERNING THE TRUSTEE.
35
The Trustee assumes no duties, responsibilities or liabilities by reason
of this Tenth 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 Tenth Supplemental Indenture, the Indenture and the Notes shall be
governed by and construed in accordance with the laws of the State of New York
without giving effect to any provisions thereof relating to conflicts of law.
Section 4.05 SEPARABILITY.
In case any provision in this Tenth 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 Tenth 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.
36
IN WITNESS WHEREOF, the parties hereto have caused this Tenth 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:
---------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Treasurer
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:
---------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Treasurer
Each of the Subsidiary Guarantors Listed
on Schedule I hereto, as Guarantor of the
Securities
By:
---------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Treasurer
U.S. BANK NATIONAL ASSOCIATION
By:
---------------------------------------
Name:
Title:
EXHIBIT A
[Face of Note]
--------------------------------------------------------------------------------
CUSIP/CINS ____________
7-7/8% SENIOR NOTES DUE 2013
No. ______ $____________
ALLIED WASTE NORTH AMERICA, INC.
promises to pay to Cede & Co.,
or registered assigns,
the principal sum of
------------------------------------------------------------
Dollars on April 15, 2013.
Interest Payment Dates: April 15 and October 15, commencing October 15, 2003
Record Dates: April 1 and October 1
Dated:
ALLIED WASTE NORTH AMERICA, INC.
By:
---------------------------------------
Name:
Title:
This is one of the Notes referred to
in the within-mentioned Indenture:
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By:
--------------------------------
Authorized Signatory
EXHIBIT A
[Back of Note]
7-7/8% SENIOR NOTES DUE 2013
[Insert the Global Note 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. The Company shall pay
interest semi-annually in arrears on April 15 and October 15 of each year,
beginning on October 15, 2003, or if any such day is not a Business Day, on the
next succeeding Business Day (each an "Interest Payment Date"). Interest on the
Notes shall accrue from the most recent date to which interest has been paid or,
if no interest has been paid, from the date of issuance; provided that if there
is no existing Default in the payment of interest, and if this Note is
authenticated between a record date referred to on the face hereof and the next
succeeding Interest Payment Date, interest shall accrue from such next
succeeding Interest Payment Date; provided, further, that the first Interest
Payment Date shall be October 15, 2003. 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, from time to time on demand at the same rate
to the extent lawful. Interest shall be computed on the basis of a 360 day year
of twelve 30 day months.
2. METHOD OF PAYMENT. The Company shall pay interest on the Notes (except
defaulted interest) to the Persons who are registered Holders of Notes at the
close of business on the April 1 or October 1 next preceding the Interest
Payment Date, even if such Notes are canceled after such record date and on or
before such Interest Payment Date, except as provided in Section 3.7(b) of the
Indenture with respect to defaulted interest. The Notes shall be payable as to
principal, premium and 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 may be made by check
mailed to the Holders at their addresses set forth in the register of Holders,
and provided that payment by wire transfer of immediately available funds shall
be required with respect to principal of and interest 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 National Association,
the Trustee under the Indenture, shall act as Paying Agent and Registrar. The
Company may change any Paying Agent or Registrar without notice to any Holder.
The Company or any of its Subsidiaries may act in any such capacity.
4. INDENTURE. The Company issued the Notes under an Indenture dated as of
December 23, 1998, as amended by the Tenth Supplemental Indenture dated as of
April 9, 2003 (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
A-2
EXHIBIT A
provision of this Note conflicts with the express provisions of the Indenture,
the provisions of the Indenture shall govern and be controlling.
5. OPTIONAL REDEMPTION.
(a) Except as set forth in subparagraph (b) and (c) of this
Paragraph 5, the Company shall not have the option to redeem the Notes prior to
the final maturity of such Notes.
(b) At any time, or from time to time, prior to April 15, 2006, up
to 33-1/3% in aggregate principal amount of the Notes originally issued under
the Indenture shall be redeemable, at the option of the Company, from the net
proceeds of one or more Public Offerings of Capital Stock (other than Redeemable
Interests) of Allied, at a Redemption Price equal to 107.875% of the principal
amount thereof, together with accrued but unpaid 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.
(c) On or after April 15, 2008, the Company may redeem all or a part
of the Notes upon not less than 30 nor more than 60 days' notice, at the
redemption prices (expressed as percentages of principal amount) set forth below
plus accrued and unpaid interest thereon, to the applicable redemption date, if
redeemed during the twelve-month period beginning on April 15 of the years
indicated below:
Year Percentage
---- ----------
2008..................................... 103.938%
2009...................................... 102.625%
2010...................................... 101.313%
2011 and thereafter....................... 100.000%
6. MANDATORY REDEMPTION. Except as set forth in paragraph 7 below, the
Company shall not be required to make mandatory redemption payments with respect
to the Notes.
7. REPURCHASE AT OPTION OF HOLDER. The Indenture provides that, subject to
certain conditions, if (i) certain Net Available Proceeds are available to the
Company as a result of Asset Dispositions or (ii) a Change of Control occurs,
the Company shall be required to make an Offer to Purchase for all or a
specified portion of the Securities.
8. NOTICE OF REDEMPTION. Notice of redemption shall be mailed no less than
30 days but no more than 60 days before the redemption date to each Holder whose
Notes are to be redeemed at its registered address. Notes in denominations
larger than $1,000 may be redeemed in part but only in whole multiples of
$1,000, unless all of the Notes held by a Holder are to be redeemed. On and
after the redemption date interest ceases to accrue on Notes or portions thereof
called for redemption.
9. DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in registered form
without coupons in denominations of $1,000 and integral multiples of $1,000. The
transfer of Notes may be registered and Notes may be exchanged as provided in
the Indenture. The Registrar and the Trustee may require a Holder, among other
things, to furnish appropriate endorsements and transfer documents and the
Company may require a Holder to pay any taxes and fees required by law or
permitted by the Indenture. The Company need not exchange or register the
transfer of any Note or portion of a Note selected for redemption, except for
the unredeemed portion of any Note being redeemed in part. Also, the Company
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EXHIBIT A
need not exchange or register the transfer of any Notes for a period of 15 days
before a selection of Notes to be redeemed or during the period between a record
date and the corresponding Interest Payment Date.
10. PERSONS DEEMED OWNERS. The registered Holder of a Note may be treated
as its owner for all purposes.
11. AMENDMENT, SUPPLEMENT AND WAIVER. The Indenture permits, with certain
exceptions as therein provided, the amendment thereof and the modification of
the rights and obligations of the Company and the Guarantors and the rights of
the Holders of the Securities under the Indenture at any time by the Company,
the Guarantors and the Trustee with the consent of the Holders of a majority in
aggregate principal amount of the Notes at the time.
12. DEFAULTS AND REMEDIES. Events of Default include: (i) default for 30
days in the payment when due of interest on the Notes; (ii) default in payment
when due of principal of or premium, if any, on the Notes when the same becomes
due and payable at maturity, upon redemption (including in connection with an
Offer to Purchase) or otherwise, (iii) failure by the Company to comply with
subsections 12(a) or 12(b) of Section 1.01 of the Indenture or Article 7 of the
Indenture (as superseded by subsection 13 of Section 1.01 of the Tenth
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 shall become due and payable without further action or notice; provided,
however, that after such acceleration, but before a judgment or decree based on
acceleration, the Holders of a majority in aggregate principal amount of
Outstanding Notes of such issue may, under certain circumstances, rescind and
annul such acceleration if all Events of Default, other than the non-payment of
accelerated principal, have been cured or waived as provided in the Indenture.
Holders may not enforce the Indenture or the Notes except as provided in the
Indenture. Subject to certain limitations, Holders of a majority in principal
amount of the then outstanding Notes may direct the Trustee in its exercise of
any trust or power. The Trustee may withhold from Holders of the Notes notice of
any continuing Default or Event of Default (except a Default or Event of Default
relating to the payment of principal or interest) if it determines that
withholding notice is in their interest. The Holders of a majority in aggregate
principal amount of the Notes then outstanding by notice to the Trustee may on
behalf of the Holders of all of the Notes waive any existing Default or Event of
Default and its consequences under the Indenture except a continuing Default or
Event of Default in the payment of interest on, or the principal of, the Notes.
The Company is required to deliver to the Trustee annually a statement regarding
compliance with the Indenture, and the Company is required upon becoming aware
of any Default or Event of Default, to deliver to the Trustee a statement
specifying such Default or Event of Default.
13. TRUSTEE DEALINGS WITH COMPANY. The Trustee, in its individual or any
other capacity, may make loans to, accept deposits from, and perform services
for the Company or its Affiliates, and may otherwise deal with the Company or
its Affiliates, as if it were not the Trustee.
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EXHIBIT A
14. NO RECOURSE AGAINST OTHERS. A director, officer, employee,
incorporator or stockholder, of the Company, as such, shall not have any
liability for any obligations of the Company under the Notes or the Indenture or
for any claim based on, in respect of, or by reason of, such obligations or
their creation. Each Holder by accepting a Note waives and releases all such
liability. The waiver and release are part of the consideration for the issuance
of the Notes.
15. AUTHENTICATION. This Note shall not be valid until authenticated by
the manual signature of the Trustee or an authenticating agent.
16. ABBREVIATIONS. Customary abbreviations may be used in the name of a
Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts
to Minors Act).
17. CUSIP NUMBERS. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Company has caused
CUSIP numbers to be printed on the Notes and the Trustee may use CUSIP numbers
in notices of redemption as a convenience to Holders. No representation is made
as to the accuracy of such numbers either as printed on the Notes or as
contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.
The Company shall furnish to any Holder upon written request and without
charge a copy of the Indenture. Requests may be made to:
ALLIED WASTE NORTH AMERICA, INC.
00000 Xxxxx Xxxxxxxx - Xxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Attention: Treasurer
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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:
-------------------------------
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EXHIBIT A
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company pursuant
to subsection 12(a) or 12(b) of Section 1.01 of the Tenth Supplemental
Indenture, check the appropriate box below:
[ ] Subsection 12(a) [ ] Subsection 12(b)
If you want to elect to have only part of the Note purchased by the
Company pursuant to subsection 12(a) or Section 12(b) of Section 1.01 of the
Tenth 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:
-------------------------------
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EXHIBIT A
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE
The following exchanges of a part of this Global Note for an interest in
another Global Note or for a Definitive Note, or exchanges of a part of another
Global Note or Definitive Note for an interest in this Global Note, have been
made:
Principal Amount of
this Global Note Signature of
Amount of decrease Amount of increase in following such authorized officer
in Principal Amount Principal Amount of decrease (or of Trustee or Note
Date of Exchange of this Global Note this Global Note increase) Custodian
---------------- ------------------- ---------------- ------------------- ------------------
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