SUPPLEMENTAL INDENTURE
SUPPLEMENTAL INDENTURE, dated as of July 30, 1999 (this "Supplemental
Indenture"), among ALLIED WASTE NORTH AMERICA, INC., a corporation duly
organized and existing under the laws of the State of Delaware (the "Company"),
having its principal office at ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, each of the GUARANTORS signatory hereto and U.S. BANK
TRUST NATIONAL ASSOCIATION, a national banking association, as Trustee (the
"Trustee").
WITNESSETH:
WHEREAS, the Company, the Guarantors and the Trustee executed and
delivered an Indenture, dated as of July 30, 1999 (the "Indenture"), to provide
for the issuance by the Company from time to time of debt securities evidencing
its unsecured indebtedness;
WHEREAS, pursuant to Board Resolution (the "Resolutions"), the Company
has authorized the issuance of $2,000,000,000 of its 10% Series A Senior
Subordinated Notes Due 2009 (the "Series A Notes") and $2,000,000,000 of its 10%
Series B Senior Subordinated Notes Due 2009 (the "Series B Notes" and together
with the Series A Notes, the "Notes"); and
WHEREAS, the Company, the Guarantors and certain other parties named on
the signature page thereof entered into a Registration Rights Agreement dated as
of the date hereof (as such agreement may be amended, modified or supplemented
from time to time, the "Registration Rights Agreement") which contemplates (i)
the registration with the Securities and Exchange Commission (the "SEC") of the
issuance of the Series B Notes and (ii) the consummation of an Exchange Offer
(defined below) whereby the Series A Notes may be exchanged for Series B Notes;
and
WHEREAS, the Company desires to establish the terms of the Notes in
accordance with Section 3.1 of the Indenture and to establish the form of the
Notes in accordance with Section 2.1 of the Indenture.
ARTICLE I.
TERMS
SECTION 1.01. TERMS OF NOTES. The following terms relating to the
Notes are hereby established:
(1) The Series A Notes shall constitute a series of Securities having
the title "10% Series A Senior Subordinated Notes Due 2009." The Series B Notes
shall constitute a series of Securities having the title "10% Series B Senior
Subordinated Notes Due 2009."
(2) The aggregate principal amount of the Series A Notes that may be
authenticated and delivered under the Indenture (except for Series A Notes
authenticated and delivered upon registration of transfer of, or in exchange
for, or in lieu of, other Series A Notes pursuant to Sections 3.4, 3.5, 3.6, 8.6
or 11.7 of the Indenture or any Securities that, pursuant to Section 3.3, are
deemed never to have been authenticated or delivered thereunder) shall be up to
$2,000,000,000. The aggregate principal amount of the Series B Notes that may be
authenticated and delivered under the Indenture (except for Series B Notes
authenticated and delivered upon registration of transfer of or in exchange for
or in lieu of, other Series B Notes pursuant to Sections 3.4, 3.5, 3.6, 8.6 or
11.7 of the Indenture or any Securities that, pursuant to Section 3.3, are
deemed never to have been authenticated or delivered thereunder) shall be up to
$2,000,000,000.
(3) The entire outstanding principal of the Notes shall be payable on
August 1, 2009 (the "Stated Maturity Date").
(4) The rate at which the Notes shall bear interest shall be 10%; (a)
with respect to the Series A Notes, interest shall accrue from the date hereof;
(b) with respect to the Series B Notes, the date from which interest shall
accrue shall be the date on which interest was most recently paid on the Series
A Notes, or if there has been no Interest Payment Date relating to the Series A
Notes prior to the issuance of the Series B Notes, interest shall accrue from
the date hereof; (c) the Interest Payment Dates for the Notes on which interest
will be payable shall be May 1 and November 1 of each year, beginning November
1, 1999; the Regular Record Dates for the interest payable on the Notes on any
Interest Payment Date shall be April 15 with respect to the May 1 Interest
Payment Date and October 15 with respect to the November 1 Interest Payment
Date; (d) interest on overdue principal and premium, if any, from time to time,
shall be at a rate of 2% per annum in excess of the rate then in effect;
interest on overdue installments of interest and Special Interest, if any, from
time to time, shall be at the same rate, to the extent lawful; and the basis
upon which interest shall be calculated shall be that of a 360-day year
consisting of twelve 30-day months.
(5) The place where the principal of (and premium, if any) and
interest, including Special Interest, if any, with respect to and interest on
the Notes shall be payable and Notes may be surrendered for the registration of
transfer or exchange shall be the Corporate Trust Office of the Trustee which,
as of this writing, is located at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇, Attention: Corporate Trust Administration. The place where notices
or demands to or upon the Company in respect of the Notes and the Indenture may
be served shall be the Corporate Trust Office of the Trustee. In addition,
payment of interest (including any Special Interest) on any Note may, at the
option of the Company, be made by check mailed to the address of the Person in
whose name the Note is registered at the close of business on the Regular
Payment Date; provided, however, that all payments of principal, and premium
(including Special Interest, if any), if any, and interest on the Notes to
Holders of which have given wire instructions to the Company or the Paying Agent
at least 10 Business Days prior to the applicable payment date shall be made by
wire transfer to an account maintained by such Holder entitled thereto as
specified by such Holder in the instructions.
(6) Prior to August 1, 2004, the Notes will be subject to redemption,
at the option of the Company, in whole or in part, at any time, upon not less
than 30 not more than 60 days' notice mailed to each Holder of Notes to be
redeemed at such Holder's address appearing in the register of Holders in
amounts of $1,000 or an integral multiple of $1,000, at a redemption price equal
to the greater of (1) 100% of their principal amount or (2) the sum of the
present values of the remaining scheduled payments of principal and interest
thereon discounted to maturity on a semi-annual basis (assuming a 360-day year
consisting of twelve 30-day months) at the Treasury Yield plus 50 basis points,
plus in each case accrued but unpaid interest (including Special Interest) to
but excluding the Redemption Date (subject to the right of Holders of record on
the relevant Regular Record Date to receive interest due on an Interest Payment
Date that is on or prior to the Redemption Date).
Prior to August 1, 2002, the Company may redeem up to 331/3% in
aggregate principal amount of the Notes originally issued under the Indenture at
a redemption price equal to 110% of the principal amount of the Notes redeemed,
together with accrued but unpaid interest (including Special Interest) to the
Redemption Date (subject to the right of Holders of record on the relevant
Regular Record Date to receive interest due on an Interest Payment Date that is
on or prior to the Redemption Date) with the net proceeds of one or more Public
Offerings of Capital Stock (other than Redeemable Interests); provided that the
notice of redemption with respect to any such redemption is mailed within 30
days following the closing of the corresponding Public Offering.
On or after August 1, 2004, the Notes shall be subject to redemption,
in whole or in part, at the option of the Company at any time prior to maturity,
upon not less than 30 nor more than 60 days' notice mailed to each Holder of
Notes to be redeemed at such Holder's address appearing in the register of
Holders, in amounts of $1,000 or an integral multiple of $1,000, at the
following Redemption Prices, expressed as percentages of principal amount, plus
accrued but unpaid interest (including Special Interest) to but excluding the
Redemption Date (subject to the right of Holders of record on the relevant
Regular Record Date to receive interest due on an Interest Payment Date that is
on or prior to the Redemption Date), if redeemed during the twelve-month period
beginning on August 1, of each of the years indicated below:
Year Percentage
2004..........................................................105.000
2005..........................................................103.3333
2006..........................................................101.6667
2007 and thereafter...........................................100.000%
(7) Except as set forth in this Supplemental Indenture, the Notes shall
not be redeemable at the option of any Holder thereof, upon the occurrence of
any particular circumstances or otherwise. The Notes will not have the benefit
of any mandatory redemption or sinking fund.
(8) The Notes shall be issuable in denominations of $1,000.
(9) Payments of the principal of, Special Interest, if any, with
respect to and interest on the Notes shall be made in U.S. Dollars, and the
Notes shall be denominated in U.S. Dollars.
(10) The Trustee shall also be the Security Registrar and Paying Agent.
(11) The entire outstanding principal amount of and any accrued
interest, if any, on Notes shall be payable upon declaration of acceleration of
the maturity thereof pursuant to Article 5 of the Indenture.
(12) The Notes will be payable on the Stated Maturity Date in an amount
equal to the principal amount thereof, Special Interest, if any, plus any
accrued and unpaid interest accrued to the Stated Maturity Date.
(13) There shall be the following additions to the covenants set forth
in the Indenture with respect to the Notes, which shall be effective only for so
long as any of the Notes are Outstanding:
(a) Asset Dispositions.
The Company shall not make, and shall not permit any Restricted
Subsidiary to make, any Asset Disposition unless: (i) the Company (or
such Restricted Subsidiary, as the case may be) receives consideration
at the time of such disposition at least equal to the fair market value
of the shares or the assets disposed of, as determined in good faith by
its Board of Directors for any transaction or series of transactions
involving in excess of $25 million and not involving the sale of
equipment or other assets specifically contemplated by the Company's
capital expenditure budget previously approved by the Board of
Directors; (ii) at least 75% of the consideration received by the
Company or such Restricted Subsidiary consists of (u) cash or readily
marketable cash equivalents, (v) the assumption of Debt or other
liabilities reflected on the consolidated balance sheet of the Company
and its Restricted Subsidiaries in accordance with generally accepted
accounting principles (excluding Debt or any other liabilities
subordinate in right of payment to the Notes) and release from all
liability on such Debt or other liabilities assumed, (w) assets used
in, or stock or other ownership interests in a Person that upon the
consummation of such Asset Disposition becomes a Restricted Subsidiary
and will be principally engaged in, the business of the Company or any
of its Restricted Subsidiaries as such business is conducted
immediately prior to such Asset Disposition, (x) any securities, notes
or other obligations received by the Company or any such Restricted
Subsidiary from such transferee that are contemporaneously (subject to
ordinary settlement periods) converted by the Company or such
Restricted Subsidiary into cash or Cash Equivalents (to the extent of
cash and Cash Equivalents received), (y) any Designated Noncash
Consideration received pursuant to this clause (y) that is at the time
outstanding, not to exceed 15% of Consolidated Total Assets at the time
of the receipt of such Designated Noncash Consideration (with the fair
market value of each item of Designated Noncash Consideration being
measured at the time received and without giving effect to subsequent
changes in value), or (z) any combination thereof; and (iii) 100% of
the Net Available Proceeds from such Asset Disposition (including from
the sale of any marketable cash equivalents received in such Asset
Disposition) are applied by the Company or a Restricted Subsidiary as
follows (A) first, within one year from the later of the date of such
Asset Disposition or the receipt of such Net Available Proceeds, to
Senior Debt of the Company or its Restricted Subsidiaries then
outstanding that would require such application or which would prohibit
payments pursuant to Clause (B) below or Tranche D Term Loans; (B)
second, to the extent Net Available Proceeds are not required to be
applied as specified in Clause (A) above, to purchases of outstanding
Notes pursuant to an Offer to Purchase (to the extent such an offer is
not prohibited by the terms of the Bank Agreement then in effect) at a
purchase price equal to 100% of their principal amount plus accrued
interest to the date of purchase (subject to the rights of Holders of
record on the relevant Regular Record Date to receive interest due on
an Interest Payment Date that is on or prior to the purchase date); and
(C) third, to the extent of any remaining Net Available Proceeds
following completion of such Offer to Purchase, to any other use as
determined by the Company that is not otherwise prohibited by the
Indenture; provided further that the 75% limitation referred to in
clause (ii) above will not apply to any Asset Disposition if the
consideration received from the Asset Disposition, as determined in
good faith by the Company's Board of Directors, is equal to or greater
than what the after-tax proceeds would have been had the Asset
Disposition complied with the aforementioned 75% limitation.
Notwithstanding the foregoing, the Company shall not be required
to comply with the provisions described in Clause (iii) of the
preceding paragraph (i) if the Net Available Proceeds are invested or
committed to be invested within one year from the later of the date of
the related Asset Disposition or the receipt of such Net Available
Proceeds in assets that will be used in the business of the Company or
any of its Restricted Subsidiaries as such business is conducted prior
to such Asset Disposition (determined by the Board of Directors in good
faith) or (ii) to the extent the Company elects to redeem the Notes
with the Net Available Proceeds pursuant to any of the provisions of
Subsection (6) of this Supplemental Indenture of the Notes.
Notwithstanding the foregoing, the Company shall not be required
to comply with the requirements described in Clause (ii) of the second
preceding paragraph if the Asset Disposition is an Excepted
Disposition.
The Company shall mail the Offer Document for an Offer to
Purchase required pursuant to this subsection 13(a) within 30 days
after the date which is one year after the later of the date of
consummation of the Asset Disposition referred to in this subsection
13(a) or the receipt of the Net Available Proceeds from such Asset
Disposition. The aggregate principal amount of the Notes to be offered
to be purchased pursuant to the Offer to Purchase shall equal the Net
Available Proceeds required to be made available therefor pursuant to
Clause (iii)(B) of this subsection 13(a) (rounded down to the next
lowest integral multiple of $1,000). Each Holder shall be entitled to
tender all or any portion of the Notes owned by such Holder pursuant to
the Offer to Purchase, subject to the requirement that any portion of a
Note tendered must be tendered in an integral multiple of $1,000
principal amount.
(b) Change of Control.
Within 30 days following the date the Company becomes aware of
the consummation of a transaction that results in a Change of Control
(as defined below), the Company shall commence an Offer to Purchase all
Outstanding Notes, at a purchase price equal to 101% of their aggregate
principal amount plus accrued interest, if any, to the date of purchase
(subject to the rights of Holders of record on the relevant Regular
Record Date to receive interest due on an Interest Payment Date that is
on or prior to the date of purchase).
A "Change of Control" shall be deemed to have occurred in the
event that, after the date of this Supplemental Indenture, (i) so long
as the Company is a Subsidiary of AWI, (a) any Person, or any Persons
(other than a Permitted AWI Successor, as defined below), acting
together that would constitute a "group" (an "Group") for purposes of
Section 13(d) of the Exchange Act (an "AWI Group"), together with any
Affiliates or Related Persons thereof (other than any employee stock
ownership plan), beneficially own 50% or more of the total voting power
of all classes of Voting Stock of AWI, (b) any Person or AWI Group,
together with any Affiliates or Related Persons thereof, succeeds in
having sufficient of its nominees that not been approved by the
Continuing Directors elected to the Board of Directors of AWI such that
such nominees, when added to any existing director remaining on the
Board of Directors of AWI after such election that is an Affiliate or
Related Person of such Person or AWI Group, shall constitute a majority
of the Board of Directors of AWI or (c) there occurs any transaction or
series of related transactions (other than a merger, consolidation or
other transaction with a Related Business in which the shareholders of
AWI immediately prior to such transaction (or series) receive (I)
solely Voting Stock of AWI (or its successor or parent, as the case may
be), (II) cash, securities and other property in an amount which could
be paid by the Company as a Restricted Payment under this Supplemental
Indenture after giving pro forma effect to such transaction, or (III) a
combination of (I) and (II), and the beneficial owners of the Voting
Stock of AWI immediately prior to such transaction (or series) do not,
immediately after such transaction (or series), beneficially own Voting
Stock representing more than 50% of the total voting power of all
classes of Voting Stock of AWI (or in the case of a transaction (or
series) in which another entity becomes a successor to, or parent of,
AWI, of the successor or parent entity), (ii) if the Company is not a
Subsidiary of AWI, (a) any Person, or any Persons (other than a
Permitted Company Successor, as defined below), acting together that
would constitute a "group" for purposes of Section 13(d) of the
Exchange Act (an "Allied Group"), together with any Affiliates or
Related Persons thereof (other than any employee stock ownership plan)
beneficially own 50% or more of the total voting power of all classes
of Voting Stock of the Company, (b) any Person or Allied Group,
together with any Affiliates or Related Persons thereof, succeeds in
having sufficient of its nominees who have not been approved by the
Continuing Directors elected to the Board of Directors of the Company
such that such nominees, when added to any existing director remaining
on the Board of Directors of the Company after such election who is an
Affiliate or Related Person of such Person or Allied Group, shall
constitute a majority of the Board of Directors of the Company or, (c)
there occurs any transaction or series of related transactions other
than a merger, consolidation or other transaction with a Related
Business in which the shareholders of the Company immediately prior to
such transaction (or series) receive (I) solely Voting Stock of the
Company (or its successor or parent, as the case may be), (II) cash,
securities and other property in an amount which could be paid by the
Company as a Restricted Payment under this Supplemental Indenture after
giving pro forma effect to such transaction or (III) a combination of
(I) and (II), and the beneficial owners of the Voting Stock of the
Company immediately prior to such transaction (or series) do not,
immediately after such transaction (or series), beneficially own Voting
Stock representing more than 50% of the total voting power of all
classes of Voting Stock of the Company (or in the case of a transaction
(or series) in which another entity becomes a successor to the Company,
of the successor entity.
A "Permitted AWI Successor" means (i) an issuer, other than AWI,
of Voting Securities issued to the shareholders of AWI in a merger,
consolidation or other transaction permitted by clause (i)(c) of the
definition of Change of Control, (ii) Apollo and (iii) Blackstone.
A "Permitted Company Successor" means an issuer, other than the
Company, of Voting Securities issued to the shareholders of the Company
in a merger, consolidation or other transaction permitted by clause
(ii)(c) of the definition of Change of Control.
The Company shall comply with the requirements of Rule 14e-1
under the Exchange Act and any other securities laws and regulations
thereunder to the extent such laws and regulations are applicable in
connection with the repurchase of the Notes resulting from a Change of
Control.
Prior to complying with any of the provisions of this subsection
13(b), but in any event within 90 days following a Change of Control,
the Company shall either repay all outstanding Senior Debt or obtain
the requisite consents, if any, under all agreements governing
outstanding Senior Debt to permit the repurchase of Notes required by
this covenant. The Company shall publicly announce the results of the
Change of Control Offer on or as soon as practicable after the Purchase
Date.
The Company and the Trustee shall perform their respective
obligations specified in the Offer Document for the Offer to Purchase.
Prior to the Purchase Date, the Company shall (i) accept for payment
Notes or portions thereof tendered pursuant to the Offer to Purchase,
(ii) deposit with the Paying Agent (or, if the Company is acting as its
own Paying Agent, segregate and hold in trust as provided in Section
9.3 of the Indenture) money sufficient to pay the Purchase Price of all
Notes or portions thereof so accepted and (iii) deliver or cause to be
delivered to the Trustee all Notes so accepted together with an
Officers' Certificate stating the Notes or portions thereof accepted
for payment by the Company. The Paying Agent (or the Company if so
acting) shall promptly mail or deliver to Holders of Notes so accepted
payment in an amount equal to the Purchase Price for each $1,000 of
Notes so accepted, and the Company shall promptly execute a new Note or
Notes equal in principal amount to any unpurchased portion of the Note
surrendered as requested by the Holder, and the Guarantors shall
promptly execute their Guarantees to be endorsed thereon, and
thereafter the Trustee shall promptly authenticate and mail or deliver
to such Holders such new Note or Notes. Any Note not accepted for
payment shall be promptly mailed or delivered by the Company to the
Holder thereof. The Company shall publicly announce the results of the
Offer to Purchase on or as soon as practicable after the Purchase Date.
(c) Limitation on Consolidated Debt.
The Company shall not incur any Debt and shall not permit its
Restricted Subsidiaries to Incur any Debt or issue Preferred Stock
unless, immediately after giving effect to the Incurrence of such Debt
or issuance of such Preferred Stock and the receipt and application of
the proceeds thereof, the Consolidated EBITDA Coverage Ratio of the
Company for the four full fiscal quarters next preceding the Incurrence
of such Debt or issuance of such Preferred Stock, calculated on a pro
forma basis as if such Debt had been Incurred or such Preferred Stock
had been issued and the proceeds thereof had been received and so
applied at the beginning of the four full fiscal quarters, would be
greater than 2.0 to 1.0.
