EXHIBIT 10.58
TWELFTH SUPPLEMENTAL INDENTURE
This TWELFTH SUPPLEMENTAL INDENTURE, dated as of January 27, 2004 (this
"TWELFTH 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 15880 North Greenway-Hayden
Loop, Suite 100, Scottsdale, Arizona 85260, 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 Resolutions (the "RESOLUTIONS"), the Company
has authorized the issuance of $400.0 million of its 5-3/4% Series A Senior
Notes Due 2011 (the "SERIES A NOTES") and $400.0 million of its 5-3/4% Series B
Senior Notes Due 2011 (the "SERIES B NOTES," and, together with the Series A
Notes, the "NOTES");
WHEREAS, the Notes will be guaranteed (the "SENIOR GUARANTEES") by
Allied and each of the other Guarantors;
WHEREAS, the Company, the Guarantors and the Initial Purchasers entered
into a Registration Rights Agreement, dated as of the date hereof (as such
agreement may be amended, modified or supplemented from time to time, the
"REGISTRATION RIGHTS AGREEMENT") which contemplates (i) the registration with
the Securities and Exchange Commission (the "SEC") of the issuance of the Series
B Notes and (ii) the consummation of an Exchange Offer (defined below) whereby
the Series A Notes may be exchanged for Series B Notes;
WHEREAS, the Notes shall be secured by a first priority lien on: (1)
all the Capital Stock of BFI's domestic Restricted Subsidiaries (the "DOMESTIC
PLEDGED STOCK"); (2) 65% of the Capital Stock of BFI's foreign Restricted
Subsidiaries (the "FOREIGN PLEDGED STOCK"); (3) all tangible and intangible
assets (other than real property) currently owned by BFI, substantially all of
its domestic Restricted Subsidiaries; and (4) certain tangible and intangible
assets of 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
a Shared Collateral Pledge Agreement, dated July 30, 1999 and amended and
restated as of April 29, 2003, among the Company, BFI and certain of its
Subsidiaries and JPMorgan Chase Bank, as collateral trustee thereunder (the
"COLLATERAL TRUSTEE") (as amended, the "PLEDGE AGREEMENT"), a Shared Collateral
Security Agreement, dated July 30, 1999 and amended and restated as of April 29,
2003, among the Company, BFI and certain of its Subsidiaries and the Collateral
Trustee (as amended, the "SECURITY AGREEMENT"), and a Collateral Trust
Agreement, dated July 30, 1999 and amended and restated as of April 29, 2003,
among the Company, BFI and certain of its Subsidiaries and the Collateral
Trustee (as amended, the "COLLATERAL TRUST AGREEMENT" and, together with the
Pledge Agreement and the Security Agreement, the "SECURITY AGREEMENTS"). Upon
issuance of the Notes, the Security Agreements will provide for the grant
by BFI and its Subsidiaries that own the Collateral to the Collateral Trustee
for the ratable benefit of the Holders of the Notes of a pledge of, or a
security interest in, as the case may be, the Collateral; and
WHEREAS, the Company desires to establish the terms of the Notes in
accordance with Section 3.1 of the Indenture and to establish the form of the
Notes in accordance with Section 2.1 of the Indenture.
ARTICLE I.
TERMS
Section 1.01 TERMS OF THE NOTES.
The following terms relating to the Notes are hereby established:
(1) The Series A Notes shall constitute a series of Securities having
the title "5-3/4% Series A Senior Notes Due 2011." The Series B Notes shall
constitute a series of Securities having the title "5-3/4% Series B Senior Notes
Due 2011." 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 Twelfth Supplemental Indenture shall be
unlimited; provided, however, that the Company complies with the provisions of
this Twelfth Supplemental Indenture, including subsection 12(d) of this Section
1.01.
(3) Maturity. The entire outstanding principal of the Notes shall be
payable on February 15, 2011 (the "STATED MATURITY DATE").
(4) Interest and Payments. The rate at which the Notes shall bear
interest shall be 5-3/4%. With respect to the Series A Notes, interest shall
accrue from the date hereof. With respect to the Series B Notes, the date from
which interest shall accrue shall be the date on which interest was most
recently paid on the Series A Notes, or if there has been no Interest Payment
Date relating to the Series A Notes prior to the issuance of the Series B Notes,
interest shall accrue from the date hereof. The Interest Payment Dates for the
Notes on which interest will be payable shall be February 15 and August 15 of
each year, beginning August 15, 2004; the Regular Record Dates for the interest
payable on the Notes on any Interest Payment Date shall be February 1 with
respect to the February 15 Interest Payment Date and August 1 with respect to
the August 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 and Special Interest, if any, from
time to time, shall be at the same rate, to the extent lawful; and the basis
upon which interest shall be calculated shall be that of a 360-day year
consisting of twelve 30-day months.
The place where the principal of (and premium, if any) and interest
(including Special Interest, if any) 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
100 Wall Street, 20th Floor New York, New York 10005, Attention: Corporate Trust
Administration. The place where notices or demands to or upon the Company in
respect of the Notes and this Twelfth Supplemental Indenture may be served shall
be the Corporate Trust Office of the Trustee. In addition, payment of interest
(including Special Interest, if any) on any Note may, at the option of the
Company, be made by check mailed to the address of the Person in whose name the
Note is registered at the close of business on the Regular Payment Date;
provided, however, that all payments of principal, and premium (including
Special Interest, if any), if any, and interest on the Notes to Holders of which
have given wire
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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).
(a) The Notes will be subject to redemption, from time to
time and at the option of the Company, in whole or in part, upon not
less than 30 nor more than 60 days' notice mailed to each Holder of
Notes to be redeemed at such Holder's address appearing in the Security
Register, in amounts of $1,000 or an integral multiple of $1,000, at a
redemption price equal to the greater of (1) 100% of their principal
amount or (2) the sum of the present values of the remaining scheduled
payments of principal and interest thereon discounted to maturity on a
semi-annual basis (assuming a 360-day year consisting of twelve 30-day
months) at the Treasury Yield plus 50 basis points, plus in each case
accrued but unpaid interest (including Special Interest, if any) to but
excluding the Redemption Date (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 Redemption Date).
(b) At any time, or from time to time, prior to February
15, 2007, up to 33-1/3% in aggregate principal amount of the Notes
originally issued under this Twelfth 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 105.750% of the
principal amount thereof, together with accrued but unpaid interest
(including Special Interest) to the Redemption Date (subject to the
right of Holders of record on the relevant Regular Record Date to
receive interest due on an Interest Payment Date that is on or prior to
the Redemption Date); provided that the notice of redemption with
respect to any such redemption is mailed within 30 days following the
closing of the corresponding Public Offering.
(6) Except as set forth under subsections 12(a) and (b) of this Section
1.01 of this Twelfth Supplemental Indenture, the Notes shall not have the
benefit of any mandatory redemption or sinking fund of the Company.
(7) The Notes shall be issuable in denominations of $1,000.
(8) Payments of the principal of (and premium, if any) and interest
(including Special Interest, if any) with respect to the Notes shall be made in
U.S. Dollars, and the Notes shall be denominated in U.S. Dollars.
(9) The Trustee shall also be the Security Registrar and Paying Agent.
(10) The entire outstanding principal amount of and any accrued
interest, if any, on the Notes shall be payable upon declaration of acceleration
of the maturity thereof pursuant to Article 5 of the Indenture.
(11) The Notes shall be payable on the Stated Maturity Date in an
amount equal to the principal amount thereof, Special Interest, if any, plus any
accrued and unpaid interest accrued to the Stated Maturity Date.
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(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 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 Twelfth 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
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Directors, is equal to or greater than what the after-tax proceeds
would have been had the Asset Disposition complied with the
aforementioned 75% limitation.
Notwithstanding the foregoing, the Company shall not be
required to comply with the provisions described in clause (iii) of the
preceding paragraph: (i) if the Net Available Proceeds ("REINVESTED
AMOUNTS") are invested or committed to be invested within one year from
the later of the date of the related Asset Disposition or the receipt
of such Net Available Proceeds in assets that will be used in the
business of the Company or any of its Restricted Subsidiaries as such
business is conducted prior to such Asset Disposition (determined by
the Board of Directors in good faith) or (ii) to the extent the Company
elects to redeem the Notes with the Net Available Proceeds pursuant to
any of the provisions of subsection (5) of this Section 1.01.
Notwithstanding the foregoing, the Company shall not be
required to comply with the requirements described in clause (ii) of
the second preceding paragraph if the Asset Disposition is an Excepted
Disposition.
Any Offer to Purchase pursuant to this subsection 12(a) shall
be effected by the sending of the written terms and conditions thereof
(the "OFFER DOCUMENT") by the Company, by first class mail, to Holders
of the Notes within 30 days after the date which is one year after the
later of the date of consummation of the Asset Disposition referred to
in this subsection 12(a) or the receipt of the Net Available Proceeds
from such Asset Disposition. The aggregate principal amount of the
Notes to be offered to be purchased pursuant to the Offer to Purchase
shall equal the Net Available Proceeds required to be made available
therefor pursuant to clause (iii)(B) of this subsection 12(a) (rounded
down to the next lowest integral multiple of $1,000). Each Holder shall
be entitled to tender all or any portion of the Notes owned by such
Holder pursuant to the Offer to Purchase, subject to the requirement
that any portion of a Note tendered must be tendered in an integral
multiple of $1,000 principal amount.
(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 Twelfth 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
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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 Twelfth Supplemental Indenture after
giving pro forma effect to such transaction, or (III) a combination
thereof, and the beneficial owners of the Voting Stock of Allied
immediately prior to such transaction (or series) do not, immediately
after such transaction (or series), beneficially own Voting Stock
representing more than 50% of the total voting power of all classes of
Voting Stock of Allied (or in the case of a transaction (or series) in
which another entity becomes a successor to, or parent of, Allied, of
the successor or parent entity), and
(ii) if the Company is not a Subsidiary of Allied: (a) any
Person, or any Persons (other than a Permitted 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
Twelfth 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
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(iii) deliver or cause to be delivered to the Trustee all Notes so
accepted together with an Officers' Certificate stating the Notes or
portions thereof accepted for payment by the Company. The Paying Agent
(or the Company if so acting) shall promptly mail or deliver to Holders
of Notes so accepted payment in an amount equal to the Purchase Price
for each $1,000 of Notes so accepted, and the Company shall promptly
execute a new Note or Notes equal in principal amount to any
unpurchased portion of the Note surrendered as requested by the Holder,
and the Guarantors shall promptly execute their Senior Guarantees to be
endorsed thereon, and thereafter the Trustee shall promptly
authenticate and mail or deliver to such Holders such new Note or
Notes. Any Note not accepted for payment shall be promptly mailed or
delivered by the Company to the Holder thereof. The Company shall
publicly announce the results of the Offer to Purchase on or as soon as
practicable after the Purchase Date.
(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 Moody's 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 Twelfth
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 Twelfth 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;
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(iii) Debt owed by the Company to any Restricted
Subsidiary or Debt owed by a Restricted Subsidiary to the
Company or to a Restricted Subsidiary; provided, however, that
in the event that either (x) the Company or the Restricted
Subsidiary to which such Debt is owed transfers or otherwise
disposes of such Debt to a Person other than the Company or
another Restricted Subsidiary, or (y) such Restricted
Subsidiary ceases to be a Restricted Subsidiary, the
provisions of this clause (iii) shall no longer be applicable
to such Debt and such Debt shall be deemed to have been
incurred at the time of such transfer or other disposition or
at the time such Restricted Subsidiary ceases to be a
Restricted Subsidiary;
(iv) Debt outstanding on the date of this Twelfth
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 Twelfth 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 Twelfth 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
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rights to acquire the Capital Stock of the Company (other than
Redeemable Interests), (y) dividends or distributions by a Restricted
Subsidiary to the Company or another Wholly-Owned Restricted
Subsidiary, and (z) the payment of pro rata dividends by a Restricted
Subsidiary to Holders of both minority and majority interests in such
Restricted Subsidiary); (ii) purchase, redeem or otherwise acquire or
retire for value: (a) any Capital Stock of the Company or any Capital
Stock of or other ownership interests in any Subsidiary or any
Affiliate or Related Person of the Company, or (b) any options,
warrants or rights to purchase or acquire shares of Capital Stock of
the Company or any Capital Stock of or other ownership interests in any
Subsidiary or any Affiliate or Related Person of the Company
(excluding, in each case of (a) and (b), the purchase, redemption,
acquisition or retirement by any Restricted Subsidiary of any of its
Capital Stock, other ownership interests or options, warrants or rights
to purchase such Capital Stock or other ownership interests, in each
case, owned by the Company or a Wholly-Owned Restricted Subsidiary);
(iii) make any Investment that is not a Permitted Investment; or (iv)
redeem, defease, repurchase, retire or otherwise acquire or retire for
value prior to any scheduled maturity, repayment or sinking fund
payment, Debt of the Company that is subordinate in right of payment to
the Notes (each of the transactions described in clauses (i) through
(iv) being a "RESTRICTED PAYMENT"), if:
(1) an Event of Default, or an event that with
the lapse of time or the giving of notice, or both, would
constitute an Event of Default, shall have occurred and be
continuing; or
(2) the Company would, at the time of such
Restricted Payment and after giving pro forma effect thereto
as if such Restricted Payment had been made at the beginning
of the most recently ended four full fiscal quarter period for
which internal financial statements are available immediately
preceding the date of such Restricted Payment, not have been
permitted to Incur at least $1.00 of additional Debt pursuant
to the Consolidated EBITDA Coverage Ratio test set forth in
the first paragraph under subsection 12(d) of this Section
1.01 of this Twelfth 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 Twelfth 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
9
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;
(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 Twelfth
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 Twelfth
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 Twelfth
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
10
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 Twelfth Supplemental
Indenture.
(f) Limitations Concerning Distributions by Subsidiaries,
Etc.
The Company shall not, and shall not permit any Restricted
Subsidiary to, suffer to exist any consensual encumbrance or
restriction on the ability of such Restricted Subsidiary: (i) to pay,
directly or indirectly, dividends or make any other distributions in
respect 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 Twelfth
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 Twelfth 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
11
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 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 Twelfth 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 Twelfth
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
12
Date file with the Trustee copies of the annual reports, quarterly
reports and other documents which the Company (or Allied for so long as
the Company is a Wholly-Owned Subsidiary of Allied) filed with the
Commission pursuant to such Section 13(a) or 15(d) or any successor
provisions thereto or would have been required to file with the
Commission pursuant to such Section 13(a) or 15(d) or any successor
provisions thereto if the Company (or Allied for so long as the Company
is a Wholly-Owned Subsidiary of Allied) were required to comply with
such Sections, and (b) if filing such documents by the Company (or
Allied for so long as the Company is a Wholly-Owned Subsidiary of
Allied) with the Commission is not permitted under the Exchange Act,
promptly upon written request supply copies of such documents to any
prospective Holder.
(j) Unrestricted Subsidiaries.
The Company at any time may designate any Person that is a
Subsidiary, or after the date of this Twelfth 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 Twelfth
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
13
Unrestricted Subsidiary as an Unrestricted Subsidiary pursuant
to the preceding sentence will be deemed to result in a breach
of this covenant in any circumstance in which the Company
would not be permitted to change the status of such
Unrestricted Subsidiary to the status of a Restricted
Subsidiary pursuant to the preceding paragraph.
"UNPERMITTED DEBT" means any Debt of a Subsidiary of the
Company if: (x) a default thereunder (or under any instrument
or agreement pursuant to or by which such Debt is issued,
secured or evidenced) or any right that the Holders thereof
may have to take enforcement action against such Subsidiary or
its property or other assets, would permit (whether or not
after the giving of notice or the lapse of time or both) the
Holders of any Debt of the Company or any other Restricted
Subsidiary to declare the same due and payable prior to the
date on which it otherwise would have become due and payable
or otherwise to take any enforcement action against the
Company or any such other Restricted Subsidiary, or (y) such
Debt is secured by a Lien on any property or other assets of
the Company and any of its other Restricted Subsidiaries.
Each Person that is or becomes a Subsidiary of the Company
shall be deemed to be a Restricted Subsidiary at all times
when it is a Subsidiary of the Company that is not an
Unrestricted Subsidiary. Each Person that is or becomes a
Wholly-Owned Subsidiary of the Company shall be deemed to be a
Wholly-Owned Restricted Subsidiary at all times when it is a
Wholly-Owned Subsidiary of the Company that is not an
Unrestricted Subsidiary.
(13) Mergers, Consolidations and Certain Sales of Assets.
Section 7.1 of the Indenture is hereby superseded by the following in respect of
the Notes:
"The Company (i) shall not consolidate with or merge into any Person;
(ii) shall not permit any Person other than a Restricted Subsidiary to
consolidate with or merge into the Company; and (iii) may not, directly or
indirectly, in one or a series of transactions, transfer, convey, sell, lease or
otherwise dispose of all or substantially all of the properties and assets of
the Company and its Subsidiaries on a consolidated basis; unless, in each case
of (i), (ii) and (iii) above:
(1) immediately before and after giving effect to such
transaction (or series) and treating any Debt Incurred by the Company
or a Subsidiary of the Company as a result of such transaction (or
series) as having been incurred by the Company of such Subsidiary at
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
Twelfth Supplemental Indenture;
14
(3) if such transaction (or series) occurs prior to the
occurrence of a Rating Event Date, either (x) the Company or the
successor entity would, at the time of such transaction (or series) and
after giving pro forma effect thereto as if such transaction (or
series) had occurred at the beginning of the most recently ended four
full fiscal quarter period for which internal financial statements are
available immediately preceding the date of such transaction (or
series), have been permitted to Incur at least $1.00 of additional Debt
pursuant to the Consolidated EBITDA Coverage Ratio test set forth in
the first paragraph under subsection 12(d) of this Section 1.01, or (y)
the Consolidated EBITDA Coverage Ratio of the Company or the successor
entity for the most recently ended four full fiscal quarter period for
which internal financial statements are available immediately preceding
the date of such transaction (or series), calculated on a pro forma
basis as if such transaction (or series) had occurred at the beginning
of such four full fiscal quarter period, would be no less than such
Consolidated EBITDA Coverage Ratio, calculated without giving effect to
such transaction or series or any other transactions (or series) that
is subject to the provisions of the Indenture described in this
paragraph and that occurred after the date that is twelve months before
the date of such transaction (or series);
(4) if, as a result of any such transaction, property or
assets of the Company or any Restricted Subsidiary of the Company would
become subject to a Lien prohibited by subsection 12(g) of this Section
1.01, the Company or the successor entity shall have secured the Notes
as required by such covenant; and
(5) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel as specified in the Indenture.
The Company shall deliver to the Trustee prior to the proposed
consolidation, merger, sale, transfer, lease or other disposition an
Officers' Certificate to the foregoing effect and an Opinion of Counsel
stating that the proposed consolidation, merger, sale, transfer, lease
or other disposition and such supplemental indenture comply with the
Indenture and that all conditions precedent to the consummation of such
transaction under this Section 7.1 have been met."
(14) Security.
The Security Agreements shall secure the due and punctual payment of
the principal of and interest and Special Interest, if any, on the Notes when
and as the same shall be due and payable, whether on an interest payment date,
at maturity, by acceleration, repurchase, redemption or otherwise, and interest
on the overdue principal of and interest and Special Interest (to the extent
permitted by law), if any, on the Notes and performance of all other obligations
of the Company to the Holders of Notes or the Trustee under this Twelfth
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 Twelfth 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
15
cause the Security Agreements to create and maintain, as security for the
obligations of the Company under this Twelfth 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).
(b) Release of Collateral.
(i) Subject to this subsection 14(b) of this
Section 1.01 of this Twelfth 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 Twelfth
Supplemental Indenture or the Security Agreements.
(ii) The release of any Collateral from the terms
of this Twelfth Supplemental Indenture and the Security Agreements
shall not be deemed to impair the security under this Twelfth
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 Twelfth 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
16
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 Twelfth 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.
(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 Twelfth Supplemental Indenture.
(e) Termination of Security Interest. Upon (1) the full and
final payment and performance of all obligations of the Company under this
Twelfth 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 Twelfth 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 Twelfth 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 Twelfth 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 Twelfth Supplemental Indenture."
17
(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 Twelfth
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 Twelfth Supplemental
Indenture as of the date hereof;
(17) Section 15.4 of the Indenture is hereby supplemented to
include the following as clause (d) of such Section in respect of the Notes:
"(d) In the event that any Subsidiary Guarantor ceases to be a
guarantor under, or to pledge any of its assets to secure obligations under, the
Credit Facility, such Guarantor shall be released from all of its obligations
under its Senior Guarantee endorsed on the Securities and under this Article
15."
(18) The Notes shall not be issuable as Bearer Securities.
(19) Interest on any Note shall be payable only to the Person in
whose name that Note (or one or more predecessor Notes thereof) is registered at
the close of business on the Regular Record Date for such interest.
(20) Article 4 of the Indenture shall be applicable to the Notes.
(21) The Notes shall not be issuable in definitive form except
under the circumstances described in Section 2.1 of the Indenture.
(22) For all purposes, the Series A Notes and the Series B Notes
shall be treated as one series of Securities under this Twelfth Supplemental
Indenture.
Section 1.02 FORMS.
(1) Attached hereto as Exhibit A is a true and correct copy of the Form
of Note representing the Company's Notes.
(2) Attached hereto as Exhibit B is a true and correct copy of a
specimen certificate of transfer.
(3) Attached hereto as Exhibit C is a true and correct copy of a
specimen certificate of exchange.
(4) Attached hereto as Exhibit D is a true and correct copy of a
specimen certificate from acquiring institutional accredited investor.
(5) The form of Senior Guarantee shall be as set forth in Section 2.3
of the Indenture.
18
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 Twelfth Supplemental Indenture and the
Company, the Guarantors and the Trustee, by their execution and delivery of this
Twelfth 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 Twelfth Supplemental Indenture, the
provisions of this Twelfth Supplemental Indenture shall govern and be
controlling.
(b) Global Notes. Notes issued in global form shall be
substantially in the form of Exhibit A attached hereto (including the Global
Note Legend thereon and the "Schedule of Exchanges of Interests in the Global
Note" attached thereto). Notes issued in definitive form shall be substantially
in the form of Exhibit A attached hereto (but without the Global Note Legend
thereon and without the "Schedule of Exchanges of Interests in the Global Note"
attached thereto). Each Global Note shall represent such of the outstanding
Notes as shall be specified therein and each shall provide that it shall
represent the aggregate principal amount of outstanding Notes from time to time
endorsed thereon and that the aggregate principal amount of outstanding Notes
represented thereby may from time to time be reduced or increased, as
appropriate, to reflect exchanges and redemptions. Any endorsement of a Global
Note to reflect the amount of any increase or decrease in the aggregate
principal amount of outstanding Notes represented thereby shall be made by the
Trustee or the Custodian, at the direction of the Trustee, in accordance with
instructions given by the Holder thereof as required by Section 2.02 of this
Twelfth 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
19
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
Twelfth 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 Twelfth Supplemental Indenture and the Applicable Procedures. Beneficial
interests in the Restricted Global Notes shall be subject to restrictions on
transfer comparable to those set forth in this Twelfth Supplemental Indenture to
the extent required by the Securities Act. Transfers of beneficial interests in
the Global Notes also shall require compliance with either subparagraph (i) or
(ii) below, as applicable, as well as one or more of the other following
subparagraphs, as applicable:
(i) Transfer of Beneficial Interests in the Same Global
Note. Beneficial interests in any Restricted Global Note may be
transferred to Persons who take delivery thereof in the form of a
beneficial interest in the same Restricted Global Note in accordance
with the transfer restrictions set forth in the Private Placement
Legend; provided, however, that prior to the expiration of the
Restricted Period, transfers of beneficial interests in the Regulation
S Global Note may not be made to a U.S. Person or for the account or
benefit of a U.S. Person (other than an Initial Purchaser.) Beneficial
interests in any Unrestricted Global Note may be transferred to Persons
who take delivery thereof in the form of a beneficial interest in an
Unrestricted Global Note. No written orders or instructions shall be
required to be delivered to the Registrar to effect the transfers
described in this Section 2.02(b)(i).
(ii) All Other Transfers and Exchanges of Beneficial
Interests in Global Notes. In connection with all transfers and
exchanges of beneficial interests that are not subject to Section
2.02(b)(i) above, the transferor of such beneficial interest must
deliver to the Registrar either (A)(1) a written order from a
Participant or an Indirect Participant given to the Depositary in
accordance with the Applicable Procedures directing the Depositary to
credit or cause to be credited a beneficial interest in another Global
Note in an amount equal to the beneficial interest to be transferred or
exchanged and (2) instructions given in accordance with the Applicable
Procedures containing information regarding the Participant account to
be credited with such increase or (B)(1) a written order from a
Participant or an Indirect Participant given to the Depositary in
accordance with the Applicable Procedures directing the Depositary to
cause to be issued a Definitive Note in an amount equal to the
beneficial interest to be transferred or exchanged and (2) instructions
given by the Depositary to the Registrar containing information
regarding the Person in whose name such Definitive Note shall be
registered to effect the transfer or exchange referred to in (1) above.