Without regard to the preceding limitations, the Company or any
Restricted Subsidiary of the Company may Incur the following Debt:
(i) Debt under the Bank Agreement in an aggregate
principal amount at any one time outstanding not to exceed the
amount permitted to be borrowed thereunder;
(ii) Debt evidenced by the Notes and the Guarantees;
(iii) Debt owed by the Company to any Restricted
Subsidiary or Debt owed by a Restricted Subsidiary to the
Company or to a Restricted Subsidiary; provided, however, that
in the event that either (x) the Company or the Restricted
Subsidiary to which such Debt is owed transfers or otherwise
disposes of such Debt to a Person other than the Company or
another Restricted Subsidiary or (y) such Restricted Subsidiary
ceases to be a Restricted Subsidiary, the provisions of this
Clause (iii) shall no longer be applicable to such Debt and such
Debt shall be deemed to have been incurred at the time of such
transfer or other disposition or at the time such Restricted
Subsidiary ceases to be a Restricted Subsidiary;
(iv) Debt outstanding on the date of this Supplemental
Indenture;
(v) Debt incurred in connection with an acquisition,
merger or consolidation transaction permitted under the
provisions of the Indenture described under Section 7.1 of the
Indenture (as superseded by subsection 15 of this Section 1.01
of this Supplemental Indenture), which Debt (A) was issued by a
Person prior to the time such Person becomes a Restricted
Subsidiary in such transaction, including by way of merger of
consolidation with the Company or another Restricted Subsidiary,
and was not issued in contemplation of such transaction or (B)
is issued by the Company or a Restricted Subsidiary to a seller
in connection with such transaction, in an aggregate amount for
all such Debt issued pursuant to the provisions of this
Supplemental Indenture described under this Clause (v) and then
outstanding does not exceed 7.5% of the Consolidated Total
Assets of the Company at the time of such Incurrence;
(vi) Debt consisting of Permitted Interest Rate or
Currency Protection Agreements;
(vii) Debt Incurred to renew, extend, refinance or
refund any outstanding Debt permitted in the preceding paragraph
or in Clauses (i) through (v) above or Incurred pursuant to this
clause (vii); provided, however, that such Debt does not exceed
the principal amount of Debt so renewed, extended, refinanced or
refunded (plus the amount of any premium and accrued interest,
plus customary fees, consent payments, expenses and costs
relating to the Debt so renewed, extended, refinanced or
refunded); and
(viii) Debt not otherwise permitted to be Incurred
pursuant to clauses (i) through (vii) above, which, in aggregate
amount, together with the aggregate amount of all other Debt
previously Incurred pursuant to the provisions of this Clause
(viii) and then outstanding, does not exceed 7.5% of the
Consolidated Total Assets of the Company at the time of such
Incurrence.
(d) Limitation on Restricted Payments.
The Company shall not, and shall not permit any Restricted
Subsidiary to, directly or indirectly, (i) declare or pay any dividend,
or make any distribution, of any kind or character (whether in cash,
property or securities) in respect of the Capital Stock of the Company
or any Restricted Subsidiary or to the holders thereof in their
capacity as such (excluding (a) any dividends or distributions to the
extent payable in shares of the Capital Stock of the Company (other
than Redeemable Interests) or in options, warrants or other rights to
acquire the Capital Stock of the Company (other than Redeemable
Interests), (b) dividends or distributions by a Restricted Subsidiary
to the Company or another Wholly Owned Restricted Subsidiary and (c)
the payment of pro rata dividends by a Restricted Subsidiary to holders
of both minority and majority interests in such Restricted Subsidiary),
(ii) purchase, redeem or otherwise acquire or retire for value (a) any
Capital Stock of the Company or any Capital Stock of or other ownership
interests in any Subsidiary or any Affiliate or Related Person of the
Company or (b) any options, warrants or rights to purchase or acquire
shares of Capital Stock of the Company or any Capital Stock of or other
ownership interests in any Subsidiary or any Affiliate or Related
Person of the Company, excluding, in each case of (a) and (b) of this
clause (ii), the purchase, redemption, acquisition or retirement by any
Restricted Subsidiary of any of its Capital Stock, other ownership
interests or options, warrants or rights to purchase such Capital Stock
or other ownership interests, in each case, owned by the Company or a
Wholly Owned Restricted Subsidiary, (iii) make any Investment that is
not a Permitted Investment or (iv) redeem, defease, repurchase, retire
or otherwise acquire or retire for value prior to any scheduled
maturity, repayment or sinking fund payment, Debt of the Company that
is subordinate in right of payment to the Notes (each of the
transactions described in Clauses (i) through (iv) being a "Restricted
Payment"), if:
(1) a Default or an Event of Default shall have
occurred and be continuing; or
(2) the Company would, at the time of such Restricted
Payment and after giving pro forma effect to such Restricted
Payment as if it had been made at the beginning of the most
recently ended four full fiscal quarter period for which
internal financial statements are available immediately
preceding the date of such Restricted Payment, not have been
permitted to Incur at least $1.00 of additional Debt pursuant to
the Consolidated EBITDA Coverage Ratio test set forth in the
first paragraph under subsection 13(c) of this Section 1.01 of
this Supplemental Indenture; or
(3) upon giving effect to such Restricted Payment, the
aggregate of all Restricted Payments (excluding Restricted
Payments permitted by Clauses (ii), (iii), (iv), (v) and (vii)
of the next succeeding paragraph) from the date of this
Supplemental Indenture (the amount so expended, if other than in
cash, determined in good faith by the Board of Directors)
exceeds the sum, without duplication, of: (a) 50% of the
aggregate Consolidated Net Income (or, in case Consolidated Net
Income shall be negative, less 100% of such deficit) for the
period (taken as one accounting period) from the beginning of
the first fiscal quarter commencing after the date of this
Supplemental Indenture to the end of the Company's most recently
ended fiscal quarter for which internal financial statements are
available at the time of such Restricted Payment; (b) 100% of
the aggregate net cash proceeds from the issuance and sale to
AWI of Capital Stock (other than Redeemable Interests) of the
Company and options, warrants or other rights to acquire Capital
Stock (other than Redeemable Interests and Debt convertible into
Capital Stock) of the Company and the principal amount of Debt
and Redeemable Interests of the Company that has been converted
into Capital Stock (other than Redeemable Interests) of the
Company after the date of this Supplemental Indenture, provided
that any such net proceeds received by the Company from an
employee stock ownership plan financed by loans from the Company
or a Subsidiary of the Company shall be included only to the
extent such loans have been repaid with cash on or prior to the
date of determination; (c) 50% of any dividends received by the
Company or a Wholly Owned Restricted Subsidiary after the date
of this Supplemental Indenture from an Unrestricted Subsidiary
of the Company; and (d) $300 million.
The preceding provisions shall not prohibit:
(i) the payment of any dividend within 60 days after
declaration of such dividend if at the declaration date such
payment would have complied with this covenant;
(ii) any refinancing or refunding of Debt permitted if
such refinancing or refunding is permitted pursuant to clause
(vii) of the second paragraph under subsection 13(c) of this
Section 1.01 of this Supplemental Indenture;
(iii) the purchase, redemption or other acquisition or
retirement for value of any Debt or Capital Stock of the Company
or any options, warrants or rights to purchase or acquire shares
of Capital Stock of the Company in exchange for, or out of the
net cash proceeds of, the substantially concurrent issuance or
sale (other than to a Restricted Subsidiary of the Company) of
Capital Stock (other than Redeemable Interests) of the Company;
provided that the amount of any such net cash proceeds that are
utilized for any such purchase, redemption or other acquisition
or retirement for value shall be excluded from Clause (3)(b) in
the preceding paragraph of this subsection 13(d);
(iv) the repurchase, redemption, defeasance,
retirement, refinancing or acquisition for value or payment of
principal of any subordinated Debt or Capital Stock through the
issuance of new subordinated Debt or Capital Stock of the
Company;
(v) the purchase or redemption of any Debt from Net
Available Proceeds to the extent permitted under subsection
13(a) of this Section 1.01 of this Supplemental Indenture;
(vi) payments pursuant to the Intercompany Agreements;
and
(vii) so long as no default or Event of Default has
occurred or is continuing, the payment of cash dividends on the
Senior Convertible Preferred Stock outstanding on the date of
this Supplemental Indenture or issued as dividends thereon to
the extent not prohibited by the Bank Agreement in effect from
time to time.
Upon the designation of any Restricted Subsidiary as an
Unrestricted Subsidiary, an amount equal to the greater of the book
value and the fair market value of all assets of such Restricted
Subsidiary at the end of the Company's most recently ended fiscal
quarter for which internal financial statements are available prior to
such designation shall be deemed to be a Restricted Payment at the time
of such designation for purposes of calculating the aggregate amount of
Restricted Payments (including the Restricted Payment resulting from
such designation) permitted under the second preceding paragraph of
this subsection 13(d) of this Supplemental Indenture.
(e) Dividend and Other Payment Restrictions Affecting
Subsidiaries.
The Company shall not, and shall not permit any Restricted
Subsidiary to, suffer to exist any consensual encumbrance or
restriction on the ability of any Restricted Subsidiary: (i) to pay,
directly or indirectly, dividends or make any other distributions in
respect to its Capital Stock or other ownership interests or pay any
Debt or other obligation owed to the Company or any other Restricted
Subsidiary; (ii) to make loans or advances to the Company or any other
Restricted Subsidiary; or (iii) to sell, lease or transfer any of its
property or assets to the Company or any Wholly Owned Restricted
Subsidiary.
The preceding restrictions shall not apply to any encumbrance or
restriction existing pursuant to: (a) the Notes, the Indenture
(including this Supplemental Indenture), the Guarantees or any other
agreement in effect on the date of this Supplemental Indenture, (b) the
Bank Agreement, including any Guarantees of or Liens securing the Debt
Incurred thereunder, (c) an agreement relating to any Debt Incurred by
such Subsidiary prior to the date on which such Subsidiary was acquired
by the Company and outstanding on such date and not incurred in
anticipation of becoming a Subsidiary, (d) an agreement which has been
entered into for the pending sale or disposition of all or
substantially all of the Capital Stock, other ownership interests or
assets of such Subsidiary, provided that such restriction terminates
upon consummation or abandonment of such disposition and upon
termination of such agreement, (e) customary non-assignment provisions
in leases and other agreements entered into in the ordinary course of
business, (f) any security agreement (including a capital lease)
securing Debt permitted to be Incurred under this Supplemental
Indenture that impose restrictions of the nature described in Clause
(iii) above on the property subject to the Lien of such security
agreement, (g) an agreement effecting a renewal, extension, refinancing
or refunding of Debt incurred pursuant to an agreement referred to in
Clause (a), (b) or (f) of this paragraph; provided, however, that the
provisions relating to such encumbrance or restriction contained in
such renewal, extension, refinancing or refunding agreement are no more
restrictive in any material respect than the provisions contained in
the agreement it replaces, as determined in good faith by the Board of
Directors; or (h) applicable corporate law or regulation relating to
the payment of dividends or distributions.
(f) Limitation on Liens.
Each of AWI and the Company shall not, and the Company shall not
permit any of its Restricted Subsidiaries to, create, Incur, assume or
otherwise cause or suffer to exist or become effective any Lien
securing Debt that is pari passu or subordinated in right of payment to
the Notes (other than Permitted Liens) upon any of their property or
assets, now owned or hereafter acquired to secure Debt of AWI, the
Company or any of its Restricted Subsidiaries.
(g) Transactions with Affiliates and Related Persons.
The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, make any payment to, or sell, lease,
transfer or otherwise dispose of any of its properties or assets to, or
purchase any property or assets from, or enter into or make or amend
any transaction, contract, agreement, understanding, loan, advance or
guarantee with, or for the benefit of, any Affiliate of the Company
(each of the preceding, an "Affiliate Transaction"), unless (a) such
Affiliate Transaction is on terms that are no less favorable to the
Company or such Restricted Subsidiary than those that would have been
obtained in a comparable transaction by the Company or such Restricted
Subsidiary with an unrelated Person and (b) the Company delivers to the
Trustee, with respect to any Affiliate Transaction or series of related
Affiliate Transactions involving aggregate consideration in excess of
$50,000,000, either (i) a resolution of the Board of Directors set
forth in an Officers' Certificate certifying that such Affiliate
Transaction complies with clause (a) above and that such Affiliate
Transaction has been approved by a majority of the disinterested
members of the Board of Directors or (ii) an opinion as to the fairness
to the Company or such Restricted Subsidiary, as the case may be, of
such Affiliate Transaction from a financial point of view issued by an
accounting, appraisal or investment banking firm of national standing.
The following items shall not be deemed to be Affiliate
Transactions and, therefore shall not be subject to the provisions of
the previous paragraph: (a) customary directors' fees, indemnification
or similar arrangements or any employment agreement or other
compensation plan or arrangement entered into by the Company or any of
its Restricted Subsidiaries in the ordinary course of business,
including ordinary course loans to employees not to exceed: (i)
$50,000,000 outstanding in the aggregate at any time and (ii)
$5,000,000 to any one employee, and consistent with the past practice
of the Company or such Restricted Subsidiary; (b) loans by the Company
and its Restricted Subsidiaries to employees of AWI or any of its
Subsidiaries in connection with management incentive plans not to
exceed $50,000,000 at any time outstanding; provided that such
limitation shall not apply to loans the proceeds of which are used to
purchase common stock of (i) the Company from the Company or (ii) AWI
from AWI if and to the extent that AWI utilizes the proceeds of such
loan to acquire Capital Stock (other than Redeemable Interests) of the
Company; (c) transactions between or among the Company and/or its
Restricted Subsidiaries; (d) payments of customary fees by the Company
or any of its Restricted Subsidiaries to investment banking firms and
financial advisors made for any financial advisory, financing,
underwriting or placement services or in respect of other investment
banking activities, including, without limitation, in connection with
acquisitions or divestitures which are approved by a majority of the
Board of Directors in good faith; (e) any agreement as in effect on the
date of this Supplemental Indenture or any amendment thereto (so long
as such amendment is not disadvantageous to the Holders of the Notes in
any material respect) or any transaction contemplated thereby; and (f)
Restricted Payments that are permitted by the provisions of subsection
13(d) of this Section 1.01 of this Supplemental Indenture.
(h) No Senior Subordinated Debt
The Company shall not incur, create, issue, assume, guarantee or
otherwise become liable for any Debt that is subordinate or junior in
right of payment to any Debt of the Company and senior in any respect
in right of payment to the Notes. No Guarantor shall incur, create,
issue, assume, guarantee or otherwise become liable for any Debt that
is subordinate or junior in right of payment to the Debt of such
Guarantor and senior in any respect in right of payment to such
Guarantor's Guarantee.
(i) Provision of Financial Information.
Whether or not AWI is required to be subject to Section 13(a) or
15(d) of the Exchange Act, or any successor provision thereto, the
Company (or AWI for so long as the Company is a Wholly-Owned Subsidiary
of AWI) shall file with the Commission the annual reports, quarterly
reports and other documents that the Company (or AWI for so long as the
Company is a Wholly-Owned Subsidiary of AWI) would have been required
to file with the Commission pursuant to such Section 13(a) or 15(d) or
any successor provision thereto if the Company (or AWI for so long as
the Company is a Wholly-Owned Subsidiary of AWI) were so required. Such
documents shall be filed with the Commission on or prior to the
respective dates (the "Required Filing Dates") by which the Company
would have been required so to file such documents if the Company were
so required. The Company shall also in any event (a) within 15 days of
each Required Filing Date file with the Trustee copies of the annual
reports, quarterly reports and other documents which the Company (or
AWI for so long as the Company is a Wholly-Owned Subsidiary of AWI)
filed with the Commission pursuant to such Section 13(a) or 15(d) or
any successor provisions thereto or would have been required to file
with the Commission pursuant to such Section 13(a) or 15(d) or any
successor provisions thereto if the Company (or AWI for so long as the
Company is a Wholly-Owned Subsidiary of AWI) were required to comply
with such Sections and (b) if filing such documents by the Company (or
AWI for so long as the Company is a Wholly-Owned Subsidiary of AWI)
with the Commission is not permitted under the Exchange Act, promptly
upon written request supply copies of such documents to any prospective
Holder.
(j) Designation of Restricted and Unrestricted Subsidiaries.
The Company at any time may designate any Person that is a
Subsidiary of the Company, or that becomes a Subsidiary of the Company
after the date of this Supplemental Indenture as an "Unrestricted
Subsidiary." Upon such designation, and until such Person ceases to be
an Unrestricted Subsidiary, such Person and each other Person that is
then or thereafter becomes a Subsidiary of such Person shall be deemed
to be an Unrestricted Subsidiary. In addition, the Company may at any
time terminate the status of any Unrestricted Subsidiary as an
Unrestricted Subsidiary. Upon such termination, such Subsidiary and
each other Subsidiary of the Company, if any, of which such Subsidiary
is a Subsidiary shall be a Restricted Subsidiary.
Notwithstanding the foregoing, no change in the status of a
Subsidiary of the Company from a Restricted Subsidiary to an
Unrestricted Subsidiary or from an Unrestricted Subsidiary to a
Restricted Subsidiary shall be effective, and no Person may otherwise
become a Restricted Subsidiary, if:
(i) in the case of any change in status of a Restricted
Subsidiary to an Unrestricted Subsidiary, the Restricted Payment
resulting from such change, would violate the provisions of the
first paragraph of subsection 13(d) of this Section 1.01 of this
Supplemental Indenture; or
(ii) such change or other event would otherwise result
in a Default or an Event of Default.
In addition and notwithstanding the foregoing, no Restricted
Subsidiary of the Company may become an Unrestricted Subsidiary, and
the status of any Unrestricted Subsidiary as an Unrestricted Subsidiary
shall be deemed to have been immediately terminated when:
(i) such Subsidiary (A) has outstanding Debt that is
Unpermitted Debt (as defined below) or (B) owns or holds any
Capital Stock of or other ownership interests in, or a Lien on
any property or other assets of, the Company or any of its
Restricted Subsidiaries; or
(ii) the Company or any other Restricted Subsidiary (A)
provides credit support for, or a Guarantee of, any debt of such
Subsidiary, including any undertaking, agreement or instrument
evidencing such Debt, or (B) is directly or indirectly liable on
any Debt of such Subsidiary.
Any termination of the status of an Unrestricted Subsidiary as
an Unrestricted Subsidiary pursuant to the preceding sentence
shall be deemed to result in a breach of this subsection 13(j)
in any circumstance in which the Company would not be permitted
to change the status of such Unrestricted Subsidiary to the
status of a Restricted Subsidiary pursuant to the provision
described in the preceding paragraph.
"Unpermitted Debt" means any Debt of a Subsidiary of the Company
if: (x) a default under such Debt (or under any instrument or
agreement pursuant to or by which such Debt is issued, secured
or evidenced) or any right that the holders of such Debt may
have to take enforcement action against such Subsidiary or its
property or other assets, would permit (whether or not after the
giving of notice or the lapse of time or both) the holders of
any Debt of the Company or any other Restricted Subsidiary to
declare the same due and payable prior to the date on which it
otherwise would have become due and payable or otherwise to take
any enforcement action against the Company or any such other
Restricted Subsidiary or (y) such Debt is secured by a Lien on
any property or other assets of the Company and any of its other
Restricted Subsidiaries.
Each Person that is or becomes a Subsidiary of the Company shall
be deemed to be a Restricted Subsidiary at all times when it is
a Subsidiary of the Company that is not an Unrestricted
Subsidiary. Each Person that is or becomes a Wholly Owned
Subsidiary of the Company shall be deemed to be a Wholly Owned
Restricted Subsidiary at all times when it is a Wholly Owned
Subsidiary of the Company that is not an Unrestricted
Subsidiary.
(14) (a) In addition to the Events of Default set forth in Section 5.1
of the Indenture, the Notes shall include the following additional Event of
Default designated as clause (j) of such Section, which shall be deemed an Event
of Default under Section 5.1 of the Indenture:
(j) failure to perform or comply with the provisions of Section
7.1 of the Indenture (as superseded by subsection 15 of Section 1.01
hereof) or the provisions of subsection 13(a) and 13(b) of this Section
1.01 of this Supplemental Indenture.
(b) In addition, Section 5.1 of the Indenture is further
supplemented by adding the following paragraph thereto:
"If an Event of Default occurs at any time by reason of any
willful action (or inaction) taken (or not taken) by or on behalf of
the Company with the intention of avoiding payment of the premium that
the Company would have had to pay if the Company then had elected to
redeem the Notes pursuant to Section 11 of the Indenture and paragraph
5(b) of the Notes, then, upon acceleration of the Notes, an equivalent
premium shall also become and be immediately due and payable, to the
extent permitted by law, anything in the Indenture or the Notes to the
contrary notwithstanding."
(15) Section 7.1 of the Indenture is hereby superseded by the
following in respect of the Notes:
The Company (i) may not consolidate with or merge into any Person; (ii)
may not permit any Person other than a Restricted Subsidiary to consolidate with
or merge into the Company; and (iii) may not, directly or indirectly, in one or
a series of transactions, transfer, convey, sell, lease or otherwise dispose of
all or substantially all of the properties and assets of the Company and its
Subsidiaries on a consolidated basis; unless, in each case of (i), (ii) and
(iii) above:
(1) immediately before and after giving effect to such
transaction (or series) and treating any Debt Incurred by the Company
or a Subsidiary of the Company as a result of such transaction (or
series) as having been incurred by the Company of such Subsidiary at
the time of the transaction (or series), no Default or Event of Default
shall have occurred and be continuing;
(2) in a transaction (or series) in which the Company does not
survive or in which the Company transfers, conveys, sells, leases or
otherwise disposes of all or substantially all of its properties and
assets, the successor entity is a corporation, partnership, limited
liability company or trust and is organized and validly existing under
the laws of the United States of America, any State thereof or the
District of Columbia and expressly assumes, by a supplemental indenture
executed and delivered to the Trustee in form satisfactory to the
Trustee, all the Company's obligations under the Indenture including
this Supplemental Indenture;
(3) if either (x) the Company or the successor entity would, at
the time of such transaction (or series) and after giving pro forma
effect thereto as if such transaction (or series) had occurred at the
beginning of the most recently ended four full fiscal quarter period
for which internal financial statements are available immediately
preceding the date of such transaction (or series), have been permitted
to Incur at least $1.00 of additional Debt pursuant to the Consolidated
EBITDA Coverage Ratio test set forth in the first paragraph under
subsection 13(c) of Section 1.01 hereof or (y) the Consolidated EBITDA
Coverage Ratio of the Company or the successor entity for the most
recently ended four full fiscal quarter period for which internal
financial statements are available immediately preceding the date of
such transaction (or series), calculated on a pro forma basis as if
such transaction (or series) had occurred at the beginning of such four
full fiscal quarter period, would be no less than such Consolidated
EBITDA Coverage Ratio, calculated without giving effect to such
transaction or series or any other transactions (or series) that is
subject to the provisions of this Supplemental Indenture described in
this paragraph and that occurred after the date that is twelve months
before the date of such transaction (or series);
(4) if, as a result of any such transaction, property or assets
of the Company or any Restricted Subsidiary of the Company would become
subject to a Lien prohibited by subsection 13(f) of this Section 1.01,
the Company or the successor entity will have secured the Notes as
required by such covenant; and
(5) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel as specified in the Indenture.
The Company shall deliver to the Trustee prior to the proposed
consolidation, merger, sale, transfer, lease or other disposition an Officers'
Certificate to the foregoing effect and an Opinion of Counsel stating that the
proposed consolidation, merger, sale, transfer, lease or other disposition and
such supplemental indenture comply with this Supplemental Indenture and that all
conditions precedent to the consummation of such transaction under this Section
7.1 have been met."
(16) Section 16.4 of the Indenture is hereby supplemented to include
the following as clause (d) of such Section in respect of the Notes:
"(d) In the event that any Subsidiary Guarantor ceases to be a
guarantor under, or to pledge any of its assets to secure obligations
under, the Bank Agreement, such Guarantor shall be released from all of
its obligations under its Guarantee endorsed on the Securities and
under this Article 16."
(17) The Notes shall not be issuable as Bearer Securities.
(18) Interest on any Note shall be payable only to the Person in whose
name that Note (or one or more predecessor Notes thereof) is registered at the
close of business on the Regular Record Date for such interest.
(19) Article 4 of the Indenture shall be applicable to the Notes.
(20) The Notes shall not be issuable in definitive form except under
the circumstances described in Section 2.1 of the Indenture.
(21) The Notes shall not be subordinated to any debt of the Company
other than Senior Debt, and shall constitute senior subordinated unsecured
obligations of the Company.
(22) For all purposes, the Series A Notes and the Series B Notes shall
be treated as one series of Securities under the Indenture.
(23) Section 8.2(e) of the Indenture is hereby modified and superseded
in its entirety as follows in respect of the Notes:
(e) Any amendment to, or waiver of, the provisions of Article 15
of the Indenture relating to subordination that adversely affects the
rights of the Holders of the Notes shall require the consent of the
Holders of at least 75% in aggregate principal amount of Outstanding
Notes.
(24) Article 2 of the Indenture is hereby modified and superseded as
follows in respect of the Notes:
SECTION 1.02. FORMS.
(1) Attached hereto as Exhibit A is a true and correct copy of the Form
of Note representing the Company's Notes.
(2) Attached hereto as Exhibit B is a true and correct copy of a
specimen certificate of transfer.
---------
(3) Attached hereto as Exhibit C is a true and correct copy of a
specimen certificate of exchange.
---------
(4) Attached hereto as Exhibit D is a true and correct copy of a
specimen certificate from acquiring institutional accredited investor.
(5) The form of Guarantee shall be as set forth in Section 2.3 of the
Indenture.
ARTICLE II.
TRANSFER AND EXCHANGE
Section 2.01. General. Sections 2.4, 3.2 and 3.3 of the Indenture
are hereby supplemented as follows:
(a) General. The Notes and the Trustee's certificate of authentication
shall be substantially in the form of Exhibit A hereto. The Notes may have
notations, legends or endorsements required by law, stock exchange rule or
usage. Each Note shall be dated the date of its authentication. The Notes shall
be in denominations of $1,000 and integral multiples thereof.
The terms and provisions contained in the Notes shall constitute, and
are hereby expressly made, a part of this Supplemental Indenture and the
Company, the Guarantors and the Trustee, by their execution and delivery of this
Supplemental Indenture, expressly agree to such terms and provisions and to be
bound thereby. However, to the extent any provision of any Note conflicts with
the express provisions of this Supplemental Indenture, the provisions of this
Supplemental Indenture shall govern and be controlling.
(b) Global Notes. Notes issued in global form shall be substantially in
the form of Exhibit A attached hereto (including the Global Note Legend thereon
and the "Schedule of Exchanges of Interests in the Global Note" attached
thereto). Notes issued in definitive form shall be substantially in the form of
Exhibit A attached hereto (but without the Global Note Legend thereon and
without the "Schedule of Exchanges of Interests in the Global Note" attached
thereto). Each Global Note shall represent such of the outstanding Notes as
shall be specified therein and each shall provide that it shall represent the
aggregate principal amount of outstanding Notes from time to time endorsed
thereon and that the aggregate principal amount of outstanding Notes represented
thereby may from time to time be reduced or increased, as appropriate, to
reflect exchanges and redemptions. Any endorsement of a Global Note to reflect
the amount of any increase or decrease in the aggregate principal amount of
outstanding Notes represented thereby shall be made by the Trustee or the
Custodian, at the direction of the Trustee, in accordance with instructions
given by the Holder thereof as required by Section 2.02 of this Supplemental
Indenture.
(c) Euroclear and Cedel Procedures Applicable. The provisions of the
"Operating Procedures of the Euroclear System" and "Terms and Conditions
Governing Use of Euroclear" and the "General Terms and Conditions of Cedel Bank"
and "Customer Handbook" of Cedel Bank shall be applicable to transfers of
beneficial interests in Global Notes that are held by Participants through
Euroclear or Cedel Bank.
Section 2.02. Registration, Transfer and Exchange. Section 3.5
of the Indenture is hereby modified and superseded in its entirety as follows
in respect of the Notes:
(a) Transfer and Exchange of Global Notes. A Global Note may not be
transferred as a whole except by the Depositary to a nominee of the Depositary,
by a nominee of the Depositary to the Depositary or to another nominee of the
Depositary, or by the Depositary or any such nominee to a successor Depositary
or a nominee of such successor Depositary. All Global Notes will be exchanged by
the Company for Definitive Notes if (i) the Company delivers to the Trustee
notice from the Depositary that it is unwilling or unable to continue to act as
Depositary or that it is no longer a clearing agency registered under the
Exchange Act and, in either case, a successor Depositary is not appointed by the
Company within 90 days after the date of such notice from the Depositary, (ii)
the Company in its sole discretion determines that the Global Notes (in whole
but not in part) should be exchanged for Definitive Notes and delivers a written
notice to such effect to the Trustee or (iii) there shall have occurred and be
continuing a Default or an Event of Default under the Indenture with respect to
the Notes. Upon the occurrence of either of the preceding events in (i), (ii) or
(iii) above, Definitive Notes shall be issued in such names as the Participants
and Indirect Participants and the Depositary shall instruct the Trustee. Global
Notes also may be exchanged or replaced, in whole or in part, as provided in
Sections 3.6 and 3.4 of the Indenture. Every Note authenticated and delivered in
exchange for, or in lieu of, a Global Note or any portion thereof, pursuant to
this Section 2.02 or Section 3.6 or 3.4 of the Indenture, shall be authenticated
and delivered in the form of, and shall be, a Global Note. A Global Note may not
be exchanged for another Note other than as provided in this Section 2.02(a),
however, beneficial interests in a Global Note may be transferred and exchanged
as provided in Section 2.02(b), (c) or (f) of this Supplemental Indenture.
(b) Transfer and Exchange of Beneficial Interests in the Global Notes.
The transfer and exchange of beneficial interests in the Global Notes shall be
effected through the Depositary, in accordance with the provisions of this
Supplemental Indenture and the Applicable Procedures. Beneficial interests in
the Restricted Global Notes shall be subject to restrictions on transfer
comparable to those set forth in this Supplemental Indenture to the extent
required by the Securities Act. Transfers of beneficial interests in the Global
Notes also shall require compliance with either subparagraph (i) or (ii) below,
as applicable, as well as one or more of the other following subparagraphs, as
applicable:
(i) Transfer of Beneficial Interests in the Same Global Note.
Beneficial interests in any Restricted Global Note may be transferred
to Persons who take delivery thereof in the form of a beneficial
interest in the same Restricted Global Note in accordance with the
transfer restrictions set forth in the Private Placement Legend;
provided, however, that prior to the expiration of the Restricted
Period, transfers of beneficial interests in the Regulation S Global
Note may not be made to a U.S. Person or for the account or benefit of
a U.S. Person (other than an Initial Purchaser.) Beneficial interests
in any Unrestricted Global Note may be transferred to Persons who take
delivery thereof in the form of a beneficial interest in an
Unrestricted Global Note. No written orders or instructions shall be
required to be delivered to the Registrar to effect the transfers
described in this Section 2.02(b)(i).
(ii) All Other Transfers and Exchanges of Beneficial Interests
in Global Notes. In connection with all transfers and exchanges of
beneficial interests that are not subject to Section 2.02(b)(i) above,
the transferor of such beneficial interest must deliver to the
Registrar either (A) (1) a written order from a Participant or an
Indirect Participant given to the Depositary in accordance with the
Applicable Procedures directing the Depositary to credit or cause to be
credited a beneficial interest in another Global Note in an amount
equal to the beneficial interest to be transferred or exchanged and (2)
instructions given in accordance with the Applicable Procedures
containing information regarding the Participant account to be credited
with such increase or (B) (1) a written order from a Participant or an
Indirect Participant given to the Depositary in accordance with the
Applicable Procedures directing the Depositary to cause to be issued a
Definitive Note in an amount equal to the beneficial interest to be
transferred or exchanged and (2) instructions given by the Depositary
to the Registrar containing information regarding the Person in whose
name such Definitive Note shall be registered to effect the transfer or
exchange referred to in (1) above. Upon consummation of an Exchange
Offer by the Company in accordance with Section 2.02(f) of this
Supplemental Indenture, the requirements of this Section 2.02(b)(ii)
shall be deemed to have been satisfied upon receipt by the Registrar of
the instructions contained in the Letter of Transmittal delivered by
the Holder of such beneficial interests in the Restricted Global Notes.
Upon satisfaction of all of the requirements for transfer or exchange
of beneficial interests in Global Notes contained in this Supplemental
Indenture and the Notes or otherwise applicable under the Securities
Act, the Trustee shall adjust the principal amount of the relevant
Global Note(s) pursuant to Section 2.02(h) of this Supplemental
Indenture.
(iii) Transfer of Beneficial Interests to Another Restricted
Global Note. A beneficial interest in any Restricted Global Note may be
transferred to a Person who takes delivery thereof in the form of a
beneficial interest in another Restricted Global Note if the transfer
complies with the requirements of Section 2.02(b)(ii) above and the
Registrar receives the following:
(A) if the transferee will take delivery in the form of
a beneficial interest in the 144A Global Note, then the
transferor must deliver a certificate in the form of Exhibit B
hereto, including the certifications in item (1) thereof;
(B) if the transferee will take delivery in the form of
a beneficial interest in the Regulation S Global Note, then the
transferor must deliver a certificate in the form of Exhibit B
hereto, including the certifications in item (2) thereof; and
(C) if the transferee will take delivery in the form of
a beneficial interest in the IAI Global Note, then the
transferor must deliver a certificate in the form of Exhibit B
hereto, including the certifications and certificates and
Opinion of Counsel required by item (3) thereof, if applicable.
(iv) Transfer and Exchange of Beneficial Interests in a
Restricted Global Note for Beneficial Interests in the Unrestricted
Global Note. A beneficial interest in any Restricted Global Note may be
exchanged by any Holder thereof for a beneficial interest in an
Unrestricted Global Note or transferred to a Person who takes delivery
thereof in the form of a beneficial interest in an Unrestricted Global
Note if the exchange or transfer complies with the requirements of
Section 2.02(b)(ii) above and:
(A) such exchange or transfer is effected pursuant to
the Exchange Offer in accordance with the applicable
Registration Rights Agreement and the Holder of the beneficial
interest to be transferred, in the case of an exchange, or the
transferee, in the case of a transfer, certifies in the
applicable Letter of Transmittal that it is not (1) a
broker-dealer, (2) a Person participating in the distribution of
the Exchange Notes or (3) a Person who is an affiliate (as
defined in Rule 144) of the Company;
(B) such transfer is effected pursuant to a Shelf
Registration Statement in accordance with the applicable
Registration Rights Agreement;
(C) such transfer is effected by a Broker-Dealer
pursuant to an Exchange Offer Registration Statement in
accordance with the applicable Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the Holder of such beneficial interest
in a Restricted Global Note proposes to exchange such
beneficial interest for a beneficial interest in an
Unrestricted Global Note, a certificate from such
Holder in the form of Exhibit C hereto, including the
certifications in item (1)(a) thereof; or
(2) if the Holder of such beneficial interest
in a Restricted Global Note proposes to transfer such
beneficial interest to a Person who shall take delivery
thereof in the form of a beneficial interest in an
Unrestricted Global Note, a certificate from such
Holder in the form of Exhibit B hereto, including the
certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if
the Registrar so requests or if the Applicable Procedures so
require, an Opinion of Counsel in form reasonably acceptable to
the Registrar to the effect that such exchange or transfer is in
compliance with the Securities Act and that the restrictions on
transfer contained in this Supplemental Indenture and in the
Private Placement Legend are no longer required in order to
maintain compliance with the Securities Act.
If any such transfer is effected pursuant to subparagraph (B) or (D)
above at a time when an Unrestricted Global Note has not yet been issued, the
Company shall issue and, upon receipt of an Authentication Order in accordance
with Section 3.3 of the Indenture, the Trustee shall authenticate one or more
Unrestricted Global Notes in an aggregate principal amount equal to the
aggregate principal amount of beneficial interests transferred pursuant to
subparagraph (B) or (D) above.
Beneficial interests in an Unrestricted Global Note cannot be exchanged
for, or transferred to Persons who take delivery thereof in the form of, a
beneficial interest in a Restricted Global Note.
(c) Transfer or Exchange of Beneficial Interests for Definitive Notes.
(i) Beneficial Interests in Restricted Global Notes to
Restricted Definitive Notes. If any Holder of a beneficial interest in
a Restricted Global Note proposes to exchange such beneficial interest
for a Restricted Definitive Note or to transfer such beneficial
interest to a Person who takes delivery thereof in the form of a
Restricted Definitive Note, then, upon receipt by the Registrar of the
following documentation:
(A) if the Holder of such beneficial interest in a
Restricted Global Note proposes to exchange such beneficial
interest for a Restricted Definitive Note, a certificate from
such Holder in the form of Exhibit C hereto, including the
certifications in item (2)(a) thereof;
(B) if such beneficial interest is being transferred to
a QIB in accordance with Rule 144A under the Securities Act, a
certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (1) thereof;
(C) if such beneficial interest is being transferred to
a Non-U.S. Person in an offshore transaction in accordance with
Rule 903 or Rule 904 under the Securities Act, a certificate to
the effect set forth in Exhibit B hereto, including the
certifications in item (2) thereof;
(D) if such beneficial interest is being transferred
pursuant to an exemption from the registration requirements of
the Securities Act in accordance with Rule 144 under the
Securities Act, a certificate to the effect set forth in Exhibit
B hereto, including the certifications in item (3)(a) thereof;
(E) if such beneficial interest is being transferred to
an Institutional Accredited Investor in reliance on an exemption
from the registration requirements of the Securities Act other
than those listed in subparagraphs (B) through (D) above, a
certificate to the effect set forth in Exhibit B hereto,
including the certifications, certificates and Opinion of
Counsel required by item (3) thereof, if applicable;
(F) if such beneficial interest is being transferred to
the Company or any of its Subsidiaries, a certificate to the
effect set forth in Exhibit B hereto, including the
certifications in item (3)(b) thereof; or
(G) if such beneficial interest is being transferred
pursuant to an effective registration statement under the
Securities Act, a certificate to the effect set forth in Exhibit
B hereto, including the certifications in item (3)(c) thereof,
the Trustee shall cause the aggregate principal amount of the
applicable Global Note to be reduced accordingly pursuant to Section
2.02(h) of this Supplemental Indenture, and the Company shall execute
and the Trustee shall authenticate and deliver to the Person designated
in the instructions a Restricted Definitive Note in the appropriate
principal amount. Any Restricted Definitive Note issued in exchange for
a beneficial interest in a Restricted Global Note pursuant to this
Section 2.02(c) shall be registered in such name or names and in such
authorized denomination or denominations as the Holder of such
beneficial interest shall instruct the Registrar through instructions
from the Depositary and the Participant or Indirect Participant. The
Trustee shall deliver such Restricted Definitive Notes to the Persons
in whose names such Notes are so registered. Any Restricted Definitive
Note issued in exchange for a beneficial interest in a Restricted
Global Note pursuant to this Section 2.02(c)(i) shall bear the Private
Placement Legend and shall be subject to all restrictions on transfer
contained therein.