Upon consummation of an Exchange Offer by the Company in accordance
with Section 2.02(f) of this Twelfth Supplemental Indenture, the
requirements of this Section 2.02(b)(ii) shall be deemed to have been
satisfied upon receipt by the Registrar of the instructions contained
in the Letter of Transmittal delivered by the Holder of such beneficial
interests in the Restricted Global Notes. Upon satisfaction of all of
the requirements for transfer or exchange of beneficial interests in
Global Notes contained in this Twelfth Supplemental Indenture and the
Notes or otherwise applicable
20
under the Securities Act, the Trustee shall adjust the principal amount
of the relevant Global Note(s) pursuant to Section 2.02(h) of this
Twelfth Supplemental Indenture.
(iii) Transfer of Beneficial Interests to Another
Restricted Global Note. A beneficial interest in any Restricted Global
Note may be transferred to a Person who takes delivery thereof in the
form of a beneficial interest in another Restricted Global Note if the
transfer complies with the requirements of Section 2.02(b)(ii) above
and the Registrar receives the following:
(A) if the transferee will take delivery in the
form of a beneficial interest in the 144A Global Note, then
the transferor must deliver a certificate in the form of
Exhibit B hereto, including the certifications in item (1)
thereof;
(B) if the transferee will take delivery in the
form of a beneficial interest in the Regulation S Global Note,
then the transferor must deliver a certificate in the form of
Exhibit B hereto, including the certifications in item (2)
thereof; and
(C) if the transferee will take delivery in the
form of a beneficial interest in the IAI Global Note, then the
transferor must deliver a certificate in the form of Exhibit B
hereto, including the certifications and certificates and
Opinion of Counsel required by item (3) thereof, if
applicable.
(iv) Transfer and Exchange of Beneficial Interests in a
Restricted Global Note for Beneficial Interests in the Unrestricted
Global Note. A beneficial interest in any Restricted Global Note may be
exchanged by any Holder thereof for a beneficial interest in an
Unrestricted Global Note or transferred to a Person who takes delivery
thereof in the form of a beneficial interest in an Unrestricted Global
Note if the exchange or transfer complies with the requirements of
Section 2.02(b)(ii) above and:
(A) such exchange or transfer is effected
pursuant to the Exchange Offer in accordance with the
applicable Registration Rights Agreement and the Holder of the
beneficial interest to be transferred, in the case of an
exchange, or the transferee, in the case of a transfer,
certifies in the applicable Letter of Transmittal that it is
not (1) a broker-dealer, (2) a Person participating in the
distribution of the Exchange Notes or (3) a Person who is an
affiliate (as defined in Rule 144) of the Company;
(B) such transfer is effected pursuant to a
Shelf Registration Statement in accordance with the applicable
Registration Rights Agreement;
(C) such transfer is effected by a Broker-Dealer
pursuant to an Exchange Offer Registration Statement in
accordance with the applicable Registration Rights Agreement;
or
(D) the Registrar receives the following:
(1) if the Holder of such beneficial
interest in a Restricted Global Note proposes to
exchange such beneficial interest for a beneficial
interest in an Unrestricted Global Note, a
certificate from such Holder in the form of Exhibit C
hereto, including the certifications in item (1)(a)
thereof; or
21
(2) if the Holder of such beneficial
interest in a Restricted Global Note proposes to
transfer such beneficial interest to a Person who
shall take delivery thereof in the form of a
beneficial interest in an Unrestricted Global Note, a
certificate from such Holder in the form of Exhibit B
hereto, including the certifications in item (4)
thereof;
and, in each such case set forth in this subparagraph (D), if
the Registrar so requests or if the Applicable Procedures so
require, an Opinion of Counsel in form reasonably acceptable
to the Registrar to the effect that such exchange or transfer
is in compliance with the Securities Act and that the
restrictions on transfer contained in this Twelfth
Supplemental Indenture and in the Private Placement Legend are
no longer required in order to maintain compliance with the
Securities Act.
If any such transfer is effected pursuant to subparagraph (B) or (D)
above at a time when an Unrestricted Global Note has not yet been issued, the
Company shall issue and, upon receipt of an Authentication Order in accordance
with Section 3.3 of the Indenture, the Trustee shall authenticate one or more
Unrestricted Global Notes in an aggregate principal amount equal to the
aggregate principal amount of beneficial interests transferred pursuant to
subparagraph (B) or (D) above.
Beneficial interests in an Unrestricted Global Note cannot be exchanged
for, or transferred to Persons who take delivery thereof in the form of, a
beneficial interest in a Restricted Global Note.
(c) Transfer or Exchange of Beneficial Interests for Definitive
Notes.
(i) Beneficial Interests in Restricted Global Notes to
Restricted Definitive Notes. If any Holder of a beneficial interest in
a Restricted Global Note proposes to exchange such beneficial interest
for a Restricted Definitive Note or to transfer such beneficial
interest to a Person who takes delivery thereof in the form of a
Restricted Definitive Note, then, upon receipt by the Registrar of the
following documentation:
(A) if the Holder of such beneficial interest in
a Restricted Global Note proposes to exchange such beneficial
interest for a Restricted Definitive Note, a certificate from
such Holder in the form of Exhibit C hereto, including the
certifications in item (2)(a) thereof;
(B) if such beneficial interest is being
transferred to a QIB in accordance with Rule 144A under the
Securities Act, a certificate to the effect set forth in
Exhibit B hereto, including the certifications in item (1)
thereof;
(C) if such beneficial interest is being
transferred to a Non-U.S. Person in an offshore transaction in
accordance with Rule 903 or Rule 904 under the Securities Act,
a certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (2) thereof;
(D) if such beneficial interest is being
transferred pursuant to an exemption from the registration
requirements of the Securities Act in accordance with Rule 144
under the Securities Act, a certificate to the effect set
forth in Exhibit B hereto, including the certifications in
item (3)(a) thereof;
(E) if such beneficial interest is being
transferred to an Institutional Accredited Investor in
reliance on an exemption from the registration requirements
22
of the Securities Act other than those listed in subparagraphs
(B) through (D) above, a certificate to the effect set forth
in Exhibit B hereto, including the certifications,
certificates and Opinion of Counsel required by item (3)
thereof, if applicable;
(F) if such beneficial interest is being
transferred to the Company or any of its Subsidiaries, a
certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (3)(b) thereof; or
(G) if such beneficial interest is being
transferred pursuant to an effective registration statement
under the Securities Act, a certificate to the effect set
forth in Exhibit B hereto, including the certifications in
item (3)(c) thereof,
the Trustee shall cause the aggregate principal amount of the
applicable Global Note to be reduced accordingly pursuant to Section
2.02(h) of this Twelfth Supplemental Indenture, and the Company shall
execute and the Trustee shall authenticate and deliver to the Person
designated in the instructions a Restricted Definitive Note in the
appropriate principal amount. Any Restricted Definitive Note issued in
exchange for a beneficial interest in a Restricted Global Note pursuant
to this Section 2.02(c) shall be registered in such name or names and
in such authorized denomination or denominations as the Holder of such
beneficial interest shall instruct the Registrar through instructions
from the Depositary and the Participant or Indirect Participant. The
Trustee shall deliver such Restricted Definitive Notes to the Persons
in whose names such Notes are so registered. Any Restricted Definitive
Note issued in exchange for a beneficial interest in a Restricted
Global Note pursuant to this Section 2.02(c)(i) shall bear the Private
Placement Legend and shall be subject to all restrictions on transfer
contained therein.
(ii) Beneficial Interests in Restricted Global Notes to
Unrestricted Definitive Notes. A Holder of a beneficial interest in a
Restricted Global Note may exchange such beneficial interest for an
Unrestricted Definitive Note or may transfer such beneficial interest
to a Person who takes delivery thereof in the form of an Unrestricted
Definitive Note only if:
(A) such exchange or transfer is effected
pursuant to an Exchange Offer in accordance with the
applicable Registration Rights Agreement and the Holder of
such beneficial interest, in the case of an exchange, or the
transferee, in the case of a transfer, certifies in the
applicable Letter of Transmittal that it is not (1) a
broker-dealer, (2) a Person participating in the distribution
of the Exchange Notes or (3) a Person who is an affiliate (as
defined in Rule 144) of the Company;
(B) such transfer is effected pursuant to a
Shelf Registration Statement in accordance with the applicable
Registration Rights Agreement;
(C) such transfer is effected by a Broker-Dealer
pursuant to the Exchange Offer Registration Statement in
accordance with the Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the Holder of such beneficial
interest in a Restricted Global Note proposes to
exchange such beneficial interest for a Definitive
Note that does not bear the Private Placement Legend,
a certificate from
23
such Holder in the form of Exhibit C hereto,
including the certifications in item (1)(b) thereof;
or
(2) if the Holder of such beneficial
interest in a Restricted Global Note proposes to
transfer such beneficial interest to a Person who
shall take delivery thereof in the form of a
Definitive Note that does not bear the Private
Placement Legend, a certificate from such Holder in
the form of Exhibit B hereto, including the
certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if
the Registrar so requests or if the Applicable Procedures so
require, an Opinion of Counsel in form reasonably acceptable
to the Registrar to the effect that such exchange or transfer
is in compliance with the Securities Act and that the
restrictions on transfer contained in this Twelfth
Supplemental Indenture herein and in the Private Placement
Legend are no longer required in order to maintain compliance
with the Securities Act.
If any such transfer is effected pursuant to subparagraph (B) or (D)
above at a time when an Unrestricted Global Note has not yet been issued, the
Company shall issue and, upon receipt of an Authentication Order in accordance
with Section 3.3 of the Indenture, the Trustee shall authenticate one or more
Unrestricted Global Notes in an aggregate principal amount equal to the
aggregate principal amount of beneficial interests transferred pursuant to
subparagraph (B) or (D) above.
(iii) Beneficial Interests in Unrestricted Global Notes to
Unrestricted Definitive Notes. If any Holder of a beneficial interest
in an Unrestricted Global Note proposes to exchange such beneficial
interest for a Definitive Note or to transfer such beneficial interest
to a Person who takes delivery thereof in the form of a Definitive
Note, then, upon satisfaction of the conditions set forth in Section
2.02(b)(ii) of this Twelfth Supplemental Indenture, the Trustee shall
cause the aggregate principal amount of the applicable Global Note to
be reduced accordingly pursuant to Section 2.02(h) of this Twelfth
Supplemental Indenture, and the Company shall execute and the Trustee
shall authenticate and deliver to the Person designated in the
instructions a Definitive Note in the appropriate principal amount. Any
Definitive Note issued in exchange for a beneficial interest pursuant
to this Section 2.02(c)(iii) shall be registered in such name or names
and in such authorized denomination or denominations as the Holder of
such beneficial interest shall instruct the Registrar through
instructions from the Depositary and the Participant or Indirect
Participant. The Trustee shall deliver such Definitive Notes to the
Persons in whose names such Notes are so registered. Any Definitive
Note issued in exchange for a beneficial interest pursuant to this
Section 2.02(c)(iii) shall not bear the Private Placement Legend.
(d) Transfer and Exchange of Definitive Notes for Beneficial
Interests.
(i) Restricted Definitive Notes to Beneficial Interests
in Restricted Global Notes. If any Holder of a Restricted Definitive
Note proposes to exchange such Note for a beneficial interest in a
Restricted Global Note or to transfer such Restricted Definitive Notes
to a Person who takes delivery thereof in the form of a beneficial
interest in a Restricted Global Note, then, upon receipt by the
Registrar of the following documentation:
(A) if the Holder of such Restricted Definitive
Note proposes to exchange such Note for a beneficial interest
in a Restricted Global Note, a certificate
24
from such Holder in the form of Exhibit C hereto, including
the certifications in item (2)(b) thereof;
(B) if such Restricted Definitive Note is being
transferred to a QIB in accordance with Rule 144A under the
Securities Act, a certificate to the effect set forth in
Exhibit B hereto, including the certifications in item (1)
thereof;
(C) if such Restricted Definitive Note is being
transferred to a Non-U.S. Person in an offshore transaction in
accordance with Rule 903 or Rule 904 under the Securities Act,
a certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (2) thereof;
(D) if such Restricted Definitive Note is being
transferred pursuant to an exemption from the registration
requirements of the Securities Act in accordance with Rule 144
under the Securities Act, a certificate to the effect set
forth in Exhibit B hereto, including the certifications in
item (3)(a) thereof;
(E) if such Restricted Definitive Note is being
transferred to an Institutional Accredited Investor in
reliance on an exemption from the registration requirements of
the Securities Act other than those listed in subparagraphs
(B) through (D) above, a certificate to the effect set forth
in Exhibit B hereto, including the certifications,
certificates and Opinion of Counsel required by item (3)
thereof, if applicable;
(F) if such Restricted Definitive Note is being
transferred to the Company or any of its Subsidiaries, a
certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (3)(b) thereof; or
(G) if such Restricted Definitive Note is being
transferred pursuant to an effective registration statement
under the Securities Act, a certificate to the effect set
forth in Exhibit B hereto, including the certifications in
item (3)(c) thereof,
the Trustee shall cancel the Restricted Definitive Note, increase or
cause to be increased the aggregate principal amount of, in the case of
clause (A) above, the appropriate Restricted Global Note, in the case
of clause (B) above, the 144A Global Note, in the case of clause (C)
above, the Regulation S Global Note, and in all other cases, the IAI
Global Note.