(ii) Beneficial Interests in Restricted Global Notes to
Unrestricted Definitive Notes. A Holder of a beneficial interest in a
Restricted Global Note may exchange such beneficial interest for an
Unrestricted Definitive Note or may transfer such beneficial interest
to a Person who takes delivery thereof in the form of an Unrestricted
Definitive Note only if:
(A) such exchange or transfer is effected pursuant to
an Exchange Offer in accordance with the applicable Registration
Rights Agreement and the Holder of such beneficial interest, in
the case of an exchange, or the transferee, in the case of a
transfer, certifies in the applicable Letter of Transmittal that
it is not (1) a broker-dealer, (2) a Person participating in the
distribution of the Exchange Notes or (3) a Person who is an
affiliate (as defined in Rule 144) of the Company;
(B) such transfer is effected pursuant to a Shelf
Registration Statement in accordance with the applicable
Registration Rights Agreement;
(C) such transfer is effected by a Broker-Dealer
pursuant to the Exchange Offer Registration Statement in
accordance with the Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the Holder of such beneficial interest
in a Restricted Global Note proposes to exchange such
beneficial interest for a Definitive Note that does not
bear the Private Placement Legend, a certificate from
such Holder in the form of Exhibit C hereto, including
the certifications in item (1)(b) thereof; or
(2) if the Holder of such beneficial interest
in a Restricted Global Note proposes to transfer such
beneficial interest to a Person who shall take delivery
thereof in the form of a Definitive Note that does not
bear the Private Placement Legend, a certificate from
such Holder in the form of Exhibit B hereto, including
the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if
the Registrar so requests or if the Applicable Procedures so
require, an Opinion of Counsel in form reasonably acceptable to
the Registrar to the effect that such exchange or transfer is in
compliance with the Securities Act and that the restrictions on
transfer contained in this Supplemental Indenture and in the
Private Placement Legend are no longer required in order to
maintain compliance with the Securities Act.
If any such transfer is effected pursuant to subparagraph (B) or (D)
above at a time when an Unrestricted Global Note has not yet been issued, the
Company shall issue and, upon receipt of an Authentication Order in accordance
with Section 3.3 of the Indenture, the Trustee shall authenticate one or more
Unrestricted Global Notes in an aggregate principal amount equal to the
aggregate principal amount of beneficial interests transferred pursuant to
subparagraph (B) or (D) above.
(iii) Beneficial Interests in Unrestricted Global Notes to
Unrestricted Definitive Notes. If any Holder of a beneficial interest
in an Unrestricted Global Note proposes to exchange such beneficial
interest for a Definitive Note or to transfer such beneficial interest
to a Person who takes delivery thereof in the form of a Definitive
Note, then, upon satisfaction of the conditions set forth in Section
2.02(b)(ii) of this Supplemental Indenture, the Trustee shall cause the
aggregate principal amount of the applicable Global Note to be reduced
accordingly pursuant to Section 2.02(h) of this Supplemental Indenture,
and the Company shall execute and the Trustee shall authenticate and
deliver to the Person designated in the instructions a Definitive Note
in the appropriate principal amount. Any Definitive Note issued in
exchange for a beneficial interest pursuant to this Section
2.02(c)(iii) shall be registered in such name or names and in such
authorized denomination or denominations as the Holder of such
beneficial interest shall instruct the Registrar through instructions
from the Depositary and the Participant or Indirect Participant. The
Trustee shall deliver such Definitive Notes to the Persons in whose
names such Notes are so registered. Any Definitive Note issued in
exchange for a beneficial interest pursuant to this Section
2.02(c)(iii) shall not bear the Private Placement Legend.
(d) Transfer and Exchange of Definitive Notes for Beneficial Interests.
(i) Restricted Definitive Notes to Beneficial Interests in
Restricted Global Notes. If any Holder of a Restricted Definitive Note
proposes to exchange such Note for a beneficial interest in a
Restricted Global Note or to transfer such Restricted Definitive Notes
to a Person who takes delivery thereof in the form of a beneficial
interest in a Restricted Global Note, then, upon receipt by the
Registrar of the following documentation:
(A) if the Holder of such Restricted Definitive Note
proposes to exchange such Note for a beneficial interest in a
Restricted Global Note, a certificate from such Holder in the
form of Exhibit C hereto, including the certifications in item
(2)(b) thereof;
(B) if such Restricted Definitive Note is being
transferred to a QIB in accordance with Rule 144A under the
Securities Act, a certificate to the effect set forth in Exhibit
B hereto, including the certifications in item (1) thereof;
(C) if such Restricted Definitive Note is being
transferred to a Non-U.S. Person in an offshore transaction in
accordance with Rule 903 or Rule 904 under the Securities Act, a
certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (2) thereof;
(D) if such Restricted Definitive Note is being
transferred pursuant to an exemption from the registration
requirements of the Securities Act in accordance with Rule 144
under the Securities Act, a certificate to the effect set forth
in Exhibit B hereto, including the certifications in item (3)(a)
thereof;
(E) if such Restricted Definitive Note is being
transferred to an Institutional Accredited Investor in reliance
on an exemption from the registration requirements of the
Securities Act other than those listed in subparagraphs (B)
through (D) above, a certificate to the effect set forth in
Exhibit B hereto, including the certifications, certificates and
Opinion of Counsel required by item (3) thereof, if applicable;
(F) if such Restricted Definitive Note is being
transferred to the Company or any of its Subsidiaries, a
certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (3)(b) thereof; or
(G) if such Restricted Definitive Note is being
transferred pursuant to an effective registration statement
under the Securities Act, a certificate to the effect set forth
in Exhibit B hereto, including the certifications in item (3)(c)
thereof,
the Trustee shall cancel the Restricted Definitive Note, increase or
cause to be increased the aggregate principal amount of, in the case of
clause (A) above, the appropriate Restricted Global Note, in the case
of clause (B) above, the 144A Global Note, in the case of clause (C)
above, the Regulation S Global Note, and in all other cases, the IAI
Global Note.
(ii) Restricted Definitive Notes to Beneficial Interests in
Unrestricted Global Notes. A Holder of a Restricted Definitive Note may
exchange such Note for a beneficial interest in an Unrestricted Global
Note or transfer such Restricted Definitive Note to a Person who takes
delivery thereof in the form of a beneficial interest in an
Unrestricted Global Note only if:
(A) such exchange or transfer is effected pursuant to
the Exchange Offer in accordance with the applicable
Registration Rights Agreement and the Holder, in the case of an
exchange, or the transferee, in the case of a transfer,
certifies in the applicable Letter of Transmittal that it is not
(1) a broker-dealer, (2) a Person participating in the
distribution of the Exchange Notes or (3) a Person who is an
affiliate (as defined in Rule 144) of the Company;
(B) such transfer is effected pursuant to a Shelf
Registration Statement in accordance with the applicable
Registration Rights Agreement;
(C) such transfer is effected by a Broker-Dealer
pursuant to an Exchange Offer Registration Statement in
accordance with the applicable Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the Holder of such Definitive Notes
proposes to exchange such Notes for a beneficial
interest in the Unrestricted Global Note, a certificate
from such Holder in the form of Exhibit C hereto,
including the certifications in item (1)(c) thereof; or
(2) if the Holder of such Definitive Notes
proposes to transfer such Notes to a Person who shall
take delivery thereof in the form of a beneficial
interest in the Unrestricted Global Note, a certificate
from such Holder in the form of Exhibit B hereto,
including the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if
the Registrar so requests or if the Applicable Procedures so
require, an Opinion of Counsel in form reasonably acceptable to
the Registrar to the effect that such exchange or transfer is in
compliance with the Securities Act and that the restrictions on
transfer contained in this Supplemental Indenture and in the
Private Placement Legend are no longer required in order to
maintain compliance with the Securities Act.
Upon satisfaction of the conditions of any of the subparagraphs
in this Section 2.02(d)(ii), the Trustee shall cancel the Definitive
Notes and increase or cause to be increased the aggregate principal
amount of the Unrestricted Global Note.
(iii) Unrestricted Definitive Notes to Beneficial Interests in
Unrestricted Global Notes. A Holder of an Unrestricted Definitive Note
may exchange such Note for a beneficial interest in an Unrestricted
Global Note or transfer such Unrestricted Definitive Notes to a Person
who takes delivery thereof in the form of a beneficial interest in an
Unrestricted Global Note at any time. Upon receipt of a request for
such an exchange or transfer, the Trustee shall cancel the applicable
Unrestricted Definitive Note and increase or cause to be increased the
aggregate principal amount of one of the Unrestricted Global Notes.
If any such exchange or transfer from an Unrestricted Definitive
Note or a Restricted Definitive Note, as the case may be, to a
beneficial interest is effected pursuant to subparagraphs (ii)(B),
(ii)(D) or (iii) above at a time when an Unrestricted Global Note has
not yet been issued, the Company shall issue and, upon receipt of an
Authentication Order in accordance with Section 3.3 of the Indenture,
the Trustee shall authenticate one or more Unrestricted Global Notes in
an aggregate principal amount equal to the principal amount of
Unrestricted Definitive Notes or Restricted Definitive Notes, as the
case may be, so transferred.
(e) Transfer and Exchange of Definitive Notes for Definitive Notes.
Upon request by a Holder of Definitive Notes and such Holder's compliance with
the provisions of this Section 2.02(e), the Registrar shall register the
transfer or exchange of Definitive Notes. Prior to such registration of transfer
or exchange, the requesting Holder shall present or surrender to the Registrar
the Definitive Notes duly endorsed or accompanied by a written instruction of
transfer in form satisfactory to the Registrar duly executed by such Holder or
by its attorney, duly authorized in writing. In addition, the requesting Holder
shall provide any additional certifications, documents and information, as
applicable, required pursuant to the following provisions of this Section
2.02(e).
(i) Restricted Definitive Notes to Restricted Definitive Notes.
Any Restricted Definitive Note may be transferred to and registered in
the name of Persons who take delivery thereof in the form of a
Restricted Definitive Note if the Registrar receives the following:
(A) if the transfer will be made pursuant to Rule 144A
under the Securities Act, then the transferor must deliver a
certificate in the form of Exhibit B hereto, including the
certifications in item (1) thereof;
(B) if the transfer will be made pursuant to Rule 903
or Rule 904, then the transferor must deliver a certificate in
the form of Exhibit B hereto, including the certifications in
item (2) thereof; and
(C) if the transfer will be made pursuant to any other
exemption from the registration requirements of the Securities
Act, then the transferor must deliver a certificate in the form
of Exhibit B hereto, including the certifications, certificates
and Opinion of Counsel required by item (3) thereof, if
applicable.
(ii) Restricted Definitive Notes to Unrestricted Definitive
Notes. Any Restricted Definitive Note may be exchanged by the Holder
thereof for an Unrestricted Definitive Note or transferred to a Person
or Persons who take delivery thereof in the form of an Unrestricted
Definitive Note if:
(A) such exchange or transfer is effected pursuant to
an Exchange Offer in accordance with the applicable Registration
Rights Agreement and the Holder, in the case of an exchange, or
the transferee, in the case of a transfer, certifies in the
applicable Letter of Transmittal that it is not (1) a
broker-dealer, (2) a Person participating in the distribution of
the Exchange Notes or (3) a Person who is an affiliate (as
defined in Rule 144) of the Company;
(B) any such transfer is effected pursuant to a Shelf
Registration Statement in accordance with the applicable
Registration Rights Agreement;
(C) any such transfer is effected by a Broker-Dealer
pursuant to an Exchange Offer Registration Statement in
accordance with the applicable Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the Holder of such Restricted Definitive
Notes proposes to exchange such Notes for an
Unrestricted Definitive Note, a certificate from such
Holder in the form of Exhibit C hereto, including the
certifications in item (1)(d) thereof; or
(2) if the Holder of such Restricted Definitive
Notes proposes to transfer such Notes to a Person who
shall take delivery thereof in the form of an
Unrestricted Definitive Note, a certificate from such
Holder in the form of Exhibit B hereto, including the
certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if
the Registrar so requests, an Opinion of Counsel in form
reasonably acceptable to the Company to the effect that such
exchange or transfer is in compliance with the Securities Act
and that the restrictions on transfer contained in this
Supplemental Indenture and in the Private Placement Legend are
no longer required in order to maintain compliance with the
Securities Act.
(iii) Unrestricted Definitive Notes to Unrestricted Definitive
Notes. A Holder of Unrestricted Definitive Notes may transfer such
Notes to a Person who takes delivery thereof in the form of an
Unrestricted Definitive Note. Upon receipt of a request to register
such a transfer, the Registrar shall register the Unrestricted
Definitive Notes pursuant to the instructions from the Holder thereof.
(f) Exchange Offer. Upon the occurrence of an Exchange Offer in
accordance with the applicable Registration Rights Agreement, the Company shall
issue and, upon receipt of an Authentication Order in accordance with Section
3.3, the Trustee shall authenticate (i) one or more Unrestricted Global Notes in
an aggregate principal amount equal to the principal amount of the beneficial
interests in the Restricted Global Notes tendered for acceptance by Persons that
certify in the applicable Letters of Transmittal that (x) they are not
broker-dealers, (y) they are not participating in a distribution of the Exchange
Notes and (z) they are not affiliates (as defined in Rule 144) of the Company,
and accepted for exchange in an Exchange Offer and (ii) Definitive Notes in an
aggregate principal amount equal to the principal amount of the Restricted
Definitive Notes accepted for exchange in an Exchange Offer. Concurrently with
the issuance of such Notes, the Trustee shall cause the aggregate principal
amount of the applicable Restricted Global Notes to be reduced accordingly, and
the Company shall execute and the Trustee shall authenticate and deliver to the
Persons designated by the Holders of Restricted Definitive Notes so accepted
Unrestricted Definitive Notes in the appropriate principal amount.
(g) Legends. The following legends shall appear on the face of all
Global Notes and Definitive Notes issued under this Supplemental Indenture
unless specifically stated otherwise in the applicable provisions of this
Supplemental Indenture.
(i) Private Placement Legend.
(A) Except as permitted by subparagraph (B) below, each
Global Note and each Definitive Note (and all Notes issued in
exchange therefor or substitution thereof) shall bear the legend
in substantially the following form:
"THIS NOTE (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED
UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED, SOLD,
PLEDGED OR OTHERWISE TRANSFERRED WITHIN THE UNITED STATES OR TO,
OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS, EXCEPT AS SET
FORTH IN THE NEXT SENTENCE. BY ITS ACQUISITION HEREOF OR OF A
BENEFICIAL INTEREST HEREIN, THE HOLDER:
(1) REPRESENTS THAT (A) IT IS A "QUALIFIED
INSTITUTIONAL BUYER" (as defined in Rule 144A under the
Securities Act) (A "QIB"), (B) IT HAS ACQUIRED THIS
NOTE IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH
REGULATION S UNDER THE SECURITIES ACT OR (C) IT IS AN
INSTITUTIONAL "ACCREDITED INVESTOR" (as defined in Rule
501(a)(1), (2), (3) or (7) of Regulation D under the
Securities Act) (AN "IAI"),
(2) AGREES THAT IT WILL NOT RESELL OR OTHERWISE
TRANSFER THIS NOTE EXCEPT (A) TO ALLIED NA OR ANY OF
ITS SUBSIDIARIES, (B) TO A PERSON WHOM THE SELLER
REASONABLY BELIEVES IS A QIB PURCHASING FOR ITS OWN
ACCOUNT OR FOR THE ACCOUNT OF A QIB IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) IN AN
OFFSHORE TRANSACTION MEETING THE REQUIREMENTS OF RULE
903 OR 904 OF THE SECURITIES ACT, (D) IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144 UNDER THE
SECURITIES ACT, (E) TO AN IAI THAT, PRIOR TO SUCH
TRANSFER, FURNISHES THE TRUSTEE A SIGNED LETTER
CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS
RELATING TO THE TRANSFER OF THIS NOTE (the form of
which can be obtained from the Trustee) AND, IF SUCH
TRANSFER IS IN RESPECT OF AN AGGREGATE PRINCIPAL AMOUNT
OF NOTES LESS THAN $250,000, AN OPINION OF COUNSEL
ACCEPTABLE TO ALLIED NA THAT SUCH TRANSFER IS IN
COMPLIANCE WITH THE SECURITIES ACT, (F) IN ACCORDANCE
WITH ANOTHER EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT (AND BASED UPON AN
OPINION OF COUNSEL ACCEPTABLE TO ALLIED NA) OR (G)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT AND, IN
EACH CASE, IN ACCORDANCE WITH THE APPLICABLE SECURITIES
LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER
APPLICABLE JURISDICTION AND
(3) AGREES THAT IT WILL DELIVER TO EACH PERSON
TO WHOM THIS NOTE OR AN INTEREST HEREIN IS TRANSFERRED
A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.
AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION" AND
"UNITED STATES" HAVE THE MEANINGS GIVEN TO THEM BY RULE 902 OF
REGULATION S UNDER THE SECURITIES ACT. THE INDENTURE CONTAINS A
PROVISION REQUIRING THE TRUSTEE TO REFUSE TO REGISTER ANY
TRANSFER OF THIS NOTE IN VIOLATION OF THE FOREGOING.
(B) Notwithstanding the foregoing, any Global Note or
Definitive Note issued pursuant to subparagraphs (b)(iv),
(c)(ii), (c)(iii), (d)(ii), (d)(iii), (e)(ii), (e)(iii) or (f)
to this Section 2.02 (and all Notes issued in exchange therefor
or substitution thereof) shall not bear the Private Placement
Legend.
(ii) Global Note Legend. Each Global Note shall bear a legend in
substantially the following form:
"THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED
IN THE INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY
FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT
TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT
(I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE
REQUIRED PURSUANT TO SECTION 3.6 OF THE INDENTURE, (II) THIS
GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT
TO SECTION 3.5 OF THE INDENTURE, (III) THIS GLOBAL NOTE MAY BE
DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION
3.9 OF THE INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE
TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN
CONSENT OF ALLIED NA."
(h) Cancellation and/or Adjustment of Global Notes. At such time as all
beneficial interests in a particular Global Note have been exchanged for
Definitive Notes or a particular Global Note has been redeemed, repurchased or
canceled in whole and not in part, each such Global Note shall be returned to or
retained and canceled by the Trustee in accordance with Section 3.9 of the
Indenture. At any time prior to such cancellation, if any beneficial interest in
a Global Note is exchanged for or transferred to a Person who will take delivery
thereof in the form of a beneficial interest in another Global Note or for
Definitive Notes, the principal amount of Notes represented by such Global Note
shall be reduced accordingly and an endorsement shall be made on such Global
Note by the Trustee or by the Depositary at the direction of the Trustee to
reflect such reduction; and if the beneficial interest is being exchanged for or
transferred to a Person who will take delivery thereof in the form of a
beneficial interest in another Global Note, such other Global Note shall be
increased accordingly and an endorsement shall be made on such Global Note by
the Trustee or by the Depositary at the direction of the Trustee to reflect such
increase.
(i) General Provisions Relating to Transfers and Exchanges.
(i) To permit registrations of transfers and exchanges, the
Company shall execute and the Trustee shall authenticate Global Notes
and Definitive Notes upon the Company's order or at the Registrar's
request.
(ii) No service charge shall be made to a Holder of a beneficial
interest in a Global Note or to a Holder of a Definitive Note for any
registration of transfer or exchange, but the Company may require
payment of a sum sufficient to cover any transfer tax or similar
governmental charge payable in connection therewith (other than any
such transfer taxes or similar governmental charge payable upon
exchange or transfer pursuant to Sections 3.4, 8.6 and 11.7 of the
Indenture and subsections 13(a) and 13(b) of Section 1.01 of this
Supplemental Indenture).
(iii) The Registrar shall not be required to register the
transfer of or exchange any Note selected for redemption in whole or in
part, except the unredeemed portion of any Note being redeemed in part.
(iv) All Global Notes and Definitive Notes issued upon any
registration of transfer or exchange of Global Notes or Definitive
Notes shall be the valid obligations of the Company, evidencing the
same debt, and entitled to the same benefits of the Indenture, as the
Global Notes or Definitive Notes surrendered upon such registration of
transfer or exchange.
(v) The Company shall not be required (A) to issue, to register
the transfer of or to exchange any Notes during a period beginning at
the opening of business 15 days before the day of any selection of
Notes for redemption under Section 11.3 of the Indenture and ending at
the close of business on the day of selection, (B) to register the
transfer of or to exchange any Note so selected for redemption in whole
or in part, except the unredeemed portion of any Note being redeemed in
part or (C) to register the transfer of or to exchange a Note between a
record date and the next succeeding Interest Payment Date.
(vi) Prior to due presentment for the registration of a transfer
of any Note, the Trustee, any Agent and the Company may deem and treat
the Person in whose name any Note is registered as the absolute owner
of such Note for the purpose of receiving payment of principal of and
interest on such Notes and for all other purposes, and none of the
Trustee, any Agent or the Company shall be affected by notice to the
contrary.
(vii) The Trustee shall authenticate Global Notes and Definitive
Notes in accordance with the provisions of Section 3.3 of the
Indenture.
(viii) All certifications, certificates and Opinions of Counsel
required to be submitted to the Registrar pursuant to this Section 2.02
to effect a registration of transfer or exchange may be submitted by
facsimile.
ARTICLE III.
DEFINITIONS
Section 3.03. Additional definitions. In addition to the definitions
set forth in Article I of the Indenture, the Notes shall include the following
additional definitions, which, in the event of a conflict with the definition of
terms in the Indenture the definitions in this Supplemental Indenture, shall
control:
"144A Global Note" means a global note substantially in the form
of Exhibit A hereto bearing the Global Note Legend and the Private
Placement Legend and deposited with or on behalf of, and registered in
the name of, the Depositary or its nominee that will be issued in a
denomination equal to the outstanding principal amount of the Notes
sold in reliance on Rule 144A.
"Acquired Business" means (a) any Person at least a majority of
the capital stock or other ownership interests of which is acquired
after the date hereof by the Company or a Subsidiary of the Company and
(b) any assets constituting a discrete business or operating unit
acquired on or after the date hereof by the Company or a Subsidiary of
the Company.
"Allied Waste Group" means, collectively, AWI, the Company, and
their respective subsidiaries, and a "member" of the AWI Waste Group
means AWI, the Company and each of their respective subsidiaries.
"Applicable Procedures" means, with respect to any transfer or
exchange of or for beneficial interests in any Global Note, the rules
and procedures of the Depository, Euroclear and Cedel that apply to
such transfer or exchange.
"Apollo" means Apollo Management IV, L.P. or its Permitted
Transferees (exclusive of the Allied Waste Group).
"Asset Disposition" by any Person that is the Company or any
Restricted Subsidiary means any transfer, conveyance, sale, lease or
other disposition by the Company or any of its Restricted Subsidiaries,
including a consolidation or merger or other sale of any Restricted
Subsidiary with, into or to another Person in a transaction in which
the Restricted Subsidiary ceases to be a Restricted Subsidiary of such
Person, of (i) shares of Capital Stock, other than directors'
qualifying shares, or other ownership interests of a Restricted
Subsidiary, (ii) the property or assets of such Person or any
Restricted Subsidiary representing a division or line or business, or
(iii) other assets or rights of such Person or any Restricted
Subsidiary outside of the ordinary course of business. Notwithstanding
the preceding, the following items shall not be deemed to be an Asset
Disposition (x) a disposition by a Subsidiary of such Person to such
Person or a Restricted Subsidiary or by such Person to a Restricted
Subsidiary, (y) the disposition of all or substantially all of the
assets of the Company in a manner permitted pursuant to the provisions
of Article 7 of the Indenture (as superseded by subsection 15 of
Section 1.01 hereof) of the Company and (z) any disposition that
constitutes a Restricted Payment or Permitted Investment that is
permitted pursuant to the provisions of subsection 13(d) of Section
1.01 of this Supplemental Indenture.
"AWI" means Allied Waste Industries, Inc.
"Bank Agreement" means the credit agreement of the Company dated
July 21, 1999, as amended, among the Company, AWI, certain lenders
party thereto, The Chase Manhattan Bank, DLJ Capital Funding, Inc., and
Citicorp USA, Inc., as agents, or any bank credit agreement that
replaces, amends, supplements, restates or renews such credit
agreement.
"Blackstone" means the collective reference to (i) Blackstone
Capital Partners III Merchant Banking Fund L.P., a Delaware limited
partnership, Blackstone Capital Partners II Merchant Banking Fund L.P.,
a Delaware limited partnership, Blackstone Offshore Capital Partners
III L.P., a Cayman Islands limited partnership, Blackstone Offshore
Capital Partners II L.P., a Cayman Islands limited partnership,
Blackstone Family Investment Partnership III L.P., a Delaware limited
partnership, and Blackstone Family Investment Partnership II L.P., a
Cayman Islands limited partnership (each of the foregoing, a
"Blackstone Fund") and (ii) each Affiliate of any Blackstone Fund that
is not an operating company or Controlled by an operating company and
each general partner of any Blackstone Fund or any Blackstone Affiliate
who is a partner or employee of The Blackstone Group L.P.
"Bankruptcy Law" means Title 11, U.S. Code or any similar
federal or state law for the relief of debtors.
"BFI" means ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ Industries, Inc., a Delaware
corporation.
"Broker-Dealer" has the meaning set forth in the Registration
Rights Agreement.
"Capital Lease Obligation" of any Person means the obligation to
pay rent or other payment amounts under a lease of, or other
arrangements conveying the right to use, real or personal property of
such Person which is required to be classified and accounted for as a
capital lease or a liability on a balance sheet of such Person in
accordance with generally accepted accounting principles. The stated
maturity of such obligation shall be the date of the last payment of
rent or any other amount due under such lease prior to the first date
upon which such lease may be terminated by the lessee without payment
of a penalty. The principal amount of such obligation shall be the
capitalized amount of such obligation that would appear on a balance
sheet of such Person in accordance with generally accepted accounting
principles.
"Capital Stock" of any Person means any and all shares,
interests, participations or other equivalents, however designated, of
corporate stock or other equity participations, including partnership
interests, whether general or limited, of such Person.
"Cash Equivalents" means (i) United States dollars, (ii)
securities either issued directly or fully guaranteed or insured by the
government of the United States of America or any agency or
instrumentality thereof having maturities of not more than one year,
(iii) time deposits and certificates of deposit, demand deposits and
banker's acceptances having maturities of not more than one year from
the date of deposit, of any domestic commercial bank having capital and
surplus in excess of $500 million, (iv) demand deposits made in the
ordinary course of business and consistent with the Company's customary
cash management policy in any domestic office of any commercial bank
organized under the laws of the United States of America or any State
thereof, (v) insured deposits issued by commercial banks of the type
described in Clause (iv) above, (vi) mutual funds whose investment
guidelines 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 ▇▇▇▇▇'▇ Investors Services, Inc., and in each
case maturing within 360 days.
"Cedel" means Cedel Bank, SA.
"Common Stock" of any Person means Capital Stock of such Person
that does not rank prior to the payment of dividends or as of the
distribution of assets upon any voluntary liquidation, dissolution or
winding up of such Person, to shares of Capital Stock or any other
class of such Person.
"Comparable Treasury Issue" means, on any date the United States
Treasury security selected by an Independent Investment Banker as
having a maturity comparable to the remaining term of the Notes on such
date that would be utilized, at the time of selection and in accordance
with customary financial practice, in pricing new issues of corporate
debt securities of a maturity comparable to the remaining term of such
Notes on such date. "Independent Investment Banker" means ▇▇▇▇▇▇▇▇▇,
Lufkin & ▇▇▇▇▇▇▇▇ Securities Corporation or if such firm is unwilling
or unable to select the Comparable Treasury Issue, an independent
investment banking institution of national standing appointed by the
Trustee.
"Comparable Treasury Price" means, with respect to any
Redemption Date (i) the average of the bid and asked prices for the
Comparable Treasury Issue (expressed in each case as a percentage of
its principal amount) on the third business day preceding such
Redemption Date, as set forth in the daily statistical release (or any
successor release) published by the Federal Reserve Bank of New York
and designated "Composite 3:30 p.m. Quotations for U.S. Government
Securities" or (ii) if such release (or any successor release) is not
published or does not contain such prices on such business day: (A) the
average of the Reference Treasury Dealer Quotations for such Redemption
Date after excluding the highest and lowest such Reference Treasury
Dealer Quotations, or (B) if the Trustee obtains fewer than four such
Reference Treasury Dealer Quotations, the average of all such
Quotations. "Reference Treasury Dealer Quotations" means, with respect
to each Reference Treasury Dealer and any Redemption Date, the average,
as determined by the Trustee, of the bid and asked prices for the
Comparable Treasury Issue (expressed in each case as a percentage of
its principal amount) quoted in writing to the Trustee by such
Reference Treasury Dealer at 5:00 p.m. on the third Business Day
preceding such Redemption Date.
"Consolidated EBITDA" of any Person means for any period the
Consolidated Net Income for such period increased by the sum of,
without duplication: (i) Consolidated Interest Expense of such Person
for such period; plus (ii) Consolidated Income Tax Expense of such
Person for such period; plus (iii) the consolidated depreciation and
amortization expense deducted in determining the Consolidated Net
Income of such Person for such period; plus (iv) the aggregate amount
of letter of credit fees accrued during such period; plus (v) all
non-cash or non-recurring charges during such period, including charges
for costs related to acquisitions, it being understood that (x)
non-cash non-recurring charges shall not include accruals for closure
and post-closure liabilities and (y) charges shall be deemed non-cash
charges until the period during which cash disbursements attributable
to such charges are made, at which point such charges shall be deemed
cash charges; provided that, for purposes of this clause (y), the
Company shall be required to monitor the actual cash disbursements only
for those non-cash charges that exceed $1,000,000 individually or that
exceed $10,000,000 in the aggregate in any fiscal year); plus (vi) all
cash charges attributable to the execution, delivery and performance of
the Indenture (including the Supplemental Indenture) or the Bank
Agreement; plus (vii) all non-recurring cash charges related to
acquisitions and financings, including amendments thereto; and minus
all non-cash non-recurring gains during such period to the extent
included in determining net operating income for such period.
Notwithstanding the preceding, the Consolidated Interest Expense,
Consolidated Income Tax Expense and consolidated depreciation and
amortization expense of a Consolidated Subsidiary of such Person shall
be added to the Consolidated Net Income pursuant to the foregoing: (x)
only to the extent and in the same proportion that the Consolidated Net
Income of such Consolidated Subsidiary was included in calculating the
Consolidated Net Income of such Person and (y) only to the extent that
the amount specified in Clause (x) is not subject to restrictions that
prevent the payment of dividends or the making of distributions of such
Person.
"Consolidated EBITDA Coverage Ratio" of any Person means for any
period the ratio of: (i) Consolidated EBITDA of such Person for such
period to (ii) the sum of: (A) Consolidated Interest Expense of such
Person for such period; plus (B) the annual interest expense, including
the amortization of debt discount, with respect to any Debt incurred or
proposed to be Incurred by such Person or its Consolidated Subsidiaries
since the beginning of such period to the extent not included in clause
(ii)(A), minus (C) Consolidated Interest Expense of such Person with
respect to any Debt that is no longer outstanding or that will no
longer be outstanding as a result of the transaction with respect to
which the Consolidated EBITDA Coverage Ratio is being calculated, to
the extent included within Clause (ii)(A); provided, however, that in
making such computation, the Consolidated Interest Expense of such
Person attributable to interest on any Debt bearing a floating interest
rate shall be computed on a pro forma basis as if the rate in effect on
the date of computation had been the applicable rate for the entire
period. Notwithstanding the foregoing, in the event such Person or any
of its Consolidated Subsidiaries has made acquisitions or dispositions
of assets not in the ordinary course of business (including any other
acquisitions of any other Persons by merger, consolidation or purchase
of Capital Stock) during or after such period, the computation of the
Consolidated EBITDA Coverage Ratio (and for the purpose of such
computation, the calculation of Consolidated Net Income, Consolidated
Interest Expense, Consolidated Income Tax Expense and Consolidated
EBITDA) shall be made on a pro forma basis as if the acquisitions or
dispositions had taken place on the first day of such period. In
determining the pro forma adjustments to Consolidated EBITDA to be made
with respect to any Acquired Business for periods prior to the
acquisition date thereof, actions taken by the Company and its
Restricted Subsidiaries prior to the first anniversary of the related
acquisition date that result in cost savings with respect to such
Acquired Business will be deemed to have been taken on the first day of
the period for which Consolidated EBITDA is being determined (with the
intent that such cost savings be effectively annualized by
extrapolation from the demonstrated cost savings since the related
acquisition date).
"Consolidated Income Tax Expense" of any Person means for any
period the consolidated provision for income taxes of such Person and
its Consolidated Subsidiaries for such period determined in accordance
with generally accepted accounting principles.
"Consolidated Interest Expense" of any Person means for any
period the consolidated interest expense included in a consolidated
income statement, net of interest income, of such Person and its
Consolidated Subsidiaries for such period determined in accordance with
generally accepted accounting principles, including without limitation
or duplication (or, to the extent not so included, with the addition
of): (i) the portion of any rental obligation in respect of any Capital
Lease Obligation allocable to interest expense in accordance with
generally accepted accounting principles; (ii) the amortization of Debt
discounts; (iii) any payments or fees with respect to letters of
credit, bankers' acceptances or similar facilities; (iv) the net amount
due and payable, or minus the net amount receivable, with respect to
any interest rate swap or similar agreement or foreign currency hedge,
exchange or similar agreement; (v) any Preferred Stock dividends
declared and paid or payable in cash; and (v) any interest capitalized
in accordance with generally accepted accounting principles.
"Consolidated Net Income" of any Person means for any period the
consolidated net income (or loss) of such Person and its Consolidated
Subsidiaries for such period determined in accordance with generally
accepted accounting principles; provided that the following shall be
excluded: (a) for purposes solely of calculating Consolidated Net
Income for purposes of clause (3)(a) of the second half of the first
paragraph of subsection 13(d) of Section 1.01 of this Supplemental
Indenture the net income (or loss) of any Person acquired by such
Person or a Subsidiary of such Person in a pooling-of-interests
transaction for any period prior to the date of such transaction, to
the extent such net income was distributed to shareholders of such
Person or used to purchase equity securities of such Person prior to
the date of such transaction, (b) the net income (but not net loss) of
any Consolidated Subsidiary of such Person that is subject to
restrictions that prevent the payment of dividends or the making of
distributions to such Person to the extent of such restrictions, (c)
the net income (or loss) of any Person that is not a Consolidated
Subsidiary of such Person except to the extent of the amount of
dividends or other distributions actually paid to such Person by such
other Person during such period, (d) gains or losses on asset
dispositions by such Person or its Consolidated Subsidiaries, (e) any
net income (loss) of a Consolidated Subsidiary that is attributable to
a minority interest in such Consolidated Subsidiary, (f) all
extraordinary gains and extraordinary losses that involve a present or
future cash payment, (g) all non-cash non-recurring charges during such
period, including charges for acquisition related costs, it being
understood that: (A) non-cash recurring charges shall not include
accruals for closure and post closure liabilities and (B) charges,
other than charges for the accruals referred to in (A) above, shall be
deemed non-cash charges until the period that cash disbursements
attributable to such charges are made, at which point such charges
shall be deemed cash charges and (h) the tax effect of any of the items
described in Clauses (a) through (g) above.
"Consolidated Subsidiaries" of any Person means all other
Persons that would be accounted for as consolidated Persons in such
Person's financial statements in accordance with generally accepted
accounting principles; provided, however, that, for any particular
period during which any Subsidiary of such Person was an Unrestricted
Subsidiary, "Consolidated Subsidiaries" will exclude such Subsidiary
for such period or portion of such period during which it was an
Unrestricted Subsidiary.
"Consolidated Total Assets" of any Person at any date means the
consolidated total assets of such Person and its Restricted
Subsidiaries at such date as determined on a consolidated basis in
accordance with generally accepted accounting principles.
"Continuing Directors" means, as of any date of determination
with respect to any Person, any member of the Board of Directors of
such Person that:
(1) was a member of such Board of Directors on the
date hereof; or
(2) was nominated for election or elected to such Board
of Directors with the approval of a majority of the Continuing
Directors who were members of such Board at the time of such
nomination or election.
"Custodian" means the Trustee, as custodian with respect to the
Notes in global form, or any successor entity thereto.
"Default" means an event that is, or with the passage of time or
the giving of notice or both would be an Event of Default.
"Definitive Note" means a certificated Note registered in the
name of the Holder thereof and issued in accordance with Section 2.02
of this Supplemental Indenture, substantially in the form of Exhibit A
hereto except that such Note shall not bear the Global Note Legend and
shall not have the "Schedule of Exchanges of Interests in the Global
Note" attached thereto.
"Depositary" means, with respect to the Notes issuable or issued
in whole or in part in global form, the Person specified in Section
3.1(b) of the Indenture as the Depositary with respect to the Notes,
and any and all successors thereto appointed as depositary hereunder
and having become such pursuant to the applicable provision of this
Supplemental Indenture.
"Designated Noncash Consideration" means: (1) the fair market
value of non-cash consideration received by the Company or one of its
Restricted Subsidiaries in connection with an Asset Disposition that is
so designated as Designated Noncash Consideration pursuant to an
Officers' Certificate, setting forth the basis of such valuation,
executed by the principal executive officer and the principal financial
officer of the Company, minus (2) the amount of cash or Cash
Equivalents received in connection with a sale of such Designated
Noncash Consideration.
"Designated Senior Debt" means:
(1) any Indebtedness outstanding under the Bank
Agreement; and
(2) after payment in full of all Obligations under the
Bank Agreement, any other Senior Debt permitted under this
Supplemental Indenture the principal amount of which is $100.0
million or more and that has been designated by the Company as
"Designated Senior Debt."
"Euroclear" means ▇▇▇▇▇▇ Guaranty Trust Company of New York,
Brussels office, as operator of the Euroclear system.
"Excepted Disposition" means a transfer, conveyance, sale, lease
or other disposition by the Company or any Restricted Subsidiary of any
asset of the Company or any Restricted Subsidiary the fair market value
of which itself does not exceed 2.5% of Consolidated Total Assets of
the Company and which, when aggregated with all other assets disposed
of in Excepted Dispositions in any fiscal year, does not exceed 5% of
Consolidated Total Assets of the Company.
"Exchange Notes" means the Notes issued in the Exchange Offer
pursuant to Section 2.02(f) of this Supplemental Indenture.
"Exchange Offer" has the meaning set forth in the Registration
Rights Agreement.
"Exchange Offer Registration Statement" has the meaning set
forth in the Registration Rights Agreement.
"GAAP" means generally accepted accounting principles set forth
in the opinions and pronouncements of the Accounting Principles Board
of the American Institute of Certified Public Accountants and
statements and pronouncements of the Financial Accounting Standards
Board or in such other statements by such other entity as have been
approved by a significant segment of the accounting profession, which
are in effect on the date hereof.
"Global Note Legend" means the legend set forth in Section
2.02(g)(ii), which is required to be placed on all Global Notes issued
under this Supplemental Indenture.
"Global Notes" means, individually and collectively, each of the
Restricted Global Notes and the Unrestricted Global Notes,
substantially in the form of Exhibit A hereto issued in accordance with
Section 2.01, 2.02(b)(iv), 2.02(d)(ii) or 2.02(f) of this Supplemental
Indenture.
"Guarantee" by any Person means any obligation, contingent or
otherwise, of such Person guaranteeing any Debt, or dividends or
distributions on any equity security, of any other Person (the "primary
obligor") in any manner, whether directly or indirectly, and including,
without limitation, any obligation of such Person: (i) to purchase or
pay, or advance or supply funds for the purchase or payment of, such
Debt or to purchase, or to advance or supply funds for the purchase of,
any security for the payment of such Debt, (ii) to purchase property,
securities or services for the purpose of assuring the holder of such
Debt of the payment of such Debt or (iii) to maintain working capital,
equity capital or other financial statement condition or liquidity of
the primary obligor so as to enable the primary obligor to pay such
Debt. "Guaranteed," "Guaranteeing" and "Guarantor" shall have meanings
correlative to the foregoing; provided, however, that the Guarantee by
any Person shall not include endorsements for such Person for
collection or deposit, in either case, in the ordinary course of
business.
"Holder" means a Person in whose name a Note is registered.
"IAI Global Note" means a Global Note bearing the Private
Placement Legend and held by an Institutional Accredited Investor.
"Indirect Participant" means a Person who holds a beneficial
interest in a Global Note through a Participant.