(ii) Restricted Definitive Notes to Beneficial Interests
in Unrestricted Global Notes. A Holder of a Restricted Definitive Note
may exchange such Note for a beneficial interest in an Unrestricted
Global Note or transfer such Restricted Definitive Note to a Person who
takes delivery thereof in the form of a beneficial interest in an
Unrestricted Global Note only if:
(A) such exchange or transfer is effected
pursuant to the Exchange Offer in accordance with the
applicable Registration Rights Agreement and the Holder, in
the case of an exchange, or the transferee, in the case of a
transfer, certifies in the applicable Letter of Transmittal
that it is not (1) a broker-dealer, (2) a Person participating
in the distribution of the Exchange Notes or (3) a Person who
is an affiliate (as defined in Rule 144) of the Company;
25
(B) such transfer is effected pursuant to a
Shelf Registration Statement in accordance with the applicable
Registration Rights Agreement;
(C) such transfer is effected by a Broker-Dealer
pursuant to an Exchange Offer Registration Statement in
accordance with the applicable Registration Rights Agreement;
or
(D) the Registrar receives the following:
(1) if the Holder of such Definitive
Notes proposes to exchange such Notes for a
beneficial interest in the Unrestricted Global Note,
a certificate from such Holder in the form of Exhibit
C hereto, including the certifications in item (1)(c)
thereof; or
(2) if the Holder of such Definitive
Notes proposes to transfer such Notes to a Person who
shall take delivery thereof in the form of a
beneficial interest in the Unrestricted Global Note,
a certificate from such Holder in the form of Exhibit
B hereto, including the certifications in item (4)
thereof;
and, in each such case set forth in this subparagraph (D), if
the Registrar so requests or if the Applicable Procedures so
require, an Opinion of Counsel in form reasonably acceptable
to the Registrar to the effect that such exchange or transfer
is in compliance with the Securities Act and that the
restrictions on transfer contained in this Twelfth
Supplemental Indenture and in the Private Placement Legend are
no longer required in order to maintain compliance with the
Securities Act.
Upon satisfaction of the conditions of any of the
subparagraphs in this Section 2.02(d)(ii), the Trustee shall cancel the
Definitive Notes and increase or cause to be increased the aggregate
principal amount of the Unrestricted Global Note.
(iii) Unrestricted Definitive Notes to Beneficial Interests
in Unrestricted Global Notes. A Holder of an Unrestricted Definitive
Note may exchange such Note for a beneficial interest in an
Unrestricted Global Note or transfer such Unrestricted Definitive Notes
to a Person who takes delivery thereof in the form of a beneficial
interest in an Unrestricted Global Note at any time. Upon receipt of a
request for such an exchange or transfer, the Trustee shall cancel the
applicable Unrestricted Definitive Note and increase or cause to be
increased the aggregate principal amount of one of the Unrestricted
Global Notes.
If any such exchange or transfer from an Unrestricted
Definitive Note or a Restricted Definitive Note, as the case may be, to
a beneficial interest is effected pursuant to subparagraphs (ii)(B),
(ii)(D) or (iii) above at a time when an Unrestricted Global Note has
not yet been issued, the Company shall issue and, upon receipt of an
Authentication Order in accordance with Section 3.3 of the Indenture,
the Trustee shall authenticate one or more Unrestricted Global Notes in
an aggregate principal amount equal to the principal amount of
Unrestricted Definitive Notes or Restricted Definitive Notes, as the
case may be, so transferred.
(e) Transfer and Exchange of Definitive Notes for Definitive
Notes. Upon request by a Holder of Definitive Notes and such Holder's compliance
with the provisions of this Section 2.02(e), the
26
Registrar shall register the transfer or exchange of Definitive Notes. Prior to
such registration of transfer or exchange, the requesting Holder shall present
or surrender to the Registrar the Definitive Notes duly endorsed or accompanied
by a written instruction of transfer in form satisfactory to the Registrar duly
executed by such Holder or by its attorney, duly authorized in writing. In
addition, the requesting Holder shall provide any additional certifications,
documents and information, as applicable, required pursuant to the following
provisions of this Section 2.02(e).
(i) Restricted Definitive Notes to Restricted Definitive
Notes. Any Restricted Definitive Note may be transferred to and
registered in the name of Persons who take delivery thereof in the form
of a Restricted Definitive Note if the Registrar receives the
following:
(A) if the transfer will be made pursuant to
Rule 144A under the Securities Act, then the transferor must
deliver a certificate in the form of Exhibit B hereto,
including the certifications in item (1) thereof;
(B) if the transfer will be made pursuant to
Rule 903 or Rule 904, then the transferor must deliver a
certificate in the form of Exhibit B hereto, including the
certifications in item (2) thereof; and
(C) if the transfer will be made pursuant to any
other exemption from the registration requirements of the
Securities Act, then the transferor must deliver a certificate
in the form of Exhibit B hereto, including the certifications,
certificates and Opinion of Counsel required by item (3)
thereof, if applicable.
(ii) Restricted Definitive Notes to Unrestricted
Definitive Notes. Any Restricted Definitive Note may be exchanged by
the Holder thereof for an Unrestricted Definitive Note or transferred
to a Person or Persons who take delivery thereof in the form of an
Unrestricted Definitive Note if:
(A) such exchange or transfer is effected
pursuant to an Exchange Offer in accordance with the
applicable Registration Rights Agreement and the Holder, in
the case of an exchange, or the transferee, in the case of a
transfer, certifies in the applicable Letter of Transmittal
that it is not (1) a broker-dealer, (2) a Person participating
in the distribution of the Exchange Notes or (3) a Person who
is an affiliate (as defined in Rule 144) of the Company;
(B) any such transfer is effected pursuant to a
Shelf Registration Statement in accordance with the applicable
Registration Rights Agreement;
(C) any such transfer is effected by a
Broker-Dealer pursuant to an Exchange Offer Registration
Statement in accordance with the applicable Registration
Rights Agreement; or
(D) the Registrar receives the following:
(1) if the Holder of such Restricted
Definitive Notes proposes to exchange such Notes for
an Unrestricted Definitive Note, a certificate from
such Holder in the form of Exhibit C hereto,
including the certifications in item (1)(d) thereof;
or
27
(2) if the Holder of such Restricted
Definitive Notes proposes to transfer such Notes to a
Person who shall take delivery thereof in the form of
an Unrestricted Definitive Note, a certificate from
such Holder in the form of Exhibit B hereto,
including the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if
the Registrar so requests, an Opinion of Counsel in form
reasonably acceptable to the Company to the effect that such
exchange or transfer is in compliance with the Securities Act
and that the restrictions on transfer contained in this
Twelfth Supplemental Indenture and in the Private Placement
Legend are no longer required in order to maintain compliance
with the Securities Act.
(iii) Unrestricted Definitive Notes to Unrestricted
Definitive Notes. A Holder of Unrestricted Definitive Notes may
transfer such Notes to a Person who takes delivery thereof in the form
of an Unrestricted Definitive Note. Upon receipt of a request to
register such a transfer, the Registrar shall register the Unrestricted
Definitive Notes pursuant to the instructions from the Holder thereof.
(f) Exchange Offer. Upon the occurrence of an Exchange Offer in
accordance with the applicable Registration Rights Agreement, the Company shall
issue and, upon receipt of an Authentication Order in accordance with Section
3.3, the Trustee shall authenticate (i) one or more Unrestricted Global Notes in
an aggregate principal amount equal to the principal amount of the beneficial
interests in the Restricted Global Notes tendered for acceptance by Persons that
certify in the applicable Letters of Transmittal that (x) they are not
broker-dealers, (y) they are not participating in a distribution of the Exchange
Notes and (z) they are not affiliates (as defined in Rule 144) of the Company,
and accepted for exchange in an Exchange Offer and (ii) Definitive Notes in an
aggregate principal amount equal to the principal amount of the Restricted
Definitive Notes accepted for exchange in an Exchange Offer. Concurrently with
the issuance of such Notes, the Trustee shall cause the aggregate principal
amount of the applicable Restricted Global Notes to be reduced accordingly, and
the Company shall execute and the Trustee shall authenticate and deliver to the
Persons designated by the Holders of Restricted Definitive Notes so accepted
Unrestricted Definitive Notes in the appropriate principal amount.
(g) Legends. The following legends shall appear on the face of all
Global Notes and Definitive Notes issued under this Twelfth Supplemental
Indenture unless specifically stated otherwise in the applicable provisions of
this Twelfth Supplemental Indenture.
(i) Private Placement Legend.
(A) Except as permitted by subparagraph (B)
below, each Global Note and each Definitive Note (and all
Notes issued in exchange therefor or substitution thereof)
shall bear the legend in substantially the following form:
"THIS NOTE (OR ITS PREDECESSORS) WAS ORIGINALLY
ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER THE
UNITED STATES SECURITIES ACT OF 1933 (THE "SECURITIES ACT"),
AND THIS NOTE MAY NOT BE OFFERED, SOLD OR OTHERWISE
TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN
APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THIS NOTE IS
HEREBY NOTIFIED THAT THE SELLER OF THIS NOTE MAY BE RELYING ON
THE
28
EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES
ACT PROVIDED BY RULE 144A THEREUNDER.
THE HOLDER OF THIS NOTE AGREES FOR THE BENEFIT OF THE
COMPANY THAT (A) THIS NOTE MAY BE OFFERED, RESOLD, PLEDGED OR
OTHERWISE TRANSFERRED, ONLY (I) IN THE UNITED STATES TO A
PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF
RULE 144A, (II) OUTSIDE THE UNITED STATES IN AN OFFSHORE
TRANSACTION IN ACCORDANCE WITH RULE 904 UNDER THE SECURITIES
ACT, (III) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER
THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF
AVAILABLE), (IV) TO AN INSTITUTIONAL ACCREDITED INVESTOR IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT OR (V) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT, IN EACH OF CASES (I)
THROUGH (V) IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS
OF ANY STATE OF THE UNITED STATES, AND (B) THE HOLDER WILL,
AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY
PURCHASER OF THIS NOTE FROM IT OF THE RESALE RESTRICTIONS
REFERRED TO IN (A) ABOVE."
(B) Notwithstanding the foregoing, any Global
Note or Definitive Note issued pursuant to subparagraphs
(b)(iv), (c)(ii), (c)(iii), (d)(ii), (d)(iii), (e)(ii),
(e)(iii) or (f) to this Section 2.02 (and all Notes issued in
exchange therefor or substitution thereof) shall not bear the
Private Placement Legend.
(ii) Global Note Legend. Each Global Note shall bear a
legend in substantially the following form:
"THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS
DEFINED IN THE INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE
IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF,
AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES
EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS
MAY BE REQUIRED PURSUANT TO SECTION 3.6 OF THE INDENTURE, (II)
THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART
PURSUANT TO SECTION 3.5 OF THE INDENTURE, (III) THIS GLOBAL
NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT
TO SECTION 3.9 OF THE INDENTURE AND (IV) THIS GLOBAL NOTE MAY
BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR
WRITTEN CONSENT OF THE COMPANY."
(h) Cancellation and/or Adjustment of Global Notes. At such time
as all beneficial interests in a particular Global Note have been exchanged for
Definitive Notes or a particular Global Note has been redeemed, repurchased or
canceled in whole and not in part, each such Global Note will be returned to or
retained and canceled by the Trustee in accordance with Section 3.9 of the
Indenture. At any time prior to such cancellation, if any beneficial interest in
a Global Note is exchanged for or transferred to a Person who will take delivery
thereof in the form of a beneficial interest in another Global Note or for
Definitive
29
Notes, the principal amount of Notes represented by such Global Note shall be
reduced accordingly and an endorsement shall be made on such Global Note by the
Trustee or by the Depositary at the direction of the Trustee to reflect such
reduction; and if the beneficial interest is being exchanged for or transferred
to a Person who shall take delivery thereof in the form of a beneficial interest
in another Global Note, such other Global Note shall be increased accordingly
and an endorsement shall be made on such Global Note by the Trustee or by the
Depositary at the direction of the Trustee to reflect such increase.
(i) General Provisions Relating to Transfers and Exchanges.
(i) To permit registrations of transfers and exchanges,
the Company shall execute and the Trustee shall authenticate Global
Notes and Definitive Notes upon the Company's order or at the
Registrar's request.
(ii) No service charge shall be made to a Holder of a
beneficial interest in a Global Note or to a Holder of a Definitive
Note for any registration of transfer or exchange, but the Company may
require payment of a sum sufficient to cover any transfer tax or
similar governmental charge payable in connection therewith (other than
any such transfer taxes or similar governmental charge payable upon
exchange or transfer pursuant to Sections 3.4, 8.6 and 11.7 of the
Indenture and subsections 12(a) and 12(b) of Section 1.01 of this
Twelfth Supplemental Indenture).
(iii) The Registrar shall not be required to register the
transfer of or exchange any Note selected for redemption in whole or in
part, except the unredeemed portion of any Note being redeemed in part.
(iv) All Global Notes and Definitive Notes issued upon any
registration of transfer or exchange of Global Notes or Definitive
Notes shall be the valid obligations of the Company, evidencing the
same debt, and entitled to the same benefits of the Indenture, as the
Global Notes or Definitive Notes surrendered upon such registration of
transfer or exchange.
(v) The Company shall not be required (A) to issue, to
register the transfer of or to exchange any Notes during a period
beginning at the opening of business 15 days before the day of any
selection of Notes for redemption under Section 11.3 of the Indenture
and ending at the close of business on the day of selection, (B) to
register the transfer of or to exchange any Note so selected for
redemption in whole or in part, except the unredeemed portion of any
Note being redeemed in part or (C) to register the transfer of or to
exchange a Note between a record date and the next succeeding Interest
Payment Date.
(vi) Prior to due presentment for the registration of a
transfer of any Note, the Trustee, any Agent and the Company may deem
and treat the Person in whose name any Note is registered as the
absolute owner of such Note for the purpose of receiving payment of
principal of and interest on such Notes and for all other purposes, and
none of the Trustee, any Agent or the Company shall be affected by
notice to the contrary.
(vii) The Trustee shall authenticate Global Notes and
Definitive Notes in accordance with the provisions of Section 3.3 of
the Indenture.
(viii) All certifications, certificates and Opinions of
Counsel required to be submitted to the Registrar pursuant to this
Section 2.02 to effect a registration of transfer or exchange may be
submitted by facsimile.
30
ARTICLE III.
DEFINITIONS
Section 3.01 ADDITIONAL DEFINITIONS.
In addition to the definitions set forth in Article I of the Indenture,
the Notes shall include the following additional definitions, which, in the
event of a conflict with the definition of terms in the Indenture, shall
control:
"144A GLOBAL NOTE" means a global note substantially in the
form of Exhibit A hereto bearing the Global Note Legend and the Private
Placement Legend and deposited with or on behalf of, and registered in
the name of, the Depositary or its nominee that shall be issued in a
denomination equal to the outstanding principal amount of the Notes
sold in reliance on Rule 144A.
"ACQUIRED BUSINESS" means (a) any Person at least a majority
of the capital stock or other ownership interests of which is acquired
after the date hereof by the Company or a Subsidiary of the Company and
(b) any assets constituting a discrete business or operating unit
acquired on or after the date hereof by the Company or a Subsidiary of
the Company.
"ADDITIONAL NOTES" means the aggregate principal amount of
Notes (other than the Initial Notes) issued under the Indenture, as
supplemented by this Twelfth Supplemental Indenture, in accordance with
Section 3.3 of the Indenture and subsection 12(d) of Section 1.01 of
this Twelfth Supplemental Indenture, as part of the same series as the
Initial Notes.
"ALLIED NA SENIOR NOTES " means the 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, the 9-1/4
Senior Notes issued in November 2002, the 7-7/8% Senior Notes issued in
April 2003, the 6-1/2% Senior Notes issued in November 2003 and the
6-1/8 Senior Notes issued in January 2004 by the Company.
"ALLIED NA WASTE GROUP" means, collectively, the Company,
Allied and their respective Subsidiaries, and a member of the Allied NA
Waste Group means the Company, Allied and each of their respective
Subsidiaries.
"APOLLO" means Apollo Management IV, L.P. or its Permitted
Transferees (exclusive of the Allied NA Waste Group).
"APPLICABLE PROCEDURES" means, with respect to any transfer or
exchange of or for beneficial interests in any Global Note, the rules
and procedures of the Depositary 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
31
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 Twelfth Supplemental Indenture.
"BANKRUPTCY LAW" means Title 11, U.S. Code or any similar
federal or state law for the relief of debtors.
"BFI " means Browning-Ferris 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.
"BROKER-DEALER" has the meaning set forth in the Registration
Rights Agreement.
"CAPITAL LEASE OBLIGATION" of any Person means the obligation
to pay rent or other payment amounts under a lease of (or other
arrangements conveying the right to use) real or personal property of
such Person which is required to be classified and accounted for as a
capital lease or a liability on a balance sheet of such Person in
accordance with generally accepted accounting principles. The stated
maturity of such obligation shall be the date of the last payment of
rent or any other amount due under such lease prior to the first date
upon which such lease may be terminated by the lessee without payment
of a penalty. The principal amount of such obligation shall be the
capitalized amount thereof that would appear on a balance sheet of such
Person in accordance with generally accepted accounting principles.
"CAPITAL STOCK" of any Person means any and all shares,
interests, participations or other equivalents (however designated) of
corporate stock or other equity participations, including partnership
interests, whether general or limited, of such Person.
"CASH EQUIVALENTS" means (i) United States dollars, (ii)
securities either issued directly or fully guaranteed or insured by the
government of the United States of America or any agency or
instrumentality thereof having maturities of not more than one year,
(iii) time deposits and certificates of deposit, demand deposits and
banker's acceptances having maturities of not more than one year from
the date of deposit, of any domestic commercial
32
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 Moody's 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.
"COMPARABLE TREASURY ISSUE" means, with respect to the Notes,
on any date the United States Treasury security selected by an
Independent Investment Banker as having a maturity comparable to the
remaining term of such Notes on such date that would be utilized, at
the time of selection and in accordance with customary financial
practice, in pricing new issues of corporate debt securities of a
maturity comparable to the remaining term of the Notes on such date.
"Independent Investment Banker" means Citigroup Global Markets Inc., or
if such firm is unwilling or unable to select the Comparable Treasury
Issue, an independent investment banking institution of national
standing appointed by the Trustee.
"COMPARABLE TREASURY PRICE" means, with respect to any
Redemption Date for any issue of Notes,
(i) the average of the bid and asked prices for the
Comparable Treasury Issue (expressed in each case as a percentage of
its principal amount) on the third business day preceding such
Redemption Date, as set forth in the daily statistical release (or any
successor release) published by the Federal Reserve Bank of New York
and designated "Composite 3:30 p.m. Quotations for U.S. Government
Securities" or
(ii) if such release (or any successor release) is not
published or does not contain such prices on such business day:
(a) the average of the Reference Treasury Dealer
Quotations for such Redemption Date after excluding the
highest and lowest such Reference Treasury Dealer
Quotations, or
(b) if the Trustee obtains fewer than four such
Reference Treasury Dealer Quotations, the average of all
such quotations.
"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
33
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 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).
34
"CONSOLIDATED INCOME TAX EXPENSE" of any Person means for any
period the consolidated provision for income taxes of such Person and
its Consolidated Subsidiaries for such period determined in accordance
with generally accepted accounting principles.
"CONSOLIDATED INTEREST EXPENSE" of any Person means for any
period the consolidated interest expense included in a consolidated
income statement (net of interest income) of such Person and its
Consolidated Subsidiaries for such period determined in accordance with
generally accepted accounting principles, including without limitation
or duplication (or, to the extent not so included, with the addition
of), (i) the portion of any rental obligation in respect of any Capital
Lease Obligation allocable to interest expense in accordance with
generally accepted accounting principles; (ii) the amortization of Debt
discounts; (iii) any payments or fees with respect to letters of
credit, bankers' acceptances or similar facilities; (iv) the net amount
due and payable (or minus the net amount receivable), with respect to
any interest rate swap or similar agreement or foreign currency hedge,
exchange or similar agreement; (v) any Preferred Stock dividends
declared and paid or payable in cash; and (v) any interest capitalized
in accordance with generally accepted accounting principles.
"CONSOLIDATED NET INCOME" of any Person means for any period
the consolidated net income (or loss) of such Person and its
Consolidated Subsidiaries for such period determined in accordance with
generally accepted accounting principles; provided that there shall be
excluded therefrom (a) for purposes solely of calculating Consolidated
Net Income for purposes of clause (3)(a) of the first paragraph of
subsection 12(e) of Section 1.01 of this Twelfth 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.
35
"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, as amended and restated as of August 20, 2003, and as further
amended and restated as of November 20, 2003, among the Company,
Allied, certain lenders party thereto, and JPMorgan Chase Bank, as
Administrative Agent and Collateral Agent, and Citicorp North America,
Inc., as Syndication Agent, 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 Twelfth 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 Twelfth 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.
36
"EXCHANGE NOTES" means the Notes issued in the Exchange Offer
pursuant to Section 2.02(f) of this Twelfth Supplemental Indenture.
"EXCHANGE OFFER" has the meaning set forth in the Registration
Rights Agreement.
"EXCHANGE OFFER REGISTRATION STATEMENT" has the meaning set
forth in the Registration Rights Agreement.
"GAAP" means generally accepted accounting principles set
forth in the opinions and pronouncements of the Accounting Principles
Board of the American Institute of Certified Public Accountants and
statements and pronouncements of the Financial Accounting Standards
Board or in such other statements by such other entity as have been
approved by a significant segment of the accounting profession, which
are in effect on the date hereof.
"GLOBAL NOTE LEGEND" means the legend set forth in Section
2.02(g)(ii), which is required to be placed on all Global Notes issued
under this Twelfth Supplemental Indenture.
"GLOBAL NOTES" means, individually and collectively, each of
the Restricted Global Notes and the Unrestricted Global Notes,
substantially in the form of Exhibit A hereto issued in accordance with
Section 2.01, 2.02(b)(iv), 2.02(d)(ii) or 2.02(f) of this Twelfth
Supplemental Indenture.
"GUARANTEE" by any Person means any obligation, contingent or
otherwise, of such Person guaranteeing any Debt, or dividends or
distributions on any equity security, of any other Person (the "primary
obligor") in any manner, whether directly or indirectly, and including,
without limitation, any obligation of such Person (i) to purchase or
pay (or advance or supply funds for the purchase or payment of) such
Debt or to purchase (or to advance or supply funds for the purchase of)
any security for the payment of such Debt, (ii) to purchase property,
securities or services for the purpose of assuring the holder of such
Debt of the payment of such Debt or (iii) to maintain working capital,
equity capital or other financial statement condition or liquidity of
the primary obligor so as to enable the primary obligor to pay such
Debt (and "GUARANTEED," "GUARANTEEING" and "GUARANTOR" shall have
meanings correlative to the foregoing); provided, however, that the
Guarantee by any Person shall not include endorsements for such Person
for collection or deposit, in either case, in the ordinary course of
business.
"HOLDER" means a Person in whose name a Note is registered.
"IAI GLOBAL NOTE" means a Global Note bearing the Private
Placement Legend and held by an Institutional Accredited Investor.
"INDIRECT PARTICIPANT" means a Person who holds a beneficial
interest in a Global Note through a Participant.
"INITIAL NOTES" means the first $400.0 million aggregate
principal amount of Notes issued under this Twelfth Supplemental
Indenture on the date hereof.
"INITIAL PURCHASERS" means, with respect to the Notes,
Citigroup Global Markets Inc., J.P. Morgan Securities Inc., UBS
Securities LLC, Credit Suisse First Boston LLC,
37
Deutsche Bank Securities Inc., Banc One Capital Markets Inc., BNP
Paribas Securities Corp., Credit Lyonnais Securities (USA) Inc., Fleet
Securities, Inc. and Scotia Capital (USA) Inc.
"INSTITUTIONAL ACCREDITED INVESTOR" means an institution that
is an "accredited investor" as defined in Rule 501(a)(1), (2), (3) or
(7) under the Securities Act, who are not also QIBs.