"Initial Purchasers" means, with respect to the Notes,
▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇ Securities Corporation, Chase Securities
Inc., ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc., CIBC World Markets, Credit Suisse
First Boston Corporation, Deutsche Banc Alex. ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ &
Co. Incorporated, ABN AMRO Incorporated, First Union Capital Markets
Corp., Scotia Capital Markets (USA) Inc., Credit Lyonnais Securities
(USA) Inc., Banc One Capital Markets, Inc. and BancBoston ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ Inc.
"Institutional Accredited Investor" means an institution that is
an "accredited investor" as defined in Rule 501(a)(1), (2), (3) or (7)
under the Securities Act, who are not also QIBs.
"Insurance Subsidiaries" means Reliant Insurance Company and
Indemnity Corporation, a Vermont corporation and a Subsidiary of the
Company, Global Indemnity Assurance, a Vermont corporation and a
Subsidiary of BFI and Commercial Reassurance Limited, a corporation
organized under the laws of the Republic of Ireland and a Subsidiary of
BFI.
"Intercompany Agreements" means the Management Agreements
between AWI and the Company dated November 15, 1996.
"Interest Rate or Currency Protection Agreement" of any Person
means any interest rate protection agreement (including, without
limitation, interest rate swaps, caps, floors, collars, derivative
instruments and similar agreements), and/or other types of interest
hedging agreements and any currency protection agreement (including
foreign exchange contracts, currency swap agreements or other currency
hedging arrangements).
"Investment" by any Person in any other Person means: (i) any
direct or indirect loan, advance or other extension of credit or
capital contribution to or for the account of such other Person, by
means of any transfer of cash or other property to any Person or any
payment for property or services for the account or use of any Person,
or otherwise, (ii) any direct or indirect purchase or other acquisition
of any Capital Stock, bond, note, debenture or other debt or equity
security or evidence of Debt, or any other ownership interest, issued
by such other Person, whether or not such acquisition is from such or
any other Person, (iii) any direct or indirect payment by such Person
on a Guarantee of any obligation of or for the account of such other
Person or any direct or indirect issuance by such Person of such a
Guarantee or (iv) any other investment of cash or other property by
such Person in or for the account of such other Person.
"Letter of Transmittal" means the letter of transmittal to be
prepared by the Company and sent to all Holders of the Notes for use by
such Holders in connection with the Exchange Offer.
"Lien" means, with respect to any property or assets, any
mortgage or deed of trust, pledge, hypothecation, assignment, deposit
arrangement, security interest, lien, charge, easement or title
exception, encumbrance, preference, priority or other security
agreement or preferential arrangement of any kind or nature whatsoever
on or with respect to such property or assets, including any
conditional sale or other title retention agreement having
substantially the same economic effect as any of the foregoing.
"Net Available Proceeds" from any Asset Disposition by any
Person that is the Company or any Restricted Subsidiary means cash or
readily marketable cash equivalent received, including by way of sale
or discounting of a note, installment receivable, or other receivable,
but excluding any other consideration received in the form of
assumption by the acquiree of Debt or other obligations relating to
such properties or assets or received in any other noncash form, from
such Asset Disposition by such Person, net of (i) all legal, title and
recording tax expenses, commissions and other fees and expenses
Incurred and all federal, state, provincial, foreign and local taxes
required to be accrued as a liability as a consequence of such Asset
Disposition, (ii) all payments made by such Person or its Restricted
Subsidiaries on any Debt that is secured by such assets in accordance
with the terms of any Lien upon or with respect to such assets or that
must, by the terms of such Debt or such Lien, or in order to obtain a
necessary consent to such Asset Disposition, or by applicable law, be
repaid out of the proceeds from such Asset Disposition, (iii) amounts
provided as a reserve by such Person or its Restricted Subsidiaries, in
accordance with generally accepted accounting principles, against
liabilities under any indemnification obligations to the buyer in such
Asset Disposition (except that, to the extent and at the time any such
amounts are released from any such reserve, such amounts shall
constitute Net Available Proceeds) and (iv) all distributions and other
payments made to minority interest holders in Restricted Subsidiaries
of such Person or joint ventures as a result of such Asset Disposition.
"Non-U.S. Person" means a Person who is not a U.S. Person.
"Offer Document" has the meaning specified in the definition of
"Offer to Purchase."
"Offer Expiration Date" has the meaning specified in the
definition of "Offer to Purchase."
"Notes" has the meaning assigned to it in the preamble to this
Supplemental Indenture.
"Offer to Purchase" means an offer, set forth in the Offer
Document sent by the Company by first class mail, postage prepaid, to
each Holder at his or her address appearing in the Note Register on the
date of the Offer Document, to purchase up to the principal amount of
Notes specified in such Offer Document at the purchase price (the
"Purchase Price") specified in such Offer Document (as determined
pursuant to this Supplemental Indenture). Unless otherwise required by
applicable law, the Offer Document shall specify the Offer Expiration
Date of the Offer to Purchase which shall be, subject to any contrary
requirements of applicable law, not less than 30 days or more than 60
days after the date of such Offer Document and the Purchase Date for
the purchase of Notes within five Business Days after the Offer
Expiration Date. The Offer Document shall be mailed by the Company or,
at the Company's request, by the Trustee in the name and at the expense
of the Company. The Offer Document shall contain information concerning
the business of the Company and its Subsidiaries which the Company in
good faith believes will enable such Holders to make an informed
decision with respect to the Offer to Purchase, which at a minimum will
include or incorporated by reference: (i) the most recent annual and
quarterly financial statements and "Management's Discussion and
Analysis of Financial Condition and Results of Operations" contained in
the documents required to be filed with the Trustee pursuant to
subsection 13(i) of Section 1.01 of this Supplemental Indenture, which
requirements may be satisfied by delivery of such documents together
with the Offer Document, and (ii) any other information required by
applicable law to be included in the Offer Document. The Offer Document
shall contain all instructions and materials necessary to enable
Holders to tender Notes pursuant to the Offer to Purchase. The Offer
Document shall also state:
(1) the Section of this Supplemental Indenture pursuant to
which the Offer to Purchase is being made;
(2) the Offer Expiration Date and the Purchase Date;
(3) the aggregate principal amount of the Outstanding Notes
offered to be purchased by the Company pursuant to the Offer to
Purchase (including, if less than 100%, the manner by which such amount
has been determined as required by this Supplemental Indenture) (the
"Purchase Amount");
(4) the purchase price to be paid by the Company for each $1,000
aggregate principal amount of Notes accepted for payment (as specified
pursuant to this Supplemental Indenture);
(5) that the Holder may tender all or any portion of the Notes
registered in the name of such Holder and that any portion of a Note
tendered must be tendered in an integral multiple of $1,000 principal
amount;
(6) the place or places where Notes are to be surrendered for
tender pursuant to the Offer to Purchase;
(7) that interest on any Note not tendered or tendered but not
purchased by the Company pursuant to the Offer to Purchase will
continue to accrue;
(8) that on the Purchase Date the purchase price will become due
and payable upon each Note accepted for payment pursuant to the Offer
to Purchase and that interest thereon shall cease to accrue on and
after the Purchase Date;
(9) that each Holder electing to tender a Note pursuant to the
Offer to Purchase will be required to surrender such Note at the place
or places specified in the Offer Document prior to the close of
business on the Offer Expiration Date (such Note being, if the Company
or the Trustee so requires, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to the Company and
the Trustee duly executed by, the Holder thereof or his attorney duly
authorize in writing and bearing appropriate signature guarantees);
(10) that Holders will be entitled to withdraw all or any
portion of Notes tendered if the Company (or its Paying Agent)
receives, not later than the close of business on the Offer Expiration
Date, a telegram, telex, facsimile transmission or letter setting forth
the name of the Holder, the principal amount of the Note the Holder
tendered and a statement that such Holder is withdrawing all or a
portion of his tender;
(11) that (a) if Notes in an aggregate principal amount less
than or equal to the Purchase Amount are duly tendered and not
withdrawn pursuant to the Offer to Purchase, the Company shall purchase
all such Notes and (b) if Notes in an aggregate principal amount in
excess of the Purchase Amount are tendered and not withdrawn pursuant
to the Offer to Purchase, the Company shall purchase Notes having an
aggregate principal amount equal to the Purchase Amount on a pro rata
basis (with such adjustments as may be deem appropriate so that only
Securities in denominations of $1,000 or integral multiples thereof
shall be purchased); and
(12) that in the case of any Holder whose Note is purchased only
in part, the Company shall execute, and the Trustee shall authenticate
and deliver to the Holder of such Note without service charge, a new
Note or Notes, of any authorized denomination as requested by such
Holder, in an aggregate amount equal to and in exchange for the
unpurchased portion of the Security so tendered.
Any Offer to Purchase shall be governed by and effected in accordance
with the Offer Document for such Offer to Purchase.
"pari passu" when used with respect to the ranking of any Debt
of any Person in relation to other Debt of such Person means that each
such Debt: (a) either (i) is not subordinated in right of payment to
any other Debt of such Person or (ii) is subordinate in right of
payment to the same Debt of such Person as is the other Debt and is so
subordinate to the same extent and (b) is not subordinate in right of
payment to the other Debt or to any Debt of such Person as to which the
other Debt is not so subordinate.
"Participant" means, with respect to the Depositary, Euroclear
or Cedel, a Person who has an account with the Depositary, Euroclear or
Cedel, respectively (and, with respect to DTC, shall include Euroclear
and Cedel).
"Permitted Interest Rate or Currency Protection Agreement" of
any Person means any Interest Rate or Currency Protection Agreement
entered into with one or more financial institutions in the ordinary
course of business that is designed to protect such Person against
fluctuations in interest rates or currency exchange rates with respect
to Debt incurred and which shall have a notional amount no greater than
the payments due with respect to the Debt being hedged thereby.
"Permitted Investment" means (i) Investments in the Company or
any Person that is, or as a consequence of such investment becomes, a
Restricted Subsidiary, (ii) securities either issued directly or fully
guaranteed or insured by the government of the United States of America
or any agency or instrumentality thereof having maturities of not more
than one year, (iii) time deposits and certificates of deposit, demand
deposits and banker's acceptances having maturities of not more than
one year from the date of deposit, of any domestic commercial bank
having capital and surplus in excess of $500 million, (iv) demand
deposits made in the ordinary course of business and consistent with
the Company's customary cash management policy in any domestic office
of any commercial bank organized under the laws of the United States of
America or any State thereof, (v) insured deposits issued by commercial
banks of the type described in Clause (iv) above, (vi) mutual funds
whose investment guidelines restrict such funds' investments primarily
to those satisfying the provisions of Clauses (i) through (iii) above,
(vii) repurchase obligations with a term of not more than 90 days for
underlying securities of the types described in Clauses (ii) and (iii)
above entered into with any bank meeting the qualifications specified
in Clause (iii) above, (viii) commercial paper (other than commercial
paper issued by an Affiliate or Related Person) rated A-1 or the
equivalent of such rating by Standard & Poor's Ratings Group or P-1 or
the equivalent of such rating by ▇▇▇▇▇'▇ Investors Services, Inc., and
in each case maturing within 360 days, (ix) receivables owing to the
Company or a Restricted Subsidiary of the Company if created or
acquired in the ordinary course of business and payable or
dischargeable in accordance with customary trade terms and extensions
of trade credit in the ordinary course of business, (x) any Investment
consisting of loans and advances to employees of the Company or any
Restricted Subsidiary for travel, entertainment, relocation or other
expenses in the ordinary course of business, (xi) any Investment
consisting of loans and advances by the Company or any Restricted
Subsidiary to employees, officers and directors of the Company or AWI,
in connection with management incentive plans not to exceed $50,000,000
at any time outstanding; provided, however, that to the extent the
proceeds thereof are used to purchase Capital Stock (other than
Redeemable Interests) of: (i) the Company from the Company or (ii) AWI
from AWI if AWI uses the proceeds thereof to acquire Capital Stock
(other than Redeemable Interests) of the Company, such limitation on
the amount of such Investments at any time outstanding shall not apply
with respect to such Investments, (xii) any Investment consisting of a
Permitted Interest Rate or Currency Protection Agreement, (xiii) any
Investment acquired by the Company or any of its Restricted
Subsidiaries (A) in exchange for any other Investment or accounts
receivable held by the Company or any such Restricted Subsidiary in
connection with or as a result of a bankruptcy, workout, reorganization
or recapitalization of the issuer of such other Investment or accounts
receivable or (B) as a result of a foreclosure by the Company or any of
its Restricted Subsidiaries with respect to any secured Investment or
other transfer of title with respect to any secured Investment in
default, (xiv) any Investment that constitutes part of the
consideration from any Asset Disposition made pursuant to, and in
compliance with, subsection 13(a) of Section 1.01 of this Supplemental
Indenture, (xv) Investments the payment for which consists exclusively
of Capital Stock (exclusive of Redeemable Interests) of the Company,
and (xvi) other Investments in an aggregate amount not to exceed 15% of
the Consolidated Total Assets of the Company outstanding at any time.
"Permitted Liens" means (i) Liens incurred after the date of
this Supplemental Indenture securing Debt of the Company that ranks
pari passu in right of payment to the Notes, if the Notes are secured
equally and ratably with such Debt; (ii) Liens in favor of the Company
or any Restricted Subsidiary; (iii) Liens on property of, or shares of
Stock or evidences of Debt of, a Person existing at the time such
Person is merged into or consolidated with the Company or any
Restricted Subsidiary of the Company, provided that such Liens were not
incurred in contemplation of such merger or consolidation and do not
extend to any assets other than those of the Person merged into or
consolidated with the Company or any Restricted Subsidiary; (iv) Liens
on property existing at the time of acquisition of such property by the
Company or any Restricted Subsidiary of the Company, provided that such
Liens were not incurred in contemplation of such acquisition; (v) Liens
existing on the date of this Supplemental Indenture; (vi) Liens for
taxes, assessments or governmental charges or claims that are not yet
delinquent or that are being contested in good faith by appropriate
proceedings promptly instituted and diligently concluded, provided that
any reserve or other appropriate provision as shall be required in
conformity with GAAP shall have been made therefor; (vii) Liens
securing Permitted Refinancing Debt where the Liens securing the
Permitted Refinancing Debt were permitted under this Supplemental
Indenture; (viii) landlords', carriers', warehousemen's, mechanics',
materialmen's, repairmen's or the like Liens arising by contract or
statute in the ordinary course of business and with respect to amounts
which are not yet delinquent or are being contested in good faith by
appropriate proceedings; (ix) pledges or deposits made in the ordinary
course of business (A) in connection with leases, performance bonds and
similar obligations, or (B) in connection with workers' compensation,
unemployment insurance and other social security legislation; (x)
easements, rights-of-way, restrictions, minor defects or irregularities
in title and other similar encumbrances which, in the aggregate, do not
materially detract from the value of the property subject thereto or
materially interfere with the ordinary conduct of the business of the
Company or such Restricted Subsidiary; (xi) any attachment or judgment
Lien that does not constitute an Event of Default; (xii) Liens in favor
of the Trustee for its own benefit and for the benefit of the Holders;
(xiii) any interest or title of a lessor pursuant to a lease
constituting a Capital Lease Obligation; (xiv) pledges or deposits made
in connection with acquisition agreements or letters of intent entered
into in respect of a proposed acquisition; (xv) Liens in favor of prior
holders of leases on property acquired by the Company or of sublessors
under leases on Company property; (xvi) Liens incurred or deposits made
to secure the performance of tenders, bids, leases, statutory or
regulatory obligations, banker's acceptances, surety and appeal bonds,
government contracts, performance and return-of-money bonds and other
obligations of a similar nature incurred in the ordinary course of
business (exclusive of obligations for the payment of borrowed money);
(xvii) Liens, including extensions and renewals thereof upon real or
personal property acquired after the date of the Supplemental
Indenture; provided that: (a) any such Lien is created solely for the
purpose of securing Debt incurred, in accordance with subsection 13(c)
of Section 1.01 of this Supplemental Indenture (1) to finance the cost
(including the cost of improvement or construction) of the item,
property or assets subject to such Lien, and such Lien is created prior
to, at the time of or within three months after the later of the
acquisition, the completion of construction or the commencement of full
operation of such property or (2) to refinance any Debt previously so
secured, (b) the principal amount of the Debt secured by such Lien does
not exceed 100% of such cost and (c) any such Lien shall not extend to
or cover any property or asset other than such item of property or
assets and any improvements on such item; (xviii) leases or subleases
granted to others that do not materially interfere with the ordinary
course of business of the Company and its Restricted Subsidiaries,
taken as a whole; (xix) Liens arising from filing Uniform Commercial
Code financing statements regarding leases; (xx) Liens on property of,
or on shares of stock or Debt of, any Person existing at the time such
Person becomes, or becomes a part of, any Restricted Subsidiary,
provided that such Liens do not extend to or cover any property or
assets of the Company or any Restricted Subsidiary other than the
property or assets acquired; (xxi) Liens encumbering deposits securing
Debt under Permitted Interest Rate Currency or Commodity Price
Agreements; (xxii) Liens arising out of conditional sale, title
retention, consignment or similar arrangements for the sale of goods
entered into by the Company or any of its Restricted Subsidiaries in
the ordinary course of business in accordance with the past practices
of the Company and its Restricted Subsidiaries; (xxiii) any renewal of
or substitution of any Liens permitted by any of the preceding clauses,
provided that (a) the Debt secured is not increased other than by the
amount of any premium and accrued interest, plus customary fees,
consent payments, expenses and costs related to such renewal or
substitution of Liens or the incurrence of any related refinancing of
Debt and (b) the Liens are not extended to any additional assets (other
than proceeds and accessions; (xxiv) Liens incurred in the ordinary
course of business of the Company or any Restricted Subsidiary of the
Company with respect to obligations that do not exceed $50 million at
any one time outstanding and that (a) are not incurred in connection
with the borrowing of money or the obtaining of advances or credit
(other than trade credit in the ordinary course of business) and (b) do
not in the aggregate materially detract from the value of the property
or materially impair the use thereof in the operation of business by
the Company or such Restricted Subsidiary; and (xxv) Liens on assets of
Unrestricted Subsidiaries that secure non-recourse Debt of Unrestricted
Subsidiaries. This definition does not authorize the incurrence of any
Debt not otherwise permitted by subsection 13(c) of Section 1.01 of
this Supplemental Indenture.
"Permitted Transferee" means, with respect to any Person: (i)
any Affiliate of such Person; (ii) any investment manager, investment
advisor, or constituent general partner of such Person; or (iii) any
investment fund, investment account, or investment entity that is
organized by such Person or its Affiliates and whose investment
manager, investment advisor, or constituent general partner is such
Person or a Permitted Transferee of such Person.
"Preferred Stock", as applied to the Capital Stock of any
Person, means Capital Stock of such Person of any class or classes
(however designated) that ranks prior, as to the payment of dividends
or as to the distribution of assets upon any voluntary or involuntary
liquidation, dissolution or winding up of such Person, to shares of
Capital Stock of any other class of such Person.
"Private Placement Legend" means the legend set forth in Section
2.02(g)(i) to be placed on all Notes issued under this Supplemental
Indenture except where otherwise permitted by the provisions of this
Supplemental Indenture.
"Public Offering" means any underwritten public offering of
Common Stock pursuant to a registration statement filed under the
Securities Act.
"Purchase Date" means a settlement for the purchase of Notes
within five Business Days after the Offer Expiration Date.
"QIB" means a "qualified institutional buyer" as defined in Rule
144A.
"Reference Treasury Dealer", means ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
Securities Corporation and its successors, provided, however, that if
any of the foregoing shall cease to be a primary U.S. Government
securities dealer in New York City (a "Primary Treasury Dealer"), the
Company shall substitute therefor another Primary Treasury Dealer.
"Reference Treasury Dealer Quotations" means, with respect to
each Reference Treasury Dealer and any redemption date, the average, as
determined by the Trustee, of the bid and asked prices for the
Comparable Treasury Issue, expressed in each case as a percentage of
its principal amount, quoted in writing to the Trustee by such
Reference Treasury Dealer at 5:00 p.m. on the third business day
preceding such Redemption Date.
"Registration Rights Agreement" means the Registration Rights
Agreement for the Notes, dated as of July 30, 1999, by and among the
Company and the other parties named on the signature pages thereof, as
such agreement may be amended, modified or supplemented from time to
time.