"INTERCOMPANY AGREEMENTS" means the Management Agreements
between Allied and the Company dated November 15, 1996.
"INTEREST RATE OR CURRENCY PROTECTION AGREEMENT" of any Person
means any interest rate protection agreement (including, without
limitation, interest rate swaps, caps, floors, collars, derivative
instruments and similar agreements), and/or other types of interest
hedging agreements and any currency protection agreement (including
foreign exchange contracts, currency swap agreements or other currency
hedging arrangements).
"INVESTMENT" by any Person in any other Person means (i) any
direct or indirect loan, advance or other extension of credit or
capital contribution to or for the account of such other Person (by
means of any transfer of cash or other property to any Person or any
payment for property or services for the account or use of any Person,
or otherwise), (ii) any direct or indirect purchase or other
acquisition of any Capital Stock, bond, note, debenture or other Debt
or equity security or evidence of Debt, or any other ownership
interest, issued by such other Person, whether or not such acquisition
is from such or any other Person, (iii) any direct or indirect payment
by such Person on a Guarantee of any obligation of or for the account
of such other Person or any direct or indirect issuance by such Person
of such a Guarantee or (iv) any other investment of cash or other
property by such Person in or for the account of such other Person.
"LETTER OF TRANSMITTAL" means the letter of transmittal to be
prepared by the Company and sent to all Holders of the Notes for use by
such Holders in connection with the Exchange Offer.
"LIEN" means, with respect to any property or assets, any
mortgage or deed of trust, pledge, hypothecation, assignment, deposit
arrangement, security interest, lien, charge, easement or title
exception, encumbrance, preference, priority or other security
agreement or preferential arrangement of any kind or nature whatsoever
on or with respect to such property or assets (including any
conditional sale or other title retention agreement having
substantially the same economic effect as any of the foregoing).
"NET AVAILABLE PROCEEDS" from any Asset Disposition by any
Person that is the Company or any Restricted Subsidiary means cash or
readily marketable cash equivalent received (including by way of sale
or discounting of a note, installment receivable, or other receivable,
but excluding any other consideration received in the form of
assumption by the acquiree of Debt or other obligations relating to
such properties or assets or received in any other noncash form)
therefrom by such Person, net of (i) all legal, title and recording tax
expenses, commissions and other fees and expenses Incurred and all
federal, state, provincial, foreign and local taxes required to be
accrued as a liability as a consequence of such Asset Disposition, (ii)
all payments made by such Person or its Restricted Subsidiaries on any
Debt that is secured by such assets in accordance with the terms of any
Lien upon or with respect to such assets or that must, by the terms of
such Debt or such
38
Lien, or in order to obtain a necessary consent to such Asset
Disposition, or by applicable law, be repaid out of the proceeds from
such Asset Disposition, (iii) amounts provided as a reserve by such
Person or its Restricted Subsidiaries, in accordance with generally
accepted accounting principles, against liabilities under any
indemnification obligations to the buyer in such Asset Disposition
(except to the extent and at the time any such amounts are released
from any such reserve, such amounts shall constitute Net Available
Proceeds) and (iv) all distributions and other payments made to
minority interest holders in Restricted Subsidiaries of such Person or
joint ventures as a result of such Asset Disposition.
"NON-U.S. PERSON" means a Person who is not a U.S. Person.
"NOTES" has the meaning assigned to it in the preamble to this
Twelfth 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
Twelfth 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 Twelfth 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 Twelfth Supplemental Indenture
(which requirements may be satisfied by delivery of such documents
together with the Offer to Purchase), and (ii) any other information
required by applicable law to be included therein. The Offer Document
shall contain all instructions and materials necessary to enable such
Holder to tender Securities pursuant to the Offer to Purchase. The
Offer Document shall also state:
(1) the Section of this Twelfth Supplemental Indenture
pursuant to which the Offer to Purchase is being made;
(2) the Offer Expiration Date and the Purchase Date;
39
(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 Twelfth 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 Twelfth 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 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.
40
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
Twelfth 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 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)
41
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 Moody's 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 Twelfth
Supplemental Indenture, (xv) Investments the payment for which consists
exclusively of Capital Stock (exclusive of Redeemable Interests) of the
Company, and (xvi) other Investments in an aggregate amount not to
exceed 15% of the Consolidated Total Assets of the Company outstanding
at any time.
"PERMITTED LIENS" means (i) Liens securing indebtedness under
the Credit Facility that was permitted by the terms of the Indenture to
be incurred; (ii) Liens incurred after the date of this Twelfth
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
42
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 Twelfth 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
Twelfth 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 Twelfth Supplemental
Indenture (1) to finance the cost (including the cost of improvement or
construction) of the item, property or assets subject thereto and such
Lien is created prior to, at the time of or within three months after
the later of the acquisition, the completion of construction or the
commencement of full operation of such property or (2) to refinance any
Debt previously so secured, (b) the principal amount of the Debt
secured by such Lien does not exceed 100% of such cost and (c) any such
Lien shall not extend to or cover any property or asset other than such
item of property or assets and any improvements on such item; (xix)
leases or subleases granted to others that do not materially interfere
with the ordinary course of business of the Company and its Restricted
Subsidiaries, taken as a whole; (xx) Liens arising from filing Uniform
Commercial Code financing statements regarding leases; (xxi) Liens on
property of, or on shares of stock or Debt of, any Person existing at
the time such Person becomes, or becomes a part of, any Restricted
Subsidiary, provided that such Liens do not extend to or cover any
property or assets of the Company or any Restricted Subsidiary other
than the property or assets acquired; (xxii) Liens encumbering deposits
securing Debt under Permitted Interest Rate Currency or Commodity Price
Agreements; (xxiii) Liens arising out of conditional sale, title
retention, consignment or similar arrangements for the sale of goods
entered into by the Company or any of its Restricted Subsidiaries in
the ordinary course of business in accordance with the past practices
of the Company and its Restricted Subsidiaries; (xxiv) any renewal of
or substitution of any Liens
43
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 Twelfth
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.
"PRIVATE PLACEMENT LEGEND" means the legend set forth in
Section 2.02(g)(i) to be placed on all Notes issued under this Twelfth
Supplemental Indenture except where otherwise permitted by the
provisions of this Twelfth Supplemental Indenture.
"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.
"QIB" means a "qualified institutional buyer" as defined in
Rule 144A.
"REFERENCE TREASURY DEALER", means Citigroup Global Markets
Inc. and its successors, provided, however, that if any of the
foregoing shall cease to be a primary U.S. Government securities dealer
in New York City (a "Primary Treasury Dealer"), the Company shall
substitute therefor another Primary Treasury Dealer.
"REFERENCE TREASURY DEALER QUOTATIONS" means, with respect to
each Reference Treasury Dealer and any Redemption Date, the average, as
determined by the Trustee, of the bid and asked prices for the
Comparable Treasury Issue (expressed in each case as a percentage of
its principal amount) quoted in writing to the Trustee by such
Reference Treasury Dealer at 5:00 p.m. on the third Business Day
preceding such Redemption Date.
44
"REGISTRATION RIGHTS AGREEMENT" means the Registration Rights
Agreement for the Notes, dated the date hereof, by and among the
Company and the other parties named on the signature pages thereof, as
such agreement may be amended, modified or supplemented from time to
time and, with respect to any Additional Notes, one or more
registration rights agreements between the Company and the other
parties thereto, as such agreement(s) may be amended, modified or
supplemented from time to time, relating to rights given by the Company
to the purchasers of Additional Notes to register such Additional Notes
under the Securities Act.
"REGULATION S" means Regulation S promulgated under the
Securities Act.
"REGULATION S GLOBAL NOTE" means a global Note bearing the
Private Placement Legend and deposited with or on behalf of the
Depositary and registered in the name of the Depositary or its nominee,
issued in a denomination equal to the outstanding principal amount of
the Notes initially sold in reliance on Rule 903 of Regulation S.
"RELATED BUSINESS" means a business substantially similar to
the business engaged in by the Company and its Subsidiaries on the date
of this Twelfth Supplemental Indenture.
"RELATED PERSON" of any Person means, without limitation, any
other Person owning (a) 5% or more of the outstanding Common Stock of
such Person or (b) 5% or more of the Voting Stock of such Person.
"RESTRICTED DEFINITIVE NOTE" means a Definitive Note bearing
the Private Placement Legend.
"RESTRICTED GLOBAL NOTE" means a Global Note bearing the
Private Placement Legend.
"RESTRICTED PERIOD" means the 40-day restricted period as
defined in Regulation S.
"RULE 144" means Rule 144 promulgated under the Securities
Act.
"RULE 144A" means Rule 144A promulgated under the Securities
Act.
"RULE 903" means Rule 903 promulgated under the Securities
Act.
"RULE 904" means Rule 904 promulgated the Securities Act.
"SHELF REGISTRATION STATEMENT" means the Shelf Registration
Statement as defined in the Registration Rights Agreement.
"SPECIAL INTEREST" means all liquidated damages then owing
pursuant to Section 5 of the Registration Rights Agreement.
"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.
45
"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 DEFINITIVE NOTE" means one or more Definitive
Notes that do not bear and are not required to bear the Private
Placement Legend.
"UNRESTRICTED GLOBAL NOTE" means a permanent global Note
substantially in the form of Exhibit A attached hereto that bears the
Global Note Legend and that has the "Schedule of Exchanges of Interests
in the Global Note" attached thereto, and that is deposited with or on
behalf of and registered in the name of the Depositary, representing a
series of Notes that do not bear the Private Placement Legend.
"UNRESTRICTED SUBSIDIARY" means (i) at any date, a Subsidiary
of the Company that is an Unrestricted Subsidiary in accordance with
the provisions of subsection 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 Twelfth 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 Twelfth
Supplemental Indenture, is in all respects ratified and confirmed, and the
Indenture and this Twelfth 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 Twelfth Supplemental Indenture).
Section 4.03 CONCERNING THE TRUSTEE.
46
The Trustee assumes no duties, responsibilities or liabilities by
reason of this Twelfth 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 Twelfth 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 Twelfth 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 Twelfth 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.
47
IN WITNESS WHEREOF, the parties hereto have caused this Twelfth
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: Steven M. Helm
Title: Vice President
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: Steven M. Helm
Title: Senior Vice President, General
Counsel & Corporate Secretary
Each of the Subsidiary Guarantors Listed on
Schedule A hereto, as Guarantor of the
Securities
By :________________________________________
Name: Steven M. Helm
Title: Vice President
U.S. BANK NATIONAL ASSOCIATION
By:_________________________________________
Name:
Title:
EXHIBIT A
[Face of Note]
CUSIP/CINS ____________
5-3/4% SERIES A SENIOR NOTES DUE 2011
No. ______ $____________
ALLIED WASTE NORTH AMERICA, INC.
promises to pay to Cede & Co.,
or registered assigns,
the principal sum of ___________________________________________________________
Dollars on February 15, 2011.
Interest Payment Dates: February 15 and August 15, commencing August 15, 2004
Record Dates: February 1 and August 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
A-1
EXHIBIT A
[Back of Note]
5-3/4% SENIOR NOTES DUE 2011
[Insert the Global Note Legend, if applicable pursuant, to the
provisions of the Indenture]
[Insert the Private Placement Legend, if applicable, pursuant to the
provision of the Indenture]
Capitalized terms used herein shall have the meanings assigned to them
in the Indenture referred to below unless otherwise indicated.
1. INTEREST. Allied Waste North America, Inc., a Delaware
corporation (the "COMPANY"), promises to pay interest on the principal amount of
this Note at 5-3/4% per annum from the date hereof until maturity and shall pay
the Special Interest, if any, payable pursuant to Section 5 of the Registration
Rights Agreement referred to below. The Company shall pay interest and Special
Interest semi-annually in arrears on February 15 and August 15 of each year,
beginning August 15, 2004, 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
August 15, 2004. The Company shall pay interest (including post-petition
interest in any proceeding under any Bankruptcy Law) on overdue principal and
premium, if any, from time to time on demand at a rate that is 2% per annum in
excess of the rate then in effect; it shall pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on overdue
installments of interest and Special Interest, if any, from time to time on
demand at the same rate to the extent lawful. Interest shall be computed on the
basis of a 360 day year of twelve 30 day months.
2. METHOD OF PAYMENT. The Company shall pay interest on the Notes
(except defaulted interest) and Special Interest, if any, to the Persons who are
registered Holders of Notes at the close of business on the February 1 or August
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, interest and Special
Interest, if any, at the office or agency of the Company maintained for such
purpose within or without the City and State of New York, or, at the option of
the Company, payment of interest and Special Interest, if any, may be made by
check mailed to the Holders at their addresses set forth in the register of
Holders, and provided that payment by wire transfer of immediately available
funds shall be required with respect to principal of and interest, premium and
Special Interest, if any, 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.