"Regulation S" means Regulation S promulgated under the
Securities Act.
"Regulation S Global Note" means a global Note bearing the
Private Placement Legend and deposited with or on behalf of the
Depositary and registered in the name of the Depositary or its nominee,
issued in a denomination equal to the outstanding principal amount of
the Notes initially sold in reliance on Rule 903 of Regulation S.
"Related Business" means a business substantially similar to the
business engaged in by the Company and its Subsidiaries on the date of
this Supplemental Indenture.
"Related Person" of any Person means, without limitation, any
other Person owning (a) 5% or more of the outstanding Common Stock of
such Person or (b) 5% or more of the Voting Stock of such Person.
"Restricted Definitive Note" means a Definitive Note bearing the
Private Placement Legend.
"Restricted Global Note" means a Global Note bearing the Private
Placement Legend.
"Restricted Period" means the 40-day restricted period as
defined in Regulation S.
"Rule 144" means Rule 144 promulgated under the Securities Act.
"Rule 144A" means Rule 144A promulgated under the Securities Act.
"Rule 903" means Rule 903 promulgated under the Securities Act.
"Rule 904" means Rule 904 promulgated the Securities Act.
"Senior Convertible Preferred Stock" means the senior
convertible preferred stock with an initial liquidation preference of
$1.0 billion issued pursuant to a Certificate of Designations of AWI as
such Certificate of Designations is in effect on the date of this
Supplemental Indenture as modified from time to time; provided that
such modifications do not increase the amount of dividends paid or
payable in respect thereof.
"Senior Debt" means (1) all Indebtedness of the Company or any
Guarantor outstanding under the Bank Agreement and all Permitted
Interest Rate or Currency Protection Agreements with respect thereto,
unless the instrument under which such Indebtedness is incurred
expressly provides that it is on parity with or subordinated in right
of payment to the Notes or any Guarantee or subordinated to any other
Debt of the Company or any Guarantor; (2) any other Indebtedness of the
Company or any Guarantor permitted to be incurred under the terms of
this Supplemental Indenture, unless the instrument under which such
Indebtedness is incurred expressly provides that it is on parity with
or subordinated in right of payment to the Notes of any Guarantee or
subordinated to any other Debt of the Company or any Guarantor; and (3)
all Obligations with respect to the items listed in the preceding
clauses (1) and (2). Notwithstanding anything to the contrary in the
preceding, Senior Debt shall not include: (1) any liability for
federal, state, local, or other taxes owed or owing by the Company; (2)
any Indebtedness of the Company to any of its Subsidiaries or other
Affiliates; (3) any trade payables; or (4) the portion of any
Indebtedness that is incurred in violation of this Supplemental
Indenture.
"Shelf Registration Statement" means the Shelf Registration
Statement as defined in the Registration Rights Agreement.
"Special Interest" means all liquidated damages then owing
pursuant to Section 5 of the Registration Rights Agreement.
"Subsidiary" of any Person means: (1) a corporation of which
more than 50% of the combined voting power of the outstanding Voting
Stock is owned, directly or indirectly, by such Person or by one or
more other Subsidiaries of such Person or by such Person and one of
more Subsidiaries thereof, (2) a partnership of which such Person, or
one or more other Subsidiaries of such Person or such Person and one or
more other Subsidiaries thereof, directly or indirectly, is the general
partner and has the power to direct the policies, management and
affairs, or (3) any other Person, other than a corporation, in which
such Person or one or more other Subsidiaries of such Person or such
Person and one or more other Subsidiaries thereof, directly or
indirectly, has at least a majority ownership interest and power to
direct the policies, management and affairs thereof.
"Tranche D Term Loans" means the Tranche D Term Loans issued
under the Bank Agreement as in effect on the date of this Supplemental
Indenture in an aggregate principal amount not in excess of $500
million.
"Treasury Yield" means with respect to any Redemption Date, the
rate per annum equal to the semi-annual equivalent yield to maturity of
the Comparable Treasury Issue, assuming a price for the Comparable
Treasury Issue (expressed as a percentage of its principal amount)
equal to the Comparable Treasury Price for such Redemption Date.
"U.S. Person" means a U.S. person as defined in Rule 902(o)
under the Securities Act.
"Unrestricted Definitive Note" means one or more Definitive
Notes that do not bear and are not required to bear the Private
Placement Legend.
"Unrestricted Global Note" means a permanent global Note
substantially in the form of Exhibit A attached hereto that bears the
Global Note Legend and that has the "Schedule of Exchanges of Interests
in the Global Note" attached thereto, and that is deposited with or on
behalf of and registered in the name of the Depositary, representing a
series of Notes that do not bear the Private Placement Legend.
"Unrestricted Subsidiary" means (i) at any date, a Subsidiary of
the Company that is an Unrestricted Subsidiary in accordance with the
provisions of subsection 13(j) of Section 1.01 hereof and (ii) for any
period, a Subsidiary of the Company that for any portion of such period
is an Unrestricted Subsidiary in accordance with the provisions of
subsection 13(j) of Section 1.01 hereof provided that such term shall
mean such Subsidiary only for such portion of such period.
"Voting Stock" of any Person means Capital Stock of such Person
that ordinarily has voting power for the election of directors (or
persons performing similar functions) of such Person, whether at all
times or only so long as no senior class of securities has such voting
power by reason of any contingency.
ARTICLE IV.
MISCELLANEOUS
Section 4.01. Definitions. Capitalized terms used but not defined
in this Supplemental Indenture shall have the meanings ascribed thereto in the
Indenture.
Section 4.02. Confirmation of Indenture. The Indenture, as modified,
supplemented and superseded by this Supplemental Indenture, is in all respects
ratified and confirmed, and the Indenture and this Supplemental Indenture shall
be read, taken and construed as one and the same instrument. (References herein
to the Indenture shall be deemed to be to the Indenture, as modified,
supplemented and superseded by this Supplemental Indenture).
Section 4.03. Concerning the Trustee. The Trustee assumes no duties,
responsibilities or liabilities by reason of this Supplemental Indenture other
than as set forth in the Indenture and, in carrying out its responsibilities
hereunder, shall have all of the rights, protections and immunities which it
possesses under the Indenture.
Section 4.04. Governing Law. This Supplemental Indenture, the Indenture
and the Notes shall be governed by and construed in accordance with the law of
the State of New York without giving effect to any provisions thereof relating
to conflicts of law.
Section 4.05. Separability. In case any provision in this Supplemental
Indenture shall for any reason be held to be invalid, illegal or unenforceable,
the validity, legality and enforceability of the remaining provisions shall not
in any way be affected or impaired thereby.
Section 4.06. Counterparts. This Supplemental Indenture may be executed
in any number of counterparts each of which shall be an original, but such
counterparts shall together constitute but one and the same instrument.
Supplemental Indenture Signature Page
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.
ALLIED WASTE NORTH AMERICA, INC.
By: /s/ G. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇.
-----------------------------
Name: G. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇.
Title: Treasurer
ALLIED WASTE INDUSTRIES, INC.
for purposes of Article 16 of the Indenture and as Guarantor of
the Securities and as Guarantor of the obligations of the
Subsidiary Guarantors under the Subsidiary Guarantees
By: /s/ G. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇.
--------------------------------
Name: G. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇.
Title: Treasurer
Each of the Subsidiary Guarantors Listed on Schedule I hereto,
as Guarantor of the Securities
By*: /s/ G. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇.
-----------------------------------
Name: G. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇.
Title: Treasurer
U.S. BANK TRUST NATIONAL ASSOCIATION
By:
Name:
Title:
EXHIBIT A
[Face of Note]
--------------------------------------------------------------------------------
CUSIP/CINS ____________
10% Series A Senior Subordinated Notes due 2009
No. ______ $____________
ALLIED WASTE NORTH AMERICA, INC.
promises to pay to Cede & Co.,
or registered assigns,
the principal sum of
Dollars on May 1, 2009.
Interest Payment Dates: May 1 and November 1, commencing November 1, 1999
Record Dates: April 15 and October 15
Dated: July 30, 1999
ALLIED WASTE NORTH AMERICA, INC.
By:
-------------------------------
Title:
This is one of the Notes referred to in the within-mentioned Indenture:
U.S. BANK TRUST NATIONAL ASSOCIATION,
as Trustee
By: ----------------------------------
Authorized Signatory
A-1
[Back of Note]
10% Series A Senior Subordinated Notes due 2009
[Insert the Global Note Legend, if applicable pursuant to the provisions of the
Indenture]
[Insert the Regulation S Note Legend, if applicable, pursuant to the provision
of the Indenture]
[Insert the Private Placement Legend, if applicable pursuant to the provisions
of the Indenture]
Capitalized terms used herein shall have the meanings assigned to them
in the Indenture referred to below unless otherwise indicated.
1. INTEREST. Allied Waste North America, Inc., a Delaware corporation
(the "Company"), promises to pay interest on the principal amount of this Note
at 10% per annum from the date hereof until maturity and shall pay the Special
Interest, if any, payable pursuant to Section 5 of the Registration Rights
Agreement referred to below. The Company will pay interest and Special Interest
semi-annually in arrears on May 1 and November 1 of each year beginning November
1, 1999, or if any such day is not a Business Day, on the next succeeding
Business Day (each an "Interest Payment Date"). Interest on the Notes will
accrue from the most recent date to which interest has been paid or, if no
interest has been paid, from the date of issuance; provided that if there is no
existing Default in the payment of interest, and if this Note is authenticated
between a record date referred to on the face hereof and the next succeeding
Interest Payment Date, interest shall accrue from such next succeeding Interest
Payment Date; provided, further, that the first Interest Payment Date shall be
November 1, 1999. The Company shall pay interest (including post-petition
interest in any proceeding under any Bankruptcy Law) on overdue principal and
premium, if any, from time to time on demand at a rate that is 2% per annum in
excess of the rate then in effect; it shall pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on overdue
installments of interest and Special Interest, if any, from time to time on
demand at the same rate to the extent lawful. Interest will be computed on the
basis of a 360 day year of twelve 30 day months.
2. METHOD OF PAYMENT. The Company will pay interest on the Notes
(except defaulted interest) and Special Interest, if any, to the Persons who are
registered Holders of Notes at the close of business on the April 15 or October
15 next preceding the Interest Payment Date, even if such Notes are canceled
after such record date and on or before such Interest Payment Date, except as
provided in Section 3.7(b) of the Indenture with respect to defaulted interest.
The Notes will be payable as to principal, premium and Special Interest, if any,
and interest at the office or agency of the Company maintained for such purpose
within or without the City and State of New York, or, at the option of the
Company, payment of interest and Special Interest, if any, may be made by check
mailed to the Holders at their addresses set forth in the register of Holders,
and provided that payment by wire transfer of immediately available funds will
be required with respect to principal of and interest, premium and Special
Interest on, all Global Notes and all other Notes the Holders of which shall
have provided wire transfer instructions to the Company or the Paying Agent at
least 10 Business Days prior to the applicable payment date. Such payment shall
be in such coin or currency of the United States of America as at the time of
payment is legal tender for payment of public and private debts.
3. PAYING AGENT AND REGISTRAR. Initially, U.S. Bank Trust National
Association, the Trustee under the Indenture, will act as Paying Agent and
Registrar. The Company may change any Paying Agent or Registrar without notice
to any Holder. The Company or any of its Subsidiaries may act in any such
capacity.
A-2
4. INDENTURE. The Company issued the Notes under an Indenture dated as
of July 30, 1999, as amended by the Supplemental Indenture dated as of July 30,
1999 (together, the "Indenture"), each among the Company, the Guarantors and the
Trustee. The terms of the Notes include those stated in the Indenture and those
made part of the Indenture by reference to the Trust Indenture Act of 1939, as
amended (15 U.S. Code ▇▇.▇▇. 77aaa 77bbbb). The Notes are subject to all such
terms, and Holders are referred to the Indenture and such Act for a statement of
such terms. To the extent any provision of this Note conflicts with the express
provisions of the Indenture, the provisions of the indenture shall govern and be
controlling. The Notes are obligations of the Company limited to $2.0 billion in
aggregate principal amount.
5. SUBORDINATION. The Notes are subordinated to Senior Debt, as defined
in the Supplemental Indenture. To the extent provided in the Supplemental
Indenture, Senior Debt must be paid in full before any payment may be made in
respect of the Notes or any other Obligation in respect of Senior Debt. Each
Holder by accepting a Note agrees to the subordination provisions contained in
the Indenture and authorizes the Trustee to give it effect and appoints the
Trustee as attorney-in-fact for such purpose. The Indenture also provides that,
under certain circumstances, the Company will be prohibited from making any
payments in respect of the Notes or any other Obligation in respect of Senior
Debt if the Company is in default on any Senior Debt.
6. OPTIONAL REDEMPTION.
(a) Except as set forth in subparagraphs (b), (c) and (d) of this
Paragraph 5, the Company shall not have the option to redeem the Notes prior to
the final maturity of such Notes.
(b) Notwithstanding the provisions of subparagraph (a) of this
Paragraph 5, prior to August 1, 2004 the Company may redeem Notes, at its
option, upon not less than 30 nor more than 60 days' notice mailed to each
Holder of Notes to be redeemed at such Holder's address appearing in the Note
Register, in amounts of $1,000 or an integral multiple of $1,000, at a
Redemption Price equal to the greater of (i) 100% of their principal amount or
(ii) the sum of the present values of the remaining scheduled payments of
principal and interest thereon discounted to maturity on a semi-annual basis
(assuming a 360-day year consisting of twelve 30-day months) at the Treasury
Yield plus 50 basis points, plus in each case accrued but unpaid interest
(including Special Interest) to but excluding the Redemption Date (subject to
the right of Holders of record on the relevant Regular Record Date to receive
interest due on an Interest Payment Date that is on or prior to the Redemption
Date).
(c) Prior to August 1, 2002, the Company may redeem up to 331/3%
in aggregate principal amount of the Notes originally issued under the indenture
at a redemption price equal to 110.0% of the principal amount of the Notes
redeemed, together with accrued but unpaid interest (including Special Interest)
to the redemption date (subject to the right of Holders of record on the
relevant regular record date to receive interest due on an interest payment date
that is on or prior to the redemption date) with the net proceeds of one or more
Public Offerings of Capital Stock (other than Redeemable Interests); provided
that the notice of redemption with respect to any such redemption is mailed
within 30 days following the closing of the corresponding public offering.
A-3
(d) On or after August 1, 2004 the Notes will be subject to
redemption, in whole or in part, at the option of the Company at any time prior
to maturity, upon not less than 30 nor more than 60 days' notice mailed to each
Holder of Notes to be redeemed at such Holder's address appearing in the
register of Holders, in amounts of $1,000 or an integral multiple of $1,000 at
the following Redemption Prices, expressed as percentages of principal amount,
plus accrued but unpaid interest (including Special Interest) to but excluding
the Redemption Date (subject to the right of Holders of record on the relevant
Regular Record Date to receive interest due on an Interest Payment Date that is
on or prior to the Redemption Date), if redeemed during the twelve-month period
beginning on August, of each of the years indicated below:
Year Percentage
2004..................................................................105.0000%
2005..................................................................103.3333%
2006..................................................................101.6667%
2007 and thereafter...................................................100.0000%
7. MANDATORY REDEMPTION. Except as set forth in paragraph 7 below, the
Company shall not be required to make mandatory redemption payments with respect
to the Notes.
8. REPURCHASE AT OPTION OF HOLDER. The Indenture provides that, subject
to certain conditions, if (i) certain Net Available Proceeds are available to
the Company as a result of Asset Dispositions or (ii) a Change of Control
occurs, the Company shall be required to make an Offer to Purchase for all or a
specified portion of the Securities.
9. NOTICE OF REDEMPTION. Notice of redemption will be mailed at least
30 but not more than 60 days before the redemption date to each Holder whose
Notes are to be redeemed at its registered address. Notes in denominations
larger than $1,000 may be redeemed in part but only in whole multiples of
$1,000, unless all of the Notes held by a Holder are to be redeemed. On and
after the redemption date interest ceases to accrue on Notes or portions thereof
called for redemption.
10. DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in registered form
without coupons in denominations of $1,000 and integral multiples of $1,000. The
transfer of Notes may be registered and Notes may be exchanged as provided in
the Indenture. The Registrar and the Trustee may require a Holder, among other
things, to furnish appropriate endorsements and transfer documents and the
Company may require a Holder to pay any taxes and fees required by law or
permitted by the Indenture. The Company need not exchange or register the
transfer of any Note or portion of a Note selected for redemption, except for
the unredeemed portion of any Note being redeemed in part. Also, the Company
need not exchange or register the transfer of any Notes for a period of 15 days
before a selection of Notes to be redeemed or during the period between a record
date and the corresponding Interest Payment Date.
11. PERSONS DEEMED OWNERS. The registered Holder of a Note may be
treated as its owner for all purposes.
12. AMENDMENT, SUPPLEMENT AND WAIVER. The Indenture permits, with
certain exceptions as therein provided, the amendment thereof and the
modification of the rights and obligations of the Company and the Guarantors and
the rights of the Holders of the Securities under the Indenture at any time by
the Company, the Guarantors and the Trustee with the consent of the Holders of a
majority in aggregate principal amount of the Notes at the time.
A-4
13. DEFAULTS AND REMEDIES. Events of Default include: (i) failure to
pay any interest on any note issued under the indenture when due, continued for
30 days, whether or not prohibited by the subordination provisions of the
indenture; (ii) failure to pay principal of or premium, if any, on any note
issued under the indenture when due, whether or not prohibited by the
subordination provisions of the indenture, (iii) failure to perform or to comply
with subsections 13(a), or 13(b) of Section 1.01 of the Supplemental Indenture
or Article 7 of the Indenture (as superseded by Subsection 15 of Section 1.01 of
the Supplemental Indenture); (iv) failure to perform any other covenant or
warranty of the Company or any Guarantor in the indenture or the Notes issued
under the indenture, continued for 60 days after written notice from Holders of
at least 10% in principal amount of the Outstanding Notes issued under the
indenture as provided in the indenture; (v) a default or defaults under any
bonds, debentures, notes or other evidences of, or obligations constituting,
Debt by the Company, any Guarantors or any Restricted Subsidiary or under any
mortgages, indentures, instruments or agreements under which there may be issued
or existing or by which there may be secured or evidenced any Debt of the
Company, the Guarantor or any Restricted Subsidiary with a principal or similar
amount then outstanding, individually or in the aggregate, in excess of $50
million (whether such Debt now exists or is hereafter created) which default or
defaults constitute a failure to pay any portion of the principal or similar
amount of such Debt when due and payable after the expiration of any applicable
grace period with respect to such Debt, or will have resulted in such Debt
becoming or being declared due and payable prior to the date on which it would
otherwise have become due and payable; (vi) the rendering of a final judgment or
judgments, not subject to appeal, against the Company, the Parent Guarantor or
any of its Restricted Subsidiaries in an aggregate amount in excess of $50
million that remains unstayed, undischarged or unbonded for a period of 60 days
after such rendering; and (vii) certain events of bankruptcy, insolvency or
reorganization affecting the Company, AWI or any Restricted Subsidiary of the
Company. If any Event of Default (other than an Event of Default of the type
described in clause (vii) above) occurs and is continuing, the Trustee or the
Holders of at least 25% in principal amount of the then outstanding Notes may
accelerate the maturity of all such Notes. If an Event of Default of the type
described in clause (vii) above occurs, the principal of any accrued interest on
the Outstanding Notes will become immediately due an payable provided, however,
that after such acceleration, but before a judgment or decree based on
acceleration, the Holders of a majority in aggregate principal amount of
Outstanding Notes may, under certain circumstances, rescind and annul such
acceleration if all Events of Default, other than the non-payment of accelerated
principal, have been cured or waived as provided in the Indenture. Holders may
not enforce the Indenture or the Notes except as provided in the Indenture.