A-2
EXHIBIT A
4. INDENTURE. The Company issued the Notes under an Indenture
dated as of December 23, 1998, as amended by the Twelfth Supplemental Indenture
dated as of January 27, 2004 (together, the "INDENTURE"), each among the
Company, the Guarantors and the Trustee. The terms of the Notes include those
stated in the Indenture and those made part of the Indenture by reference to the
Trust Indenture Act of 1939, as amended (15 U.S. Code Sections 77aaa-77bbbb).
The Notes are subject to all such terms, and Holders are referred to the
Indenture and such Act for a statement of such terms. To the extent any
provision of this Note conflicts with the express provisions of the Indenture,
the provisions of the Indenture shall govern and be controlling.
5. OPTIONAL REDEMPTION.
(a) Except as set forth in subparagraph (b) and (c) of
this Paragraph 5, the Company shall not have the option to redeem the Notes
prior to the final maturity of such Notes.
(b) The Notes will be subject to redemption, from time to
time and at the option of the Company, in whole or in part, upon not less than
30 nor more than 60 days' notice mailed to each Holder of Notes to be redeemed
at such Holder's address appearing in the Security Register, in amounts of
$1,000 or an integral multiple of $1,000, at a redemption price equal to the
greater of (1) 100% of their principal amount or (2) the sum of the present
values of the remaining scheduled payments of principal and interest thereon
discounted to maturity on a semi-annual basis (assuming a 360-day year
consisting of twelve 30-day months) at the Treasury Yield plus 50 basis points,
plus in each case accrued but unpaid interest (including Special Interest) to
but excluding the Redemption Date (subject to the 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 Redemption Date).
(c) At any time, or from time to time, prior to February
15, 2007, 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 105.750% 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.
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.
A-3
EXHIBIT A
9. DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in registered
form without coupons in denominations of $1,000 and integral multiples of
$1,000. The transfer of Notes may be registered and Notes may be exchanged as
provided in the Indenture. The Registrar and the Trustee may require a Holder,
among other things, to furnish appropriate endorsements and transfer documents
and the Company may require a Holder to pay any taxes and fees required by law
or permitted by the Indenture. The Company need not exchange or register the
transfer of any Note or portion of a Note selected for redemption, except for
the unredeemed portion of any Note being redeemed in part. Also, the Company
need not exchange or register the transfer of any Notes for a period of 15 days
before a selection of Notes to be redeemed or during the period between a record
date and the corresponding Interest Payment Date.
10. PERSONS DEEMED OWNERS. The registered Holder of a Note may be
treated as its owner for all purposes.
11. AMENDMENT, SUPPLEMENT AND WAIVER. The Indenture permits, with
certain exceptions as therein provided, the amendment thereof and the
modification of the rights and obligations of the Company and the Guarantors and
the rights of the Holders of the Securities under the Indenture at any time by
the Company, the Guarantors and the Trustee with the consent of the Holders of a
majority in aggregate principal amount of the Notes at the time.
12. DEFAULTS AND REMEDIES. Events of Default include: (i) default
for 30 days in the payment when due of interest on the Notes; (ii) default in
payment when due of principal of or premium, if any, on the Notes when the same
becomes due and payable at maturity, upon redemption (including in connection
with an Offer to Purchase) or otherwise, (iii) failure by the Company to comply
with subsections 12(a) or 12(b) of Section 1.01 of the Indenture or Article 7 of
the Indenture (as superseded by subsection 13 of Section 1.01 of the Twelfth
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
A-4
EXHIBIT A
Indenture, and the Company is required upon becoming aware of any Default or
Event of Default, to deliver to the Trustee a statement specifying such Default
or Event of Default.
13. TRUSTEE DEALINGS WITH COMPANY. The Trustee, in its individual
or any other capacity, may make loans to, accept deposits from, and perform
services for the Company or its Affiliates, and may otherwise deal with the
Company or its Affiliates, as if it were not the Trustee.
14. NO RECOURSE AGAINST OTHERS. A director, officer, employee,
incorporator or stockholder, of the Company, as such, shall not have any
liability for any obligations of the Company under the Notes or the Indenture or
for any claim based on, in respect of, or by reason of, such obligations or
their creation. Each Holder by accepting a Note waives and releases all such
liability. The waiver and release are part of the consideration for the issuance
of the Notes.
15. AUTHENTICATION. This Note shall not be valid until
authenticated by the manual signature of the Trustee or an authenticating agent.
16. ABBREVIATIONS. Customary abbreviations may be used in the name
of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts
to Minors Act).
17. ADDITIONAL RIGHTS OF HOLDERS OF RESTRICTED GLOBAL NOTES AND
RESTRICTED DEFINITIVE NOTES. In addition to the rights provided to Holders of
Notes under the Indenture, Holders of Restricted Global Notes and Restricted
Definitive Notes shall have all the rights set forth in the Registration Rights
Agreement relating to the Notes dated as of January 27, 2004, among the Company,
the Guarantors and the parties named on the signature pages thereof or, in the
case of Additional Notes, Holders of Restricted Global Notes and Restricted
Definitive Notes shall have the rights set forth in one or more registration
rights agreements, if any, between the Company and the other parties thereto,
relating to rights given by the Company to the purchasers of any Additional
Notes (collectively, the "Registration Rights Agreement").
18. CUSIP NUMBERS. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Company has caused
CUSIP numbers to be printed on the Notes and the Trustee may use CUSIP numbers
in notices of redemption as a convenience to Holders. No representation is made
as to the accuracy of such numbers either as printed on the Notes or as
contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.
The Company shall furnish to any Holder upon written request and
without charge a copy of the Indenture and/or the Registration Rights Agreement.
Requests may be made to:
ALLIED WASTE NORTH AMERICA, INC.
15880 North Greenway - Hayden Loop, Suite 100
Scottsdale, AZ 85260
Attention: Treasurer
A-5
EXHIBIT A
ASSIGNMENT FORM
To assign this Note, fill in the form below:
(I) or (we) assign and transfer this Note to: __________________________________
(Insert assignee's legal name)
________________________________________________________________________________
(Insert assignee's soc. sec. or tax I.D. no.)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint ________________________________________________________
to transfer this Note on the books of the Company. The agent may substitute
another to act for him.
Date:___________________________
Your Signature: ________________________________
(Sign exactly as your name appears on the
face of this Note)
Signature Guarantee: _________________
A-6
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 Twelfth
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
Twelfth Supplemental Indenture, state the amount you elect to have purchased:
$______________
Date: _________________________
Your Signature:__________________________________
(Sign exactly as your name appears on the face of
this Note)
Tax Identification No.:_____________________
Signature Guarantee: ___________________
A-7
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
- ---------------- ------------------- --------------------- ------------------- ------------------
A-8
EXHIBIT B
FORM OF CERTIFICATE OF TRANSFER
Allied Waste North America, Inc.
15880 North Greenway - Hayden Loop, Suite 100
Scottsdale, Arizona 85260
U.S. Bank National Association
180 East 5th Street
St. Paul, MN 55101
Re: 5-3/4% Senior Notes due 2011
Reference is hereby made to the Indenture, dated as of December 23,
1998, as amended by that Twelfth Supplemental Indenture, dated as of January 27,
2004 (collectively, the "INDENTURE"), between Allied Waste North America, Inc.,
as issuer (the "COMPANY"), and U.S. Bank National Association, as trustee.
Capitalized terms used but not defined herein shall have the meanings given to
them in the Indenture.
___________________ (the "TRANSFEROR") owns and proposes to transfer
the Note[s] or interest in such Note[s] specified in Annex A hereto, in the
principal amount of $___________ in such Note[s] or interests (the "TRANSFER"),
to ___________________________ (the "TRANSFEREE"), as further specified in Annex
A hereto. In connection with the Transfer, the Transferor hereby certifies that:
[CHECK ALL THAT APPLY]
1. [ ] CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL
INTEREST IN THE 144A GLOBAL NOTE OR A DEFINITIVE NOTE PURSUANT TO RULE 144A. The
Transfer is being effected pursuant to and in accordance with Rule 144A under
the United States Securities Act of 1933, as amended (the "SECURITIES ACT"),
and, accordingly, the Transferor hereby further certifies that the beneficial
interest or Definitive Note is being transferred to a Person that the Transferor
reasonably believed and believes is purchasing the beneficial interest or
Definitive Note for its own account, or for one or more accounts with respect to
which such Person exercises sole investment discretion, and such Person and each
such account is a "qualified institutional buyer" within the meaning of Rule
144A in a transaction meeting the requirements of Rule 144A and such Transfer is
in compliance with any applicable blue sky securities laws of any state of the
United States. Upon consummation of the proposed Transfer in accordance with the
terms of the Indenture, the transferred beneficial interest or Definitive Note
shall be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the 144A Global Note and/or the Definitive Note and
in the Indenture and the Securities Act.
2. [ ] CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL
INTEREST IN THE REGULATION S GLOBAL NOTE OR A DEFINITIVE NOTE PURSUANT TO
REGULATION S. The Transfer is being effected pursuant to and in accordance with
Rule 903 or Rule 904 under the Securities Act and, accordingly, the Transferor
hereby further certifies that (i) the Transfer is not being made to a person in
the United States and (x) at the time the buy order was originated, the
Transferee was outside the United States or such Transferor and any Person
acting on its behalf reasonably believed and believes that the Transferee was
outside the United States or (y) the transaction was executed in, on or through
the facilities of a designated offshore securities market and neither such
Transferor nor any Person acting on its behalf knows that the transaction was
prearranged with a buyer in the United States, (ii) no directed selling efforts
have been made in contravention of the requirements of Rule 903(b) or Rule
904(b) of Regulation S under the Securities Act, (iii) the transaction is not
part of a plan or scheme to evade the registration requirements of the
Securities Act and (iv) if the proposed transfer is being made prior to the
expiration of the Restricted
B-1
EXHIBIT B
Period, the transfer is not being made to a U.S. Person or for the account or
benefit of a U.S. Person (other than an Initial Purchaser). Upon consummation of
the proposed transfer in accordance with the terms of the Indenture, the
transferred beneficial interest or Definitive Note shall be subject to the
restrictions on Transfer enumerated in the Private Placement Legend printed on
the Regulation S Global Note and/or the Definitive Note and in the Indenture and
the Securities Act.
3. [ ] CHECK AND COMPLETE IF TRANSFEREE WILL TAKE DELIVERY OF A
BENEFICIAL INTEREST IN THE IAI GLOBAL NOTE OR A DEFINITIVE NOTE PURSUANT TO ANY
PROVISION OF THE SECURITIES ACT OTHER THAN RULE 144A OR REGULATION S. The
Transfer is being effected in compliance with the transfer restrictions
applicable to beneficial interests in Restricted Global Notes and Restricted
Definitive Notes and pursuant to and in accordance with the Securities Act and
any applicable blue sky securities laws of any state of the United States, and
accordingly the Transferor hereby further certifies that (check one):
(a) [ ] such Transfer is being effected pursuant to and
in accordance with Rule 144 under the Securities Act;
or
(b) [ ] such Transfer is being effected to the Company or
a subsidiary thereof;
or
(c) [ ] such Transfer is being effected pursuant to an
effective registration statement under the Securities Act and in compliance with
the prospectus delivery requirements of the Securities Act;
or
(d) [ ] such Transfer is being effected to an
Institutional Accredited Investor and pursuant to an exemption from the
registration requirements of the Securities Act other than Rule 144A, Rule 144
or Rule 904, and the Transferor hereby further certifies that it has not engaged
in any general solicitation within the meaning of Regulation D under the
Securities Act and the Transfer complies with the transfer restrictions
applicable to beneficial interests in a Restricted Global Note or Restricted
Definitive Notes and the requirements of the exemption claimed, which
certification is supported by (1) a certificate executed by the Transferee in
the form of Exhibit D to the Indenture and (2) an Opinion of Counsel provided by
the Transferor or the Transferee (a copy of which the Transferor has attached to
this certification), to the effect that such Transfer is in compliance with the
Securities Act. Upon consummation of the proposed transfer in accordance with
the terms of the Indenture, the transferred beneficial interest or Definitive
Note shall be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the IAI Global Note and/or the Definitive Notes and
in the Indenture and the Securities Act.
4. [ ] CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL
INTEREST IN AN UNRESTRICTED GLOBAL NOTE OR OF AN UNRESTRICTED DEFINITIVE NOTE.
(a) [ ] CHECK IF TRANSFER IS PURSUANT TO RULE 144. (i)
The Transfer is being effected pursuant to and in accordance with Rule 144 under
the Securities Act and in compliance with the transfer restrictions contained in
the Indenture and any applicable blue sky securities laws of any state of the
United States and (ii) the restrictions on transfer contained in the Indenture
and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act. Upon consummation of
B-2
EXHIBIT B
the proposed Transfer in accordance with the terms of the Indenture, the
transferred beneficial interest or Definitive Note shall no longer be subject to
the restrictions on transfer enumerated in the Private Placement Legend printed
on the Restricted Global Notes, on Restricted Definitive Notes and in the
Indenture.
(b) [ ] CHECK IF TRANSFER IS PURSUANT TO REGULATION S.
(i) The Transfer is being effected pursuant to and in accordance with Rule 903
or Rule 904 under the Securities Act and in compliance with the transfer
restrictions contained in the Indenture and any applicable blue sky securities
laws of any state of the United States and (ii) the restrictions on transfer
contained in the Indenture and the Private Placement Legend are not required in
order to maintain compliance with the Securities Act. Upon consummation of the
proposed Transfer in accordance with the terms of the Indenture, the transferred
beneficial interest or Definitive Note shall no longer be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on
the Restricted Global Notes, on Restricted Definitive Notes and in the
Indenture.
(c) [ ] CHECK IF TRANSFER IS PURSUANT TO OTHER EXEMPTION.
(i) The Transfer is being effected pursuant to and in compliance with an
exemption from the registration requirements of the Securities Act other than
Rule 144, Rule 903 or Rule 904 and in compliance with the transfer restrictions
contained in the Indenture and any applicable blue sky securities laws of any
State of the United States and (ii) the restrictions on transfer contained in
the Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act. Upon consummation of the proposed
Transfer in accordance with the terms of the Indenture, the transferred
beneficial interest or Definitive Note shall not be subject to the restrictions
on transfer enumerated in the Private Placement Legend printed on the Restricted
Global Notes or Restricted Definitive Notes and in the Indenture.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company.
____________________________________
[Insert Name of Transferor]
By:_________________________________
Name:
Title:
Dated:______________________________
B-3
EXHIBIT B
ANNEX A TO CERTIFICATE OF TRANSFER
1. The Transferor owns and proposes to transfer the following:
[CHECK ONE OF (a) OR (b)]
(a) [ ] a beneficial interest in the:
(i) [ ] 144A Global Note (CUSIP __________), or
(ii) [ ] Regulation S Global Note (CUSIP __________), or
(iii) [ ] IAI Global Note (CUSIP ________); or
(b) [ ] a Restricted Definitive Note.
2. After the Transfer the Transferee will hold:
[CHECK ONE]
(a) [ ] a beneficial interest in the:
(i) [ ] 144A Global Note (CUSIP ______), or
(ii) [ ] Regulation S Global Note (CUSIP ______), or
(iii) [ ] IAI Global Note (CUSIP ______); or
(iv) [ ] Unrestricted Global Note (CUSIP ______); or
(b) [ ] a Restricted Definitive Note; or
(c) [ ] an Unrestricted Definitive Note,
in accordance with the terms of the Indenture.
B-4
EXHIBIT C
FORM OF CERTIFICATE OF EXCHANGE
Allied Waste North America, Inc.
15880 North Greenway - Hayden Loop, Suite 100
Scottsdale, Arizona 85260
U.S. Bank National Association
180 East 5th Street
St. Paul, MN 55101
Re: 5-3/4% Senior Notes due 2011
(CUSIP _________)
Reference is hereby made to the Indenture, dated as of December 23,
1998, as amended by that Twelfth Supplemental Indenture, dated as of January 27,
2004 (collectively, the "INDENTURE"), between Allied Waste North America, Inc.,
as issuer (the "COMPANY"), and U.S. Bank National Association, as trustee.
Capitalized terms used but not defined herein shall have the meanings given to
them in the Indenture.
___________________ (the "OWNER") owns and proposes to exchange the
Note[s] or interest in such Note[s] specified herein, in the principal amount of
$___________ in such Note[s] or interests (the "EXCHANGE"). In connection with
the Exchange, the Owner hereby certifies that:
1. EXCHANGE OF RESTRICTED DEFINITIVE NOTES OR BENEFICIAL
INTERESTS IN A RESTRICTED GLOBAL NOTE FOR UNRESTRICTED DEFINITIVE NOTES OR
BENEFICIAL INTERESTS IN AN UNRESTRICTED GLOBAL NOTE.
(a) [ ] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN
A RESTRICTED GLOBAL NOTE TO BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL NOTE.
In connection with the Exchange of the Owner's beneficial interest in a
Restricted Global Note for a beneficial interest in an Unrestricted Global Note
in an equal principal amount, the Owner hereby certifies (i) the beneficial
interest is being acquired for the Owner's own account without transfer, (ii)
such Exchange has been effected in compliance with the transfer restrictions
applicable to the Global Notes and pursuant to and in accordance with the United
States Securities Act of 1933, as amended (the "SECURITIES ACT"), (iii) the
restrictions on transfer contained in the Indenture and the Private Placement
Legend are not required in order to maintain compliance with the Securities Act
and (iv) the beneficial interest in an Unrestricted Global Note is being
acquired in compliance with any applicable blue sky securities laws of any state
of the United States.
(b) [ ] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN
A RESTRICTED GLOBAL NOTE TO UNRESTRICTED DEFINITIVE NOTE. In connection with the
Exchange of the Owner's beneficial interest in a Restricted Global Note for an
Unrestricted Definitive Note, the Owner hereby certifies (i) the Definitive Note
is being acquired for the Owner's own account without transfer, (ii) such
Exchange has been effected in compliance with the transfer restrictions
applicable to the Restricted Global Notes and pursuant to and in accordance with
the Securities Act, (iii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act and (iv) the Definitive Note is being
acquired in compliance with any applicable blue sky securities laws of any state
of the United States.
(c) [ ]CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE
NOTE TO BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL NOTE. In connection with
the Owner's Exchange of a Restricted Definitive Note for a beneficial interest
in an Unrestricted Global Note, the Owner hereby certifies (i) the
C-1
EXHIBIT C
beneficial interest is being acquired for the Owner's own account without
transfer, (ii) such Exchange has been effected in compliance with the transfer
restrictions applicable to Restricted Definitive Notes and pursuant to and in
accordance with the Securities Act, (iii) the restrictions on transfer contained
in the Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act and (iv) the beneficial interest is
being acquired in compliance with any applicable blue sky securities laws of any
state of the United States.
(d) [ ] CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE
NOTE TO UNRESTRICTED DEFINITIVE NOTE. In connection with the Owner's Exchange of
a Restricted Definitive Note for an Unrestricted Definitive Note, the Owner
hereby certifies (i) the Unrestricted Definitive Note is being acquired for the
Owner's own account without transfer, (ii) such Exchange has been effected in
compliance with the transfer restrictions applicable to Restricted Definitive
Notes and pursuant to and in accordance with the Securities Act, (iii) the
restrictions on transfer contained in the Indenture and the Private Placement
Legend are not required in order to maintain compliance with the Securities Act
and (iv) the Unrestricted Definitive Note is being acquired in compliance with
any applicable blue sky securities laws of any state of the United States.
2. EXCHANGE OF RESTRICTED DEFINITIVE NOTES OR BENEFICIAL
INTERESTS IN RESTRICTED GLOBAL NOTES FOR RESTRICTED DEFINITIVE NOTES OR
BENEFICIAL INTERESTS IN RESTRICTED GLOBAL NOTES.
(a) [ ] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN
A RESTRICTED GLOBAL NOTE TO RESTRICTED DEFINITIVE NOTE. In connection with the
Exchange of the Owner's beneficial interest in a Restricted Global Note for a
Restricted Definitive Note with an equal principal amount, the Owner hereby
certifies that the Restricted Definitive Note is being acquired for the Owner's
own account without transfer. Upon consummation of the proposed Exchange in
accordance with the terms of the Indenture, the Restricted Definitive Note
issued shall continue to be subject to the restrictions on transfer enumerated
in the Private Placement Legend printed on the Restricted Definitive Note and in
the Indenture and the Securities Act.
(b) [ ] CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE
NOTE TO BENEFICIAL INTEREST IN A RESTRICTED GLOBAL NOTE. In connection with the
Exchange of the Owner's Restricted Definitive Note for a beneficial interest in
the [CHECK ONE] [ ] 144A Global Note, [ ] Regulation S Global Note, [ ] IAI
Global Note with an equal principal amount, the Owner hereby certifies (i) the
beneficial interest is being acquired for the Owner's own account without
transfer and (ii) such Exchange has been effected in compliance with the
transfer restrictions applicable to the Restricted Global Notes and pursuant to
and in accordance with the Securities Act, and in compliance with any applicable
blue sky securities laws of any state of the United States. Upon consummation of
the proposed Exchange in accordance with the terms of the Indenture, the
beneficial interest issued shall be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the relevant Restricted
Global Note and in the Indenture and the Securities Act.
C-2
EXHIBIT C
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company.
___________________________________
[Insert Name of Transferor]
By:________________________________
Name:
Title:
Dated:______________________________
C-3
EXHIBIT D
FORM OF CERTIFICATE FROM
ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR
Allied Waste North America, Inc.
15880 North Greenway - Hayden Loop, Suite 100
Scottsdale, Arizona 85260
U.S. Bank National Association
180 East 5th Street
St. Paul, MN 55101
Re: 5-3/4% Senior Notes due 2011
Reference is hereby made to the Indenture, dated as of December 23,
1998, as amended by that Twelfth Supplemental Indenture, dated as of January 27,
2004 (collectively, the "INDENTURE"), between Allied Waste North America, Inc.,
as issuer (the "COMPANY"), and U.S. Bank National Association, as trustee.
Capitalized terms used but not defined herein shall have the meanings given to
them in the Indenture.
In connection with our proposed purchase of $____________ aggregate
principal amount of:
(a) [ ] a beneficial interest in a Global Note, or
(b) [ ] a Definitive Note,
we confirm that:
1. We understand that any subsequent transfer of the Notes or any
interest therein is subject to certain restrictions and conditions set forth in
the Indenture and the undersigned agrees to be bound by, and not to resell,
pledge or otherwise transfer the Notes or any interest therein except in
compliance with, such restrictions and conditions and the United States
Securities Act of 1933, as amended (the "SECURITIES ACT").
2. We understand that the offer and sale of the Notes have not
been registered under the Securities Act, and that the Notes and any interest
therein may not be offered or sold except as permitted in the following
sentence. We agree, on our own behalf and on behalf of any accounts for which we
are acting as hereinafter stated, that if we should sell the Notes or any
interest therein, we shall do so only (A) to the Company or any subsidiary
thereof, (B) in accordance with Rule 144A under the Securities Act to a
"qualified institutional buyer" (as defined therein), (C) to an institutional
"accredited investor" (as defined below) that, prior to such transfer, furnishes
(or has furnished on its behalf by a U.S. broker-dealer) to you and to the
Company a signed letter substantially in the form of this letter and an Opinion
of Counsel in form reasonably acceptable to the Company to the effect that such
transfer is in compliance with the Securities Act, (D) outside the United States
in accordance with Rule 904 of Regulation S under the Securities Act, (E)
pursuant to the provisions of Rule 144(k) under the Securities Act or (F)
pursuant to an effective registration statement under the Securities Act, and we
further agree to provide to any person purchasing the Definitive Note or
beneficial interest in a Global Note from us in a transaction meeting the
requirements of clauses (A) through (E) of this paragraph a notice advising such
purchaser that resales thereof are restricted as stated herein.
3. We understand that, on any proposed resale of the Notes or
beneficial interest therein, we shall be required to furnish to you and the
Company such certifications, legal opinions and other
D-1
EXHIBIT D
information as you and the Company may reasonably require to confirm that the
proposed sale complies with the foregoing restrictions. We further understand
that the Notes purchased by us shall bear a legend to the foregoing effect.
4. We are an institutional "accredited investor" (as defined in
Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) and
have such knowledge and experience in financial and business matters as to be
capable of evaluating the merits and risks of our investment in the Notes, and
we and any accounts for which we are acting are each able to bear the economic
risk of our or its investment.
5. We are acquiring the Notes or beneficial interest therein
purchased by us for our own account or for one or more accounts (each of which
is an institutional "accredited investor") as to each of which we exercise sole
investment discretion.
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby.
____________________________________________
[Insert Name of Accredited Investor]
By:_________________________________________
Name:
Title:
Dated:_______________________
D-2