Subject to certain limitations, Holders of a majority in principal amount of the
then outstanding Notes may direct the Trustee in its exercise of any trust or
power. The Trustee may withhold from Holders of the Notes notice of any
continuing Default or Event of Default (except a Default or Event of Default
relating to the payment of principal or interest) if it determines that
withholding notice is in their interest. The Holders of a majority in aggregate
principal amount of the Outstanding Notes by notice to the Trustee may on behalf
of the Holders of all of the Notes waive any existing Default or Event of
Default and its consequences under the Indenture except a continuing Default or
Event of Default in the payment of interest on, or the principal of, the Notes.
The Company is required to deliver to the Trustee annually a statement regarding
compliance with the Indenture, and the Company is required upon becoming aware
of any Default or Event of Default, to deliver to the Trustee a statement
specifying such Default or Event of Default.
A-5
14. TRUSTEE DEALINGS WITH COMPANY. The Trustee, in its individual or
any other capacity, may make loans to, accept deposits from, and perform
services for the Company or its Affiliates, and may otherwise deal with the
Company or its Affiliates, as if it were not the Trustee.
15. NO RECOURSE AGAINST OTHERS. A director, officer, employee,
incorporator or stockholder, of the Company, as such, shall not have any
liability for any obligations of the Company under the Notes or the Indenture or
for any claim based on, in respect of, or by reason of, such obligations or
their creation. Each Holder by accepting a Note waives and releases all such
liability. The waiver and release are part of the consideration for the issuance
of the Notes.
16. AUTHENTICATION. This Note shall not be valid until authenticated by
the manual signature of the Trustee or an authenticating agent.
17. ABBREVIATIONS. Customary abbreviations may be used in the name of a
Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts
to Minors Act).
18. ADDITIONAL RIGHTS OF HOLDERS OF RESTRICTED GLOBAL NOTES AND
RESTRICTED DEFINITIVE NOTES. In addition to the rights provided to Holders of
Notes under the Indenture, Holders of Restricted Global Notes and Restricted
Definitive Notes shall have all the rights set forth in the Registration Rights
Agreement relating to the Notes dated as of July 30, 1999, among the Company,
the Guarantors and the parties named on the signature pages thereof (the
"Registration Rights Agreement").
19. CUSIP NUMBERS. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Company has caused
CUSIP numbers to be printed on the Notes and the Trustee may use CUSIP numbers
in notices of redemption as a convenience to Holders. No representation is made
as to the accuracy of such numbers either as printed on the Notes or as
contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.
The Company will furnish to any Holder upon written request and without
charge a copy of the Indenture and/or the Registration Rights Agreement.
Requests may be made to:
ALLIED WASTE NORTH AMERICA, INC.
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ - ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Treasurer
A-6
ASSIGNMENT FORM
To assign this Note, fill in the form below:
(I) or (we) assign and transfer this Note to:
-------------------------------
(Insert assignee's legal name)
-------------------------------------------------------------------------------
(Insert assignee's soc. sec. or tax I.D. no.)
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint
-------------------------------------------------------
to transfer this Note on the books of the Company. The agent may substitute
another to act for him.
Date:
-------------------
Your Signature:
-------------------------
(Sign exactly as your name
appears on the face of this Note)
Signature Guarantee:
-------------------------------------
A-7
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company
pursuant to subsection 13(a) or 13(b) of Section 1.01 of the Supplemental
Indenture, check the appropriate box below:
[ ]Subsection 13(a) [ ] Subsection 13(b)
If you want to elect to have only part of the Note purchased by the
Company pursuant to subsection 13(a) or Section 13(b) of Section 1.01 of the
Supplemental Indenture, state the amount you elect to have purchased:
$--------------
Date:
------------------------
Your Signature:
-----------------------
(Sign exactly as your name
appears on the face of this Note)
Tax Identification No.:
-----------------------
Signature Guarantee:
----------------------------
A-8
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE
The following exchanges of a part of this Global Note for an interest
in another Global Note or for a Definitive Note, or exchanges of a part of
another Global Note or Definitive Note for an interest in this Global Note, have
been made:
Principal Amount of
Amount of decrease Amount of increase in this Global Note Signature of
in Principal Amount Principal Amount of following such authorized officer
of this Global Note this Global Note decrease (or of Trustee or Note
Date of Exchange increase) Custodian
A-9
EXHIBIT B
FORM OF CERTIFICATE OF TRANSFER
Allied Waste North America, Inc.
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ - ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
Scottsdale, Arizona 85260
U.S. Bank Trust National Association
▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇, ▇▇ ▇▇▇▇▇
Re: 10% Senior Subordinated Notes due 2009
---------------------------------------
Reference is hereby made to the Indenture, dated as of July 30, 1999,
as amended by that Supplemental Indenture, dated as of July 30, 1999
(collectively, the "Indenture"), between Allied Waste North America, Inc., as
issuer (the "Company"), and U.S. Bank Trust National Association, as trustee.
Capitalized terms used but not defined herein shall have the meanings given to
them in the Indenture.
___________________ (the "Transferor") owns and proposes to transfer
the Note[s] or interest in such Note[s] specified in Annex A hereto, in the
principal amount of $___________ in such Note[s] or interests (the "Transfer"),
to ___________________________ (the "Transferee"), as further specified in Annex
A hereto. In connection with the Transfer, the Transferor hereby certifies that:
[CHECK ALL THAT APPLY]
1. [ ]Check if Transferee will take delivery of a beneficial interest in
the 144A Global Note or a Definitive Note Pursuant to Rule 144A. The Transfer is
being effected pursuant to and in accordance with Rule 144A under the United
States Securities Act of 1933, as amended (the "Securities Act"), and,
accordingly, the Transferor hereby further certifies that the beneficial
interest or Definitive Note is being transferred to a Person that the Transferor
reasonably believed and believes is purchasing the beneficial interest or
Definitive Note for its own account, or for one or more accounts with respect to
which such Person exercises sole investment discretion, and such Person and each
such account is a "qualified institutional buyer" within the meaning of Rule
144A in a transaction meeting the requirements of Rule 144A and such Transfer is
in compliance with any applicable blue sky securities laws of any state of the
United States. Upon consummation of the proposed Transfer in accordance with the
terms of the Indenture, the transferred beneficial interest or Definitive Note
will be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the 144A Global Note and/or the Definitive Note and
in the Indenture and the Securities Act.
2. [ ]Check if Transferee will take delivery of a beneficial interest in
the Regulation S Global Note or a Definitive Note pursuant to Regulation S. The
Transfer is being effected pursuant to and in accordance with Rule 903 or Rule
904 under the Securities Act and, accordingly, the Transferor hereby further
certifies that (i) the Transfer is not being made to a person in the United
States and (x) at the time the buy order was originated, the Transferee was
outside the United States or such Transferor and any Person acting on its behalf
reasonably believed and believes that the Transferee was outside the United
States or (y) the transaction was executed in, on or through the facilities of a
designated offshore securities market and neither such Transferor nor any Person
acting on its behalf knows that the transaction was prearranged with a buyer in
the United States, (ii) no directed selling efforts have been made in
contravention of the requirements of Rule 903(b) or Rule 904(b) of Regulation S
under the Securities Act, (iii) the transaction is not part of a plan or scheme
to evade the registration requirements of the Securities Act and (iv) if the
B-1
proposed transfer is being made prior to the expiration of the Restricted
Period, the transfer is not being made to a U.S. Person or for the account or
benefit of a U.S. Person (other than an Initial Purchaser). Upon consummation of
the proposed transfer in accordance with the terms of the Indenture, the
transferred beneficial interest or Definitive Note will be subject to the
restrictions on Transfer enumerated in the Private Placement Legend printed on
the Regulation S Global Note and/or the Definitive Note and in the Indenture and
the Securities Act.
3. [ ]Check and complete if Transferee will take delivery of a beneficial
interest in the IAI Global Note or a Definitive Note pursuant to any provision
of the Securities Act other than Rule 144A or Regulation S. The Transfer is
being effected in compliance with the transfer restrictions applicable to
beneficial interests in Restricted Global Notes and Restricted Definitive Notes
and pursuant to and in accordance with the Securities Act and any applicable
blue sky securities laws of any state of the United States, and accordingly the
Transferor hereby further certifies that (check one):
(a) [ ] such Transfer is being effected pursuant to and in
accordance with Rule 144 under the Securities Act;
or
(b) [ ] such Transfer is being effected to the Company or a
subsidiary thereof;
or
(c) [ ] such Transfer is being effected pursuant to an
effective registration statement under the Securities Act and in compliance with
the prospectus delivery requirements of the Securities Act;
or
(d) [ ] such Transfer is being effected to an Institutional
Accredited Investor and pursuant to an exemption from the registration
requirements of the Securities Act other than Rule 144A, Rule 144 or Rule 904,
and the Transferor hereby further certifies that it has not engaged in any
general solicitation within the meaning of Regulation D under the Securities Act
and the Transfer complies with the transfer restrictions applicable to
beneficial interests in a Restricted Global Note or Restricted Definitive Notes
and the requirements of the exemption claimed, which certification is supported
by (1) a certificate executed by the Transferee in the form of Exhibit D to the
Indenture and (2) an Opinion of Counsel provided by the Transferor or the
Transferee (a copy of which the Transferor has attached to this certification),
to the effect that such Transfer is in compliance with the Securities Act. Upon
consummation of the proposed transfer in accordance with the terms of the
Indenture, the transferred beneficial interest or Definitive Note will be
subject to the restrictions on transfer enumerated in the Private Placement
Legend printed on the IAI Global Note and/or the Definitive Notes and in the
Indenture and the Securities Act.
4. [ ] Check if Transferee will take delivery of a beneficial interest
in an Unrestricted Global Note or of an Unrestricted Definitive Note.
(a) [ ] Check if Transfer is pursuant to Rule 144. (i) The
Transfer is being effected pursuant to and in accordance with Rule 144 under the
Securities Act and in compliance with the transfer restrictions contained in the
B-2
Indenture and any applicable blue sky securities laws of any state of the United
States and (ii) the restrictions on transfer contained in the Indenture and the
Private Placement Legend are not required in order to maintain compliance with
the Securities Act. Upon consummation of the proposed Transfer in accordance
with the terms of the Indenture, the transferred beneficial interest or
Definitive Note will no longer be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the Restricted Global
Notes, on Restricted Definitive Notes and in the Indenture.
(b) [ ] Check if Transfer is Pursuant to Regulation S. (i) The
Transfer is being effected pursuant to and in accordance with Rule 903 or Rule
904 under the Securities Act and in compliance with the transfer restrictions
contained in the Indenture and any applicable blue sky securities laws of any
state of the United States and (ii) the restrictions on transfer contained in
the Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act. Upon consummation of the proposed
Transfer in accordance with the terms of the Indenture, the transferred
beneficial interest or Definitive Note will no longer be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on
the Restricted Global Notes, on Restricted Definitive Notes and in the
Indenture.
(c) [ ] Check if Transfer is Pursuant to Other Exemption.(i)The
Transfer is being effected pursuant to and in compliance with an exemption from
the registration requirements of the Securities Act other than Rule 144, Rule
903 or Rule 904 and in compliance with the transfer restrictions contained in
the Indenture and any applicable blue sky securities laws of any State of the
United States and (ii) the restrictions on transfer contained in the Indenture
and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act. Upon consummation of the proposed Transfer
in accordance with the terms of the Indenture, the transferred beneficial
interest or Definitive Note will not be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the Restricted Global
Notes or Restricted Definitive Notes and in the Indenture.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company.
----------------------------
[Insert Name of Transferor]
By:
--------------------------------
Name:
Title:
Dated:
--------------------------------
B-3
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.
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ - ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
Scottsdale, Arizona 85260
U.S. Bank Trust National Association
▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇, ▇▇ ▇▇▇▇▇
Re: 10% Senior Subordinated Notes due 2009
----------------------------------------
(CUSIP _________)
Reference is hereby made to the Indenture, dated as of July 30, 1999,
as amended by that Supplemental Indenture, dated as of July 30, 1999
(collectively, the "Indenture"), between Allied Waste North America, Inc., as
issuer (the "Company"), and U.S. Bank Trust National Association, as trustee.
Capitalized terms used but not defined herein shall have the meanings given to
them in the Indenture.
___________________ (the "Owner") owns and proposes to exchange
the Note[s] or interest in such Note[s] specified herein, in the principal
amount of $___________ in such Note[s] or interests (the "Exchange"). In
connection with the Exchange, the Owner hereby certifies that:
1. Exchange of Restricted Definitive Notes or Beneficial Interests in a
Restricted Global Note for Unrestricted Definitive Notes or Beneficial Interests
in an Unrestricted Global Note.
(a) [ ] Check if Exchange is from beneficial interest in a
Restricted Global Note to beneficial interest in an Unrestricted Global Note. In
connection with the Exchange of the Owner's beneficial interest in a Restricted
Global Note for a beneficial interest in an Unrestricted Global Note in an equal
principal amount, the Owner hereby certifies (i) the beneficial interest is
being acquired for the Owner's own account without transfer, (ii) such Exchange
has been effected in compliance with the transfer restrictions applicable to the
Global Notes and pursuant to and in accordance with the United States Securities
Act of 1933, as amended (the "Securities Act"), (iii) the restrictions on
transfer contained in the Indenture and the Private Placement Legend are not
required in order to maintain compliance with the Securities Act and (iv) the
beneficial interest in an Unrestricted Global Note is being acquired in
compliance with any applicable blue sky securities laws of any state of the
United States.
(b) [ ] Check if Exchange is from beneficial interest in a
Restricted Global Note to Unrestricted Definitive Note. In connection with the
Exchange of the Owner's beneficial interest in a Restricted Global Note for an
Unrestricted Definitive Note, the Owner hereby certifies (i) the Definitive Note
is being acquired for the Owner's own account without transfer, (ii) such
Exchange has been effected in compliance with the transfer restrictions
applicable to the Restricted Global Notes and pursuant to and in accordance with
the Securities Act, (iii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act and (iv) the Definitive Note is being
acquired in compliance with any applicable blue sky securities laws of any state
of the United States.
(c) [ ] Check if Exchange is from Restricted Definitive Note to
beneficial interest in an Unrestricted Global Note. In connection with the
C-1
Owner's Exchange of a Restricted Definitive Note for a beneficial interest in an
Unrestricted Global Note, the Owner hereby certifies (i) the beneficial interest
is being acquired for the Owner's own account without transfer, (ii) such
Exchange has been effected in compliance with the transfer restrictions
applicable to Restricted Definitive Notes and pursuant to and in accordance with
the Securities Act, (iii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act and (iv) the beneficial interest is being
acquired in compliance with any applicable blue sky securities laws of any state
of the United States.
(d) [ ] Check if Exchange is from Restricted Definitive Note to
Unrestricted Definitive Note. In connection with the Owner's Exchange of a
Restricted Definitive Note for an Unrestricted Definitive Note, the Owner hereby
certifies (i) the Unrestricted Definitive Note is being acquired for the Owner's
own account without transfer, (ii) such Exchange has been effected in compliance
with the transfer restrictions applicable to Restricted Definitive Notes and
pursuant to and in accordance with the Securities Act, (iii) the restrictions on
transfer contained in the Indenture and the Private Placement Legend are not
required in order to maintain compliance with the Securities Act and (iv) the
Unrestricted Definitive Note is being acquired in compliance with any applicable
blue sky securities laws of any state of the United States.
2. Exchange of Restricted Definitive Notes or Beneficial Interests in
Restricted Global Notes for Restricted Definitive Notes or Beneficial Interests
in Restricted Global Notes.
(a) [ ] Check if Exchange is from beneficial interest in a
Restricted Global Note to Restricted Definitive Note. In connection with the
Exchange of the Owner's beneficial interest in a Restricted Global Note for a
Restricted Definitive Note with an equal principal amount, the Owner hereby
certifies that the Restricted Definitive Note is being acquired for the Owner's
own account without transfer. Upon consummation of the proposed Exchange in
accordance with the terms of the Indenture, the Restricted Definitive Note
issued will continue to be subject to the restrictions on transfer enumerated in
the Private Placement Legend printed on the Restricted Definitive Note and in
the Indenture and the Securities Act.
(b) [ ] Check if Exchange is from Restricted Definitive Note to
beneficial interest in a Restricted Global Note. In connection with the Exchange
of the Owner's Restricted Definitive Note for a beneficial interest in the
[CHECK ONE] [ ] 144A Global Note, [ ] Regulation S Global Note, [ ] IAI Global
Note with an equal principal amount, the Owner hereby certifies (i) the
beneficial interest is being acquired for the Owner's own account without
transfer and (ii) such Exchange has been effected in compliance with the
transfer restrictions applicable to the Restricted Global Notes and pursuant to
and in accordance with the Securities Act, and in compliance with any applicable
blue sky securities laws of any state of the United States. Upon consummation
of the proposed Exchange in accordance with the terms of the Indenture, the
beneficial interest issued will be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the relevant Restricted
Global Note and in the Indenture and the Securities Act.
C-2
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
FORM OF CERTIFICATE FROM
ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR
Allied Waste North America, Inc.
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ - ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
Scottsdale, Arizona 85260
U.S. Bank Trust National Association
▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇, ▇▇ ▇▇▇▇▇
Re: 10% Senior Subordinated Notes due 2009
------------------------------------------
Reference is hereby made to the Indenture, dated as of July 30, 1999,
as amended by that Supplemental Indenture, dated as of July 30, 1999
(collectively, the "Indenture"), between ALLIED Waste North America, Inc., as
issuer (the "Company"), and U.S. Bank Trust National Association, as trustee.
Capitalized terms used but not defined herein shall have the meanings given to
them in the Indenture.
In connection with our proposed purchase of $____________ aggregate
principal amount of:
(a) [ ] a beneficial interest in a Global Note, or
(b) [ ] a Definitive Note,
we confirm that:
1. We understand that any subsequent transfer of the Notes or any
interest therein is subject to certain restrictions and conditions set forth in
the Indenture and the undersigned agrees to be bound by, and not to resell,
pledge or otherwise transfer the Notes or any interest therein except in
compliance with, such restrictions and conditions and the United States
Securities Act of 1933, as amended (the "Securities Act").
2. We understand that the offer and sale of the Notes have not been
registered under the Securities Act, and that the Notes and any interest therein
may not be offered or sold except as permitted in the following sentence. We
agree, on our own behalf and on behalf of any accounts for which we are acting
as hereinafter stated, that if we should sell the Notes or any interest therein,
we will do so only (A) to the Company or any subsidiary thereof, (B) in
accordance with Rule 144A under the Securities Act to a "qualified institutional
buyer" (as defined therein), (C) to an institutional "accredited investor" (as
defined below) that, prior to such transfer, furnishes (or has furnished on its
behalf by a U.S. broker-dealer) to you and to the Company a signed letter
substantially in the form of this letter and an Opinion of Counsel in form
reasonably acceptable to the Company to the effect that such transfer is in
compliance with the Securities Act, (D) outside the United States in accordance
with Rule 904 of Regulation S under the Securities Act, (E) pursuant to the
provisions of Rule 144(k) under the Securities Act or (F) pursuant to an
effective registration statement under the Securities Act, and we further agree
to provide to any person purchasing the Definitive Note or beneficial interest
in a Global Note from us in a transaction meeting the requirements of clauses
(A) through (E) of this paragraph a notice advising such purchaser that resales
thereof are restricted as stated herein.
D-1
3. We understand that, on any proposed resale of the Notes or
beneficial interest therein, we will be required to furnish to you and the
Company such certifications, legal opinions and other information as you and the
Company may reasonably require to confirm that the proposed sale complies with
the foregoing restrictions. We further understand that the Notes purchased by us
will bear a legend to the foregoing effect.
4. We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) and have
such knowledge and experience in financial and business matters as to be capable
of evaluating the merits and risks of our investment in the Notes, and we and
any accounts for which we are acting are each able to bear the economic risk of
our or its investment.
5. We are acquiring the Notes or beneficial interest therein purchased
by us for our own account or for one or more accounts (each of which is an
institutional "accredited investor") as to each of which we exercise sole
investment discretion.
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby.
-------------------------------------
[Insert Name of Accredited Investor]
By:
-----------------------------------
Name:
Title:
Dated:
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